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. 

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-

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.

Bill 29 didn't go far enough: public sector unions #nlpoli

The teachers' union doesn't want the public to know the names of public servants in Newfoundland and Labrador.

The news late on Thursday is that NAPE - the province's largest public sector union  - and the nurses' union are thinking about joining the fight against the public's right to know who works for the public service and what they earn.

The teachers' union is going to court to try and 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 teachers' union says it's okay to have the position title and income but we can't have the name of the person holding the job, even though that information is readily available under access laws in every province and the federal government and it's been legal to obtain in this province for 35 years. Neither the teachers' union nor any other public sector union has raised this as an issue in the 35 years since the first provincial freedom of information law passed the House of Assembly in 1981.

Doesn't make sense, right?

Of course, it doesn't.  At least, it makes no sense if you look at it from the public interest.

It only makes some sense if you understand that these folks complaining about public disclosure aren't concerned about the public interest at all on any level.  They are concerned only about their own interest.   Unions who have members who will turn up on the lists are defending positions every bit as as private and self-interested, in other words, as the people the unions have been quick to attack for running public-private partnerships.  The hypocrisy is staggering but, sadly, not surprising.

None of the folks criticising the public disclosure have offered a solid reason why the information shouldn't be public.  Most of what they've claimed are undifferentiated fears of what unnamed people might theoretically do with the information.  They might... you know... gossip.  or worse,  the complainers have just offered the view that adding the names is unnecessary or serves no "journalistic" purpose.

What's most striking about these complainers is not the fact they offer no substantive argument, nor even that they don't feel the need to offer an mature, coherent, intelligent reason for their position.  It's the intensity of their feelings, of their unfounded fear.

Many of the people making big money are professionals:  teachers, lawyers, judges, university professors, nurses and doctors. We all know they make higher salaries than the average. They went to school for a long while to learn their business and they work pretty hard.

In other instances, like say a lineman working for Nalcor,  their pay reflects the hard nature of the work they do.  Master mariners make good money.  The job they do takes skill and carries a lot of responsibility.  As for the rest, presumably they are well qualified for the jobs they have, too. teachers, for example, are paid based on their educational qualifications, responsibilities, and years of service.  There's a correlation between their merits and their compensation. For all these folks, the pay and other benefits they get were set by government, not them, and should be enough to compensate them for the work they do on behalf of the public.

Yet they act like they are ashamed of something or like they should be ashamed of something.  If these folks and their unions are indeed feeling a wee bit guilty then maybe we ought to do more than just publish a sunshine list. Maybe there is a bigger problem here yet to be discovered.

The last time someone tried to turn back the clock on the public's right to know we got Bill 29.  As it stands right now,  the province's public sector unions want to take us back to the time before the first freedom of information law.   Since they haven't offered a single good reason for their agitation, you really have to wonder what's driving their anxiety.

-srbp-

A mess in the government access and privacy world #nlpoli

Two recent stories about the province's access to government information and privacy laws.

Both of them are essentially nonsense.

Short version for the new administration:  cock-ups in comms and access to government information helped destroy the Conservatives.  Since you've already got big communications problems, adding screw-ups in ATIPPA to the mix is just no good at all.

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. 

Repealing Bill 29 #nlpoli

The Liberals proposed a motion during last week’s private member’s day that the government repeal Bill 29.

Meanwhile, at the Telegram, legislative reporter James McLeod has been waging a one-man crusade to get everyone to stop trying to repeal Bill 29.  Bill 29 actually fixed a few nasty things,  according to McLeod.  For example, rather than force reporters to chase after ministerial briefing notes,  Bill 29 banned release of them outright:

When Bill 29 came along, it created a specific exception to end this game. Now, the government could withhold any document which was “a record created solely for the purpose of briefing a member of the Executive Council with respect to assuming responsibility for a department, secretariat or agency.”

Then there is the matter of requests for information that the bureaucrats think are “frivolous and vexatious.”  The example McLeod uses to endorse that part of the bill is odd.  He filed a request for documents about the cod moratorium.  The Telly dropped the request when they discovered that a couple of days after getting their pile, the government proposed to release the whole pile on the Internet.  That wasn’t a frivolous request, incidentally, but McLeod holds it out as a justification for that bit of Bill 29. 

Talk is cheap. #nlpoli

It was only a matter of time before the government that says more and more about less and less figured out that its best mouthpiece was Steve Kent, right, the minister of perpetual self-parody.

No one can talk more while saying little of substance and so it is quite natural that Kent – the ultimate Johnny-Cab minister -  was the centre of attention at a Thursday event announcing something called the Open Government Initiative. He took a microphone at one point and wandered around reading his script.  The effect was far less impressive than that description makes it sound.

He was demonstrating technology that was a couple of decades old to do something that researchers have been doing for almost a century:  ask a group of people to answer a bunch of questions.  There was nothing new in it at all.

D’oh! Telegram shags up Muskrat Falls access story #nlpoli

According to a major Telegram story on Monday morning, the provincial government won’t be able to release some information about Muskrat Falls because of the provincial access to information  laws.

There’s only one problem:  the Telegram got the whole thing wrong.

How do they work, exactly? #nlpoli

As laughable as it is for the Premier’s Office to insist former Premier Kathy Dunderdale received only 46 e-mails in a single week and sent none, there are some other things in this little episode that are worth noticing.

Put ‘em all together with other information and you might have something interesting.  Not necessarily huge, but interesting and revealing.

How did she work, exactly? #nlpoli

How odd that the Premier of Newfoundland and Labrador – arguably the busiest job in the province, bar none -  received only 46 e-mails in a one week period in January.

And how extremely odd that none them – apparently  - came from any of her staff, senior public servants, cabinet ministers or other politicians.

And how completely bizarre that in that same period the Premier of Newfoundland and Labrador didn’t send a single e-mail of her own to anyone about anything.

Access to Information - some misunderstandings #nlpoli

A tale out of Ottawa reveals the extent to which access to information problems crop up in lots of places.

CBC News asked for a copy of a memo from the commander of the Canadian Army about leaks of information within the army.  CBC apparently had a copy of the memo or someone had seen it and so they formally requested a copy.

The tale gets interesting because of the internal dispute over how to respond to the request.  Most public affairs officers advised the commander to direct the CBC to file an access to information request.  Only one public affairs officer – a former political aide to Prime Minister Brian Mulroney – advised against that action and, ultimately, refused to be the one to tell CBC what to do.

The army relented, largely due to that refusal, and released the letter to the media without forcing them to go through the access process.

Doing it right #nlpoli

Premier Tom Marshall confirmed on Thursday that the provincial government will be doing the review of the provincial information and privacy law a year earlier than scheduled.

They will also be appointing three people to serve as the commission conducting the review.  The provincial government is also accepting nominations for commissioners.

While other details of the review aren’t public yet, the news so far is good.

Dunderdale’s Bill 29 “a dramatic step backwards” for transparency in NL #nlpoli

On Monday,  Premier Kathy Dunderdale blew off any questions in the House of Assembly about Bill 29 with the comment that the centre for Law and Democracy said the province was third in the country for transparency.

Well, as regular readers well know, the Premier is not usually right about many things and this is a fine example. 

The Beast #nlpoli

This week, people across Canada who are interested in the public right to access government information mark a thing called Right to Know Week.

It’s a time to “raise awareness of an individual’s right to access government information, while promoting freedom of information as essential to both democracy and good governance.”

People who are genuinely interested in a healthy democracy and in the effective operation of our federal, provincial, and municipal governments support freedom of information. 

It’s that simple.

The New Secret Nation #nlpoli

On the front page of Wednesday’s Telegram was another instalment in James McLeod’s blockbuster on the provincial government’s policy of censoring public documents.

This one focused on the claim by a spokesperson for the public engagement office that orders in council were not covered by a section of the province’s access to information law that prohibits disclosure of cabinet decisions even though the orders are essentially cabinet decisions.

At the same time, the spokesperson said the orders were subject to other sections of the act that allowed government officials to censor them selectively.

Yes, that is exactly as screwed-up as it sounds.

Censoring Public Documents… or not #nlpoli

Not only does the provincial government now censor public documents called orders in council, they can’t get their own scheme right.

Public engagement minister Keith Hutchings published a letter to the editor claiming that government had always censored orders in council.  The Telegram dutifully went back and asked for some of the same documents they’d received before with censored sections blacked out.

A front-page story in this Saturday’s edition (March 2) lays out the details.

A Commitment to Secrecy #nlpoli

The justice department is the lead department enforcing the provincial access to public information law.

As such, it’s a pretty serious indictment of the government’s commitment to public access when the justice department violates the access law.

From the access commissioner’s summary of his report into the latest complaint against the justice department:

The Applicant submitted two access to information requests to the Department of Justice dated June 15, 2012. … The Applicant received no response to his request for information regarding psychiatric services until November 9, 2012, when the Department responded to both this Office and the Applicant as a result of his Request for Review submitted to this Office in October. This four and half month delay occurred despite the fact that the majority of information was in the custody or control of the Department and required little redaction. The request with respect to payment information was responded to on August 24, 2012, when the Department notified the Applicant that no records existed. There was no communication with the Applicant to explain the reasons for the delay in either case. The Commissioner found that in both cases there was a breach of both sections 9 and 11 of the ATIPPA. …

-srbp-

Tories involved in violation of privacy act #nlpoli

The temperature in the House of Assembly is not even cooled down and Tory legislator Paul Lane (Mount Pearl South) is likely to find himself in the middle of a controversy involving the disclosure of personal information that is supposed to be protected under the Access to Information and Protection of Personal Privacy Act.