Politics and policy are much more complicated things than they appear to many people. Change is possible, but effective change can only come if we see the world as it is, not as some people imagine it might be. Canada’s legal cannabis policy in most Canadian provinces is a failure. There
Continue readingTag: freedom from information
The Sir Robert Bond Papers: Plain English , Disclosure, and Bad Public Policy #nlpoli #cdnpoli
Right off the start, let’s affirm that Nalcor was created by an administration that was, from the time it took office, notorious for its efforts to flout the law in order to keep information secret. Polling information was the first sign of the problem bit wasn’t the last example. There
Continue readingThe Sir Robert Bond Papers: No help, not my department, and missing records #nlpoli
Starting a little over a hundred years ago, the Government of Newfoundland publishing a list of public servants by name, showing their job title, the department they worked for, the annual salary,and the Christian denomination to which they belonged. Since 1981 and the passage of the first freedom of information
Continue readingThe Sir Robert Bond Papers: Illegal deletions okay in NL: access commissioner #nlpoli
Shortly after he took office a month or so ago, newly appointed information commissioner Donovan Molloy told CBC there had been a “substantial increase” in the number of access to information requests since 2015 when the House of Assembly passed a new access to information law.
True, said the always accurate labradore, but that was only in relation to the two years when Bill 29 seems to have reduced the number of requests. People had filed 343 access requests up to the first part of August. That would work out to about “800-and-some requests completed for the year,” according to labradore, “which would be something of a surge compared to Bill 29 levels, and even, to a lesser degree, compared to pre-29 levels.*
Right to Access
In general, government officials still do their job on the premise that all government information is secret except for the information they have to release under the access law. The alternate view is to start from the premise that information should be disclosed except for the mandatory and discretionary exemptions in the access law. That is essentially the one endorsed by the Wells’ commission in 2014. “The Committee concludes,” the three commissioners wrote on page 53 of their final report, “that according quasi-constitutional status to the right to access information is consistent with the status accorded to that right in all other Canadian jurisdictions, reflects the views of the Supreme Court of Canada, is consonant with the views expressed in the overwhelming majority of the submissions presented to the Committee, and parallels the stature accorded to the right in international jurisdictions generally.”
Their draft of the access law reflects that view. The purpose of the Act – section 3 of the legislation states – is “to facilitate democracy” by providing citizens with access to information “required to participate meaningfully in the democratic process.”
The access request co-ordinators operate under a set of practices that don;t conform to that basic value, however. The most striking example of this is their continued use of the concept of “non-responsive” information in a government record as a way to censor information that is not covered by one of the legal reasons to delete information.
Bureaucrats developed the idea of information that fell outside the bounds of a request as they set up the access system after the landmark changes introduced by the 2002 access to information law. That was the first change to the freedom of information law since the first one was passed in the early 1980s. If you asked for documents about widgets, for example, there might be a mention of widgets in another document about weebles. If there was no other reason to block out the parts of the document about weebles, access co-ordinators would blot out the sections and say they were “not responsive” or “non-responsive to your request.
The only logical reason to do that was if the bureaucrats operated on the premise that the public had a right to access only the information they had specifically asked for. Everything else was secret. Go back and look at the Wells commission’s comment, though. The law is supposed to give people information to allow them to participate fully in the democratic system. The way the bureaucrats handle access to government information, you aren’t supposed to participate or at least you are only supposed to participate in a way they can control.
Widgets and Weebles
Let’s say that you are very concerned about government widget policy. Unknown to you, though, there is a technical reason why government has to deal with widgets and weebles in the same policy. The government document that turned up in response to my request for widgets gives a very good discussion of the issues involved in widgets and why you have to have a policy that covers both widgets and weebles if you want to make sure that the public widgets are safe. There is no reason to keep the weebles information from you, but the bureaucrats have cut it out because it was not what you asked for.
The Wells’ commission philosophy would give you the information about widgets and weebles. If government asked for your opinion on widgets policy in one of their “public engagement” sessions, you would be able to give them an informed response. You had now been clued into the link between widgets and weebles. You had done some additional research and now had some better ideas. Maybe you had even changed your mind about widgets based on the new information.
Look at it this way and you can see pretty quickly the problems with what the bureaucrats are doing. It uses a made-up exemption to limit public access to information in a way that violates the principles on which the access law is written. The effect of the policy is to restrict public access to information.
Two Concrete Examples
You can find this “non-responsive” exemption all over the place in the government’s record of disclosed requests. One of the simplest ones is a request for the Premier’s desk calendar for the month of April.
Not surprisingly, the calendar he uses goes week by week and not month by month. The actual page from the diary starts on March 28.
In the response, right, officials blacked out the last days of March as “non-responsive” solely because the person had asked only for the month of April.
If you look at the April calendar, you can see very few legitimate deletions. That is, they actually blacked out a relatively small number of entries using the disclosure exemptions listed in the access law. Logically, then, we wouldn’t assume there were any large number of secret events in those last few days of March. They likely looked like April. But officials blocked out whole day’s worth of stuff because the person had only asked for April. Any incidental information – even stuff in the public domain already – got the chop.
Another good example of the “non-responsive” deletion is also a very troubling one. Someone asked for information about a controversial sand quarry in the Straits of Belle Isle, on the Labrador side. The request was for:
“All information and records relating to the submission, review and approval of a quarry located in the area of L’Anse Amour Labrador (Natural Resources file# 71110846 and permit id # 132484) including written correspondence, emails, line department requests for commentary and responses to those requests for commentary, as well as any briefing notes and written analysis completed on impacts of the establishment of said quarry.”
The access co-ordinator deleted information on more than a dozen pages and labelled them as “non-responsive” in a request for all records. The co-ordinator also deleted curse words in this document even though there is no legitimate reason to do so. Other co-ordinators have done the same thing. The name of an individual is deleted even though the information is contained in a summary of a radio interview in which the person was mentioned, by name, in public. The access officials also held back some documents in the version posted online on the grounds that there may be a copyright issue associated with them. Again, there’s no legal basis to do that and the practice is highly suspicious anyway given that the access officers will send you the redacted pages if you ask for them.
A second, similar request for documents includes the “non-responsive” deletions. The access co-ordinator even went so far as to invent an excuse for the “non-responsive” deletion, referring to section 8(2) of the access law. That’s the section that permits deletion of information that is exemption from disclosure under the law. it doesn’t access co-ordinators to make up deletions and then use this section as an excuse.
Information commissioner approves illegal deletions
The illegal deletions using the term “non-responsive” is actually endorsed by the information commissioner’s office. In a “best practices” guidance issued May 11, 2016, the commissioner notes that while there is no permission in the access law for this response, some other jurisdictions allow and it has been a common practice in Newfoundland and Labrador.
On that basis, the commissioner advised access co-ordinators they can continue to use the illegal deletion. They should do so “sparingly and only where necessary and appropriate.” Access co-ordinators should use the illegal deletion, the commissioner advises, while giving the law a “liberal and purposive” interpretation.
That’s a rather curious bit of legal gobbley-gook to justify continued illegal censorship. After all, that the current access law comes complete with an extensive report written by three experts – one of them a former chief justice of the court of appeal – that explains the whole matter in plain English. There’s no need for a generous interpretation given that the public has a right to information, except as allowed by the access law and – as the commissioner’s guidance notes – there is no allowance in the access law for a “non-responsive” deletion.
“Coordinators are still free to use their discretion when it comes to the redaction of ‘nonresponsive’ information in a record…” the commissioner’s advice says.
The Sir Robert Bond Papers: Bill 29 didn’t go far enough: public sector unions #nlpoli
The teachers’ union doesn’t want the public to know the names of public servants in Newfoundland and Labrador.The news late on Thursday is that NAPE – the province’s largest public sector union – and the nurses’ union are thinking about joining t…
Continue readingThe Sir Robert Bond Papers: A mess in the government access and privacy world #nlpoli
Two recent stories about the province’s access to government information and privacy laws.Both of them are essentially nonsense.Short version for the new administration: cock-ups in comms and access to government information helped destroy the Co…
Continue readingThe Sir Robert Bond Papers: The politics of information #nlpoli
A couple of recent post are reminders of how important it is to take a look at issues in the province from another perspective. On June 10, you will find a post about crab fishermen from New Brunswick who want to sell their catch to a company near Corner Brook.
Continue readingThe Sir Robert Bond Papers: Repealing Bill 29 #nlpoli
The Liberals proposed a motion during last week’s private member’s day that the government repeal Bill 29. Meanwhile, at the Telegram, legislative reporter James McLeod has been waging a one-man crusade to get everyone to stop trying to repeal Bill 29. Bill 29 actually fixed a few nasty things, according
Continue readingThe Sir Robert Bond Papers: Talk is cheap. #nlpoli
It was only a matter of time before the government that says more and more about less and less figured out that its best mouthpiece was Steve Kent, right, the minister of perpetual self-parody. No one can talk more while saying little of substance and so it is quite natural
Continue readingThe Sir Robert Bond Papers: D’oh! Telegram shags up Muskrat Falls access story #nlpoli
According to a major Telegram story on Monday morning, the provincial government won’t be able to release some information about Muskrat Falls because of the provincial access to information laws. There’s only one problem: the Telegram got the whole thing wrong. (Read more…)
Continue readingThe Sir Robert Bond Papers: How do they work, exactly? #nlpoli
As laughable as it is for the Premier’s Office to insist former Premier Kathy Dunderdale received only 46 e-mails in a single week and sent none, there are some other things in this little episode that are worth noticing. Put ‘em all together with other information and you might have
Continue readingThe Sir Robert Bond Papers: How did she work, exactly? #nlpoli
How odd that the Premier of Newfoundland and Labrador – arguably the busiest job in the province, bar none - received only 46 e-mails in a one week period in January. And how extremely odd that none them – apparently – came from any of her staff, senior public servants,
Continue readingThe Sir Robert Bond Papers: Access to Information – some misunderstandings #nlpoli
A tale out of Ottawa reveals the extent to which access to information problems crop up in lots of places. CBC News asked for a copy of a memo from the commander of the Canadian Army about leaks of information within the army. CBC apparently had a copy of the
Continue readingThe Sir Robert Bond Papers: Doing it right #nlpoli
Premier Tom Marshall confirmed on Thursday that the provincial government will be doing the review of the provincial information and privacy law a year earlier than scheduled. They will also be appointing three people to serve as the commission conducting the review. The provincial government is also accepting nominations for
Continue readingThe Sir Robert Bond Papers: Dunderdale’s Bill 29 “a dramatic step backwards” for transparency in NL #nlpoli
On Monday, Premier Kathy Dunderdale blew off any questions in the House of Assembly about Bill 29 with the comment that the centre for Law and Democracy said the province was third in the country for transparency. Well, as regular readers well know, the Premier is not usually right about
Continue readingThe Sir Robert Bond Papers: The Beast #nlpoli
This week, people across Canada who are interested in the public right to access government information mark a thing called Right to Know Week. It’s a time to “raise awareness of an individual’s right to access government information, while promoting freedom of information as essential to both democracy and good
Continue readingThe Sir Robert Bond Papers: The New Secret Nation #nlpoli
On the front page of Wednesday’s Telegram was another instalment in James McLeod’s blockbuster on the provincial government’s policy of censoring public documents. This one focused on the claim by a spokesperson for the public engagement office that orders in council were not covered by a section of the province’s
Continue readingThe Sir Robert Bond Papers: Censoring Public Documents… or not #nlpoli
Not only does the provincial government now censor public documents called orders in council, they can’t get their own scheme right. Public engagement minister Keith Hutchings published a letter to the editor claiming that government had always censored orders in council. The Telegram dutifully went back and asked for some
Continue readingThe Sir Robert Bond Papers: A Commitment to Secrecy #nlpoli
The justice department is the lead department enforcing the provincial access to public information law. As such, it’s a pretty serious indictment of the government’s commitment to public access when the justice department violates the access law. From the access commissioner’s summary of his report into the latest complaint against
Continue readingThe Sir Robert Bond Papers: Tories involved in violation of privacy act #nlpoli
The temperature in the House of Assembly is not even cooled down and Tory legislator Paul Lane (Mount Pearl South) is likely to find himself in the middle of a controversy involving the disclosure of personal information that is supposed to be protected under the Access to Information and Protection
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