A not quite, sort-of maybe vindication
Years and years ago, one of my bosses had a simple description of the key problem with access to information law. Laws, he pointed out, were like fences.
Every time you fence something in, you fence something else out.
Hold that thought for a second.
A few days ago, the province’s access to information commissioner issued a report on how the provincial government — and Fisheries and Land Resources Minister Gerry Byrne — handled the public release of information about a massive salmon die-off at an aquaculture operation on the south coast last August.
Byrne came under fire for not promptly and proactively releasing information about the collapse, and the commissioner investigated whether Byrne had done anything wrong.
Byrne’s department said it was under no legal obligation to release the information — a position the commissioner agreed with.
In a series of tweets, Byrne cast the report as a clear victory and, essentially, complete support for his actions: “In my own history as a parliamentarian, I have never experienced an oversight office conclude an investigation by saying ‘no recommendations’ to offer or required as the situation was well handled. Thank you to our Privacy Commissioner Michael Harvey for your work.”
But, of course, the whole situation is a little more nuanced than that.
Must Byrne release the details?
No.
Should he?
That’s a different question. (I’d say yes to that one.) Can he? Yes again. Remember that bit about the fences up top? In an Alice in Wonderland interpretation, at one point Byrne maintained that the province’s access to information legislation (ATIPPA) actually required him not to release information on the fish kill. In other words, his interpretation was that a law giving the public a guaranteed right of access to information, except for specific and limited exemptions, meant the minister had to keep his mouth shut.
“Minister Byrne indicated that he was considering public disclosure but he decided not to because of ATIPPA, 2015. … While the Minister initially indicated that ATIPPA, 2015 prevented him from disclosing information about the salmon die-off, he later clarified that his decision not to disclose the information was a policy decision that was guided by the principles in the access section of the Act,” the commissioner wrote.
Problem is, as the commissioner pointed out, the access law isn’t some kind of rulebook to force ministerial silence; the act only comes into play when someone makes an application for access to information.
As the commissioner’s report also spells out, “Furthermore, as a matter of general policy and good governance, public bodies are always encouraged to proactively disclose information when it is in the public interest to do so, regardless of whether it is required to disclose that information …”
Think about the optics here. The provincial government is very big on aquaculture. The provincial government is actually essentially an investor in big aquaculture projects. The province is also a regulator for aquaculture projects. Keeping quiet about a massive die-off seems, well, politically selfserving.
The commissioner was clear: the decision not to release the information was based on politics and policy, not access law, so he wasn’t really in a position to review the minister’s actions.
“Outside of those considerations, the decision to disclose information proactively would presumably be a political and/ or policy decision and involve the weighing of various considerations. Such decisions are outside the scope of ATIPPA, 2015 and oversight by this office.”
To Byrne’s credit, the rules have since been changed. Die-offs now have to be fully disclosed by aquaculture operators.
One final thought: while the commissioner didn’t find fault with Byrne’s actions, he did point out that his job was made more difficult by the fact that meetings on the issue were all done orally, and no records of what was discussed were kept.
It goes without saying you don’t have to produce records you don’t ever make.
Fenced in, and fenced out.