Lomond cleared by Citizen's Rep of wrongdoing in email deletion #nlpoli

In a report on his investigation, Citizen's Representative Barry Fleming said that while deputy minister Ted Lomond had directed the deletion of a single email related to Carla Foote's move from Executive Council to The Rooms, Lomond did so believing it was a transitory record that could be deleted under government records management rules. 

Fleming found that the email at The Rooms was not deleted.  He did not find there was a widespread practice of deleting emails in Lomond's department.

_______________________________________________________ 

Ted Lomond

Citizen’s Representative Barry Fleming cleared deputy minister Ted Lomond of wrongdoing in the deletion of an email related to the transfer of Carla Foote from the position of associate secretary of cabinet for communications to the job of executive director of marketing at The Rooms.

The report into the investigation, dated 29 April 2019, said that,  while he concluded that Lomond directed that an email be deleted, Fleming could not “find that [Lomond’s] instruction or intention was to improperly delete [sic] that e-mail and letter.”

Fleming wrote that there “is enough evidence to suggest that [Lomond] considered the e-mail and letter to be a transitory record and therefore could be deleted.”  Fleming noted that “[we] found no evidence to suggest that the deletion of emails was a widespread practice.”

Under the Management of Information Act, "transitory record means a government record of temporary usefulness in any format or medium having no ongoing value beyond an immediate and minor transaction or the preparation of a subsequent record."

Section 5.4 of the MIA says that "transitory records may be disposed of when they are no longer of value, and shall only be disposed of through means which render them unreadable, including secure shredding or in the case of electronic records, secure electronic erasure."

The Office of the Chief Information Officer says that a transitory record would include the draft versions of records the signed version of which has been retained, as well as the electronic versions used to transmit the draft from one person to another."

In the report, Fleming said that the executive assistant to The Rooms CEO Dean Brinton had not deleted the email. “Indeed,  Brinton’s Executive Assistant indicated that this was the only time she had received an instruction from Mr. Lomond’s office to delete an e-mail.”

While Lomond’s EA did not recall specific details of what happened on June 15, 2018,  Fleming said she “did state that Mr. Lomond was a stickler for having all employees delete transitory records. She indicates that if she had communicated with Mr. Brinton's Executive Assistant to delete e-mails, it was a reference to ones which are transitory records. She doesn't recall Mr. Lomond ever directing her to delete substantive e-mails.”

Fleming noted that “Mr. Lomond’s evidence on this issue was quite candid. He stated that he knew the decision conveyed in the e-mail and attached letter might be controversial and subject to an access to information request. Having that in mind he wished to ensure that only proper e-mail remained. He states that he continually reminded staff to delete transitory records and that this process is in keeping with best practices for e-mail storage.”

Fleming said that the “professionalism exhibited by all public employees we encountered made the conduct of this investigation easier than it might otherwise have been.”

Fleming’s report on Christopher Mitchelmore, presented in the House of Assembly, contains a reference to another investigation into the deletion of an email without identifying Lomond as the subject of the investigation. 

Fleming investigated Lomond for the same five accusations as the ones contained in the Mitchelmore report. On the other four, Fleming accepted Lomond’s “evidence that during all relevant time he was conveying information from Executive Council and his Minister to the Chief Executive Officer and Board of Directors of the Rooms Corporation. Lt is clear that he was not the directing mind in any of the decisions that precipitated these allegations.”

“ A deputy minister who follows the instructions of his minister and central agencies of government cannot be said to have grossly mismanaged his executive responsibilities,”  Fleming wrote.

On Friday, CBC reporter Peter Cowan tweeted that after "the Mitchelmore report found that emails were deleted, I've asked the Information and Privacy Commissioner to investigate whether that broke the rules" based on an access to information request Cowan filed in October 2018.  

While Cowan's tweet incorrectly refers to emails (instead a single email) and that they had been deleted,  the CBC story on the request to Commissioner responsible for access to information appeals refers specifically to one email.  The email in the department was deleted but the one received by The Rooms was not. 

-srbp-  

Note:  Fleming's report consistently presents the word as "e-mail" while SRBP uses "email".

Cannabis and culture #nlpoli

Politics and policy are much more complicated things than they appear to many people. Change is possible, but effective change can only come if we see the world as it is, not as some people imagine it might be.

Canada’s legal cannabis policy in most Canadian provinces is a failure.

There are not enough legal cannabis stores to meet demand.  The gap in price between legal and illegal cannabis is growing.  The supply of legal cannabis is spotty and there are still complaints about the quality of what stores have on their shelves. By contrast, the illicit market is apparently thriving. 

The reason that the policy failed is that it was driven by established bureaucratic interests from law enforcement and health and addictions who opposed legalization in the first place.  That led to a policy that placed the maximum emphasis on restriction and limitation of access.

What most governments in Canada ignored is the highly developed, private sector alternative that had been delivering cannabis to retail customers across the country for decades.  The industry survived despite the most severe restrictions that Canadian law could impose.  It *was* illegal to possess cannabis, after all, under any circumstances, for most of the last 60 years or more.

Governments just don’t do “business” very well.  They aren’t organized for it and – what’s more important – the people inside the organizations don’t think about problems the same way people in business do.  In fact, they don’t think about most things the way people outside government do. 

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.

-srbp-

Plain English , Disclosure, and Bad Public Policy #nlpoli #cdnpoli

Right off the start, let's affirm that Nalcor was created by an administration that was, from the time it took office, notorious for its efforts to flout the law in order to keep information secret.

Polling information was the first sign of the problem but that wasn't the last example.  There was a demand by the Premier's Office for $10,000 for copies of speeches delivered in public by the Premier and, ultimately, a complete re-write of the access law in 2012 to make legal what the government had already been doing to keep all sorts of secrets that should have been made public.

It's easy, therefore, to believe that the Energy Corporation Act,  passed in 2007,  follows the same pattern.  In many respects, you'd be right.  For example, we do not know why the government created the energy corporation in the first place.  In second reading on the bill,  then energy minister Kathy Dunderdale famously spoke only 101 words in her speech introducing it.  Not a word of her comments then or later ever explained why the government was setting up Nalcor,  what it was supposed to accomplish and how it would be organised.

The sections of the Energy Corporation Act that everyone is now upset about came along in early 2008.  They were introduced, as the story went at the time, to address concerns from the major oil companies who would be part of a deal announced later that year to develop Hebron.

The issue for this post, though, is about the chronic misrepresentation of what those sections say whenever people talk about the current controversy over embedded contractors.  Here's the way James McLeod summarised the issue from a decision - not yet public - from the province's privacy commissioner:

The Energy Corporation Act, which is the law which creates Nalcor and gives it all its powers and mandate, says the company should withhold information “relating to the business affairs or activities” of any other company that Nalcor works with. 

The OIPC [Office of the Information and Privacy Commissioner] ruled that billing rates of contractors would clearly apply, and that because broader information previously released by Nalcor could be used to calculate roughly how much individual contractors bill, individual company names tied to specific contractors should also be kept secret.

Section 5.4 of the Energy Corporation Act Act says that the chief executive officer may withhold commercially sensitive information belonging to Nalcor and its subsidiaries and shall refuse to disclose commercially sensitive information for a third party.

Notice that there are two parts to that clause.  The first gives the chief the discretion to withhold:  he or she *may* withhold.  The second part gives a mandatory exemption from disclosure:  he or she *shall* refuse to disclose commercially sensitive information

But you can't stop there because the rest of the wording in that section adds an important bit of information next.  The chief executive "shall refuse to disclose..."

where the chief executive officer of the corporation or the subsidiary to which the requested information relates, taking into account sound and fair business practises, reasonably believes...

falls into either of the two categories the section then describes, complete with characteristics.

In other words, there isn't mandatory, automatic, and broad secrecy for something that is left undescribed and vague.  The Act places the decision at the discretion of the chief executive officer about whether or not to disclose information AND gives that person some guidance as to what "commercially sensitive information" means beyond the definition in the act at section 2 (b.1).

In the embedded contractors case,  Nalcor boss Stan Marshall determined what would go out the door and what wouldn't, based on whatever advice he got from lawyers.  No one has apparently asked Stan to explain his reasoning and, for sure, no one at Nalcor these days is likely to volunteer a simple piece of factual information.  These folks, after all, still release pdfs of documents that are designed to frustrate copying and pasting for data analysis.

We can make a reasonable assumption, though, that because some of the contractors  - maybe the one-man shops - consider the information to be commercially sensitive for them,  Nalcor won't release it.  That's a legitimate protection of third parties. Nalcor just needs to explain that.

As for the privacy commissioner, it's doubtful he buggered up the plain English of all this.  And from McLeod's story, it appears that the commissioner has picked up on the idea that two partial disclosures could lead to the disclosure Marshall decided against.  That's legitimate as well.

But before we think about changing this section of the Act,  everyone needs to get their facts straight, stop, and think hard.

Bad public policy usually comes from  a lack of consideration. That includes times when there hasn't been adequate debate in the House but it also comes, as in the recent Muskrat Falls inquiry, when the government makes a hasty decision based on something on Twitter or open line that itself was driven by a few noisy voices with a raft of agendas and interests, and often precious little knowledge of what is going on. That doesn't mean we should not have an inquiry but it does mean government folks should have made a decision based on facts, information, and knowledge not a few people losing their minds on Twitter..

In the case of the MF inquiry,  three of the terms are actually already known and one of them - the PUB exemption - actually dates from 1998.  It looks for all the world like the folks who drew up the terms of reference didn't know the facts themselves or what they were really trying to find out.  They also left out crucial time periods (anything before 2012)  and crucial actors (all the politicians) in the debacle.  The PUB bit is actually just a sideshow.  The result will be a long, costly, and ultimately inconclusive commission that will miss most of the details needed to avoid a similar debacle in the future.  That's the opposite of what the government promised when it announced the terms of reference and the commissioner.

Words matter.  Disclosure is important.  Facts are crucial.

And in the embedded contractors story,  that last element is in short supply.  We could all make lots of mistakes as a result, just as we made lots of them in the past - like in Muskrat Falls - by ignoring facts that were,  as in the Energy Corporation Act,  in plain sight all along.

-srbp-

Unopen Government #nlpoli

The idea of open data has been around for a while.

In government, it means that government would make information like census data,  statistics,  licensing information easily and freely available for anyone to use, free of charge and any restrictions. It's a way of sparking creativity, crowd-sourcing new information, and basically spending less time and scarce resources in government trying to hide useful information the public should have anyway.

Officially, the provincial government here adopted the idea as official policy in 2014 but they have been typically very slow to put anything into action.

Case on point:  an access to information request for data collected from caribou monitoring collars.  The maps in the download are all stamped with a restriction that they are for the use of the original recipient only.  No one bothered to black them out, which would be the easiest thing to do... if the restriction didn't still apply.

More importantly, though,  the request was just for spot data shown on maps, as opposed to the actual latitude and longitude tracking information.  A government genuinely committed to open data would have just dumped this stuff into the public domain in the first place, in bulk. That would have saved the expense of converting it into maps into the first place for this request, no matter how small the dollar cost actually was.

There is soooo much that begs to be fixed in the provincial government's access to information world.

-srbp-

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.

The trouble with transparency - CADO version #nlpoli

"How do you deal with a government computer system that is hopelessly out of date it wants you to 'update' your Internet browser to a version that is actually three version older than the one you are using?"

That would be the online search for the government registry of deeds, companies, and lobbyists.  The thing was already ancient in 2009 when SRBP first wrote about it. The thing was nine years old then. These days it is around 16 years old and is still chugging along.

Someone else took a poke at the database by asking for an electronic copy of the record through the access to information law. In addition to requesting the data,  the person offered an observation that the database wasn't truly access as required under the access law because the software was so old:  "I am of the opinion that these records are not truly available to the public. Currently a user must access this database online using Internet Explorer 7, which is no longer supported by Microsoft, and leaves the end user vulnerable to malware spyware. I doubt Ministers would be permitted to use IE7 at Confederation Building due to the threat of digital exploits. The CADO system built by x-wave is incredibly outdated."

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.

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.

Public interest served by contract disclosure #nlpoli

There's no small irony that NAPE is fighting to increase public disclosure of government spending while other public sector unions are busily trying to drag the public back into the Dark Ages by hiding the names of union members earning more than $100,000 a year in pay and benefits.

NAPE is trying to get access to contracts awarded by Eastern health to two privates companies.  The union appealed to the information commissioner and last week the commissioner issued rulings that Eastern Health should release the contracts.

NAPE is right:  it is in the public interest to have the contract details in public.  That's why the access law  says that it isn't an invasion of privacy to reveal the financial and other details of a contract to provide goods and services to the public.

That doesn't mean that NAPE is right that the public sector can supply the services in this case more efficiently than the private companies can. In fact,  there's good reason to believe that the public sector has a great deal of difficulty providing many services as cost-effectively as a private company can.

Regardless, the public has a right to know how its money is being spent and to make sure that citizens are getting the best return on their spending.  Competition between the public sector and the private sector might be a way of injecting some life back into the bloated, ineffective public sector and getting managers and workers alike to rediscover that it is is supposed to be about serving the public.

-srbp-

Ring access ruling blames wrong culprit #nlpoli

To understand why access commissioner Ed Ring's ruling issued last Monday was troubling, you have to know some back story.

Ring was ruling in an investigation over an access request for two reports that should be in the Premier's Office.  An access request for copies of the reports got the reply that the office doesn't have them.  The actual response used the bureaucratic phrase "no responsive records."

Whoever went looking for the records appealed to Ring, Ring's office investigated, and then the report came out.  Ring chastised the Premier's Office for not keeping better track of its stuff.  In essence, he laid the blame for the missing files on the current crowd in the office.

That's wrong.

Sun burn #nlpoli

On Friday morning, Memorial University political scientist Amanda Bittner told a CBC Radio audience that the Telegram’s government-compiled list of public servants making more than $100,000 a year served no useful purpose.

Lists like this are often called "sunshine" lists after the first one, published in Ontario since 1996.

Bittner dismissed the results of a dozen access to information requests as nothing more than a "patchwork" of information in a  “random Google document.”

On Saturday,  the Telegram showed how stunningly wrong Bittner was.

Joining the access fight #nlpoli

As it turns out, the "commentary" on access from information and privacy commissioner Ed Ring is tied to a lawsuit coming from the province's teachers' union to block an access to information disclosure to the Telegram for a list of teachers and principals making more than $100,000 a year in salary.

The school district hasn't sent the requested information James McLeod as they know the teachers union application is coming.

Your humble e-scribbler filed an access to information request for the school district on Wednesday evening asking for a list of all teachers employed by the district and their individual salaries.  Simple list.  Send it out in a pdf.

Here's why SRBP joined in.

The teachers' union is wrong, as a matter of principle.

The public has a right to know the name, position, and salary of every person on the public payroll.

Period.

Resettlement story wrong #nlpoli

Access to documents from government are one thing.

Understanding what they say is quite another.

CBC requested batches of documents from the provincial government about efforts by the people of Little Bay Islands to relocate from their isolated community to other places.

“No government money in budget for rural relocation program” ran the headline on the story last week.  The sub-head claimed there was “no way to pay up-front costs” of relocation.

Unfortunately for the folks at CBC, the documents didn’t say that.

Open Data #nlpoli

James McLeod has released the data he compiled to produce his Saturday story on the number of people in the provincial public service who make a salary of more than $100, 000 a year.

What James has done is follow the Open Data policy the former Conservative government announced but never implemented.  The new crowd running the place are understandably a bit preoccupied at the moment but Open Data is an idea they should latch onto.  Not only does it save money, but it also puts a pile of government data in the public where folks can make good use of it.  If you want to support innovation, making information readily available is one of the best things any government can do.

McLeod submitted a series of access to information requests to the core government departments as well as the larger agencies and Crown corporations. Some responses, like the one for Memorial University, is pending. McLeod put all of the bits and pieces into a spreadsheet and that’s what he has offered up to the public to do with as they wish.

Cabinet documents and no brainers #nlpoli

Years ago,  a couple of enterprising reporters at CBC submitted what was then a request under the Freedom of Information Act for information about entertainment expense allowances for senior bureaucrats and cabinet ministers.

They got the information and aired a story that claimed that, in a time of great restraint,  the government had increased the budget for entertainment. It was a wonderful story that made the government look bad and that raised all sorts of self-righteous indignation about fat-cat politicians and bureaucrats living it up while the poor folks suffered.

Wonderful story.

Just not true.

The politics of information #nlpoli

A couple of recent post are reminders of how important it is to take a look at issues in the province from another perspective.

On June 10,  you will find a post about crab fishermen from New Brunswick who want to sell their catch to a company near Corner Brook.  The problem is that federal regulations limit where the fishermen can sell their catch. The policy is rooted in the sort of local protectionism that lay behind opposition in some quarters to European free trade.

Thursday’s post (June 17) was about remarks by Quebec’s energy minister about offshore oil and gas in the Gulf of St. Lawrence.  Pierre Arcand argued that Quebec had better sort out an agreement with the federal government over jurisdiction for the offshore resources.

Old Harry was sitting there waiting for development and Newfoundland and Labrador,  Arcand said,  was ahead of Quebec.  The result could be that Newfoundland and Labrador would  wind up reaping huge benefits from the Old Harry field.  Quebec, meanwhile, would be left behind. 

Another little thing that stood out #nlpoli

From Tuesday’s throne speech, here’s another little passage buried away, that could prove to be one of the most significant parts of any throne speech in a long time:

Our government is developing Newfoundland and Labrador's first Open Government Action Plan, reflecting the best 'open government' practices in the world. The plan will nurture a culture of openness within the government by promoting access to information and data and enhanced dialogue and collaboration on initiatives. Under this plan, Newfoundland and Labrador will become, by 2020, one of the most open and accessible jurisdictions anywhere in the world.

-srbp-

The ATIPPA Review Round-Up #nlpoli

Tuesday’s video is available at parcnl.ca.

Your humble e-scribbler is Number 2 on June 25. 

At the front end of the Number 1 video is Vaughn Hammond of the Canadian Federation of Independent Business.  he made some really solid comments about a problem some of his members have been running into since Bill 29.  They used to rely on access to information in order to get information to bid on tenders.  In a competitive industry, such as some of the suppliers Hammond represents,  disclosing information helps get a better price for taxpayers.

parcnl.ca #nlpoli

If you want your SRBP fix this Wednesday morning check out the Privacy and Access Review Committee hearings at 11:00 AM.

They are streaming it live at parcnl.ca.

-srbp-