04 March 2013

Censoring Public Documents… or not #nlpoli

Not only does the provincial government now censor public documents called orders in council, they can’t get their own scheme right.

Public engagement minister Keith Hutchings published a letter to the editor claiming that government had always censored orders in council.  The Telegram dutifully went back and asked for some of the same documents they’d received before with censored sections blacked out.

A front-page story in this Saturday’s edition (March 2) lays out the details.

The second time around, the government released a document in 2013 they had withheld entirely last year. The 2013 release include some censoring of sections. Some documents that had been partially censored in 2012 were completely censored the second time around.

McLeod contacted Hutchings who attributed the inconsistency to Bill 29.  The changes to the access law made last year supposedly clarified the rules around censorship of cabinet documents. According to Hutchings’ letter to the editor,  cabinet orders have always been subject to censorship.

Unfortunately for Hutchings that wouldn’t explain what has happened.  As McLeod tweeted on Friday,  Bill 29 actually made it illegal to release any orders in council in response to an access request. The new version of section 18 defines a mandatory exemption from disclosure for cabinet documents.

The section defines cabinet documents to include “an agenda, minute or other record of Cabinet recording deliberations or decisions of the Cabinet…”. Orders in Council  record decisions made by cabinet.

To drive home the point, McLeod notes an incident in which a person with a job made by cabinet appointment couldn’t get a copy of the order in council that made the appointment. The provincial government refused to give the person a copy, claiming that they were confidential documents. The real problem for the poor person was that the order in council read different in some part from the employment contract.  The order in council prevails.

No other province in Canada or the federal government apparently censors orders in council.   The federal government describes them as public documents, meaning that they are available without censorship.  The Government of Saskatchewan describes orders in council as documents that record cabinet decisions “for public use.”

Most jurisdictions in Canada make orders in council available on their respective government websites.

The 2002 version of the access to information law didn’t require the censorship of orders in council.  The original section 18 limited access to information that went into cabinet discussions but not the actual cabinet decision itself:

The 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.

The Telegram hasn’t released any of the documents.  As such, no one can tell what sorts of deletions were made, when they were made, or the section of the access law used to justify the censorship. 

The revisions to section 18 of the access law follow exactly the recommendations of the review of the provincial access law conducted by John Cummings in 2010-2011.  The definition of a cabinet record is taken almost word for word from another provincial law describing how government must manage its records.

It’s basically the same wording that the Cummings report indicates is used in the Ontario access to information law as well as Manitoba.  The Newfoundland and Labrador definition omits reference to cabinet committees. All Manitoba orders in council since 2007 are available online.  They are not censored.

Cummings noted that no jurisdiction in Canada apparently gives a blanket exemption from disclosure to all types of documents such as cabinet records.  He also suggested  - but did not formally recommend - making section 18 a discretionary exemption in order to encourage disclosure of information.