The law governing Nalcor Energy allows the Crown corporation to keep information about payments to embedded Muskrat Falls contractors secret — information that would likely be public, if it related to any other Newfoundland and Labrador government department or agency.
That's according to information and privacy commissioner Donovan Molloy.
"If these contractors were similarly supplying services to any other public body in the province, it is very unlikely that they could rely on ATIPPA to require the public body to withhold their billing and other information," Molloy wrote in a report.
ATIPPA is the acronym for the province's access-to-information law.
- Some now-secret Muskrat Falls contractor pay details were released by Nalcor Energy last year
- Dwight Ball prepared to change law to make Nalcor more transparent, if 'required'
- IN DEPTH | Pay packets and privacy: Why Nalcor says contractor compensation at Muskrat Falls is off limits
- Nalcor's refusal to disclose contractor rates 'doesn't pass my smell test,' says premier
The law governing Nalcor overrides ATIPPA, Molloy noted. It contains a very broad definition of what is considered to be commercially-sensitive information.
"I have no discretion to recommend the disclosure of the financial information," Molloy wrote in his report.
Complaints from CBC News and The Telegram
The information and privacy watchdog launched a review, after receiving complaints from CBC News and The Telegram.
Both media outlets had sought information on payments made to contractors on the $12.7-billion Muskrat Falls project. The project is years behind schedule, billions over budget and Newfoundland and Labrador taxpayers are on the hook.
Nalcor Energy rejected those requests, contending that contractor compensation is deemed commercially sensitive, and off-limits under the provincial law that helped set up the Crown corporation nearly a decade ago.
"The breadth of the definition in the [Energy Corporation Act] does not permit a different assessment," he wrote.
But Molloy referenced a letter written by Premier Dwight Ball to Nalcor in September.
In that letter, the premier endorsed "openness and transparency as it is a hallmark of any functioning democracy."
Molloy called that statement "encouraging" in his report.
"It appears the only solution to this unintended differential treatment of similarly-situated employees is via legislative amendment," he wrote.
'Legislation often leads to unanticipated results. The ability to amend legislation ensures that unintended consequences are not permanent.' - Information commissioner Donovan Molloy
"Legislation often leads to unanticipated results. The ability to amend legislation ensures that unintended consequences are not permanent."
He pointed to comments made by then-premier Danny Williams in the legislature a decade ago, when the Energy Corporation Act was being debated.
At the time, Williams said the restrictions were "very, very narrow" and applied to things like "competitive proprietary pieces of technology" of multinational oil giants like ExxonMobil.
"The intent [of that section of the act] was ensuring the ability to attract and do business with multinational corporations who might not engage in megaprojects if disclosure of their commercially-sensitive information was not restricted," Molloy wrote.
"The situation here bears no resemblance to that scenario."
Doesn't pass 'smell test'
The Ball administration will now have to decide what, if anything, it plans to do to address the matter.
In September, Premier Dwight Ball told reporters that Nalcor's secrecy on Muskrat Falls contractors didn't pass his "smell test."
A month later, in a scrum outside the House of Assembly, Ball left the door open to changing the law governing Nalcor, to enhance transparency at the energy corporation.
He said that if "legislative changes are what's required, then we're prepared to do that."
But Ball indicated he was waiting for the results of Molloy's review, before deciding what happens next.