According to a major Telegram story on Monday morning, the provincial government won’t be able to release some information about Muskrat Falls because of the provincial access to information laws.
There’s only one problem: the Telegram got the whole thing wrong.
The Telegram story claims that, under the provincial access to information law as amended by Bill 29, all “cabinet records must be kept secret; the government doesn’t have any leeway to decide whether or not to make them public.”
Therefore, said the Telegram’s James McLeod, an independent audit report the provincial government intends to order for Muskrat Falls “will go to cabinet, or it will be made public. It would be illegal under Bill 29 for both to happen.”
The Access to Information and Protection of Privacy Act is a simple law. It says – right there in clause seven – that a person making a request for information held by the provincial government has a right to receive that information.
The restrictions that apply to government when responding to the request are spelled out in the ATIPPA. Government officials must take out some things. They may take out other things and everything else is fair game.
ATIPPA is the law that tells government what to do when a person asks for information government has.
But if cabinet wants to release information on its own choice, they can do it.
There’s nothing in the parts of ATIPPA that cover access to government information that “make it illegal under Bill 29” or any other part of the Act for the provincial cabinet to release information.
Cabinet can hand out an independent audit report, the papers on the FPI prosecution, anything they have on Muskrat Falls, or the recipe for Tom Marshall’s favourite cookies and sleep soundly at night that the release was legal. No one in cabinet will get a fine or go to jail.
We know that Marshall can release the information because of all the times cabinet has released information that – in the telegram’s mistaken view – would have been blocked by ATIPPA. In 2006, then Premier Danny Williams said he couldn’t give documents about the fibre-optic deal with three private companies to the Auditor General because provincial law prevented it. No laws changed but the AG got the documents, eventually, because the Premier’s claims were not true, as your humble e-scribbler said at the time. Cabinet discretion, don’t you know.
What’s more, even in dealing with an access request, cabinet ultimately has the power to use its discretion and release any information, even stuff blocked by ATIPPA in response to an individual request.
There’s nothing in the Telegram story to suggest that Premier Tom Marshall made the argument about Bill 29. A prepared statement from the Premier’s Office didn’t deal with McLeod’s mistaken premise, apparently. The statement just repeated that there will be some sort of “new protocol” on information released about Muskrat Falls. It looks like the Telegram got it wrong all on its own.
it gets worse, though.
It looks like McLeod went to opposition leader Dwight Ball who then went along with the Telegram’s mistaken interpretation. That’s unfortunate because Ball’s chief of staff was the justice minister who introduce the original ATIPPA in 2002. He’d know the difference.