Freedom of information review gives PCs opportunity to close legislative loopholes

Whether its information about how Premier Brian Pallister communicates in Costa Rica or how civil servants gathered supporters to sit in on an immigration debate in 2012 — freedom of information requests have been at the base of some of the province’s biggest stories and scandals.

Manitoba Legislative Assembly Press Gallery asking for clarity around exemptions, reports to cabinet

A review of Manitoba's freedom of information legislation could fill in loopholes if done correctly, the Manitoba Legislative Assembly Press Gallery says. (Gary Solilak/CBC)

Whether it's information about how Premier Brian Pallister communicates in Costa Rica or how civil servants gathered supporters to sit in on an immigration debate in 2012, freedom of information requests have been at the base of some of the province's biggest stories and scandals.

Now, the province is reviewing the Freedom of Information and Protection of Privacy Act (FIPPA), but balancing a transparent government with a right to privacy is a tricky act.

"Sunlight is the best disinfectant and a government that is subject to laws that require them to be transparent, they spend money better and they spend money more effectively because people are watching them," said Dean Beeby, CBC News' Ottawa-based freedom of information specialist.

"They make better policies because those policies are more available for general discussion and dissection and examination."

The act came into force in 1998 and provides right of access to records held by public bodies while protecting privacy by setting rules for information collection, use and disclosure. Provincial legislation calls for it to undergo regular reviews and the last was in 2004, before it was significantly amended again in 2011.

"I think that it's great there is going to be a review of Manitoba law. These laws need to be reviewed every few years because the world of information is changing so rapidly and it's important that this not be left just to the politicians," Beeby said.

"It has to be a wider effort. It has to be journalists, librarians, data specialists, businesses even, that insist that these changes be made and the laws be improved."

Reviewing the legislation is a good opportunity for the province to catch up to freedom of information laws in other provinces, said Steve Lambert, past-president of the Manitoba Legislative Assembly Press Gallery and journalist with The Canadian Press.

The Manitoba Legislative Assembly Press gallery, which has 46 members and represents 11 media outlets, contributed a submission to the review calling for clarity and more reasonable time frames for access to information.

"Our biggest concern is that background information, data reports, things that the public pays for on matters of public interest are currently kept hidden," Lambert said.

"Basically right now anything that is submitted to a cabinet minister or produced by a cabinet minister cannot be released to the public for 20 years and that is such a wide all-encompassing exception that if you are in government and wanted to hide something you could just give it to a cabinet minister and claim that exemption."

Lambert pointed to laws in Nova Scotia and Alberta where the background information and analysis done within the government can be released, while the recommendations and discussions in cabinet are kept protected. In Nova Scotia, cabinet documents are released after 10 years.

Manitoba is reviewing the Freedom of Information and Protection of Privacy Act (FIPPA) but balancing a transparent government with a right to privacy is a tricky act. (THE CANADIAN PRESS/Adrian Wyld)
Lambert added they are also concerned that a discussion paper released by the government raised the idea of charging fees for freedom of information requests. The federal government charges $5 and some other provinces charge prices around $20 or more, but in Manitoba it is currently free to submit a request.

"There are some of us who file quite regularly because we are looking for matters of public interest and if it starts to become a budget line then there is going to be a natural dampening," Lambert said.

During the previous NDP government's reign, the Progressive Conservatives used freedom of information requests on multiple occasions including during the controversy surrounding then-immigration minister Christine Melnick being behind a plan to use civil servants to gather supporters to sit in the public gallery.

"Contrary to what the government was sort of hinting that this was some sort of grassroots movement … documents showed there was an organization within the department of immigration, which is supposed to be apolitical, non-political civil servants, that they were rounding up people to show support for the minister at the legislature," Lambert said.

It resulted in Melnick being kicked out of the NDP caucus and a report from Manitoba's ombudsman which showed certain documents were held back from the freedom of information request. Pallister, at the time, said it was not an innocent oversight.

CBC News' Dean Beeby has published four books, all of which relied on documents obtained through freedom-of-information laws. He has spoken at numerous FOI conferences and regularly gives FOI seminars to groups of journalists.
When freedom of information laws are first passed they seem to be well-crafted, Beeby said, but over time governments can find the loopholes.

"Over the years the law becomes less and less effective because they now begin to exploit these vulnerabilities … and unless you update your law you are really stuck with a piece of Swiss cheese. It's a bunch of holes held together by string."

However, Beeby said when governments change, often their ideas around access to information do too.

"It's just so predictable that opposition parties love these laws, that's their role is to hold government to account, but when these opposition parties come into power they lose all their enthusiasm for making changes," he said, not specifically pointing to the Manitoba PCs.

"That's where I think lobbyists and journalists and lawyers and people who believe in freedom of information really need to step up to the plate, because they need to stiffen the spine of governments that have promised transparency but once they are in office they lose their enthusiasm."

Manitobans are being asked to take part in the review and submissions will be collected until the end of the month.  

"One of the foundations of accountable government is transparency in the operation of public institutions. A right of access to the information that is created and collected by public bodies fosters transparency and trust in the institutions that serve Manitobans," Culture Minister Rochelle Squires wrote in the introduction to the review document. "I hope that you will think about how FIPPA has worked in the past and consider the challenges of managing information and privacy in the future. I invite you to provide input to the review process to ensure that the legislation continues to serve the needs of Manitobans."

About the Author

Kelly Malone


Kelly Geraldine Malone is a journalist based in Winnipeg. She worked for CBC Manitoba and was a University of Toronto Munk School of Global Affairs Fellow in Global Journalism 2016-17.