There’s something about this frivolous and vexatious thing that caught people’s attention right from the start.
Under the provincial Conservatives’ new secrecy laws, a cabinet minister can refuse to disclose information if he or she thinks the request is “frivolous or vexatious”. (sec. 43.1)
Leave aside the idea that a politician gets to decide on who gets information and who doesn’t. As we learned from the Cameron Inquiry, Danny Williams and his political staff vetted access to information requests and blocked stuff they didn’t want to hand over or blocked people they didn’t want to give stuff to. The law didn’t matter. They refused. They stonewalled. They used every other trick in the book.
But that’s a whole other issue.
Let’s just look at this curious choice of words and see what they reveal.
It’s a curious choice of words because you usually see it in legal cases involving two people who are at odds with one another. During the dispute, one sues the other in order to do nothing but vex them, to cause them grief.
You can find the terms in other provincial access to information laws. The new Conservative secrecy law uses almost the same words as a similar law in Manitoba. You’ll also find the same ideas in the United Kingdom.
The thing is, one seldom sees any discussion of the idea that exercising a right can be enough to vex – to annoy, to pester, to bother – the staff of a public body. Access to government information is a right. Section 7 of the Access to Information and Protection of Privacy Act uses just that word: right.
By the same token, it is hard to think of the mindset in which exercising a right could be declared frivolous. Think of the rights you enjoy in a truly free and democratic society. You don’t need to go very far to find a list of them. They are in the Charter of Rights and Freedoms:
- freedom of conscience and religion,
- freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication,
- freedom of peaceful assembly, and
- freedom of association.
Well, the right to information may not be legally the same as the ones in the Charter but by using that word, the House of Assembly must have had something very important in mind. They don’t pass laws establishing rights unless they mean business.
But that is what they did: one of the most important features of the 2002 ATIPPA was that it recognised that the people of Newfoundland and Labrador had a right to know what their government was doing.
In fact, if you read s.7, it basically says that you have a right to the information provided you pay the fees set to recover costs, and provided the information wasn’t part of the limited set of exemptions for things like cabinet discussions or private personal or business information.
The whole Act is set up with the premise that if you want information, you should get it. For example, in order to make a request, all you had to do was ask the agency or the person you thought had it. No forms. No pleas. Just ask for the information. In fact, in the first versions of the internal policy manual, that was basically the advice government gave to people: if you want information just ask for it.
You can see the same idea in the section that limits disclosure of cabinet information. Section 18 says that “the head of a public body shall refuse to disclose to an applicant information that would reveal the substance of deliberations of Cabinet,….”
In the debate on the Bill in late 2001, Kelvin Parsons, the justice minister at the time noted that the bill placed limits on the exemption for cabinet information. Opposition leader Danny Williams skimmed over it in his comments, saying only that he questioned “the time period, how long, but there are certain confidences of Cabinet that cannot be disclosed to the public.”
New Democrat leader Jack Harris advocated generous access to cabinet information. He cited a recommendation of the committee that government formed to develop the new access to information law.
Recommendation 11 said:
That factual information, background material and documentation that does not disclose the substance of Cabinet deliberations be made available to the public once the relevant decision has been implemented, or five years from the date of submission if no decision has been made public by that time."
The original version of s. 18 didn’t go that far but it did set some clear limits on the intention of what a government could keep secret.
What is so striking about the Conservatives’ version is that it clearly rejects the notion that people have a right to information.
Justice minister Felix Collins said as much in his opening remarks on Bill 29:
…it is nice to be able to give public information and it would probably be very politically advantageous to do that. Mr. Speaker, in the interest of good stewardship and in the interest of good governance, that is not always possible; some information has to be protected.
The information is so important that the government must protect it. Collins does not say who is threatening the information such that he must become its guardian. But there is no question that Collins put the notion of secrecy in a paternalistic fashion:
We had to balance …the need for people to access information and have access to public records; we need to balance that with, also, the best interests of the public.
Politicians must protect people from information. Access to information is one thing. Not a right. Just the thing it would be nice to do.
But that must be balanced off with something else, something which Collins states quite emphatically is “the best interests of the public.” That would be denying access to information to the people who used to have a right to know things.
When you read the words and look at how Collins looks at the world it doesn’t take long for it all to strike you as very peculiar. What government does with billions of public dollars is so important that the people whose money cabinet spends must be spared rom the burden of the knowledge.
That is in the public interest, supposedly.
When it comes to information government has about each of us individually, the new law will make it easier to get that information. Note the example Collins used:
It will allow, for example, a school board to disclose to an MHA a student's achievement so that it can be recognized by the MHA at a public ceremony. This was not possible before under current legislation.
That achievement, incidentally, includes participation in a “sporting event, cultural program or club, or field trip,…”.
A politician can contact the school or schools in his district and ask for a list of students participating in a field trip. The Act doesn’t limit what the politician can do with the information, although Collins’ comments suggest it does. The only mention of this issue in the most recent review by John Cummings is in a submission by the Nova Central School district and the provincial education department. Cummings doesn’t discuss it otherwise.
This is a rather curious notion. Increasing a politician’s access to information about a constituent that the politician can use to his own political benefit is good, according to the justice minister.
But a citizen shouldn’t be able to find out about what the same department is doing. That would not be in the public interest. The citizen might ask questions about why the department did one thing and not another. Such a question would come from an “unscrupulous” person, as natural resources minister Jerome Kennedy put it in the legislature on Thursday.
Information is no longer a right. Someone who seeks information might use the information ask questions. Such a person is “unscrupulous.” A cabinet minister would be right, then to treat a request from such a person as something that is intended to annoy or to cause grief.
Such a person would be - logically – an adversary of the cabinet minister, the minister who, according to Collins’ construction is responsible for protecting information. To do so, to keep information safe, is in the public interest, as Collins framed it.
How curious a set of ideas, indeed.
Access to information turns from being a right to being something that is wrong. The conversion hinges on who has information and who does not. When a politician has it, then everything is fine. They can even get an individual’s personal information and use it to the benefit of the politician.
But if the individual has information, well, that is another matter.
Such an attitude is the essence of patronage. It is the essence of paternalism.
And it is the antithesis of democracy.