Gov­ern­ment ap­peals sun­shine list rul­ing

The Aurora (Labrador City) - - NEWS - BY JAMES MCLEOD

The pro­vin­cial gov­ern­ment is fight­ing a judge’s rul­ing on The Tele­gram’s sun­shine list project, tak­ing the case to the Court of Ap­peal this fall.

In doc­u­ments filed with the court, the gov­ern­ment ar­gues that the Ac­cess to In­for­ma­tion and Pro­tec­tion of Pri­vacy Act (ATIPPA) re­quires the gov­ern­ment to re­lease gov­ern­ment em­ploy­ees’ names and salaries when they re­ceive a for­mal re­quest.

In doc­u­ments filed with the Court of Ap­peal, the gov­ern­ment ar­gues that the trial judge who first heard the case got it wrong when it comes to the in­ter­pre­ta­tion of the law, as well as some of the ba­sic facts of the case.

All of this comes back to The Tele­gram’s sun­shine list project in 2016, when the news­pa­per tried to cre­ate a list of pub­lic em­ploy­ees earn­ing more than $100,000 by fil­ing ATIPPA re­quests to var­i­ous gov­ern­ment bod­ies.

Some agen­cies handed over the in­for­ma­tion, but the four health au­thor­i­ties and the New­found­land and Labrador English School District re­leased only job ti­tles and remuneration, hold­ing back the names pend­ing con­sul­ta­tion with em­ploy­ees.

Ul­ti­mately, the case was taken to New­found­land Supreme Court and heard be­fore Jus­tice Gil­lian But­ler.

The ar­gu­ments in the court­room hinged on the in­ter­pre­ta­tion of Sec­tion 40 of the act, an enor­mous 862-word chunk of law con­tain­ing five sec­tions, dozens of sub­sec­tions and more than a few sub-sub­sec­tions.

The ar­gu­ment came down to a ques­tion of how those var­i­ous sub­sec­tions in­ter­act with each other.

But­ler sided with the New­found­land and Labrador Teach­ers’ As­so­ci­a­tion (NLTA), rul­ing that on the balance of pub­lic in­ter­est, re­leas­ing pay in­for­ma­tion was ac­cept­able, but re­leas­ing names was an un­rea­son­able in­va­sion of pri­vacy.

The gov­ern­ment says But­ler got it wrong, and her in­ter­pre­ta­tion would neuter the spirit of the law.

“This would take the teeth out of Sec­tion 40(2), ren­der­ing it an es­sen­tially use­less sec­tion for those mem­bers of the pub­lic who wish to know to whom their tax dol­lars are be­ing given,” the gov­ern­ment said in its ap­peal court fil­ing.

The gov­ern­ment also ar­gued this sets up a ridicu­lous sit­u­a­tion in which some peo­ple are iden­ti­fi­able be­cause there’s only one per­son fill­ing a given job — say, deputy min­is­ter or di­rec­tor of com­mu­ni­ca­tions — but other po­si­tions where there are many peo­ple, like gov­ern­ment lawyers or pol­icy an­a­lysts, have their pri­vacy pro­tected.

To an ex­tent, the spe­cific case is moot be­cause the gov­ern­ment passed a sep­a­rate law last year re­quir­ing an of­fi­cial, for­mal sun­shine list of em­ploy­ees earn­ing more than $100,000 to be re­leased ev­ery year from now on.

But the gov­ern­ment’s court fil­ings ar­gue this case goes be­yond the specifics of just the one re­quest, and has im­pli­ca­tions for the re­lease of other kinds of in­for­ma­tion.

“Ob­vi­ously, when you look at our sun­shine list leg­is­la­tion, even though it has very sim­i­lar thought pro­cesses be­hind it, it is a sep­a­rate piece of leg­is­la­tion,” Jus­tice Min­is­ter An­drew Par­sons said. “This comes down to the in­ter­pre­ta­tion of ATIPPA, and it’s our opin­ion that the orig­i­nal de­ci­sion was not the proper in­ter­pre­ta­tion.”

In an emailed state­ment, the NLTA, which led the orig­i­nal fight against re­leas­ing the names of pub­lic-sec­tor work­ers, said it will con­tinue to ar­gue its po­si­tion at the Court of Ap­peal.

“The New­found­land and Labrador Teach­ers’ As­so­ci­a­tion is aware of gov­ern­ment’s ap­peal re­gard­ing the re­cent court de­ci­sion con­cern­ing the sun­shine list and the re­lease of per­sonal in­for­ma­tion,” the union said. “Our con­cerns were up­held in court and the NLTA re­mains com­mit­ted to the po­si­tion that leg­is­la­tion de­signed to pro­tect the re­lease of per­sonal in­for­ma­tion should not be used to re­lease per­sonal in­for­ma­tion. As a party in these pro­ceed­ings, the NLTA has re­sponded to the ap­peal.”

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