10 years later #nlpoli

Today marks the 10th anniversary of the first Sir Robert Bond Papers post.

In July 2004,  I wrote and released a paper that tried to “examine offshore oil revenues and the Atlantic Accord in light of what the Accord actually provides.It was an attempt to evaluate the provincial government's proposal based on what had been made public to that point.”

Which is to be master?  was supposed to be the first of a series of papers on different public policy issues.  Each would have a different author.  They would appear from time to time in order to foster “public discussion of issues affecting Newfoundland and Labrador.”  The title of the series was going to be The Sir Robert Bond Papers.

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 -

Cabinet documents and no brainers #nlpoli

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

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

Wonderful story.

Just not true.

The Turmoil and Topsy Turvy #nlpoli

With so much changing in any office,  what has "always" been done really only goes back to the time of the last person who came in the door.

In Newfoundland and Labrador,  the provincial government has been censoring laws since 2012.

That's sounds absolutely insane to anyone in the province and outside, but that is undeniably the case.

Orders-in-Council are a type of law.  They are the decisions of the Lieutenant Governor-in-Council under powers granted by specific laws or from something called the Royal prerogative.  They are public documents and in every Westminster-style government they are published regularly, without any form of redaction or censoring.

Except in Newfoundland Labrador.

Even in Newfoundland and Labrador, the idea of secret laws in a democracy would be downright sinister if it wasn't for the comical way the whole nonsense started and the reason it carries on.

Executive Politics and Muskrat Falls #nlpoli

In this series, we are not concerned with whether or not the Muskrat Falls project is good or bad. That is a separate issue.

Nor are we presenting information you shouldn’t already have.  Very little of what you will read should come as a surprise, especially if you  read SRBP regularly.

Rather this series is an effort to develop some explanations about why the provincial government’s energy company has been working on the Lower Churchill Project continuously for 15 years and yet has produced nothing.

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.

-srbp-

Poll dancer - update

Update: a faithful reader sent me a quick e-mail to point out that Tom Rideout is actually a graduate of Ottawa U law school not the Halifax legal temple. I double checked Tom's online biography and yep, I goofed. Then I noticed Tom used to work in Fisheries and Oceans in the international directorate. Anyway, I corrected the law school mistake.

That just makes what I will post tomorrow all the more interesting.

For those with a passionate interest in access to government information, there is a curious story on the front page of today's Telegram. It's also online here.

For those who may not be able to access it, here's the complete text courtesy of The Telegram and reporter Rob Antle.

As someone who has dealt with access to information issues from boths sides in the course of my 16 year career, I have a few thoughts and observations on this story. I'll save them for tomorrow morning's post, along with some links to the legislation itself and the recent rulings by privacy commissioner and former finance deputy minister Phil Wall.

Transportation Minister Tom Rideout is quoted in the story that follows. he is currently acting justice minister. In a previous life, he was premier of the province, even if it was only 43 days in the spring of 1989. After leaving politics, Mr. Rideout went off to Ottawa U law school and was a practicing lawyer before he went back to politics again.

The only other thing I'll say here, before letting you get to the full story by Rob Antle, is that I'd be dumbfounded if The Telegram didn't take this one to the Supreme Court.

Wednesday, June 29, 2005
Page A1 (above the fold)

Polling data stays secret
by Rob Antle, The Telegram


Opinion polls are secret cabinet documents not to be released to the public, the Williams administration has decreed.

The decision overrules the findings of a report issued Tuesday by the province's information commissioner.

"We disagree with the interpretation that's been put on this by the information and privacy commissioner," said Tom Rideout, who is acting justice minister while Tom Marshall is out of the province.

"We don't feel that his interpretation is within the confines of the spirit and intent of the legislation. Š Based on that belief, we will not be releasing the information."

The province says releasing public-opinion polling commissioned over a 14-month period would reveal cabinet confidences.

Information Commissioner Phil Wall ruled Tuesday that the government should release the documents under new open-records laws, with some small exceptions.

"Quite simply, Section 18 of the ATIPPA cannot be treated as a 'blanket' exception to disclosure," Wall wrote, referring to the part of the act dealing with cabinet confidences.

"It specifically states that only those items which would reveal the substance of deliberations of cabinet can be severed from the record, and it gives examples of what such items might be, such as advice and recommendations."

Rideout said Wall is wrong.

"There are still certain protections for the system, and one of the protections has to do with the confidentiality of cabinet documents," he said.

"That's one of the underpinnings of our whole system, and we're certainly not prepared, at this stage of the game, based on what we think is an error in interpretation by the privacy commissioner, to undermine that process."

The commissioner has the ability to make recommendations to the government, but cannot force the province to act upon them.

In making his ruling, Wall cited case law and precedents in Ontario, Nova Scotia, British Columbia, Manitoba and Saskatchewan.

"We feel that case law is fairly clear in its conclusions," Sandy Hounsell, executive director of the Office of the Information and Privacy Commissioner, told The Telegram Tuesday.

Government officials now have 15 days to respond to Wall's report.

The only recourse after that is Newfoundland Supreme Court.

The information commissioner can decide to take the matter to court. The applicant - in this case, The Telegram - can also decide to do so.

"We will wait until we get formal representation from Executive Council on their position, and then make a decision as to what we will do with this particular report," Hounsell said.

That decision will likely be made within days of receiving the final response from the government, he said.

On Jan 18, a Telegram reporter requested a list of public-opinion polls done by, or on behalf of, Executive Council between November 2003 and January 2005.

Executive Council is the wing of the public service which oversees government policy and decision-making.

A month later, the province supplied a list of 12 polls, broken down by pollster and date.

However, the government refused to disclose the subject of the polls, or their content.

On March 10, the province decided to provide two of the polls in question.

Several weeks ago, after fighting for nearly five months, the province released two other polls. Both dealt specifically with the Atlantic Accord.

Wall had recommended the release of that information.

But the other eight polls must remain secret, the province maintains.

Comfortable with stand

Rideout said Tuesday the government is "very comfortable" with that position, even though Premier Danny Williams campaigned on a policy of openness and transparency in 2003.

"My government will provide real financial management, real transparency, and real accountability," Williams said in the Conservative pre-election "blueprint" of promises.

"Ours will be a new approach, and one which will benefit every Newfoundlander and Labradorian in a positive and powerful way."

The Tory campaign document said that "a comprehensive and effective freedom of information act is the best safeguard against the tendency of governments to descend into official secrecy and elitism."

In December 2004, the Williams administration tabled its "accountability and transparency agenda," updating laws governing lobbying, government purchasing and the tendering process.

"In our blueprint, we committed to set the bar on transparency and accountability much higher, so that government is truly open and transparent in decision-making and accountable to the people of Newfoundland and Labrador," Williams said in a statement issued Dec. 2.

In January 2005, the Williams administration finally enacted new open-records laws - laws which had languished on the books since 2002, and the days of the previous Grimes administration.

The premier's office steered inquiries about Tuesday's decision to Rideout.

rantle@thetelegram.com

Amnesia #nlpoli

This week we should find out when the provincial Conservatives will have their leadership convention.

The talk around town late last week was that the crowd Danny Williams once called a Reform-based Conservative Party would be looking at May or June.  One of Williams’ former staffers turned up on local television on the weekend talking about the problems the party was having finding a hall, what with all the concerts and conventions and stuff on the go.  Steve Dinn talked about having to postpone the leadership convention to some time in the fall, maybe.

What a contrast to what the Progressive Conservative Party used to do.  

The truth hurts #nlpoli

Brace yourself.

Peter Jackson’s column in the Wednesday Telegram is spot on.

Yes.

You read that correctly.

Peter Jackson’s column is spot on the money and the mark and the point and whatever other metaphor you want to use.

The editorial on this page [in the hardcopy layout of the paper] laments how the Canadian electorate seems to be developing more tolerance for less-than-honest statements from our leaders. This is alarming, because cynicism and apathy can only lead to even worse behaviour, and undercut the foundations of our democracy. 

We expect politicians to avoid the unhealthy temptations that come with public office, but we’re not naïve enough to think it won’t happen from time to time. All we can do is remain ever vigilant, and ask those found culpable to own up and move on.

Peter’s especially right on the bit about how the cynicism and apathy that comes out of untruthful political statements eats away at the base of our society.

There’s evidence for this in a recent study that the Star’s Susan Delacourt blogged this week.  The study of voter apathy found that  - as the report put it - “Disengaged people felt that politics is a game that does not produce results for them…. The overall point seems to be that there is very little reason to be engaged.”
You don’t have to go to the United States or mainland Canada to find untruthful politicians.  There’s been plenty of false statements around these parts.  We are not talking politicians who change their position based on new information or a different circumstance.

We are talking unmistakeable falsehoods.

Like the one about the federal government taking 85% of provincial offshore oil revenues. Yes, friends, the entire 2004-05 offshore oil ruckus was founded on a falsehood.

Or, more recently, the claim that the Quebec energy regulator denying Nalcor access to the Quebec energy grid.

Aside from outright falsehoods, there is the cousin:  lack of disclosure.  The current provincial administration is well known for its love of freedom from information for the public.  Access to information debacles?  Failure to produce whistleblower protection laws?  The weakened House of Assembly and its broken oversight committees?

All speak to a political culture that promotes anything but the sort of honesty and integrity that genuine democracy demands.

Ultimately, we are all responsible for the current situation, just as we have to shoulder the burden for change.
The Telegram editorial [board] are right about that, too.

- srbp -

Advance voting and other campaign tidbits #nlpoli #nlvotes

If you want to get a good sense of what the advance poll turnout from Tuesday likely means in campaign terms, wander over to labradore.

In the current election, six of the ten highest advance-vote districts were in metro St. John's. In 2007, only three were. The top ten, interestingly enough, were almost all seats heavily targeted by Danny Williams-Government for pickup or hold, …

This may mean that the Tories and NDP are pumping GOTV resources into St. John's, and that the Tories are doing so at the expense of the formerly strenuous GOTV efforts in potential rural battleground districts in the Williams-era general and by-elections.

Yes, folks that would be the real story of the election which the conventional media have decided to avoid in favour of focusing on horseracing.

Luke, Luke, I gotta tell ya, at the end of the day, I am your father on a go forward basis

Speaking of the conventional media, the province’s largest circulation daily newspaper decided to engage in some public editorial self manipulation of the sort that used to grace the editorial pages of the old Spindependent. 

The subject is a poll the Telly commissioned from the same gang that do the provincial government’s quarterly political polling.

What can be said is that it is the broadest and most detailed snapshot in time of the current campaign, commissioned by an independent media outlet.

We can only look forward with bated breath to what will follow in the days ahead.

The Telly-torialist couldn’t resist getting in a little pre-emptive disclaimer at potential critics:

The poll will be received with the usual sniping — undoubtedly by those who have a larger problem with what the results spell out than what the critics honestly have with the methodology.

Nice thought but the People’s Paper is refusing to release any information that would let someone have a look at the poll methodology.

Your humble e-scribbler went asking a few questions on Thursday only to have senior management at the paper issue an immediate and complete ban preventing all Telly editors and staff from discussing any aspects of the poll whatsoever with anyone outside the paper.

Full stop.

After all those years of bitching about the provincial government’s unnatural desire for keeping polls secret, the Telly has finally caved in and joined the secrecy society. Governments across the land will rejoice that one newspaper has finally come over to the dark side of freedom from information.

What a shame too, because the Telly finally had some interesting information, or so it seemed out beyond the stuff that graced the front page of the Thursday issue.

Ah well, we’ll just have to sit back and see if the “broad-ranging public opinion poll with a large sample size conducted by an experienced polling company” lives up to that company’s usual accuracy.

And a large double-double to go…

Politicians’ handlers need to look for what the camera sees when their charge decides to scrum.

In this case, they should have looked at what CBC saw and then used to illustrate a story in which Liberal leader Kevin Aylward claims his party has a shot at up to 30 seats in the election. 

The elderly gentleman and the fellow apparently representing the local hit-man’s benevolent association don’t exactly convey that sense of energy and enthusiasm  - let alone numbers - to back up Aylward’s claim.

The one thing that does stand out nicely is the sign advertising real fruit smoothies for a buck 99.

Was it a campaign swing or a Tim’s run?

He wrote the book…literally

Check out a fine post on the CBC election website by Doug Letto called “Oil, wealth and caution at the finish line”.

Letto’s covered local politics for the better part of 25 years.  He’s forgotten more about politics than most reporters in the province will ever know. Plus, when it comes to the province’s history of economic development and politics, Doug’s written not one but two fine books.

Chocolate bars and rubbers boots looks at economic development during the Smallwood years. Run! is Doug’s account of the 1999 general election.

- srbp -

The Sunshine List Case hits the court #nlpoli

The public sector unions' attack on freedom of information is finally in front of a judge.  The unions want to  block disclosure of the names of public servants in response to a request from the Telegram's James McLeod for a list of public service positions in which the person holding the job makes more than $100,000 a year.

McLeod is compiling the list because both the former administration and the current one have committed to publishing one but haven't done so yet.  Several other provinces publish similar lists of public employees who make more than $100,000 a year.

The union's says it's okay to disclose the position title and income but McLeod shouldn't  have the name of the person holding the job.  It's a insane argument since there is no practical way to withhold either of the three elements of the request - name, position, salary - such that a person couldn't make up the list after a couple of requests. It's an insane argument from because the unions don't oppose disclosure of the name and position separately from the salary.  Well, at least they haven't objected so far.

But the position taken by the unions doesn't make sense for a bunch of other reasons.

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-

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 -

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.

-srbp-

Freedom From Information: The Big Commute

Government services minister Kevin O’Brien billed taxpayers almost $20,000 for 16 trips to St. John’s for “ministerial duties” between June and November 2008, according to information on ministerial expenses released by the provincial government before Christmas. One of the expenses in that total was for more than $3900 in advance bookings for “upcoming flights” to Gander from St. John’s. O’Brien’s total expense claimed for the period covered by the government report was $33,438.99.

Some of O’Brien’s claims were days apart. He billed the taxpayers $1,068.41 for travel, meals and accommodations for the period 11 – 15 June 2008 and another $1,246.62 for the period between June 16 and 20.

He billed another $729.50 for the period 24-26 June.

O’Brien claimed $1,162.04 on July 14, another $1,041.69 on July 16 and a further $743.95 on July 20. Of those amounts, $1,935.12 was for travel.

All the claims conform to the government’s ministerial expense claims policy.

Between June and November, aboriginal affairs minister Patty Pottle billed taxpayers over $13,000 for what government reports identify as attending cabinet meetings, departmental business and cabinet committee meetings. Not all the claims include travel. Her claims for the period totalled over $36,000.

In addition, four other cabinet ministers submitted claims for “departmental meetings” or “departmental business” in St. John’s, the provincial capital where the headquarters for each department is located.

As well, two ministers submitted monthly claims for “private accommodations” for each month from June to September. The smallest such claim was slightly over $1,000. The largest was more than $1,800.

Last summer, Bond Papers raised the question of cabinet ministers who spend significant chunks of the year living some place other than St. John’s.

Some ministers, such as Joan Burke, appear to maintain permanent residences outside St. John’s and commute to the capital on business. Burke submitted six claims between June and August 2008 labelled as “Travel to St. John’s for Ministerial Business.”

Justice minister Tom Marshall, who represents a district on the island’s west coast submitted eight claims in the reporting period during his time as finance minister. Of the eight claims, seven were for “Departmental Business-Headquarters” and included charges for travel, accommodations and meals and incidentals.

Under the ministerial expense rules, ministers with permanent residences outside the capital region can claim either temporary accommodations or private accommodations for time spent in the capital city.

In the period covered by the recent government disclosure, some of these ministers claimed very little other than travel to St. John’s and automobile charges.

Others, such as business minister Paul Oram, travelled widely outside the province on official business including a trip to the Farnborough air show and a business prospecting trip to Washington, D.C. and Atlanta Georgia. He also claimed expenses for what are described as “business meetings” with no details provided. One such claim, on September 9, 2008 came to over $1,000 for meals and incidentals with no other associated charges.

Only an access to information request could garner enough detail to get a full picture of ministerial expense claims practices. What government has released voluntarily only raises questions.

-srbp-

Minister	Number of claims	Period	Type	Comments
Joan Burke Education	6	Jun-Aug	Departmental business in St. John’s	10 claims all of which appear to be commuting/transportation-related.
John Hickey Labrador Affairs	11	May - Oct	Departmental business in St. John’s
Clyde Jackman Tourism, Culture Recreation	4	Jun-Aug	Private Accommodations	Monthly claims ranging from $1,071 to $1,717 for accommodations in St. John’s. This does not include costs for travel by car.
Tom Marshall Finance	7	Jun - Oct	Departmental business in St. John’s	Out of 8 claims during period, 7 were for travel to St. John’s.
Kevin O’Brien Government Services	16	Jun - Oct	Departmental business in St. John’s	Total claims during period: $33K. Total on commuting travel: including $3911 in block booking (in advance) of undisclosed number of flights between Gander and St. John’s.
Paul Oram Business	4	Jun-Sept	Accommodation	Four amounts ranging between $1436 and $1835 for “private accommodation” in St. John’s on monthly basis.
Patty Pottle Aboriginal Affairs	13	Jun-Nov	Departmental business in St. John’s
Ross Wiseman Health and Community Services	9	May - Sept	Departmental business in St. John’s

Telegram: Legislature exempt from FOI law until after election

The Telegram
p. A1

Legislature exempt from FOI law until after election
Quiet addition to Green report

Rob Antle
The Telegram

The House of Assembly has quietly exempted itself from the province's freedom of information laws until after the October general election.

And The Telegram has learned there is confusion over whether taxpayers will be able to access any House information generated prior to that Oct. 9 implementation date.

Chief Justice Derek Green recommended in his "Rebuilding Confidence" report that the House be covered by FOI laws.

Those laws allow members of the public to obtain government documents and information.

The legislature is currently exempt - a situation Green suggested played a contributing role in the constituency spending scandal.

It will remain that way for at least a few more months.

The delay in FOI access was added without fanfare to the text of Green's suggested legislation, passed June 14. There was no news release announcing it. And figuring it out requires stitching together a number of subsections of two pieces of law.

Government House Leader Tom Rideout defended the decision, and the transparency with which it was made.

Rideout characterized it as not being a delay at all, as Green did not cite a specific implementation date. The FOI decision was made in consultation with the chief justice, Rideout said.

He denied an inaccurate impression was left with the public, and said it was unnecessary issue a news release about the later date.

"There was no recommendation (from) Green as to when it came into effect, so nobody, including myself, read anything into this," Rideout said Friday.

"Since Green didn't say the act comes into effect today, we, in consultation with him, said what can come into effect today comes into effect today, what needs time to come into effect tomorrow comes into effect tomorrow, and tomorrow is Oct. 9, 2007."

Rideout said he thought everyone was aware of that date for certain elements of the Green report's implementation.

The chief justice was not available for comment Friday.

Here is how the FOI delay became law.

On June 14, the legislature unanimously passed Bill 33, the act implementing Green's stringent new accountability, ethics and spending rules for the House.

The delay is tucked away in Sec. 72 (2) (b) of Bill 33. It simply notes that Sec. 67 of the legislation will be put off until after Oct. 9.

Sec. 67 concerns amendments to the Access to Information and Protection of Privacy Act.

Those sections of the existing FOI law deal with the public's right to access legislative documents.

It is unclear whether or not the FOI provisions will be retroactive.

Rideout said it is his understanding that they will.

But House Speaker Harvey Hodder suggested the new commission of politicians set up to govern House affairs will decide. "That has not been clarified," Hodder told The Telegram. "The intent of the legislation is that it would be on a go-forward basis."

When the new FOI law was brought into effect in 2005, however, it did apply retroactively.

But maybe not so for the House, the Speaker suggested. "To what extent it can be retroactive before Oct. 9, that has not been discussed in my presence," Hodder said.

The delay in FOI provisions is in addition to another last-second amendment that put off tough new spending rules for MHAs until after Oct. 9.

Internet blogger Ed Hollett unearthed the existence of that information two weeks ago.

There was also no news release announcing that delay.

Bill 33, including the amendments, whooshed through the House in less than two days, just before the legislature broke for the summer.

rantle@thetelegram.com

-srbp-

What Danny wants.....

For every person in Newfoundland and Labrador who claims to stand solidly behind Danny Williams in his efforts to change the Atlantic Accord, there is a different version of what the premier wants. For some it is to get "our" share of the offshore, as if the Atlantic Accord doesn't exist. For others it is fixing a problem with the Accord. For still others it is to get "our" revenues plus a bit more besides to help out.

For Loyola Sullivan, it now seems to mean reparations for every possible slight the province has received or every bad deal we negotiated. Compared to the Upper Churchill deal, the Versailles diktat was a minor annoyance.

Odd then that the Premier told the House of Assembly last fall that there was no need to debate the Accord in the House because "we know what we asked for...".

That's an odd comment, because, as you will see below, there are actually three different versions of what the Premier asked for. Just so that his supporters don't suddenly turn blue with rage, rest assured that the three versions are accurate and based on official documents.

The following information comes from four sources:

- the Progressive Conservative policy manual, the so-called Blue print;
- correspondence with the Government of Canada, released by the provincial government through Freedom of Information requests and news releases;
- media interviews by Premier Williams and others; and,
- provincial government news releases

At the outset, it is important to recall two aspects of the Atlantic Accord in particular.

First, the provincial government gained the right under the Accord to set its own revenues from offshore production as if the resources were on land, that is as if they were "own-source" revenues. This includes royalties. The provincial government receives 100% of the revenues it has set without any reduction; in Fiscal Year 2004, the provincial government will receive at least $300 million in direct revenues from offshore oil production [Williams to Martin, May 26, 2004 attachment "Offshore revenue, existing offsets and proposed offset"; mid-year financial statement by Hon. Loyola Sullivan]

Second, the Atlantic Accord provides that Equalization will apply to these revenues. As such, as provincial own-source revenues grow, the amount of Equalization top-up declines. The Accord does provide an Equalization offset that effectively shielded some revenues from the Equalization calculations. It is clear from the Accord itself that this was intended to be a temporary, declining offset. ["The Atlantic Accord: memorandum of understanding between the Government of Canada and the Government of Newfoundland and Labrador on offshore oil and gas management and revenue sharing", 11 February 1985. www.cnopb.nfnet.com/publicat/reg/aa_mou.pdf.]

This interpretation is confirmed by comments made by John Crosbie in a 1990 interview with the Sunday Express. Commenting on the claim that the Accord reduced the province's Equalization entitlement due to growing provincial government revenues, Mr. Crosbie said:

"That's the whole point to the [Equalization] formula... This is nothing to complain about; this is something to be joyous about. So why would they try to pretend that Newfoundland gains nothing from the royalties? I mean this is absolutely bloody nonsense..." [Philip Lee, "Newfoundland, Ottawa clash over Atlantic Accord royalty provisions", The Sunday Express (St. John's), 23 September 2004,]

With that background, let us now turn attention to Premier Williams' proposals.

Danny Williams: Premier in Waiting, October 2003

The Blue Book (www.pcparty.nf.net) contains no reference to changes to the Atlantic Accord.

Rather, it commits a Conservative government to seek changes to the entire Equalization formula so that revenues from non-renewable natural resources are removed from the calculations.

The Blue Print also states that:

"[i]n exchange, we will commit, in a formal federal-provincial agreement if necessary, to spend non-renewable revenues to modernize economic infrastructure in the Province and to bring down the provincial debt, so that future generations of Canadians living in this Province will continue to benefit long after the resources are used up." [Emphasis added]

Danny Williams: January - June 5, 2004

Premier Williams met with Prime Minister Martin in Ottawa on December 18, 2003 and again by telephone on January 6, 2004. The Premier follows up with a letter to the Prime Minister on the same day. He described the province's fiscal position and the government's plans to address the problems. Included in that letter is the following statement:

"Simply put, the ability to invest 100% of our Atlantic Accord oil revenues in economic infrastructure and in paying down our debt would go a long way to helping Newfoundland and Labrador stand on its feet in the long term." [Williams to Martin, Jan 6, 2004]

The Prime Minister replied on January 27, 2004:

"With regard to the Atlantic Accord, as I stated on January 6, 2004, the Government of Canada is open to discussing the issues related to offshore resources. However, it is imperative that these discussions be based on the principle of fair treatment across the country." [Martin to Williams, Jan 27, 2004]

Some details of the provincial position were contained in a slide presentation made to John Efford on February 27, 2004 and titled "Proposal for new Atlantic Accord offset mechanism". This appears to be the only written version of the proposal, except for a similar slide presentation made available to news media and tabled later in the House of Assembly.

The presentation focuses on changes to the Equalization offset provisions contained in the original Atlantic Accord. These were intended as temporary, transitional grants to the provincial government designed to offset losses in Equalization as provincial own-source revenues grew from oil production. The original offset nominally shielded a declining amount of provincial revenue from Equalization calculations.

An assessment of the original offset prepared by Wade Locke in 1991 concluded that the original offset provisions actually shielded only 3% of revenues from Equalization including the offset payments. [Wade Locke, An examination of the equalization protection provided under the Atlantic and Nova Scotia Accords, (St. John’s: Memorial University Institute for Social and Economic Research, 1991) ]

Slide 9 from the February 27 presentation contains the following points:

- Replace the existing offset provisions [Editor's note: due to expire in 2011/2012]
- New offset mechanism
- Provide a payment equal to 100% of the net direct provincial offshore revenue
- Net Direct Revenue
- Royalties and Corporate Income Tax which is generated in the NL offshore area, less the equalization clawback (currently at 70%)

There is no specific reference to a time period for the new offset, although a bullet point on Slide 10 states that the new mechanism would provide "benefits over a longer period". The original Accord offset mechanism shielded 100% of revenues but only for the first four years. As noted above, the original Accord offset provisions expire in 2011/2012 and shielded less revenue from Equalization than indicated in the slides.

The Chretien administration provided a new Equalization offset option to the provincial government in 1993, one that shielded more revenue than the original Accord and did so for the duration of oil production. This is the so-called generic option which shields 30% of oil revenue from Equalization calculations; in other words if oil revenue is $100 million, then only $70 million is used to determine the provincial government's per capita fiscal capacity.

The Premier's commitment on using revenues for debt reduction and infrastructure is repeated in a letter to the Prime Minister on May 21, 2004. Another letter on May 26, 2004 to the Prime Minister contains Slide 9 of the deck presented on February 27, 2004.

The provincial government's position can be summarized as follows:

1. A new offset mechanism that provides the provincial government an amount equal to 100% of direct revenues in addition to direct revenues.

2. Direct revenues are defined as royalties and corporate income tax. [Note that under the Atlantic Accord, provincial government direct revenues comprise six separate types, including royalties and corporate income tax. There is no explanation for this apparent mistake on the part of the provincial government.]

3. The money would be used for debt reduction and infrastructure development.

4. The time frame is unclear. It can be read as meaning seven years (replacing the existing offset) since the time frames match and the doubling up of revenues replaces the Accord's original offset with a concept that "benefits over a longer period" (12 years total versus four years).

Danny Williams: June 10, 2004 to current

The Premier and Prime Minister spoke by telephone in a now infamous conversation on Saturday June 5, 2004. Fully five days later, the Premier wrote to the Prime Minister ostensibly to confirm the agreement. His letter contains the following statement of the provincial proposal:

"The proposal my government made to you and your Minister of Natural Resources provides for 100% of direct provincial revenues generated by petroleum resources in Newfoundland and Labrador Offshore Area [sic], to accrue to the government of Newfoundland and Labrador and be sheltered from the clawback provisions of the Equalization formula, (currently at 70%). Direct provincial revenues include royalties, provincial corporate income tax, and fees forfeitures and bonuses. Our proposal is for the current time limited and declining offset provisions in the Atlantic Accord to be replaced by a new offset provision continuing over the life of the offshore petroleum production which would provide a payment equal to 100% of the amount of the annual direct provincial revenues which are clawed back by the equalization program."

This may be summarized as follows, with the changes being obvious:

1. The offset is in addition to provincial direct revenues, as previously proposed.

2. Direct revenues are defined more accurately.

3. The commitment to direct the added revenues to specific purposes has been removed.

4. The duration of the offset is clearly stated as being for the life of production.

Several points are worthy of note beyond the obvious changes.

First, no provincial government currently enjoys or has ever received this type of transfer from the Government of Canada.

Second, this proposed "offset" would continue irrespective of whether or not the provincial government qualified for Equalization transfers. In other words, under the revised Williams' proposal the provincial government would receive an amount equal to 200% of its direct revenues (direct revenues + new transfer) even after the provincial government's fiscal capacity met or exceeded the national standard used for judging Equalization entitlement.

Newfoundland and Labrador is forecast to be off Equalization, that is to become a "have" province within the next three to five years, based on economic growth, oil prices and development of Voisey's Bay and Hebron. Under the Williams revised proposal, Newfoundland and Labrador would receive federal transfer payments to which no other province is entitled, unless Nova Scotia attains the same "have" status.

The Premier has implicitly acknowledged this interpretation in several media interviews. He no longer refers to an Equalization offset but to a new type of offset designed to "keep us whole". Premier Williams explained it to Carole MacNeil of CBC Sunday in this way during an interview in October 2003:

Williams:...What the issue is, once we get to equalization, the equalization border - the five province standard - once we get equalized, we are not asking for equalization. That's where the misunderstanding is: we are saying that once our revenues get to a point where we no longer need equalization, we don't want it. We'll be the same as every other province that gets equalization - New Brunswick, Prince Edward Island, Nova Scotia. What we want, though, is the right, after we equalize, to keep 100% of our revenues, our provincial royalty revenues. The cap prevents us from doing that. (...)

MACNEIL: Until you're equalized.

WILLIAMS: No, no and beyond, because why should we get less than 100% of our revenues after we're equalized? [The full transcript of this interview may be found at www.cbc.ca/sunday/williams.html]

It must be noted that the Premier's reference to the cap, the use of the Ontario fiscal capacity from the October 2004 federal offer, is completely erroneous.

Under the Atlantic Accord, the provincial government continues to receive its own revenues, including royalties, in their entirety until oil and gas production ceases. There is no mechanism by which those revenues are reduced, nor has one ever been proposed. All that would occur once the provincial government is "equalized" is that the Equalization transfers would cease. Provincial government own-source revenues, including oil and gas revenues, continue unaffected. The cap was merely a mechanism by which the federal government proposed to calculate the added transfers in addition to Equalization and direct revenues and determine a cut-off point for what was originally an offset to Equalization losses. The Premier's convoluted language in the MacNeil interview appears to represent, among other things, an attempt to reconcile his pre- June 5 position with his current one.

Third, the provincial government proposal on June 10 eliminated its own condition on how the added transfer would be spent.

Conclusion

The provincial government proposal on Atlantic Accord changes have gone through at least three substantive alterations. The provincial government's contention that its position has been consistent flies in the face of direct evidence.

The changes are not inconsequential. The Government of Canada must always be mindful of the impact of special arrangements with individual provinces on its relations with the others. It must also be mindful of the financial implications of such arrangements. Quebec, for example has been seeking special treatment of the parental leave program within Quebec all at federal expense. The federal government under Jean Chretien rejected the concept out of hand.

The revenues being transferred, especially under the revised proposal, are not provincial revenues. They are federal revenues collected within Newfoundland and Labrador to sustain federal government programs and services. Historically, in this province, the federal government has provided almost half of the money the provincial government uses to provide services that are exclusively within the provincial government's constitutional jurisdiction. In the current fiscal year, for example, the provincial government will receive an estimated 75% of all provincial and federal tax-type revenues in the province through its own sources plus Equalization and other transfers. The Williams' revised proposal (post-June 10) would see that situation continue, contrary to the basic principles of the Equalization program to which John Crosbie referred.

Irrespective of the position one takes on proposed changes to the Accord, it is clear that the Williams administration has changed its position at least three times. Perhaps most strikingly, in light of continued references to the province's supposedly unprecedented financial situation, the government's own commitment on how the money would be spent has been dismissed

The crux of the current impasse may well be that the federal government is working to meet the original Williams proposal, something that is attainable in the context of the Constitution and historical federal-provincial fiscal relations. In the meantime, the Premier has committed that he "will not say yes to less" than his revised proposition.

An irresistible force may well have met an immovable object.

A Record of Manipulation #nlpoli

With a tip of the hat to Gerry Rogers and Andrew Parsons, here are some posts from the SRBP archive that all bear on the current political mess in which the provincial Conservatives find themselves.

“Playing the Numbers”  (August 2006) One element of the program involves aggressively pushing out their own message, especially when their pollster is in the field.   The first of the original three-part series that described the Conservative media strategy.  There’s a lot more to it than just online polls. Follow the links for the other two.

Freedom from Information  (Various)  Bill 29 was just the latest in a long string of efforts by the Conservatives to restrict what the public knows.  Controlling information is another key element of the government program.

“Mark Griffin:  traitor”  (February 2009)  A third element of the program involved efforts to suppress dissent.  Mark Griffin was an especially glaring example. There have been lots of others, reported and presumably unreported.  Write a letter? Get a call. 

“Everything else is advertising”  (December 2009) News is everything they want to keep you from seeing.  There’s no story here.

“Deep Throat” (February 2010) Someone inside the provincial Conservative crew leaked the messages about poll goosing. Earlier, someone (else?) dropped a quarter and ratted Danny’s secret heart surgery out to NTV.

“The Screaming of the Banshees”  (February 2010)  NTV broke the story.  The Conservatives mount an organized attack on CBC.  Some people still think that the who horde of people saying exactly the same thing arose spontaneously.  Sure it did.

“Planted Calls and Personal Threats Against Talk Show Host Revealed”  (August 2010)  Randy Simms, interviewed by Geoff Meeker, included a text-book definition of a planted caller.

“Enough of the Political Day-Care” (March 2012) As soon as you read it, you will remember the episode.  What might leap out more for someone of you now than before is the idea that calling Open Line was a threat that struck fear into Tory hearts.

-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.

-srbp-

Freedom From Information: Bull Arm

From The Telegram, the latest exploits of the supposedly most open accountable and transparent administration in the history of mankind: 

A fire that caused $323,000 damage to an offshore fabrication site operated by the provincial government’s energy corporation. Revealed through exemptions to the public tender act filed six months after the fire.

Jeers: to keeping things quiet. Here's something you might not have known: the Bull Arm fabrication site had an electrical fire that needed repairs costing more than $323,000 - and it didn't happen yesterday, either. The fire was in July. We'd be none the wiser save for a line in the public tender exemptions filed in the House of Assembly just before Christmas. Funny how everything from exemptions to the public tendering act to appointing judges to turfing out members of Memorial University's board of regents seems to happen either late on a Friday afternoon or else during the Christmas doldrums.

-srbp-