18 February 2009

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.