06 April 2016

A mess in the government access and privacy world #nlpoli

Two recent stories about the province's access to government information and privacy laws.

Both of them are essentially nonsense.

Short version for the new administration:  cock-ups in comms and access to government information helped destroy the Conservatives.  Since you've already got big communications problems, adding screw-ups in ATIPPA to the mix is just no good at all.
On Monday, information and privacy commissioner Ed Ring issued a statement about access to information requests over the past few months that have featured the release of names and salary details for public servants.

Right off the bat this is a bit wonky.  There's no context for it.  If Ring had any appeals of disclosures already made, he would be issuing decisions on them.  If he'd had media inquiries, Ring could have indicated that in the statement.

Instead, Ring just starts by saying that he "wishes to issue the following commentary."  After reciting a bit of recent history, the "commentary" says that it "is the interpretation of this Office that this means that names of public body employees and their salaries are to be disclosed to an access to information applicant upon request."

Local media have presented this as some kind of decision by Ring's office.  Nothing could be further from the truth.

Ring correctly recounts the bits of the Wells commission review of the province's access law.

He didn't have to do that, though, or go through some background that leads to the point where it looks like Ring has done any work here in coming to a conclusion.

You see, the new access to information law has a very specific clause that says it in plain enough English:
40.  ...  (2)  A disclosure of personal information is not an unreasonable invasion of a third party's personal privacy where... (f) the information is about a third party's position, functions or remuneration as an officer, employee or member of a public body or as a member of a minister's staff...
That's the part of the law that allows the disclosure of names and salaries for each position.
Ring didn't need to go into any discussion about the Wells commission, though.  You see the original Access to Information and Protection of Personal Privacy Act, passed in 2002 when the current attorney general's father had the same job,  had almost exactly the same wording:
30. (1) The head of a public body shall refuse to disclose personal information to an applicant.   
(2) Subsection (1) does not apply where …  (f) the information is about a third party's position, functions or remuneration as an officer, employee or member of a public body or as a member of a minister's staff;

It gets better.

Go back to 1981 and the very first freedom of information law. Section 10 protects personal information held by government in the first subparagraph.  Then you get this:

(2) Subsection (1) does not apply in respect of the following classes of information: ...
(a) information in respect of an individual who is or was an officer or employee of a department that relates to the position or functions of the individual...
There ya go.

This sort of information has been accessible for 35 years.  The current access law, passed by the House of Assembly during Brian Peckford's first administration gave access to public sector salary information and job descriptions.  The complete overhaul of the access and privacy law during Roger Grimes' administration kept precisely the same access and now the current law, drafted by former chief justice Clyde Wells and his fellow commissioners preserved the same access.

Not only did Ring issue a comment without any apparent reason, but he also got the background to the question wrong.

Totally bizarre.

While we are in the land of bizarre, let's tackle the other nutty access story, this time the claim from NAPE that it went looking for three contracts about services from private sector companies to Eastern Health.  CBC reported that "Eastern Health released a statement late Wednesday afternoon, saying it cannot release 'third party' information without their consent. The statement said Eastern Health has made a recommendation to the OIPC on the matter, but did not disclose that recommendation."

Here's one Ring should have knocked out of the park after he'd knocked a few heads together.

All Ring had to do was read the very next line down in the access law from the one he didn't quote in the nonsense story about salaries.
A disclosure of personal information is not an unreasonable invasion of a third party's personal privacy where ...  (g)  the disclosure reveals financial and other details of a contract to supply goods or services to a public body...
The definition of "person" in the Act includes not only natural persons but also corporations.  In other words, folks,  while section 39 covers the disclosure of business interests of a third party,  section 40 makes it clear that it is not unreasonable to disclose personal information when the information is about a contract to provide service to a public body.

Screw getting the third party's consent.

The contract details are public.

If the companies don't like it, they can walk the whole mess down town and see what a judge says.

Eastern Health needs new senior executives and apparently needs a major shakeup in its ATIPPA office to boot.

They also need new lawyers, ones who can read plain English.

There's no reason for anyone to pack around with this any more than there was a reason for the "commentary" on disclosure that was just plain old wrong.