Proposed legislative changes will allow the provincial government to keep ministerial briefings secret, ignore requests for information that cabinet ministers deem to be "frivolous," and bar the auditor general from a wider array of records.
Bill 29 imposes a sweeping range of restrictions on people’s right to know what is happening with the provincial government — and their tax dollars.
“The cornerstone of the Access to Information and Protection of Privacy Act is openness, transparency and accountability, and our government is committed to this important piece of legislation,”Justice Minister Felix Collins said.
The proposed amendments to the law broaden the definition of cabinet secrecy, barring the release of even “factual information” to the public. New classes of records are being created, which must be kept secret. Also, information that doesn’t even go to cabinet will be covered by new cabinet secrecy rules if the government says the documents were prepared for that purpose.
The auditor general will now be prohibited from accessing information that the province’s top bureaucrat says are official cabinet secrets. There will be no right of appeal.
“The auditor general will have access only to those records that the clerk says he can have,” Collins confirmed at a news conference Monday.
“By expanding the list of cabinet records, it expands the list to which he does not have access.”
Ministerial briefing notes will become off limits to the public. The government has been embarrassed in recent years by instances of ministers either not reading their papers or asking for verbal briefings to avoid public disclosure rules. The law change fixes that political problem. Documents are protected for five years after their creation.
Collins told reporters the release of briefing notes "creates a chill" in the government.
There is confusion over how the new law will affect information about pay and perks for government employees. In the past, the law allowed access to a wide range of remuneration, such as severance pay and bonuses. The new law calls for an employee’s salary range to be disclosed.
Officials say perks will still be public, but didn't provide reporters with an actual copy of the law to check that. Collins could not provide a definitive answer when pressed by reporters.
Research, audits delayed
Under the new rules, formal research reports and even audit reports can be withheld for three years if a cabinet minister decides the work is not complete.
Any consultations or deliberations involving anyone in government – employees, ministers and their staff – can be withheld from release with no time limit.
Additionally, cabinet ministers will now have the power to decide that a request for information is “frivolous or vexatious,” and simply ignore it.
“We’re not concerned with the fact this will be political," Collins said. "That’s not the case.”
Bill 29 further cuts the power of the independent watchdog that is charged with investigating citizens’ complaints. The Tory government has fought a series of Supreme Court skirmishes with the information and privacy commissioner to weaken his powers. The province has won some, and lost some. The bill tabled in the house enshrines the wins in legislation, and overturns the losses.
More and more records will be put out of the reach of the commissioner, leaving court action as the only recourse.
And Collins did not rule out future law changes to overturn future court decisions.
“Government’s prerogative is to make laws," he said. "Governments make laws.”
The release of information about businesses dealing with the government — including those seeking tax dollars — will be sharply curtailed. Currently, there is a stringent three-part test that must be met for the government to withhold that information; the new law makes that a simple one-part test, and expands what is covered by exemptions.
Royalty information will also be barred from release, except in aggregate form that doesn’t identify specific companies. Last year, oil and mining royalties funnelled nearly $3.1 billion into Newfoundland and Labrador’s treasury. That accounts for almost half of the province’s own-source revenues.
Deadlines to respond to requests will be pushed back, and fees increased.
Processing fees will jump to $25 an hour from the current $15, and the government will begin charging for “contemplation time” — however long it takes officials to decide how much information to withhold.
Many of the moves follow recommendations in a report issued last year by a retired senior bureaucrat.
The two opposition parties quickly condemned the new law.
“It takes us back in time," Liberal Leader Dwight Ball said.
“I think this actually makes this government more secretive than ever.”
NDP Leader Lorraine Michael was left in "absolute shock" by Bill 29.
“It’s the most regressive piece of legislation I’ve seen," Michael told reporters. "It’s a cutoff to the people of this province, a cutoff to the public, saying you don’t have a right to information. That’s the message to me.”
The two opposition parties say they will team up to filibuster the bill.
Meanwhile, the province's open-records watchdog is not commenting on the changes — at least for now.
"The bottom line here is that I am reluctant to make comments prematurely until the appropriate study and analytical work by my office is completed,” information and privacy commissioner Ed Ring said in an e-mailed statement.
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