On stonewalling

This weekend's Winnipeg Free Press story about a complete refusal to allow Steven Fletcher's briefing books to see the light of day has received plenty of attention. But I'm not sure there's been any discussion yet about an aggressive strategy by the Cons which has apparently gone unchallenged.

Here's the explanation which was apparently given to the Free Press about the process under the Access to Information Act:

A complaint to the information commissioner was made in September. This week, the Free Press learned because the PCO denied the information as advice to cabinet, even the information commissioner cannot request to see the documents in order to determine if the refusal was appropriate.

All the commissioner's office can do is ask the PCO to change its mind. The PCO said it wouldn't reverse its decision.

So what's wrong with this picture? To start with, it should be obvious enough that the information commissioner is able to request documentation from a government institution to support its denial of access. What it may not be able to do is to compel the PCO to hand over documents which are alleged to contain cabinet confidences - which looks like a rather important distinction from the message being sent to the Free Press.

That's particularly so since there's no lack of case precedents where commissioner reviews and court proceedings have been held based on the disclosure of documents to the commissioner's office to assess the application of the "cabinet confidences" exemption. As a result, the decision to stonewall even the information commissioner's attempt to review a refusal to disclose documents in the face of a contested claim of cabinet confidence looks to be a radical step for the Cons in making government less accountable.

Fortunately, there's another way to seek access to information where there's reason to doubt whether the cabinet confidence exemption applies. To the extent Fletcher's office has made a decision to classify its briefing books as privileged, that decision can be challenged in the Federal Court - and it seems to reflect a disturbing acceptance of the Cons' secrecy that such an option isn't even mentioned in the article as a last resort.

Of course, it's worth telling the story as to how the Cons are gumming up the works to the extent possible - particularly since that now extends to withholding records even from an independent officer with a statutory obligation of confidentiality. But it's equally worth noting that the Cons' stubbornness isn't the last word in the matter - and hopefully the Free Press and others facing similar declarations will be willing to see their requests through in order to get to the truth.