26 January 2009

Freedom from Information: Memorial University joins the government secrecy cult

Two years later after first receiving an access to information request, Memorial University and its lawyers are still mounting arguments to justify keeping information from an applicant for access, even though the arguments they make are contradicted by the very legislation they cite.

It’s like the Executive Council’s attempts to hide public opinion polls even though the polls were clearly earmarked for disclosure in the law.

You can read the full account in the most recent decision of the information commissioner. The commissioner was clearly attempting to persevere in the face of absurdity and does a fairly good, if lengthy, job of demolishing the ludicrous position advanced by the university’s lawyers.

What’s noteworthy in this case is the extreme length to which Memorial University went to deny access.

In some instances, Memorial University and its lawyers attempted to reinvent the plain English meaning of the province’s access to information law.  If taken to its logical conclusion in one portion of its argument, Memorial University would withhold information on an applicant from the applicant himself or herself on the grounds that it was personal information and could not be disclosed.

In doing so, Memorial’s lawyers constructed an argument based on case law from another province  where the legislation does not provide that…wait for it…the privacy provisions don’t apply when the information is about the applicant.  A section of the legislation designed specifically to avoid absurdity was turned – by Memorial’s desire to hide information – into the very absurdity itself.

Memorial has also redacted Dr. Panjabi’s [the applicant] name in several places. Memorial argues that the right of an individual to his or her own personal information is not absolute where the release of information would reveal the personal information of another individual. However, there are two separate provisions (one being section 30(2)(a) and the other being section 3) in the ATIPPA that clearly provide an individual the right to access his or her own personal information. While there may conceivably be circumstances where one’s personal information may reveal information which must be protected under another exception, I believe these circumstances are not present in the case at hand.While the right of an individual to his or her own personal information may not be absolute, given the stated purpose of the ATIPPA, it will only be in exceptional circumstances where this right will be restricted. Thus, it is clear to me that in relation to the Katz Report, Dr. Panjabi is entitled to see all instances where her name appears, unless there are clear reasons why it must be withheld under an exception in the ATIPPA.

Further, Memorial has also redacted the names of administrators, professors and employees of Memorial. Section 30(2)(f) states that the prohibition of disclosure of personal information does not apply where “the information is about a third party’s position, functions or remuneration as an officer, employee or member of a public body or as a member of a minister’s staff.” Therefore it is clear that to the extent that these people are named in connection with their position and functions as employees of Memorial, section 30(1) is not applicable and they should be released. For example, where the names appear in the context of actions undertaken by these employees in the normal course of their duties, they should be released.

In another glaring instance, the university refused to explain the basis for claiming solicitor client privilege for a redaction which did not involve – on the face of it according to the decision report – the university’s legal counsel.( paragraph 59)

I note here that in April of 2008 an official with this Office sought clarification on this issue. In an e-mail dated 25 April 2008, Memorial’s designated representative on this file was asked to clarify Memorial’s use of section 21(b). There was no response to this e-mail. In a letter dated 5 May 2008 to this same representative, the official with this Office again referred to the April e-mail. Again, no clarification was provided by Memorial. I note as well that in its submission the only reference that Memorial made to section 21 was in relation to its response to Dr. Panjabi’s initial request: “Some information was redacted pursuant to s. 21, on the basis that the exemption for solicitor client privilege was engaged.” Memorial provided no reference to, nor any evidence in support of, its use of section 21(b). As such, Memorial has failed to meet its burden of proof as mandated by section 64 of the ATIPPA. As I said in my Report A-2008-012, “…if the head of a public body cannot satisfy the Commissioner (or the Court, on an appeal) that its decision is the right one, then that decision will not be upheld. It is therefore critical to the proper operation of the Act that a public body put sufficient effort into articulating the reasons for its decisions.” Based on the above, it is obvious that Memorial did not put sufficient effort into justifying its use of section 21(b).

The claim is one thing; the repeated refusal to respond to the information commissioner’s request for explanation is incomprehensible. 

Well, incomprehensible or arrogant;  take your pick.

The secrecy virus has now infected the university.

-srbp-

11 comments:

towniebastard said...

MUN's always had a cult of secrecy. Trying to pry information out of the university has always been like trying to pull teeth. This is nothing new.

For an institute of higher learning dedicated to an open exchange of ideas, they like their secrets.

Winston Smith said...

As for the root cause of the secrecy virus, don't look to the Telegram for answers. Wagernsky's editorial in today's paper is a depressing statement of how the media have bought the Dangovt brand every bit as much as the corrupt bagmen whom they blame for everything. By arguing that DW's wealth makes him immune from corruption, Wagernsky shows an almost comic lack of analytical insight or knowledge of how political power actually operates. Whether DW is personally wealthy does not, for a second, mean that he is less liable to engage in corruption than a premier with a smaller bank account. Numerous academic studies, which can be read in popular books by Malcolm Gladwell and others, shows precisely the opposite: when given the opportunity, wealthy people will steal and cheat just as much (and, in some studies, even more) than poorer people. The reasons are unclear -- some scholars specular that it's part of a mentality of entitlement (and there is no lack of stories from corporate America to illustrate this) -- but the underlying cause is beside the point. The point is that Wagernsky, et al., need to rid themselves of the false notion that DW is somehow special because he is rich, that he is somehow less inclined to be corrupt because he doesn't need the money. One could, in fact, argue directly the oppposite: DW's wealth and sense of privilege make him less sensitive to democratic niceties, such as freedom of information legislation or a functioning legislative assembly. And, finally, someone tell Wagernsky that corruption in politics is as much about enriching your friends as about getting rich yourself. Wealth is, in the end, all about status, and there is no better way to enhance your status than taking care of your buddies.

WJM said...

By arguing that DW's wealth makes him immune from corruption, Wagernsky shows an almost comic lack of analytical insight or knowledge of how political power actually operates. Whether DW is personally wealthy does not, for a second, mean that he is less liable to engage in corruption than a premier with a smaller bank account.

Wangersky doesn't argue that at all. Go back and re-read his column.

Winston Smith said...

Well, here's the start of the column, in case you misread it: "There's nothing quite as discouraging as watching someone squander an opportunity. You know the feeling: watching someone have all the tools, and decide to waste the chance.

The hockey phenom who could take his skills all the way to the NHL, but who never grasps the concept that even the very, very good have to work very, very hard to be at the top of their game.

The kid who has all the skills needed to make his way through grad school, but focuses on recreational drugs instead.

The politician who has enough credibility to clean up the shop, but decides to let his minions dive face-first into the porkbarrel instead.

And that's why, to me, Danny Williams has been something of a disappointment."

Why a disappointment? The answer:

"Unlike so many former politicians in this province, he has nothing to gain or fear from his party. He is the main driving force of their popularity - leaving aside the lame presence of an opposition clearly unequipped for power - and the Tories could no more oust Williams than they could single-handedly bring back the cod fishery.

He's wildly fiscally independent, and will never need a sinecure to keep the financial wolf from the door.

In other words, he will never need to call on favours, so he should be able to break the chain of governments filling seats with friends, family and acquaintances."

What is Wagernsky arguing here, if not that the fact that DW's wealth is a principal reason why he is a veritable hockey phenom who had an amazing opportunity because he was wealthier than previous premiers?

Yes, Wagernsky then goes on to explain his "disappointment," but I reject the premise on which he bases this disappointment. Most former premiers rode a wave of popularity into office and had little to fear from their caucus or the electorate, at least in their first term.

Wagernsky's thesis is that DW is special and somehow less inherently prone to corruption than his pedecessors because he's rich, popular, and has a weak cabinet. You can believe this if you want to, but I think it's based on faulty reasoning.

The fact that DW has "nothing to gain or fear from his party" does not, in itself, mean that he is less prone to be corrupt. One could argue that the lack of an opposing power base in the PC Party actually mitigates the checks against corruption.

DW is no more of a "phenom" than Peckford or Tobin were in their prime. Wagernsky qualifies his argument by saying that DW has been merely "something of a disappointment," so perhaps he's holding out hope that the true "hockey phenom" will somehow show his inner virtue after all.

Where is the evidence that DW has somehow tried "to clean up the system," beyond blasting away at the Liberals when he was in opposition?

And, as for the conclusion to the column, in case you also misread this part, too:

"Premier Williams is powerful enough not to have to worry about that - powerful enough to say that the system ends here.

Instead, the chain of patronage stuffing goes on - and if anything, it's gotten worse.

It's an opportunity lost."

Interesting use of the passive voice, as if corruption is something that just happens and that not stopping it is a lost opportunity. If DW is so uniquely powerful, wouldn't it be more logical to conclude that he is either actively or passively engaged in patronage, especially since he's now into his second term?

Why is it that absolute power, in this instance, is supposed to act as a check against corruption? Is this another instance of NL's exceptionalism?

WJM said...

Winston, read right where you cut the quote:

In other words, he will never need to call on favours, so he should be able to break the chain of governments filling seats with friends, family and acquaintances.

Wangersky, in my reading, doesn't say that Our Dear Premier (May His Preternaturally Thick Hair Always Be Perfectly Parted) is immune from such patronage temptations. Just that, if, ex hypothesi, personal gain were the reason for such patronage, that he at least notionally should be so immune.

The premise is off-base: personal gain isn't the only reason that the chieftains engage in such behaviour.

Winston Smith said...

I don't see much difference between Wagernsky's logic and the VOCM callers who, before daring to voice anything beyond the party line, always preface their comments with an obligatory genuflection towards DW.

Wagernsky's assumption about the causal link between personal gain and corruption is not his only faulty premise. He seems to assume that DW is endowed with special, super abilities -- hence the vapid Hockey Phenom metaphor -- ergo, DW should have been able to use those amazing abilities to break with the errors of his inferior, corruption-loving predecessors.

Just because DW was a wealthy lawyer/businessman does not mean that he was on the verge of being a successful premier in 2003. It's like assuming that a wealthy plumber would be a great psychiatrist. Governing in a democracy is, in important respects, radically different from ruling a law office. And those difference may very well lie at the heart of the "disappointment" that seems to perplex Wagernsky.

It's a sign of how far down the rabbit hole we've gone that poor old Lord Acton has been turned on his head. In this dystopian world, the maxim seems to be that power corrupts but absolute power does not.

And, for the record, none of DW's less-wealthy, more poll-challenged predecessors got rich from corruption during their premiership. Moores and Tobin may be the exceptions, but their wealth came from contacts after they left office.

WJM said...

He seems to assume that DW is endowed with special, super abilities -- hence the vapid Hockey Phenom metaphor -- ergo, DW should have been able to use those amazing abilities to break with the errors of his inferior, corruption-loving predecessors.

I don't think he's assuming that at all. In fact, his column reads to me like a dig at those people who DO make that assumption.

And VOCM callers... I love the ones who preface their calls with, "I support Danny Williams as much as the next person, but..."

That is EXACTLY the same sentence construction you used to hear in Mao's China from people who would offer up even the most muted criticism of the local drainage plan or bicycle factory.

Winston Smith said...

Well, let's hope you're right, but I wish Wagernsky would lay off the mixed metaphors. He needs a chain-saw editor to chop off the indulgent, meandering metaphors that weigh down his columns.

If his goal was Ray Guy-style sarcasm, he fanned on it badly. I sure hope they're not slipping PCool-Aid into the Telly's water cooler.

As for the comparison with China under Mao, the minions-doing-evil under the Great Leader's nose, part of the folklore of Soviet Russia, is just as apt. If only DW knew what the apparatchuks were up to, right?

WJM said...

Well, let's hope you're right, but I wish Wagernsky would lay off the mixed metaphors. He needs a chain-saw editor to chop off the indulgent, meandering metaphors that weigh down his columns.

On a hilltop near Renews, on an early August night, with a cool in the air that was more than just the darking sky, but carried a hint of the fall that part of you refused to believe would ever come, there's a pond, deep and still, with brown oxide waters, nearly black but for the stars reflecting in its mirror-finish surface, surrounded by rushes and tufts of cotton grass, small thickets of Labrador tea, and a scattered carnivorous pitcher plant, making you wonder what the mosquito population would be like if it weren't for them, with not a breath of wind, the gulls' cries silent until the first faltering light, a scene that seems to read, to say, to whisper in hushed tones: this is where nature allegories come to die.

As for the comparison with China under Mao, the minions-doing-evil under the Great Leader's nose, part of the folklore of Soviet Russia, is just as apt. If only DW knew what the apparatchuks were up to, right?

HE IS WATCHING.

Winston Smith said...

Wasn't that Renews I saw in the latest "quest of the folk" tourism ad, replete with peasant art, that ran on TSN last night?

Here's a juicy conspiracy theory: Wagernsky is moon-lighting as artistic director for the au-natural, laundry-line & quilts, tourism campaign.

WJM said...

Wasn't that Renews I saw in the latest "quest of the folk" tourism ad, replete with peasant art, that ran on TSN last night?

Quite possibly. I know that there hasn't ever been an image of anything in Labrador in any NewfoundlandLabrador tourism ad, or any Newfoundland and Labrador one, for that matter.