Privacy ruling major setback to public, media access to information

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A ruling by P.E.I. Privacy Commissioner Karen Rose contains good news and bad news for Island taxpayers.

Ms. Rose has ordered the provincial government to release a one-page document providing details of a $950,000 government loan that funded the province’s troubled e-gaming initiative.

The page was withheld by the province last November when it released the loan contract signed between the Mi’kmaq Confederacy of P.E.I. and Innovation P.E.I. The contract was released following a Guardian freedom of information request, made in November 2014.

Subsequent Guardian stories revealed the loan was made without security or collateral. The contract contained startling and disturbing revelations. If the e-gaming plan proceeded, the loan would be repaid through profits earned by the Confederacy. If the plan didn’t proceed, the Confederacy didn’t have to repay the loan.

It appears the Confederacy acted largely as a middleman in the plan and had no control over the loan, who was paid, how it was spent, who made those decisions or what happened to the rest of the money. The missing document should provide details on those key questions.

Since the loan was not repaid, Island taxpayers are on the hook for almost $1 million. And since it involved public dollars, taxpayers have every right to see those details.

The Guardian applied to the privacy commissioner for a review of the province’s refusal to release the missing page, arguing the information falls within the public interest.

The commissioner strayed off course in her ruling. She ordered that the page be released — not because it falls within the public interest, but because the information doesn’t belong to the confederacy, information on the page was not supplied in confidence and disclosure would not harm the confederacy’s competitive or negotiating position.

The privacy commissioner rejected The Guardian’s argument of public interest, saying this argument is only applicable if the matter is “compelling public interest,” applying mainly to matters of public health or safety and not political issues.

Any issue involving taxpayers’ money should be within the scope of public interest. By narrowly defining and limiting “compelling public interest,” the commissioner has dealt a serious blow to future appeals under the Freedom of Information Act.

This ruling offers the province a wide argument for withholding information in the future. The ruling could shield any number of documents from being disclosed if they are not compelling and don’t fall under major public health or public safety concerns.

Ms. Rose’s ruling is very troublesome. If the matter is not compelling, almost any document or information can be withheld — certainly anything dealing with political matters.

The rule of thumb should be that all information involving taxpayers’ money is of compelling public concern and should be released. The burden should be on the province to prove otherwise but just the opposite is in effect today.

The burden is now on the media or public to prove the issue is of compelling public concern. Under the FOIPP Act, the government had to prove that three exemptions existed in order to withhold information. If Ms. Rose follows her very narrow definition, fewer applicants will apply under the act as chances are slim of getting many documents released through FOIPP appeals.

Innovation P.E.I. can apply for a judicial review on the contract document ruling but it would be a huge mistake to do so.

The province has wasted enough taxpayers’ money on this loan without going through a hearing before a Supreme Court justice to try and overturn the ruling by the privacy commissioner.

But should the judicial review go forward, then hopefully the justice would not only uphold the release of the document but also redefine and widen what the act means in terms of public interest.

Ms. Rose’s interpretation of the act is much too narrow. It runs contrary of this of government’s professed pledge to be open, accountable and transparent. Secrecy must not prevail.

A government appeal to halt the release of this document would be a repudiation of this pledge and render the government guilty of hypocrisy in the first degree.

Ms. Rose’s ruling is a classic example of a modern day Pyrrhic victory — where the P.E.I. public and media won the battle but lost the war.

Organizations: Supreme Court

Geographic location: Iceland

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Recent comments

  • Regular Joe
    Regular Joe
    February 29, 2016 - 07:18

    You take a job were you are representing the interests of the public there should be no need for privacy in any dealings . It's supposed to be in the best interest of the public and it's public funds ,if it's hid and all dealings done in private, how do we know we have good representation .

  • Not my Name
    February 25, 2016 - 13:18

    Sorry, Karen, but the logic that "Any issue involving taxpayers’ money should be within the scope of public interest" doesn't work. If this was the case, all documents would be open, but there are reasonable justifications why this isn't the case (e.g. personal privacy). In this case, the reasons provided by the commissioner were spot on.

    • AL
      February 26, 2016 - 11:25

      I assume you must belong to that certain group, who think that they can do shady things and get away with it and not be investigated or charged or have your name publicized. Well what about the person who is alleged to have stolen a bottle of drink 5 years ago and has been named in the media. Where is the justice?? The taxpayers of PEI have a right to know where their hard earned dollars are being siphoned off, and by WHOM. If dealings are done above board then there shouldn't be a problem with transparency as Wade promised. but by going out of your way to keep them secret, is a sure sign something is not right. We need to have the right to see for ourselves. otherwise it gives the opportunity for certain people within our government to play loose with our taxes and not be exposed . "Puplic interest" needs to be respected, otherwise democracy is dead.