After a marathon filibuster debate, Newfoundland’s Bill 29 has passed in the House of Assembly.
The Bill, which will amend the current Access to Information and Protection of Privacy Act, was pushed through the house after three days of filibuster debate by the 11 opposition members.
The government says that Bill 29 will enhance and strengthen ATIPPA. But the opposition and a couple of ATI experts disagree, instead saying Bill 29 will make it more difficult to get information from the provincial government.
“I think it is the biggest step backward in access in Canada in recent memory,” said Fred Vallance-Jones*, a journalism professor at the University of King’s College in Halifax and the lead of the Canadian Newspaper Association’s Freedom of Information Audit last year.
“It curates some of the worst provisions of the legislation and then modifies them and bundles them together into this package that seems to give incredible power to either disregard or condemn request all because people in government find access to be a bit of a bother.”
Ministerial briefings will be kept secret and requests for information that cabinet ministers deem to be frivolous, systemic or repetitive can be exempted. As well, Bill 29 broadened the definition of what can be exempted on the basis of being a Cabinet record.
“I have never seen a cabinet exception as broad as that,” said Toby Mendel, the executive director of the Centre for Law and Democracy, who has analyzed and worked on more than 70 different access to information laws worldwide. “It applies to the documents that even though they were never looked at by cabinet, and even though they never even tangentially impacted on anything that cabinet did, somebody claimed that they were prepared for cabinet, and that’s enough to claim an exemption.”
“I think you can see the potential for abuse there,” Mendel continued.
When asked by J-Source how expanding the definition of cabinet records would strengthen ATIPPA, Vanessa Colman-Sadd, communications director for the department of justice said via email that exempting cabinet material is standard. “Cabinet materials under the current legislation and the proposed amendments are protected and will continue to be protected. In jurisdictions across the country, cabinet material is protected from disclosure and for good reasons. Cabinet confidence is vitally important on many levels.”
Vallance-Jones, agrees with Mendel in that broadening the cabinet exemptions is troubling.
“All they have to do is say this is a record that may be used before cabinet and it’s gone, instead of having to pass the test of actually having been to cabinet,” Vallance-Jones said.
The majority Progressive Conservative government says it made some of the proposed amendments to ATIPPA based on the Cummings report, an independent review of the legislation by lawyer John Cummings. 16 of the 33 recommendations in the report have been included in Bill 29.
“I think that they’ve gone well beyond what that report suggested,” said Vallance-Jones.
The Cummings report recommended an independent officer of the House – the information commissioner Ed Ring – define what sorts of requests can be ignored or deemed as frivolous, systemic or repetitive. But instead, the proposed legislation leaves that discretion to cabinet ministers.
“Giving public officials the power to reject those kinds of requests on the basis that they’re systemic – whatever that might be – I think that’s dangerous,” Mendel said.
Vallance-Jones agreed, saying that at least in Cummings’ recommendation, there was a check in the legislation that the commissioner had to be consulted first. But Bill 29 did not include this check.
“To me, this opens up the possibility that the government could simply refuse to process requests because it doesn’t like the requester, or it doesn’t like the content of the request.” Vallance-Jones said.
Appeals can be made to the commissioner, but Vallance-Jones says that it’s still a “huge step backwards,” and will make obtaining information more difficult.
Both experts took issue with the lack of definition provided for the contentious terms such as frivolous, systemic, vexatious and repetitive.
“I mean, who’s to judge if a request is trivial?” Mendel asked. “You don’t have to say why you’re requesting it so [the government] may think its trivial and may not want to answer it and deem it to be trivial even though you have a very important reason for asking it that could be important to the public interest.”
In a news conference earlier this week, Justice Minister Felix Collins said that public bodies will be subject to criteria and direction surrounding the amendments to ATIPPA to make sure requests would not be ignored for political reasons, but it’s not yet clear what those are.
The first recommendation of the Cummings report was to create definitions of routine disclosure and mandatory exemptions, but as they are non-legislative issues, Colman-Sadd that “work will commence in the near future to develop this policy.”
While Mendel’s assertion earlier this week that the amendments that Bill 29 proposes would rank its access laws below developing countries drew criticism from the government, The Centre for Law and Democracy is working on ranking the Canadian provinces to be released this fall.
Of the seven provinces they have analyzed so far, Newfoundland was at the top before Bill 29. After the Bill, they only fell to second place, but the rankings are made up of numerous features that make up access to information legislation (and is only ranked on the legislation, not the implementation). Exceptions make up 30 points on the 150-point scale, and under Bill 29, Newfoundland scored only 14 points – less than half.
“Once you start to dip below a certain critical mass in terms of exceptions, the law starts to become fundamentally flawed, and I think Newfoundland is getting close to that,” Mendel said.
In a release announcing the passing of Bill 29, Minister Collins said, “these changes reflect elements of similar legislation across the country.” This includes federal legislation.
The Centre for Law and Democracy ranked Canada 40th out of 89 countries in terms of access legislation in the fall of 2011, and last month, Canadian Journalists for Free Expression gave the federal government an F for access to information in its annual report.
When asked if the federal access legislation was something Newfoundland was truly trying to get in line with, Colman-Sadd simply said, “the act in general adopts similar sections in various other similar legislation from other provinces and the Federal Government.”
“I think what we see in Canada is a lot of bureaucratic resistance and hostility within the bureaucracy, and I don’t think that’s just within the federal government,” Mendel said. “They’re looking for exceptions rather than saying they should be giving this information and then looking for a reason why they can’t.”
Related links: A big step backward for openness in Newfoundland
*Disclosure: Vallance-Jones is also a contributing editor to J-Source.