Freedom from information: the federal case

The federal information commissioner released his report card today on the performance of federal departments under the access to information law.

Six of 10 departments sampled failed to meet the minimum standard. The commissioner identifies reasons for these failings, mostly having to do with staff and resources.

Some of the issues faced by applicants will be familiar to anyone who has tried to use the access laws in Newfoundland and Labrador to garner information held by the provincial government.

While the federal problem appears to be one of resources, what is happening locally is an entire culture that is oriented toward preventing disclosure.

Officials do not merely seek to ensure that records that ought not to be released under the law (mandatory and discretionary exemptions) are withheld.

Instead, they seek to avoid releasing any information which government does not wish to release for reasons that go well beyond the ones provided in legislation.

It started in 2003-2004 with the Premier's insistence that government would not release public opinion polls.  The law was explicit on the subject: polls could not be withheld.  He ignored the law and only finally relented under considerable public pressure.

In subsequent examples, officials have simply invented ways of frustrating applicants and preventing disclosure.  Informal means of accessing information don't exist.  They have simply been abolished. One can only access information by filing out a form and paying money up front.

Even then, there is no guarantee of getting information even if the applicant knows the information exists and asks for it specifically. The Telegram’s request for purple files are a case in point.  The department simply determined they will not provide the records and claims that there are no records they will release on the request.  There are no “responsive records”, as they put it using that notion found no where in the province’s access laws.

It's pure contrivance, pure fiction.

The intent of the officials is unmistakable, however.  They simply do not wish to comply with the law as passed by the legislature.

In some instances the excuses are laughable.  Officials provide a computer print-out of the requested information yet deny that the information is stored electronically.

Departments are able to act outside the law since they do so with the consent - implicit or explicit as the case may be - of the politicians in charge. This seems patently obvious but it bears pointing out: if the people in charge did not sanction the approach to access requests being taken, they would change it.

Take, for example, a request for information on an administrative review that was never publicly announced.  The minister responsible uses an invented excuse to deny access:  the information cannot be released because the review is not completed. One would be naive to draw any conclusion but than that the politicians have something there they do not wish the public to see.

In Ottawa the freedom from information problem requires money to fix.  In Newfoundland and Labrador, any changes to the freedom from information problem will require something much more difficult to bring about:  a change in some people’s attitudes.

When that might occur is anyone’s guess.

-srbp-

When rights are annoying #nlpoli

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.

Freedom from Information: The “secret” inland fisheries review

Former Provincial Conservative cabinet minister and retired supreme court judge Bill Marshall has been conducting a review of the province’s inland fish and wildlife enforcement program but there have been no news releases about the project. 

The only reference to the review on the government’s website is in a question last fall from opposition House leader Kelvin Parsons on December 17, 2008, the last day the House sat before Christmas:

Mr. Speaker, after receiving information from a concerned citizen, our office submitted an Access to Information Request regarding the William Marshall review of the Inland Fish and Wildlife Enforcement Program. Executive Council withheld most of the information and we were forced to appeal to the Information and Privacy Commissioner. He recommended the release of the information in accordance with the legislation, yet government is still hiding these documents. It has been eight months and this issue is still not resolved. [Emphasis added]

I ask the minister: Why is government withholding significant amounts of information related to the Marshall review?

The information on the review turned up when your humble e-scribbler started searching the Internet for any references to the subject of what initially appeared to be a  routine decision by the province’s information commissioner on Monday. 

The inland fisheries program falls under the justice department but for some reason the access to information requests was handled by the government’s central bureaucracy.

In the decision, information commissioner Ed Ring summarised the initial access to information request as follows:

Under authority of the Access to Information and Protection of Privacy Act (the “ATIPPA”) the Applicant submitted an access to information request dated 18 April 2008 to Executive Council (the “Department”), wherein he sought disclosure of records as follows:

“I am requesting under the Access to Information Act information related to [author’s name] review of the Inland Fisheries and Wildlife Enforcement Program. This request includes:

- the budgeted amount of the review.
- travel and entertainment expenses by [the author]
- all documentation related to this review.”

The identity of the applicant and of the individual conducting the review were withheld by Ring in keeping with the privacy sections of the province’s access to information law.  Both are revealed in the transcripts from the House of Assembly.

There is no indication of the scope of the review or of when it started. The Executive Council withheld large portions of the record citing several sections of the access law. The opposition office appealed the Executive Council’s decision to withhold the sections.

Executive Council also withheld information on the basis that the review was not completed.  Justice minister Tom Marshall gave that reason as his answer to the question posed in the legislature.  The applicant did not seek a copy of the final report specifically nor did its request – as quoted by the information commissioner – relate solely to the report.

Ring rendered his decision Monday, noting the excessive delay in responding to the opposition office appeal was due in large part to problems getting a response from the Executive Council official responsible for co-ordinating access to information requests.

Part of the delay was apparently due to a staffing change at Executive Council.  However, between August and October, the information commissioner’s office had little success in getting the new co-ordinator to respond to efforts to resolve the appeal informally.

In his decision, Ring accepted that some of the deletions in the documents sent to the applicant were legitimate.  Others were not.  Reference in an e-mail to the fact that cabinet had reached decision on an unspecified matter was deleted in its entirety citing the section of the act that requires information be withheld if it can revealed advice, deliberations of cabinet or policy recommendations.

In other instances, entire paragraphs were deleted from documents on the grounds they contained personal information.  Ring noted that the privacy section of the legislation  - section 30 - could have been satisfied by merely deleting the names of certain individuals or other specific information.

The most curious part of Ring’s decision comes in a discussion of something referred to as “non-responsive records.” Ring noted:

Finally, the Department has identified some records as not being responsive to the Applicant’s request. The Applicant’s request was very broad, and access was sought to “…all documentation related to this review.” It appears to me, that some of the information that was considered non-responsive and thus not provided to the Applicant could fall under this broad request, in that it might be considered to be related to the review. For example, any information that was provided to the author or discussed between government officials as a result of the review is, in my opinion, responsive to the request, and should therefore be provided to the Applicant (subject, of course, to any appropriate exceptions).

Neither the access to information law nor the government’s access to information policy manual contain a definition of  “responsive” or “non-responsive” records.

The terms come up frequently in reference to access requests but they appear to be inventions of government officials. They have no legal meaning since they are not in either the access law or the regulations.  However, they are so common-place that everyone has come to use them.

For example, a Telegram inquiry about purple files used in the Premier’s Office in preparing for media interviews yielded the official response that there were “no responsive records.” The Telegram learned of the files when a reporter received a copy of an e-mail from a government communications official asking for purple files to be prepared for the Premier. The premier himself confirmed that such files were routinely prepared for him as part of interview preparation:

"When I am provided with a personal file it's an information file to get me ready for an interview with the press," he told reporters at the news conference. "It is not the down and dirty on you or you or you or anybody else."

In the inland fish review case, it really isn’t clear how Executive Council officials could identify documents or information that related to the review and yet were “non-responsive” to a request for “all documentation.” On the face of it, it seems that officials have invented entirely new categories of documents and information that serve only to further stymie efforts to access information under provincial law.

-srbp-

Freedom From Information: Ministerial claims now on line

Just before Christmas, the provincial government released a batch of expense claims for provincial cabinet ministers in a policy supposedly aimed at fulfilling the government’s commitment to transparency.

The claims reports will be issued twice, yearly, covering six months of the calendar year. (January to June and July to December) As such, the reports don’t match the government’s own fiscal reporting year (April to March) and they only cover claims paid during the period. Any claims made in December 2008, for example, won’t be included unless they were paid before the report was issued before month-end. As such, any claims made for December won’t be revealed to the public until June 2009.

The government accounting system is much more flexible than this and would easily allow government to report on the quarterly basis already used by the federal government for its proactive disclosure. The feds also reveal any contracts let by departments on a quarterly basis and include expense claims for senior political staff. The federal reports thus provide considerably more disclosure and are considerably more transparent than the provincial ones.

Any more detailed information on the claims would require an access to information act request with all the associated fees and charges, delays and censoring. As your humble e-scribbler discovered last year, Executive Council is so vigorous in discouraging requests for information that it doesn’t even apply its own policies as posted on the government website.

Informal requests are non-existent - at least when it comes to the central hub controlling government information - and the office will only start processing a request once a form has been completed and a fee submitted. That isn’t what the policy states:

Before you make a request using the legislation, you may wish to try other, informal means to obtain the records you are seeking. Contact the public body (Access and Privacy Coordinators) which you believe has the records. Often, you can get the information you want in this informal way, without using the legislation. This route will often be faster for you and less expensive for public bodies to administer.

This new expense claim disclosure policy is a baby step in the right direction but there’s a long way to go before people who believe in government transparency and in access to information will stop referring to current provincial government policy as freedom from information rather than freedom of information.

-srbp-

Freedom from Information: the sorry Connie legacy #nlpoli

“We will amend the Access to Information legislation to enhance the transparency of government actions and decisions.”

Danny Williams, Leader of the Opposition, February 2003

There truly is a greater fraud than a promise unkept.  That would be the promise that is consciously and deliberately broken.

In February 2003, the provincial Conservatives – then in opposition – pledged to increase public access to government information.  The latest round of changes to the provincial access to information law suggests they are continuing their practice of hiding as much information they can.

Here are some examples of the sorry provincial Connie legacy of Freedom from Information:

• Ignoring the Black Letter (2005) In 2005, the Tories ignored the black letter of the access law and tried to hide public opinion polls.
• Aural is moral:  (2009)  Paul Oram didn’t have briefing notes, then he had ones with someone else’s name on them and then it didn’t matter because he quit politics.
• Oil Royalties (2009) 
• The Secret Inland Fisheries Review (2009)
• We can’t talk about the process because there is a process. (2009)
• Thousands for public speeches (2009)
• Schrodinger’s Purple Cat: (2010)  files that existed and didn’t exist at the same time.
• Tories hide spending documents from Auditor General (2012)
• Update – Williams afraid of whistleblower law
• Update – Tories hide spending documents from Auditor General
• Update – Privacy commish sues Dunderdale gov over “political” e-mails on gov comps, phones

-srbp-

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-

Tories hide spending documents from Auditor General #nlpoli

The culture of secrecy that is Danny Williams’ legacy in provincial politics is firmly institutionalised. The provincial Conservative’s war against oversight and adequate oversight of their management of the province’s finances now extends to withholding information from the province’s Auditor General.

When the province’s Auditor General went looking for the Conservative’s oft-mentioned infrastructure strategy, he found out they didn’t have one.  You’ll find that gem in the first few pages of the latest report from the Auditor General on how the provincial government spends public money.

A committee of officials was supposed to develop the strategy.  While they didn’t do that, according to the AG, the group did produce a draft “report”.  But the draft report was never finalized.

When the auditor general’s officials started contacting departments to get information on capital works spending, they ran smack into a legal roadblock. The departments refused to release the information to the Auditor General and cited the provincial Access to Information Act as justification. The documents would reveal cabinet deliberations  according to justice department lawyers, and as such they couldn’t turn them over to the Auditor general.

The access to information laws were never intended to cover officials like the Auditor General.  You can tell that because of the way the law is worded.  The purpose of the Act is to make public bodies more accountable to the public by providing the rules under which the public may obtain information held by government and its agencies.

Members of the public – known as applicants in the Act – apply as set out in Section 8. Under section 18, heads of department must refuse to disclose cabinet documents to applicants. 

But the Auditor General?  Not a person as defined by the Act or an ordinary member of the public.

As such there wouldn’t be a conflict between the access law and the Auditor General Act.

The AG’s got his own legal opinions and they pretty much wind up in the same place:  there’s no legal reason for the provincial government to hide information from the AG. Unfortunately, he and his lawyers have taken the weak premise of accepting that the access law actually governs the AG in the first place.

And all the AG has done is filed a report with the Tory-dominated House of Assembly.  That might make the upcoming session interesting and tense but it doesn’t settle the legal issues.  The AG needs to take it downtown and drag the attorney general in front of a judge.

Now this is not the first time the provincial government has misused the access laws to keep information from the public or other officials.  In fact, the current administration is notorious for its efforts to hide information from the public. Around these parts, SRBP likes to call it freedom from information.

In fact, in the seven years SRBP has been around, this sort of stuff is part for the course.

No strategy.

No documents.

No audit.

No surprise.

- srbp -

Freedom from Information: myth used as excuse by information commissioner

When the province’s information commissioner backed the Executive Council’s refusal to release information last week, his decision was based in part on a piece of popular mythology about the province’s open records laws.

Here’s the fantasy section from the report:

However, the request, as it stands, involves a considerable volume of material, and according to the estimation provided, there is no way the Department could possibly respond to the request within the legislated timelines, even allowing for the allotment of extra staff and the 30 day extension of time permitted by section 16 of the ATIPPA.

The time limit referred to there is the time limit under section 11 that says a public body has 30 days in which to respond to the request.  The myth is that this means the record(s) must be released within 30 days from the date it is received. Section 16 – also cited – allows for an extension of another 30 days.

What the information commissioner missed in that decision is section 12 which states what the response must contain.

Under the province’s access laws, the public body has 30 days to tell someone requesting information whether or not they will get the information and if some or all of it will be missing, the public body must state why. 

There can be an extension beyond 30 days for a couple of pretty obvious and understandable reasons.  Let’s say there are a huge number of records that can’t be searched or examined within 30 days.  The public body can have more than 30 days to make that preliminary search of the files.  By the same token if the records relate to a third party that might have some concern about disclosure – personal information of sensitive business information – the law allows for an extension so the third party can have a chance to review the request as it relates to that party.

At no point does the act state that the public body must also disclose all the records it will release within 30 or even 60 days.

In fact, there isn’t a time limit anywhere in the act that requires the entire request be turned over within a set period of time.

The reason is simple:  sometimes requests are complicated and they may take a load of time.  Since the goal of the legislation is to make release of information the default setting, no one wanted to create a silly set of rules no one could possibly meet.

That’s why there’s a point in the first post on this access decision that if the department had started to release information  - as it could easily have done – then the person making the request would have been a fool to complain it wasn’t done within a set period of time.  Getting a package of some documents within 60 days or even a chunk within six months is a lot better than a refusal to disclose anything and the use of invented excuses for not complying with the request and with the law.

So why does this silly statement appear in the information commissioner’s decision?  Well, it might be he didn’t get the chance to go look at what the actual legislation said. It also might be that he has worked all this time under a completely false understanding of the law.  Don’t be surprised;  it does happen and people aren’t perfect.  Besides plenty of people who ought to know better insist this 30 days thing is real. They’d be astonished to find it’s as real as Sasquatch.

One thin is certain:  the information commissioner is wrong on this point just as he was wrong about the nature of the request in the first place.

What this decision does – as bad as it is – is support a government department which did not show much sign of wanting to comply with the law and release the information in whole or in part. They hunted for excuses and ultimately, the information commissioner backed them up. It happens much more than people realise.

Since the original post, your humble e-scribbler got an e-mail from the person who made the request. We’ll bring you more detail on it in the near future.  There’s much more to the story than meets the eye.

-srbp-

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 law in the province,  anyone in Newfoundland and Labrador has been able to request information about people employed by the provincial public service.  You can get the title of a position, the name of the person currently holding the job and the amount paid to the person for doing the job.  The House of Assembly reaffirmed that right in the 2002 version of the access to information law,  the infamous Bill 29 amendments, and in the current version, drafted in 2014 by an expert panel.

Telegram reporter James McLeod sent a series of requests last winter to government departments and agencies.  He asked for a list of positions in which people on the government payroll made more than $100,000.  McLeod was trying to put together his own version of a so-called Sunshine List. Most organizations answered McLeod's request and provided him with the list.  There was no legal reason to withhold the information.

What the English school district did was fascinating.

Freedom From Information: faulty reasoning further limits accountability

In his most recent decision, information and privacy commissioner Ed Ring has struck a blow against government accountability.

He did so using faulty reasoning.

In April 2008, an unidentified individual requested the subject lines of all e-mails for seven people in the Executive Council for a two month period in early 2007 (March and April) and the subject lines of e-mails exchanged between an unidentified person and a communications director in government over a 12 month period in 2005.

The positions covered by the request were:

• Chief of Staff in the Premier’s Office
• Director of Communications in the Premier’s Office
• Principal Assistant to the Premier
• Deputy Chief of Staff in the Premier’s Office
• Director of Operations in the Premier’s Office
• Press Secretary to the Premier
• Director of Strategic Communications, Planning and Priorities (Executive Council), and the
• Premier

The information commissioner ruled the Executive Council did not have to respond to the request since the amount of time taken to process the request would represent an unreasonable interference in the operations of the Premier’s Office. He estimated the time involved would be eight months, assuming that 500 e-mails per day could be read and redacted in accordance with the open records laws.

The specific section of the access law the commissioner cited is an interesting one:

10. (1) Where the requested information is in electronic form in the custody or under the control of a public body, the head of the public body shall produce a record for the applicant where

(a) it can be produced using the normal computer hardware and software and technical expertise of the public body; and

(b) producing it would not interfere unreasonably with the operations of the public body.

As part of the review process, Ring asked the central computer support office of the provincial government to generate an estimate of the number of e-mails which might – possibly  - be involved.  He uses the number that resulted as the basis for his argument that the request constituted the unreasonable interference in regular operations.

That’s where the problems start.

The e-mail system used by government is readily searchable using a number of search parameters, including date, sender and recipient. Thus a specific set of information to deal with this requested was readily available using existing software, as required by the access act.

Inexplicably, Ring did not ask for a count of the actual number of e-mail subject headings involved in the specific request.  That is the actual subject of the decision.

He did not ask even ask for the number of e-mails involved in the specific request.  That’s a bit of a stretch anyway since the request asked for subject lines, not the actual e-mails themselves.  Still, even that number was knowable since, as Ring decided, the original request was specific enough to meet the requirements under the law.

Instead, he asked the department to justify its estimate.  He allowed the Executive Council to set up a seven day period selected by some arbitrary criteria.  The reasons for taking this approach, what week was chosen and why aren’t disclosed.  Ring then extrapolates all his subsequent numbers from that one week figure.

As Ring ought to be aware, the entire government bureaucracy searched more records for more people over a longer period in response to the Cameron Inquiry.  They did so in the same time frame or in less time than the eight months Ring estimated for this request. 

While the inquiry was different, the volume of work – which Ring uses as the entire justification for his decision – is greater for the inquiry.  This request is also considerably less complicated than the previous information co-ordinator’s decision which Ring also cites.

This request asked only for subject lines which, contrary to his assertion, would not in itself require an individual to read the entire e-mail in each case to determine what ought to be redacted.

In short, there is no technical reason why the information could not have been collected and supplied, even in general form to Ring so that he could make a specific decision about a specific request.

Turning a specific request into a theoretical abstraction seems on the face of it to be an effort designed to frustrate the release of information.

Ring discusses at some length the possibility that the request could have been and might still be addressed if the applicant amended the request to break it down into smaller bites.  There are a couple of problems with this, as well.

First, there was nothing to stop the department from beginning the process of releasing records based on the original request and doing so in the small bites suggested by both Ring and, apparently, the department’s access co-ordinator. 

Asking to amend the request or to be “more specific” is odd.  An applicant experienced with the way the provincial government handles access requests might well be suspicious that the efforts to change the request were illegitimate efforts to withhold information or to determine why the information was being requested.

Second, the department’s initial refusal to respond (or initial request for amendment to the request) was based on an overly narrow reading of the legislation.  Most requestors are seeking information, not the creation of a “gotcha” situation on an abstract technicality. 

Third, Ring had at his disposal several issues which suggests that the willingness to deal with this request may not have been as sincere as it first appears.

As Ring notes:

An Investigator from this Office initially asked for this information by e-mail dated 14 October 2008. Several follow-up communications were made to the Departmental Coordinator, asking when and if the information was forthcoming. The Coordinator could offer no response to these inquiries; she was not aware when the information would be provided to this Office or what the reason was for the delay. The requested information was finally received by this Office on 17 December 2008.

Take note of the line that the access co-ordinator could offer no response to the information commissioner’s inquiries, could not say when the information might be provided or provide any reason for the delay.

If that wasn’t bad enough, Ring had in front of him the infamous case of purple files already discussed publicly by The Telegram.  In that case, the department responded falsely to a request claiming it had “no responsive records” on “purple files”.  This was false since The Telegram had an e-mail in its possession – a responsive record under the law – that made specific reference to preparing a purple file. The newspaper filed an appeal of that response with Ring almost a year ago.

The sort of request made in this case isn’t unusual, especially in the modern day when more and more important records exist electronically.  The Department of National Defence, for example, has been dealing with them for years.  Their response is not to deny access or to try to alter the request, but to provide the information.  Here’s an example from December 2008:

All communications created from 1 January 2008 to 28 May 2008, between the Access to Information Act Coordinator and the head of the Tiger Team vetting ATIA requests, including memos, e-mails, letters, minutes of meetings.

That’s a request that’s as big or bigger than the one involved here and it got an answer.

The trend toward increased government secrecy is all around.  In the last session of the House, the government party passed amendments to the information management law.  Those purposely changed the term “public record” to “government record”, which in itself suggests that the government records are not public. There was no obvious reason for the change of words.

More to the point, however, the amendments create an environment in which more public records are captured under the definition of cabinet records than before and those records may be destroyed under the exception created for the Executive Council.  The go nicely with a nonsense section (section 6) inserted in the original access law that provides that other laws restricting access may over-ride the access law.

One cannot access records which do not exist and even the knowledge of such missing records can be withheld if one applies the correct amount of massaging to the letter of the law. That massaging just got a whole lot easier thanks to the latest decision by the information commissioner.

Of course, no one even remotely familiar with recent history will miss the point that part of the request sought records from 2005, the year the problems at Eastern Health first came to public light.  Do those e-mails still exist, aside from the ones already disclosed to Cameron Inquiry?  It’s a question that bears answering in light of government efforts to frustrate disclosure.

What of the other period, March and April 2007?  That too is a rather sensitive period in light of evidence at Cameron, if nothing else.

Whoever made this request ought to take up the appeal to the Supreme Court’s trial division, as provided under the access law. The access law is designed to facilitate the release of information. Increasingly, though, Executive Council is interpreting the law in such a way as to justify withholding information. Ring’s decision winds up justifying withholding information without good reason. That’s a bad thing for people interested in accountability and access to public records.

The issues in this case are large enough to warrant an appeal to the courts.  Maybe some people would be willing to pass the hat to help defray the legal bills. 

-srbp-

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.*

"But, apart from a hypothetical surge during the balance of the fiscal year, the statistics do not support the Commissioner’s concerns. ... To the extent that there has been a surge in request volume since the 2015 unravelling of Bill 29, that may just as easily be accounted for by the fact that, in the post-Bill-29 era, the public is simply more aware of their right to access public records, and, thanks to the elimination of application fees and the praiseworthy creation of an online filing system, more able to exercise that right."

Those comments are a good starting point, though for a couple of posts on the current state of the province's access to information law.  What you will see in this two-part series is that there are  enormous obstacles to public access to government information.  The obstacles come from the way bureaucrats apply the law.  They produce their own problems and, in one of the most serious obstacles, illegal censorship gets the seal of approval from the province's information access watchdog.

Freedom from Information: Joint federal-provincial edition

Now you know things between the two Connies are good when they co-ordinate a joint freedom from information program on a national park/provincial park combo that actually doesn’t exist yet and then carefully control the release of information about it.

Now, a curious and enterprising body might well wonder, hey, what are the boundaries of these proposed protected areas, especially given that the national park would be the largest in Canada contained wholly within a province (as opposed to a territory)? which lands are included and which are excluded? how do the proposed protected areas relate to the newly-opened highway or to lands subject to Aboriginal land rights?

Apparently, however, there aren't that many curious and enterprising bodies.

Which is a good thing, because good luck finding such information from either the official provincial or federal eBumpf.

However, if you are really keen to see the long-awaited map, it is available.

On the website of National Geographic, a private organization located in another country.

The signs are there if you want to see them.

-srbp-

Influence and Manipulation #nlpoli

Public opinion changes.

Individuals don’t hold exactly the same attitudes about things throughout their entire lives.

That’s true of how the typical man or woman feels about clothing styles, cars, movies, books, politics, or just about anything else.

Not surprisingly in a society like ours, there are people who want to try and change opinions and attitudes.  They want to persuade people to buy a product, support a political decision or stop doing something like smoking.

Also not surprisingly, we have some basic ideas about how people should do that.

Freedom from Information: thousands of bucks for the Premier’s public speeches, redacted

It’s a bit of a hairy-assed editing job but the youtube video posted by VOCM includes a curious reference by the Premier to some of the access to information requests that he finds problematic.

You’ll find it at around the 1:45 mark. 

Danny Williams bitches about a request for copies of every speech he’s given as a politician.

That’s right. 

The guy who used to think that openness and freedom of information are good things has a problem with someone wanting copies of speeches he gave in public and for which texts exist.

This is the kind of thing that politicians would normally make readily available as a matter of course via the Internet.

Take a second a look around the Internet.  Try googling “speaking notes”  Politicians actually like people to find their speeches, even when the speeches are appallingly bad. 

Why back in the time before the Internet, when your humble e-scribbler used to edit transcripts of speeches by another Premier, the Premier’s Office would photocopy and send out speeches  - wait for it - free of charge, on request.  If the Internet had existed, we’d have published the damn things on the Internet as soon as we could largely because the Internet is a free means to disseminate information. 

in those days, speeches were records of government policy.  They were important because people could actually hold government accountable as a result of things said in speeches. And that Premier understood that as uncomfortable as it might be, the public had a right to hold their elected officials to account.   Certainly, no one in his office spent time micromanaging the living hell out of the entire government access to information system.

But that was then.

This is now.

And  the people looking for stuff like speeches are not people out to get this Premier or any other politician.  Ordinary folks like to see what commitments were made.  Academics like to see what was said and trace the history of an idea.  It’s all legitimate, normal and nothing for someone  - especially a politician - to get into a paranoiac lather over. 

But just take a breath and think about where Danny Williams’ head is on freedom of information.

Not only does Danny Williams force people to file an access to information request for copies of speeches he has given – they aren’t available otherwise -  he then bitches about the fact that people are interested in what he has to say.

Now in the case of that particular request, your humble e-scribbler happens to know about it.  An e-mail turned up in ye olde Bond Papers inbox giving the background and the horrendous amount of money Danny Williams’ office was demanding for delivering the speeches in hard copy only, even though they are available electronically.

If memory serves, we are talking thousands of dollars.  The speeches had to be produced in hard copy – supposedly – because the Premier’s Office claimed the speeches that were delivered in various public fora would have to be reviewed and possibly redacted.

Redacted?

Bits cut out of a public speech?

And no, they weren’t kidding.

The whole thing has gone off to the information commissioner where it sits, alongside a few other examples of the Premier’s Office efforts to frustrate public disclosure of information that should be in the public domain.

And people wonder why Alice in Wonderland is an apt source of metaphors for politics in Newfoundland and Labrador.

-srbp-

Freedom from Information: oil royalties version

After two e-mail requests to the provincial finance department yielded nothing but delays for two weeks, a simple e-mail to the federal natural resources department produced information on the provincial oil royalties the provincial finance department had trouble releasing.

And it only took four working days.

The request on October 21 to the provincial finance department was simple enough:

What is the total offshore royalty received by the provincial government from 01 Apr 09 to 30 September 2009?

The first response (October 23) from the department spokesperson said:

The information you are requesting is provided at the end of the year in the public accounts and can be made available to you at that time.

Of course, the estimates are publicised at the end of the fiscal year but the audited financial statements  - the public accounts -  for 2009 won’t be released until February 2011. 

That seemed like an unusually long and unnecessary wait for information that should be readily available.

Oil royalties are collected each month by the federal natural resources department (NRCAN) under the terms of the 1985 Atlantic Accord.  The amounts collected are set by the provincial government through its own royalty regimes for Hibernia, Terra Nova and White Rose.  The royalties collected are turned over in their entirety to the provincial finance department monthly.

A second request (October 23) to provincial finance asked for the reason the information was being withheld.   The reply to that inquiry came on November 4, 2009 and gave a new, more curious response:

For the particular timeframe of your request, the department is still receiving the relevant information.  When the data collection is complete, the information will be made available. 

Still receiving information?  Now that’s a bit of an odd idea since the finance department should be in the process of completing a mid-year financial update for public release.  The figures on oil royalties would be sitting right there on someone’s computer, presumably since they form a very big part of the provincial government’s annual revenues. 

If nothing else, finance officials produce monthly statements of account showing revenues and expenditures both for government as a whole and for individual departments.   It would be exceedingly strange if the finance department didn’t have the figures for at least April to August. 

As it is, your humble e-scribbler went looking for the information in October.  It might have been a bit optimistic to get even the September figures.  At this point – early November - provincial officials should have September done and October should be well on the way.

But nothing at all until the whole thing was complete?  Highly unusual, to say the least.

Your humble e-scribbler turned instead to NRCAN.  An e-mail inquiry to the NRCAN manager of media relations on November 5 for the year to date oil royalty figures produced the response on November 9:  the oil royalty figures for April to August 2009.  September is in the pipeline and even October might be available within a few weeks.

It was that simple and that fast.

-srbp-

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 Conservatives.  Since you've already got big communications problems, adding screw-ups in ATIPPA to the mix is just no good at all.

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 governance.”

People who are genuinely interested in a healthy democracy and in the effective operation of our federal, provincial, and municipal governments support freedom of information. 

It’s that simple.

Freedom from Information: NL gov’t keeps lid slammed tight

The province’s score on public access to government records is boosted by the performance of municipalities across the province. But that’s not the same as the provincial government.

Its record of openness  - on the other hand  - is nowhere near as good Saturday’s news suggests. 

Of six requests for information under open records laws during a recent survey by the Canadian Newspaper Association, the Government of Newfoundland and Labrador did not fully disclose in response to any of the requests.

The provincial score is boosted by the responses by municipalities across the province, all of which applied both the spirit and the letter of the access to information law to a greater extent than did the provincial government.

Provincial government departments and agencies received six requests.  Of those half met the response that no records existed.  Another was denied in full, while another was deemed a denial of access by the researchers.  Only one request was answered with a partial disclosure.

The responses fit the pattern of apparently inaccurate or false responses found recently by the Telegram. 

In one notorious case, the Executive Council claimed it had no records on so-called “purple files” even though the Telegram had an e-mail from the Premier’s Office – a record within the Executive Council under the access to information law – and the reporter saw such a file during an interview.

The responses to the CNA survey are astonishing and in some cases laughable:

1.  Vehicles: No records/Not my department.  The request for a “list of vehicles (including make, model, and year) available for transportation of members of cabinet and senior public servants. As well, please provide a copy of your policy on the idling of vehicles.” made to the Executive Council – the central government agency that vets all access requests yielded this answer:

Newfoundland and Labrador said it didn’t have any records on such vehicles, although the executive council office suggested filing a request to another department for an idling policy.

That’s right, rather than respond to the request and provide the information, the Executive Council told the researcher to file another access request with a line department.  And that’s after the central agency that co-ordinates all government activity claimed it had no records on vehicles available for the use of cabinet ministers senior public servants.

It took 20 days to get those responses.

2.  Road paving:  A request for information on road paving work in the province got a ludicrous response.  Specifically, the researchers asked for “[a]n electronic list of highway construction contracts including fields for the contractor,
contract value, date contract awarded and description of the work, for contracts of $100,000 or more awarded during the 2007-2008 fiscal year. Please provide the data in Microsoft Excel, Access or delimited text format.”

Provincial government departments use Excel and certainly maintain records electronically, i.e. on computers.  The department’s response, therefore,  is laughable: 

The letter from the Transportation and Public Works department in Newfoundland stated that the information “does not exist in electronic form within this department,” even though the record released was a computer printout.

The government is known to maintain detailed records on road paving  - by provincial electoral district - and political staff in the Premier’s Office have a hand in determining how much money goes to what district in the highly politicized system.  Someone has the records and likely keeps them electronically rather than with quill pen.

3.  Tasers:  A request to the Royal Newfoundland Constabulary for policy on use of tasers by police did not receive any decision and was recorded as a refusal in full.

4. A request for briefing notes for the finance minister on carbon tax was denied in full.

5.  A request for  any audit conducted of physicians’ billings under the provincial medical plan earned a response of “no records.”

-srbp-

Saturday leftovers

1.  Lana Payne, head of the province’s labour federation, writes a Saturday column in the Telegram accusing Iggy and Harper of playing the politics of fear and accusing Iggy of “caving” on the federal budget.

Caving would be the head of the province’s labour federation who  joins the Premier in the latest Equalization dog and pony show without so much as batting an eyelid, let alone asking the Premier what he planned to do to public sector employees given the record huge deficit he has anyways.

Like maybe he’d stomp on collective bargaining again and re-write laws to strip unions of rights.

She apparently was nonplussed by that labour unions nonsense but gi-normously concerned about whatever it was Danny was talking about.  He was angry, that’s good enough for Lana.

And playing crass budget politics?

That would be the entire lot of them, Payne included.

2.  Pam Frampton on government unaccountability and the whole ongoing university fiasco. It’s worth the read form a number of reasons, not the least of which is proof that the current administration knows only one way to deal with the problem of being in a political hole:  keep digging.

Pam nails it in one place:

In a Dec. 12, 2006 news release announcing the appointment of Jeanette Lundrigan and others to the board of regents for a three-year term that would have ended Oct. 27 this year, Burke wrote: “It is important we have a team that has the skills, dedication and enthusiasm to lead the university in the coming years.”

Removed from post

But on Jan. 15, 2009, Lundrigan was summarily replaced by Kathleen Roul.

In announcing Roul’s appointment, Burke wrote: “I am pleased we have a team in place that has the skills, dedication and enthusiasm to lead the university in the coming years. …”

Perhaps Burke is right, that renewal is sometimes necessary.

Incidentally, further to the freedom from information story, the Telly went looking for some briefing notes on the NAFTA implications of the Abitibi expropriation.  None exist, comes back the answer from the freedom from information co-ordinator.  Minister was briefed in many ways but no documentary record exists of any of it.  The story isn’t online, unfortunately.

-srbp-

Cannabis and culture #nlpoli

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 are not enough legal cannabis stores to meet demand.  The gap in price between legal and illegal cannabis is growing.  The supply of legal cannabis is spotty and there are still complaints about the quality of what stores have on their shelves. By contrast, the illicit market is apparently thriving. 

The reason that the policy failed is that it was driven by established bureaucratic interests from law enforcement and health and addictions who opposed legalization in the first place.  That led to a policy that placed the maximum emphasis on restriction and limitation of access.

What most governments in Canada ignored is the highly developed, private sector alternative that had been delivering cannabis to retail customers across the country for decades.  The industry survived despite the most severe restrictions that Canadian law could impose.  It *was* illegal to possess cannabis, after all, under any circumstances, for most of the last 60 years or more.

Governments just don’t do “business” very well.  They aren’t organized for it and – what’s more important – the people inside the organizations don’t think about problems the same way people in business do.  In fact, they don’t think about most things the way people outside government do.