16 November 2016

The Sunshine List Case hits the court #nlpoli

The public sector unions' attack on freedom of information is finally in front of a judge.  The unions want to  block disclosure of the names of public servants in response to a request from the Telegram's James McLeod for a list of public service positions in which the person holding the job makes more than $100,000 a year.

McLeod is compiling the list because both the former administration and the current one have committed to publishing one but haven't done so yet.  Several other provinces publish similar lists of public employees who make more than $100,000 a year.

The union's says it's okay to disclose the position title and income but McLeod shouldn't  have the name of the person holding the job.  It's a insane argument since there is no practical way to withhold either of the three elements of the request - name, position, salary - such that a person couldn't make up the list after a couple of requests. It's an insane argument from because the unions don't oppose disclosure of the name and position separately from the salary.  Well, at least they haven't objected so far.

But the position taken by the unions doesn't make sense for a bunch of other reasons.

A little over a century ago, the Newfoundland government released a directory each year that listed the name of every public servant along with his or her salary, position and religious affiliation.  The purpose was to show that government jobs were divided evenly among the denominations.  In other places,  the identity of public servants, their position, and salary has been public for as long or longer.   Once it became important to prove that government awarded jobs on the basis of merit instead of patronage, publishing names served as a check against any shenanigans by public servants or politicians to get their friends into cushy jobs.

We have a long history in Newfoundland and Labrador of making public some personal information about people who make their living from the public purse.  Since 1981, the House of Assembly has debated and voted on this issue no fewer than four times.  The current access law represents the third time in this century alone that we have examined access to information and privacy laws and come to precisely the same conclusion:  in the conflict between the privacy of public servants and the public right to know,  disclosing the name of an incumbent public servant,  his or her position, and the remuneration he or she receives is not an invasion of personal privacy.

The most recent review of the provincial government's access and privacy laws was comprehensive and the final report by the commission is a thorough review of the current state of thinking about the subjects.   The commission wrote:
In an age where the values of equality and democracy are seen increasingly as being central in our society there is diminishing justification for holding confidential the payment schemes for employees and officials who are paid from the public purse. Unfortunately, this does result in less privacy for those public officials and employees. However, the deleterious effect of disclosing salaries or pay scales has yet to be shown. Some, such as judges and elected officials, have been subject to such a regime for years.
"The privacy of public employees needs to be balanced against the public’s right to know how their tax dollars are spent,"  the commission concluded.  "Contemporary values of transparency and accountability for public funds tip the balance in favour of disclosure."  The recommendation in the report and the subsequent legislation prepared by the commission restored the wording, evolved slightly since 1981, to allow for the disclosure of the name, position, and remuneration of every provincial public servant in the province.

The intention of the public sector unions is to restrict access to information the public has had a right to obtain since at least 1981 and arguably that it has been able to get for over a century.  The legislature and the courts across Canada have upheld that right as recently as 2015 and, as the review commission noted, none of the province's public sector unions made any representation on this or any other issue at the time.

Added to this fact, we must weigh the evidence that over the course of the past 35 years,  public sector unions have not raised objection to the disclosure of the name, position, and remuneration of public servants together.  They have had plenty of opportunity.  The issue has not been invisible.  As the commissioners noted in 2014, disclosure of the sort we are talking about here is commonplace and has commonplace been for decades.  The fact that it has survived for so long without objection surely indicates a general acceptance by the public, including public servants, that such disclosure is appropriate. 

Some people have pointed to another section of the access act that supposedly contradicts the plain words of section 40, sub 2 (f) of the Access to Information and Protection of Privacy Act.  We should pay attention here to the stated intention of the commission in its report and the way they have constructed section 40. At the front end, they have told us what are acceptable violations of a public servant's individual privacy.  

Afterward, they tell us all the sorts of things that are not acceptable violations.  The intention is clear in the legislation and anyone with any doubt can read the report to see the logic behind the way the commission wrote the law.  The acceptable violations are very few.  The protections of a public servant's privacy are great in scope and number.

The Sunshine List

The concern in the recent flurry of access requests seems to be that some people are subject to disclosure based on an arbitrarily chosen income. They argue that those high income earners might be blamed by some people for the provincial government's financial difficulties.  These are understandable concerns but they are not good reasons to change disclosure that represents a fundamental and legitimate public interest in how the government spends public money.

The figure of $100,000 has no special meaning. Someone could have easily picked an amount higher or lower.  The figure has the advantage of being a simple, round number.  It is also a figure used in other places to produce so-called "sunshine" lists.

The fact that the number has no special meaning does not make it an improper or illegitimate one.  Statistics Canada figures indicate that about 66% of income tax filers - that is taxpayers themselves - in Newfoundland and Labrador make $40,000 a year or less before taxes.  If that is what two thirds of taxpayers make, then an amount that is two and a half times higher than that is as good a place as any to identify individuals who make a very larger amount in comparison to the population as a whole.

And that is all such a list does.

People making that much money and considerably more may find it uncomfortable to have that personal information available for public discussion but that is a long-standing consequence of having your salary paid out of the public purse.  It is hardly anything more than an inconvenience and, when it comes to the public service, it is a burden shared equally across the entire work force.  The lowliest clerk in the lowliest department is as liable to have her name, job title, and salary available to the public as is the Clerk of the Executive Council.

They call it a "sunshine" list after the idea that exposing information to the daylight of public disclosure is the best cure for impropriety. That's part of the legitimate interest  behind the public disclosure of names, titles, and salaries.

We should have more information.  We shouldn't just focus on the highly paid ones. Coupled with other information,  we can all gain an insight into the public service that we wouldn't have otherwise.  In some of the recent stories by the Telegram's James McLeod,  the public has seen some of that additional information.  Some public agencies have seen a growth in high salaries that is out of line with the size of the particular organization's labour force as a whole. That raises other questions that we should answer as well.  In some cases there are good explanations for the numbers.  In others, there haven't been any offered so far.


Note:  This post is a compilation of a couple of earlier posts on the Sunshine List and the public's right to know.