Low-key N.L. access-to-information review wraps up, in contrast to past turmoil

Nine years ago, controversy over the issue sparked late-night filibusters of protest at the legislature, and widespread brushfires of indignation and ire.

More than six years ago, a high-profile panel convened well-attended hearings on the topic that generated significant public interest and debate.

This past week, a much lower-profile process wrapped up, with recommendations now pending on possible revisions to Newfoundland and Labrador's access-to-information system.

On one side are provincial government officials who say the system is bursting at the seams, and changes are necessary.

On the other side is the transparency watchdog, who says the past five to six years have been a "story of success" through a "world-class" system onethat has provided citizens with the right to access information about what their government is doing and how their tax dollars are being spent.

That system has seen significant changes over the past decade.

In 2012, the Dunderdale administration brought in a series of sweeping restrictions that effectively napalmed the law. Chaos ensued in the House of Assembly there was a marathon filibuster, with MHAs using words like "fascist" and "racism" before Bill 29 was passed.

• N.L. law to clamp down on access to information
• Emotions run high amid 'racism' talk in N.L. access debate
• Record-setting N.L. access filibuster ended

After Dunderdale's departure two years later, her replacement as premier, Tom Marshall, announced that Bill 29 words that had essentially become shorthand for all kinds of government secrecy would be reviewed.

The committee put in place to do that was composed of a former premier and chief justice, a former federal privacy commissioner, and a prominent former journalist. It would go on to make 90 recommendations in 2015.

• Access-to-information laws to get an overhaul

Those recommendations effectively smashed Bill 29 into rubble and built a sturdy transparency foundation in its place. The Tory government passed the new law months before being swept from power. The Centre for Law and Democracy has described the current Newfoundland and Labrador regime as "by far the strongest right-to-information legislation in Canada."

By law, another review must happen within five years.

And that's where we are now.

'Burden' on the system

The changes up for debate this time around are much less sweeping. They do not entail a broad overhaul of the act. There is some tinkering around the edges, but also a few significant matters of contention.

First, the province wants to reinstate fees for anyone who wants to make a request.

The common theme running throughout the submissions by various provincial departments involves the quantity of requests and the "burden" that puts on the system, according to Philip Osborne, an assistant deputy minister with the Department of Justice who presented on behalf of all government departments.

"Public bodies are beyond their capacity when it comes to processing ATIP requests," Osborne told the review committee on Monday.

"There's a finite amount of resources that the government can dedicate to this service. And recommending more resources is not really a solution."

Osborne said requests are up 350 per cent since fees were waived in 2015, which has translated into a"dramatic increase in workload."

While the information and privacy commissioner has described that as the "cost of democracy," Osborne said,"We don't find that very compelling."

He said fees would chase off "meaningless" or "nuisance" requests.

The province is also asking for some timelines to be extended.

Other changes suggested by government departments

Officials are also calling for more protections for businesses who deal with or have contracts with the government, and whodon't want information to be released.

As well,they want to strip the transparency watchdog of the right to review documents that the province says fall under solicitor-client privilege.

The Liberals were aghast at that possibility while in Opposition, during the rancorous Bill 29 debate in 2012.

"I have heard these terms out there repressive, secretive, draconian, regressive these all apply," then Liberal justice critic and future Liberal justice minister Andrew Parsons said in the legislature at the time.

Two years ago, the government went to court to get an interpretation on that section of the law. Nowthey just want the legislation rewritten to slash that authority from the watchdog.

The last time the act was reviewed, in 2014, the chair of the review committee was critical of how the province had handled such matters in the past.

• Clyde Wells says government may have abused its own information laws

"It's clear that solicitor-client privilege was being abused and being asserted to prevent the release of the documents," former premier and chief justice Clyde Wells said at the time.

Back in the present, the province also now wants protection for settlement privilege written into the act.

That could shield from public disclosure the amounts the government pays out to end lawsuits and keep matters out of court. The province's transparency watchdog believes the current act protects that information, when necessary.

Current law is 'envy' of country, watchdog says

The information and privacy commissioner opposesthose more contentious stands taken by the province.

"The headline when it comes to this review is our act is in great shape, on the access side," Michael Harvey said during the last day of public hearings on Wednesday.

"It's the envy of jurisdictions across the country."

Harvey acknowledged that the issues at play are "arcane" and "inside baseball," and the hearings did not generate much public interest this time around.

But he said people of the province care about these principles, as seen during the Bill 29 debate and the resulting fallout.

And Harvey said those lessons apply going forward as well.

"As we go into a period of time where our government will need to be making very difficult decisions, I think it's really critical that to have the legitimacy to make those decisions the government must be seen to be making them transparently," Harvey said.

"I think it would be very regrettable if the government was to respond to the challenges, the inherent challenges, that come with access to information, by retrenching the access rights that were achieved six years ago now."

The review committee chair former chief justice David Orsborn has until June 30 to submit his report.

It will make recommendations, but is not binding.

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