A big step backward for openness in Newfoundland
The Supreme Court of Canada has made clear more than once that the purpose of access to information legislation is to facilitate and support democracy. Public access to records about the workings of government helps keep those governments, both bureaucrats and politicians, accountable.
But if the government you want to hold accountable is the government of Newfoundland and Labrador, you’d better be careful not to ask for too much too often. New legislation rammed through the province’s House of Assembly in four days this week, in the face of a determined opposition filibuster, gives the government more ways to say no to access requests, to delay those requests or even to stamp them “return to sender,” and ignore them altogether.
Bill 29 looks to be the most potent attack on the public’s right to know in recent Canadian memory.
Officially, the legislation is a follow up to the Cummings Report, a review of the province’s access law that was released in early 2011 after sparsely-attended public consultations. But Bill 29 goes well beyond what that review recommended, giving public bodies the right to simply refuse to process requests they deem “trivial,” “made in bad faith” or an “abuse of the right to make those requests.” They could also refuse requests deemed “frivolous or vexatious.”
While the Cummings report recommended such a provision, it proposed to balance the measure with the public’s right to information by requiring the government to get the permission of the province’s information and privacy commissioner before a request could be rebuffed in this way. The government ignored that last part, leaving out the requirement to get the commissioner’s OK, thus creating an unchecked power by access bureaucrats to disregard requests because they believe it meets one of these ill-defined criteria. A requester will be forced into a time-consuming appeal to the commissioner or the courts if he or she doesn`t like the decision.
Under the bill, a request could also be refused simply because officials thought it was “too broad.” That at least would need to be pre-approved by the commissioner.
To say this is an invitation to abuse is an understatement. And its only one of several toxic provisions.
Another would allow the government, with the approval of the commissioner, to demand time extensions of theoretically unlimited length simply because a single requester, or two or more requesters working for the same employer or working “in association with each other,” filed multiple requests at the same time. Another would remove from public access for five years, any record prepared for a cabinet minister, to brief him or her for the House or when he or she assumed the cabinet post. Yet another would keep secret any record that was even proposed to go to cabinet. And the government plans to increase processing fees to $25 an hour, saying that brings it into line with other provinces. It should be noted, New Brunswick recently eliminated all fees.
To be sure, folks in government often feel that access requests chew up too much time, that response deadlines are too tight to allow for necessary internal approvals, and that some people “abuse” their right of access by making too many requests too often.
But this law seems a gross overreaction to a “problem” that is a problem only to bureaucrats, not the citizens exercising their rights. And to put things in perspective, a government discussion paper that preceded the access review noted there were about 500 requests a year. That’s about one request for every 800 adult citizens of the province, hardly an overwhelming avalanche of people seeking to exercise their democratic rights.
In fact, few people actually use these laws, and those who do in a systematic, repetitive, coordinated way are the very people trying to achieve the democratic accountability that the Supreme Court of Canada has said is the central purpose of access laws: journalists, interest groups, academics and others of a similar ilk.
Bill 29 goes too far. Sadly, the government didn’t see fit to allow a reasoned debate to unfold, instead using closure to push the legislation through so fast that many access advocates across the country barely knew of its existence before it was passed.
June 14 was not a good day for democracy in Newfoundland and Labrador, or Canada.
Fred Vallance-Jones is an assistant professor at the University of King`s College in Halifax, and an authority on access law in Canada. In the spirit of full disclosure, Vallance-Jones conducts an annual audit of government compliance with freedom of information laws, for Newspapers Canada, that involves people working together, for the same organization, making systemic, multiple requests to government agencies, including the government of Newfoundland and Labrador. Fred is also a contributing editor to J-source.