The public remains in the dark when it comes to how much has been paid to professional services contractors, so-called embedded contractors, on the Muskrat Falls project.
That’s despite a change in law to remove an exemption that had kept Nalcor Energy from releasing the information.
While the Liberal government has been touting a new level of transparency, specific to contractor payments and related Energy Corporation Act changes, the information has not been proactively released. Journalists have been left to seek it out, with their requests for information hitting new barriers.
“Our intent with this amendment is to ensure that information regarding Nalcor Energy’s independent contractors is available to the people of the province,” said Natural Resources Minister Siobhan Coady, when introducing the bill earlier this year that led to the change in legislation.
But in response to a subsequent request for information filed by The Telegram, a staff member at Nalcor Energy responsible for handling such requests said there’s just too much scattered information to compile and process at this point.
While no longer protected by the Energy Corporation Act, the contractors are now each, individually subjects under the standard provisions of the Access to Information and Protection of Privacy Act. Nalcor has determined, “all of the affected individuals would have to be notified prior to the release of the information. Given the number of individuals involved (several hundred), this task would be extremely difficult and time consuming,” read the written refusal.
“Similarly, the record you have requested in the above noted request does not exist and would require the creation of new records, again by gathering and compiling information from several different sources. While Nalcor has in the past created records when time and circumstances permit, there is no obligation in the ATIPPA for a public body to create records, and creation of the record requested is not something Nalcor can undertake due to ongoing obligations and for the reason set out above.”
At the time the change in legislation was proposed, Coady and other members referenced a series of articles by The Telegram from 2017, highlighting the lack of public access to contractor information.
These contractors worked on everything from project accounting and human resources to engineering and health and safety. Through information requests, The Telegram was able to determine that, at that point, 178 individuals had been working as embedded contractors on the public megaproject for four years or more, and embedded contractors had collectively invoiced for almost 4.6 million hours of work. But essential details including rates of pay and total amounts paid by the Crown corporation to individual contractors were denied.
An appeal to the Office of the Information and Privacy Commissioner then contributed to a ruling from the commissioner, stating there was no evidence the release of the requested information could unfairly harm contractors, or amount to an unreasonable invasion of privacy, but also that the protections under the Energy Corporation Act prevailed.
Premier Dwight Ball said the lack of disclosure didn’t “pass the smell test,” leading to the legislative change earlier this year.
Following the change, The Telegram had returned to its earlier request, asking for the lists again, but with the previously redacted and omitted information including contractor rates.
It has yet to make a decision on whether or not to file new requests, or challenge the response and appeal its case to the Office of the Information and Privacy Commissioner.
While The Telegram was awaiting response to its re-filed access to its request, the CBC published a story about its own battle for more contractor information. In its case, covering a more select group, three senior managers on the Muskrat Falls project, hired through consulting companies they own, filed a legal challenge to block the release of their pay information. That case remains before the Newfoundland and Labrador Supreme Court.
Asked about the recent cases, the Department of Natural Resources provided a statement on behalf of minister Coady.
“Our government made the legislative changes necessary to the Energy Corporation Act to ensure information related to independent contractors within Nalcor would be subject to the Access to Information and Protection of Privacy Act. As such, information should be released as required by the Act,” she said.