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Letter: A lost opportunity to achieve more access to Information at Nalcor

An aerial photo of Muskrat Falls taken in January 2018. — Photo courtesy of Nalcor Energy.
An aerial photo of Muskrat Falls taken in January 2018. — Photo courtesy of Nalcor Energy. - Courtesy of Nalcor

In a recent letter to the editor, I discussed the amendment that would be required to the Energy Corporation Act in order to bring more openness and transparency to Nalcor. Since that time, I was made aware of a different path that would have achieved the same results, but unfortunately wasn’t acted upon.  This information was obtained through a recent request made by yours truly to the province’s Privacy Commissioner.

My request was made as a follow-up to a recent debate in the House of Assembly on Bill 33: An Act to Amend the Access to Information and Protection of Privacy Act, 2015.  This was the bill that exempted the Muskrat Falls Inquiry from being subject to ATIPPA, as requested by the Commissioner of the Inquiry, Justice Richard LeBlanc. 

During the debating of Bill 33, the government was asked if they had consulted with the Privacy Commissioner and they stated they had.

As a follow up, I contacted the Privacy Commissioner and requested any relevant documentation between his office and the government on this matter. In response, I was provided with a letter dated Feb. 15, 2018 from the Privacy Commissioner to an official within the Department of Justice and Public Safety. This letter indicated that the commissioner had no concern with Justice LeBlanc’s request for the exemption but went on to say; “True transparency in terms of Nalcor and access to information could be achieved by amending the Bill to delete paragraph (e) section 5.4 of the Energy Corporation Act from Schedule A to the ATIPPA, 2015.” 

So what does that mean?

Basically, Section 7 of the Access to Information and Protection of Privacy Act states that ATIPPA supersedes all other legislation with the exception of the pieces of legislation listed in Schedule A of the Act. Currently, the Energy Corporation Act is listed in Schedule A. If government were to remove the Energy Corporation Act from Schedule A of the Access to Information and Protection of Privacy Act, then all requests for information to Nalcor could no longer be denied outright, without explanation or appeal.  Instead, the current ATIPPA rules would require Nalcor to provide justification for denying information requests and would provide an appeal mechanism to an independent third party (ie. the Privacy Commissioner) on information refusals. 

What was suggested by the Privacy Commissioner in this correspondence is that while government was in the House of Assembly amending the Access to Information and Protection of Privacy Act to exempt the Muskrat Falls Inquiry all they had to do was remove one clause from Schedule A (while they were at it) and in doing so, they could have brought some real openness, transparency and accountability to Nalcor. Our government failed to do so.

Given all that has gone on in this province as it relates to Nalcor, whether it be Muskrat Falls, Dark N.L., corporate bonuses, the controversial departure of the former CEO, the resignation of the former Board of Directors and the list goes on, why wouldn’t our premier and our government want to make the necessary changes to provide for more public accountability in a corporation for which we are the only shareholder?  The premier himself stated that the whole imbedded contractor situation “didn’t pass his smell test” and that he wanted to make more information available.  Is this truly the case or just hollow words?

This was a lost opportunity to do the right thing. The people of our province deserve better. 

Paul Lane

Independent MHA – District of Mount Pearl-Southlands

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