The Scope Guide to Bill 29

Illustration by Juan Darien

It was a bleak year for freedom of information in Newfoundland and Labrador.

In June, the government passed Bill 29, a proposed set of changes to the province’s Access to Information and Privacy Protection Act. Those changes will make it tougher for journalists and citizens to access inside government information.

It was one of the biggest freedom of information-related stories in the country this year, winning coverage from national media and scorn from democracy and freedom of information advocates.

Here’s the deal.

The Act

The purpose of the Access to Information and Privacy Protection Act (ATIPPA) is to provide accountability and transparency in the provincial public sector while ensuring that those organizations respect the privacy of personal information.

For example, ATTIPA specifies what kind of documents can be made public and how much personal information public bodies are allowed to disclose.

Anyone can ask the government for information by filling out an access to information request. The form is available on the government’s website.

You can ask to see what personal information the government has about you, you can ask to see your MHA’s emails from a certain time period, or you can ask to see government reports and safety assessments. Before they were posted online last month, you had to file an access to information request to see health inspection reports of the province’s restaurants.

Journalists use access to information requests all the time and many important stories, like the controversy surrounding the search for Burton Winters, come about because of information obtained through these requests.

Requests are evaluated by government employees according to the act: if you receive a pile of papers with blacked-out paragraphs, those paragraphs were blacked out because the information is classified under ATIPPA.

The Information and Privacy Commissioner

If you file a request for access to information and feel that you received less than what ATIPPA entitled you to, you can file a complaint with the Information and Privacy Commissioner, Ed Ring. Ring is the province’s independent access to information watchdog. In the event of a complaint, he’ll review the documents in question and then determine whether ATIPPA was used correctly in the decision to release or withhold those documents. He can’t make the government do anything, but he can take the case to the courts, who can.

The ability to file a complaint to an independent body for independent review is pretty key in maintaining government accountability.

The Commissioner has had his share of difficulties with the government: sometimes he isn’t given access to information, either. In January 2011, he said in a release that he was the only Commissioner of access to information law that couldn’t review documents that fell under client-solicitor privilege. That went to court and, after an initial loss and an appeal, he was awarded the right to review those documents.

The Bill

ATIPPA was up for review in 2010, so the government appointed Commissioner John Cummings to have a look at the legislation and see where it might be improved.

Bill 29 was the government’s response to Cummings’ report, and it was tabled in the House of Assembly on June 11 by Felix Collins, Minister of Justice and Attorney General.

It proposed the adoption of 16 of 33 recommendations highlighted by Cumming, some with a few modifications.

For example, the report recommended that requests for information deemed “frivolous or vexatious,” “made in bad faith,” or “trivial” be dismissed, so long as the Information and Privacy Commissioner gave it the okay.

Bill 29 took that up, but gave ministers the power to determine what was frivolous and what wasn’t.

The bill also expanded the scope of cabinet records exempt from access to include briefing notes, documents pertaining to deliberations and “all factual and background material prepared for the Cabinet.” A special class of cabinet record unavailable to even the Information and Privacy Commissioner was introduced.

Deadlines to respond to certain information requests would be expanded and the fees to file a request and have it processed would go up. Only salary ranges of government employees, and not their actual salaries, would be disclosed.

And the court decision that let the Information and Privacy Commissioner review solicitor-client privileged information would also be overturned.

After days and nights of non-stop debate in the House of Assembly that involved accusations of racism and barrels of coffee, Bill 29 was passed in the wee hours of the morning on June 15.

ATIPPA has been amended accordingly.

The WTF

The changes made headlines both provincially and nationally.

Democracy Watch, a national organization that advocates for for government transparency, said the changes were “dangerously undemocratic.”

The Centre for Law and Democracy, asked to review the proposed changes by the CBC’s On Point with David Cochrane, determined the new measures would put Uganda, Ethiopia and Guatemala, among others, ahead of the province in terms of freedom of information laws. (Felix Collins then issued a release stating that all the G8 countries also ranked below Uganda, Ethiopia and Guatemala.)

And Newspapers Canada’s 2012 Freedom of Information Audit said they constituted the country’s “biggest setback” of the year.

The New Normal

As reported by the CBC, the Information and Privacy Commissioner felt that, even though Bill 29 had passed and that there will be oversights, ATIPPA was still robust enough to protect people’s right to access information.

And, hey, at least we can always go to court.

Meanwhile, the CBC reported in November that the Yukon Territory is looking at similar changes to their Protection of Privacy Act that would restrict public access to “briefing documents, reports and recommendations.”

The Yukon government claims the changes would put the Territory’s information laws on par with other Canadian jurisdictions.

*Cough.*

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