Back when the provincial government brought in Bill 29 to restrict public access to information, we pointed out that, among other things, the Dunderdale government had built an exemption that would allow it to hide virtually any document by deeming it to be “solicitor-client” document. The exemption would not only serve to hide material, but would remove such a claim from review, even by the province’s access to information commissioner.
Under the changes — changes that are now law — if the government claimed that exemption, you could only take them to court. Not only that, but you would have to go into an expensive court process blind, not knowing if your court challenge would mean risking not only your own court costs, but the government’s as well. It is the perfect way to hide information from public view.
Now, the province’s access to information commissioner, Ed Ring, has issued a ruling saying that even before the Bill 29 changes, the provincial government was doing just that, cloaking hundreds of pages of information as “solicitor-client” documents to deliberately withhold information they should have been releasing.
And the department involved? No less than the Department of Justice, which was, at the time, charged with making sure access legislation is followed.
As Ring put it, “The department’s attempt to claim solicitor-client privilege to withhold publicly available material such as legislation and government human resource manuals and policies did not come close to meeting the standard that I expect from the Department of Justice, especially given that it was the lead department responsible for the (access act) at the time, and therefore responsible for setting the standard for all other public bodies.”
Ring’s report on the four-year-old battle is a real eye-opener — the problem is, the government’s legislative changes have essentially closed that eye. Ring can no longer see the documents the government wants to keep hidden under the solicitor-client exemption. He can’t rule on whether documents have been withheld properly. We now know for certain that the government will use a blanket exemption to hide what it doesn’t want seen.
But in his latest report, Ring has done more than simply pointing out the problem. He’s throwing down the gauntlet, saying, “It is my sincere wish … that applicants will not be deterred from seeking an independent review … as a result of being required to proceed through court rather than through my office. … I therefore encourage any applicant whose request has been denied on the basis of a claim of solicitor-client privilege to contact my office if the applicant wishes me to take their matter before a judge, and I will consider each and every case on its merits.”
It’s a different sort of stand, if Ring follows through.
If the commissioner does take cases to court — and take them there often — the government will be unable to continue to use the financial burden of court costs to halt the release of embarrassing information. Not only that, if it gets caught doing things improperly often enough, a day will come when judges start ordering the government to pay the costs of actions.
Let’s see how much money a cash-strapped government is willing to spend on court costs in its continuing effort to hide documents it should be releasing — and how many times it has to lose in court before it gets the point.