Here's to the crazy ones, the misfits, the rebels, the troublemakers, the
round pegs in the square holes... the ones who see things differently -- they're
not fond of rules... You can quote them, disagree with them, glorify or vilify
them, but the only thing you can't do is ignore them because they change
things... they push the human race forward, and while some may see them as the
crazy ones, we see genius, because the ones who are crazy enough to think that
they can change the world, are the ones who do.

Steve Jobs
US computer engineer & industrialist (1955 - 2011)

Monday, June 18, 2012

The New Official Secrets Act - Bill 29

The House of Assembly just wrapped up a historic filibuster on Bill 29, AN ACT TO AMEND THE ACCESS TO INFORMATION AND PROTECTION OF PRIVACY ACT . The four day, marathon session was covered nationally by every major press outlet, and of course locally in both the news and editorial pages province wide. The Centre for Law and Democracy, an internationally recognized organization on access to information, had this to say when asked for comment by the CBC:

"The new cabinet exception is, well, breathtaking in its scope... I think it’s one of the widest exceptions of that sort I’ve seen anywhere... The Newfoundland one, or the proposed cabinet exception, really takes it to another level... I don’t think I’ve ever seen one as broad as that. It really throws in the kitchen sink... What we see in other countries, and in Canada as well, is that governments often abuse those exceptions,and the way the thing is worded now, it’s really wide open to that kind of abuse.”

Very damning wording for any government to receive from an independent body, let alone on the issue of access to information - a basic right in a democratic society. Well, at least most of us view it that way, except, apparently, Justice Minister Collins who disagreed:

"Mr. Speaker, the right to information is an important one, one that we have to protect and guard," Justice Minister Felix Collins said during question period Tuesday. "But it is not absolute."

He then goes on to essentially tell it as it is with the changes to Section 18 of the new Act:

“The auditor general will have access only to those records that the clerk says he can have...
by expanding the list of cabinet records, it expands the list to which he does not have access.”

Worrisome as those words are, and they should concern any and every free thinking person, the really severe, and potentially dangerous words are found further down in the Act.

Section 24:

     24. (1) The head of a public body may refuse to disclose to an applicant information which could reasonably be expected to disclose
(a) trade secrets of a public body or the government of the province;
(b) financial, commercial, scientific or technical information that belongs to a public body or to the government of the province and that has, or is reasonably likely to have, monetary value;
(c) plans that relate to the management of personnel of or the administration of a public body and that have not yet been implemented or made public;
(d) information, the disclosure of which could reasonably be expected to result in the premature disclosure of a proposal or project or in significant loss or gain to a third party;
(e) scientific or technical information obtained through research by an employee of a public body, the disclosure of which could reasonably be expected to deprive the employee of priority of publication;
(f) positions, plans, procedures, criteria or instructions developed for the purpose of contractual or other negotiations by or on behalf of the government of the province or a public body, or considerations which relate to those negotiations;
(g) information, the disclosure of which could reasonably be expected to prejudice the financial or economic interest of the government of the province or a public body; or

(h) information, the disclosure of which could reasonably be expected to be injurious to the ability of the government of the province to manage the economy of the province.

Essentially, this section gives the "head of the public body" complete authority to refuse any information that could relate to any economic, scientific, or techincal information. That would include any information on Muskrat Falls, mining, etc.

Section 27:

   27. (1) The head of a public body shall refuse to disclose to an applicant information that would reveal
(a) trade secrets of a third party;
(b) commercial, financial, labour relations, scientific or technical information of a third party, that is supplied, implicitly or explicitly, in confidence and is treated consistently as confidential information by the third party; or
(c) commercial, financial, labour relations, scientific or technical information the disclosure of which could reasonably be expected to
(i) harm the competitive position of a third party or interfere with the negotiating position of the third party,
(ii) result in similar information no longer being supplied to the public body when it is in the public interest that similar information continue to be supplied,
(iii) result in significant financial loss or gain to any person or organization, or
(iv) reveal information supplied to, or the report of, an arbitrator, mediator, labour relations officer or other person or body appointed to resolve or inquire into a labour relations dispute.
(2) The head of a public body shall refuse to disclose to an applicant information that was obtained on a tax return, gathered for the purpose of determining tax liability or collecting a tax, or royalty information submitted on royalty returns, except where that information is non-identifying aggregate royalty information.
(3) Subsections (1) and (2) do not apply where
(a) the third party consents to the disclosure; or
(b) the information is in a record that is in the custody or control of the Provincial Archives of Newfoundland and Labrador or the archives of a public body and that has been in existence for 50 years or more.

This section backs up Section 24, and specifically uses the wording: "shall not disclose". There is no maybe, no 'it's up to the discretion of the head of the public body'. It very interestingly refers directly to the issues of royalties. This is interesting in that royalties collected from offshore oil are already well documented publicly. They are not a secret. Does it refer to mining royalties? Does it refer to a potential Royalty Trust Agreement for the financing of Muskrat Falls? This section would cover those. So it would appear the government's intentions are to keep these agreements secret - otherwise why single them out specifically in the Act, and leave no room for a head of a public body to do otherwise? The timing of this legislation, prior to the DG3 numbers on Muskrat Falls and its financing, contracts is suspect at best and does nothing to quell the very real suspicions of ordinary, thinking people. Most would consider common sense.
Section 43.1:

43.1 (1) The head of a public body may disregard one or more requests under subsection 8(1) or 35(1) where
(a) because of their repetitive or systematic nature, the requests would unreasonably interfere with the operations of the public body or amount to the abuse of the right to make those requests;
(b) one or more of the requests is frivolous or vexatious; or
(c) one or more of the requests is made in bad faith or is trivial.

This section is arguably the most dangerous to the basic democratic rights we all enjoy - or thought we did. Essentially, it gives the head of any public body the right to deny any request they feel like. It reminds me of the "Conduct unbecoming a member of the Canadian Armed Forces" provision in Canadian military law. It's a catch-all charge. One that if no other charge sticks this will. That is Section 43.1 - a catch-all clause. It gives a Minister the right to dismiss media requests for any information. Same goes for the Official Opposition. Same for the ordinary citizen. It is as undemocratic as you can possibly be without saying you are dictatorial - in words anyway. 
The Canadian Charter of Rights and Freedoms guarntees us:

Fundamental freedoms
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.

The question begs answering: How can one have the freedom of belief and opinion without the knowledge to form it? How can the media be free, and communicate truthfully when it is denied the information to form that truth? How can citizens form the beliefs and opinions that allow them to reason and judge the performance of their government without open and honest access to information that is neither censored nor filtered? This is not a case of martial law. This is not a case of internal insurrection. This is not a case of state secrets at a time of war. No, this is a case of the government of Newfoundland and Labrador being at war with its own citizens. A secret war. A war that requires an "Official Secrets Act" - Bill 29. 

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