I think it’s fair to say that Nalcor has become the poster child for openness and transparency concerns in this province. What many people may not realize is that this is exactly the way it was set up, whether intended or not.
The biggest hurdle to information access at Nalcor falls within a piece of legislation entitled the Energy Corporation Act. Specifically, it is Section 5.4 of this act which states that Nalcor may refuse to disclose commercially sensitive information of the corporation or its subsidiaries. It shall also refuse to disclose commercially sensitive information of third parties. A refusal does not require an explanation and there is no mechanism for appeal. Nalcor, under this legislation, is the only public body in our province to be afforded such protection.
For all other government departments and public bodies (which are covered by ATIPPA), if a public request for information is denied, the public body must provide and explanation as to why and that decision can be appealed to the privacy commissioner, who will subsequently determine whether the public body was correct in denying the information. If in the opinion of the privacy commissioner it was not justified in denying the request, the commissioner will recommend that the public body release the information. If the public body does not agree with the privacy commissioner, it can apply to the court for a declaration that it is not required to comply with the recommendation and a judge will decide on the matter.
However, as previously stated, this is not the case with Nalcor. When it comes to this crown corporation, any request for information can be denied for being “commercially sensitive” without explanation or avenue for appeal. This is what needs to change if we want true openness and transparency at Nalcor.
Of course we all recognize the need to protect certain commercially sensitive information as no proponent wishing to conduct business in N.L. would ever engage in business arrangements with our province without some reasonable safeguards in place to protect their interests. However, there must be a balance between commercial sensitivity and the rights of the taxpayer to know how their tax dollars are being spent and their resources are being managed. Currently that balance is not being achieved and the people are not being adequately informed about the operations of a crown corporation of which they are the only shareholder.
Perhaps at the end of the Muskrat Falls Inquiry, Commissioner LeBlanc will recommend a review of the Energy Corporation Act. My question to our premier is why wait two years (following the inquiry) to make the required changes to the Energy Corporation Act? We know the root of the problem, so let’s do something about it now.
Independent MHA –Mount Pearl-Southlands