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The Sir Robert Bond Papers: No help, not my department, and missing records #nlpoli

Starting a little over a hundred years ago,  the Government of Newfoundland  publishing a list of public servants by name, showing their job title, the department they worked for,  the annual salary,and the Christian denomination to which they belonged.

Since 1981 and the passage of the first freedom of information law in the province,  anyone . . . → Read More: The Sir Robert Bond Papers: No help, not my department, and missing records #nlpoli

The Sir Robert Bond Papers: Illegal deletions okay in NL: access commissioner #nlpoli

Shortly after he took office a month or so ago,  newly appointed information commissioner Donovan Molloy told CBC there had been a “substantial increase” in the number of access to information requests since 2015 when the House of Assembly passed a new access to information law.

True, said the always accurate labradore, but that was only in relation to the two years when Bill 29 seems to have reduced the number of requests. People had filed 343 access requests up to the first part of August. That would work out to about “800-and-some requests completed for the year,” according to labradore, “which would be something of a surge compared to Bill 29 levels, and even, to a lesser degree, compared to pre-29 levels.*

“But, apart from a hypothetical surge during the balance of the fiscal year, the statistics do not support the Commissioner’s concerns. … To the extent that there has been a surge in request volume since the 2015 unravelling of Bill 29, that may just as easily be accounted for by the fact that, in the post-Bill-29 era, the public is simply more aware of their right to access public records, and, thanks to the elimination of application fees and the praiseworthy creation of an online filing system, more able to exercise that right.”

Those comments are a good starting point, though for a couple of posts on the current state of the province’s access to information law.  What you will see in this two-part series is that there are  enormous obstacles to public access to government information.  The obstacles come from the way bureaucrats apply the law.  They produce their own problems and, in one of the most serious obstacles, illegal censorship gets the seal of approval from the province’s information access watchdog. 

Right to Access

In general,  government officials still do their job on the premise that all government information is secret except for the information they have to release under the access law.  The alternate view is to start from the premise that information should be disclosed except for the mandatory and discretionary exemptions in the access law.  That is essentially the one endorsed by the Wells’ commission in 2014. “The Committee concludes,”  the three commissioners wrote on page 53 of their final report, “that according quasi-constitutional status to the right to access information is consistent with the status accorded to that right in all other Canadian jurisdictions, reflects the views of the Supreme Court of Canada, is consonant with the views expressed in the overwhelming majority of the submissions presented to the Committee, and parallels the stature accorded to the right in international jurisdictions generally.”

Their draft of the access law reflects that view.  The purpose of the Act – section 3 of the legislation states – is “to facilitate democracy” by providing citizens with access to information “required to participate meaningfully in the democratic process.”

Non-Responsive:  stifling democratic involvement

The access request co-ordinators operate under a set of practices that don;t conform to that basic value, however.  The most striking example of this is their continued use of the concept of “non-responsive” information in a government record as a way to censor information that is not covered by one of the legal reasons to delete information.

Bureaucrats developed the idea of information that fell outside the bounds of a request as they set up the access system after the landmark changes introduced by the 2002  access to information law.  That was the first change to the freedom of information law since the first one was passed in the early 1980s.  If you asked for documents about widgets, for example, there might be a mention of widgets in another document about weebles.  If there was no other reason to block out the parts of the document about weebles,  access co-ordinators would blot out the sections and say they were “not responsive” or “non-responsive to your request.

The only logical reason to do that was if the bureaucrats operated on the premise that the public had a right to access only the information they had specifically asked for.  Everything else was secret.  Go back and look at the Wells commission’s comment, though.  The law is supposed to give people information to allow them to participate fully in the democratic system. The way the bureaucrats handle access to government information, you aren’t supposed to participate or at least you are only supposed to participate in a way they can control.

Widgets and Weebles

Let’s say that you are very concerned about government widget policy.  Unknown to you, though, there is a technical reason why government has to deal with widgets and weebles in the same policy.  The government document that turned up in response to my request for widgets gives a very good discussion of the issues involved in widgets and why you have to have a policy that covers both widgets and weebles if you want to make sure that the public widgets are safe. There is no reason to keep the weebles information from you, but the bureaucrats have cut it out because it was not what you asked for.

The Wells’ commission philosophy would give you the information about widgets and weebles. If government asked for your opinion on widgets policy in one of their “public engagement” sessions,  you would be able to give them an informed response.  You had now been clued into the link between widgets and weebles. You had done some additional research and now had some better ideas.  Maybe you had even changed your mind about widgets based on the new information.

Look at it this way and you can see pretty quickly the problems with what the bureaucrats are doing.  It uses a made-up exemption to limit public access to information in a way that violates the principles on which the access law is written.  The effect of the policy is to restrict public access to information.

Two Concrete Examples 

You can find this “non-responsive” exemption all over the place in the government’s record of disclosed requests.  One of the simplest ones is a request for the Premier’s desk calendar for the month of April.

Not surprisingly, the calendar he uses goes week by week and not month by month.  The actual page from the diary starts on March 28.

In the response,  right,  officials blacked out the last days of March as “non-responsive” solely because the person had asked only for the month of April.

If you look at the April calendar, you can see very few legitimate deletions.  That is, they actually blacked out a relatively small number of entries using the disclosure exemptions listed in the access law.   Logically, then, we wouldn’t assume there were any large number of secret events in those last few days of March.  They likely looked like April. But officials blocked out whole day’s worth of stuff because the person had only asked for April.  Any incidental information – even stuff in the public domain already – got the chop.

Another good example of the “non-responsive” deletion is also a very troubling one.  Someone asked for information about a controversial sand quarry in the Straits of Belle Isle, on the Labrador side.  The request was for:

“All information and records relating to the submission, review and approval of a quarry located in the area of L’Anse Amour Labrador (Natural Resources file# 71110846 and permit id # 132484) including written correspondence, emails, line department requests for commentary and responses to those requests for commentary, as well as any briefing notes and written analysis completed on impacts of the establishment of said quarry.”

The access co-ordinator deleted information on more than a dozen pages and labelled them as “non-responsive” in a request for all records.  The co-ordinator also deleted curse words in this document even though there is no legitimate reason to do so. Other co-ordinators have done the same thing. The name of an individual is deleted even though the information is contained in a summary of a radio interview in which the person was mentioned, by name, in public.  The access officials also held back some documents in the version posted online on the grounds that there may be a copyright issue associated with them.  Again, there’s no legal basis to do that and the practice is highly suspicious anyway given that the access officers will send you the redacted pages if you ask for them.

A second, similar request for documents includes the “non-responsive” deletions. The access co-ordinator even went so far as to invent an excuse for the “non-responsive” deletion, referring to section 8(2) of the access law.  That’s the section that permits deletion of information that is exemption from disclosure under the law.  it doesn’t access co-ordinators to make up deletions and then use this section as an excuse.

Information commissioner approves illegal deletions

The illegal deletions using the term “non-responsive” is actually endorsed by the information commissioner’s office.  In a “best practices” guidance issued May 11, 2016,  the commissioner notes that while there is no permission in the access law for this response, some other jurisdictions allow and it has been a common practice in Newfoundland and Labrador.

On that basis, the commissioner advised access co-ordinators they can continue to use the illegal deletion.  They should do so “sparingly and only where necessary and appropriate.”  Access co-ordinators should use the illegal deletion, the commissioner advises, while giving the law a “liberal and purposive” interpretation.

That’s a rather curious bit of legal gobbley-gook to justify continued illegal censorship.  After all, that the current access law comes complete with an extensive report written by three experts – one of them a former chief justice of the court of appeal – that explains the whole matter in plain English. There’s no need for a generous interpretation given that the public has a right to information, except as allowed by the access law and – as the commissioner’s guidance notes – there is no allowance in the access law for a “non-responsive” deletion.

“Coordinators are still free to use their discretion when it comes to the redaction of ‘nonresponsive’ information in a record…” the commissioner’s advice says.

-srbp-
Tuesday:  “No help, not my department,  and missing records”

. . . → Read More: The Sir Robert Bond Papers: Illegal deletions okay in NL: access commissioner #nlpoli

The Sir Robert Bond Papers: Bill 29 didn’t go far enough: public sector unions #nlpoli

The teachers’ union doesn’t want the public to know the names of public servants in Newfoundland and Labrador.The news late on Thursday is that NAPE – the province’s largest public sector union  – and the nurses’ union are thinking about joining t… . . . → Read More: The Sir Robert Bond Papers: Bill 29 didn’t go far enough: public sector unions #nlpoli

The Sir Robert Bond Papers: A mess in the government access and privacy world #nlpoli

Two recent stories about the province’s access to government information and privacy laws.Both of them are essentially nonsense.Short version for the new administration:  cock-ups in comms and access to government information helped destroy the Co… . . . → Read More: The Sir Robert Bond Papers: A mess in the government access and privacy world #nlpoli

The Sir Robert Bond Papers: The politics of information #nlpoli

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

On June 10,  you will find a post about crab fishermen from New Brunswick who want to sell their catch to a company near Corner Brook.  The problem is that federal . . . → Read More: The Sir Robert Bond Papers: The politics of information #nlpoli

The Sir Robert Bond Papers: Repealing Bill 29 #nlpoli

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

Meanwhile, at the Telegram, legislative reporter James McLeod has been waging a one-man crusade to get everyone to stop trying to repeal Bill 29.  Bill 29 actually fixed a few nasty things,  according to McLeod.  For example, rather . . . → Read More: The Sir Robert Bond Papers: Repealing Bill 29 #nlpoli

The Sir Robert Bond Papers: Talk is cheap. #nlpoli

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

No one can talk more while saying little of substance and so it is quite natural that Kent – the ultimate . . . → Read More: The Sir Robert Bond Papers: Talk is cheap. #nlpoli

The Sir Robert Bond Papers: D’oh! Telegram shags up Muskrat Falls access story #nlpoli

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

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

(Read more…)

The Sir Robert Bond Papers: How do they work, exactly? #nlpoli

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

Put ‘em all together with other information and you might have something interesting.  Not necessarily . . . → Read More: The Sir Robert Bond Papers: How do they work, exactly? #nlpoli

The Sir Robert Bond Papers: How did she work, exactly? #nlpoli

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

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

. . . → Read More: The Sir Robert Bond Papers: How did she work, exactly? #nlpoli

The Sir Robert Bond Papers: Access to Information – some misunderstandings #nlpoli

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

CBC News asked for a copy of a memo from the commander of the Canadian Army about leaks of information within the army.  CBC apparently had a copy of the memo or someone had seen . . . → Read More: The Sir Robert Bond Papers: Access to Information – some misunderstandings #nlpoli

The Sir Robert Bond Papers: Doing it right #nlpoli

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

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

While other details of . . . → Read More: The Sir Robert Bond Papers: Doing it right #nlpoli

The Sir Robert Bond Papers: Dunderdale’s Bill 29 “a dramatic step backwards” for transparency in NL #nlpoli

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

Well, as regular readers well know, the Premier is not usually right about many things and this is . . . → Read More: The Sir Robert Bond Papers: Dunderdale’s Bill 29 “a dramatic step backwards” for transparency in NL #nlpoli

The Sir Robert Bond Papers: The Beast #nlpoli

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

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

People who are genuinely . . . → Read More: The Sir Robert Bond Papers: The Beast #nlpoli

The Sir Robert Bond Papers: The New Secret Nation #nlpoli

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

This one focused on the claim by a spokesperson for the public engagement office that orders in council were not covered by a section of the province’s access to information law that . . . → Read More: The Sir Robert Bond Papers: The New Secret Nation #nlpoli

The Sir Robert Bond Papers: Censoring Public Documents… or not #nlpoli

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

Public engagement minister Keith Hutchings published a letter to the editor claiming that government had always censored orders in council.  The Telegram dutifully went back and asked for some of the same documents they’d . . . → Read More: The Sir Robert Bond Papers: Censoring Public Documents… or not #nlpoli

The Sir Robert Bond Papers: A Commitment to Secrecy #nlpoli

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

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

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

The Applicant . . . → Read More: The Sir Robert Bond Papers: A Commitment to Secrecy #nlpoli

The Sir Robert Bond Papers: Tories involved in violation of privacy act #nlpoli

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

. . . → Read More: The Sir Robert Bond Papers: Tories involved in violation of privacy act #nlpoli

The Sir Robert Bond Papers: 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 . . . → Read More: The Sir Robert Bond Papers: When rights are annoying #nlpoli

The Sir Robert Bond Papers: 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 . . . → Read More: The Sir Robert Bond Papers: Your Law School called… #nlpoli

The Sir Robert Bond Papers: 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 . . . → Read More: The Sir Robert Bond Papers: And that was the point, Felix #nlpoli

The Sir Robert Bond Papers: 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 . . . → Read More: The Sir Robert Bond Papers: The Vanished Records #nlpoli

The Sir Robert Bond Papers: 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 . . . → Read More: The Sir Robert Bond Papers: The Secrets Policeman’s Bollocks #nlpoli

The Sir Robert Bond Papers: 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.

First, there was Collins’ pathetic effort to explain why he and his colleagues would not fulfill their promise . . . → Read More: The Sir Robert Bond Papers: You would fight against disclosure too… #nlpoli

The Sir Robert Bond Papers: 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 . . . → Read More: The Sir Robert Bond Papers: Freedom from Information: the sorry Connie legacy #nlpoli