Fun and Games with FOIPP Part 2

In a blog post a couple of months ago, I lamented the amount of time that is required to get information out of government.  In it, I mentioned that I have been trying to obtain copies of ads from Executive Council Office. In light of recent developments, I think this makes an interesting case study on the absurdities that can result when government and those responsible for holding them to account both lose sight of the principles of openness, transparency, and respecting the taxpayer.

The tale begins in late June, when Hannah and I decided that this fall we would introduce an integrity in advertising bill, similar to the one they have in New Brunswick. This legislation ensures that taxpayer-funded government advertising doesn’t take on a partisan tone. I’m sure I’m not the only one who has noticed all the ads coming out from government in bright Liberal red, with smiling Ministers all proclaiming just how great a job government is doing. Over the summer, I complained publicly about just such an episode, when six cabinet ministers handed over a $1 Million “donation” at a hospital fundraiser. It has gotten to the point you can’t tell the difference between government ads and PEI Liberal Party ads, so an advertising accountability act sounds like a good idea. In fact, Robert Ghiz tried to bring in a similar bill when he was leader of the opposition--although, oddly enough, he did not bring it back during his eight years as Premier.

Our first step in developing the legislation was to place a FOIPP request to establish exactly how many taxpayer-funded ads might be considered partisan, so we requested all government ads for the past 18 months with where and when it was published and the cost.  A few weeks later we were told that the scope of our request was too large and were asked to narrow it down. After some discussion we agreed with the Access and Privacy Services Office (APSO) to limit our request to all ads that feature the name, image or voice of any member of Executive Council.  These ads are explicitly forbidden under the New Brunswick law, as it uses public money to promote the profiles of individual politicians.

Next we received a fee estimate for $260 from APSO.  Under the FOIPP Act government can request applicants to pay fees to recoup the cost of processing the request.  We wrote back requesting the fee be waived pursuant to Section 76(4) of the FOIPP Act on the grounds that the records are a matter of public interest.  We argued that a large amount of public money is spent on advertising and it is in the public interest to establish whether it is being spent wisely.

We were then advised by APSO that the request would be put on hold until our fee waiver request was answered unless we provided a 50% deposit. So we sent a cheque for $130 to APSO to begin the process with the understanding that we were still requesting a waiver, and would be reimbursed the funds if the waiver was granted.

Eventually we received a letter from Paul Ledwell, Clerk of Executive Council & Secretary to Cabinet, Deputy Minister, Policy and Priorities, indicating that they had located 113 records responsive to our request.  He also stated that he would not waive the fee. You can read the entire letter here, but basically his argument was that although “we have concluded that the records may be related to a matter of public interest”, that “a full waiver shifts an unreasonable burden to the public body.”  The letter then goes on to describe how we can appeal his decision to the Information and Privacy Commissioner.

Upon receipt of the letter, my Chief of Staff immediately declared “We’ll see what the Commissioner has to say about that,” and began to draft a letter requesting a review of the decision. Although I usually admire her enthusiasm for natural justice, in this case I overruled her and reluctantly approved the payment.

It’s not that I don’t think the issue is a matter of public interest: clearly it is, even Paul Ledwell acknowledged that. But I was suddenly struck by the utter absurdity of the situation.  I wanted to determine whether we needed to introduce legislation to protect Island taxpayers from partisan advertising; Executive Council Office refused to waive the fee because providing us with the actual ads places “an unreasonable burden” on the public body, and therefore the taxpayer.To relieve that burden, they demanded a fee be paid by the Office of the Third Party, which is also funded by taxpayers. In effect, we have one taxpayer-funded body reimbursing another taxpayer-funded body to obtain information that all acknowledge is in the public interest.  By engaging the Commissioner, I would be placing more work on yet another taxpayer-funded body. Of course, we could request a review simply on the principle of the matter, but ultimately Island taxpayers will be on the hook.

Regardless of whether I agreed with Paul Ledwell’s decision, I thought it’s time to stop playing silly partisan games with public funds. Those games include government advertisements that promote a particular political party or FOIPP fees that take money from one public body’s pocket to pay another public body or impinging on the Commissioner’s valuable time just to make a point.  

So we sent the cheque, and we were sent the ads, but we did not receive information on the date and place the ads appeared or how much they cost.  We had requested that information in our original application, but that part was not included in our revised request, and we failed to notice the error. So here we are, drafting our legislation, with lots of pretty pictures of the Premier and Cabinet Ministers, but no idea how much it all cost. We approach the next legislative sitting poorer, but wiser.