25 May 2018

Nalcor contractor secrets still safe under revised law #nlpoli

Anyone who cracked out the champagne over the bill that would purportedly shed light on Nalcor's embedded contractors might want to spit some back in the bottle for another day.

Bill 19 went through second reading on Thursday,  putting it one step closer to becoming law by the end of next week.  It makes changes to the definitions in the Energy Corporation Act that would,  if you listen to the official explanation, prevent Nalcor from holding back the information on embedded contractors that caused such a fuss last year.  That's the only legislation changed by Bill 19.

The problem is that the Energy Corporation Act was only part of the legal argument Nalcor made in its decision to withhold financial details. Nalcor withheld the financial information for individual contractors on the basis it was "commercially sensitive information" under the ECA. You can see the whole thing neatly summarised in access and privacy commissioner Donovan Molloy's decision last year on an appeal about the Nalcor decision to withhold chunks of information.

Bill 19 deals with the ECA changes.

But Nalcor withheld other information - related to folks who were working through an intermediary company  -  using section 40 of the Access to Information and Protection of Personal Privacy Act.  Bill 19 doesn't do anything with that so the odds are good Nalcor could still hold back information people wanted.

But it gets worse.

Whoever drafted this bill might think the changes to the EPA were enough to cover the individual contractors.

Guess again.

The words in the ATIPPA might look like they say it is okay to release names, remuneration and other information for public employees but Justice Gillian Butler had other ideas.  In her outstandingly twisted and entirely ludicrous judgement in the Sunshine List case,  Butler turned out the lights on disclosure of precisely the sort of information contained in the original embedded contractor information requests.

If the law was never an ass before,  Gillian Butler gave it two sculpted cheeks and a well defined crack. Even though the words of the law say it is *not* an unreasonable invasion of privacy to disclose names and salaries,  Butler concluded that the legislature actually said that information should be be kept secret.  The sunshine list law that some people might think nullified Butler's decision only covered disclosure by the provincial government of some information for employees making more than a specific amount.  All the requests for information under ATIPPA are still covered by the Butler decision, no matter how much money the employee makes.

And Butler's judicial brain fart remains the law until a higher court overturns it or the legislature passes a law that says "Gillian Butler's nuttiness notwithstanding" this information will be made public.

All the information that folks wanted from Nalcor can stay secret.  Nalcor can justify it based on Butler's decision and the ATIPPA, 2015.

The funny thing about this sad tale is that the Premier and any minister of the Crown could have released all the information folks wanted back when the fuss was raging either at Nalcor or over the Sunshine List.  They could release the information based not on a request through ATIPPA but based on their own exercise of the Crown Prerogative. That's the basis on which Danny Williams gave the Auditor General access to documents in the fibre optic cable scandal, for example, even though Williams originally claimed he couldn't do it. 

Fuss as some of them might have,  there's nothing any of the contractors could have done about it since the Prerogative is not subject to judicial review.