22 February 2016

Cabinet documents and no brainers #nlpoli

Years ago,  a couple of enterprising reporters at CBC submitted what was then a request under the Freedom of Information Act for information about entertainment expense allowances for senior bureaucrats and cabinet ministers.

They got the information and aired a story that claimed that, in a time of great restraint,  the government had increased the budget for entertainment. It was a wonderful story that made the government look bad and that raised all sorts of self-righteous indignation about fat-cat politicians and bureaucrats living it up while the poor folks suffered.

Wonderful story.

Just not true.

What they actually had was an administrative direction that folks could spend up to a new amount of their entertainment allowance without seeking prior approval for the spending.  The problem was that costs had risen to the point where people could find themselves over the old limit for pre-approval without even realising it or expecting it. Raising the administrative limit didn’t increase the amount spent. It actually cut down on lots of needless paperwork and potential disciplinary action for people who hadn’t done anything wrong.

In the current flap over the secrecy of cabinet documents,  the Telegram has climbed up on a very high horse to condemn the government   Hypocritical Liberals,  last week’s editorial clucked with the suitably childish title “No peeking.”

The problem for the Telegram is that their story is based on the same fundamental mistake those reporters made all those years ago in another tough financial time.

James McLeod’s story on Thursday about the secrecy of budget documents is based entirely on an administrative instruction to government officials.  He got the instruction as part of a release of documents under the province’s access to information law.  You can read the whole thing for yourself since it is available on the government’s website.  Ironically, McLeod’s name is blacked out, as required by law,  but there’s no question this is the package of stuff on which he based his piece.

As far as we know, neither the Telegram nor anyone else has actually submitted an access request for the submissions from departments as part of the renewal initiative. McLeod went looking for the direction sent to departments, not the results that came back. What the Telegram and others are up in arms about is actually nothing more than a routine administrative direction to treat what are obviously cabinet documents as cabinet documents.

But here’s the thing:  the real test of the current administration’s commitment to transparency will come when someone does submit such a request for those departmental submissions.  Under the law drafted in response to the Bill 29 debacle,  access to cabinet documents is much wider than it was under the Conservative administration’s Bill 29.  There’s a specific section (section 27 sub d)  that actually limits the exemption for cabinet documents so that it excludes factual information.

Much of what will be coming from the departments will contain factual information. The folks at the Telegram should know that because the documents McLeod has describe the template that departments must use when making submissions.  Lots of things are factual.  They would be candidates for disclosure under the current law.

And just to be clear, there is nothing at all in the documents released to McLeod that these documents will never, ever be made public.  Cabinet has the discretion to release information on its own, outside of the access law.  People heard the lie so often from the Conservatives that the access law limited all disclosure that they likely believe it.  Well, it wasn’t true before and it certainly isn’t true now.  The thing is that cabinet may decide to disclose some of these recommendations in the future, once they have received them and considered them.

Incidentally, that’s the same sub-section that would apply in the case of the external review of Marble Mountain the Tories went looking for.  The report could be disclosed, with redactions, under section 27 subsection d.  If ever there was another story made up out of whole cloth and some clumsy handling by politicians and bureaucrats alike, the saga of a Marble Mountain report is it.

But that’s another story.

Telly-torial Peek-a-boo

Anyone familiar with the access law and with the ongoing controversy will recognise just exactly how lame the Telegram peek-a-boo editorial actually is.  It played peek-a-boo with the truth

Instead of discussing the substance of the issue, the Telegram editorial writers quoted Liberal members of the opposition about a different subject – Bill 29 and its regime of secrecy that was very much out of the ordinary – to condemn an administration that has done nothing out of the ordinary whatsoever. That is the best the Telly editors have.

They clearly have nothing at all.

The Telly crowd are not  stunned, though. One of the very good reasons the Telegram editorial board avoided a truthful discussion of the budget documents is that the Wells commission devoted an entire chapter of its final report to this very important subject. read it and you will see just how far out to lunch the Telegram and the other critics of the government on the budget documents actually are.

The commission established the historical background to the requirement for cabinet discussions and documents to be kept confidential. They reviewed the current law across Canada and  even compared the law in Canada to that in other places.

They concluded that on the matter of cabinet documents, it
may be a small list but certain types of records are so clearly Cabinet confidential that it is unnecessary to have endless arguments as to whether disclosure could reveal the substance of Cabinet deliberations or as to whether the public interest would be harmed by their disclosure. Subject to one proviso, listing such documents and exempting them from disclosure would save time and money, and contribute to a more efficient and user-friendly access regime. [bold added]
“Protecting genuine Cabinet confidences from disclosure is essential to the successful functioning of the government in the public interest,” Commissioner Clyde Wells and his fellow commissioners wrote. “ The standard should accord absolute exemption to a confined list of records that are unarguably Cabinet confidences, and subject all other records in respect of which Cabinet confidence is claimed to a substance of deliberations test.”

It is hard to imagine anything that qualified as a genuine cabinet confidence more than the advice to cabinet from departments about the budget, in advance of cabinet discussing the budget.

The folks at the Telegram have to sell papers and it is easier to sell papers with a controversy, even if you have to make a tiny little thing into something it isn’t.  The sad part about the whole exercise is that the Telegram story gives rise to the sort of questions Open Line host Paddy Daly put to the Premier on Friday morning,  the comments from the Conservatives, and New Democrats.  One tiny fragment gets turned into a sensational story and turns rapidly into a controversy based on misunderstandings and misrepresentations and, in the case of the Conservatives, just the most naked hypocrisy imaginable.

A bigger story, ignored

The bigger loss to the public is that the bigger story disappears.  The substantive story in the documents McLeod has is much harder to write than the “secrecy” or “hypocrisy” fiction. 

The information McLeod received shows the depth and the breadth of the renewal initiative.  This is no small undertaking.  Cabinet launched the government-wide review of what they spend and how they spend it, n pretty much every detail. There’s a secretariat to co-ordinate responses and to make recommendations to the cabinet’s planning and priorities committee.

The responses that will come from each of the departments  are supposed to give priority to items that will increase revenue or decrease spending for the current budget year in the first instance.  Ideas for things that come along later are due in the form of an abstract no later than the end of February.

The direction sent to the departments also includes the prospect of changes to the way government operates that will cut across several departments.  That raises the potential for dramatic changes to government organization.  those sorts of ideas will get special handling because – d’uh – they are pretty significant, on the face of it.

On the face of it, the Telegram ignored the enormous drama of the government review itself and went with what amounts to bullshit.  After all,  on the face of it,  everything produced for the review is a cabinet document and cabinet documents are, by definition exempt from disclosure under access laws.  You don’t have to read too far into the access law section on cabinet documents -  like maybe the very first clause - to see precisely the definition of what a cabinet document is. 

No brainer.

It’s also pretty much a no brainer that the popular commentary is focused on the absolutely superficial, almost childish demand that the government should release all of these documents to the public before cabinet has had a chance to make a decision. That’s the way public commentary in the province often goes on political issues, sadly and, just as sadly, that sort of nonsense made it easy for a government intent on hiding the truth from doing so with virtual impunity for a very long time.