Making a list, checking it twice

Not surprisingly, the revelation that the Cons have assembled official enemies lists has given rise to some call for those lists to be made public. But I'll take a quick look at why that process is bound to take at least some time - as well as the considerations involved in figuring out whether the Cons may choose or be required to reveal the names involved.

To start with, assuming the lists contain both individual and organization names, the federal Privacy Act actually prohibits the Cons from releasing the former (to anybody other than the subject individual) unless one of a set of specific criteria is met. See section 8 for the full list of permitted purposes for disclosure.

So as a starting point, the Cons are free to let the public know if the David Suzuki Foundation is on its enemies list. But before mentioning David Suzuki acting as an individual, they'd have to either get Suzuki's consent, or determine that the public interest in disclosure of his name outweighs his privacy interests. (In the latter case, a notification process might apply at the discretion of the Privacy Commissioner.)

The Privacy Act also allows for a right of individual access to personal information in the hands of a government institution. And so the fastest way for any individual to confirm or refute any possibility that they're on a departmental enemies list is to make a request for his or her own personal information in the hands of that department.

But then, we don't know exactly how many individuals might be named within the lists, and it's safe to say not everybody will make the effort to request their own personal information. Which leaves open the possibility of more general requests under the Access to Information Act which might produce some complete answers in relatively short order.

Once again, the personal information of a third party normally can't be released without either consent or a valid purpose. But the Access to Information Act also includes a formal appeal process which would allow the requester to challenge the government's actions. And as a matter of practice, an institution would normally ask the affected individuals for their consent.

In fact, on an access request to a particular department, we'd expect all of the individuals on that department's enemies list to receive formal notice at some point - either at the outset if the Cons properly seek their consent, or on review if access is flatly refused initially.

As for the more specific discussion of individuals involved, that could take somewhat longer if the Cons want to assert exemptions under the Access to Information Act. But I'd be skeptical as to whether any would ultimately be found to apply. And if the Cons try to delay matters now, they may only ensure that some highly damaging decisions and revelations surface just as the 2015 election approaches.