Watchdog loses case over restriction of powers

A Newfoundland and Labrador Supreme Court ruling has confirmed that a wide range of government documents are beyond the reach of the province's information and privacy watchdog.

Supreme Court ruling makes courts the only possible option for range of appeals under open-records laws

A Newfoundland and Labrador Supreme Court ruling has confirmed that a wide range of government documents are beyond the reach of the province’s information and privacy watchdog.

Chief Justice David Orsborn dismissed a lawsuit filed by information and privacy commissioner Ed Ring.

"The commissioner cannot compel the production of records to which the act does not apply," Orsborn wrote in his decision.

"But this conclusion does not necessarily mean that the public bodies have free reign to refuse access to information by simply asserting that the act  does not apply to the requested records."

Information and privacy commissioner Ed Ring may make a statement Monday on the court decision. (CBC)

The chief justice said such disputes could likely be resolved by the courts.

In an e-mail to CBC News, Ring said he would be in a position to make a statement on the matter Monday.

Minister’s e-mails

The case involved access to e-mails sent by a cabinet minister during a time frame that his aide was allegedly threatening a putative candidate for the provincial PC party leadership.

The St. John’s Telegram asked for Business Minister Ross Wiseman’s e-mails and Blackberry text messages from his government account for the period of Jan. 4 to Jan. 6, 2011.

Brad Cabana sought — and was later disqualified from — the PC leadership. Cabana alleges that an aide to Wiseman visited him at home on Jan. 5 to strong-arm him out of the contest. Cabana has said he was threatened with "personal destruction" if he didn’t drop out.

The Department of Business said the e-mails were "political in nature" and exempt from disclosure under the province’s access-to-information laws.

The Telegram went to Ring’s office. By law, the commissioner investigates complaints made by citizens under the act.

Investigators are generally permitted to review the documents in question. Ring can then issue a non-binding report with recommendations on what should happen next.

But in this case, the government would not allow Ring to look at the records either. So the commissioner sued.

Orsborn’s decision fell in line with a similar one made two years ago by another Supreme Court justice.

Broad exemptions

Orsborn’s ruling effectively puts a broad range of documents beyond the review powers of the commissioner.

The list includes anything the government considers a personal or constituency record of a minister.

The decision follows another case where the government sought to restrict the watchdog’s access to anything it said contained legal advice, under a different section of the law.

A Supreme Court judge sided with the province. But the case was overturned on appeal.

Openness and accountability

The PC government came to power on a sweeping openness and accountability platform.

But since then, the Tory government has tightened its definition of what should be released to the public, suing to restrict the powers of the privacy watchdog.

And in January, Auditor General Wayne Loveys complained that the province was adopting a definition of cabinet secrecy much broader than ever used before.

Loveys said he couldn’t access information he needed to assess $5 billion in provincial infrastructure spending.

Government officials cited open-records laws in denying him access to the records.

"My view is that I am entitled to unrestricted access to the information required to conduct my work," Loveys wrote in his report at the time.

He said auditors had been provided with comparable information in previous years.

Premier Kathy Dunderdale insisted in response to Loveys’s remarks that the government had nothing to hide.

She suggested that the auditor general had other ways of getting the information he needed — although when pressed by reporters, she could not identify any of them.