Improving Newfoundland and Labrador’s access to information system
Our province’s government relies, to a large extent, on the private sector to function. Without businesses acting as vendors to government, it would have to make its own sandwiches, tires, MRI scanners, and most everything else it needs.
By buying from the private sector, governments can, in many cases, take advantage of the efficiencies that businesses can create to procure goods and services at lower prices than had the government tried to produce them itself.
Government must therefore respect the privacy needs of the vendors it works with. The disclosure of confidential information could hurt the very vendors that government relies on for many goods and services. If vendors risked exposing their trade secrets or software codes to public disclosure every time they signed a contract with the government, fewer businesses might sign these contracts. This situation would make contracting with lower-cost options in the market potentially more difficult, and could force government in many possible cases to spend more for the same goods and services.
However, government also needs to ensure openness and transparency in all its operations. Beyond the ethical justification that backs the public’s right to know what government is doing, this right to know is also premised on the idea that governments govern better when citizens have unimpeded access to this information. Good governance is promoted because the public can see how government is spending public funds, among other things. This transparency identifies inefficiencies, discrepancies and violations of the law related to public spending. Mistakes can be corrected and learned from and wrongdoing can be discouraged, which will hopefully result in a more efficient and trustworthy government.
Although not necessarily always opposed, these objectives — protecting privacy and maintaining an open government — must sometimes be balanced. This is the case if a requester of government information feels that the withholding of information from disclosure is not justified under Newfoundland and Labrador’s Access to Information and Protection of Privacy Act (ATIPPA). Likewise, a vendor might seek to block the release of information it fears might give competitors an unfair advantage if that information were released to the public. Businesses often rely on keeping their plans and transactions secret, so as not to allow competitors to subvert their plans or steal proprietary information. However, this need must be balanced with the public’s right to information on public institutions, particularly information on how these institutions spend public funds, if the principles underlying accessto-information systems are to be upheld. Such principles can also be extended to cover government information that touches on public safety, the environment and other concerns.
Opposing claimants who want to appeal an access-to-information request will typically go through an appeals process. ATIPPA provides for the review of a request by an arm’s-length agency, but parties also have the option of pursuing an appeal through the courts. Such appeals can take years to resolve.
One case, involving a request for the disclosure of a contract signed between Memorial University of Newfoundland and the office supplies company Staples in 2011, spent years in the courts before it was resolved four years later. Although not all cases involving appeals will take this long to resolve, the Mun/staples case is emblematic of the difficulties in trying to maintain an open government while protecting the legitimate business interests of vendors to government. Such work is ultimately costly, and lack of resources is a common contributor to dysfunction within access-to-information regimes in Canada.
I don’t think striking an appropriate balance should be so complicated, drawn out, or costly for such cases. I see an opportunity for the government of Newfoundland and Labrador to streamline the province’s access-to- information regime by standardizing the collection of the most commonly requested data from government contracts. Much in the same fashion that the finances of charities are required by law to be disclosed in a standard format that highlights how donations are being spent, the government could consider requiring successful bids for contracts to include a similar form. This document would broadly describe what goods or services are being purchased, at what price, and any other important conditions such as guarantees or commitments to maintain equipment.
To avoid overburdening small businesses with red tape, such a document would only be required for contracts over a certain dollar amount. This document then could be uploaded automatically to an online government information portal (such as the Open Government website that the Government of Canada operates) or kept on file for expedited disclosure if existing resources could be used to run such a system.
Such a form would not cover all information relating to a contract, nor should it. Within these contracts is both information that would help improve public governance and transparency, and proprietary information that would hurt a vendor’s ability to do business if released. By standardizing the release of commonly requested information, resources could be freed up to process more complicated ATIPPA requests, spent elsewhere or returned to the taxpayer. Through these efficiencies, our province’s government and our province as a whole would benefit.
However, government also needs to ensure openness and transparency in all its operations.