Access denied: how perceived info blocking has dogged Tories in Newfoundland

ST. JOHN'S, N.L. - Premier Kathy Dunderdale was defiant during a recent exchange in the legislature when she touted Newfoundland and Labrador as one of Canada's most open governments.

It's a claim she has made repeatedly over the last 18 months after her Progressive Conservatives passed access to information changes that national accountability watchdogs called shockingly regressive.

Amendments to the Access to Information and Protection of Privacy Act in June 2012 blocked release of ministerial briefing notes, increased protections for cabinet records, hiked fees and allowed ministers to reject requests as "frivolous" or "vexatious."

Accusations of secrecy have dogged the Tories ever since.

Opposition Liberal Leader Dwight Ball says his first act if he wins the next election in 2015 would be to repeal those changes and launch a full review of access to government documents. He challenged Dunderdale in the house of assembly on Nov. 18 to overturn "the most secretive bill that this house has ever seen."

Dunderdale was unfazed. She cited a 2012 study on access to information by the Halifax-based Centre for Law and Democracy that found "we are open and transparent, far ahead of other provinces in this country ... and the federal government," she told the legislature.

But Toby Mendel, president of the centre, said those findings are nothing to gloat about.

"To claim that Newfoundland is doing well in this area because it is in third place in Canada is reminiscent of a race to the bottom," he said.

The centre's report — entitled "Failing to Measure Up" — specifically rapped Newfoundland and Labrador for new restrictions "that significantly weakened its access regime."

"To present such a major backsliding on such an important human rights and governance issue as acceptable, indeed progressive, suggests an arrogance and lack of respect for the people of Newfoundland," Mendel said.

The report also noted that the province along with New Brunswick, the Northwest Territories, Nunavut, Nova Scotia, Saskatchewan, Yukon and the federal government only allows its information commissioner to make recommendations, not binding rulings.

"This is a critical flaw, which severely curtails the power of the oversight body to ensure compliance with the law," it says.

Ball has also called for more public scrutiny of provincial Crown corporation Nalcor Energy, especially now that it's overseeing the $7.7-billion Muskrat Falls hydro project in Labrador.

"A lot of money is going into Nalcor and yet, here we are, with this company that still reports once a year," he said in an interview.

Duff Conacher, a board member of Democracy Watch, said it's of particular concern that the provincial auditor general can't publicly release spending reports that Nalcor itself deems to be commercially sensitive.

"That system sounds dangerously undemocratic," he said from Ottawa. "The determination of what needs to be kept secret should always be made by a fully independent watchdog agency, not by a company who is trying to avoid disclosure."

In an emailed response, Intergovernmental Affairs Minister Steve Kent said Nalcor will continue to release information that "doesn't compromise its ability to obtain competitive bids.

"Nalcor will continue to provide information pertaining to its operations at its annual general meeting and will continue to file audit reports similar to those filed by private sector companies."

It's a "just trust us" approach and it has stoked fears that the province is rolling the dice on a massive, publicly funded project with great potential but also huge risk, said Stephen Tomblin, a political scientist at Memorial University of Newfoundland.

"There's this kind of sense that there's a lot of stuff that's happening, some of it might be good, but why aren't we debating it? Why don't we have that data?" he said in an interview.

Dunderdale has often said Muskrat Falls is the most scrutinized project in provincial history, and that her government is releasing more information than ever before.

Information and Privacy Commissioner Ed Ring confirmed there has been no marked increase in formal complaints since the June 2012 legislation.

"The view from my office is that it has not been a significant factor in terms of access requests being up or down or indifferent."

Ball said one noticeable difference is an increase in blacked out or redacted information.

"It's one thing to say that you're getting the responses back. The big thing for us is the quality of what we're getting back."

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