Government engaged in clear ‘abuse’ of ATIPPA, Wells says

Minister responsible can’t say if anything has been done to prevent it from happening again

James McLeod
Published on August 20, 2014
From left, Doug Letto, Clyde Wells and Jennifer Stoddart prepare for the first day of testimony at the access to information hearings at the Ramada Hotel in St. John’s Tuesday.
— Photo by Rhonda Hayward/The Telegram

Public Engagement Minister Sandy Collins couldn’t cite any measures the government has taken to prevent bureaucrats from abusing provisions of the access to information legislation and improperly keeping documents secret from the public.


Collins was seated across from former premier Clyde Wells at the access to information review in St. John’s Tuesday when Wells pointedly reminded him that in the past, bureaucrats have claimed attorney-client privilege over documents that had nothing to do with legal advice.

“It’s clear that the solicitor-client privilege was being abused and was being asserted to prevent the release of the documents,” Wells told Collins.

“That’s concerning,” Collins responded.

The revelation that bureaucrats were keeping documents secret even though they should be made public happened because the information and privacy commissioner was able to review the documents.

All of this happened before Bill 29 was introduced in the spring of 2012. When Bill 29 was introduced, it took the power away from the commissioner to review cabinet documents and records subject to attorney-client privilege.

Instead, if somebody wants to get a document reviewed, they have to go to court, which can be an expensive process that can take months or years.

Wells heaped scorn on that approach Tuesday during the committee hearing.

“That’s like telling me that I can get a really good meal if I’m prepared to go to South Africa to get it and incur all the costs of getting there,” Wells said. “To go to court to get, I mean, it’s just a massive climb for the average person that’s looking for information.”

After the review committee wrapped up for the day, The Telegram spoke to Collins and asked him what the government has done in the past two years to prevent bureaucrats from abusing attorney-client privilege or cabinet secrecy to improperly withhold documents, given that it’s much harder and much more expensive for a person to get potential abuse independently reviewed.

Collins said he was not aware of any measures that have been taken to prevent abuse and prevent documents from being improperly withheld.

“That is a very concerning state, and it’s something, obviously, that needs to be addressed,” he said, before acknowledging he doesn’t know of anything that has been done to address it.

At the start of his testimony at the ATIPPA review committee Tuesday, Collins said he was only interested in providing factual information, and didn’t want to prejudice the committee’s review.

“It was an information-sharing session today,” Collins said. “We wanted to provide them with the best possible information — a unique perspective we bring as administrators of the act.”

For the past few months, Wells, along with former federal privacy commissioner Jennifer Stoddart and retired journalist Doug Letto, have been studying the access to information system and holding public hearings.

Overwhelmingly, the people who have showed up to present at the committee hearings — including The Telegram — have argued the current law is restrictive, and allows the government to keep far too much information secret from the public.

But while Collins said he wanted to stick to just facts, again and again, Wells, Letto and Stoddart asked him and his officials for justifications behind the most controversial provisions brought in under Bill 29.

The committee wanted explanations for why the government needs to be able to keep draft consultants’ reports secret indefinitely, why the information and privacy commissioner’s office shouldn’t be strengthened and why the government expanded the definition of commercially sensitive information.

Speaking to The Telegram afterwards, Collins said lessons have been learned from Bill 29.

“It’s a learning process,” he said. “Perhaps deficiencies can be seen, like any piece of legislation.”

The public consultations by the ATIPPA review committee will wrap up at the end of this month, and then the committee is expected to submit a final report this fall, with recommendations to the government on how to change the law.

Collins wouldn’t guarantee that the government would accept the recommendations.

“The government will review all recommendations put forward,” he said. “Of course, we’re going to look at every recommendation. Will we accept every one? It’s too early to say.”

Collins’ full testimony, along with all other public presentations, can be viewed online at

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