29 June 2005

Poll dancer - update

Update: a faithful reader sent me a quick e-mail to point out that Tom Rideout is actually a graduate of Ottawa U law school not the Halifax legal temple. I double checked Tom's online biography and yep, I goofed. Then I noticed Tom used to work in Fisheries and Oceans in the international directorate. Anyway, I corrected the law school mistake.

That just makes what I will post tomorrow all the more interesting.

For those with a passionate interest in access to government information, there is a curious story on the front page of today's Telegram. It's also online here.

For those who may not be able to access it, here's the complete text courtesy of The Telegram and reporter Rob Antle.

As someone who has dealt with access to information issues from boths sides in the course of my 16 year career, I have a few thoughts and observations on this story. I'll save them for tomorrow morning's post, along with some links to the legislation itself and the recent rulings by privacy commissioner and former finance deputy minister Phil Wall.

Transportation Minister Tom Rideout is quoted in the story that follows. he is currently acting justice minister. In a previous life, he was premier of the province, even if it was only 43 days in the spring of 1989. After leaving politics, Mr. Rideout went off to Ottawa U law school and was a practicing lawyer before he went back to politics again.

The only other thing I'll say here, before letting you get to the full story by Rob Antle, is that I'd be dumbfounded if The Telegram didn't take this one to the Supreme Court.

Wednesday, June 29, 2005
Page A1 (above the fold)

Polling data stays secret
by Rob Antle, The Telegram

Opinion polls are secret cabinet documents not to be released to the public, the Williams administration has decreed.

The decision overrules the findings of a report issued Tuesday by the province's information commissioner.

"We disagree with the interpretation that's been put on this by the information and privacy commissioner," said Tom Rideout, who is acting justice minister while Tom Marshall is out of the province.

"We don't feel that his interpretation is within the confines of the spirit and intent of the legislation. Š Based on that belief, we will not be releasing the information."

The province says releasing public-opinion polling commissioned over a 14-month period would reveal cabinet confidences.

Information Commissioner Phil Wall ruled Tuesday that the government should release the documents under new open-records laws, with some small exceptions.

"Quite simply, Section 18 of the ATIPPA cannot be treated as a 'blanket' exception to disclosure," Wall wrote, referring to the part of the act dealing with cabinet confidences.

"It specifically states that only those items which would reveal the substance of deliberations of cabinet can be severed from the record, and it gives examples of what such items might be, such as advice and recommendations."

Rideout said Wall is wrong.

"There are still certain protections for the system, and one of the protections has to do with the confidentiality of cabinet documents," he said.

"That's one of the underpinnings of our whole system, and we're certainly not prepared, at this stage of the game, based on what we think is an error in interpretation by the privacy commissioner, to undermine that process."

The commissioner has the ability to make recommendations to the government, but cannot force the province to act upon them.

In making his ruling, Wall cited case law and precedents in Ontario, Nova Scotia, British Columbia, Manitoba and Saskatchewan.

"We feel that case law is fairly clear in its conclusions," Sandy Hounsell, executive director of the Office of the Information and Privacy Commissioner, told The Telegram Tuesday.

Government officials now have 15 days to respond to Wall's report.

The only recourse after that is Newfoundland Supreme Court.

The information commissioner can decide to take the matter to court. The applicant - in this case, The Telegram - can also decide to do so.

"We will wait until we get formal representation from Executive Council on their position, and then make a decision as to what we will do with this particular report," Hounsell said.

That decision will likely be made within days of receiving the final response from the government, he said.

On Jan 18, a Telegram reporter requested a list of public-opinion polls done by, or on behalf of, Executive Council between November 2003 and January 2005.

Executive Council is the wing of the public service which oversees government policy and decision-making.

A month later, the province supplied a list of 12 polls, broken down by pollster and date.

However, the government refused to disclose the subject of the polls, or their content.

On March 10, the province decided to provide two of the polls in question.

Several weeks ago, after fighting for nearly five months, the province released two other polls. Both dealt specifically with the Atlantic Accord.

Wall had recommended the release of that information.

But the other eight polls must remain secret, the province maintains.

Comfortable with stand

Rideout said Tuesday the government is "very comfortable" with that position, even though Premier Danny Williams campaigned on a policy of openness and transparency in 2003.

"My government will provide real financial management, real transparency, and real accountability," Williams said in the Conservative pre-election "blueprint" of promises.

"Ours will be a new approach, and one which will benefit every Newfoundlander and Labradorian in a positive and powerful way."

The Tory campaign document said that "a comprehensive and effective freedom of information act is the best safeguard against the tendency of governments to descend into official secrecy and elitism."

In December 2004, the Williams administration tabled its "accountability and transparency agenda," updating laws governing lobbying, government purchasing and the tendering process.

"In our blueprint, we committed to set the bar on transparency and accountability much higher, so that government is truly open and transparent in decision-making and accountable to the people of Newfoundland and Labrador," Williams said in a statement issued Dec. 2.

In January 2005, the Williams administration finally enacted new open-records laws - laws which had languished on the books since 2002, and the days of the previous Grimes administration.

The premier's office steered inquiries about Tuesday's decision to Rideout.