When rights are annoying #nlpoli

There’s something about this frivolous and vexatious thing that caught people’s attention right from the start.

Under the provincial Conservatives’ new secrecy laws, a cabinet minister can refuse to disclose information if he or she thinks the request is “frivolous or vexatious”. (sec. 43.1)

Leave aside the idea that a politician gets to decide on who gets information and who doesn’t.  As we learned from the Cameron Inquiry, Danny Williams and his political staff vetted access to information requests and blocked stuff they didn’t want to hand over or blocked people they didn’t want to give stuff to.  The law didn’t matter.  They refused.  They stonewalled.  They used every other trick in the book.

But that’s a whole other issue.

Let’s just look at this curious choice of words and see what they reveal.

Your Law School called… #nlpoli

The more they talk, the worse it gets.

In the House of Assembly on Thursday, justice minister Felix Collins gave some examples of what he would consider "frivolous and vexatious” requests for information.

Now before we go any further, we should explain what those words usually mean to lawyers.  After all, Collins is a lawyer so he should understand the concept.

This definition is taken from a 2010 Ontario Court of Appeal decision in a case called Pickard v. London Police Services Board (canlii.org via Morton’s Musings):

[19]  A frivolous appeal is one readily recognizable as devoid of merit, as one having little prospect of success.  The reasons may vary.  A vexatious appeal is one taken to annoy or embarrass the opposite party, sometimes fuelled by the hope of financial recovery to relieve the respondent’s aggravation.

One of the examples, Collins gave was of a person who asked for copies of e-mails sent and received by seven people over the course of year.  Frivolous and vexatious harrumphed the law school graduate. And now under Bill 29 a cabinet minister can dismiss such a request out of hand and save time and money.

There are a few problems with Felix’s example. 

And that was the point, Felix #nlpoli

Justice minister Felix Collins and his colleagues are having a bad week.  Felix and his buds want to limit public access to government information. They want to make it harder for people to find out what they are doing with public money.

People don’t like it and they’ve been making that clear to them.

Felix and his friends got especially angry when an assessment of their new secrecy rules showed that what Felix and company were claiming wasn’t true.  far from being a model of openness, transparency and accountability, the Conservatives were taking massive steps backward.

So infuriated did the Conservatives get that they issued a statement late Wednesday night taking issue with the CBC report.  The statement.  It read, in part:

The Department of Justice has reviewed the global ranking of countries assembled by the centre. What the news story does not make clear is that most countries that ranked the highest or strongest on this list are third world countries. Many of these countries are listed on travel alert watch lists, have known human rights abuses and high crime rates.

So?

The Vanished Records #nlpoli

Under changes to the province’s access to information law, briefing notes for cabinet ministers will be kept secret for five years.

Sounds like it might make some sort of theoretical sense.  Wait five years and then you can get the briefing note a minister used.

That’s hardly too much to ask, especially if government officials are just too busy to handle all those troublesome requests for information.

Great.

Well, what if the records don’t last that long?

The Secrets Policeman’s Bollocks #nlpoli

CBC demolished the false claims a couple of Conservative cabinet ministers made in order to justify their efforts to destroy the public’s access to government information.

Justice minister Felix Collins claimed that they had to cut down the number of information requests, which he said numbered in the thousands each year.  Service NL minister Paul Davis said in the House of Assembly: “"You know, they make countless and countless requests for information…”.

You would fight against disclosure too… #nlpoli

Rarely does one cabinet minister put on not one or two spectacular displays of incompetence in one session of the legislature, but justice minister Felix Collins has done that this spring in less than a month.

Freedom from Information: the sorry Connie legacy #nlpoli

“We will amend the Access to Information legislation to enhance the transparency of government actions and decisions.”

Danny Williams, Leader of the Opposition, February 2003

There truly is a greater fraud than a promise unkept.  That would be the promise that is consciously and deliberately broken.

In February 2003, the provincial Conservatives – then in opposition – pledged to increase public access to government information.  The latest round of changes to the provincial access to information law suggests they are continuing their practice of hiding as much information they can.

Here are some examples of the sorry provincial Connie legacy of Freedom from Information:

• Ignoring the Black Letter (2005) In 2005, the Tories ignored the black letter of the access law and tried to hide public opinion polls.
• Aural is moral:  (2009)  Paul Oram didn’t have briefing notes, then he had ones with someone else’s name on them and then it didn’t matter because he quit politics.
• Oil Royalties (2009) 
• The Secret Inland Fisheries Review (2009)
• We can’t talk about the process because there is a process. (2009)
• Thousands for public speeches (2009)
• Schrodinger’s Purple Cat: (2010)  files that existed and didn’t exist at the same time.
• Tories hide spending documents from Auditor General (2012)
• Update – Williams afraid of whistleblower law
• Update – Tories hide spending documents from Auditor General
• Update – Privacy commish sues Dunderdale gov over “political” e-mails on gov comps, phones

-srbp-

The old victim ploy #nlpoli #cdnpoli

In a scrum on Friday, Premier Kathy Dunderdale decided to attack the Telegram’s editorial writer. 

She attacked the paper for things the Friday editorial did not say.

For good measure she claimed that she would now suffer further attacks from the newspaper in retaliation for her comments.

For anyone who read the editorial, she was full of crap.

Obviously full of it.

Painfully, blatantly, obviously full of it.

Just like the editorial painfully skewered the Premier and her administration for stuff they did and the implications of it.

Since the Premier was so obviously full of crap in her scrum, there are only a few possible explanations:

• She didn’t read the editorial but relied on a summary by the best experts available..
• She read it but didn’t understand it.
• She didn’t read the Auditor General’s report but relied on a summary prepared by the best experts available.
• She read the AG’s report but didn’t understand it.
• She didn’t read the letters that went to the AG but relied instead on what the best experts available told her they said.
• She read the letters but didn’t understand them.
• Stung by the truth of the editorial and the damage she’s done to her own credibility, she decided to play the victim card and make herself out as the aggrieved party.

That last one is a rather calculated, cynical ploy but at least it is the only explanation that doesn’t make the Premier out to be lazy or stupid.

Take your pick.

The only thing we know for sure is that the Premier wasn’t right.

- srbp -

Tories hide spending documents from Auditor General #nlpoli

The culture of secrecy that is Danny Williams’ legacy in provincial politics is firmly institutionalised. The provincial Conservative’s war against oversight and adequate oversight of their management of the province’s finances now extends to withholding information from the province’s Auditor General.

When the province’s Auditor General went looking for the Conservative’s oft-mentioned infrastructure strategy, he found out they didn’t have one.  You’ll find that gem in the first few pages of the latest report from the Auditor General on how the provincial government spends public money.

A committee of officials was supposed to develop the strategy.  While they didn’t do that, according to the AG, the group did produce a draft “report”.  But the draft report was never finalized.

When the auditor general’s officials started contacting departments to get information on capital works spending, they ran smack into a legal roadblock. The departments refused to release the information to the Auditor General and cited the provincial Access to Information Act as justification. The documents would reveal cabinet deliberations  according to justice department lawyers, and as such they couldn’t turn them over to the Auditor general.

The access to information laws were never intended to cover officials like the Auditor General.  You can tell that because of the way the law is worded.  The purpose of the Act is to make public bodies more accountable to the public by providing the rules under which the public may obtain information held by government and its agencies.

Members of the public – known as applicants in the Act – apply as set out in Section 8. Under section 18, heads of department must refuse to disclose cabinet documents to applicants. 

But the Auditor General?  Not a person as defined by the Act or an ordinary member of the public.

As such there wouldn’t be a conflict between the access law and the Auditor General Act.

The AG’s got his own legal opinions and they pretty much wind up in the same place:  there’s no legal reason for the provincial government to hide information from the AG. Unfortunately, he and his lawyers have taken the weak premise of accepting that the access law actually governs the AG in the first place.

And all the AG has done is filed a report with the Tory-dominated House of Assembly.  That might make the upcoming session interesting and tense but it doesn’t settle the legal issues.  The AG needs to take it downtown and drag the attorney general in front of a judge.

Now this is not the first time the provincial government has misused the access laws to keep information from the public or other officials.  In fact, the current administration is notorious for its efforts to hide information from the public. Around these parts, SRBP likes to call it freedom from information.

In fact, in the seven years SRBP has been around, this sort of stuff is part for the course.

No strategy.

No documents.

No audit.

No surprise.

- srbp -

Accessing more government information #nlpoli #cdnpoli

The Telegram editorial last Thursday (December 8), complained about the practice some government departments use of releasing access to information requests from one media outlet to all outlets.

The trigger for the editorial was a decision by Nalcor Energy to release salary details on it senior executives to all the local news media even though the initial request came from just one media outlet.

Part of the problem for media outlets is that – as the Telly notes – “access to information journalism is neither easy nor cheap. Requests take months to come to fruition and can cost hundreds (and sometimes thousands) of dollars.”

When the agency releases the information to everyone free of charge, the media outlet winds up taking a gigantic financial hit in addition to just getting scooped on a story.

It’s all true.

To be frank, one of the reasons a government department or agency would release information like that is to take control of the story away from the particular news room.  By releasing the information generally, the department or agency can ensure its version of events, its side of the story, gets out there without the particular filter applied by the news room that originally pursued the story.

It’s not “petty revenge” as the editorial describes the practice.  It’s called protecting your interests and your reputation.  In dealing with  some “news” organizations, it would be called common sense.

There’s no news in reporting that government departments handle media and opposition party access to information requests differently from those from ordinary mortals.  There are even academic studies that show just exactly how some federal departments have done exactly that and the reasons behind it.

The Telly editorial writer finishes off with a worthwhile suggestion:

if releasing specific access claims is really an example of accountability, release them all, including information requested by private citizens, businesses, unions and law firms.

The Department of National Defence has been doing something like that for the last decade and then some.  The current DND web page on access to information requests goes back to 2006, but your humble e-scribbler has been using it, on and off, for a decade or more.

A chart of the web page lists the request number a description of the request and the outcome.  You can find released information by year and month.  All you’d have to do in order to receive the same information is contact the department and pay the costs of copying and mailing, just as you would have done if you’d asked for the information yourself.

Scan the list and you can see information requests that came from one newsroom or another.  You’ll see requests from private individuals, researchers and, in some instances, from companies providing temporary employees or other contract service to the department.

If you want to get a sense of the scope of the access to information challenge in a department like National Defence, you can check out a 2000 article by then Lieutenant Colonel Brett Boudreau in the Canadian Military Journal.  Boudreau notes that the number of access requests went from 67 in 1983-84 to more than 1,000 by 1998-1999. 

But within that number, one of the recent reports Boudreau mentions was a 35,000 page report that took six months to review and “sever” for information that had to be withheld under access laws.

Automatically releasing  - that is distributing - all access requests would be practically very difficult, even in an age of scanners, pdfs and the Internet.

But providing a list of access requests that are available?

That’s certainly possible.  More federal departments would probably consider it as a practical approach to the administrative demands of access to administration. 

That’s the federal government, though, where access to information is a well-established system.

In Newfoundland and Labrador, they’d have to accept the idea of public access to information in the first place.

- srbp -

Long awaited report still under wraps

The Danny Williams administration hired former Supreme Court Justice Bill Marshall to do a couple of reviews for them.

In 2005, they asked Marshall to review inland fisheries enforcement.

In 2008, the opposition asked about the report in the legislature.

They didn’t get much of an answer three years after Marshall started his work.

On Tuesday, justice minister Felix Collins got another question in the House of Assembly on the missing report.  Here’s what he said:

we received the report from Justice Marshall some time in late fall 2010. I am not sure of the exact date. In November or December, I think it was. I would have to check my notes on that.

Five years later.

Must be quite the tome.

But wait;  it gets better.

Collins explained that “because of the merger of wildlife and inland fish at this point in time and the transition that is going, we are still considering the report in that context.”

In other words, because the situation Marshall was supposed to report on five years ago doesn’t exist any more, we may have to think about this all again.

And for good measure, Collins tossed in this gem: 

We will release the report or the information from the report in a timely fashion.

This administration came to office in 2003 with a pledge to release reports within 30 days.

It took Bill Marshall five years to submit the report.

Collins has had it for more than five months.

And he still can only say he might just release some information from the out-of-date report at some unspecified time in the future.

Yes, friends, this is what Collins and his boss think counts as open, transparent and accountable.

Oh yeah, update:  There’s no word on whether Marshall finished the report into the prosecution service. That one’s been underway since June 2006.

- srbp -

Freedom from Information: Not exactly the news

For starters, there is no news in telling us that the provincial Conservatives are not delivering on their promised whistleblower legislation in 2010.

Thanks, CBC, for that bulletin.  Maybe we can get an update on that Lindberg guy flying the Atlantic next.

What really stands out in this bit of non-news from the provincial legislature’s extremely short fall sitting is what the mighty Ceeb tells us about Danny Williams and this bit of legislation.

Williams committed to bringing in whistleblower legislation during this term in office, but would not specify when the public might expect to see it.

There’s no question Williams promised it.

There’s also no question he promised it for the very first sitting of the legislature after the October 2007 provincial general election.

Here’s what the Telegram reported on October 7, 2007 [quoted at labradore]:

Progressive Conservative Leader Danny Williams pledged Saturday a new Tory government will implement whistleblower laws in the first session of the legislature after the Oct. 9 election.

"We'll get that on at the very earliest opportunity," Williams said in response to questions from reporters at a Carbonear shopping mall.

"The very first session of the House that we have, that's something we'll have a look at. As a matter of fact, there'd be no reason why we wouldn't get it on."

In other words, CBC’s claim is factually incorrect.

Then there’s the line that in 2009 Williams “reiterated his government's promised [sic] to create the legislation.”

That would be a huge “not exactly” on that one too.

In June 2009, Williams started inventing excuses for the lack of legislation.  He claimed that there wasn’t much experience with whistleblower laws even though the first one was enacted in the United States in 1863.  By one count, there are no fewer than 18 separate federal whistleblower protection statutes in the United States.  Then there are ones in various state jurisdictions, provinces, the United Kingdom, Australia and elsewhere.

What the Ceeb is referring to in its story are comments Williams made in may 2009.  At that time he linked whistleblower laws to access to information legislation.  The record shows he had a chronic problem with those laws that allows people to access such secrets as his public speeches.  Williams said he was worried about people with a personal vendetta against the government.

So basically the real story is that we are now long past the third anniversary of Williams’ broken promise. Williams has skedaddled and his former caucus colleagues are left holding the bag.

CBC might not be quite that blunt, but at least they could try and report accurate information rather than things that are – quite obviously – false.

- srbp -

No greater shame…third anniversary

In honour of the third anniversary of Danny Williams’ promise to bring a whistleblower protection bill before the House of Assembly in the spring of 2008, here are a few relevant links.

1.  The draft public interest disclosure law offered by Bond Papers to assist the Premier in keeping his promise.

Yes, you read that correctly: a complete piece of legislation ready for someone to lay before the legislature.  Could be government.  Could be the opposition. 

There are three parties in the legislature and either of them could introduce the bill.  Of course, if the government doesn’t want it, they will work to defeat it or stall the bill.  But since it is their promise that remains unkept three years later, any action to further delay the bill would only add ignominy on top of shame.

In any event, there’s the bill if anyone in the House of Assembly is genuinely interested in protecting public interest disclosure. So far all the people of Newfoundland and Labrador have heard from the three parties is blather.

2.  From May 2009, a post that picks up on some comments by the Premier with the conclusion that the Premier is evidently scared to death of a whistleblower protection law.  Frankly there’s no other reason for his failure to keep his own promise.

He’s obviously scared.

3.  From June 2009, here’s another post in which the Premier resorts to complete bullshit to deflect from his fear.

Well, fear or maybe he was just playing politics, like he did with a completely unfounded accusation he, himself, made in 2002.

4.  And just for good measure, in a province with one of the highest levels of unionisation in North America, not to mention the highest level of public sector employment in North America, a reminder that the province’s largest public sector union talks a lot about about protecting public interest disclosure but just can’t deliver.

Come to think of it,  there might be a shame that is at least equal to the unkept promise. Carol, Yvonne and Lorraine can collect their prize alongside the promise unkeeper himself.

- srbp -

Freedom from Information Week: the colour of invisibility

As labradore notes, at least one member of a Reform-based Conservative Party administration likes to use purple files to denote sensitive material to be given special attention as part of an access to information request.

Not surprisingly, another Reform-based Conservative Party in power likes to use purple files to denote sensitive information.  And, as regular readers will recall, that sensitive filing system officially does not exist.

Even though it does.

And the Premier admits it exists, but he refuses to release the information.

Because it officially doesn't exist.

When it comes to public access to government information the public has a legal right to obtain, it seems that purple is the colour of invisibility. Whatever these two Conservative administrations are afraid of, there's no doubt that fear lies at the heart of their obsession with secrecy.

That's why the Premier told reporters that if he had to release information people were looking for he'd "be outta here". Lest new readers get confused at this point or think the requests were intrusive, understand that one of the requests the Premier found unbelievably intrusive was one that asked for all his public speeches as Premier.


One big difference between the two Conservative approaches to secrecy, though is in the role played by political staffers.  In Ottawa, political involvement in the access to information process is considered controversial.

In St. John's, bureaucrats will testify under oath that it is perfectly acceptable for responses to information requests to be dictated by politicians and political staffers. Interestingly enough, while reporters covered that testimony as it it contradicted other claims about political interference, the reality is that the testimony suggested the level of political interference was routine.

But still, there are signs of sanity.  Your humble e-scribbler had a pleasant experience this past week.  One access co-ordinator in one department answered a simple inquiry with a simple answer.  Plus, she did so promptly and professionally.  Compare that to the refusal of three other more senior officials to even think about the same request and the lengthy delay it took to get them to refuse to provide simple information.

That's the difference between a culture of politically-driven secrecy  - call it a purple culture - and one that shows a respect for the law and for the public's right to know. Hats off to a public servant who does an honour to her chosen career.

What a fitting way to mark Right to Know week.

- srbp -

Transparency and Accountability: speeches

We live in a funny country.

The Clerk of the Privy Council – Canada’s top federal public servant – posts copies of his speeches to the Internet and broadcasts the fact via Twitter.

Meanwhile, a politician who got elected on a platform of openness, transparency and accountability, wants to charge somebody thousands upon thousands – it started at $10K and has dropped downward – for copies of his public speeches.

And – if that weren’t enough – the politician then bitches publicly about the fact somebody wants copies of his speeches.

Come to think of it, the country isn’t funny.

Some of the people in it are.

Hysterically funny.

- srbp -

Info commissioners and ombudsmen call for open government

Information commissioners, privacy commissioners and ombudsmen from across Canada issued a call on September first for government sin the country to adopt open government principles.

They issued the call from their joint meeting held this year in Whitehorse.

Specifically, the commissioners resolved:

1. The Commissioners endorse and promote open government as a means to enhance transparency and accountability which are essential features of good governance and critical elements of an effective and robust democracy.

2. The Commissioners call on the federal and all provincial and territorial governments to declare the importance of open government, including specific commitments for stronger standards for transparency and participation by the public.

3. Governments should build access mechanisms into the design and implementation stages of all new programs and services to facilitate and enhance proactive disclosure of information.

4. Through ongoing consultations with the public, governments should routinely identify data sources and proactively disclose information in open, accessible and reusable formats. Public access to information should be provided free or at minimal cost.

5. In implementing open government policies, the federal and all provincial and territorial governments should give due consideration to privacy, confidentiality, security, Crown copyright and all relevant laws.

- srbp -

Freedom from Information: Joint federal-provincial edition

Now you know things between the two Connies are good when they co-ordinate a joint freedom from information program on a national park/provincial park combo that actually doesn’t exist yet and then carefully control the release of information about it.

Now, a curious and enterprising body might well wonder, hey, what are the boundaries of these proposed protected areas, especially given that the national park would be the largest in Canada contained wholly within a province (as opposed to a territory)? which lands are included and which are excluded? how do the proposed protected areas relate to the newly-opened highway or to lands subject to Aboriginal land rights?

Apparently, however, there aren't that many curious and enterprising bodies.

Which is a good thing, because good luck finding such information from either the official provincial or federal eBumpf.

However, if you are really keen to see the long-awaited map, it is available.

On the website of National Geographic, a private organization located in another country.

The signs are there if you want to see them.

-srbp-

Taxpayers shafted

On February 2, Abitibi notified the provincial government that the company vacated the only properties the provincial government didn’t expropriate in December 2008.

As a result, the taxpayers of Newfoundland and Labrador are entirely responsible for cleaning up whatever environmental mess may be attached to the century old facility.

There is no word on how big the problems at the old paper mill are or how much it will cost taxpayers to clean it up.

The official government release on the development is a masterpiece of uncommunication from a department – natural resources – that has become legendary for its practice of the dark art of misinformation. 

There is even a complete contradiction in the claim at the front – namely that the provincial government is now responsible for the sit in every respect and a statement at the back that Abitibi is still liable.

This is the third financial shaft to be felt by taxpayers resulting from the 2008 expropriation.  The first is the yet-unresolved bill for the expropriation itself.  The second is the voluntary payment by the provincial government of money owed by the company.

-srbp-

Freedom from Information: The Two Connies

Not only do the federal and provincial Conservative parties in power have very similar attitudes toward the legislature, they also share a common disregard for public access to government information.

-srbp-

Hebron benefits not secured

The highly touted Hebron offshore oil project hasn’t completed environmental review, it hasn’t been sanctioned and there’s no development application yet but already the amount of work on the project is being scaled back, according to news release from the province’s natural resources department.

According to the release, project lead ExxonMobil has informed the provincial government that it won’t be building the “sub-sea drilling template and the components of the field mooring system and positioning and docking system.”

The release says the elements are “uneconomic and come with significant execution and schedule risks.”  Put another way that likely means the companies don’t believe the work can be completed in the province and the alternatives are too costly to consider.  The work will now be scratched entirely.

No provision for replacement in agreement despite Dunderdale claim

And while the provincial natural resources department claims the cancelled work will be replaced, there’s no guarantee that will actually occur.

The release quotes natural resources minister Kathy Dunderdale as saying that the provincial government “had the foresight to ensure that any such issues were contemplated in the Benefits Agreement and the replacement value of the work was captured and protected.”

There are no provisions of the final benefits agreement signed in August 2008 that cover such a cancellation.

And what’s more the release confirms there’s no such provision when it states that:

An amendment to the Benefits Agreement will now be developed by the parties to implement this arrangement.

If the situation was already “captured and protected” there wouldn’t need for an amendment – that is, a change – to the benefits agreement.

The benefits agreement contains a clause (3.3) which exempts the companies from having to provide any benefit contained in the agreement unless the offshore board approves the benefits plan, the federal and provincial ministers approve the plan and the project is sanctioned.

At least two of those three preconditions have not been met.

The agreement does contain a dispute resolution mechanism.  There’s no indication if that has been triggered or if it may be triggered should the companies and government fail to agree on replacement benefits.

Valuation of cancelled work “commercially sensitive”

But wait:  it gets better.

The same news release claims that “[s]hould the operator be unable to identify an equivalent amount of replacement work by June 30, 2010, a payment will be made to the province equal in value to the amount of work not replaced. These funds will then be used by government for a construction project for the benefit of the oil and gas industry.”

The public will never know because the department is refusing to release the value of the cancelled work.

Contacted today by Bond Papers, a spokesperson for the department refused to release what was described as “commercially sensitive” information.

-srbp-