15 September 2011

Privacy commish sues Dunderdale gov over “political” e-mails on gov comps, phones #nlpoli

The province’s access to information and privacy commissioner is taking the Dunderdale administration to court for its refusal to provide the commissioner with copies of e-mails on government computers and cellular telephones that government officials describe as “political in nature”.

Atlantic Business Magazine’s Rob Antle broke the story Wednesday afternoon on his blog at the magazine’s website.

At the heart of the suit are e-mails [that cover a period that would includes] related to accusations by erstwhile Tory leadership candidate Brad Cabana that a political staffer for then business minister Ross Wiseman attempted to bully him into quitting the leadership race. [There may be other political or party records involved as well.]

As CBC reported in January:

Cabana said the meeting with [Wiseman’s executive assistant Chick] Cholock happened in his [Cabana’s] home in Hickman's Harbour on Jan. 5 and his wife witnessed the exchange.

"They would marginalize me as a person. They would make me look like a quirk candidate and a glory seeker rather than someone who was really interested in the leadership and the people of Newfoundland and Labrador," he said.

An unidentified individual requested access to e-mails sent and received on government equipment by Cholock and Wiseman over three specific days in January.  As Antle reported for ABM:

The Department of Business provided the requester with about five pages of records. But the department advised that other responsive records were “political in nature” and exempt from disclosure.

The privacy and access commissioner’s office contacted the department to investigate an appeal of the department’s decision.  Under the province’s access laws, the commissioner has the legal right to review documents to determine if the department’s decision was correct.

The department refused the first request and ignored the second.

The commissioner then applied to the Supreme Court’s Trials Division for a review.

According to Antle, the provincial department appears to be relying on an earlier decision – currently under appeal – that barred the commissioner from reviewing many types of documents even if he did not subsequently recommend their disclosure.

In this case, according to Antle, the government is relying on a wide interpretation of a prohibition in the Access to Information and Protection of Personal Privacy Act that prohibits disclosure of constituency and political records.

That would be section 5(1):

This Act applies to all records in the custody of or under the control of a public body but does not apply to…

(c) a personal or constituency record of a member of the House of Assembly, that is in the possession or control of the member;

(c.1) records of a registered political party or caucus as defined in the House of Assembly Accountability, Integrity and Administration Act;

(d) a personal or constituency record of a minister;

According to Antle the department described the records as “political”.  There’s no indication of whether or not the department cited a specific section of the Act, as required by law,  when refusing to disclose certain records. 

In the past departments have used a fictitious category called ‘non-responsive” to cover information they did not wish to disclose but  which they had no legal basis to withhold. 

- srbp -

Updates:  There are changes to this post to correct wrong information and some mistaken extrapolations of what Rob Antle wrote.  Any errors and incorrect extrapolations are mine and mine alone.

Para 3: The initial request was a blanket one that covered a period of time.  Some of the e-mails that are withheld and labelled political are likely related to the cabana affair however until someone reviews them, there is no way anyone knows specifically what they contain.

Para 10 (currently under appeal) deleted.  Two decisions.  One under appeal, the other not.  Your humble e-scribbler confused the decisions.

Sections of the Act being cited by government are c and c.1 and not c and d.