Tuesday, June 16, 2009

On pending decisions

It's easy to simply gloss over the explanation served up for a failure to provide information in response to an access request, looking at the information not provided through documents rather than the information provided through the exemptions applied. But I have to wonder whether part of the latest response to Joe Kuchta might be highly important:
As for correspondence between the province and Bruce Power, CIC said it located one record responsive to the request. Access to the record, however, was denied “on the basis that if disclosed the record would release information that could reasonably be expected to disclose information, including the proposed plans, policies or projects of a government institution, the disclosure of which could reasonably be expected to result in the disclosure of a pending policy or budgetary decision...”
Now, it's worth noting that the provision of the Freedom of Information and Protection of Privacy Act (FOIP) relied on is one which doesn't seem to have been discussed in much detail either in Saskatchewan or elsewhere; only case seems to have applied it. So there's some room for interpretation as to how it would be applied.

But on its face, the exemption contains two main requirements. And there's potentially cause for serious concern if either of them are satisfied.

The first would be the existence of a "pending policy or budgetary decision". There, the main question is how the word "pending" would be interpreted: the exemption could conceivably apply to either or both of:
- decisions where the final outcome is still pending - i.e. decisions which haven't yet been made, or
- decisions which have been effectively finalized but are still pending public disclosure.

Here's the problem, though: other provisions in FOIP deal create specific exemptions for documents setting out options available to a government institution, as well as consultations or plans prepared by or for government institutions. Which means that an exemption which requires the existence of a "decision" would seem by comparison to be predicated on a decision already having been made.

And that's all the more likely based on the other main element of the exemption. After all, a document could hardly be "reasonably expected to result in...disclosure" of a decision if it merely points to options or possibilities rather than offering at least a fairly clear indication of what the final decision would be.

As a result, the response to Kuchta seems to suggest that the Sask Party's correspondence with Bruce Power includes a signal about decisions that have already effectively been made. And those "pending" decisions are being hidden from the province even in the course of what's supposed to be a public consultation process about Bruce Power's desire to build a nuclear reactor.

Needless to say, that possibility would seem to amplify the already-serious concerns that the consultation process is a sham. And there will be little reason to trust anything else the Sask Party has to say if it's already finalized its plans to go nuclear without bothering to inform the province.

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