Changes to New Brunswick information law 'an alarm bell,' critics say

The Higgs government is giving itself the power to direct how departments and other public bodies process requests for documents and records, including the ability to apply different rules depending on the circumstances.

Treasury Board Minister Ernie Steeves describes the proposed amendments to the Right to Information and Protection of Privacy Act as making the process more efficient.

He said they will address "gaps, unclear wording and overly complex procedures" to help speed up the process of responding to the public's requests for information.

But the bill will also give him the authority to tell government departments and other public bodies covered by the law, such as municipalities, how to process requests.

The bill lets a Treasury Board minister "establish directives and guidelines setting out the requirements to be met" by the entities fielding requests.

What's more, it lets the minister decide if a directive is "general or specific" and lets him or her decide whether the rules "may apply differently in different circumstances."

That's "an alarm bell," according to retired CBC journalist Dean Beeby, an expert in access-to-information laws.

"When unspecified power and responsibilities are being given to a senior official of government, it can be so easily abused," Beeby said.

"Why are there no guardrails on this? Why is it so open-ended?"

Ombud Charles Murray said letting the minister apply different rules of disclosure in different situations creates a risk.

"The risk is that the minister will make arbitrary decisions or will be suspected of making arbitrary decisions," said Murray, who fields complaints from the public when the province doesn't provide what's been requested.

"To me, this amendment suggests that the minister be given more leeway to make those decisions as he or she feels fit."

The act is used by journalists, watchdog groups, opposition parties and other citizens to request government documents.

But the legislation is full of exemptions and procedures that often slow down or prevent release of what's being sought.

Steeves saidthe amendment is there to clarify the process for departments and other public bodies and speed up release, not to further restrict information.

"It's not like the minister can take the information and say 'No, you can't do this,'" he said.

The province's chief information officer, Liz Byrne-Zwicker, said the minister doesn't have the legal authority to provide guidance or directives under the existing law. But some other public bodies covered by the act, like municipalities, can benefit from that help.

"We would be responding to what they tell us is going to make sense and work best for them," she said.

"The intention here is to bring consistency to interpretation and the way things are done as much as possible."

For example, that could include clarifying what is meant by a duplicate document under the act, she said. Under the amendments, duplicate copies of the same document no longer have to be released.

No protection from abuse

Beeby said there's no long-term guarantee future ministers won't use the new section of the act to slow the release of controversial information.

"With all the goodwill in the world, maybe this minister will not abuse that power, but there are future governments that may have a different view."

Murray saida more efficient right-to-information system is not an end in itself.

"The most efficient right to information system possible would be one that gave people no right to information," he said.

"So we have to recognize that efficiency isn't the only value here."

And he saidthe risk in giving a minister more discretion is that the public will lose trust in the government when information is held back.

"Public trust, we are finding out in this pandemic, is one of the key determinants of how effective your anti-pandemic measures will be. If you're not trusted, the measures won't be accepted by the populace and they won't be effective."

The bill received second reading in the legislature on Nov. 12 and was sent to a committee for more debate.

Murray saidin the past, a bill like this would have gone to the law amendments committee for public hearings where witnesses like him could appear.

But the government opted to send the bill to the economic policy committee instead, the clearing-house for most government legislation with no public hearings and witnesses.

During the second reading debate last week, Opposition MLAs said the bill was the latest effort to erode the public's right to information.

"Every government since I can recall, since the introduction of our right-to-information legislation, has chipped away at this act and diminished people's right to information," said Green Party Leader David Coon, who's been using the act for almost four decades.

Liberal MLAs pointed out that one of their members, Bathurst West-Beresford's Ren Legacy, received 1,150 pages of documents on a provincial airport study but 1,050 of those pages were redacted.

"It's a wonder if there are any black markers left in the department," said Liberal Treasury Board critic Rob McKee.

Other elements of the bill appear to be benign attempts to make the process work better, such as clarifying that a department no longer has to send multiple copies of the same document.

If someone makes a request to the wrong department, that department will now have the legal authority to transfer it to the appropriate department rather than telling the requestor to start over themselves.

But other sections will let the government extend or suspend the normal 30-day time limit for responding to a request when a third party has to be consulted on releasing information about them.

Byrne-Zwicker said third parties, such as private companies communicating with the province, have rights under the act and the new provisions will help protect those rights.

Beeby said long delays lead to information being released long after it's timely or relevant.

"There's a tendency to drag these things out as long as possible," he said. "We don't want to hear about problems two governments down the line. We need to hear about them now, while they can still be corrected."