More questionable terms

Following up on my posts yesterday, there are two more points worth noting about the Cons' terms of reference to try to channel Justice Iacobucci's report in directions which they can easily spin.

First, it's worth noting that the Cons look to be providing Iacobucci with a means to classify as much information as possible as "injurious" by giving him a perceived out in being able to say that information under this definition should be released in the public interest anyway.

But I'd hope he's canny enough to resist the temptation to seek out an artificial compromise by saying a large amount of information is both "injurious" and worth releasing anyway based on public interest. Keeping in mind that nothing about Iacobucci's conclusions is binding on the Cons, I'd fully expect them to respond to that type of report by saying that nobody can object to their continuing to withhold "injurious information" based on their being more concerned about national security than some out-of-touch retired judge.

Second, it's worth noting the utterly bizarre third consideration tossed in for Iacobucci's review:

(iii) advise as to whether any document or information is subject to solicitor-client privilege or otherwise ought not to be disclosed for other reasons of public policy;

Now, it's not at all unlikely that some legal memoranda among the documents to be considered might be subject to solicitor-client privilege.

But it's worth paying very close attention to what solicitor-client privilege actually is. While it provides a party with a legal entitlement to withhold documents subject to the privilege, it doesn't create any reason to do so. And in fact, solicitor-client privilege isn't for the benefit of anybody but the client in question, and can be waived at any time by the client who holds it.

So when the Cons (inevitably if Iacobucci finds any documents to be subject to the privilege) start bleating that they'd be happy to release more information if not for that gosh-darned solicitor-client privilege, know that the argument is as outlandish as the rest of the Cons' excuses to suppress the documents. The effect of solicitor-client privilege is precisely to allow the client to decide for itself whether or not privileged information will be released outside the solicitor-client relationship - so if the Cons try to hide behind it, the responsibility lies entirely with them.

Indeed, the inclusion of the exemption in Iacobucci's terms of reference in the first place speaks volumes about the gap between the Cons' spin and their actual culture of secrecy. If the Cons had the slightest intention of living up to their rhetoric of releasing all "legally available" documents, they wouldn't be wasting Iacobucci's time pointing to an exemption which has absolutely no legal force beyond what they choose to apply. And the fact that they're including that as an extra excuse to try to suppress documents even after their "national security" claims are debunked should serve as the most compelling signal of all that the Cons' reference to Iacobucci is a bad-faith attempt to delay the matter.