27 September 2016

No help, not my department, and missing records #nlpoli

Starting a little over a hundred years ago,  the Government of Newfoundland  publishing a list of public servants by name, showing their job title, the department they worked for,  the annual salary,and the Christian denomination to which they belonged.

Since 1981 and the passage of the first freedom of information law in the province,  anyone in Newfoundland and Labrador has been able to request information about people employed by the provincial public service.  You can get the title of a position, the name of the person currently holding the job and the amount paid to the person for doing the job.  The House of Assembly reaffirmed that right in the 2002 version of the access to information law,  the infamous Bill 29 amendments, and in the current version, drafted in 2014 by an expert panel.

Telegram reporter James McLeod sent a series of requests last winter to government departments and agencies.  He asked for a list of positions in which people on the government payroll made more than $100,000.  McLeod was trying to put together his own version of a so-called Sunshine List. Most organizations answered McLeod's request and provided him with the list.  There was no legal reason to withhold the information.

What the English school district did was fascinating.

They refused to give McLeod the information.  They held onto it so that the teachers' union could launch a court challenge in April to block the disclosure.  Three other public sector unions joined the subsequent court case.  The case remains unresolved.

The unions believe the public has no right to know what individual public servants earn.   They call it an unreasonable invasion of privacy. The union position is a fundamental challenge to the public's right to know how public money is spent. It's also directly at odds with the 2014 access review commission. They reviewed the matter in detail and found that the "contemporary values of accountability and transparency tip the balance in favour of disclosure."

What stands out most about this particular case is that the public officials facilitated a plan by the teachers' union to fight disclosure allowed under the law.  They deliberately withheld the information rather than disclose it and put the onus on the union to use legal means to block the disclosure or prevent the Telegram from publishing.  The teachers' union would have had to ask the court to issue an injunction preventing disclosure or publication. That would have forced the union to make its best argument quickly and run the risk of failing from the start.

By withholding the information,  the school district helped the teachers' union.  They also transferred the burden from the side arguing for secrecy to the side seeking access to what is supposed to be public information. No politicians intervened to order the disclosure and, other than fight it out in court, McLeod's only alternative would have been to go to court to seek an order compelling the school district to abide by the law.

Put in an ATIP

The teachers' episode is another good example of the institutional bias within the public service against public disclosure of information. That's something noted in Monday's post.  The provincial access law starts from the premise the public has a right to information except in the specific and limited conditions set out in the access law itself.   The provincial public service operates with a different view:  information is secret and can only be disclosed if allowed by the access law.

But even then,  officials use a fictitious term - "non-responsive" - to hide information they can;t find a legitimate reason to exclude.  In at least one case - in natural resources - access co-ordinators have bizarrely started to claim their illegal deletions are allowed under the access law.  The province's access commissioner has even issued guidance to access co-ordinators that justifies their use of  illegal deletions simply because there is a long-standing tradition of doing so.

The bias toward secrecy comes out in other ways, like the advice the bureaucrats give politicians.  One of their favourites is argue that they can only release information if a person submits a request under the access law. That was a standard position under the Conservatives but the new Liberal crowd routinely say the same thing:  we can only release information if you submit an access request. That's pretty odd for a bunch who got elected as being committed to openness and transparency.

It isn't true and that's why it stands out on top of the Liberal commitment  not to hide information. Cabinet ministers can decide what information to release on their own.  Even the privacy law in Newfoundland and Labrador allows for disclosure of personal information in the public interest.  The only reason new Liberal cabinet ministers would be using the old line about "submit an ATIP" is if they got it as part of their formal briefings.

Indeed, in one situation that happened with your humble e-scribbler, that was quite obviously precisely what happened.  The department denied access to the document containing the information on the basis of a complete misreading of the access law.  After a second effort to redefine the request - in order to get around the bureaucratic obstacle - I just abandoned the whole process.  It was clearly a waste of time trying to get information that the minister had wanted to get out, not that I had gone looking for in the first place.

Not my department

On July 20,  health minister John Haggie and finance minister Cathy Bennett appeared in a CBC television news report about financial problems at a well-known women's shelter in St. John's.  CBC had been following the story since 2015 and had submitted a string of access to information requests to different departments.  A simple search of the public database of completed request turned up a batch dating back to 2015.

The finance department responded to an inquiry on July 22 that had originally come in a couple of weeks earlier. It asked for any documents the department had sent out to Iris Kirby House.  There were none, the reply stated. "The Department of Finance has conducted a complete search for these records and it has been determined that no records were sent from the Department to Iris Kirby House for the time requested."

We don't know what the co-ordinator did to help the person with the request.  For example, it asked very specifically for correspondence sent *from* the department. Finance may have had a ton of records about the Kirby House issue, just not any that went straight *from* the department.  You get that sense from the next sentence in the reply.

"Please note however, that the Department of Health and Community Services and the Women's Policy Office are typically the lead departments/agencies when communicating with the Iris Kirby House. You may therefore wish to make a similar access to information request to these organizations."

Right away,  you might have guessed that it should have been fairly easy for the co-ordinator to find out which department was leading the Kirby issue.  The logical response to this request should have been to forward the request to that department.  Instead,  the finance department official responded simply that they didn't have anything but the person might try one of these other two departments.  Not my department,  the co-ordinator wrote.

The person did submit a request to the health department and to the women's policy office.  Both had records. Lots of them, in fact, which they handed over.  In the first one from the policy office, the deputy minister had sent a note to an official at the shelter about the request from Cathy Bennett.  The finance department response was polite but not very helpful.  It delayed a response to the request for information another two months and, as statistics go, generated two additional and completely unnecessary ATIP inquiries.

That gets to be important when you consider the newly-appointed access commissioner thinks there has been a big jump in the number of requests.  On the face of it, that might appear to be so.  When you dig a little deeper, though, you will find a number of requests that fall into this "not my department" pattern.
Missing records

Earlier this year, SRBP submitted an access request to the justice department for documents about a review of the province's Crown prosecution service started in June 2006.  Then justice minister Tom Marshall issued a news release about the review to be conducted by retired supreme court judge William Marshall.  A few people have gone looking for a copy of this report and another one conducted into the inland fish and wildlife enforcement section of the department.

Neither the Premier's Office nor the justice department have either report.  As it seems,  any documents related to the inland wildlife report went out the door with Danny Williams. Bill Marshall apparently has the inland fish wildlife report but won't turn over a copy of it to the provincial government. No government money changed hands for it and that may not be accidental.

The Crown prosecution report is different in largest part because it was supposed to be a response  to the Lamer Inquiry. There are some records in the justice department related to the report,  but the way the department responded to the inquiry raised more questions than it answered.

The response appears to have been the result of a computer search for electronic records.  Whatever came back in the search using certain key words made up the basis from which the department replied to the ATIP request.  The co-ordinator applied page numbers to the entire block of documents, which do not appear to have been organised according to date.

The result was that in addition to individual deletions within certain documents,  the department withheld a block of documents simply described by page numbers.  Three of the documents they released were cover letters for other documents.  Because the reply didn't indicate what was in the excluded block, there was no way of knowing if the attachments were excluded from disclosure or if they didn't exist at all.  Finding out the answer may take as few as one or as many as five specific requests;  there were five documents missing.

On top of that, some documents were rather conspicuous by their absence.  For example,  there should have been a letter from the minister to Marshall in 2006 giving him the terms of reference for his review,  reporting dates,  remuneration terms and so forth.  The letter wouldn't be completely severed so at least some of it should have come in the package.  There was no sign of it.

Records Management

Just to reinforce the hodge-podge of documents in the justice department's reply,  the co-ordinator had photocopied a document from 2012 and put one from 2006 on the other side of the sheet.  One of the things that makes paper records easy to manage is that officials usually keep them or kept them organized according to some standard patterns. The oldest document usually went on the bottom.  The newest one went on the top. Letters also had some file numbers and other notations that would help put the documents in context within a file. In some older files, you might even find a hand-written note or two containing observations or directions as to how a document or file should be handled.

One is left with the unmistakable impression that these days access responses consist chiefly of the results of a search for certain keywords in an electronic filing system.  The documents that turn up in a search could be affected by a number of things, including how they were filed in the first place. They could also be affected by access rights held by the person doing the search.  It is easy to hide things in a large system like the one the government employs.  It would be easier still to miss things never entered in the system in the first place. These days it seems government records actually leave out dozens if not hundreds of documents  - including extensive reports from people like Wade Locke and Bill Marshall - they should have contained.

The number of access requests filed this week turned up in the news release issued by the province's justice minister to mark "Right to Know" week.  "For fiscal year 2015-16, there were just over 1,400 ATIPP requests submitted, an 86 per cent increase over the previous year with 96 per cent of requests being completed on time."

You can get a lot of requests if you don't do a very good job of responding to public inquiries.  You can also complete a lot of requests if you don't have records you should have and give cursory replies about the information you do have. No one should be fooled, though, least of all justice minister Andrew Parsons about what the government's actual information policy is.  The bureaucrats are still working with the belief that ordinary citizens have the right to no information.

Parsons could change that.  Parsons should change that.