26 September 2016

Illegal deletions okay in NL: access commissioner #nlpoli

Shortly after he took office a month or so ago,  newly appointed information commissioner Donovan Molloy told CBC there had been a "substantial increase" in the number of access to information requests since 2015 when the House of Assembly passed a new access to information law.

True, said the always accurate labradore, but that was only in relation to the two years when Bill 29 seems to have reduced the number of requests. People had filed 343 access requests up to the first part of August. That would work out to about "800-and-some requests completed for the year," according to labradore, "which would be something of a surge compared to Bill 29 levels, and even, to a lesser degree, compared to pre-29 levels.*

"But, apart from a hypothetical surge during the balance of the fiscal year, the statistics do not support the Commissioner’s concerns. ... To the extent that there has been a surge in request volume since the 2015 unravelling of Bill 29, that may just as easily be accounted for by the fact that, in the post-Bill-29 era, the public is simply more aware of their right to access public records, and, thanks to the elimination of application fees and the praiseworthy creation of an online filing system, more able to exercise that right."

Those comments are a good starting point, though for a couple of posts on the current state of the province's access to information law.  What you will see in this two-part series is that there are  enormous obstacles to public access to government information.  The obstacles come from the way bureaucrats apply the law.  They produce their own problems and, in one of the most serious obstacles, illegal censorship gets the seal of approval from the province's information access watchdog.

Right to Access

In general,  government officials still do their job on the premise that all government information is secret except for the information they have to release under the access law.  The alternate view is to start from the premise that information should be disclosed except for the mandatory and discretionary exemptions in the access law.  That is essentially the one endorsed by the Wells' commission in 2014. "The Committee concludes,"  the three commissioners wrote on page 53 of their final report, "that according quasi-constitutional status to the right to access information is consistent with the status accorded to that right in all other Canadian jurisdictions, reflects the views of the Supreme Court of Canada, is consonant with the views expressed in the overwhelming majority of the submissions presented to the Committee, and parallels the stature accorded to the right in international jurisdictions generally."

Their draft of the access law reflects that view.  The purpose of the Act - section 3 of the legislation states - is "to facilitate democracy" by providing citizens with access to information "required to participate meaningfully in the democratic process."

Non-Responsive:  stifling democratic involvement

The access request co-ordinators operate under a set of practices that don;t conform to that basic value, however.  The most striking example of this is their continued use of the concept of "non-responsive" information in a government record as a way to censor information that is not covered by one of the legal reasons to delete information.

Bureaucrats developed the idea of information that fell outside the bounds of a request as they set up the access system after the landmark changes introduced by the 2002  access to information law.  That was the first change to the freedom of information law since the first one was passed in the early 1980s.  If you asked for documents about widgets, for example, there might be a mention of widgets in another document about weebles.  If there was no other reason to block out the parts of the document about weebles,  access co-ordinators would blot out the sections and say they were "not responsive" or "non-responsive to your request.

The only logical reason to do that was if the bureaucrats operated on the premise that the public had a right to access only the information they had specifically asked for.  Everything else was secret.  Go back and look at the Wells commission's comment, though.  The law is supposed to give people information to allow them to participate fully in the democratic system. The way the bureaucrats handle access to government information, you aren't supposed to participate or at least you are only supposed to participate in a way they can control.

Widgets and Weebles

Let's say that you are very concerned about government widget policy.  Unknown to you, though, there is a technical reason why government has to deal with widgets and weebles in the same policy.  The government document that turned up in response to my request for widgets gives a very good discussion of the issues involved in widgets and why you have to have a policy that covers both widgets and weebles if you want to make sure that the public widgets are safe. There is no reason to keep the weebles information from you, but the bureaucrats have cut it out because it was not what you asked for.

The Wells' commission philosophy would give you the information about widgets and weebles. If government asked for your opinion on widgets policy in one of their "public engagement" sessions,  you would be able to give them an informed response.  You had now been clued into the link between widgets and weebles. You had done some additional research and now had some better ideas.  Maybe you had even changed your mind about widgets based on the new information.

Look at it this way and you can see pretty quickly the problems with what the bureaucrats are doing.  It uses a made-up exemption to limit public access to information in a way that violates the principles on which the access law is written.  The effect of the policy is to restrict public access to information.

Two Concrete Examples 

You can find this "non-responsive" exemption all over the place in the government's record of disclosed requests.  One of the simplest ones is a request for the Premier's desk calendar for the month of April.

Not surprisingly, the calendar he uses goes week by week and not month by month.  The actual page from the diary starts on March 28.

In the response,  right,  officials blacked out the last days of March as "non-responsive" solely because the person had asked only for the month of April.

If you look at the April calendar, you can see very few legitimate deletions.  That is, they actually blacked out a relatively small number of entries using the disclosure exemptions listed in the access law.   Logically, then, we wouldn't assume there were any large number of secret events in those last few days of March.  They likely looked like April. But officials blocked out whole day's worth of stuff because the person had only asked for April.  Any incidental information - even stuff in the public domain already - got the chop.

Another good example of the "non-responsive" deletion is also a very troubling one.  Someone asked for information about a controversial sand quarry in the Straits of Belle Isle, on the Labrador side.  The request was for:
"All information and records relating to the submission, review and approval of a quarry located in the area of L'Anse Amour Labrador (Natural Resources file# 71110846 and permit id # 132484) including written correspondence, emails, line department requests for commentary and responses to those requests for commentary, as well as any briefing notes and written analysis completed on impacts of the establishment of said quarry."
The access co-ordinator deleted information on more than a dozen pages and labelled them as "non-responsive" in a request for all records.  The co-ordinator also deleted curse words in this document even though there is no legitimate reason to do so. Other co-ordinators have done the same thing. The name of an individual is deleted even though the information is contained in a summary of a radio interview in which the person was mentioned, by name, in public.  The access officials also held back some documents in the version posted online on the grounds that there may be a copyright issue associated with them.  Again, there's no legal basis to do that and the practice is highly suspicious anyway given that the access officers will send you the redacted pages if you ask for them.

A second, similar request for documents includes the "non-responsive" deletions. The access co-ordinator even went so far as to invent an excuse for the "non-responsive" deletion, referring to section 8(2) of the access law.  That's the section that permits deletion of information that is exemption from disclosure under the law.  it doesn't access co-ordinators to make up deletions and then use this section as an excuse.

Information commissioner approves illegal deletions

The illegal deletions using the term "non-responsive" is actually endorsed by the information commissioner's office.  In a "best practices" guidance issued May 11, 2016,  the commissioner notes that while there is no permission in the access law for this response, some other jurisdictions allow and it has been a common practice in Newfoundland and Labrador.

On that basis, the commissioner advised access co-ordinators they can continue to use the illegal deletion.  They should do so "sparingly and only where necessary and appropriate."  Access co-ordinators should use the illegal deletion, the commissioner advises, while giving the law a "liberal and purposive" interpretation.

That's a rather curious bit of legal gobbley-gook to justify continued illegal censorship.  After all, that the current access law comes complete with an extensive report written by three experts - one of them a former chief justice of the court of appeal - that explains the whole matter in plain English. There's no need for a generous interpretation given that the public has a right to information, except as allowed by the access law and - as the commissioner's guidance notes - there is no allowance in the access law for a "non-responsive" deletion.

"Coordinators are still free to use their discretion when it comes to the redaction of 'nonresponsive' information in a record..." the commissioner's advice says.


Tuesday:  "No help, not my department,  and missing records"