Reviewing access to information — again

Russell Wangersky
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There’s nothing like history to trip you up: it repeats more than a bad burrito.

Here’s one interim premier, Beaton Tulk, in the House of Assembly on Dec, 4, 2000, when the government announced a review of what was then known as the freedom of information act:

“Mr. Speaker, this government is confident that the act is working well, but we also acknowledge that there have been no major changes to the act since it was enacted in 1981. … This government has no intention of hiding behind legislation. We are committed to an open, transparent process in the development and implementation of public policy. And we want to ensure our legislation remains clear and relevant in this new age of information.”

Here’s another interim premier, Tom Marshall, talking to reporters about reviewing the effects of Bill 29 on the province’s access to information law: “People I talk to about Bill 29, when I ask them, well, what parts of it were you concerned about? They didn’t say anything. … There was just a feeling out there that there was something wrong with Bill 29.” (Don’t forget: this government has also steadfastly argued it was the most open and transparent in the nation, echoing Tulk again.)

In some ways, the comments are almost interchangeable: there’s nothing really wrong, but, hey, we’ll have a look anyway because people are complaining.

Well, when the review was done for Tulk’s “working-well” act, plenty of problems were exposed — and, if this proposed Marshall review is done right, there will be some pretty clear problems to deal with as well.

What are the things that people have been unable to explain to Mr. Marshall?

Well, here are a few. First, Bill 29’s expansion of the definition of the types of documents that can be withheld for the purpose of protecting cabinet secrecy. Virtually any correspondence between a minister and any staff can now be deemed secret and sealed for years.

While there is a valid argument for secrecy for the deliberations of cabinet, the ability to label anything embarrassing as a cabinet document is just plain insulting. It can be used to exclude any record, any time.

There’s also the broader interpretation of what constitutes confidential business information. When a statutory review drew up the basics that became Bill 29, the commissioner doing the review had this to say: “The submissions made to me and my own experiences in government have convinced me that greater protection is required to protect government negotiations and third party information.”

That’s been interpreted, post-Bill 29, to mean you can withhold even the amount the government has paid for tendered services.

Here’s the thing, though: when you decide to deal with the government, you should have to expect that details will be available to the government’s shareholders, otherwise known as the taxpayers. If you take the government dollar, you have to expect the public scrutiny that comes with it.

Don’t like the scrutiny? Don’t take the money or contracts. (Here’s an interesting aside: the review that led to Bill 29 has since been deleted from the provincial government’s website.)

Third, the broader definition of what constitutes solicitor/client privileged information. Right now, government officials can claim that a document is solicitor/client privileged, and at that pont, even the province’s access commissioner is not allowed to review the documents. A special, and expensive, action has to be taken at the Supreme Court, giving a financial “get-out-of-releasing-information” card to anyone who claims the exemption.

Another change that should be considered? Allowing the access commissioner to not only rule that information should be released, but to order its release.

A cabinet minister who withholds a document is naturally in a conflict of interest; the commissioner is the first line of objectivity in the equation. Allowing the commissioner to order the release of documents takes away the stain of conflict.

The list goes on and on, but what’s really remarkable is that, until now, the provincial Tories have been confident that everything was just fine, just like the provincial Liberals were.

What’s changed? The same thing that changed with Beaton Tulk.

Things only really change for access to information when governments are either in flux, or can’t help but tilt towards broader change.

So history repeats.

Oh, and one last thought on who should do the upcoming review?

Not bureaucrats or former bureaucrats, politicians or former politicians. Remember that line above, the “in my own experience” one? It’s, in itself, an admission of conflicted interests.

How about an independent specialist in access to information?

The last review was all about closing doors at the request of civil servants. Perhaps this review should look at opening them, for all of us.

Russell Wangersky is editorial page editor of the St. John’s Telegram. He can be reached by email at

Organizations: Supreme Court

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