When public inquiries were public
If information is deemed 'commercially sensitive,' the public might not hear about it all
Transparency and openness.
These are the "highest" principles to be used for guiding the Commission of Inquiry Respecting the Muskrat Falls Project, according to Barry Learmonth, one of the commission's co-counsels.
Those comments came at a media briefing this week, ahead of the start of public hearings on Monday.
But reporters were also told those principles won't be the only ones guiding the inquiry and the information coming out of it.
In short, anyone who is expecting a completely open, from beginning to end, public inquiry might be disappointed.
Journalists have been told they will not be allowed to:
- report any information given in-camera.
- publish any confidential exhibit (which includes the name of the witness, evidence given, or documents submitted).
So, what implications does that have?
What the Muskrat Falls commission is adding to the list of considerations that can outweigh the public interest are matters that may be of a "privileged, commercially sensitive or confidential nature" — and make no mistake, that authority is going to be invoked.
Expect Justice LeBlanc and the commission co-counsels to say "commercially sensitive" more than a few times.
In addition, some documents will be classified as "confidential" in the first phase of the inquiry — focused on the sanctioning of the project — but, as the commission co-counsels noted in the media briefing, "a lot" of documents will be classified as confidential in the second phase focused on the construction cost overruns.
It's unclear what "a lot" means in terms of quantity, but if you are expecting to see the contract details at the heart of how a mega project became a financial fiasco of boondoggle proportions, then you may be disappointed.
It's also not yet clear how much testimony will be provided in-camera, but in a subsequent email, Learmonth wrote, "I anticipate some testimony will be entered in camera."
But I remember a different time, of sorts.
I was the executive producer for CBC Radio in St. John's in 1982 when the Ocean Ranger sank and 84 people died.
For this province, it was one of those moments comparable to the assassination of John F. Kennedy or 9/11.
Public interest in the story was intense and the joint inquiry, by the governments of Newfoundland and Labrador and Canada, lasted 18 months — the same timeframe expected for the Muskrat Falls inquiry.
The inquiry heard 102 witnesses over 89 hearing days and nobody testified in-camera. The number of exhibits entered tallied 321, all apparently public.
"To the best of my recall, no items of evidence were designated as confidential, although some [morgue and autopsy evidence] were clearly more sensitive than others, and were handled with greater discretion," according to Scott Strong, a technical researcher with the Ocean Ranger inquiry.
When the public inquiry into the cover-up of sexual abuse by Christian Brothers at Mount Cashel Orphanage was launched in 1989, I was a St. John's-based producer for the national CBC Radio program Sunday Morning.
Almost 30 years later, Lynn Verge, who was the province's justice minister at the time, recalls "it was absolutely important" that the inquiry was conducted in public.
That inquiry took 10 months and with the exception of one-and-a-half days, it was all public. The hearings were even broadcast gavel to gavel, live across the province on cable television.
The only exception was when the commissioner agreed to hear evidence in-camera because — in the opinion of a psychiatrist — it would be impossible for one witness, a young man with psychological problems, to give evidence in an open setting.
How much is public?
The judges heading the Ocean Ranger and Mount Cashel Orphanage public inquiries had the same authority as Justice Richard LeBlanc, who is heading the Muskrat Falls inquiry, to hear evidence in-camera.
The Public Inquiries Act allows publication to be banned if the commissioner decides that the public interest is outweighed by "the consequences of possible disclosure of personal matters, public security, or the right of a person to a fair trial."
In more than 239 combined hearing days, the commissioners chairing the Ocean Ranger and Mount Cashel Orphanage inquiries invoked that authority and heard evidence in-camera for 1.5 days.
The Muskrat Falls Inquiry expects to hear from approximately 100 witnesses over 100 days of hearings.
The public should expect that they'll never know the names of some of those witnesses or what they said. The inquiry co-counsels did not predict the number of exhibits that will be submitted, but the public should also expect that they'll never know what some of them are or what they contain.
At the media briefing journalists were told the Commission is engaged in a balancing act between the public's right to know and things like commercial sensitivity.
I mentioned this to another person who was a key participant in the Ocean Ranger Inquiry.
They replied, "Well if it's not going to be public, then why bother?"