The provincial government's Access to Information act is a pretty simple document.
It establishes the right of the public to obtain a wide range of information in government's possession, with only few exceptions. In fact, clause 3.(1)(c) states simply that one purpose of the act is to make public bodies more accountable by "specifying limited exceptions to the right of access".
Section III establishes those limited exceptions. Clause 18 provides that "[t]he head of a public body shall refuse to disclose to an applicant information that would reveal the substance of deliberations of Cabinet, including advice, recommendations, policy considerations or draft legislation or regulations submitted or prepared for submission to the Cabinet."
That section is the section Premier Danny Williams and his acting justice minister Tom Rideout are pointing to when they claim that releasing certain public opinions polls would "preserve that underpinning of British parliamentary democracy, that cabinet discussions are secret." The complete text of the original Telegram story on the poll controversy can be found here.
This claim is merely an attempt to argue an absurdity. No one is seeking any records of cabinet deliberations,advice given to cabinet by officials or outside consultants or anything else which would reveal cabinet deliberations. The small cloak of invisibility granted by the legislature to those extremely sensitive deliberations remains intact. What has been sought by the Telegram is nothing more than data - a set of questions put to several hundred residents of the province and their anonymous responses.
A few sentences later in the legislation, however, the intention of the House of Assembly is clear when it comes to releasing public opinion polls. Clause 20.(1) states that "[t]he head of a public body may refuse to disclose to an applicant information that would reveal...(a) advice or recommendations developed by or for a public body or a minister; or (b) draft legislation or regulations."
Clause 20.(2)(b) is unequivocal: "The head of a public body shall not refuse to disclose under subsection (1)...(b) a public opinion poll."
In making his case for withholding something clearly intended to be released, the Premier claims that it is not the content of the polls; after all, anyone can conduct the same public opinion polls. Rather, argues the Premier, it is the precedent.
At this point, the Premier's contention reduces his own argument to the point of absurdity.
The Williams administration has already released a series of public opinion polls conducted by Corporate Research Associates. If the administration was concerned about precedent, then it would have stood its ground when the first request to release the first poll was received. In each case, the only thing released were the questions and the tally of answers. They made the same argument about cabinet confidentiality then, as in the latest case and in each case, access commissioner Phil Wall dismissed the feeble government objections. Here is decision 002 for 2005. Here's the most recent decision; note the similarity both in the vague arguments presented by government and the detailed and sophisticated reasoning of the access commissioner.
In another set of two polls conducted in January 2005, information commissioner Phil Wall recommended that the polls be released but that advice from the consultant be deleted. His recommendation is consistent with the spirit and intent of the access legislation and, curiously government complied.
The polls they are now withholding were conducted by a single firm - Ryan Research and Communications - over the period between December 2003 and August 2004. Three separate polls were conducted in April 2004, during the height of the budget controversy last year and two of those polls were sent to government within a working week of each other.
Why have these polls suddenly become matters of high state secrecy?
The simple answer is that they are actually not polls that would reveal cabinet deliberations. Ryan Research is the Premier's personal favourite opinion firm. The polls in question were likely requested by his office and may well contain questions which reveal exactly the extent to which this Premier is keen to know exactly how the winds of opinion are blowing when he makes a decision.
There is no coincidence that his January polling, for example, showed that tearing down the Canadian flag was extremely unpopular with Canadians across the country and especially those at home. Fully 60% of those polled opposed the flag fiasco, selecting the strongest opposition choice in the questionnaire. When you couple that with the fact that the same disproportionately surveyed Atlantic Canadians it is no surprise how quickly the Premier put the flags back less than a day after the poll was concluded.
All of that is actually irrelevant.
The provincial government should release the Ryan research polls without delay.
The black letter of the access legislation requires it to do so, obviously without any recommendations or analysis as conducted by the consultant.
The provincial government has already released a series of polls conducted for Executive Council, as were the Ryan polls, without making much fuss of the matter.
As the Premier has argued, the polls themselves contain nothing which could not be released. In effect, he argues against himself, making absurd both his own position and the arguments he presents to back it up.
More importantly, the government's refusal to release these polls makes absurd the entire concept of access to information. No one - not a private citizen, not a newspaper reporter - should have to go to court to seek what government is obliged to release by the black letter of the law and by its own precedent.