Blocking access

CBC's Political Bytes blog doesn't seem to have received much fanfare from what I've seen. But it looks to include plenty of material, including this post on what appears to be a bizarre attempt on the part of Public Works to gum up the Access to Information process:

Recently, in response to three separate requests, the Department of Public Works replied, “the document does not exist."

Interestingly, with each of these there was an attachment that stated:

“REFUSAL TO CONFIRM OR DENY RECORD EXISTS
10.(1) Where the head of a government institution refuses to give access to a record requested under this Act or a part thereof, the head of the institution shall state in the notice given under paragraph 7(a) that the record does not exist”

It looked like a red flag, one that our reporters who specialize in access had never seen before. That prompted follow-up phone calls to the people who administer the Access to Information Act. It took a week to get the response that the records really do not exist, and that Public Works was just citing the actual wording in the act to convey that informaton.

Public Works appears to be the only department issuing these confusing notices, which are something of a Catch-22. If a document does not exist, the bureaucrats tell you that. But then they tell you exactly the same thing if they feel it is a piece of information they have they right to withold access to.

Not surprisingly, my initial reaction was that there's no way the Access to Information Act would actually say what Public Works is claiming on its access-request responses. And sure enough, the default Public Works response both incorrectly quotes the section, and cuts it off to make it appear to say something that it doesn't. The italicized parts of the section are the ones omitted by Public Works:

10. (1) Where the head of a government institution refuses to give access to a record requested under this Act or a part thereof, the head of the institution shall state in the notice given under paragraph 7(a)

(a) that the record does not exist, or

(b) the specific provision of this Act on which the refusal was based or, where the head of the institution does not indicate whether a record exists, the provision on which a refusal could reasonably be expected to be based if the record existed,

and shall state in the notice that the person who made the request has a right to make a complaint to the Information Commissioner about the refusal.

Note first that the section contains two "(a)"s in a row, but for obviously distinct purposes: the first serves to refer to the notice required by section 7(a), the second to actually divide up the responses available under section 10(1). By cutting out the second one, the Public Works notice makes it sound as if an institution is required to deny the existence of documents, rather than having that response available as one option.

Of course, that omission wouldn't cause a problem if Public Works hadn't also apparently cut out the rest of section 10(1) - including both 10(1)(b) which makes it absolutely clear that an institution may state that a document exists, and the requester's right to challenge any refusal to the Information Commissioner.

It's worth noting that the problem which would arise from Public Works' wrong interpretation can still be a factor under some circumstances since an institution may choose under s. 10(2) to refuse to confirm or deny whether a document exists. But that's a far cry from Public Works' implicit claim that it has no choice but to pretend that no relevant information exists. And it may not be a coincidence that it's the Cons' least accountable cabinet minister who holds ultimate responsibility for a misreading of the Access to Information Act which conveniently makes life more difficult for those seeking information.