Freedom from Information: oil royalties version

After two e-mail requests to the provincial finance department yielded nothing but delays for two weeks, a simple e-mail to the federal natural resources department produced information on the provincial oil royalties the provincial finance department had trouble releasing.

And it only took four working days.

The request on October 21 to the provincial finance department was simple enough:

What is the total offshore royalty received by the provincial government from 01 Apr 09 to 30 September 2009?

The first response (October 23) from the department spokesperson said:

The information you are requesting is provided at the end of the year in the public accounts and can be made available to you at that time.

Of course, the estimates are publicised at the end of the fiscal year but the audited financial statements  - the public accounts -  for 2009 won’t be released until February 2011. 

That seemed like an unusually long and unnecessary wait for information that should be readily available.

Oil royalties are collected each month by the federal natural resources department (NRCAN) under the terms of the 1985 Atlantic Accord.  The amounts collected are set by the provincial government through its own royalty regimes for Hibernia, Terra Nova and White Rose.  The royalties collected are turned over in their entirety to the provincial finance department monthly.

A second request (October 23) to provincial finance asked for the reason the information was being withheld.   The reply to that inquiry came on November 4, 2009 and gave a new, more curious response:

For the particular timeframe of your request, the department is still receiving the relevant information.  When the data collection is complete, the information will be made available. 

Still receiving information?  Now that’s a bit of an odd idea since the finance department should be in the process of completing a mid-year financial update for public release.  The figures on oil royalties would be sitting right there on someone’s computer, presumably since they form a very big part of the provincial government’s annual revenues. 

If nothing else, finance officials produce monthly statements of account showing revenues and expenditures both for government as a whole and for individual departments.   It would be exceedingly strange if the finance department didn’t have the figures for at least April to August. 

As it is, your humble e-scribbler went looking for the information in October.  It might have been a bit optimistic to get even the September figures.  At this point – early November - provincial officials should have September done and October should be well on the way.

But nothing at all until the whole thing was complete?  Highly unusual, to say the least.

Your humble e-scribbler turned instead to NRCAN.  An e-mail inquiry to the NRCAN manager of media relations on November 5 for the year to date oil royalty figures produced the response on November 9:  the oil royalty figures for April to August 2009.  September is in the pipeline and even October might be available within a few weeks.

It was that simple and that fast.

-srbp-

Governments are afraid of their people after all

Well, afraid of their people getting their hands on information and then daring to ask questions.  Good heavens, imagine the time that would take.

Take for example, this quote from a weekend Telegram news story (Correctional Update:  Yeah it is online.) on Danny Williams and his attitude toward disclosure of public records:

“If things get out and they have to be known, and we can be questioned on it, absolutely but if we had to have an open book on absolutely everything we’re doing, I’ve got to tell you, I’d be out of here.  I’d be gone.”

In the front end of that quote, Williams was expressing his concern about the drag on his time if he had to explain things once documents and other information were released.

This is really old hat by now and it is really old hat to note that Danny Williams was a huge proponent of open records laws before he got elected.  Once he took the oath, he very quickly thought it a bad idea for the public to know what he was up to.

Take for example his very first great foray into freedom from information.  The telegram asked for copies of polling Williams commissioned from one of his favourite pollsters.  Williams refused to disclose them despite the fact the law stated in plain English that polling couldn’t be withheld.   In another instance, the telegram asked for files it knew existed.  Williams admitted there were “purple files”.  The official reply to the request was that they didn’t exist and no documents were disclosed. 

Funny, then to see him quoted in the Telly six years later as saying:  “we go through the process and we vet what we’re entitled to vet by the rules. ”

That purple file one is still lost in the “process”, incidentally, almost two years later.

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And you think Hisself has it bad

As much as some people like to moan about The Racket, there were a couple of things this past week to show that that self-serving load-of-crap bit of whinging for what it is.

First, Arnold told an audience at the Governors’ climate conference in California that it was worth putting up with all the shit he takes as governor because he wants to give something back to the state that has given him everything. 

Yes, there are people looking for more government money and people complaining about him and people poking into his life, but darn it, everything he has – from his success as an actor to his family – are attributable to California.

Yes people, real leaders don’t bitch about a job they volunteered for six years ago.

Second, not a single person during the entire period since 2001 has dared ask Hisself a question even vaguely as outrageous as the one faced by Gordo Brown earlier the week:

Heck they have a hard time putting a real question to Ole Twitchy sometimes let alone getting an answer.

Even people asking simple stuff like how many people went with him on the swan to California and how much it cost taxpayers get told to file an Access to Information request.

At least the crowd that surround Hisself have a sense of humour.

Freedom from Information: Right to Know Week 2009

labradore lays waste once more to the annual event called Right to Know Week.

At least this year the thing is pushed by the guy who actually cares about your right to know.

Last years’ release was from a guy more inclined to be concerned about frustrating your right to know.

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Signing his own death warrant

Newfoundland and Labrador information commissioner Ed Ring is welcoming a  court case that will settle once and for all a dispute with the provincial government over access to government records.

The provincial government is insisting Ring shouldn’t have access to documents as part of his review under the province’s open records law.  That law currently gives Ring the powers of a commissioner under the public inquiries act to compel the delivery of any and all documents he deems relevant to discharging his responsibilities.

Danny Williams disagrees.

Now a judge will get to sort it out.

Of course, those of us who know Ed Ring personally wouldn’t expect anything from him but exactly this thoughtful and responsible discharge of his duties as set out by law.

Let’s just hope that if the judge sides with Ring, the powers that be don’t decide Ring must be replaced with someone considerably more pliable.   it would be a shame that doing his job and speaking his mind wound up being a case of the guy signing the death warrant for his own job.

-srbp-

Freedom from Information: Conference Prep Kit

Information and privacy commissioners from across Canada can count on support from Bond Papers as they gather in St. John’s  next week for their annual conference. 

To help them get ready for the meeting, they can use the conveniently located conference prep kit located at the top of the right hand nav bar. 

It contains a a set of convenient links to Bond Papers posts describing the sorry state of  affairs in Newfoundland and Labrador when it comes to openness and accountability.

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Freedom from Information: Whose briefing book is it anyway?

Health minister Paul Oram claimed he didn’t have any briefing notes when he took over the department.

Aural is moral, as the saying went.

Some local media outlets, like the Telegram, went looking for briefing notes and were told by officials they didn’t exist. 

Now, of course it’s not unusual for government officials to be less than truthful in answering media requests for documents.  Back then, the officials said one thing (no documents) but the politician involved – namely no less a personage than the Premier Hisself – said something different (sure we got ‘em).

But in this case, it is way freakin’ spooky that Oram told the Gander Beacon he had a couple of feet of files -  including briefing notes -  to go through  after the officials and Oram had said there was nada in the space marked briefing notes. 

The story now gets off into a whole new realm of bizarre:   Oram is now claiming there were briefing notes but that they weren’t prepared or him. 

And in Oram’s whack-o world, he has time to read through two feet of material prepared “for someone else” but if he had briefing notes with his name on him, he’d never have time to do anything but read briefing notes.

Huh?

Exactly the reaction one would expect for such an obvious bullshit claim:

There are a bunch of files, and there are a bunch of different issues that sit on my desk every single day. They may not be in the form of a briefing note, but everything is filed and documented - there' a paper trail for everything."

Briefing notes are sent through his department on a constant basis, but Minister Oram said they are not prepared for him.

"I didn't ask for somebody to give me a load of briefing notes so I would start going through them," he said. "If I had to do that, that's all I'd do - read. I just don't have the time to go read every single formal briefing note that there is. But I do have the time to sit and have someone explain to me what we have on right now, and then I go through the files we have there."

All of this is in aid of defending efforts by the Oral Majority – i.e. the cabinet – that appear to be designed to circumvent laws in the province aimed at making government information available to the public.  Oram’s been at this a while:  recall that he earlier denied that not putting things in writing was not a way of not putting things in writing.

And again, your heads are clearly twisting trying to make sense of the ministerial confusion over such a simple thing as whether or not there are briefing notes Oram is reading in order to get up to speed on his new responsibilities.

It’s not like we asked him to recount recent history or anything.

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Freedom from information: a symptom of ponocchiosis

That would be an inability to recognise realise that what one is saying is humourous because it contradicts the claim:

Oram said verbal briefings aren't an attempt to avoid putting anything in writing.

He said he can't remember if he was supplied with written briefing documents when he took over the business department in 2007.

But of course, not having any written briefing notes is exactly intended to avoid having anything in writing.  That way, there is nothing to contradict cabinet minister Paul Oram’s faulty memory.  In this instance, Oram cannot remember what he did less than two years ago in taking on the single most important job of his working life.  His mind is a complete blank slate.

Yet…

He would have us believe  - despite having an evidently sieve-like memory - he can successfully administer $2.6 billion in public money and account for his actions when needed.

Paul Oram is not alone.  Joan Burke and likely most of their cabinet colleagues  - update:  the Aural Majority - have adopted the paperless office approach.  The tendency to a paperless ministry is nothing new nor is it confined to Newfoundland and Labrador.  Donald Savoie, among others, has documented the trend and they have also firmly fixed the reason: avoiding accountability.

In itself, that’s a pretty dramatic development for a government that sought office in 2003 on a platform that included accountability and transparency as a cornerstone.   It would also pretty much make a mockery of former deputy minister Doug House’s claim in 2005 that the “Williams government is exceptional in the extent to which its electoral platform, Our Blueprint for the Future (commonly referred to as "the Blue Book") is actually being adhered to in implementing government policies.”

Now, one of the possibilities unexplored by either CBC or The Telegram – both have covered this same issue based on separate open records requests – is that the response from government is actually not completely in accord with the facts.  One of the other tendencies noted over the past couple of years is for government officials to respond to certain access to information requests in a way which is false.

For example, the now infamous case of the purple files, every knows that purple files exist.  The person requesting them saw them.  Both premier and an official of his office have confirmed they exist.  Yet, the official written response was that there were no such records. 

In other instances, officials have invented a category of documents simply to avoid releasing them.

Now at this point, no reasonable person in the province should need convincing that a problem exists and that it needs a solution.  We don’t need to see another story of another cabinet who claims to have a decent memory but who mysteriously can’t recall anything when asked about it.

The only real question is what, if anything, the current administration will do to correct the situation.

They started out with a platform that would have put this province in the forefront of public accountability, openness and government accessibility.  Where they’ve wound up is significantly less accountable, less open and far less accessible to voters than the government they attacked in 2003 with their pledge of 23 positive actions.

The only question right now is:  will they do what they promised six years ago?

-srbp-

Freedom from Information: the “how Irish are we” version

From the 2008 annual report of the Ireland Newfoundland Partnership:

Irish Legacy Project at The Rooms

The Irish Department of Foreign Affairs, the Newfoundland and Labrador Department of Tourism, Culture and Recreation, INP and IBP are supporting the establishment of the Irish Legacy Project at The Rooms Provincial Museum, Art Gallery and Archives (www.therooms.ca). 

The Irish Legacy Project will be a focal point for telling both the historical and contemporary stories of the Irish in Newfoundland. It comprises the development of a permanent exhibit for the museum, and the creation of an ancestral research workspace for the archives. It is expected that the museum exhibit will open to the public in September 2009.

There’s also a pretty good description of the project in the INP strategic plan for 2008-2010:

In 2007, INP became a partner in a major initiative titled the Irish Legacy
Project, which will establish a permanent exhibit at The Rooms Provincial Museum, Art Gallery and Archives in St. John’s. The exhibit will incorporate film, artefacts, maps, and text to describe the historical and present day relationship between Ireland and Newfoundland. It is envisaged that the establishment of this legacy project at The Rooms, will provide a focal point
for future culture and heritage projects and will assist the long-term sustainability of the Ireland Newfoundland connection. The core of the Irish Legacy Project will be a permanent exhibit in the provincial museum. To complement this exhibit, INP should continue to encourage art exchanges between the provincial art gallery and the Irish Museum of Modern Art, building upon a previous exchange in 2005.

You also won’t find anything over at the provincial version of the Ireland partnership.  There’s been no annual report from the Ireland Business Partnership since 2006-07 likely because the local website hasn’t been updated for the most part since late 2008. Even the “What’s New” section doesn’t mention the permanent exhibit, even though that page was updated in June 2009.

So what about The Rooms?

Funny thing is, you won’t find any reference to this exhibit on The Rooms’ website, even though the project has been underway since 2007  - at least  - and is apparently slated to open in September 2009.
This is really strange since in the museum world a permanent exhibit is a pretty big deal.  It’s basically the core of what the museum is supposed to represent.

You can see that by looking at two of the three permanent museum exhibits at The Rooms right now.  One is on the province’s natural history.  A second one focuses on aboriginal people in the province.  That pretty much follows on from the old Newfoundland Museum which combined a natural history museum and a human history museum in one pile.

A permanent exhibit that focused on one of the groups of European settler populations wouldn’t necessarily be the logical next step. Given the limited permanent space in the building, one might expect the next permanent exhibit to have a broader look at European history in the province with sections devoted to various aspects of that history.  The Irish would be there, along with the English – as the largest group – and the Norse, French, Basques and others.

An approach that emphasises diversity and the complexity of our history would also be in keeping with the provincial government’s own stated image of the province:

My Government will affirm Newfoundland and Labrador’s status as a distinct people, not uniform in lineage but multi-cultural, one nation inclusive of many nations living in harmony together.

Focusing in one one specific ethnic group - even one with as significant a role in Newfoundland and Labrador history as the Irish  - would be a pretty powerful political statement for one thing. 

Such a narrow exhibit would also run the risk of  providing a potentially distorted view of the history of Europeans in Newfoundland and Labrador complete with the stamp of museum authority.  That’s no small issue given the absence of a required history course in the provincial high school curriculum, for example,  and what appears to be a popular tendency to imagine or fantasize our history.

Then there’s that ancestral archives thing.  The provincial archives already get a huge chunk of business from people doing research into their own family tree.  Putting in some sort of dedicated genealogy workspace is a significant undertaking.  If the new workspace had an ethnic overlay to it, like say a special emphasis on the Irish alone, we’d be looking at a major alteration of the archives’ philosophy.

So with such a big thing in the works, it’s a bit peculiar that there has been so little public mention of it by the people behind the “legacy” project.

Let’s look a little deeper.

There is a reference to the project in The Rooms strategic plan (undated, but covering the period 2008-2011) tabled in the legislature in 2008.  It refers to completion of an undefined “Irish Legacy Project” by 2011, as one example of how the museum division will “have increased opportunities for the public to interact in a meaningful way with the history and visual arts of the province.”  Planning would be done by 2009.  The strategic plan doesn’t saying anything about this being a permanent exhibit.

There’s also a reference to the project in The Rooms 2007-08 annual report (tabled in February 2009 (!)):

…working with the Irish Business Partnerships and the Irish Newfoundland Partnership, and the Irish Department of Foreign Affairs, the Museum initiated the Irish Legacy Project. The project, scheduled to open in March, 2009, will result in an exhibition focusing on the historical and contemporary connections between Newfoundland and Ireland.

Again, there’s no definition of the project nor a reference to a permanent exhibit but we do have a new date:  March 2009.  Now that’s not a date for planning to finish, that’s a date for the thing to open even though a different timeline was given in the strategic plan.

Let’s go back to digging and see if there’s more somewhere else.

Forget the provincial government website.  There’s nothing there on it at all in the way of a news release or ministerial statement. 

Over at the Roman Catholic Archdiocese of St. John’s website you’ll find this bit:

The Archives of the R.C. Archdiocese will have a number of archival documents on exhibit in Talamh an Éisc – The Fishing Ground , an exhibition that introduces the Irish peoples who have been in Newfoundland and Labrador since the late 1600s, the exhibit explores the communities they built and celebrates the contributions they made to life here in Newfoundland and Labrador. The permanent exhibit will open in The Rooms on March 18, 2009. [Bold in original]

They even have a specific date, but no exhibit opened in March 2009, though.

But there’s that word “permanent” again.

This is all very peculiar.  Neither The Rooms’ strategic plan nor annual report are documents people are going to leaf through impatiently trying to find out what is coming up.  Even if you did, the language is so vague as to be impenetrable. 

Sure, the documents are publicly available but if no one from The Rooms or the provincial government highlighted the project, mentioning it in the annual report or strategic plan is as good as saying nothing about it at all.

And if the crowd at The Rooms were hopped up on this major project, you’d think they’d be mentioning it, letting us now how important it is, how much work it will involve, and generally trying to build up a bit of attention for it.  After all, a new permanent exhibit on the Irish in Newfoundland is no small venture.

And since both the archdiocese and the Irish government think this is going to be a permanent feature of The Rooms, it seems very strange there’s been not so much as the peep of a pipe or the lilt of a lyre about it.

This is all very interesting and very peculiar.

And it makes you wonder what is really going on over in the box the Basilica came in.

-srbp-

What’s sauce for the Harper goose…

So the Telegram has been waiting 18 months to get the resolution of an access to information request for files everyone knows exist but the Executive Council claims doesn’t exist.

Well, not exactly.

The President of the Executive Council  - i.e. the Premier - has admitted on a couple of occasions that “purple files” are real and that he gets them to help prepare for meetings and interviews.

The Telegram knows they exist anyway because one of the Premier’s officials accidentally let it slip in an e-mail.

But when the Telegram submitted an access request, the Executive Council’s official response was that there were “no responsive records.”  That’s bureaucratese for “the records don’t exist.”

Ed Ring, the provincial access commissioner, and his staff have been working on the Telly appeal of the Executive Council denial for 18 months with no end in sight.

The Telegram editorial today raises the issue again and notes that when faced with a similar bit of stonewalling recently, Ring’s federal counterpart publicly announced he’d be using his legal powers to simply enter the government offices and seize all the relevant documents.

Apparently just the threat worked in convincing the federal stonewallers to comply with the law and cough up everything:

Privy Council staff delivered some documents yesterday, the deadline set by Marleau, and promised to deliver the rest soon.

"(Privy Council Office) has already sent several packages of the requested files," Privy Council spokesperson Jeffrey Chapman said in an email yesterday. "We have also sent a proposed action plan to the Office of the Information Commissioner outlining when we will be able to send the working and final record sets to their office."

The Telegram suggests that Ed Ring do the same thing here.  Ring needs to look at the documents just to make the decision;  he doesn’t have to disclose them.

He’s got the legal powers just to get a look at them under the province’s own access laws. 

That’s good advice, especially given the current administration is evidently breaking the Premier’s own commitments from before the 2003 election.  In some instances, the delays, obfuscation and others refusals to disclose documents are exactly the opposite of what Danny Williams pledged to do when he went looking for the Premier’s job in 2003.

You’d think that just the fact that Premier Danny Williams is out of step with then-opposition leader Danny Williams  would be enough to nudge him to correct the problem. 

But if that doesn’t work,  maybe he should consider that – in essence – Danny Williams and his people are doing the same thing in Newfoundland and Labrador that Stephen Harper and his people are doing in Ottawa.

That can’t be good.

How could he ever talk badly about Stephen Harper again  - ABC and all that - when he does exactly the same things?

What’s sauce for the Harper goose is sauce for the Williams gander.

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‘Ethics and accountability’ report card

More than half not done despite 2003 commitment “to deal with them and begin to restore the public's confidence”

Of the 23 commitments made by the Progressive Conservative opposition on what a February 2003 news release termed “ethics and accountability”, 11 remain unfilled and in two instances, the action taken went against the stated commitment.

Amendments to the energy corporation act in 2008 and the research and development corporation act in 2009 both increased the restrictions on disclosure.

No action has been taken to impose six new, tougher restrictions on campaign financing.

No action has been taken to reduce restrictions on disclosure of cabinet confidences and no amendments that would “enhance the transparency of government actions and decisions.”

Of the 10 commitments actually met, one to impose significant penalties for breaches of the lobbyist registration act turned out to be nothing more than a potential one year de-registration.

At least two significant lobbying efforts were never registered.  One involved a multi-million dollar fibre-optic deal.  in another instance, officials of a tourist project now in bankruptcy protection claimed publicly to have been lobbying but never registered their activities.

In two others where action was taken, nothing appears to have been done to implement the commitment until the House of Assembly spending scandal became public.  The commitments – for a code of conduct for members of the legislature and  new administrative procedures on allowances  - were implemented in 2007 as a result of recommendations by Chief Justice Derek Green following his inquiry.

The policy commitments were made by then-opposition leader Danny Williams.  Ironically, Williams was accompanied at the announcement by Ed Byrne, currently serving a prison sentence for fraud and corruption.
Williams’ words at the time proved to be prophetic:

We've invited you here today to address what I see as one of the greatest challenges facing elected governments today. As a result of recent developments at both the provincial and national level, I firmly believe that the public is losing confidence in their elected officials. 

We've seen blatant abuse of office and taxpayers' money, allegations concerning conflict of interest, questions of fundraising contributions, and suggestions of impropriety during leadership conventions. These are very serious issues that are eroding the people's confidence in government.

Now, we can either choose to ignore these issues and continue with the status quo or we can attempt to deal with them and restore the public's confidence. I'm saying that it's time to deal with them and begin to restore the public's confidence.

Public confidence likely took a further dip with the revelations of what occurred in the legislature between 1997 and 2006.

Here’s a list of the commitments and notes on the actions taken or not taken.  The complete news release is at the bottom of this post.

Serial	Commitment	Action
1	“We will legislate maximum donations to candidates in Party leadership contests, nominees in Party candidacy races, and candidates in general elections and by-elections.”	No action taken.
2	“We will set out in legislation that the cash contribution to the party from an individual or corporation shall not exceed $10,000.”	No action taken.
3	“We will also legislate maximum expenditures by candidates in Party leadership contests, nominees in Party candidacy races, and candidates in general elections and by-elections.”	No action taken.
4	“Furthermore, we will require the full public disclosure of all donations to, and expenditures by, candidates in Party leadership contests, nominees in Party candidacy races, and candidates in general elections and by-elections.”	No action taken.
5	“With respect to Party leadership races, we will require that donations must be disclosed when they occur, and all expenditures must be independently audited and fully disclosed within three months after the election of a new leader.”	No action taken.
6	“We will also enact provisions governing the ownership of unused contributions donated to candidates in leadership races. These legislative provisions will ensure that all unused donations are returned to the donors”.	No action taken.
7	“We will amend the Elections Act to require that provincial elections be held on a fixed date every four years, or immediately if a government loses a confidence vote in the House of Assembly.”	House of Assembly Act amendment, 2004
8	“The legislation will ensure that, if the Premier resigns or the Premier's office is vacated within the first three years of a term, an extraordinary election will be held within twelve months and a new government will be elected to a fixed four-year term.”	House of Assembly Act amendment, 2004
9	“We will also amend the Elections Act to require a by-election to be called within 60 days of a vacancy and held within 90 days of a vacancy, so as to ensure that all Newfoundlanders and Labradorians are appropriately represented in the legislature.”	House of Assembly Act amendment, 2004
10	“We will establish a new procedure to provide for the proper auditing and disclosure of the expenses of Members of the House of Assembly.”	Significant new procedures were not implemented until after the disclosure of the spending scandal and not until passage of the House of Assembly Accountability, Integrity and Administration Act in 2007.
11	“We will amend the Access to Information legislation to enhance the transparency of government actions and decisions.”	Amendments to the Energy Corporation Act in 2008 and the research and development corporation act 2009 significantly reduced access to information related to these two bodies.  There have been no amendments to the ATIPPA to “enhance the transparency of government actions.”
12	“The Access to Information legislation proposed and passed by the Grimes government in 2001 (though it has not yet been proclaimed) allows the government to exclude a great deal of information from release to the public under the umbrella of "cabinet confidences". We will limit that exemption so more information that rightly belongs in the public domain will be accessible to the public.”	No action to limit the exemption. A request for disclosure of polling (specifically listed in the 2002 legislation as not being exempt from disclosure) was denied initially on the grounds it may disclose cabinet confidences.
13	“Also, the legislation will be changed so any information that continues to fall under the umbrella of "cabinet confidences" will be released earlier.”	No action taken
14	“We will enact changes to tighten up the exceptions to the release of information.”	Amendments to two other acts in 2008 and 2009 created new mandatory exemptions.
15	“We will remove provisions that allow the cabinet to override the legislative provisions of the Act by regulation at their discretion.”	No action taken.
16	“Finally, we will shorten the time lines for the release of information so information that rightly belongs in the public domain is available to the people of the province on a timely basis. Access delayed is sometimes access denied.”	No action taken.
17	“A Progressive Conservative government will commission a process of public consultation directly or through a special committee of the House of Assembly to develop appropriate and strict legislation for the registration of lobbyists operating in this province.”	Consultation took place in 2004.
18	“The primary objective of the legislation will be to establish a registry so the public can see by whom their Members and their government are being lobbied.”	Lobbyist Registration Act, 2004.
19	“The legislation will require that lobbyists report their activities. It may also require those who hold public office to disclose circumstances in which they have been lobbied.”	Lobbyist Registration Act, 2004. Public office holders are not required to disclose circumstances in which they have been lobbied.
20	“The legislation may require lobbyists to file their general objectives and/or their specific lobbying activities.”	Lobbyist Registration Act, 2004.
21	“The legislation may differentiate between those who are paid to lobby government and those who represent volunteer or non-profit agencies.”	Lobbyist Registration Act, 2004.
22	“The legislation will impose significant penalties for those who violate these provisions.”	The only penalty that may be imposed is the cancellation of a registration or the refusal to register a lobbyist for period not to exceed one year in duration.
23	“We will also ask the legislature to adopt a strict code of conduct for all Members, to be enforced by the Commissioner of Members' Interests, emphasizing their accountability to the wider public interest and to their constituents, and the need for openness, honesty and integrity in their dealings with the public, constituents and lobbying organizations.”	A code of conduct for members of the House of Assembly was included in the House accountability act in 2007 on the recommendation of Chief Justice Derek Green. Prior to the disclosure of the House of Assembly spending scandal, no action appears to have been taken on this.

-30-

Williams announces policies regarding
ethics and government reform

ST. JOHN'S, February 5, 2003 — Danny Williams, Leader of the Opposition and MHA for Humber West, today announced a number of policies regarding ethics and government reform. His speaking notes follow:


Good afternoon, and thank you everyone for coming out today. Joining me is Ed Byrne, our House Leader, and Harvey Hodder, one of our longest-serving MHAs.

We've invited you here today to address what I see as one of the greatest challenges facing elected governments today. As a result of recent developments at both the provincial and national level, I firmly believe that the public is losing confidence in their elected officials.

We've seen blatant abuse of office and taxpayers' money, allegations concerning conflict of interest, questions of fundraising contributions, and suggestions of impropriety during leadership conventions. These are very serious issues that are eroding the people's confidence in government.

Now, we can either choose to ignore these issues and continue with the status quo or we can attempt to deal with them and restore the public's confidence. I'm saying that it's time to deal with them and begin to restore the public's confidence.

To that effect, I am today announcing several policies to help modernize the electoral process and the day-to-day operations of the government in Newfoundland and Labrador. These policies concern three separate areas that can be classified under the following general headings: transparency in political fundraising, effective government, and regulation of lobbyists.

Each policy area was developed under the basic philosophy that the public has a legitimate right to be informed of their government's activities.

A. Transparency in Political Fundraising

Let's first look at transparency in political fundraising.

The Elections Act limits election campaign contributions and spending, and attempts to promote electoral fairness by allowing candidates to recover part of their campaign expenses from public funds.

However, the intent of the Act is undermined by loopholes that allow political parties to raise and spend unlimited amounts of money before an election is called, and permit unlimited contributions and spending on leadership contests.

A Progressive Conservative Government will amend the Elections Act to close those loopholes.

• We will legislate maximum donations to candidates in Party leadership contests, nominees in Party candidacy races, and candidates in general elections and by-elections.
• We will set out in legislation that the cash contribution to the party from an individual or corporation shall not exceed $10,000.
• We will also legislate maximum expenditures by candidates in Party leadership contests, nominees in Party candidacy races, and candidates in general elections and by-elections.
• Furthermore, we will require the full public disclosure of all donations to, and expenditures by, candidates in Party leadership contests, nominees in Party candidacy races, and candidates in general elections and by-elections.
• With respect to Party leadership races, we will require that donations must be disclosed when they occur, and all expenditures must be independently audited and fully disclosed within three months after the election of a new leader.
• We will also enact provisions governing the ownership of unused contributions donated to candidates in leadership races. These legislative provisions will ensure that all unused donations are returned to the donors.

The public is demanding transparency in the raising and spending of all funds related to the election of Party leaders, Party candidates and Members of the House of Assembly. It is our obligation and our commitment to deliver the transparency and accountability that the public is demanding.

B. Effective Government


We also have seen problems arise over timely elected representation. There have been numerous situations over the last few years in which the electorate has gone unreasonable periods of time without elected representatives. In fact, one district did not have representation for the entire Voisey's Bay debate, which was one of the most important debates that occurred in this province last year. We have an ongoing situation in which the Premier has governed the province for two full years despite the fact that the people of Newfoundland and Labrador did not have the opportunity to elect him. And we have situations in which individuals are not able to obtain information from their government because of countless restrictions and excessive wait periods. This is wrong.

A Progressive Conservative Government will address these issues decisively.

• We will amend the Elections Act to require that provincial elections be held on a fixed date every four years, or immediately if a government loses a confidence vote in the House of Assembly.
• The legislation will ensure that, if the Premier resigns or the Premier's office is vacated within the first three years of a term, an extraordinary election will be held within twelve months and a new government will be elected to a fixed four-year term.
• We will also amend the Elections Act to require a by-election to be called within 60 days of a vacancy and held within 90 days of a vacancy, so as to ensure that all Newfoundlanders and Labradorians are appropriately represented in the legislature.
• We will establish a new procedure to provide for the proper auditing and disclosure of the expenses of Members of the House of Assembly.
• We will amend the Access to Information legislation to enhance the transparency of government actions and decisions.
• Our legislative changes will clearly identify information that should be in the public domain, and will require full and prompt disclosure of the information to the public. The Access to Information legislation proposed and passed by the Grimes government in 2001 (though it has not yet been proclaimed) allows the government to exclude a great deal of information from release to the public under the umbrella of "cabinet confidences". We will limit that exemption so more information that rightly belongs in the public domain will be accessible to the public.
• Also, the legislation will be changed so any information that continues to fall under the umbrella of "cabinet confidences" will be released earlier.
• We will enact changes to tighten up the exceptions to the release of information.
• We will remove provisions that allow the cabinet to override the legislative provisions of the Act by regulation at their discretion.
• Finally, we will shorten the time lines for the release of information so information that rightly belongs in the public domain is available to the people of the province on a timely basis. Access delayed is sometimes access denied.

C. Regulation of Lobbyists


Another activity which must be brought forward for public review involves government lobbying. The governments of Canada and four provinces have enacted legislation requiring lobbyists to disclose their identities, their intentions and their activities. Since there is no such legislation in this province, the people of Newfoundland and Labrador do not know which individuals and groups are lobbying their government to make decisions that will benefit the lobbyists or those they represent. Disclosure reassures the public that their representatives' arms are not being twisted behind the scenes.

• A Progressive Conservative government will commission a process of public consultation directly or through a special committee of the House of Assembly to develop appropriate and strict legislation for the registration of lobbyists operating in this province.
• The primary objective of the legislation will be to establish a registry so the public can see by whom their Members and their government are being lobbied. It will not be our intention to impede free and open access to government by individuals and groups, but we will strike the proper balance through transparency and disclosure.
• The legislation will require that lobbyists report their activities. It may also require those who hold public office to disclose circumstances in which they have been lobbied.
• The legislation may require lobbyists to file their general objectives and/or their specific lobbying activities.
• The legislation may differentiate between those who are paid to lobby government and those who represent volunteer or non-profit agencies.
• The legislation will impose significant penalties for those who violate these provisions.
• We will also ask the legislature to adopt a strict code of conduct for all Members, to be enforced by the Commissioner of Members' Interests, emphasizing their accountability to the wider public interest and to their constituents, and the need for openness, honesty and integrity in their dealings with the public, constituents and lobbying organizations.

Conclusion


In conclusion, I firmly believe that people are losing their confidence and trust in elected government, and that must change. Our Party is committed to that. It is our intention to begin to address these issues and restore public confidence with these policies.

Freedom from information: lack of briefing notes for minister called “bizarre” by senior government official

An unnamed senior public sector manager has termed a move by government to eliminate briefing notes for ministers “bizarre”.

The official is quoted in a post by Telegram blogger Geoff Meeker.  The unidentified official spoke only on condition of anonymity.

“I don't think it's possible to keep up to speed without a briefing book,” said the person, who has worked at some of the highest levels of the public service.

“It will make it very difficult to understand, in retrospect, why certain decisions were made - very dangerous for the staff who must execute them and very problematic if one needs to retrace and do a course-correction on something that's gone off the rails. Without briefing books, corporate memory is very much reduced and future government decisions rendered more difficult.”

The comment came after another Telegram story (not online) in which Joan Burke, government house leader and minister of a newly created child, youth and family services department, said that she had received no briefing notes when taking over her new portfolio. Burke told the Telegram’s Rob Antle that

“I didn’t want to be handed a binder with 500 to 1,000 sheets of paper to try to determine what’s important and what’s not, and what’s current and what I need on my radar.”

As Meeker points out, Burke’s attitude may have little to do with what she described as her desire to get down to work.

Burke was embroiled in a controversy last year over the hiring of a new president for Memorial University.  Details of the minister’s involvement became embarrassing when the Liberal opposition office obtained copies of government records through the Access to Information and Protection of Privacy Act and provided them to local media.

The documents including e-mails and briefing notes that included questions for Burke to use during her screening interviews with the two finalists selected by the university’s hiring process.  Burke rejected both candidates.

Briefing notes have also proved embarrassing for other cabinet ministers.

A note prepared for Burke’s successor in November 2008 on financial implications of “autonomy” for Grenfell College from Memorial University, another controversial policy from Burke’s tenure in education, was virtually completed deleted before being released under the province’s open records laws.  While promised two years ago, there is still no sign of the enabling legislation.

During the Cameron inquiry into the hormone receptor scandal, health minister Ross Wiseman stated under oath that he had not read briefing notes on the issue when he took over the portfolio.  As CBC reported,

… Wiseman said he did not have the opportunity to read briefing notes about the cancer testing after he was sworn in as health minister, because he was busy tackling other pressing issues and preparing for the annual budget.

Opposition politicians have also claimed that ministers apparently no longer receive briefing notes to use in preparation for the House of Assembly.

Meeker’s public sector manager also described some of the concerns about the new policy which would see the elimination of any paper trail of documents and backgrounders for ministers. 

“Without briefing documents, the public can never really know what grounds decisions were made on - cutting the foundation out from under transparency and accountability, not to mention history - how will future generations understand the story of this government and this time without primary research sources?

“This puts a great burden on senior and mid-level public officials to keep good records in their own briefing books and black books. These would be accessible under ATIPP, but that leaves the paper trail with the officials, not the Minister. And if they don't keep good records, well - we all heard during the Cameron inquiry how difficult it is for these busy, busy people [cabinet ministers and political staff] to recall details from 6 or 12 months ago.”

That last point is particularly cogent:  at one point during the inquiry, an exasperated commissioner Justice Margaret Cameron commented that many of the witnesses seemed to have difficulty recalling anything at all. 

The premier's chief of staff, Brian Crawley, was sent an e-mail in July, 2005 that warned of a major story about to break involving breast cancer testing mistakes.

But Crawley testified he can't remember getting the e-mail or even talking to anyone in the premier's office — including the premier — about it.

"I really don't remember anything about those early days at all," he said.

Judge Margaret Cameron asked Crawley whether he remembered any of the events of July and he responded, "No."

"You don't remember seeing anything about this until the story broke in the Independent [Newfoundland & Labrador Independent newspaper] and you don't even really remember reading the Independent story," she said.

Crawley was not alone and that exchange prompted an angry premier Danny Williams to criticise Cameron over the remark, as cbc.ca/nl reported:

When Crawley answered one question about what he would have done in a situation, Cameron replied, "Well, I'm getting a lot of that, 'This is what I would've done,' but nobody ever remembers seemingly having done much."

On Friday, Williams fired back.

"I have to say I was disappointed. I was disappointed as I watched Madame Justice Cameron show disdain for a professional witness who was before her, giving testimony, honestly, forthright, under oath, to the best of his or her ability," Williams told reporters.

Meeker’s post and the comments by the unnamed official echo concerns identified in Donald Savoie’s recent book on the erosion of accountability at White hall and in Ottawa.

In Court government: the collapse of accountability in Canada and the United Kingdom, Savoie documents a similar practice of eliminating briefing notes and other official written documents in order to avoid the access to information laws.

In addition to the move to eliminate a paper trail, Savoie also notes concerns among politicians with whistleblower legislation as part of a larger trend away from government openness and internal and external accountability.

Savoie also points to the appearance of unofficial practices within the administration of government that are also designed to avoid disclosure under access to information laws.  For example, one study cited by Savoie found that requests from politicians and the media took longer to process than those from others even though there did not appear to be any particular difference in one request from another.   

Similar efforts by officials to skirt open records laws have already been noted in Newfoundland and Labrador.

For example, officials have invented a concept called non-responsive records to refer to documents which are apparently covered by an access request but which are not  released. One of the Burke e-mails on Memorial University, for example, includes a deletion marked “non-responsive” rather than use the official requirement to cite a specific section of the access law under which a deletion is made.

Perhaps the most notorious example was a claim that records did not exist even though the Premier and other officials acknowledged that they did.

In another case, access to documents was denied on the grounds that the review was ongoing.  The request had not been for a final report but for documents relating to the study and an accounting of its costs.

Officials have also been able to avoid disclosure based on questionable claims about the scope of the request.

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Williams afraid of whistleblower law

Forget all the excuses offered by cabinet ministers before about a whistleblower protection law being complex.

The real reason the provincial government hasn’t introduced whistleblower protection legislation as promised by the Premier is because the Premier is worried about what happens afterward.

Danny Williams told reporters on Friday he wants to make sure the law isn’t used by people who have “a personal vendetta against government.”  You’ll find that quote in a Telegram story from the Saturday edition that sadly isn’t on line.

Williams promised whistleblower protection two years ago during the last provincial general election campaign.  He apparently promised it swiftly suggesting it would turn up in the first session of the new legislature. 

In his report on the House of Assembly spending scandal, Chief Justice Derek Green called for whistleblower protection.  Green described such protection as “internal [government] policies designed to encourage internal enforcement of ethical behaviour.” 

Green linked disclosure to public confidence in government and cited federal legislation introduced in the wake of the sponsorship scandal. Green also linked whistleblower protection with open records laws as a means of promoting public confidence in ethically sound government.

Two years after Green’s report and Williams’ promise and three years after the House of Assembly scandal first broke, there’s no whistleblower protection laws.

Williams linked whistleblower protection to access to information laws but not in a positive way.  Williams told reporters that his senior staff are consumed with vetting access to information requests Williams termed “frivolous”.  He said he was concerned that whistleblower protection could “create another situation where we're going to put a stranglehold on government.”

Whistleblower statutes like the one proposed by Bond Papers specifically define the types of incidents covered by the disclosure and provide a mechanism for investigation allegations by an independent third party. 

Under the Bond Papers bill, based on the 2006 Manitoba public interest disclosure law, the legislation would apply “to the following wrongdoings in or relating to the public service:”

(a) an act or omission constituting an offence under an Act of the Legislature or the Parliament of Canada, or a regulation made under an Act;

(b) an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment, other than a danger that is inherent in the performance of the duties or functions of an employee;

(c) gross mismanagement, including of public funds or a public asset;

(d) knowingly directing or counselling a person to commit a wrongdoing described in clauses (a) to (c)…

There is no room for a personal vendetta.  The acts subject to disclosure are all in the public interest and it’s hard to see how anyone could consider disclosure of such lawbreaking as part of a personal attack by the whistleblower. of course, attacking the motives of the whistleblower is part of the climate frequently used to discourage disclosure in the first place.

The draft law allows for disclosure of wrongdoing to an official designated in each department or to the Citizen’s Representative.  Green used the Manitoba legislation in drafting his report.

Green noted the potential that whistle blowing laws could lead to some risk for politicians.  However, Green said that a thorough and independent investigative process “should, however, screen out unfounded allegations of a vindictive nature.” 

Green also said the public value of restoring confidence in government outweighed such issues:

I do not believe that a concern of this nature is sufficiently strong to overbalance the other benefits of implementing such a policy, particularly the removal of public suspicion that MHAs have something to hide and the bolstering of public confidence in the open and transparent nature of the political system.

Williams disdain for public access to government information isn’t new.

Early in his administration, Williams tried to withhold polling results even though provincial open records law specifically listed them as being subject to disclosure.

More recently, government officials successfully stymied a request for e-mails by essentially inventing excuses based on how much information was covered by the request and how much time it would take to process the request.

In another example, requests for specific documents were denied on the grounds that the documents didn’t exist even though government officials acknowledged the records actually did exist.

In that case, Williams went so far as to call personally the reporter making the request to complain about the fact the request had been appealed to the province’s information and privacy commission.

In January 2009,  a survey by the Canadian Newspaper Association showed that the provincial government didn’t fully respond to any of six specific information requests used in the study. A request for information in electronic format (Excel or a similar spreadsheet program), netted a bizarre but increasingly typical response:

The letter from the Transportation and Public Works department in Newfoundland stated that the information “does not exist in electronic form within this department,” even though the record released was a computer printout.

The provincial government is also sitting on information related to a review of inland fisheries policy that has been ongoing for an unknown period.

Even requests for information not handled through access to information laws have run into stone walls.

The natural resources department refused to answer questions about compensation talks with Abitibi over expropriated assets because there were compensation stalks with Abitibi over expropriated assets.

The same department also refused to give any details of the minister’s trip to Ottawa last winter.

As for the claim about how much time is consumed vetting requests, testimony last year at the Cameron inquiry into the breast cancer testing scandal revealed that some of the reasons staff spend so much time on access requests involves vetting public information. 

In one notorious example, the name of a judge presiding over a case which had been reported in the news media was redacted for an access request. The same approach came to light in a report on the provincial prisons service only because government officials mistakenly released a copy of the document electronically with faulty redactions.  None of the information blacked out actually met the disclosure exemptions under the provincial access law, but they were blacked out any way.

If there is a “stranglehold” on government, it seems to be coming from intense and persistent efforts to avoid public disclosure of government information under provincial laws.  Adding whistleblower legislation wouldn’t add to that and the provincial government itself can avoid getting strangled by reducing its self-imposed efforts at secrecy.

Perhaps they should take a cue from Chief Justice Green.  After all, he did say that implementing open records laws and protecting whistleblowers would bring benefits, “particularly the removal of public suspicion that MHAs have something to hide.”

All the foot-dragging and such does make one wonder.

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Update:  The online CBC version of the story with a link to a David Cochrane report.  This is by no means as complete as the Telly story and the interpretation is more than a bit generous to the Premier.  His juicy quotes about access to information, for example,  are clipped in favour of his throw-away line about how important ATIPPA is.

Compensation talks? We dun need no stinkin’ compensation talks

Apparently compensation talks between the provincial government and AbitibiBowater have broken off.

When they broke off no one knows since natural resources minister Kathy Dunderdale didn’t say and apparently no one asked. Talk about freedom from information.

But were they ever on in the first place?

According to AbitibiBowater chairman David Paterson, the only “talks” involved Abitibi and the provincial government’s energy company, NALCO.

Still, he said, the process is very one-sided. "[It] basically consists of Newfoundland telling us what they are going to do and we have to comply."

He said the expropriation legislation does not give the company any right to a judicial hearing. As a result, the determination of value "is at their whim."

Read the comments on the CBC story linked above though and you’ll see a bunch of people who don’t appear to have thought all this through.  Telling Abitibi to take nothing doesn’t real solve anything, especially if the company winds up in bankruptcy protection or  - worst of all – goes under entirely.  There are a bunch of pensioners in Newfoundland and Labrador with a financial interest in this. Then there are the loggers who have been looking for some sort of severance package even though their union contract didn’t provide anything of the sort.

These sorts of details make the last sentence of the CBC story a bit odd:

While AbitibiBowater has no legal obligation to pay any severance at all, the government has been pressuring the company to pay it anyway as it did when it closed its mill in Stephenville.

Since the company doesn’t have any interest left in the province and the provincial government seized all the company’s assets, exactly what sort of leverage the provincial government might have over AbitibiBowater is a bit hard to see. maybe the only people who will wind up with “nuddin” - to quote one person who commented on the CBC story – will be the mill’s former workers.

Environmental trade-offs update:  Just for those who haven’t been following along closely, the provincial government had intended from the outset to bargain based on a trade off between the environmental clean-up at the mill site and the hydro assets.  The Telegram version of the story makes reference to this without giving that bit of background:

She also said the discussions included severance packages for loggers and the companies environmental liability of its operation.

Basically, the idea is that the money paid by the provincial government would be reduced by any amounts forked over for clean-up and severance.  Now aside from the fact the provincial government has no leverage over AbitibiBowater on the severance, it surely must strike someone as odd the provincial government would tie these things together in this way.

After all, the company is liable for the clean-up any way.  They could also be pressed on a moral obligation to provide some severance package to loggers even if their union hadn’t been able to secure that benefit.

But linking those payments to compensation basically seems to make the provincial government out as the source of the cash.  The company won’t be paying any money for clean-up or severance under this scheme.  The cash will come out of public funds.

And if the company goes bankrupt, as some seem to wish for, the provincial government will essentially be left holding the entire bag.

So what exactly was this expropriation all about, again?

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Freedom from information: the federal case

The federal information commissioner released his report card today on the performance of federal departments under the access to information law.

Six of 10 departments sampled failed to meet the minimum standard. The commissioner identifies reasons for these failings, mostly having to do with staff and resources.

Some of the issues faced by applicants will be familiar to anyone who has tried to use the access laws in Newfoundland and Labrador to garner information held by the provincial government.

While the federal problem appears to be one of resources, what is happening locally is an entire culture that is oriented toward preventing disclosure.

Officials do not merely seek to ensure that records that ought not to be released under the law (mandatory and discretionary exemptions) are withheld.

Instead, they seek to avoid releasing any information which government does not wish to release for reasons that go well beyond the ones provided in legislation.

It started in 2003-2004 with the Premier's insistence that government would not release public opinion polls.  The law was explicit on the subject: polls could not be withheld.  He ignored the law and only finally relented under considerable public pressure.

In subsequent examples, officials have simply invented ways of frustrating applicants and preventing disclosure.  Informal means of accessing information don't exist.  They have simply been abolished. One can only access information by filing out a form and paying money up front.

Even then, there is no guarantee of getting information even if the applicant knows the information exists and asks for it specifically. The Telegram’s request for purple files are a case in point.  The department simply determined they will not provide the records and claims that there are no records they will release on the request.  There are no “responsive records”, as they put it using that notion found no where in the province’s access laws.

It's pure contrivance, pure fiction.

The intent of the officials is unmistakable, however.  They simply do not wish to comply with the law as passed by the legislature.

In some instances the excuses are laughable.  Officials provide a computer print-out of the requested information yet deny that the information is stored electronically.

Departments are able to act outside the law since they do so with the consent - implicit or explicit as the case may be - of the politicians in charge. This seems patently obvious but it bears pointing out: if the people in charge did not sanction the approach to access requests being taken, they would change it.

Take, for example, a request for information on an administrative review that was never publicly announced.  The minister responsible uses an invented excuse to deny access:  the information cannot be released because the review is not completed. One would be naive to draw any conclusion but than that the politicians have something there they do not wish the public to see.

In Ottawa the freedom from information problem requires money to fix.  In Newfoundland and Labrador, any changes to the freedom from information problem will require something much more difficult to bring about:  a change in some people’s attitudes.

When that might occur is anyone’s guess.

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Freedom from Information: The “secret” inland fisheries review

Former Provincial Conservative cabinet minister and retired supreme court judge Bill Marshall has been conducting a review of the province’s inland fish and wildlife enforcement program but there have been no news releases about the project. 

The only reference to the review on the government’s website is in a question last fall from opposition House leader Kelvin Parsons on December 17, 2008, the last day the House sat before Christmas:

Mr. Speaker, after receiving information from a concerned citizen, our office submitted an Access to Information Request regarding the William Marshall review of the Inland Fish and Wildlife Enforcement Program. Executive Council withheld most of the information and we were forced to appeal to the Information and Privacy Commissioner. He recommended the release of the information in accordance with the legislation, yet government is still hiding these documents. It has been eight months and this issue is still not resolved. [Emphasis added]

I ask the minister: Why is government withholding significant amounts of information related to the Marshall review?

The information on the review turned up when your humble e-scribbler started searching the Internet for any references to the subject of what initially appeared to be a  routine decision by the province’s information commissioner on Monday. 

The inland fisheries program falls under the justice department but for some reason the access to information requests was handled by the government’s central bureaucracy.

In the decision, information commissioner Ed Ring summarised the initial access to information request as follows:

Under authority of the Access to Information and Protection of Privacy Act (the “ATIPPA”) the Applicant submitted an access to information request dated 18 April 2008 to Executive Council (the “Department”), wherein he sought disclosure of records as follows:

“I am requesting under the Access to Information Act information related to [author’s name] review of the Inland Fisheries and Wildlife Enforcement Program. This request includes:

- the budgeted amount of the review.
- travel and entertainment expenses by [the author]
- all documentation related to this review.”

The identity of the applicant and of the individual conducting the review were withheld by Ring in keeping with the privacy sections of the province’s access to information law.  Both are revealed in the transcripts from the House of Assembly.

There is no indication of the scope of the review or of when it started. The Executive Council withheld large portions of the record citing several sections of the access law. The opposition office appealed the Executive Council’s decision to withhold the sections.

Executive Council also withheld information on the basis that the review was not completed.  Justice minister Tom Marshall gave that reason as his answer to the question posed in the legislature.  The applicant did not seek a copy of the final report specifically nor did its request – as quoted by the information commissioner – relate solely to the report.

Ring rendered his decision Monday, noting the excessive delay in responding to the opposition office appeal was due in large part to problems getting a response from the Executive Council official responsible for co-ordinating access to information requests.

Part of the delay was apparently due to a staffing change at Executive Council.  However, between August and October, the information commissioner’s office had little success in getting the new co-ordinator to respond to efforts to resolve the appeal informally.

In his decision, Ring accepted that some of the deletions in the documents sent to the applicant were legitimate.  Others were not.  Reference in an e-mail to the fact that cabinet had reached decision on an unspecified matter was deleted in its entirety citing the section of the act that requires information be withheld if it can revealed advice, deliberations of cabinet or policy recommendations.

In other instances, entire paragraphs were deleted from documents on the grounds they contained personal information.  Ring noted that the privacy section of the legislation  - section 30 - could have been satisfied by merely deleting the names of certain individuals or other specific information.

The most curious part of Ring’s decision comes in a discussion of something referred to as “non-responsive records.” Ring noted:

Finally, the Department has identified some records as not being responsive to the Applicant’s request. The Applicant’s request was very broad, and access was sought to “…all documentation related to this review.” It appears to me, that some of the information that was considered non-responsive and thus not provided to the Applicant could fall under this broad request, in that it might be considered to be related to the review. For example, any information that was provided to the author or discussed between government officials as a result of the review is, in my opinion, responsive to the request, and should therefore be provided to the Applicant (subject, of course, to any appropriate exceptions).

Neither the access to information law nor the government’s access to information policy manual contain a definition of  “responsive” or “non-responsive” records.

The terms come up frequently in reference to access requests but they appear to be inventions of government officials. They have no legal meaning since they are not in either the access law or the regulations.  However, they are so common-place that everyone has come to use them.

For example, a Telegram inquiry about purple files used in the Premier’s Office in preparing for media interviews yielded the official response that there were “no responsive records.” The Telegram learned of the files when a reporter received a copy of an e-mail from a government communications official asking for purple files to be prepared for the Premier. The premier himself confirmed that such files were routinely prepared for him as part of interview preparation:

"When I am provided with a personal file it's an information file to get me ready for an interview with the press," he told reporters at the news conference. "It is not the down and dirty on you or you or you or anybody else."

In the inland fish review case, it really isn’t clear how Executive Council officials could identify documents or information that related to the review and yet were “non-responsive” to a request for “all documentation.” On the face of it, it seems that officials have invented entirely new categories of documents and information that serve only to further stymie efforts to access information under provincial law.

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Freedom from Information: Nat Res Two-fer Thursday

The province’s natural resources department had rough day Thursday when it came to answering straight questions with straight answers.

As Dunderdale herself might say, the openness “piece” was missing, “big time.”

First, there was the bizarro refusal by a department spokesperson to discuss anything to do with the expropriation compensation process because there was an expropriation compensation process.

Then the Telegram had more on the recent trip by natural resources minister Kathy Dunderdale to Ottawa.  Readers will recall the minister – also the deputy minister – turned up in the gallery of the House of Commons this week.  She got a courtesy acknowledgement from the Speaker.

There’d been no public release that she would be in Ottawa so her sudden appearance raised a few eyebrows.

Dunderdale was attending a meeting of federal and provincial ministers responsible for agriculture. She ducked out of the obligatory team photo at the end claiming she had other meetings.

She did manage to find time to scoot to the Commons though.

Other than that, all her department spokesperson would say is that she “took the opportunity to meet with a number of federal ministers who were available while she was there on issues pertaining to Newfoundland and Labrador and that is the extent of it. She is not commenting further."

No further comment.

It’s becoming the departmental mantra.

Turns out – according to the Telegram’s Rob Antle – that Dunderdale met with federal natural resources minister Lisa Raitt and the province’s representative in the federal cabinet, Peter Mackay.

MacKay's communications director, Dan Dugas, confirmed that MacKay and Dunderdale discussed a variety of issues, including unemployment in central Newfoundland. The AbitibiBowater paper mill in Grand Falls-Windsor is expected to shutter within days, throwing hundreds out of work.

That “shuttering” turned out to be today, incidentally.

As the Telegram notes, Dunderdale’s mission to Ottawa comes shortly after the Premier’s latest Equalization tirade. Maybe they kept her trip quiet in order  to maintain the appearance that things are still tense between the feds and the province.  Maybe they kept their lips zipped at natural resources to avoid building up any expectations that Dunderdale might find some way to ease the tensions or even come up with the missing $400 million from the federal budget Dunderdale’s boss had been banking on.

All in all, the whole thing is a wee bit odd.

At least Dunderdale and her handlers learned a lesson.  When in Ottawa don’t take the minister to hang out in the visitor’s gallery of the Commons. 

Leave that job to the Premier’s personal emissary, a.k.a. Our Man in a Blue Line cab.

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Freedom from information: no comment on process because the process exists

On January 8, your humble e-scribbler sent an e-mail to the natural resources department seeking some clarification of issues related to the Abitibi expropriation in December.

One of the questions sought clarification of the expropriated hydro assets:

5.  The legislation is explicit in section 5 in that the water rights, land and assets of both Star Lake and Exploits River partnership are forfeit to the Crown. Section 7 voids all the agreements and licenses associated with those projects.

At the same time, the Premier indicated in the scrum outside the House that Fortis, for instance, would continue to "maintain ownership".

Those two things can't exist in the same space.  If the Crown has expropriated the assets of the projects, the former proponents can't still have ownership of those assets.

Are you able to clarify this for me: Who owns the expropriated assets - dams, generation equipment, transmission facilities etc?  A written statement is fine or if there is someone I could speak with, then I am at your disposal.

The response – received yesterday – was that the department would offer no comment beyond what was in the public domain already since compensation discussions are outstanding.

Nothing.

Zip.

Zilch.

So who is the government in compensation discussions with? went the reply.

No further comment beyond what is the public domain came the response.

Fascinating.

Confusion is preferable to information.

And…

Denying comment because of “outstanding” compensation talks isn’t comment – now we know there are outstanding talks – but actually telling the public if talks are underway, who is party to the talks and all the other stuff that logically flows from the fact that you just confirmed talks exist or are at least “outstanding” is comment…

and is therefore verboten.

Surely the parties to the talks know they are talking or going to talk.

So finding out that they are in talks wouldn’t come as a surprise to them nor would it materially affect the talks to say something even as ambiguous as “the companies subject to the expropriation” when asking who was talking or with whom talks were outstanding.

Surely the parties to the talks – whoever they might be – know the issues well enough such that clarifying the discrepancy noted in question five wouldn’t actually affect the compensation talks.  For instance, if Fortis, Sun Life and others actually still do own stuff supposedly expropriated – as the Premier himself said - then they wouldn’t be party to the compensation talks because there’d be nothing to compensate them for.

And just to give a sense of how straightforward the questions are, here are a couple of others the government won’t comment on because of the outstanding talks:

6.  Bill 75 does allow cabinet to enter into arrangements (permissions and licenses) for the use of the assets.  Has this taken place?  If yes, what are the arrangements, with whom etc, for what term etc?

7.  Under section 10(2), persons affected by the expropriation of Schedule C assets are entitled to compensation in  a manner determined by the LG in Council:

-  Has the provincial government received representation from any parties for compensation under this section?

-  If so, who are the parties?

-  Has the LG in C  determined a manner for compensating parties affected by the hydro expropriations?

Factual questions about the process can’t be answered because the process exists.

And a government that prides itself on being open, transparent and accountable prefers confusion to factual information about a major public issue.

You just can’t make this stuff up.

-srbp-