Access to Rothschild report denied again
Privacy commissioner agrees report meets criteria for cabinet record
“The premier and minister of finance have said that there will be a forum for open debate of these choices at the appropriate juncture. One way or another, many of the choices which will need to be made will be debated in the House of Assembly through the budget process and/or some other statutory process.” Information and Privacy Commissioner Michael Harvey
Information and Privacy Commissioner Michael Harvey said in a report on Tuesday, Aug. 2, the Department of Finance is correct in withholding the Rothschild report from the public, citing Section 27 of the Access to Information and Protection of Privacy Act pertaining to cabinet confidences.
The report was previously requested by media outlets through access to information, and denied by the Department of Finance.
Saltwire Network, and one other complainant whose identity Saltwire is unaware of, filed complaints with the Office of the Information and Privacy Commissioner (OIPC) for access to the records.
Harvey conducted a formal investigation.
“Both complainants in this matter argued that the public should have the right to review the records as the report had been commissioned by the Government of Newfoundland and Labrador and paid for with public funds,” he wrote in his report.
“Additionally, as the report is a review of public assets and the potential future of those assets, the complainants argue that the public interest in the report is very high and should weigh in favour of release,” Harvey wrote.
The Rothschild report is the first comprehensive review of assets in the province’s history. It’s a broad review of the business, operational and financial condition of the government’s assets. The government commissioned the report at a cost of $5 million.
In an April 4 news release, the Department of Finance said the report had been received, but it wouldn’t be released publicly because it contained a significant amount of commercially sensitive information, and therefore it would be irresponsible of the government to release it.
“Commercially sensitive information can create value for third parties at the expense of Newfoundlanders and Labradorians. We would not want to harm the competitive or financial position of the province or diminish the potential value of this information by disclosing it to outside parties,” the news release stated.
In his Aug. 2 report, Harvey agreed.
“Not only is the public interest in disclosure not sufficient to be greater than the harm against which the cabinet confidences exception applies, but release of this information — at the record level — would be harmful to the public interest in an absolute sense by disclosing information that is sensitive to the value of our publiclyowned assets,” he wrote.
However, Harvey said there remains public interest in the consideration of the public policy choices the documents put forward to cabinet.
“The Westminster system of government, which involves open parliamentary debate on certain matters, and completely confidential debate on others, is designed to manage exactly such situations as these,” he wrote.
“The premier and minister of finance have said that there will be a forum for open debate of these choices at the appropriate juncture. One way or another, many of the choices which will need to be made will be debated in the House of Assembly through the budget process and/or some other statutory process.
“There may also be other ways in which the government engages the public. The accountability for how the public is engaged in these questions will rest with the provincial government in the coming months and years.
“At this juncture, my role is to confirm that the records in question fall into the category of those for which it is appropriate to retain within the shroud of secrecy that the cabinet confidence — not just an exception in ATIPPA, 2015 but also a constitutional convention — exists. My examination of the documents concludes that it does,” Harvey wrote.
Because Section 27 is a record-level exception, the records can be withheld in their entirety, meaning no redacted version of the Rothschild report will be released. However, complainants do have the option to appeal to the Newfoundland and Labrador Supreme Court.
‘INSIDIOUS’ IDEA UNDERMINES OVERSIGHT
Harvey’s investigation was not without difficulties.
He said the department initially refused to provide the Rothschild report to his office for review to determine whether or not it should be withheld. He said the department argued his office didn’t need to see the record — rather, a letter from the clerk of the executive council saying the report was developed as part of the cabinet decisionmaking process and formed the basis of cabinet deliberations should be sufficient to conclude that Section 27 applied.
Harvey said assurances alone are not sufficient.
“Oftentimes, a complainant, not being able to see the records, simply wants to know that a trusted impartial and experienced party has reviewed the records and concurs with the application of the exception. This helps build trust in the system. I can hardly tell a complainant that I also believe the exception applies unless I have seen some evidence that it applies,” he wrote.
The department did ultimately provide the records for review by the Office of the Information and Privacy Commissioner, but Harvey said the notion that assurances can discharge the burden of proof “is an insidious idea that undermines the notion of oversight and the purpose of this office.”