June 12, 2012                     HOUSE OF ASSEMBLY PROCEEDINGS                    Vol. XLVII No. 47


The House met at 1:30 p.m.

MR. SPEAKER (Wiseman): Order, please!

Admit strangers.

Statements by Members

MR. SPEAKER: Today we will have member statements from: the Member for the District of St. John's West; the Member for the District of Kilbride; the Member for the District of Torngat Mountains; the Member for the District of Conception Bay East – Bell Island; and the Member for the District of Mount Pearl North.

The Member for St. John's West.

SOME HON. MEMBERS: Hear, hear!

MR. CRUMMELL: Mr. Speaker, I rise today to congratulate the St. John's Regional Fire Department on the positive review it recently received from the Fire Underwriters Survey, making it one of the best fire departments in the country.

The St. John's Regional Fire Department serves the Cities of St. John's and Mount Pearl and provides emergency services to the surrounding municipalities. As a result of this review, the department received new insurance grades of Class 1 for both residential and commercial properties. Mr. Speaker, with this reclassification, St. John's has become only the third city in the country to receive this top grade.

The insurance grades are based 30 per cent on how well the municipality provides water to the department and 70 per cent on various fire department related factors such as administration, communications, fire safety, inspection, training, vehicle maintenance, and specialty response. Mr. Speaker, this reclassification is a result of many improvements and much hard work over the past ten to twelve years in these areas.

I commend the St. John's Regional Fire Department on this achievement and ask all hon. members to join me in wishing them the very best in their service delivery to our region.

Thank you very much, Mr. Speaker.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The Member for the District of Kilbride.

MR. DINN: Mr. Speaker, I rise today in this hon. House to recognize the efforts of St. Kevin's High School, Goulds for its attempts to link the study body with the seniors the community. For the past fourteen years, St. Kevin's has held a Seniors' Day at the school.

Seniors, usually the grandparents and/or other relatives of a particular class, are invited to St. Kevin's for a full day of entertainment, food, and tours. The interaction that occurs during the events of the day allows the students to have a greater appreciation of the seniors. It also affords the seniors an opportunity to recognize the value of young people.

This year, Seniors' Day at St. Kevin's was held on May 23 and was sponsored by Mr. Halliday's Canadian history class. This class did all the planning and organization for the day's events, which started at 9:30 a.m. with an assembly and then a tour of the school followed. After a hot lunch, students provided entertainment for the seniors.

I ask all hon. members to join me in commending St. Kevin's High School, Mr. Halliday and his Canadian history class, for such a great day. Keep up the good work, St. Kevin's!

Thank you.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The Member for Torngat Mountains.

MR. EDMUNDS: Thank you, Mr. Speaker.

I rise in this hon. House today to congratulate Ms Sarah Leo on being elected as the President of Nunatsiavut – Nunatsiavut's first female president.

Sarah Leo, a former Angajukkak, or Mayor, of Nain, defeated Mr. Johannes Lampe by just thirty-six votes in Monday's election. This happened after the original election involving three candidates did not result in either candidate receiving a majority and a runoff election ensued between Ms Leo and Mr. Lampe.

Mr. Speaker, Sarah has gathered a tremendous amount of political knowledge through her tenure as Angajukkak of Nain and her term of office as Northern Vice-President of the Combined Councils of Labrador. Sarah is well aware of the challenges facing Nunatsiavut. She will be a wonderful ambassador for the people she has been elected to represent.

Mr. Speaker, the role of President of Nunatsiavut carries with it a high degree of responsibility, and I am confident Sarah has the confidence and support to fulfill this role with dignity and respect.

Mr. Speaker, I ask all members to join me in congratulating Ms Leo on her election. I ask that all members of this House give her your full co-operation.

Thank you, Mr. Speaker.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Member for Conception Bay East – Bell Island.

SOME HON. MEMBERS: Hear, hear!

MR. BRAZIL: Mr. Speaker, I rise today to acknowledge an outstanding businessman from my district who will turn 100 on June 29. Mr. Jim Yick, originally from the Canton province of China, emigrated to this Province eighty years ago to find a better quality of life.

He had to pay a head tax of $300, a substantial amount at the time.

He travelled from St. John's to Stephenville, working for as little as fifty cents a week so he could sponsor his family into Canada.

He settled on Bell Island in the early 1940s, and became a successful businessman on Bell Island and in Ontario in the areas of retail and real estate. When Newfoundland joined Confederation, he successfully sponsored his wife into Canada.

When the mines closed in 1966, he would not abandon his adopted home. He continued to invest in the community and worked in his retail business until 2006.

In 2006, Mr. Jim Yick received an apology and compensation for the head tax he paid to enter Canada. He held no ill feeling, as he was grateful for the opportunity to call Newfoundland and Labrador home.

He lives with his family in my district as a proud Newfoundlander and Labradorian. I ask all members to join me in wishing Mr. Jim Yick a Happy 100th Birthday.

Thank you, Mr. Speaker.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Member for Mount Pearl North.

SOME HON. MEMBERS: Hear, hear!

MR. KENT: Thank you, Mr. Speaker.

I rise in this hon. House today to recognize and congratulate the Parish of the Ascension for its outreach and support of the Primate's World Relief and Development Fund.

Mr. Simon Chambers, Communications Coordinator for PWRDF, recently visited the church in Mount Pearl and its congregation to share stories, information, and challenges that will help the church identify their contribution to PWRDF and how it makes a difference to others in the world.

Over the past year, the Parish of the Ascension in Mount Pearl contributed over $13,000 to the work of the Primate's World Relief and Development Fund. In particular, they held a fundraiser at Christmas which raised $1,300 for aid efforts in Haiti and over $1,300 for aid efforts in South Africa.

The Parish of the Ascension is a testament to the generosity and selflessness that exists in our community. I am impressed with the work that they do in our community and beyond. Reverend David Burrows and his team are doing great things.

Mr. Speaker, I ask all members of this House to join me in congratulating the Parish of the Ascension on their efforts to date with the Primate's World Relief and Development Fund, and wish them all the best as they continue helping others through their outreach programs.

Thank you.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: Statements by Ministers.

Statements by Ministers

MR. SPEAKER: The hon. the Minister of Finance and President of Treasury Board.

SOME HON. MEMBERS: Hear, hear!

MR. MARSHALL: Thank you, Mr. Speaker.

I am pleased to rise in this House today to recognize Public Service Week in Newfoundland and Labrador, which runs from June 10 to June 16. This year's theme, Mr. Speaker, is Celebrating Our Commitment to Public Service. That speaks to the pride and the dedication with which our valued public service employees serve the people and the families of Newfoundland and Labrador.

Each and every day, our employees develop policy and they deliver programs and services. These programs, services, and policies positively impact families, individuals, and businesses throughout the entire Province. Through their skills, their leadership, their professionalism, and their quality of work, they are helping to move our Province forward and to make it a better place in which to live and work.

They share a passionate and unwavering commitment to serving the citizens of Newfoundland and Labrador, and it certainly shows in all they do.

While we benefit from and appreciate their efforts throughout the year, Public Service Week provides a special opportunity for all Newfoundlanders and Labradorians to recognize the many accomplishments and contributions of public service professionals. It is also a time for those professionals to reflect and to acknowledge their own great work.

Mr. Speaker, I had the pleasure of participating in the Public Service Award of Excellence ceremony yesterday afternoon. I congratulated the one team and the six individuals who received awards. I also wish to congratulate all those who were nominated.

Mr. Speaker, the quality and the diversity and the value of the work of our employees is truly outstanding. To be recognized and nominated for this award by fellow employees is a great accomplishment in itself and they should all be very proud.

As part of Public Service Week, a number of departmental and government-wide events will be taking place in locations all around the Province. I encourage all public service employees to take part in these events and to reflect on the fact that their work truly makes a difference.

I know I speak for all Newfoundlanders and Labradorians when I say thank you to our employees for their efforts throughout the year. I will ask all members here today to join me in recognizing Public Service Week and the many valuable contributions of provincial government employees.

Thank you, Mr. Speaker.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The Leader of the Official Opposition.

MR. BALL: Thank you, Mr. Speaker.

I want to thank the minister for the advance copy of his statement.

I, too, want to congratulate the one team and six individuals who received the awards of excellence for their outstanding commitment to public service.

This also gives me the opportunity to recognize the thousands of men and women who make such a valuable contribution to our Province. They demonstrate their excellence each and every day through dedication, their professionalism, and their team work. We want to thank them for the role they play in serving the people of our Province and recognizing them for the very important role in making the major contribution to our Province and making it such a wonderful place to live.

This year's theme, Celebrating our Commitment to Public Service, is a perfect opportunity to thank our current employees and to extend our gratitude for the thousands of men and women who are now retired and for the years of service to our Province.

Thank you, Mr. Speaker.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The Leader of the Third Party.

MS MICHAEL: Thank you very much, Mr. Speaker.

I, too, thank the minister for the advance copy of his statement.

I am very pleased to join with him, and with the Leader of the Official Opposition, in commending the hard work and commitment of public service employees across the Province. The high standards and training required in today's public sector workplace have resulted in the professional dedicated workforce that we are proud of. I am impressed by the level of support for training for public employees, not just for professional development and skills training but also in areas such as gender awareness, antiviolence and inclusion. This latter kind of training helps our workers and our communities.

Thank you, Mr. Speaker.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Minister of Intergovernmental and Aboriginal Affairs.

SOME HON. MEMBERS: Hear, hear!

MR. McGRATH: Thank you, Mr. Speaker.

Mr. Speaker, Happy Valley-Goose Bay will host the 2012 Expo Labrador Resource Conference and Trade Exhibition from June 24 to June 27, and all indications are it will be the largest and most successful year to date for the annual conference.

Labrador is referred to as the Big Land and with the current boom we are seeing in the energy and resource sectors, the economic opportunities are even bigger. Stakeholders have the opportunity to realize significant benefits from this conference as they forge relationships and explore business deals. The theme, Prepare-Partner-Prosper, is particularly fitting for this year's event.

Mr. Speaker, Labrador is poised for massive economic growth and expanding infrastructure with an explosive mining sector and the forthcoming development of the Lower Churchill, beginning with Muskrat Falls. Resource industry stakeholders from across the country will meet to share their plans for major project developments, and local businesses and organizations will be eager to find out what the mining and energy corporations require in the way of on-the-ground support.

The economic future for Labrador is bright, and the provincial government understands the important role that Labrador plays in the overall success of our Province. I am proud to be part of a government that ensures our natural resources are developed for all Newfoundlanders and Labradorians to prosper today and into the future.

Mr. Speaker, we are proud to be a bronze sponsor at Expo 2012 through our Labrador Affairs Office, and I look forward to participating in the full conference agenda. I ask everyone in this hon. House to join me in congratulating the Labrador North Chamber of Commerce and all of the volunteer organizers of Expo Labrador 2012, as they prepare to host their biggest conference to date.

Thank you, Mr. Speaker.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Member for Torngat Mountains.

MR. EDMUNDS: Thank you, Mr. Speaker.

I thank the minister for an advance copy of his statement.

Mr. Speaker, I, too, congratulate the Labrador North Chamber of Commerce for organizing the conference. This conference began in the 1990s as the Voisey's Bay and Beyond Conference, with all the euphoria of the discovery of nickel in Voisey's Bay in Northern Labrador.

Mr. Speaker, the development potential was great then in Labrador, and it is even greater today. Labrador is a resource warehouse for the Province, with all the mining and energy potential that exists in the Big Land. All regions of Labrador are substantial economic contributors to the provincial coffers. This conference is an opportunity to celebrate our successes, and an opportunity to plan for the great potential that still lies ahead.

This conference has generated many successful Aboriginal business partnerships over the years through its networking environment. The combination of business and social events has provided great venues for partnerships to develop. The theme of this conference, Prepare-Partner-Prosper, is still very fitting as we continue to tap the valuable resources of the Big Land.

Thank you, Mr. Speaker.

MR. SPEAKER: The hon. the Leader of the Third Party.

SOME HON. MEMBERS: Hear, hear!

MS MICHAEL: Thank you very much, Mr. Speaker.

I thank the minister for the advance copy of his statement.

I am delighted to congratulate the volunteer organizers of Expo Labrador for their hard work and dedication, which has made the expo a great place to exchange ideas and share information. I hope this year I may make it; I have not been there in a couple of years.

I would also like to extend my congratulations to the Labrador North Chamber of Commerce, whose members will be celebrating fifty years. Labrador is poised for a boom, but government must ensure that the boom does not come at the expense of the people themselves of Labrador.

Thank you very much, Mr. Speaker.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: Oral Questions.

Oral Questions

MR. SPEAKER: The hon. the Leader of the Official Opposition.

MR. BALL: Thank you, Mr. Speaker.

Yesterday, the government introduced amendments to the Access To Information And Protection Of Privacy Act, or what is known as the official secrets act. These sweeping amendments, Mr. Speaker, will make it more difficult for everyone in the Province to get information from government.

I ask the Premier: How do these amendments give this act any more teeth, as the former Premier would say?

MR. SPEAKER: The hon. the Minister of Justice and Attorney General.

SOME HON. MEMBERS: Hear, hear!

MR. F. COLLINS: Thank you, Mr. Speaker.

During the debate over the last twenty-odd hours, it is interesting and amusing to see the spin that the Opposition parties put on this piece of legislation in order to gain political brownie points.

In fact, Mr. Speaker, this is a very significant piece of legislation. Based on the statutory review that we had to do, we have to review this act because we are bound by statute to do it. We will have to do it again, Mr. Speaker, in five years' time. With the explosion in information and the way technology has developed, the review will be imminent again in another five years.

Mr. Speaker, this bill contains many positive changes. It clarifies the legislation. It clarifies some procedural loopholes. It brings it in line with other jurisdictions. Mr. Speaker, it has a lot of positive aspects to it.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The Leader of the Official Opposition.

MR. BALL: Thank you, Mr. Speaker.

I guess the changes in technology are more about distribution than really as to access. If you really do not have access, you really cannot do the distribution piece.

Under the government's amendments, ministers will now decide if a request is considered frivolous. This has been taken away from the responsibilities of the Office of the Information and Privacy Commissioner.

I ask the minister: How do these amendments strengthen the role of the Information Commissioner in any way?

MR. SPEAKER: The hon. the Minister of Justice and Attorney General.

SOME HON. MEMBERS: Hear, hear!

MR. F. COLLINS: Mr. Speaker, nothing was taken away from the role of the Privacy Commissioner. There was no reference in the act – this provision was not in the act before with regard to frivolous information. Mr. Cummings was aware of the fact during his consultations, and it was brought home very clearly that there was a need to deal with frivolous and abusive process type of complaints. He realized that a lot of public bodies were getting these complaints and something had to be done, Mr. Speaker, to accommodate them.

Mr. Speaker, we have placed provision in now for heads of public bodies to declare requests for information to be frivolous or vexatious. That will be determined by criteria that will be established based on case law, on commissioners' reports, on policy statements, and policy manuals. Criteria will be developed, and developed over time, to make sure this is a good, informed decision.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The Leader of the Official Opposition.

MR. BALL: Thank you, Mr. Speaker.

From our interpretation of the amendment, what we are seeing here is there is quite a bit taken away from the Privacy Commissioner. Mr. Speaker, the Premier is removing the cold eyes of the Information Commissioner and putting responsibility squarely in the lap of government ministers.

I ask the minister: Why do politicians get to decide if a request is indeed frivolous?

MR. SPEAKER: The hon. the Minister of Justice and Attorney General.

SOME HON. MEMBERS: Hear, hear!

MR. F. COLLINS: Mr. Speaker, when a public body receives a request that is abusive, that is a repeated request for information that the body has already given out, when it is a request for information the body does not have and has already informed the individual that they do not have it, or has already been disclosed, Mr. Speaker, then the body has the right then to make a decision on that kind of a request.

Mr. Speaker, the body also has to let the person know why the decision is a frivolous request and also has to advise that person that they have a right to appeal to the Commissioner. Mr. Speaker, the Commissioner himself has the right to refuse requests based on frivolous and vexatious requests, and also has the same responsibility to advise the individual why their request is frivolous and where his appeal lies.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The Leader of the Official Opposition.

MR. BALL: Thank you, Mr. Speaker.

We all know that is a new responsibility of the minister. Mr. Speaker, nowhere in the Cummings Report does it recommend the removal of the substantive test for determining Cabinet confidences. Yet, government's amendment strikes the whole section and imposes a new definition for Cabinet records. The substantive test has been removed.

I ask the minister: Why did you go much further than Cummings suggested and remove the substantive test for Cabinet confidences?

MR. SPEAKER: The hon. the Minister of Justice and Attorney General.

SOME HON. MEMBERS: Hear, hear!

MR. F. COLLINS: Mr. Speaker, Mr. Cummings recommended that we extend the list of Cabinet documents that is covered by ATIPPA. He wanted the list to be taken from the Management Information Act.

All the lists of Cabinet documents in the Management Information Act are now considered Cabinet documents. Mr. Speaker, they are classified. There are official Cabinet documents, there are supporting Cabinet documents, and there are withdrawn Cabinet documents. Only documents that are certified by the Clerk that are being considered within the Cabinet Chamber are not subject to disclosure. The Commissioner, Mr. Speaker, has access to review all the other Cabinet documents.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The Leader of the Official Opposition.

MR. BALL: Thank you, Mr. Speaker.

Yesterday, the Premier stated there are a lot of vexatious requests for information and attributed those coming from the Opposition parties. Of the 175 requests for review from the Information Commissioner, 90 per cent were initiated by individuals and only 2 per cent from political parties.

I ask the minister: Why are you making it harder for individuals in our Province to access information?

MR. SPEAKER: The hon. the Minister of Justice and Attorney General.

SOME HON. MEMBERS: Hear, hear!

MR. F. COLLINS: Mr. Speaker, the national audit on access to information policies across the country in 2010 classified this Province as second in all the jurisdictions in the country in releasing personal information within the statutory guidelines.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Member for Burgeo – La Poile.

MR. A. PARSONS: Mr. Speaker, I look forward to receiving that report next year and seeing what the report card says.

Mr. Speaker, the Premier's government has committed to make all information available so there will be an informed debate on Muskrat Falls. We already know Nalcor is exempt from providing any information and now the new definitions of Cabinet records will prevent the release of anything Cabinet does in relation to Muskrat Falls.

I would ask the Premier: How can the people of this Province expect a complete and informed debate on Muskrat Falls once these new amendments become law?

MR. SPEAKER: The hon. the Minister of Natural Resources.

SOME HON. MEMBERS: Hear, hear!

MR. KENNEDY: Thank you, Mr. Speaker.

We, as a government, recognize the significance of the Muskrat Falls decision to our future and we have made it clear, Mr. Speaker, that all the information in our possession will be put before this House. We have indicated the Decision Gate 3 numbers will be made public. We have indicated that reports will be provided on natural gas, both in terms of the importation of natural gas, or the LNG option, and the building of a pipeline from the Grand Banks. We have indicated, Mr. Speaker, that this House will have the information required. Manitoba Hydro International will review Decision Gate 3 numbers; there is nothing in this act that will affect in any way the amount of information that we will put before this House to allow for a full and informed debate.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Member for Burgeo – La Poile.

MR. A. PARSONS: Mr. Speaker, I am going to go right to the question and skip the preamble.

I would ask the Premier: Isn't it now correct that your government will control what information is available and provided to debate Muskrat Falls, and even the commissioner is being excluded as a fair arbitrator to decide what should be provided?

MR. SPEAKER: The hon. the Minister of Natural Resources.

SOME HON. MEMBERS: Hear, hear!

MR. KENNEDY: Thank you, Mr. Speaker.

Perhaps again we should look at the Cabinet process. What happens, Mr. Speaker, is a briefing note is prepared. The briefing note can then end up in the form of a Cabinet paper, which goes before Social Policy, Economic Policy, or Treasury Board, and it works its way to Cabinet. Mr. Speaker, there is nothing secret about what is being done; it is the deliberations that we are looking at.

In terms of Muskrat Falls, all we are saying here is that all the information will be provided and that we have committed to a full, open, and transparent debate. I can assure the member opposite that we will provide the information. In fact, I have even looked, Mr. Speaker, at providing information that we do not have to provide as a result of certain well-known privileges and law.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Member for Burgeo – La Poile.

MR. A. PARSONS: Mr. Speaker, it is coincidental that as we debate the ATIPPA here in the House, the appointment term for Mr. Ring, the current Commissioner, is up on June 24 of this year, two weeks away.

I would ask: Do we intend to reappoint Mr. Ring to a further term or replace him with a blatantly political appointment like we did with the Chairman of Nalcor?

MR. SPEAKER: The hon. the Minister of Justice and Attorney General.

SOME HON. MEMBERS: Hear, hear!

MR. F. COLLINS: Mr. Speaker, the second part of that question does not deserve an answer. With respect to the appointment of the Commissioner, the Commissioner now has a two-year appointment. It has been working very well. We have renewed his position every time; he has done a great job. We have a great relationship with Mr. Ring. His office and his staff are well sourced and well funded. Mr. Speaker, we have absolutely no problem with Mr. Ring's job.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Member for Burgeo – La Poile.

MR. A. PARSONS: Mr. Speaker, while we have the Minister of Justice answering questions, I would ask: Why did your government not accept the recommendation of Mr. Cummings, which said the term of appointment for the Commissioner should be five years, rather than the current two-year term?

MR. SPEAKER: The hon. the Minister of Justice and Attorney General.

SOME HON. MEMBERS: Hear, hear!

MR. F. COLLINS: Mr. Speaker, if it is not broke, do not fix it; we have had a good relation with Mr. Ring on two-year appointments, and Mr. Speaker, we will continue to do that. It is working well for us.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Member for St. Barbe.

MR. BENNETT: Mr. Speaker, the minister talks about removing the three-part test currently in section 27 and replacing it with a one-part test adopted from Manitoba.

Minister, why does your government now want to use a less democratic one-part test, while six other jurisdictions use a more democratic three-part test?

MR. SPEAKER: The hon. the Minister of Justice and Attorney General.

SOME HON. MEMBERS: Hear, hear!

MR. F. COLLINS: Mr. Speaker, several jurisdictions across the country use a one-part test. In negotiating with our business partners, and in negotiating business deals and programs to affect and improve the business and economy of this Province, Mr. Speaker, we have to have a certain degree of confidence in the businesses to display their information, their business plans, their financial assets, and whatnot. We have to afford the protection, Mr. Speaker, so that we can grow this economy and grow our businesses. Mr. Speaker, it is in the interest of the economy and the interest of good business to do that.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Member for St. Barbe.

MR. BENNETT: Mr. Speaker, section 20(1)(a) outlined reasonable circumstances under which a minister could refuse to provide information, yet you are now amending it to be so broad that virtually any information can be refused by the minister.

How is accountability improved, pursuant to access laws, by giving the minister unfettered discretion to trample people's rights to information?

MR. SPEAKER: The hon. the Minister of Justice and Attorney General.

SOME HON. MEMBERS: Hear, hear!

MR. F. COLLINS: Mr. Speaker, I mentioned in debate during the last twenty-four hours the spin that the members put on this legislation, and the creative ways they used that do that. Some member suggested that you were closing all the doors and windows; the hon. member now says we are trampling the rights of Newfoundlanders and Labradorians.

Mr. Speaker, the right to information is an important one, one that we have to protect and guard, no doubt about that, but it is not absolute – it is not absolute. We have to find a balance in terms of giving people access to information, but also being good stewards of the country's assets and the country's information and records. There has to be a balance, and we think this act has found that.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Member for St. Barbe.

MR. BENNETT: Mr. Speaker, after being refused the documents outlining the Province's fictional infrastructure strategy, the Auditor General in his report noted that, "…I am entitled to unrestricted access to the information…" "…to conduct my work." However, Bill 29 deliberately entrenches permanent barriers to the information required to allow the Auditor General to properly audit the public records of this Province.

Minister: Why are you restricting the role of the Auditor General in this Province? What are you trying to hide?

MR. SPEAKER: The hon. the Minister of Justice and Attorney General.

SOME HON. MEMBERS: Hear, hear!

MR. F. COLLINS: What are we trying to hide, Mr. Speaker? We brought him in here in the first place, Mr. Speaker.

SOME HON. MEMBERS: Hear, hear!

MR. F. COLLINS: Mr. Speaker, the Auditor General never had access to Cabinet records, but Cabinet always provided the Auditor General with the information he needed to do his work. Mr. Speaker, we are doing a consequential amendment to the Auditor General Act to make sure that he does not lose any powers and keeps the capacity he currently has.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Member for Bay of Islands.

MR. JOYCE: Mr. Speaker, you may have brought the Auditor General out but I guarantee you, you are barring him out right now – I guarantee you that.

Premier, your government suggests that there is no increase for anybody using ATIPPA other than bringing the fees in line with other jurisdictions; yet, you will now charge not only for the time it takes to sever information but also the time it takes to contemplate what you sever.

I ask the Premier: How can you suggest this is not a prohibitive increase and will deny persons from access to information?

MR. SPEAKER: The hon. the Minister of Justice and Attorney General.

SOME HON. MEMBERS: Hear, hear!

MR. F. COLLINS: Mr. Speaker, I would like to point out to this House and to the hon. member opposite that we still have one of the best fee structures in the country. Mr. Speaker, we retained our $5 application fee. Mr. Speaker, we will give them the first four hours free of charge in investigating ATIPPA requests – free of charge for the first four hours. Then we charge $25 an hour while the rest of the jurisdictions mostly charge $30 an hour. Mr. Speaker, we also have provisions that if there is evidence of hardship in paying for a request, then we can make arrangements with the person to deal with that.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Member for Bay of Islands.

MR. JOYCE: Mr. Speaker, one change in the new contemplated fee schedule is a provision for contemplation time. This is supposed to cover the time when civil servants will sit around and think about how much information they better hold back from the applicant and what will be redacted.

SOME HON. MEMBERS: Oh, oh!

MR. SPEAKER: Order, please!

MR. JOYCE: To the Premier, I ask: How government plans to regulate this –

SOME HON. MEMBERS: Oh, oh!

MR. SPEAKER: Order, please!

MR. JOYCE: – contemplation time, and how do they plan to ensure that contemplation time is different from regular work time?

MR. SPEAKER: The hon. the Minister of Justice and Attorney General.

MR. F. COLLINS: Mr. Speaker, it is somewhat ironic and sad really, the reflection that the hon. member casts on our civil servants during this Public Service Week, when the Minister of Finance just stood on his feet a few moments ago and received complete accolades in this House in praise of our public servants.

Mr. Speaker, there are hundreds of hours, literally, go into some of those requests – hundreds, Mr. Speaker. We have put in a fair fee scheme in order to properly accommodate our financial costs. We do not use it to recover costs. The fees are not used to recover costs. It is a fee schedule, Mr. Speaker, that is fair. It is embedded in a lot of other jurisdictions in the country.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Member for Bay of Islands.

MR. JOYCE: You should go down and tell the 550 people of Eastern Health how much you are concerned about them, Mr. Speaker.

Your government is contemplating increases in a whole range of ATIPPA fees. Can the Premier advise how much government charged last year in ATIPPA fees and also provide income projections for how much government anticipates to bring in, in ATIPPA fees under this new regime?

MR. SPEAKER: The hon. the Minister of Justice and Attorney General.

SOME HON. MEMBERS: Hear, hear!

MR. F. COLLINS: Mr. Speaker, I do not think my colleague, the hon. the Minister of Finance, is depending on ATIPPA fees to balance the budget next year or anything like that.

Mr. Speaker, ATIPPA fees are not used to recover costs of these things. They are nominal fees, Mr. Speaker. As I mentioned, right now the first four hours are free. If the cost goes over $50, then we have to do an estimate, Mr. Speaker, and the cost will be $25 an hour. A good rate compared to the rest of the country.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Member for Torngat Mountains, for a very quick question, I say to the member.

MR. EDMUNDS: Mr. Speaker, under the new ATIPPA amendments applicants will now be required to use the resources to go to court rather than have a commissioner review, and if necessary have the matter adjudicated by the courts.

How is this not a step backwards in allowing persons access to information?

MR. SPEAKER: The hon. the Minister of Justice and Attorney General.

SOME HON. MEMBERS: Hear, hear!

MR. F. COLLINS: Mr. Speaker, all during the debate last night and today, members keep referring to the fact that people cannot get access to information anymore. It is no good looking to government for information, you are not going to get. You will have to go to court. If anybody comes to me now, said one speaker last night, for information: I will tell them go to court, get a lawyer; don't go to government, you are not going to get anything. Ludicrous, Mr. Speaker, lubricious.

The only situation where the only appeal is to the court is to information on solicitor-client privilege and section 18, Mr. Speaker, of Cabinet records.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Leader of the Third Party.

MS MICHAEL: Thank you, Mr. Speaker.

Section 70 of the Access To Information And Protection Of Privacy Act stipulates the minister must report to the House through the Speaker's office, the number of requests for access and whether they were granted or denied. The specific provisions of this act used to refuse access the number of applications to correct personal information and the fees charged for access to records.

Mr. Speaker, I ask the Minister of Justice: When did he last submit a report?

MR. SPEAKER: The hon. the Minister of Justice and Attorney General.

SOME HON. MEMBERS: Hear, hear!

MR. F. COLLINS: Mr. Speaker, the Minister of Justice does not submit a report on the Privacy Commissioner. He is an officer of the House and reports directly to the House, Mr. Speaker.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The Leader of the Third Party.

MS MICHAEL: Mr. Speaker, section 69 of the Access To Information And Protection Of Privacy Act stipulates the Minister of Justice is responsible for publishing a directory of information so people can easily find information government collects. Mr. Speaker, the act has been in force for almost a decade.

I ask the Minister of Justice: Can he give the House an estimate of how many government departments have developed and posted directories of information?

MR. SPEAKER: The hon. the Minister of Justice and Attorney General.

SOME HON. MEMBERS: Hear, hear!

MR. F. COLLINS: Mr. Speaker, with all due respect, I cannot provide that information off the top of my head. I can say that Mr. Cummings made four policy recommendations that deal with all departments in organizing and formulating their policies with regard to release of information. Mr. Speaker, all departments are working on that. It is a part of the four recommendations; although some members think it should be in legislation, these are policy directives that we are working on.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The Leader of the Third Party.

MS MICHAEL: Thank you.

Mr. Speaker, Bill 29 removes from the Information and Privacy Commissioner his right to review documents government says are protected by solicitor-client privilege.

Mr. Speaker, I ask the Minister of Justice: How many solicitor-client claims have there been since he has been minister?

MR. SPEAKER: The hon. the Minister of Justice and Attorney General.

SOME HON. MEMBERS: Hear, hear!

MR. F. COLLINS: Mr. Speaker, no principle or – what is the word I am looking for? Nothing is more sacred to the legal system, Mr. Speaker, than solicitor-client privilege.

The Supreme Court has said that solicitor-client privilege should be as absolute as possible. Mr. Cummings recognized that in his research, and he made that recommendation in his report long before the Supreme Court ever decided on the solicitor-client issue. Mr. Speaker, we are in line with every legal – there is not a legal jurisdiction in the country who will take issue with that.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The Leader of the Third Party.

MS MICHAEL: Mr. Speaker, well, I would say that the Court of Appeals would take exception to it.

Mr. Speaker, and so it begins; a media story today says a report from the Department of Municipal Affairs is classified as secret policy advice even though large parts of the document are already public. Government will not say why the report is deemed secret even though a judge has ruled government to give reasons why this is so.

Mr. Speaker, I ask the Minister of Municipal Affairs: will he explain to this House why he will not release this report?

MR. SPEAKER: The hon. the Minister of Municipal Affairs.

SOME HON. MEMBERS: Hear, hear!

MR. O'BRIEN: Mr. Speaker, I would like to inform the hon. member, as I indicated to the media source that printed the story in today's paper, that report is a draft report and only a draft report at this stage. I have no intentions of ever releasing a draft report. As soon as that report is in full form, I will be glad to share it with anybody.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Leader of the Third Party.

MS MICHAEL: Thank you, Mr. Speaker.

Well, then, I will ask the Minister of Municipal Affairs: Is he stalling until the new amendments to the Access To Information And Protection Of Privacy Act are passed and keep it as a report that is unfinished?

MR. SPEAKER: The hon. the Minister of Municipal Affairs.

SOME HON. MEMBERS: Hear, hear!

MR. O'BRIEN: Mr. Speaker, I cannot remember at which time I was on my feet in the House of Assembly last night. One of the words that I used many, many times in regard to the speech that I gave was the word sinister, and leaving a notion in the people's minds, the people of Newfoundland and Labrador, that there are sinister ways of this government.

We have no intentions of ever keeping reports for not being tabled in this House. I just mentioned in my answer to your last question that once that report is finished, I will have every intention and I will provide you a copy of that report.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Leader of the Third Party.

MS MICHAEL: Thank you, Mr. Speaker.

On Sunday evening, the Liberal MP for Humber – St. Barbe – Baie Verte revealed to the people of Corner Brook information from an independent study he commissioned from industry experts that indicates the Corner Brook Pulp and Paper mill is in better financial shape than the Premier and Minister of Natural Resources have indicated. Mr. Byrne's information was released –

SOME HON. MEMBERS: Oh, oh!

MR. SPEAKER: Order, please!

MS MICHAEL: – for people to see. Government, on the other hand, has shown little evidence for their pronouncement.

I ask the Minister of Natural Resources, Mr. Speaker: Will he fully disclose to the public information they have regarding Kruger's position and the mill in Corner Brook?

MR. SPEAKER: The hon. the Minister of Natural Resources.

SOME HON. MEMBERS: Hear, hear!

MR. KENNEDY: Yes, thank you, Mr. Speaker.

As I have said on many occasions, this is a very sensitive issue right now, Mr. Speaker. As I understand, the unions and the company were at the bargaining table all weekend; they are still at the bargaining table, Mr. Speaker. I am not getting into any of this.

I have colleagues here and there are colleagues across the way whose families and friends, and in fact the whole community, are affected by this decision, Mr. Speaker. What I want and what we want as a government is for them to reach a deal on a long-term sustainability plan, Mr. Speaker. That is what we are interested in.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Member for St. John's North.

MR. KIRBY: Thank you, Mr. Speaker.

The Virtual Teacher Centre has been providing Province-wide, on-line, professional development opportunities for primary, elementary, and secondary educators for over a decade now. The centre is now faced with imminent closure due to recent provincial Budget funding cuts.

I ask the Minister of Education: Did he try to prevent the closure of this important resource for teachers?

MR. SPEAKER: The hon. the Minister of Education.

SOME HON. MEMBERS: Hear, hear!

MR. JACKMAN: Mr. Speaker, someone mentioned to me yesterday the hon. member's question – I should have asked him: Is he smarter than a fifth grader? I am starting to wonder, Mr. Speaker. I have to start to wonder, Mr. Speaker.

SOME HON. MEMBERS: Hear, hear!

MR. JACKMAN: The centre that he is talking about – just for another little piece of education for him – we, in the education system, call it CDLI. It provides distance education, has provided distance education for many years to many rural parts of the Province, enhancing its service over and over. Mr. Speaker, the service is getting better.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The Member for St. John's North.

MR. KIRBY: I encourage the minister to follow up on that information, because that is not the case, Mr. Speaker. With the growth of on-line course delivery through the Centre for Distance Learning and Innovation – which is a different thing –

SOME HON. MEMBERS: Oh, oh!

MR. SPEAKER: Order, please!

MR. KIRBY: – on-line, e-learning professional development for educators is now more essential than ever.

Will the minister act now and commit the necessary funding to maintain this important educational program and service provided by the Virtual Teacher Centre?

MR. SPEAKER: The hon. the Minister of Education.

SOME HON. MEMBERS: Hear, hear!

MR. JACKMAN: Mr. Speaker, the member should take a little lesson in some of the things being offered through this program. In many of the rural parts of our Province right now, students who are doing these courses have access to programs like music, so that we can have a music instructor here in St. John's, or Corner Brook, or Marystown, or Grand Falls somewhere, providing music to the remotest of students across the Province.

Mr. Speaker, the system of CDLI, as I have said to the hon. member, is improving and it is getting better and better all the time.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The Member for St. John's East.

MR. MURPHY: Thank you, Mr. Speaker.

Mr. Speaker, during Estimates, the government liked to talk about their plan for roadwork in the Province.

When will the government release details of their strategic plan for road construction in the Province for this year?

MR. SPEAKER: The hon. the Minister of Transportation and Works.

SOME HON. MEMBERS: Hear, hear!

MR. HEDDERSON: Mr. Speaker, we go through a budget process leading into this fiscal year.

This year, with roadwork, we are up to almost a quarter of a billion dollars, that includes the Trans-Labrador Highway, that includes rutting out on the West Coast, that includes some of our local roads, and that is mapped out according to our fiscal situation, Mr. Speaker.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The Member for St. John's East.

MR. MURPHY: Thank you, Mr. Speaker.

It is road construction season, I think it is pretty obvious, and in some years there is major work that needs to be done. Route 360 is just one good example of this – some areas of the Bonavista Peninsula, as well.

What is government's plan for roadwork in these areas?

MR. SPEAKER: The hon. the Minister of Transportation and Works.

SOME HON. MEMBERS: Hear, hear!

MR. HEDDERSON: Mr. Speaker, again, we look at priorities throughout Newfoundland and Labrador, and in looking at priorities throughout Newfoundland, we go from the most travelled roads and work our way down.

Right now, Mr. Speaker, at this point in time, after six years, I think we are after putting in $173 million into the Trans-Canada. When we look at the Northern Peninsula, $30 million has gone into upgrading that road. I can go on and on, Mr. Speaker, get up to the billions of dollars that we spend every year to make sure that the travelling public have a safe road on which to travel on.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The Member for St. John's East.

MR. MURPHY: Thank you, Mr. Speaker.

The Province of Nova Scotia has a road construction program that is available to all taxpayers. They display a scheduled work program via the government Web site. Taxpayers there know when their roadwork is going to be performed.

What is government doing to allow taxpayers in this Province –

SOME HON. MEMBERS: Oh, oh!

MR. SPEAKER: Order, please!

MR. MURPHY: – know of when roadwork is to be carried out in their respective districts?

SOME HON. MEMBERS: Oh, oh!

MR. SPEAKER: Order, please!

The hon. the Minister of Transportation and Works.

SOME HON. MEMBERS: Hear, hear!

MR. HEDDERSON: Mr. Speaker, I cannot speak for Nova Scotia, but I can speak for Newfoundland and Labrador. I will match up the roadwork in this Province with Nova Scotia or any other province in this country of Canada.

Thank you very much.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Leader of the Third Party, for a quick question.

MS MICHAEL: Thank you, Mr. Speaker.

A NAFTA ruling in favour of Exxon has placed government in an interesting position. They now have money that they can play with, with the federal government, $50 million if they can hold back, Mr. Speaker.

I ask the Minister of Natural Resources: Given the treatment this Province is receiving at the hands of the Harper government, will you use this ruling as a bargaining chip in your fight with the Harper government on EI reform, office closings, and layoff?

MR. SPEAKER: The hon. the Minister of Natural Resources.

SOME HON. MEMBERS: Hear, hear!

MR. KENNEDY: Thank you, Mr. Speaker.

As I indicated the other day, the federal government are currently determining how they are going to proceed with this decision, Mr. Speaker. We are certainly committed to research and development on our coast.

I can tell you one thing, Mr. Speaker, when we negotiate benefits agreements we will do exactly as we did in the Hebron benefits agreement. We will ensure that the people of our Province, the people of Newfoundland and Labrador, are the prime beneficiaries of our natural resources.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The time for Question Period has expired.

Presenting Reports by Standing and Select Committees.

Tabling of Documents.

Notices of Motion.

Answers to Questions for which Notice has been Given.

The hon. the Government House Leader.

MR. KENNEDY: Thank you, Mr. Speaker.

I call Orders of the Day, Mr. Speaker, seconded by the Minister of Fisheries and Aquaculture.

MR. SPEAKER: The hon. the Government House Leader has called for Orders of the Day.

All those in favour of the motion?

SOME HON. MEMBERS: Aye.

MR. SPEAKER: All those against the motion?

Motion carried.

MR. SPEAKER: Orders of the Day.

Orders of the Day

MR. SPEAKER: The hon. the Government House Leader.

MR. KENNEDY: Thank you, Mr. Speaker.

I move, seconded by the Minister of Municipal Affairs, pursuant to Standing Order 11, that this House not adjourn at 5:30 p.m. today, Mr. Speaker, Tuesday, June 12, 2012.

Further, Mr. Speaker, I move, seconded by the Minister of Fisheries and Aquaculture, pursuant to Standing Order 11, that this House not adjourn at 10:00 p.m. today, Tuesday, June 12, 2012.

MR. SPEAKER: It has been moved and seconded that this House not adjourn at 5:30 p.m. on Tuesday, June 12, and it has been further moved that this House not adjourn at 10:00 p.m. on Tuesday, June 12, 2012.

All those in favour of the motion.

SOME HON. MEMBERS: Aye.

MR. SPEAKER: All those against, ‘nay'.

Motion carried.

The hon. the Government House Leader.

MR. KENNEDY: Thank you, Mr. Speaker.

I call from the Order Paper, Order 3, Committee of the Whole, Mr. Speaker, on the Access To Information And Protection Of Privacy Act.

MR. SPEAKER: It has been moved and seconded that I do now leave the Chair for the House to resolve itself into a Committee of the Whole to consider the bill.

Is it the pleasure of the House to adopt the motion?

All those in favour, ‘aye'.

SOME HON. MEMBERS: Aye.

MR. SPEAKER: All those against, ‘nay'.

Motion carried.

On motion, that the House resolve itself into a Committee of the Whole, Mr. Speaker left the Chair.

Committee of the Whole

CHAIR (Verge): Order, please!

We are resuming Committee of the Whole on Bill 29. When the Committee rose last time, we were debating Clause 3. We will continue debate on Clause 3.

The hon. the Member for St. Barbe.

MR. BENNETT: Mr. Chair, Clause 3 in the Access To Information And Protection Of Privacy Act deals with section 7 of the Act, and it adds an interesting clause.

Considering this is supposed to be the access to information, this amendment starts out by saying, "The right of access does not extend (a) to a record created solely for the purpose of briefing a member of the Executive Council with respect to assuming responsibility for a department, secretariat or agency; or (b) to a record created solely for the purpose of briefing a member of the Executive Council in preparation for a sitting of the House of Assembly."

It goes on to say, "Paragraph (4)(a)does not apply to a record described in that paragraph if 5 years or more have elapsed since the member of the Executive Council was appointed as the minister responsible for the department, secretariat or agency."

It further goes on to say, "Paragraph (4)(b) does not apply to a record described in that paragraph if 5 years or more have elapsed since the beginning of the sitting with respect to which the record was prepared."

Mr. Chair, really this is the five-year blackout clause in the Access To Information And Protection Of Privacy Act. Mr. Chair, that brings us around to an interesting perspective. How do we get to a position whereby a government that –

CHAIR: Order, please!

MR. BENNETT: - campaigned on an accountable government, and open and transparent government would be bringing amendments that would curtail, restrict, and limit the access to information on a bill that was actually passed by a prior Liberal Administration.

Mr. Chair, for some insight I am drawn to the 2003 Blue Book. The 2003 Blue Book refers to freedom of information. It says what was then going to be introduced as "The Transparency And Accountability Act will greatly enhance openness and accountability in government, but a comprehensive and effective Freedom Of Information Act is the best safeguard against the tendency of governments to descend into official secrecy and elitism."

The 2003 Blue Book goes on to also say, a Progressive Conservative government will – and I assume that we purportedly have a Progressive Conservative government – "Proclaim new Freedom of Information legislation which will include amendments that clearly identify information that should be in the public domain, including Cabinet documents, and will require full and prompt disclosure of the information to the public." It also goes on to say, "Release to the public every government-commissioned report within 30 days of receiving it, indicate the action government will take on a report's recommendations within 60 days, and ensure prompt access to all government…" records in hard copy and on the Internet.

Mr. Chair, the bill that we are debating, the amendments to it were actually enacted in 2002. These are the pages from the 2003 Blue Book. Clearly the people who made the commitments in the 2003 Blue Book were well aware of the legislation that had been enacted but not yet proclaimed; then promises were made that a Progressive Conservative government would clearly identify information that should be in the public domain, including Cabinet documents, and require full and prompt disclosure of the information to the public.

Mr. Chair, the only conclusion can be that this government actually has had a change of heart; it has gone back on a campaign promise. This is a campaign promise on a piece of legislation that this government sought or promised to improve. In fact, not only have there been no improvements; at this point, the amendments that are being proposed would make access to information more difficult and would not promote transparency but, in fact, would reduce transparency.

Mr. Cummings, in his review of the Access To Information And Protection Of Privacy Act, dated January 2011, referred to Cabinet confidences, he said most access to information legislation across Canada protects from disclosure –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. BENNETT: – of Cabinet confidences which would reveal the substance of deliberations of Cabinet. Mr. Chair, nobody realistically has a serious argument that it is important to protect the substance of deliberations of Cabinet, but what is being proposed in this amendment goes much further than that. What is being proposed in this amendment goes well beyond the necessity to protect the substance of deliberations.

Where this fear can be found, it is almost as if – if this government were to have a well-founded fear of persecution, they probably could qualify as refugees in another country, because a well-found fear of persecution – they do not want to give up information. The Executive Council made submissions to Mr. Cummings, and the Executive Council expressed their point of view and this point of view in a submission which said that effective government requires that Cabinet ministers speak freely in the Cabinet room, without fear of stating unpopular positions or making comments that might be considered to be politically incorrect if made public. So, Mr. Chair, why do we need an amendment to protect ministers from politically incorrect positions that they might take at the Cabinet table? Who are we really trying to protect here, and for what reason?

Mr. Chair, I say that this amendment seeks to protect ministers politically. My colleague from Cartwright – L'Anse au Clair refers to it as a cone of silence; I prefer to call it a five-year blackout, because clearly it is a five-year blackout.

Mr. Chair, it can be important for critics of ministers, and individuals who want to determine where departments are going or what basis ministers are working on, to have access to briefing documents. In fact, I have only recently had access to briefing documents from the Minister of Fisheries and found these briefing documents quite helpful. It was able to result in questions that were tabled, and the minister, quite properly, provided responses to these. Any diligent, confident and capable minister should not be afraid to have any briefing books provided to people to review. In fact, it is almost as if a person would put up a report card and say: This is what I have done, this is what I am doing, this is what has informed my deliberations, this is where we are heading with this particular policy, come on critics challenge me, it will only make me better.

Mr. Chair, it seems the point of view that is to be adopted in the new amendments to this act, the ministers do not want anybody to know, for at least five years, what informed their deliberations. They do not want to be held accountable for a minimum of five years. Ironically, our term lasts for a maximum of four years. It means that this clause, in this piece of legislation means that Cabinet ministers could never expect to be held accountable for what they were briefed on. Clearly, that must be a reversal in what we would see as a democratic process.

It is noteworthy; it is worth pointing out that even though the Minister of Justice waxed poetic on other jurisdictions and how courts may have interpreted various types of information, Mr. Cummings said: I have not found any interpretation of provincial legislation that necessarily excludes all Cabinet information or entire Cabinet documents, or records from disclosure and avoids severing. The final noteworthy point Mr. Cummings says is that the courts of this Province have never had occasion to comment on all of this.

Mr. Chair, I see that my ten minutes has elapsed so I will conclude.

CHAIR: The hon. the Member for Torngat Mountains.

MR. EDMUNDS: Thank you, Mr. Chair.

Going back to section 3, Mr. Chair, if you look at the additions that have been put in following section 7; section 7(1) states that a person who makes a request under section 8 has the right of access to records and custody, or under the control of a public body including a record containing personal information about the applicant.

If we go back to looking at accessibility, Mr. Chair, and the new section there, right off the bat, section 4 of section 7 of the act, the first seven words says, "The right of access does not extend". Mr. Chair, a total contradiction to the terminology that was in place. What this shows is, I guess, a level of security that the minister can bring upon himself or herself; again, going back to that right to deny people access to information.

In subsection 2, Mr. Chair, of the original clause, the right of access to a record does not extend to information exempted by disclosure under this act. Mr. Chair, if you go on down to section 5 we talk about a time frame where the heads of public bodies can withhold information for five or more years, and making reference to an executive committee. First and foremost, an elected official in this hon. House is – they are foremost legislators, and they must provide information as legislators to the public and at the public expense. I think this is the only time you will show transparency, Mr. Chair, and allow accessibility to information. I think this is one of the fundamentals of democracy that we talked about at some point in the last twenty-four hours.

I think the people of this Province do have the right to look at information that the minister, through this amendment, is going to withhold from the public, withhold from the people of this Province, Mr. Chair, and deny access. We keep going back to how this act is to make information more accessible and to make information more transparent. Again, the same as in the previous section, Mr. Chair, we see another safeguard in place that benefits the head of a public body or the minister, where it buys himself more protection, gives him more discretion. Some of the information that is passed on from department to department ministers, Mr. Chair, has relevant information that could be used by the people of this Province for their own gain.

We go back to the past Minister of Labrador Affairs who got his briefing verbally and there was no track record. Mr. Chair, certainly we lost track of that member as well.

I think there needs to be some tightening of this. I cannot see section 3 being there at any point at all, Mr. Chair, because it certainly does not benefit the people of this Province. It is another gateway for the head of a public body or a minister to refuse to come forward and, legally, to share information with the people of this Province.

Thank you.

CHAIR: The Member for St. John's North.

MR. KIRBY: Thank you, Mr. Chair.

I just wanted to pick up briefly where I left off when we broke this morning. I know we are talking about the same clause that my colleagues in the Official Opposition have been discussing with respect to denying the right of access to briefing materials that are within the purview or prepared for Executive Council. I know the Member for St. Barbe referred to that as a blackout. I am certainly familiar with the blackout, Mr. Chair –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. KIRBY: – because I have been party or a recipient of access to information requests that seem like there is a lot of toner, or black marker, or something has been used to shield whatever information, however innocuous or otherwise that I was requesting. It is interesting to look back at that statement from the PC Party Blue Book from 2003. Mr. Chair, it specifically says right there in black and white that they will proclaim the new Freedom of Information Act, which the previous government had not done at that point, and will include amendments that will clearly identify information that should be in the public domain, including Cabinet documents.

Of course that was done, no doubt, one would hope, in a spirit of openness and transparency, the sort of open and transparency that the electorate, the average, ordinary Newfoundlander and Labradorian, wants to see from government; but, unfortunately, these provisions, which now basically deny the right of access to briefing materials that are records that are created solely for the briefing of a member of Executive Council and created for briefing of members of Executive Council in preparation for the sitting of the House of Assembly, they are really put these behind a curtain. They really put them out of view. I am certainly not naive enough to think that there are not legitimate occasions when certain briefing materials should be kept out of public view because of the sensitivity. There are certainly cases of that, but I have to say that these sorts of blanket provisions really cast pall on that.

I know that there was reference in the report that was prepared by Commissioner Cummings about a chill that had descended over this government, this Cabinet, in terms of the preparation of materials for briefings. There was a fear that these would be accessed through the Access to Information and Protection of Privacy Act. I think, really, that chill is self imposed, myself; I think it is really up to ministers and their operations to determine the sorts of materials that they want to put into print and the sorts of materials that they do not want to put into print. Of course, this really brings into play the question of the role of the Commissioner because this basically eliminates any role. It does not provide for a role for a Commissioner, the access to information Commissioner. It does not provide a role and a Commissioner will not be able to now review these records to really see whether they should be protected or whether they should not. There is no right of appeal for individuals who are seeking those particular files or records, or other information that they would want to be able to access.

Then, the other thing I wanted to mention with respect to this particular clause of Bill 29 is the whole business of the five-year period; I know, just before we were – well, this morning, when we were discussing this, the minister was talking about how five years was a reasonable period of time to put in there. I know that the Member for St. Barbe, interestingly enough, pointed out that terms of office are four years in length, and this is five; we know that cabinets get shuffled and individuals get moved into different roles and out of certain roles. So it certainly has, on the surface, an appearance that it is designed for political purposes to shield members of Cabinet from the sort of openness, transparency, and public scrutiny that was really what was promised in the Blue Book back in 2003.

I would just like to say, again, it would be interesting to hear from the minister about exactly how in the drafting of this legislation, in the preparation of this bill, the five-year time period was arrived upon. Is that a best practice, or a perceived best practice that he or the department has taken from somewhere else? As we were saying earlier in the debate, you can go around and cherry-pick legislation from different provinces and pick different sections. Perhaps these came from one piece; they may be hybrids or modified from other legislation from different provinces, or territories, or maybe the federal level, because we do know this sort of legislation is enforced in other parts of the country, all across the country. I think you could go around the country and really collect those pieces, sections, and clauses of legislation that provide for a blackout clause, or a more blacked-out clause, or for more information, records, data, and files to be put further behind the curtain, to be shielded more than other legislation would provide for.

I think it would be important to get some information, at least, before we move on with this particular clause about why it is that this five-year period is seemingly so ideal, or at least acceptable, in terms of the enactment of this new legislation.

I am sorry to get up, Mr. Chair, and repeat myself again, but it would give me more comfort if I could be provided with a better explanation so that I could arrive at a better understanding of why it is that this five-year period is superior.

One thing you have to ask yourself is: why is five superior to three, or four, or two? We know there are variable terms; if you think of the Officers of the House of Assembly, their terms are different in terms of their duration and so on, so we have picked these time periods for a reason. Why would it be five? Why wouldn't it be two, or why wouldn't three be reasonable?

I would be interested in that clarification, Mr. Chair, and with that I will let somebody else have an opportunity to say a few words.

Thank you.

CHAIR: The hon. the Minister of Fisheries and Aquaculture.

MR. KING: Thank you, Mr. Chair.

I am pleased to stand for a couple of moments to have a few words about the bill before us, in particular, the clause 3 that we are debating here today.

Mr. Chair, first of all, it is very important for people to understand the context of the bill that we are debating today. There are all kinds of versions and stories that are portrayed. That is why we are in this House and that is why we do what we do. The fundamental reason behind this, Mr. Chair, is to provide protection for all individuals.

We receive requests on a regular basis for information, and it is important that government manage that information in a wise manner. I want to speak specifically, to provide context for those who are observing the debate today, to the section that we are talking about here. We are talking about an amendment that applies to briefing materials and planning materials provided by and for Cabinet ministers in particular; Executive Council is the term we use, but we are talking about Cabinet.

Many people are probably not even aware of the process of government and how it works, Mr. Chair. That is why I want to lay some context. We are not talking about a clause of protecting information that applies to, I would say, 99.9 per cent of the general public, Mr. Chair. The issue that we are talking about here right now, today, as I stand here, has to do with Opposition parties gaining access to information being used by government and Cabinet ministers. The context that I want to provide for people, Mr. Chair, is this.

First of all, there is a one-way street in government that people need to understand. When Cabinet ministers and governments plan, you go into departments and you try and identify strategies; you have staff that you hire. You are looking at directions for yourself, for the department, for government. Obviously, there is a political planning process that you are engaged in. Mr. Chair, at the same time, people need to understand, as I am sure they do, that members from Opposition parties are doing the same thing, but they are doing it for a different reason.

Cabinet ministers and members of government are planning to try to develop policies, procedures, protocols, and initiatives that will move the Province forward, that they believe and we believe will advance the social cause of this Province and the economic cause of this Province. A lot of that planning, Mr. Chair, is done by our staff who prepare notes for us at times. Not all ministers do that, but some do. We have notes prepared and we have recommendations prepared for our consideration. All of that is about the strategy that members of government engage in, Mr. Chair.

Members of the Opposition engage in a different strategy. Their strategy is to try and figure out what we are doing, and in some cases, pick holes in what we are doing; in some cases, although I wish there were more, they try to offer alternative suggestions that would improve what we do, Mr. Chair.

The fundamental piece that people who are observing this debate in the House or at home need to understand is the comment I made a few minutes ago about the one-way street. Members of the Opposition have the secrecy luxury. Other than the one slip by members of the Third Party, they do not have to provide us with questions that they are going to ask us. They do not provide us with news releases that they are planning. They do not have to provide us with their strategies. They do not have to provide us with what they are thinking, where they are heading, and what they are contemplating, Mr. Chair.

AN HON. MEMBER: The briefing of where their debates are going.

MR. KING: The briefing of where their debates are going, Mr. Chair – we do not have access to that; not one member on the government side of the House has access to that information. It is part of their strategy, they hold it close to their chest, and they do as good a job as they can in coming at government, and obviously, in cases where they are able, to try and discredit government and try and present themselves as an alternative to government. Everyone, I think, Mr. Chair, who follows politics understands that. That is the dynamic we work in.

The same does not apply, Mr. Chair – and that is what is being debated here today, and that is the piece I want people to understand; members opposite who are claiming that they ought to have access to information that Cabinet ministers and their staff are using to prepare and to plan and to organize, the same ones who are saying they ought to have access to that are not prepared to give access to their own information. I am saying to the people at home who are listening and people who are here in the gallery, it is a bit of double-edged sword. This clause does not apply, in my view, whatsoever to 99.9 per cent of the general population in the Province of Newfoundland and Labrador. This debate at this moment is solely and wholly about Opposition politicians wanting to gain access to documents being used by members of Executive Council, Cabinet ministers and their planning.

I submit, Mr. Chair, that just as, within reason, we do not have and ought not to have the opportunity to take their questions, their planning, and their information, and to eavesdrop on their discussions and things that they are trying to do to advance their party and their cause, I submit that members of Cabinet and Executive Council who engage in the same kinds of activities for very similar reasons ought to have the same kinds of protection of information afforded to them as members opposite do, Mr. Chair.

I stand today simply on that issue because I think it is important for people to understand: this is not about refusing Joe Chesterfield, as my college from Burgeo – La Poile would say; this is not talking about Joe Chesterfield not being able to find out what the Minister of Advanced Education and Skills is doing for post-secondary education in the Province. Frankly, Mr. Chair, if you were to check – without having the numbers, I submit, in front of me – you will find very few requests that come into government looking for that kind of information come from the general public.

The majority of the requests that we get about the issue we are talking about now, here today, this minute, come from members opposite and their staff and media. It is all about politics and political points. I admit I have no issue with that, Mr. Chair, but I submit for people who are following the debate: as you contemplate the arguments being made about not providing some protection of information that politicians on this side are using to plan, perhaps you ought to consider why would we want one part of those who sit in the Legislature to have to disclose everything that they have at their fingertips as part of their planning but allow another segment of the population to sit and possess information and do and say as they wish without having to disclose that as well, Mr. Chair.

I submit it is an argument that is a little bit off-sided here and does not apply, in my view, at all to a broader debate of public protection. This one particular item applies primarily to members who are sat today in this Legislature, those who support us and members of the media.

Thank you.

SOME HON. MEMBERS: Hear, hear!

CHAIR: The hon. the Member for St. John's Centre.

MS ROGERS: Thank you very much, Mr. Chair.

In subsection (a) we find, "to a record created solely for the purpose of briefing a member of the Executive Council with respect to assuming responsibility for a department, secretariat or agency".

This is not about political strategy, Mr. Chair. This is about the planning of how government does its work in response to the future of this Province. This is the area that lets us know what government is thinking and where they wish to go. It is the basis of the future. It is not about political rumination, it is not about political strategizing, it is about the work of departments, of secretariats and of agencies. This is very crucial and is very important information. It is not about Opposition parties trying to find out what the other party is doing. What about members of the public who want access to this? What about the Auditor General?

Mr. Chair, subjecting these particular forms of information and documents, coupled with denying the Commissioner the ability to do his job as mandated in the act, of assessing whether documents or information should be covered by this, there are already safeguards in the act making sure that legitimate documents are in fact protected. What this creates, because this is about planning for the future, this is about where we take our Province, and as Premier Williams said, he promised: there will be no secret documents, there will no hidden agendas. Again, this is about the work of government on behalf of the Province. This is not about the political sphere.

What happens here is this particular amendment creates an atmosphere of distrust where there need not be one. It creates an atmosphere of suspicion where there need not be one. This does not give the public confidence in the act or in the Legislature. It actually undermines the work that government does. It undermines the relationship that all members of this House of Assembly have with the public. Why? When the protections are already in the act, why do this? The protections are in the act by very virtue of the act itself, but also by the Office of the Information and Privacy Commissioner. It is in the Office of the Information and Privacy Commissioner where the protection is executed. This kind of amendment, in fact, enshrines an effect that creates so much suspicion and distrust where it is not necessary.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS ROGERS: This amendment, in fact, is very regrettable. It is unfortunate, it is unnecessary, and it violates the very spirit and the mandate of the act, an act that promises accessibility, openness and transparency. The discussion that we see in the public sphere right now, whether it be through the media –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS ROGERS: Thank you, Mr. Chair.

The discussion that we are seeing right now in the public sphere, whether through the media, on Open Line shows, or within our own districts from our own constituents – I have been receiving e-mails, Mr. Chair, from constituents who are really concerned about this. What is regrettable is the atmosphere that this creates when it is so not necessary. The act very much ensures a safeguard for legitimate reasons of Cabinet secrecy or the legitimate reasons for Executive Council secrecy.

I was very surprised to hear the Minister of Fisheries and Aquaculture say that this was specifically about Opposition parties trying to get hold of their strategy. I am surprised that they are afraid of us. We are not the boogeyman. There are, again, provisions in the act that will take care of and safeguard party secrets. Again, this is about Executive Council, with respect to assuming responsibility for a department, secretariat, or agency.

AN HON. MEMBER: (Inaudible).

MS ROGERS: I assume, Mr. Chair, that the minister across the floor actually has messages she would like to give to me, and perhaps when I sit down she may want to speak directly to me.

CHAIR: Order, please!

I would ask all members for their co-operation.

The Member for St. John's Centre.

MS ROGERS: Thank you very much, Mr. Chair.

Mr. Chair, at this point, once again, in this particular time in our history when we are on the cusp of some of the most important decisions in our history that will affect everybody in our Province, will affect people now, and will affect –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS ROGERS: Thank you, Mr. Chair.

It will affect all of us now, decisions will that affect us in the future, decisions – major, major decisions – that will affect generations to come. Now is when we want to be able to assure the public that their best interest is at heart. That all government, and that all people in the Legislature, that in fact –

SOME HON. MEMBERS: Oh, oh!

MS ROGERS: Mr. Chair? Thank you.

– the well-being of the Province is uppermost, and so people must have that confidence in the Legislature at this time. Again, this kind of amendment –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

I will ask again for all members for their co-operation, please.

The Member for St. John's Centre.

MS ROGERS: Thank you very much, Mr. Chair.

I am not so sure why the members across the floor are so hell-bent on trying to prevent me from speaking, because I have listening very attentively to those who got up and spoke. While we debate, it is very important for us to be able to hear each other so that we can respond to the concerns that both government is raising and those on this side of the floor are raising; however, this is not debate, in fact, Mr. Chair – I am not quite sure if I have ever experienced this in any other facet of life, except what we see happening right here in the House right now. In fact, Mr. Chair, it almost borders on preventing me from doing the job that I have to do here today.

Mr. Chair, once again, I believe that the public, our constituents, are relying on us to ensure that there is openness and transparency so that they can have confidence in the democratic process. I believe that this kind of amendment puts an unreasonable shroud of secrecy –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS ROGERS: – and I believe that this amendment is not intending to raise a level of distrust and lack of confidence in this House. I do believe that that was not the intent, but I do believe that that is the effect and it is an unnecessary position to take. This once again reflects the siege mentality that we have been seeing from this government and it is so unnecessary. I have confidence in the act as it stands and I have confidence in the office of the –

CHAIR: Order, please!

I remind the member that her time for speaking has expired.

MS ROGERS: Thank you very much, Mr. Chair.

CHAIR: The hon. the Deputy Government House Leader.

MR. KING: Thank you, Mr. Chair.

I appreciate the opportunity to pick up from where I left off and to respond to the member's statements opposite. I just want to continue from where I left off, Mr. Chair. I want to give some concrete examples because the member opposite used a number of terms that are very unfortunate and perhaps reflect the kind of participation that she has been engaged in with the debate in this House thus far. This is not about denying the public access to information, Mr. Chair. I want to give a couple of examples because I do not think people quite understand what we are talking about here.

When I was in a previous department, Mr. Chair, I had responsibility for the Disability Policy Office, the Office of Immigration and Multiculturalism, and Newfoundland and Labrador Housing. There may be any number of occasions when I might go looking for information on housing related to a number of repairs required in the Western Region, the possibilities of building new homes on the Avalon.

Mr. Chair, what we are talking about is protecting information that I, as the minister, choose to go looking for as part of formulating strategy and making decisions that I talked about a few moments ago. Mr. Chair, let me just say to the people who are listening to this debate so we are very clear: the Member for St. John's Centre is also welcome to ask for the information about housing changes and modifications required in Western. She is also welcome to come looking for information on new housing starts on the Avalon. In fact, Mr. Chair, people need to understand this, there is not one piece of information – or most of the information, I will not say not one piece I may be corrected. Ninety per cent of the information that any minister would put together in a briefing book, the member opposite or any member of the public are able to access. The difference, Mr. Chair, is that the member opposite wants me and my staff to do the research for her and identify the priorities.

If the member puts in a Freedom of Information request and asks for information on housing starts on the Avalon, as I do as minister, she will get it. If she puts in a Freedom of Information request looking for information on housing repairs required for the long-term on the West Coast, she will get it. If she puts in a request looking for information on the multiculturalism strategy – I am just using examples now – and possibilities for the future that she would like to know about, she will get the information.

The difference, Mr. Chair, is that what we are talking about here is the development of a document that pulls together information identified by ministers and their staff for very particular reasons. In and of itself when you break down the pieces of that information, there is nobody, nothing in this document saying at all today that members of the public, members of the opposite parties cannot have access to that – nowhere. If members opposite find it, show it to me, it does not say that.

The briefing book, Mr. Chair, is a compilation of a piece of work, a piece of work that has been identified by a minister, a member of Executive Council and their staff. No different than people do on a regular basis where you sit down, as I said about members opposite, and some members over here served on the other side in Opposition. Members sit down and they try and strategize, and they try and figure out two things normally. One is where they want to go as a party to develop policy that will be better than the government so that hopefully at one point in time they become the government. That is fair game. As the member referenced, we did that when our former Premier actually sat over there. We all do that. They look for policy that will help them. Number two, they look to discredit the government.

I am relaying that, Mr. Chair, to bring you back to the context of what we are talking about today. That is what this discussion is about. It is about the media and political staff and Opposition politicians looking for access to information that has been identified by ministers and their staff for some particular reason.

It could be, as the Minister of Fisheries I might very well go in and say I want a briefing binder. I am concerned with aquaculture on the South Coast; I want a brief on that. It could be that I will go in and I will say that I am concerned about mussel development in the Province; I want a brief on that. It could be that I will say I am concerned about the future of groundfish stocks; I want a brief on that. Mr. Chair, do you know what? One member opposite has asked, not for all of that but a good bit of that.

AN HON. MEMBER: Who was that?

MR. KING: A member of the Opposition.

The information, Mr. Chair, is being provided, and this bill does not change that. This does not change that at all. The member opposite, any member opposite, any member of the public can come, as my critic the member of the Opposition does, I will give him credit for that because he identifies very specific issues, knows what he is looking for and he asks for it, and he is getting access to it. What this does, Mr. Chair, is it denies members of the Opposition, political staffers and members of the media, it denies them to jump on the back of the minister who is identifying specific initiatives and saying: well, okay, now that you have identified four initiatives, I want your book so I know where your headspace is and I know what you are up to.

Let's be clear, Mr. Chair. As I said a few moments ago, with the greatest respect to the Member for St. John's Centre who was throwing out a number of things around distrust, suspicion and public confidence, I submit to the member, Mr. Chair, that trust and public confidence is developed by members sitting in this Legislature and having good and honest debate. It is debate we are having. That is what you do in this Legislature, you debate ideas and you debate policy. We all sometimes agree on certain things and disagree on certain things, but it is debate, Mr. Chair. By any definition or any standard, that is what we do in here. Members can do like I am doing now, stand to their feet when they agree or disagree with a point and they can express their views.

I say to the member opposite, I am going to bring back full circle to what I just said because people need to understand what we are debating here. This is about Opposition politicians, it is about the media and political staffers wanting to take the work ministers have done in identifying strategies, identifying priorities, identifying issues that need to be addressed and then looking for the piece of work that we have done. Nowhere in this legislation does it prevent members opposite from doing their own work. Should the day come when my critic identifies every single issue on his own that I have in a particular binder, he will get it, because he will submit a request one by one by one and he is welcome to the information.

What this is doing, Mr. Chair, is providing members of the Executive Council and members of this government with the same opportunity and the same existence that members opposite have. As I said, Mr. Chair, to members who were watching the debate, that is very simple. No one over there has to disclose what their strategy is and what their policies are. They come into this House and they go to work and they do the best job that they can do by asking questions and picking holes in what we are doing. They are here today with a strategy. I have no issue with that. My comments are not about their strategy; it is not about what they are doing. I am simply pointing out for people that this is just levelling the playing field here.

This is not about secrecy. Nowhere in this document does it deny members opposite an opportunity to gain access to any information, one by one by one, that ministers over here will identify as priorities in a briefing book. It simply provides an opportunity for them not to jump on the backs of ministers and our staff, and take the work that we have done and use it for their own benefit.

Thank you.

SOME HON. MEMBERS: Hear, hear!

CHAIR: Order, please!

The Member for The Straits – White Bay North.

MR. MITCHELMORE: Thank you, Mr. Chair.

I would like to speak to section 7 of the act that is to be amended. I have to make the comment, based on the minister across the floor stating that – I find a number of the comments pretty offensive – this is piggybacking off work of his department and his staff. Well, I certainly remind the minister that he is paid by the public purse, and so is the staff – paid for by the taxpayer. This is our tax dollars in Newfoundland and Labrador.

CHAIR: Order, please!

I would ask the Member for The Straits – White Bay North: Are you discussing clause 3?

MR. MITCHELMORE: Yes, Mr. Chair.

I would like to get into the actual – "The right of access does not extend to a record created solely for the purpose of briefing a member of the Executive Council with respect to assuming responsibility for a department, secretariat or agency". This wording is something that is very troubling, in my view, because the minister had just made comments that this information is made – it is very important to see that the way that this is worded. The minister opposite had stated that this is all about levelling a playing field so that political parties, Opposition staff, the media, will not be able to access additional information. Well, what about the public at large?

This documentation that was there previously and how the act was previously enabled an everyday person, a citizen, or somebody in a political field to access and make that request of information. The staff of Cabinet ministers are public taxpayers; they work for all of us in Newfoundland and Labrador, and we have a right to being able to access information. There has to be a procedure in play that some of that information certainly needs to be protected, if it is going to be adversely impacting the information that would be provided.

The way this is worded, it says: for the purpose of a briefing – solely created. What does that mean? Does that mean policy, or an advice document, or anything that is out in the public realm? Because if there was information where an Opposition Party made a request to a department for a briefing, as we have seen in the past that that information has been reviewed and some of that information can be provided, why would anyone want to hide information that is out there in the general realm that can be accessed? This is something that people have a right to know.

Government should be touted on being able to provide as much information as possible and not fear political parties on the Opposition finding information or the general public finding information and being able to question government's accountability in how they are making decisions. I mean this is completely unacceptable. Making these changes here, it is expanding the role to a degree that anything now can be looked as a possible briefing document – created solely for the purpose of briefing. Anybody can enlarge that now to say well, this meeting that we had, I am working on this piece, it is still in progress, so we are not going to provide that now that is eventually going to become part of a briefing. There is going to be less and less information that is certainly available to the public.

Then we go into section (b) here, the "record created solely for the purpose of briefing a member of the Executive Council in preparation for a sitting of the House of Assembly." What is really important, Mr. Chair, as I stand in the House here today and debate this bill, is that there is certainly a lot of information here. The way that this is worded, it is giving –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. MITCHELMORE: Certainly, the members of government have a lot to say here, so I hope many of them will get up and stand after the fact here. If we look at things that would be made in decision making, such as road work, bridge repairs, things in federal-provincial programming, a number of accessible documents that people should have access to in an open and transparent way will not be there.

Some information, like I said before, should be protected; if it is denied by the minister, if somebody makes that request – because what the member opposite previously talked about is that we have to make a request, or the general public has to make a request, for that information. They do not know government's every detail and all the information that it has, so it has to make that request to find documentation. If the minister of the department says, well, we will not provide that, there is a mechanism for the general public or for anyone to go to the Office of the Information and Privacy Commissioner to conduct a review and see if it meets that test. Now, with the changing of this to the (4)(a) and (b), to make those statements that if it is solely for the purpose of a briefing – it does not say for a briefing book or whatnot; it says for a briefing, so that is very vague. Right now, the way that it is removed, it has removed the access altogether and the Commissioner right now will not have the ability to record or even to see what really should be protected, and that is shameful.

There is no right of appeal when it comes to that. If the government is saying, well, just ask us for the information and we will provide it – I think the general public can see that there is so much wrong with the interpretation of this and these changes as to how it is making it more and more difficult –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. MITCHELMORE: – and how it is turning back the clock here in being able to access information from government, from how our tax dollars are being spent and if they are being spent in an open and transparent manner. If there is something that is actually being looked at or researched, it goes back to say that in a government department now, the head of the department has the complete authority to say, well, we are going to withhold this, because it is eventually going to be part of our strategy. They will not provide that documentation.

What is so wrong with the sharing of information that is already out there? For the most part, as the minister is saying, 90-plus per cent is already accessible by other means, so why would government not want to provide that to anyone out there, so that they can be questioned, so that they can do the best job that they have been elected to do as the government?

They have been elected to make the best use of the public tax dollars, to get maximum benefit, to be open, transparent, and accountable. This is something that this government has campaigned on to do so. Right now, with those changes in 4(a) and (b) under section 7 of the act, I am seeing quite a change. This goes back to show the regressiveness of this government, where they campaigned and now are turning back and making changes.

If we had all-party standing committees when it comes to this government, then we could talk about notes, we could talk about recommendations, we could talk about strategy, and make sure that we are spending the tax dollars in the most appropriate way. The Minister of Fisheries and Aquaculture made it quite clear that the whole premise behind this is to put up walls for Opposition parties, for the media, and for the public to be able to do their jobs. That is exactly what was said. In order to be able to provide information –

MR. KING: A point of order, Mr. Chair.

CHAIR: Order, please!

The hon. the Deputy Government House Leader, on a point of order.

MR. KING: Thank you.

I ask the member to retract what he just said. He said I categorically made a statement. Hansard will show that I did not say that. I ask the member to retract it.

CHAIR: There is no point of order.

The hon. the Member for The Straits – White Bay North, to continue.

MR. MITCHELMORE: Mr. Chair, I certainly would withdraw any comment that was disparaging. When it comes to information that is available, we should be able to provide more access and more information out there. This is certainly not doing so. Let us look at this, let us see if we can look at the wording here and give it more clarity as to what actually classifies as briefing material, what actually is there. We need to know that interpretation. The public has a right to do so.

Thank you, Mr. Chair.

CHAIR: The hon. the Deputy Government House Leader.

SOME HON. MEMBERS: Hear, hear!

MR. KING: Thank you, Mr. Chair.

I am pleased to stand. I do want to stand and respond to the member opposite. While I have ten minutes I will be very clear that when I stood on a point of order, the member opposite made it very clear that I said directly that this was about politics and about keeping information from members opposite. I did not say that and Hansard will show that tomorrow that I did not say that.

What I did say, Mr. Chair – and I will repeat what I said, and I will allow for a challenge; I am prepared to sit in my seat in twenty seconds if the Member for The Straits – White Bay North is prepared to stand and prove me wrong. I asked him to identify for me any information – and I will use myself in particular – in my department that he feels this will restrict him from access to. I am prepared to sit. You give me the signal and I will sit down, but I say to the member opposite, as I have been saying to this Legislature for the last number of times that I have stood on my feet to speak, Mr. Chair, this is not about denying access to information in and of itself. The member opposite, as I said, like my critic for the Opposition party does, if you identify topics, you submit your request and you will receive the information, other than that which is clearly identified as being of a personal nature.

What I did say in this House though, is that this particular debate is more about politics, members of government, members of Opposition, our staffers and media than it is about members of the general public, because, Mr. Chair, most of the members of the general public, in my dealings in political life, have very little interest in briefing books of ministers and in what I am thinking and what I am planning on a daily basis as a Minister of Fisheries and Aquaculture. I submit, Mr. Chair, to the Member for The Straits – White Bay North – I know a good many people in his district. I submit to the member that most of the people in his district have no interest in that as well. Most of the people in his district are more concerned with, what is he going to do to represent them and move the agenda forward on their behalf? They do not care what a minister has in a briefing book, Mr. Chair. That is the point that I am trying to make here today.

I ask the member again, very directly, that if he can identify a piece of information then he ought to stand here and challenge me back on it, and we will have the debate. This legislation does not at all restrict access to information from the Department of Fisheries and Aquaculture, nor any other department in this government. It absolutely does not, but what it does talk to and what it does speak to is access to the work of ministers and their staff by compiling information based on our strategies, our ideas and our thoughts and where we want to go. That is what it speaks to, Mr. Chair.

Under the context of this, if you want to talk about access, freedom and transparency, the public ought to ask the question to members opposite: Are you prepared to provide your information up to this House through ATIPP? When you stand in this House and make statements, and I get thousands of calls, or thousands of this or hundreds of that, are members opposite prepared to do it? Because, Mr. Chair, I submit to you that the same people, as the Member from The Straits would suggest, are interested in my briefings? Those same people are interested in his briefings. They are interested in what he is being told and what he is planning to do when he comes to Question Period, Mr. Chair. The same people would want to know both sets of information, I submit to you.

The bigger question is: Why are we talking about double standards? Why is the Member for The Straits saying it is fine for me to go out on a pup tent tour, it is fine for me to travel across the Province, but I do not have to disclose not one single iota of information, not one piece do I have to disclose? Under this particular section that we are debating here, section 3, the member stands in his seat and argues to this House that the Executive Council and members of this Cabinet ought to disclose everything at their fingertips.

I say, Mr. Chair, in my concluding remarks for this point in time, I say to the people of The Straits, and others in the Province watching this debate, we are talking about a double standard here. If you want to have a good talk about freedom and openness of politicians and members and how they work, then you would share it with the public. Are you prepared to share the information that you collect? Are you prepared to share the strategy sessions you have in the mornings, and the briefs that you put together, and the questions you put together when you bring it to this House? Because if you want openness and you want transparency from all politicians, then let's talk about all politicians, Mr. Chair, not just the ones who sit over here as members of Executive Council.

Thank you.

SOME HON. MEMBERS: Hear, hear!

CHAIR: Order, please!

The hon. the Member for St. Barbe.

MR. BENNETT: Mr. Chair, the Deputy Government House Leader and the Minister of Fisheries and Aquaculture, he is nothing if not entertaining. He accuses the Opposition of a double standard because they want to receive information in the form of ministerial briefing books and ministerial briefings. So, let's see how this would work, Mr. Chair, every four years or so we have an election, and in this case the party opposite won the election. They campaigned on a platform. They promised to do certain things and they –

CHAIR: Order, please!

The Chair is noticing an ever-widening circle here of debate, and I would remind speakers that we are debating clause 3. It is our intention to go through this bill clause by clause and to vote each clause. So I would ask speakers when they stand, to speak to the clause that is under debate. It is clause 3 right now.

The hon. the Member for St. Barbe, to continue.

MR. BENNETT: Mr. Chair, thank you for that direction; however, that is exactly where I was going.

When government is formed there are a number of ministers who are appointed, and those ministers are provided with briefing books and they are provided with briefing notes, and this is exactly where this clause is focused.

Mr. Chair, the Deputy Government House Leader said: let the Opposition provide briefings to the government to show how unreasonable that would be. This government has sixteen ministers including the Premier. The Official Opposition has six members and the Third Party has five members; all of us are responsible in critic roles for two if not three departments. Each minister is a Minister of the Crown who receives briefing at the expense of the public.

The minister would seek to keep that information secret as if it is his personal information. Mr. Chair, clearly it is not; it is the people's information. A department of maybe 100 staff, 200 staff, 500 staff would be at the disposal of the minister. These briefing books would be prepared. The people have elected the Opposition to hold the government accountable and certainly, if the government members have briefing books, then that would be the first and most normal place to look. That is exactly where this amendment is going.

Mr. Chair, the Opposition has limited resources. Government ministers have unlimited resources. The minister refers to the work as being his work and the work of his department. In fact, it is the work of the people's department and the people's minister, and clearly that information should not be kept secret. This amendment attempts, or will, in fact, make secrecy prevail for five years on any document prepared for any minister.

Mr. Chair, the amendment is so out of sync with the intent of the underlying statute that I would like to move an amendment, An Act To Amend The Access To Information And Protection Of Privacy Act, and Bill 29 is amended by deleting Clause 3. I have copies, Mr. Chair.

CHAIR: Order, please!

The Chair is just going to take a minute to consider the amendment.

[The Chair takes a moment to consider the amendment]

CHAIR: Order, please!

The amendment put forward by the Member for St. Barbe is in order.

The hon. the Member for St. Barbe, to speak to the amendment.

MR. BENNETT: Mr. Chair, the reason that I completely disagree with the proposed amendment that is being made to the act is that it absolutely conflicts with the intent of the act. The act is to provide more information, and the clause which would seek to amend that part of the statute in fact reduces access to information. Both of theses clauses are an aberration and an unnecessary extension of the Cabinet confidences exclusion. Clearly, Cabinet confidences exclusion is not an unreasonable thing as long as it goes through the Cabinet decision making. To be as widespread as these amendments seek to be, they are simply aberrations, I would say, in the legislative history.

In both instances covered by the clause, records are not created to permit a member of the Executive Council to exercise his functions within the council; therefore such records should not and must not be considered privileged information. If the records were created to advise, inform, or assist the minister in Cabinet deliberations, then clearly I would have no issue with that. This takes an absolute broad, sweeping stroke and seeks to provide a five-year blackout period for practically any document that is prepared for a minister.

From a public accountability and transparency standpoint, the public has a right to know what the elected officials, particularly those trusted with ministerial management functions, are being told and provided by the public service on assuming the duties of their office. These should not be treated as confidences. What needs to be protected can be handled by a regular application provided for in our freedom of information statute, ATIPPA.

Similarly, when ministers sit in the House, they are first and foremost legislators and not members of the executive. The information provided to them at public expense is and must continue to be accessible. Mr. Chair, this is the essence of democracy. The two clauses are really an affront to the statute and it can only be corrected by a simple deletion of clause 3 in An Act To Amend The Access To Information And Protection Of Privacy Act.

Thank you, Mr. Chair.

CHAIR: The Member for Burgeo – La Poile.

MR. A. PARSONS: Thank you, Mr. Chair

I am pleased to stand here again this afternoon and speak to the amendment that has been put forward to section 3, which is calling for the deletion or repeal of section 3. Certainly, I would agree with this, as section 7, or clause 3, is really self-serving section in what is overall a self-serving act. That is certainly what we are dealing with here, Mr. Chair.

This is a piece of legislation that is not doing what it was intended to do in the first place. It is making life easier for the members of the Executive Council and for the Cabinet. There is absolutely no reason that this section needs to be there. We are not talking about – as we discussed earlier today – information that could be, in certain cases, life and death when we talk about RNC or RCMP investigations or open files, if we are talking about court files, if we are talking about even constituency files where we deal with very, very private information dealing with our constituents. What we are talking about here, really when you think about it, is information or briefings that are put together for Cabinet. That is simply what we are dealing with. There are two parts there. One is that the information should be private, and the second part is that it should be kept private for five years. There is absolutely no need of this whatsoever. There is no sense to it and it is just done as a means of making life easier for the members of Cabinet.

What I would say is that I did listen with interest to the comments made by the Minister of Fisheries. I understand the pressures that are on the ministers, how they have information and how we want it, and how we would feel if it were turned around. Again, we will give the information up. We will offer it up. In fact, I would be more than willing to offer up my questions. In fact, I would hope that if we did so, we could actually get an answer back once in awhile. That would be a start some days.

What I would say is that I have no problem putting my information out there, but with great power comes great responsibility, and that is a part of being –

AN HON. MEMBER: (Inaudible).

MR. A. PARSONS: That is right.

That is a part of being Cabinet. You have a higher level of responsibility; therefore, you have to deal with this. If you want to have our information, we are more than willing to give that information up. Again, we are putting it together as members of the Opposition. Opposition's nature or primary mandate is to question government on their operations. I would say to the Minister of Justice who has had ample opportunity, he stood up a lot and he certainly answered a lot of questions here, especially in Question Period today. I have never seen him up and down on and off his feet during our time here.

We talk about Cabinet records and how Cabinet records were not meant to be disclosed. If that is the case, why was the promise put out there back in 2003 that Cabinet documents would be put out there and would be filed? Why was it put out there that Cabinet documents would be made public and reports would be made public? I am pretty sure reports were going to be made public within thirty days, Mr. Chair.

What I would say is that being a member of government and being a member of Cabinet, you have a higher level of responsibility than, say, Opposition, or even backbenchers in the government. With that, comes the obligation that we are going to want to know what Cabinet is doing in terms of running our government and running our Province. So that comes with it. We are free to pass up our information, but that is not what this is all about. I come back and specifically we talk about the paragraph sub (5) and (6) in this amendment that we want deleted. What I would say is that there is absolutely no need of it whatsoever. The insertion of five years –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. A. PARSONS: The insertion of five years there was done for purely political reasons. I would put that question out to the minister. Part of this sometimes in Committee is that we do ask questions and hopefully we will get answers back. I would ask the minister: Why did we use the arbitrary figure of five years? I would say to the Minister of Justice, I would ask: Why was the five years used? Why not four years? Why not two years? Why not six months? Why five years? I think that it is purely for political reasons.

If that is done in other jurisdictions then, by all means, please feel free to enlighten me because that is how this process works. We want to know what is going on; we want to know what other jurisdictions are doing. Five years – we all know why it is there; it is there for very simple reasons.

Mr. Chair, I am going to move on from this. Now that I have put a question to the minister, I will hopefully give him an opportunity to stand and answer that.

CHAIR: The Member for St. John's North.

MR. KIRBY: Thank you, Mr. Chair.

I am pleased to get up to support this amendment, because I think it is wise to drop this provision, this suggested change.

AN HON. MEMBER: Why?

MR. KIRBY: The member asked why. I will certainly get into that, there is no question, Mr. Chair.

I think it is wise to drop this, because I absolutely agree, this absolutely runs counter – this section that we are debating and we have been debating now for quite some time, that is probably why we have been debating it for the length of time that we have been debating it; it really does run absolutely counter to an act that starts with access to information in its title. It is completely contrary, it runs counter to that, and it is inconsistent with any conceivable notion of access to information. It is absolutely not consistent whatsoever with that.

I just wanted to say that the Minister of Fisheries and Aquaculture was on his feet a short time ago, and he seemed shocked by the comment made by my colleague from The Straits – White Bay North, but he effectively stood there and suggested, using a variety of words that described it in a variety of ways, that effectively, in essence, what is going on when Opposition political parties – and certainly, the Progressive Conservatives were in Opposition at one point, and they tried to do what they could to find out what was happening behind the scenes, there is no doubt about that; that is certainly the job of any effective Opposition, and any responsible Opposition.

To suggest that somehow that we are over here exclusively on fishing expeditions – I guess it is sort of ironic, considering he is the Minister of Fisheries and Aquaculture – but we are all over here on a big fishing expedition trying to discover whatever it is, it is certainly not only members of the Opposition, there is no question. There is the media as well, and of course, if anybody has seen the paper today, the St. John's paper, The Telegram, you can see how incensed journalists are that this particular clause, clause 3, does what it does.

The minister also said, tell him one thing that would be prevented by – that will be denied access to. I tell you, Mr. Chair, people will be denied access to any record created solely for the purpose of briefing a member of the Executive Council, with respect to assuming responsibility for a department, secretariat, or agency. So that is certainly a whole lot of ground there, Mr. Chair. There are quite a number of items that would be covered under that provision.

Then also it goes on to say: any record created solely for the purpose of briefing a member of Executive Council in preparation for a sitting of the House of Assembly. I cannot imagine how much that covers; that is certainly quite a blanket statement.

To just go back to the comments that my colleague from Burgeo – La Poile made just then about the number of years, I continue to ask why it is that the assessment has been made that five years is a reasonable amount of time to withhold files –

AN HON. MEMBER: (Inaudible).

MR. KIRBY: Yes, it is; Clause 3: "(5) Paragraph (4)(a) does not apply to a record described in that paragraph if 5 years or more have elapsed since the member of the Executive Council was appointed…" –

MS SULLIVAN: (Inaudible).

MR. KIRBY: Well, the amendment is removing that, I say to the Minister of Health and Community Services. The amendment is intended to remove that provision because we believe that it is faulty. We believe that it is inconsistent with any rational notion of access to information.

I say again, that is the way the title of this legislation is; it is the Access To Information And Protection Of Privacy Act. It is not the denial of access and protection of Cabinet secrets act. It is Access To Information And Protection Of Privacy Act. It is pretty clear.

Just to go back to what I was saying before I was getting questions from the ministers across the way, I am just concerned about this provision, this suggestion that the number of years should be five and that should somehow be the measure that is appropriate here, that is reasonable. That was decided to be reasonable, more reasonable than two, more reasonable than one, more reasonable than three, more reasonable than any other number. Why is it that was deemed to be reasonable? Mr. Chair, I certainly do –

SOME HON. MEMBERS: Oh, oh!

CHAIR Order, please!

MR. KIRBY: – strongly support this amendment and I think it gets rid of one of the problems. If we can get rid of this particular clause, maybe we can move on and get to deal with some of the other parts of this bill, because there is quite a lot left to do. We have been debating this for a number of hours now and I think in the interest of efficiency we may want to just drop this particular clause off right here and then move on to some other sections so that we can debate those.

Thank you very much, Mr. Chair.

CHAIR: Order, please!

The hon. the Minister of Health and Community Services, to speak to the amendment.

SOME HON. MEMBERS: Hear, hear!

MS SULLIVAN: Thank you, Mr. Chair.

Mr. Chair, I am happy to speak to this amendment. In fact, I agree. The one thing I agree about is that we really do not need very long to speak to this amendment in particular because, Mr. Chair, there is no need for this proposed amendment whatsoever. I will clearly be voting against this amendment as quickly as we possibly can so we can get down to some of the meat and potatoes of what we really need to be talking about here.

Mr. Chair, before the Member for St. Barbe introduced the amendment, he started out talking about the fact that this is about research and they do not have enough money to do their research. That is what he said. It is hard for them to have enough people, enough time to be able to do their research.

Mr. Chair, clearly what he wants is that he wants to use this act to do his research for him. This has nothing to do with what the people of Newfoundland and Labrador want, Mr. Chair. This has nothing to do with access to information, or freedom of information, or privacy and protection for the people of Newfoundland for the member opposite, Mr. Chair.

What this really comes down to for the member opposite is that he would like someone to do his work for him, Mr. Chair. He would simply like to be able to say to us, give me all your briefing books. That will be good for me. That will help me do my work, Mr. Chair. That is what he would like to say because he opened up his comments by saying that we need someone to do research. We do not have enough resources over here to do research.

Mr. Chair, that is shameful. That is not what this act is about, the access to privacy of information. That is not what this act is about at all, Mr. Chair. We are concerned about protection. We are concerned about looking after the people of Newfoundland and Labrador and being able to protect that information.

Now, Mr. Chair, if people need access to the information that is not an issue. That is not what the member opposite is debating though. He is saying very clearly, I need help doing my research. I need someone to do my homework for me. I would like you to just pass over whatever you have over there, so I am going to request – well, why don't I get your briefing book? So then I have it all.

Well, Mr. Chair, what I would want to say to him is, do your own strategic thinking. What direction do you have? Come to work, decide what it is you want to do, decide how you have to represent your people and the people of your district, Mr. Chair. Then if you need information related to whatever your vision is or whatever the piece of work is that you are going to do, well ask for that piece of information. To say to us, Mr. Chair, as he clearly did, this comes down to a matter of resources and we do not have enough resources to be able to do our research, so you give us all that you have done over on your side.

Mr. Chair, that is outrageous. The people of Newfoundland and Labrador must be sitting up on their chesterfields laughing at that, Mr. Chair. I can hardly believe what I heard. I could hardly believe what I heard when I heard that statement. I am going to hope that is not exactly what he meant, Mr. Chair. I am hoping he did not mean to say: I do not want to do any work here; I do not want to have a sense of direction. I do not want to have a sense of what it is I am going to do for the people. Let me just see what work they are doing over there in the department. Perhaps what I will do is I will criticize that instead. So you give me your briefing notes and I will pick them apart. We will call that access to information and we call that me doing my job.

No, Mr. Chair, I cannot believe that is what he meant. I know it is what he said but I do not believe that is what he meant. We have been in here for, I do not know how many hours now, I have lost track, but we are up on twenty-odd hours or more. I guess, Mr. Chair, he is tired, because he could not possibly mean I do not want to do my work. I do not believe anybody who got elected to the House of Assembly, or I hope nobody got elected to the House of Assembly to say, I am not going to come to work and do my work. I am not going to represent my people. Instead, I am just going to go and ask for briefing books and I will use them to do my work. That is how I am going to decide my political agenda. It does not matter how my people want me to represent them. It does not matter what my constituents are looking for me to do, Mr. Chair. I am just going to get a briefing book and then I will pick that apart.

CHAIR: Order, please!

I would ask the minister to speak to the amendment. The amendment is just calling for the deletion of clause 3, so I am allowing discussion on clause 3, but I would ask the minister to stick to the text of clause 3, please.

MS SULLIVAN: Thank you, Mr. Chair.

I appreciate that ruling, Mr. Chair, and I understand. He is asking to repeal that but part of, I believe, what he is asking us to repeal is something that we need to have some discussion on and we will perhaps do that at another time, Mr. Chair.

Some of what happens though – and I heard the Member for Burgeo – La Poile make some statement that this particular clause, clause 3 – I wrote it down – is a self-serving piece of legislation. Self-serving, he said, making life easier for Cabinet members, making life easy for Executive Council. That is what the Member for Burgeo – La Poile said about clause 3, Mr. Chair, the clause that they want to repeal. They want to repeal clause 3 based on the fact that this is self-serving on the part of Cabinet ministers. What he is saying is repeal this so we can have all your briefing books, and he wants to talk about self-serving. That is what he is referring to, Mr. Chair. He is talking about the very same thing that he got up to be critical of in the exact same sentence.

I know again though, we are tired here. We have been here so long, Mr. Chair, but to repeal section 7 or clause 3, which is what the amendment is about, makes absolutely no sense. What we are saying here, when I talk about clause 3 – and I understand what I am talking about when I am talking about clause 3, because, believe me, in the Department of Health and Community Services, briefings are a large part of my day, Mr. Chair. It is a broad department with very many, many issues, and so every day I want to know what is going in health care in Newfoundland and Labrador. Every day I start my day with briefings, I end my day with briefings, and there are many more in between. I understand the importance of clause 3 and why it is that we have a clause 3 in here, Mr. Chair. We have said very clearly to the people on the other side, and to the people of Newfoundland and Labrador who need access to information, you can apply for access to the information, but you are not coming in and just saying to us turn over whatever intellectual property you got now because we would like to have that because we do not want to do the research, or because, for self-serving reasons, that would be much easier for us because then we just got it all.

Mr. Chair, I really do not understand that, and I have to vote against this amendment. I hope everybody on this side of the House, and I know everybody on this side of the House will. Again, I would suggest to people on the other side of the House, they should consider voting against this amendment as well. Because, Mr. Chair, I believe they are tired. I believe they have not had an opportunity to think this through. They really do not understand what it is they proposed along this. When this clause 3 was written, Mr. Chair, I can tell you right now, Mr. Cummings knew what he was talking about. We, as a Cabinet, knew what we were talking about when we reviewed this – as we did at social policy as well, Mr. Chair. We have had ample occasion to review this information and this material, and we absolutely know why it is important to have a clause 3 there, and why it is important to have that section 7 there. For the member opposite to propose that we absolutely repeal that, get rid of that, makes no sense to me. It really does not make any sense to me in light of the comments around: We do not have enough resources to do our research; therefore, we need it.

Mr. Chair, that really does not make any sense. Again, I want to give the people on the other side the benefit of the doubt. I will encourage them to do as I will do, Mr. Chair, which is vote against this amendment, and really not give it any more consideration, and let us get on to some of the more important items here, Mr. Chair, because that amendment is really not an amendment we need to be looking at in this House of Assembly today.

Thank you, Mr. Chair.

SOME HON. MEMBERS: Hear, hear!

CHAIR: Order, please!

The hon. the Minister of Justice and Attorney General.

MR. F. COLLINS: Thank you, Mr. Chair.

The Opposition, the Member for St. Barbe and the NDP especially, they would have us release all information to the public. We would withhold nothing, everything has to be released, no information kept back, no responsibility to good stewardship of government assets and government information. That is not in their vocabulary; it is not in their mindset. There is no reason to keep anything – everything should go out. That is what we are getting from them over there. Politically, I suppose, that might be a great thing to do: give everything out. It might be a great thing to do, but, Mr. Chair, when you have a responsibility and accountability as a government, you have to strike that balance. Right to information, Mr. Chair, is not absolute – it is not absolute. Mr. Cummings noted in his report that he recognized the importance of briefing materials. He recognized the need for restricting some information in the interest of good government and in the interest of proper functioning of government. That is why this clause is in there.

Mr. Chair, the Minister of Fisheries mentioned a few minutes ago: Who out there cares about the minister's briefing book? Who out there cares about what is in the minister's briefing book? Who out there cares what is prepared for the minister to sit in the House? Mr. Chair, the members opposite – the Member for Burgeo – La Poile just did offer up his questions a few minutes ago; the NDP has done that on occasion when they slip up and get their questions out too soon to the media. Now the Member for Burgeo – La Poile has offered up his questions. Well, that is great. That is marvellous. I doubt very much if he is going to get consensus of his colleagues on that.

Mr. Chair, we do not have access – ministers do not have access to the questions being asked by the members opposite. We do not look for them. We do not expect to get them. Mr. Chair, we are briefed to come to the House. Sometimes we are briefed on things that we know we are going to get. Sometimes we are briefed on things we do not get. Sometimes we get things that we are not briefed on at all. Mr. Chair, the purpose of this is because there is information, there is a need – and Cummings recognized it – for the restriction of certain information in the interest of good governance. That is not self-serving. That is not being secretive. It is not hiding information. The five-year period is modelled after Alberta. Alberta has a five-year clause in there. We did not have to hold it for twenty years; Cabinet documents are held for twenty years. You might ask the question: Why twenty years for Cabinet? Why not ten years? Why not twenty-five years? Any number you pick, Mr. Chair, is going to be questioned. It was modelled after Alberta. There is a five-year restriction on this information and it is in there for a good cause, and we will certainly be voting against the amendment.

SOME HON. MEMBERS: Hear, hear!

CHAIR: The Member for St. Barbe.

MR. BENNETT: Mr. Chair, I listened intently to the Minister of Health and, clearly, she seems to have missed the point as to why it would be helpful for the critic to have the briefing book. For example, Mr. Chair, if her critic had a briefing book and it disclosed that Eastern Health was able to lose $250,000 a year in a Tim Hortons, you want to point that out to the minister – the only Tim Hortons, probably, in the Province that loses money, and is owned by the taxpayers; can you believe that? That kind of stuff would be in a briefing book.

Mr. Chair, you also would find out why it is that we have had a CEO at Eastern Health for four or five years, and at the end of four or five years we finally get a report that says that we have 500 or 600 too many people. If the critic has the briefing book then the critic can point out to the minister what the briefing book means. Maybe the minister has not even read the briefing book. Maybe the briefing book has whole sections that are left out.

In the case of the briefing book that I received from the Minister of Fisheries and Aquaculture, that briefing book was able to generate additional questions and additional written requests for information, information which I was able to assimilate. It also disclosed areas where the minister is not even looking. As for sharing work product that we might have on this side, Mr. Chair, I can say – and I think the Minister of Fisheries and Aquaculture will also confirm – that when the bill was provided in draft, I actually reviewed the draft bill and provided him with the draft with my comments and said, even before we go into debate, this is what I think of the bill. There is no reluctance by Opposition to share any useful work product with the minister, but clearly there needs to be a starting point.

The big contention in this particular issue is that the ministers of this government, and maybe the backbenchers as well, believe that this information belongs to them. Mr. Chair, clearly it does not belong to government members or ministers. The work was generated by people who are paid by the public purse. When ministers say, as the Minister of Health just said, that she thought that maybe I was looking for somebody to do additional work for me – if work has been done already at the public expense, then why should another public employee, somebody who is a researcher, do the same work all over again? Would it not make more sense to have the ministerial briefing book and then probably be able to do additional research, get better value for the people, and do even more work so that the people benefit from that original research in the first place?

Mr. Chair, there is no doubt in my view that the strongest minister will be made stronger by a strong critic and the weakest minister will be demolished by a strong critic. If the minister is afraid to release the information, and if the minister is insecure and knows he or she is really not up to the job, then I can understand why they would not want the briefing notes. Maybe they do not even understand their own briefing notes.

If the briefing notes are well done, the minister is competent, and the minister is up to speed then, Mr. Chair, why shouldn't the critic, or any member of the Opposition, have those briefing notes and be able to review them and then maybe be able to even prepare questions for the House? If questions are prepared based on the ministerial briefing book, then it should be an easy response for the minister to know that the minister read the briefing book and had the absolute resources of the department; if a question came forth prepared by the critic and asked in Question Period then it gives the minister a chance to perform.

Mr. Chair, it is as if the minister can best hit a home run from a fast ball, but if the minister is too afraid, insecure, not confident in his or her ability or in his or her research then, obviously, I can understand why they would not want the ministerial briefing book to be disclosed.

Mr. Chair, also, when the people elect the government and they expect performance from ministers, the briefing book can be useful to know if the minister even does any work. Does the minister show up for work? Is the minister merely a rubber stamp for the department or is this an activist minister who comes into a department, has a definite view, and intends to implement a platform that the people voted for?

Mr. Chair, there seems to be no good reason why ministers would not want to provide briefing books or even notes that were prepared, because it provides a level playing field. The members of the government, and particularly the ministers, want to have an unfair advantage. They are absolutely paranoid of a level playing field, because a level playing field means that there is some level of competition back and forth and their performance may not always be what appears to be the winning performance.

If the ministers are well briefed, if the critic is well briefed, and we have spirited debate as we have here from time to time, then presumably that gets better results, that gets better legislation, and that provides a better standard of government for the people. Clearly, we are all here in the people's House. All of the work that is done is for the people so there is no reason that the minister should need to be secretive. The five-year blackout on the ministerial briefing books and ministerial briefing notes is simply unacceptable; it is inconsistent with the statute and clearly that clause should be deleted.

Thank you, Mr. Chair.

CHAIR: The hon. the Member for St. John's Centre.

MS ROGERS: I totally support this amendment. I think it is a wonderful action, particularly when it has such very, very far-reaching ramifications for the Province. I think it is ill thought out in terms of the kind of atmosphere that it does project throughout the province, in terms of again, during this time when we want confidence in the House of Assembly, when we want confidence in the government, because of the interesting times that we find ourselves in, that we are on the cusp of making some very, very significant decisions that will affect ourselves, and that will affect generations to come.

I think, again, that the benefits that the government feels they may accrue from this particular amendment do not in any way equal the damage that this will do to the Province, the damage that it will do to the basic act itself, the confidence and the integrity of the act, how it will affect the mandate of the act, how it will affect the mandate of the Office of the Information and Privacy Commissioner. It basically undermines the whole spirit, the whole purpose of the act. Again, it is not necessary to have it. It is ill thought out. It is divisive. It creates an atmosphere that is very, very regrettable, and I applaud the amendment. I believe this will be –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS ROGERS: I believe this is a positive way to deal with this. Again, if we had had the opportunities to deal with this in an all-party standing committee we would have been able to look at these specific issues. We would have been able to work through them in a very comprehensive way, in a constructive way, rather than this particular kind of problem and mess that this government has created with this.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS ROGERS: Mr. Chair, I wholeheartedly support and endorse this amendment. I believe it is a step forward. I believe it is a solution that can answer some of the problems, some of the negative fallout of this particular amendment. So I do support it. I think it is something that the people of the Province would support, because the people of the Province do not want to have a shroud of secrecy around what is happening and how the Province is going forward. What is the strategy? What are the plans for how we go forward as a Province, as a people?

Again, I think this is a solution that will address some of these very, very negative consequences of this ill thought out proposal by the government, which is not at all necessary. It is not necessary. We have an act that safeguards the particular issues that the government wants to safeguard. Those safeguards are in the existing act, and once with the Office of the Information and Privacy Commissioner, the role, the authority and jurisdiction of that office and of the -

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS ROGERS: Thank you very much, Mr. Chair.

The authority, jurisdiction, and mandate of the Commissioner also offers that safeguard that the government is reaching out for here. Unless the government is reaching out for something far beyond what we can understand here today, and I do not know why that is. What is the big boogeyman? What is the big threat that the government has to attach such draconian measures to a very decent piece of legislation and a very decent act that serves the Province well, and would serve the Province well into the future?

It is a regrettable, an absolutely regrettable move on behalf of the government to introduce this. I think anything we can do to mitigate the negative effects of this kind of legislation, that we must do for the betterment of our Province, for the betterment of the people in order that we once again, Mr. Chair, can instill a confidence in the people. That the people will have a confidence in the House, that the people will have a confidence in government, and that the people will have a confidence in how we are going forward together as a Province.

Thank you, Mr. Chair.

CHAIR: Order, please!

The hon. the Minister of Municipal Affairs.

SOME HON. MEMBERS: Hear, hear!

MR. O'BRIEN: Mr. Chair, I am happy to get up in this House of Assembly in regard to the amendment to delete clause 3 of the act that we are discussing in this House of Assembly today, Bill 29, An Act To Amend The Access To Information And Protection Of Privacy Act.

I will start from my thought process in regard to this particular piece of legislation and the amendments thereof, to comments of the Minister of Justice in that he tried to impress on the members of this House and the general public at large the importance of the two aspects of this act, and that is that the act is about access to information and also the protection of privacy.

Access is not a total, absolute thing. What I am hearing from the hon. members, and especially the hon. Member for St. John's Centre, is that they want total access to everything and anything pertaining to the everyday running of a government. I will say this before I will go any further on that, Mr. Chair: in democracy that cannot work. We, as a government, or no government in a democratic world would be able to do business on a daily basis, carry out the work that needs to happen within government on behalf of individuals. Certainly, most, or not any – none of the companies, not only in Newfoundland and Labrador, but globally, would want to do any kind of business with the Province of Newfoundland and Labrador, or any province in Canada, or any State in the United States of America if you had total access to information at any given time.

I listened intently to the hon. Member for St. Barbe. He talked about having the binders. The way he was speaking was that, well, he wanted to give us an exam to see if we actually read our binders. It looked like an exam: is there anything in it that we did not read, did we really read it, or whatever is the way he was coming off in regard to the actual binders and the briefing notes that are provided and prepared for ministers.

When I was listening to him intently in regard to having that access and doing that kind of a question, or an exam if I could say so, it popped into my mind the role of an Opposition. The role of an Opposition in any democratic society is to do their work; that is what you are elected to do. I hear that every day here in the House of Assembly: keep their feet to the fire, make sure that they are doing the right thing, make sure they are doing the people's work at any given time in this House of Assembly on behalf of the people who were elected to represent in this House of Assembly. A part of that is to do your own research.

I heard the hon. member say that if we were provided the briefing book, maybe it might pop in their head that Tim Hortons was not making a profit down at the Health Sciences. If you were doing your work, I say to the hon. member – that is something that would pop into my head when I would analyze any department. If I was in the Opposition, I would be looking for places where there are gaps in regard to how it is working. That is the role of an Opposition, I say to the hon. members.

They want an easy role. They want complete access to information at any given time, anything and everything that is prepared for a minister. Also, I would say that in regard to the briefing notes and the binders, or whatever it may be that is provided to a minister to brief him on issues surrounding their department for Question Period, or papers that have been prepared within their department, that they are bringing forward for consideration by Cabinet; in those briefing notes, and in those papers, is my own personal work, my own personal thoughts. I would hope and believe that in regard to this amendment to delete clause 3 of the act, they would not want their own personal thoughts and their own personal work exposed to the people of Newfoundland and Labrador at any given time.

With the deletion of that clause, there will be total access to all the work that is being done on behalf of the Opposition, all the work that went into preparing those notes, questions, and whatever strategies they may have in regard to the work that they believe they should be carrying out as an Official Opposition or members of the Third Party. All of that would be exposed as well. Everything will be on the table each and every day for scrutiny, not only of the Opposition, but scrutiny of government, scrutiny of the public at large, and scrutiny of the media. Is that the way that a democratic society works? I say this to the hon. members: that is not the way a democratic society works.

This is not all about easy access; I will say that word, too. I have listened intently over the last number of hours. I will say to the hon. members that I have been in this House since 1:30 yesterday afternoon, left for a short period of time just to have a quick nap; I was not here from 9:00 or 9:30 in the morning, I can tell you that, because the House of Assembly was not open. I was not here because it was not open, but I have been here since 1:30 yesterday. A lot of the other hon. members in this House, especially in the Opposition, I saw each and every one of them in their seats for long periods of time, having spirited debate, good debate.

In regard to this particular amendment right now, I would hope the hon. member that brought it forward would reconsider, because that is exactly what they are talking about. You are talking about total access. You are talking about easy access. Really, to be honest with you, if I were to be sitting in this House and a member of the Opposition, I would not want that. I really would not, because I think, as a legislator, as a person of political stripe, I would not want that, in regard to me and their impression of me.

I would want the people of St. Barbe and I would want the people of Gander knowing full well that I was doing the work that I was elected to do on their behalf. That would be to question and come up with your own ideas, and come up with your own initiatives in regard to the way and what you see as government. I say that with all honesty. Some of them could be totally off the wall, and that would be judged by the people and it would be judged by us as all members of this House of Assembly – which each and every one of us have a right to criticize, and right to have comments in regard to some of the off the wall comments that come across the House, or in Question Period, or in debate in regard to pieces of legislation, in regard to the Budget that a government may bring down at any time – or not any given time, any year, and then they have their comments thereof. That would be judged by the people at the end, because we are in here for a period of time, a mandate of four years, and we have work to be done.

So, listen, this is not about easy access – and I have heard this now and I have listened, like I said, from yesterday afternoon about 1:30, and we started debating this very important bill – a bill that was developed back beyond when we took government. It was tabled in this House and passed in this House in 2002, and all we are talking about are amendments to that particular legislation which we proclaimed in 2005. I will ask the hon. members, in regard to this piece and the deletion of clause 3, I ask the hon. member to get on his feet and answer a question for me: Do you want total access? Do you want all access to your information out there on the public domain, whatever media, whatever that kind of a process would be? Do you want that all out? That I would be able to drop in at any given time, have a look at all your notes, all your particular information and your particular research, whatever you might have on your desk at any given time, drop in, take a hold of your briefcase, go off with it and scrutinize it and do whatever we want with it. Is that what this is all about?

So, if that is not what it is all about, I ask the hon. member to withdraw or vote against the amendment to delete clause 3. That would be the right thing to do. Let's move forward in debating the important amendments of the particular act in this House of Assembly and not be playing politics and playing spins in regard to a piece of legislation, getting it out in the public domain that there is something sinister on the go and this is all about hiding of information. You can ask at any given time to any one of my employees in my department, the Department of Municipal Affairs, for information that has been prepared within Municipal Affairs, and you will be provided that information. That is all I can tell you, and that is not going to be easy – we are not going to accumulate it for you and deliver it with a bow on it. That is work that you have to do, that you were elected to do, and I ask the hon. member to get on with it and get on with his important work that the people of St. Barbe and the people of Newfoundland and Labrador elected you to do.

That is all I have to say to this amendment, Mr. Chair, and I will take my seat in the House.

SOME HON. MEMBERS: Hear, hear!

CHAIR: Order, please!

The hon. the Member for The Straits – White Bay North.

MR. MITCHELMORE: Thank you, Mr. Chair.

I will just take a few moments to talk about the amendment, An Act To Amend The Access To Information And Protection Of Privacy Act, Bill 29, which the Member for St Barbe has put forward to delete Clause 3. I can see where the need would be to look at moving that forward in a sense that the previous clause that was put in the original bill is somewhat regressive in terms of it expands the amount of information that can go under Cabinet secrecy in terms of what would not be made available and how that would be made available. I do not think there is any member of the Opposition parties who minds doing research and doing the work.

If we looked at what the process was before these proposed amendments, in the original act, somebody could request briefing information from a minister and it would be at the discretion as to what information was being provided. At several times, either the public or political office would get back information, whether it be briefing notes as they were displayed here, where there was a number of information that was redacted. So if there is something that is critically sensitive, that cannot be shared, then certainly we do not want that information shared, it needs to be protected. That is part of the act is about the protection of privacy and some information is proprietary and it does need to be protected. We understand the role and responsibility of Cabinet ministers and what they have to do.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. MITCHELMORE: By looking at expanding these two, their role to include something that was put solely for the purpose of a briefing in any shape or form because there is not clarity there, I think this is why it was looked at to delete clause 3 from the act here. It gives too much discretionary power when it comes to information and how it can or cannot be shared. As the ministers have stated, they do not mind sharing information. In many instances, when I have made a request – and not through ATIPPA – information has been provided. Government for the most part does not want to be hiding information; I do not believe that to be the case. By putting in clauses like this, it sends up a lot of alarms that they do have something further to hide, that they do have something that they want to withhold, or the potential is there in the future.

If you look at the attachments of all the things that were there, this could lead to things such as e-mails and different pieces of correspondence. That could lead to something. Sometimes that information, those letters, those meetings, minutes, and things like that might need to be shared with the public. That is something that is being paid for through tax dollars. It is something that, if information is being requested and it is not something that goes against the act, then it should be provided in a timely manner. We are seeing that change here with that.

Also, with the previous piece, removing it – because there is some issue around the five years. After a five-year period it is deemed that any documentation that was provided there seems that it could be made available after a five-year period. I find it very interesting that it is a five-year period that has been determined as a means to provide information after that, when the act here states that it is only a two-year term for the Privacy Commissioner and it was recommended that they also have five years.

When it comes to making sure that information is made available, yes, there have to be some things that are protected. In this case it is expanding the power greatly. Any information, whether it is on a notepad or paper – it seems, from the interpretation, that could lead to information that could be withheld, and withheld not necessarily for the best interests of the people of Newfoundland and Labrador. I would certainly like to see some change somehow to the wording. It seems like what we had previously had some power to the –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. MITCHELMORE: –Office of the Information and Privacy Commissioner; they had some ability to determine. There was more legitimacy to the act at that point. With those changes, it is creating a little bit of a problem for me when it comes to looking at supporting it in the original form.

I think I have made my points there, Mr. Chair.

Thank you.

CHAIR: Are we ready for the question?

The hon. the Minister of Fisheries and Aquaculture.

MR. KING: Mr. Chair, I just want to, by way of a quick reactionary comment – this is not about hiding information or being non-transparent. As I have said a number of times today, the debate that we have just listened to on this particular clause is all focused around politicians, their staff, the media, and who ought to have access to what information and who ought not to.

I think we have heard some very good points raised in the last hour or so that clearly indicate that it is to the advantage, in particular, of members opposite who sit in this Legislature, and the media, to have access to the strategies, the documents, and the information used by Cabinet ministers, more so than anybody else in the general public, Mr. Chair.

As I said before, and a number of members have said, if we are talking about deleting this amendment, to delete this section, the question that the public really ought to ask is to the members opposite: are you saying that you are prepared to put yourself up to the same standard as every politician who sits in this Legislature? All information that you use at your disposal to prepare for your work day and that you use to ask questions and present information in the Legislature, are you prepared to put that up to the same standard that you want to hold government members and Cabinet ministers to, as well? That is a very important question, Mr. Chair.

CHAIR: Is the House ready to vote on the amendment?

Is it the pleasure of the House to adopt the amendment?

All those in favour, ‘aye'.

SOME HON. MEMBERS: Aye.

CHAIR: All those against, ‘nay'.

SOME HON. MEMBERS: Nay.

CHAIR: The amendment is defeated.

On motion, amendment defeated.

CHAIR: We will resume debate on clause 3.

The hon. the Member for Burgeo – La Poile.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. A. PARSONS: Yes, Mr. Chair, certainly I am happy to stand and go back to clause 3 of this piece of legislation, this proposed legislation, this self-serving legislation, to discuss this. There are just a few general comments that have been made that I think I should just quickly address.

One of the comments, I believe, was: who cares about briefing books? Why should we care about briefing books? What I would say is that a lot of people care about briefing books, because ministers make decisions based on the work in those briefing books which is put together for them. This work and these decisions affect these people, sometimes negatively. Therefore, this information should be exposed to the light and should be exposed to the people. That is why briefing books are important.

What I would say is that if government wants to trade off and wants our information as an Opposition, by all means, I am sure we can arrange that. We can exchange a little tabling of documents here every day whereby we will take the briefing books and we will pass you over our questions every day, if that is how – perhaps an amendment can be proposed to suggest that in this legislation. I certainly have no issue with that.

One of the other comments that I heard was: Well, who cares about this? Again, talking about the Opposition office more so than the general public, but the fact is, we represent the general public.

AN HON. MEMBER: I know that we do.

MR. A. PARSONS: You represent the general public, and the general public has a right to the information. Our job is to get it and expose it publicly to make sure that it is out there.

I am just going to move forward, because one of the things is that after looking through this section what I would say is that these records are not created to permit a member of Executive Council to exercise its functions within the Council; therefore, these should not be considered privileged information. The fact is, when a minister sits in the House, first and foremost, they are a legislator, not a member of the executive. The information that is provided is at the public expense and it must continue to be accessible. This boils down to be the essence of democracy. That is what we are getting down to here. I would put that to the hon. ministers who wonder why we continue to ask for this. Why should this information be made public? Secondly, not only why is it being hidden, but why is it being hidden for so long after it is probably even relevant?

Mr. Chair, from a public accountability and transparency stand point, the public has a right to know what the elected officials – particularly those trusted with ministerial management functions – are being told and provided by the public service on assumption of their duties of office. This should not be just treated as confidences. I would say this to you, what needs to be protected can be handled by the regular application provided for in the Freedom of Information statute.

AN HON. MEMBER: (Inaudible).

MR. A. PARSONS: Now that looks good. I have lots of time to continue on with clause 3.

What I would say to you is that this section is not necessary to help you do your job. It is just helping you make your job easier and make it harder for the public to know the information.

What I would say, Mr. Chair, when I look at this, it is one thing to consider these records off limits but the second part, as I have mentioned, and I have asked the question to the minister. What we have created here with subsection 5 and 6, Mr. Chair, is a time period that was not there before. Why is this time period put there? I heard today, once I asked a question on time period, I was told: Well, if it is not broke don't fix it. If it is not broke it is working fine. What I would say is apparently it must have been broke. They did not like having to provide this information so they are going to put these timelines in. Certainly, I do not agree with that, which is why I have an amendment here.

I would like to move an amendment that clause 3 of the bill is amended by deleting the proposed subsection (7)(5) and (7)(6) and substituting the following. Subsection (5) Paragraph (4)(a) does not apply to a record described in that paragraph if six months or more have elapsed since the member of the Executive Council was appointed as the minister responsible for the department, secretariat or agency.

Subsection (6) Paragraph (4)(b) does not apply to a record described in that paragraph if six months or more has elapsed since the beginning of the sitting with respect to which the record was prepared.

CHAIR: Order, please!

The Chair will take a moment to review the amendment that has been submitted to determine whether it is in order.

[The Chair takes a moment to review the amendment]

CHAIR: Order, please!

We will now take a moment to distribute copies of the amendment to the appropriate parties.

[Copies of the amendment are distributed]

CHAIR: Order, please!

An amendment has been moved and seconded by the Official Opposition and I have determined that the amendment is indeed in order and we will now commence debate on the amendment to clause 3 of Bill 29.

The hon. the Member for Burgeo – La Poile, on the amendment.

MR. A. PARSONS: Mr. Chair, I do not have much time left, so I will just illustrate why I have entered this amendment.

I have asked the minister why the five-year period was put in there, and I have not been given any good reason whatsoever of why the five years is put there. I have stated that I think it is for political reasons. It is one thing to have a Cabinet document that is secret but it is another thing – if you want to put six months on it, six months is tons of time. We probably could have been agreeable to a little bit longer than that, but five years just takes it out of the realm of what is necessary or relevant, to go longer than that is just unnecessary. So, what I would say is that is why the amendment has been put forward. I think it makes a lot of sense. I think this information needs to be exposed to the light of day. Again, there was no need to change it, in that we have had to go through these processes, and usually it takes sometimes up to that amount of time to get anything anyway.

I put that amendment forward, Mr. Chair, and I look forward to hearing the comments from the government as to their opinion on this very worthwhile amendment.

CHAIR: The hon. the Member for St. John's North.

MR. KIRBY: I just have a few words to say. I support the amendment. I think this really suitably addresses what I had raised earlier, with respect to the minister's comments about five years being –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. KIRBY: – I believe he called it a reasonable period of time, and I think he said that this was borrowed from Alberta. I think that this is a much more reasonable time frame in terms of records and the amount of time that has elapsed.

I know that one member was saying about the briefing books issue – if briefing books are an issue, there are certainly ways that the legislation can protect sensitive information when members of the public are looking for data, or files, or records, or information. There are certainly ways that sensitive information can be protected. We have seen time and again –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. KIRBY: – examples of where information that is not sensitive are being kept from public view. In debate last night, we were talking about how information that was already in the public domain was not made available through an access to information request. I think there was a collective agreement, there was a human resources manual, and there was even a letter written by the person who was making the request for information that was not made available to them through their access to information. So, there are certainly cases where it does not apply.

There are certainly ways that you can protect personal information, if you do not want that to get out there. If a member of the public is looking for information, or particular files, or records, or information that could be damaging to someone personally, there are ways to protect that. There are ways to protect privacy, and, of course, that is included in the bill as well.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. KIRBY: As for the briefing books, it seems that this is about protecting information that could be embarrassing.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

I am having a little difficulty hearing the hon. member's comments. I ask members for their co-operation.

The hon. the Member for St. John's North.

MR. KIRBY: Thank you, Mr. Chair.

The five-year period seems like it is trying to protect individuals from potential embarrassment or something to that effect. Imagine if you FOIed a briefing book of, say, the Minister of Aquaculture and there was grand scheme to produce cucumbers on a grand scale and to send every Newfoundlander and Labradorian a calendar that had the cucumbers recipes in it. Imagine if that was, in fact, the case, that would be potentially embarrassing for the person because that would be, frankly, a foolhardy thing to do. That is the sort of thing that we would want to know about, that would be embarrassing, but it would not be around sensitive information, or around personal information, or information that is damaging.

The five-year period, I think, is really out of step with any modern notion of access to information. It is really out of step and the more we read through this bill, the more we discuss it, and debate it in the fulsome way that we should, I am reminded of a movie Back to the Future because I think that this bill is like the movie Back to the Future that takes us back to a period before we had the Access to Information and Protection of Privacy Act.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. KIRBY: I think that this is a decent amendment; I can support it. I think it is consistent with the direction we want to go with access to information and protection of privacy.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. KIRBY: Unlike the current provision, which as I have alluded to previously, runs absolutely counter to and is contrary to, and is, I would say, inconsistent with notions of openness or transparency and the provision of access to information in a modern democratic state such as ours.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. KIRBY: I am pleased to support the amendment and thank the Member for Burgeo – La Poile for entering it.

Thank you, Mr. Chair.

CHAIR: The hon. the Member for St. John's Centre.

MS ROGERS: Thank you very much, Mr. Chair.

I think that this is a very interesting amendment and one that I can support. Again, my concern is that the safeguards are in there in the act, and the mechanism for executing those safeguards are in there in the Office of the Information and Privacy Commissioner, who has proven, up to this point, to be very effective, to be very fair, and to be very efficient. One wonders: Why these measures when the Commissioner in fact can do that work and can assess a document. What I spoke about earlier, Mr. Chair, was my concern with the ramifications and the spill over effect of introducing this kind of legislation –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS ROGERS: – what it does to people of the Province in terms of undermining and eroding their confidence in the government, undermining their confidence in the democratic process. Mr. Chair, I would just like to read an e-mail that was sent by a constituent to me yesterday. She wrote: I am appalled at Bill 29's potential to block of Freedom of Information requests. Given Stephen Harper's use of a financial Budget to change over seventy laws, especially environmental laws, I wonder why the provincial Conservative government is moving in this direction.

MR. KENNEDY: A point of order.

CHAIR: Order, please!

The Government House Leader, rising on a point of order.

MR. KENNEDY: (Inaudible) Mr. Chair.

CHAIR: Order, please!

I remind all hon. members that we are debating the amendment that has been proposed to clause 3. We are trying to allow a fair degree of flexibility during this debate in Committee. I ask members to relate their comments as much as possible to the amendments and clauses that we are debating.

Once again, I recognize the hon. the Member for St. John's Centre.

MS ROGERS: Thank you, Mr. Chair.

What I was speaking to in fact, Mr. Chair, was again the effects on the community, on the Province, on the public, with introducing these particular kinds of changes to our ATIPPA.

MR. KENNEDY: A point of order, Mr. Chair.

CHAIR: Order, please!

The hon. the Government House Leader, on a point of order.

MR. KENNEDY: She is reading off her BlackBerry, Mr. Chair. The Member for St. John's Centre is reading off her BlackBerry. My understanding is you are not allowed to do that.

CHAIR: There is no point of order.

Once again, I recognize the hon. the Member for St. John's Centre.

MS ROGERS: Thank you, Mr. Chair.

I actually was speaking and then I would like to resume just a reading a notice from a member of our public who is very, very concerned about –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

I ask members for their co-operation.

The hon. the Member for St. John's Centre.

MS ROGERS: Thank you very much, Mr. Chair.

I ask leave to be able to continue this very short e-mail from a very concerned constituent.

AN HON. MEMBER: You do not require leave to read it.

MS ROGERS: Okay.

Mr. Chair, she said: given Stephen Harper's use of a financial budget to change over seventy laws, especially, especially environmental laws, I wonder why the provincial Conservative government is moving in this direction. Why this? Why now? Perhaps it is related –

AN HON. MEMBER: (Inaudible).

MS ROGERS: This is somebody that I have not yet met, Mr. Chair – perhaps it is related to the upcoming signing of the European Trade Agreement, or other agreements that might affect our fishery, our resources, our freshwater, and our local employment potential. Our government was elected to act on behalf of its citizens. If the government cannot defend its decisions, actions, or signed agreements, they cannot be allowed to hide behind a curtain of secrecy.

CHAIR: Order, please!

I am hesitant to interrupt the hon. member once again. I would say to hon. members that while it is discouraged to read from prepared texts, whether they be printed or electronic, there is no Standing Order that prohibits such activity, though we certainly do discourage it.

Once again, I recognize the hon. the Member for St. John's Centre.

MS ROGERS: Thank you very much, Mr. Chair.

Once again, I think that e-mail –

MR. KENNEDY: A point of order, Mr. Chair.

CHAIR: Order, please!

The hon. the Government House Leader on a point of order.

MR. KENNEDY: (Inaudible) members opposite ask us to table documents, I would ask her to table that message, please.

CHAIR: There is no point of order.

The hon. the Member for St. John's Centre.

MS ROGERS: Thank you very much, Mr. Chair.

Once again, one of the reasons I was happy to read that particular e-mail, which was an unsolicited e-mail, but one –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS ROGERS: Mr. Chair, one of the e-mails that I am getting from the public about their concerns, about this particular piece of legislation, and in particular –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS ROGERS: – the parts of this legislation that some of the constituents who have e-mailed me, people where these e-mails were not solicited, and in fact, by people I do not even know, they were really concerned, particularly about the new legislation as it relates to Cabinet documents. We have a public, again, who wants to have confidence in the government. We have a public who wants to have confidence in the decisions that are made. They want to be able to trust what is happening. I think, Mr. Chair, in fact, that the introduction –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS ROGERS: The introduction of this bill, in fact, has created a problem that was not as big in the Province as it is right now. It is almost like poking the wasp's nest in that people are really concerned. They are concerned about the whole issue of Cabinet secrecy and putting a shroud of secrecy over Cabinet.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS ROGERS: Thank you, Mr. Chair.

The work that happens in Cabinet, the work that happens in executive committee and Executive Council belongs to the people of the Province. This is the work about the people of the Province. Our Province is not a corporation, it is not a business, and therefore should not be treated as that. It is not a private body, it is not about private agendas, and it is not about personal agendas. The agenda is about –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Once again, I ask members for their co-operation.

The hon. the Member for St. John's Centre.

MS ROGERS: Thank you, Mr. Chair. I would like to thank you once again.

Our executive is not a corporation; our government is not a corporation. This is about doing the work of the people. The work of the people is an open, transparent, accountable process. We have a right; the people of the Province have a right to know what is going on. The people of the Province have a right to know what informed decisions, why decisions are made, who decisions are made by, what is the advice that is being considered, what is the advice that is being rejected, who government relies on for consultation and advice. This is information that belongs to the people of the Province.

We all know there are issues that are sensitive in nature, that do require special protection, but that protection is inherently protected. That protection is inherent in the ATIPPA legislation; it is also executed by the Commissioner. One of the concerns I have is what this has done to the people of the Province by undermining their confidence in the democratic process.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS ROGERS: Already we are a Province that has a democratic deficit in the very fact that so much does happen behind closed doors, where we do not have standing committees where we can see how decisions are made, we can see what is considered in the making of decisions, where we can all come to the table and work together as all of us who are elected by the people of the Province to make decisions that affect the people of the Province, that affect our future, and that affect generations to come.

Mr. Chair, I will clue up for now and I look forward to speaking again.

Thank you very much, Mr. Chair.

SOME HON. MEMBERS: Hear, hear!

CHAIR: Order, please!

The hon. the Member for St. Barbe.

MR. BENNETT: Mr. Chair, this is a very good amendment. I can easily support this amendment. It certainly does not provide with getting rid of the five-year blackout period; what it does do is provide a six-month head start for ministers. Mr. Chair, ministers could have a six month head start over their critics and over people who want to oversee what they are doing.

Mr. Chair, the competent ministers do not really need that. The competent ministers will be on the ball; they will do their job, they will have their briefing notes, and they probably will have contributed to them and know what they are looking for. For the other ministers who feel they are not really as up to the task as the better ministers – I suppose every bunch have some that are better and some that are worse than others – this will give them a six-month period to get ahead of the Opposition and to get ahead of the media, to become well briefed in their file, in their portfolio, and really get to understand what is going on.

Mr. Chair, I have no difficulty supporting this amendment, although clearly, I would have preferred the earlier amendment.

Mr. Chair, in some of my comments, I am guided by a former Leader of the Opposition. When that Leader of the Opposition sat over here ten years ago he made certain pronouncements and, of course, he was leading many of the members opposite.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. BENNETT: This is recorded in Hansard, Mr. Chair. He said: that is what my platform is about. No hidden documents, no hidden agenda. Let's go to our policy on Freedom of Information as contained in our Blue Book in the 1999 election. A PC government will establish a new Freedom of Information Act to reduce the cost of accessing information. The first point, reduce the cost of accessing information; secondly, reduce the wait time for information, so six months is not too long; and finally, to ensure that ministers actually provide the information requested. He was talking about ministers of the government, at that point – ensure the ministers actually provide the information requested, where that information belongs in the public domain. Three pretty sound, reasonable principles.

Mr. Chair, that was the former Premier of this Province, and prior to that, the Leader of the Opposition, when he was in Opposition, when he was sitting in this chair right here, facing a Liberal Premier of a Liberal Administration that had introduced the current statute that we are seeking to amend right now. The former Leader of the Opposition, the former Premier, referred to the comment of the Minister of Justice – the then Minister of Justice in 2001 – and he said: In the paper he talked about a change of attitude. If I may, he said, I have to take off my glasses; he said, that change will not come overnight, but there is a mindset that has to be changed. He said: it is no good to have a progressive piece of legislation – and he was referring to the current act as a progressive piece of legislation – if we do not change the mindset and understand that it is the public's right to access the information. He said: I agree with the Minister of Justice. The mindset of members opposite should be changed, I agree.

Mr. Chair, he was speaking about the government, the party which is now the Opposition, and he was saying that his Opposition at that point had their mindset already changed. Mr. Chair, it seems quite apparent that the remnants of the Williams' government that we face on a day-by-day basis certainly have had a change of heart. They are a lot more faint-hearted. They do not have the same leadership, they do not have the same direction, they do not have the same focus, they are terrified of criticism, and they are afraid to give out information. Then we see this piece of legislation that the Opposition can only hope to fix up by introducing amendments to assist the governing party to improve their legislation so it is not as draconian as it would otherwise be.

Now, if the former Premier, former Leader of the Opposition, was referring to a change in mindset, then presumably his own supporters had already experienced that new mindset, but they seem to be lapsing back; he referred to it as progressive legislation. The former Premier, Mr. Chair, went on further to say: It is their Province, it is their government, it is their resources, and their information. Now, how has that changed? How has that changed now? This government is now in power, so does that mean now the government wants to say: well, it is our Province –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. BENNETT: – and we are the government; it is our government, it is our resources, it is our information, and you are not getting it.

Well, clearly that is an outrageous proposition, but that is exactly what this government is saying by not producing briefing books and not producing briefing notes for a five-year period – a five-year blackout on information provided to a minister of the Crown who is paid by the taxpayers, whose research is done at taxpayers' expense, and whose work is supposed to be done for the benefit of the taxpayers. Mr. Chair, the former Premier, former Leader of the Opposition, went on to say: The people of this Province have a right to know what is going on. It should not be done behind closed doors. It should not be a fait accompli. It should not be signed, sealed and delivered and then rammed down their throats after it is all over. That is too late.

Mr. Chair, it is easy to see how this type of legislation is critical to the government at this point because ministers are being briefed. They are being briefed on Muskrat Falls, they are being briefed on a whole host of other initiatives, and they want to be able to shut off the flow of information immediately because they are terrified that the people will know exactly what is behind their deliberations, if in fact there is anything motivating their deliberations. Mr. Chair, they cannot stand up to the scrutiny, and the best way not to be scrutinized is to shut off the information.

Mr. Chair, I say the amendment is an excellent amendment. It gives the ministers a six-month head start on any of their critics and a six-month head start on the Opposition. The ones who are not really up to the task will still have six months, the ones who are not very good performers. They will have six months to get used to the department, the information that they are dealing with. They will be out in front and then it will be up to the Opposition to catch them, which I am quite certain it would not be very difficult to do. However, a six-month delay would be reasonable and I completely support the amendment.

Thank you, Mr. Chair.

CHAIR: The hon. the Member for The Straits – White Bay North.

MR. MITCHELMORE: Thank you, Mr. Chair.

I stand to speak to an amendment put forward by the Member for Burgeo – La Poile for clause 3 of a bill to be amended by deleting and to replace two paragraphs. Instead of going with a five-year term of being able to have to wait for documentation from Executive Council or a minister responsible for a department, secretariat or an agency, it would reduce that amount and allow for the transparency of information to flow much more quickly to a six-month process. That seems much more in line, I think, when it comes to looking at how unacceptable it is to go a five-year period, when based on the Cummings Report, when you were looking at the recommendations that were put forward, it had recommended a five-year term for the Privacy Commissioner; yet, government selectively looked at rejecting that to a two-year term. If they were looking at consistency and compliance, they would want to have a longer term for the Privacy Commissioner.

If we look at what the amendment is stating, paragraph 4(a) does not apply to a record described in that paragraph if six months or more have elapsed since the member of the Executive Council was appointed as the minister responsible for the department, secretariat or agency. It is quite often and quite frequent that –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. MITCHELMORE: - a minister can be in a role, they could serve several portfolios over a period of time. There is information that is out there when it comes to the period of time in and between elections. During an election there is a four-year time.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. MITCHELMORE: We have fixed election dates in this Province and that is something we are proud of. The fact that this amount of time, this lapse of when information – in the original bill it stated five years. That is something that goes beyond what is even a fixed election date. You have a longer period of time and that sends up a lot of flags in terms of questions.

I wonder why five years was determined in the original clause. Who determined that, and why did they determine that as acceptable? You look at the timeline that is there, five years seems quite a long time to wait for a piece of information that could be vital to a person, to an individual out in the community looking for information. Because the original clause above those in section 3 expands documentation that can be put under Cabinet secrecy, is basically very concerning. You can see, as Opposition parties here on this side of the House, we are quite concerned with section 3. Seeing these amendments put forward is looked at as a way to make things a little bit more accountable and transparent.

Then we look at the second section, paragraph 4(b) in this new amendment put forward, that it does not apply to a record described. If six months or more has elapsed since the beginning of the sitting with respect to which the record was prepared.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. MITCHELMORE: If we go back to what the original authority was of the Office of the Information and Privacy Commissioner, they had that independent authority. They are an independent body with integrity –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. MITCHELMORE: - with a mandate that is governed under this very act, under the ATIPP Act. By broadening these roles under (a) and (b) you are not permitting. So it is sending up quite a message to the people, I think, of Newfoundland and Labrador that there is something to be concerned about, whether it is not right now, but whether it could be in the years to come.

There is so much that is happening right now in this Province when it comes to developments, when it comes to large decision-making procedures that we are doing, when it comes to looking at the labour market, when it comes to looking at how we move forward with resource development, when it comes forward to looking at rural renewal and places like that. When we look at the overall strategies – and as an Opposition Party, as a member of the NDP, an elected official, as a critic in this House, it is my obligation to serve the people of my district and to be able to make recommendations and advice to government –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

I ask members for their co-operation.

The hon. the Member for the Straits – White Bay North.

MR. MITCHELMORE: Thank you, Mr. Chair.

I would just like to say that a five-year period when you are looking at receiving documentation, if you are in any organization or any affiliation looking for documentation as to build your own strategy, your own advice, and looking at where to move foreword, you need to be able to access certain pieces of information.

Some of that now, based on the act, some of it is available readily, it is absolutely available readily, when it comes to Web sites and documentation through departments; but, with the role here of being able to say, well if this advice document or this report on a government Web site or somewhere else is now going to be used in a briefing we are going to classify it, so maybe we will take that down. That can take five years then before we get the ability to receive it.

So, maybe this is where we need to look at this amendment and say that a six-month process being able to access information is more timely than five months. I think that is something that we need to look at making some revision or modification because we do need to have an ability to access information in Newfoundland and Labrador in a timely fashion so that we can look at building strategies for the people of the Province, building a concept as to how we move forward to certainly get that maximum benefit for the people.

With that, Mr. Chair, I think I have made my points. I certainly see this amendment that is put forward as a good thing. It is a step in the right direction when we look at lowering the timeline of being able to access certain pieces of information. In the original documentation that was put forward, in the original act, if you go and request information, privacy, briefings from government departments, if there was something in it that was sensitive, it would not be shared, it would be redacted, it would be blacked out, and that is something that still could be. With the information the way that it is putting forward, it is being much more restrictive and it gives much more authority to a Cabinet minister or an Executive member to have that authority to make that decision to not release information. Without having that independent body as the Privacy Commissioner – and also extends the life of having information available. Information that would have been available today will not be available until 2017 in some cases, Mr. Chair.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. MITCHELMORE: That is very concerning to me as I represent the members of The Straits – White Bay North.

Thank you, Mr. Chair.

CHAIR: The hon. the Member for St. John's North.

MR. KIRBY: Thank you, Mr. Chair.

I just wanted to say a couple of words because we are probably getting towards voting on the amendment. I think there is still something that is really missing here. Even with the amendment, I think there is really something that we have to admit that we are losing. I know that we disagree on matters of policy in different political parties, there is no question, but I certainly appreciate and believe that members of Cabinet in Newfoundland and Labrador have significant integrity. I would never call that into question, Mr. Chair.

We did learn from the spending scandal. I hate to draw these parallels, but we did learn from the spending scandal the need for independent oversight when a public body, when a public agency, when government or some part of government is refusing access to information and not sharing records. This gets us closer to where we need to be, but it is really not where we ought to be. I just wanted to read something that the Information and Privacy Commissioner had said.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. KIRBY: With respect to the changes to this legislation, he said: If there were no changes in the Access to Information and Protection of Privacy Act, it would still be far preferable to the previous situation with the old Freedom of Information Act, which was much more limited in its scope and contained no provision, Mr. Chair, for an oversight mechanism such as the Commissioner's office, such as the Information and Privacy Commissioner. Even with this amendment, we have to admit that we are still losing much of the oversight authority that we desire.

As we were saying earlier in debate – maybe it was last night, maybe it was this morning, we have been here for quite a long time now – most provinces do allow a Commissioner or someone who is in a role that is similar to our Commissioner, or someone who is competent in a role that is similar to our Commissioner, to adjudicate, to get involved, to make decisions, to make determinations, to examine documents, and to decide in a co-operative way with Executive Council. That certainly could be the case, so I just wanted to acknowledge that.

I would just like to say once again, I do believe that this amendment, the six-month provision as opposed to the five years, is far more reasonable. If you think about the length of time that members work in particular offices in Cabinet, that work in particular departments, and the frequency with which members move in and out of particular portfolios, the frequency of elections, which is four years, I think that this really makes a lot more sense.

I have to say congratulations to the member who proposed this, because I think he really understands the sort of access to information, to data, to files, and to records and information that we need if we are going to have an open act that is truly an access to information act and not one that shuts the door where there is a cloak of Cabinet secrecy on documents for a long, long period of time.

With that I will just say thank you very much and I appreciate being able to contribute further to the debate.

CHAIR: The hon. the Member for St. John's Centre.

MS ROGERS: Thank you very much, Mr. Chair.

Just one thing, again, when we look at what is happening in the public sphere since the introduction of this act – particularly parts of the act, this one in particular, where we look at Cabinet documents, where we look at documents that pertain to government workings, government planning and deliberations about the business of the Province, about the future of the Province.

As many of us know, in the media, this issue that we are dealing with now is being spoken about across the country by some people with lots of expertise, people with lots of concern. It has gone beyond our own Province. Again, there are many experts that are weighing in, and our own people are weighing in, as we saw in the e-mail that I read from a member of the public.

It is my hope, Mr. Chair, that in fact we not totally ignore the voices that are clamouring to be heard in their absolute regret about this legislation. It is about our democratic process, and all defenders of democracy across the country can see that. Again, some of the very senior people in the media with lots of experience are also waving flags, are blowing whistles and saying this is problematic. The media plays a very important role in the work that we do because they too hold us accountable. They hold us accountable to the promises that we have made to the people of our Province. I would think that it would be folly, that it is folly to ignore the voices that are sounding the alarms about the ramifications of this piece of unfortunate and ill-thought legislation.

Thank you, Mr. Chair.

CHAIR: Is it the pleasure of the Committee to adopt the amendment?

All those in favour, ‘aye'.

SOME HON. MEMBERS: Aye.

CHAIR: All those against, ‘nay'.

SOME HON. MEMBERS: Nay.

CHAIR: I declare the amendment defeated.

On motion, amendment defeated.

CHAIR: We will now resume debate on clause 3.

Shall clause 3 carry?

All those in favour, ‘aye'.

SOME HON. MEMBERS: Aye.

CHAIR: All those against, ‘nay'.

SOME HON. MEMBERS: Nay.

CHAIR: Carried.

On motion, clause 3 carried.

CHAIR: Clause 4.

Shall clause 4 carry?

The hon. the Member for Burgeo – La Poile.

MR. A. PARSONS: I just wanted to have an opportunity to ask the minister a couple of questions on subsection 4.

AN HON. MEMBER: (Inaudible).

MR. A. PARSONS: I would say to the Member for Fortune Bay – Cape La Hune, certainly if you have some questions, you can stand up and ask them too, and I will do my best to answer them.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. A. PARSONS: There is only one section that we are talking about here that is being repealed, or substituted. That is 14(1)(a): where the head of a public body may refuse to disclose a record, or part of a record that (a) is published and available for purchase by the public or – and in this case, it is changed to: is published and is available to the public without cost or for purchase.

I am just wondering, my question to the minister: is this something that was just more of a housekeeping item, more or less, or are there specific incidents that have raised this specific revision to the legislation?

CHAIR: The hon. the Minister of Justice and Attorney General.

MR. F. COLLINS: Mr. Chair, the hon. member is exactly right, that is a housekeeping item amendment. Section 14 permits public bodies to refuse to disclose a record that is published and is available for purchase by the public or has been purchased within forty-five days of the request. It is a housekeeping amendment, Mr. Chair, being amended to permit public bodies to refuse to disclose materials, if that material is available to the public with or without costs – a very simple amendment.

CHAIR: Shall clause 4 carry?

All those in favour, ‘aye'.

SOME HON. MEMBERS: Aye.

CHAIR: All those against, ‘nay'.

Carried.

On motion, clause 4 carried.

CLERK: Clause 5.

CHAIR: Shall clause 5 carry?

The hon. the Member for St. Barbe.

MR. BENNETT: Mr. Chair, I would like to ask the minister, clause 5 which is 16.(1)(d), it says if "more time is needed to consult with a third party or other public body before the head can decide whether or not to give the applicant access to a requested record." Can he provide some sort of an example or –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. BENNETT: What type of entity is contemplated here?

CHAIR: The hon. the Minister of Justice and Attorney General.

MR. F. COLLINS: Yes, Mr. Chair, section 16 currently states that the public body can extend the time for responding to an access request for thirty days in certain circumstances, such as where a large volume of records has been requested, or more detail is needed to respond to the request. Section 16 gives you an extra thirty days.

We are amending it now, Mr. Chair, to allow a longer period of time, if necessary, with the prior approval of the Commissioner. For example, where a public body needs to consult a third party to respond to requests, and that was Mr. Cummings' recommendation, Mr. Chair. Several jurisdictions have that provision: British Columbia, Alberta, Manitoba, Nova Scotia, New Brunswick, and Prince Edward Island. It is a balanced approach, Mr. Chair. An extra thirty days is given, but if a longer period of time is needed, then with the approval of the Commissioner the time can be extended. It is a very simple amendment.

CHAIR: The hon. the Member for St. Barbe.

MR. BENNETT: Mr. Chair, the difficulty that I have with this particular section is it is far too vague. Instead of introducing some precision into the statute, it creates a whole range of categories that are just far too vague. It says, "The head of a public body may extend the time for responding to a request for up to 30 additional days where (a) the applicant does not give sufficient details to enable the public body to identify the requested record".

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. BENNETT: Mr. Chair, we come across situations in seeking access to information whereby the public body that the information is being sought from will go back and forth and back and forth and keep on raising more issues. It simply becomes a delay or a stalling tactic, so 16.(1)(a) is certainly too vague to stand any proper scrutiny if this legislation is to be well drafted.

Furthermore, 16.(1)(b) says, "a large number of records is requested or must be searched, and responding within the time period in section 11 would interfere unreasonable with the operations of the public body". Mr. Cummings, in his report, clearly noted that there is a large range, a large variation from public body to public body in how they deal with different types of requests. This legislation would be much better if instead of saying a large number of records – how many are a large number of records? Is that five, ten, or a couple of dozen?

We heard a minister today complain because I think he said that he had maybe twenty requests so far this year. That seems like not an absolutely onerous amount. If in a six-month period of time a department is unable to respond to twenty requests in a Province of 500,000 people, then you wonder what they are really doing with their time.

Clearly, this section of 16.(1)(b) refers to a large number of records is requested. Then it goes on to say, "…or must be searched, and responding within the time period in section 11 would interfere unreasonable with the operations of the public body". This puts the head of the public body completely in control of determining A, there is no enough detail provided, although it does not say how much is the appropriate amount; B, what is a large number of records, so they have been asked for three, or ten, or twenty. Every different head of a public body could have a different number and a different interpretation.

The records could be requested or must be searched, clearly if they are requested and available they do not have to be searched. It goes on to say "…responding within the time period in section 11 would interfere unreasonably with the operations of the public body". If somebody does not want to comply with a request for information, then any request will be seen to interfere unreasonably. This is a situation whereby if the government receives the request and they want an excuse not to be able to comply with the request, not to give the information, the response from the head of the public body can go back and forth and back and forth. After awhile, the person requesting it simply would get tired of requesting it. It delays, and access delayed is effectively access denied.

16.(2) says, "In addition to the authority under subsection (1), with the approval of the commissioner, the head of a public body may extend the time for responding to a request as follows". It says, "where one or more of the circumstances described in subsection (1) apply for a period of longer than the 30 days permitted under that subsection". The next section says, "where multiple concurrent requests have been made by the same applicant or multiple concurrent requests have been made by 2 or more applicants who work for the same organization or who work in association with each other".

Mr. Chair, this is far too vague. Does it mean that if they work in an association with each other – if, for example, I were to make a request for information of the Minister of Fisheries and Aquaculture and my colleague from the Third Party, from The Straits – White Bay North, made a request also of that minister, unknown to me the minister could easily come back and say: well, because both are in Opposition, they are working in association with each other; consequently we need to delay this even further. How many requests are multiple concurrent requests? Does this mean two requests, three requests, four requests, six requests? I can accept a multiple is more than one, and it is probably more than two; how many more, fifty, twenty?

Mr. Chair, this amendment, this proposed section, is far too vague to be workable. What it seems to do is introduce a feature in this statute which is working relatively well and could work even better if the government were so motivated, as their former leader was. They certainly could comply with requests under the statute as it existed, but not as they intend for it to exist.

It goes on to say: where the Commissioner otherwise considers that it is fair and reasonable to do so, as the Commissioner considers appropriate. Mr. Chair, we have a situation here where the Commissioner has – Mr. Cummings has recommended that an appointment be for five years. Ours is the only jurisdiction with less than five years. Some jurisdictions have as much as six years. If the Commissioner is going to be appointed on a two-year term, then we would be going through rotating Commissioners every two years, who will simply be a little more than the servants of the governing party. That clause serves no useful purpose.

Mr. Chair, where the time limit for responding is extended under subsection 1 or 2, the head of the public body shall notify the applicant in writing of the reason for the extension –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. BENNETT: – and when a response can be expected.

Mr. Chair, this seems to really take away a lot of the power of the Commissioner, and it puts the power back in the hands of the responding agency, the responding public body, that probably does not want to go to the bother of providing the information anyway. As we have just seen, this government has just moved to pass an amendment to provide a five-year blackout period, and now the head of whatever organization might happen to be – it could be CONA, it could be Eastern Health, it could be any other public body – simply replies in writing and tells the applicant: you are not getting the information and here is why, or this is the delay, this is how long it is, take it or leave it.

Mr. Chair, this is far too vague of an amendment to be of any beneficial effect in this legislation.

Thank you, Mr. Chair.

CHAIR: Order, please!

The hon. the Minister of Justice and Attorney General.

MR. F. COLLINS: Mr. Chair, I have to respond to those comments, because it is amazing what you can do with a simple provision when you are attempting to filibuster, that you could make so much out of a simple little amendment.

Mr. Chair, the only thing added to this from the previous bill was 16.(1)(d) and 16 subsection 2. Mr. Chair, the head of a public body has thirty days to prepare a response. In the event that he does not have enough details, or he has to get more information, or there are a lot of requests – the hon. member asks: how much is sufficient details? How much is reasonable? Is it two, is it three, is it four? How many requests are reasonable? Is it two, three, thirteen, fifteen? It is amusing to hear him take that position.

Mr. Chair, the head of a public body, if he needs more time, he gets an additional thirty days under this section. If he needs more time beyond that he can apply to the Commissioner for extra time and the Commissioner will decide whether or not he gets extra time. It is as simple as that, Mr. Chair. If the time is extended then the public body notifies the applicant the reason for the extension and when the response can be expected. It is a very simple, straightforward little application, Mr. Chair.

CHAIR: Shall clause 5 carry?

Order, please!

The hon. the Member for St. Barbe.

MR. BENNETT: Mr. Chair, I would like to ask the minister, how does he anticipate that the public body responding to the applicant would reply? It says in writing, is that by registered mail, certified mail, e-mail? How is that response done?

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

The hon. the Minister of Justice and Attorney General.

MR. F. COLLINS: He will send them a dove, Mr. Chair.

CHAIR: The hon. the Member for St. John's Centre.

MS ROGERS: Thank you very much, Mr. Chair.

I would like to ask the minister why he would not, as was recommended by the Commissioner and recommended by Mr. Cummings, that the Commissioner in fact would have the authority and the jurisdiction to make decisions on extended searches and large searches. Why would the minister not have confidence in the Commissioner who has been appointed and has the jurisdiction?

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

Shall clause 5 carry?

All those in favour, ‘aye'.

SOME HON. MEMBERS: Aye.

CHAIR: All those against, ‘nay'.

Clause 5 is carried.

On motion, clause 5 carried.

CLERK: Clause 6.

CHAIR: Shall clause 6 carry?

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

The hon. the Government House Leader.

MR. KENNEDY: Mr. Chair, it is 5:30 o'clock in the afternoon. Perhaps at this point it would be an appropriate time to take a break and we will come back at 7:00 o'clock.

CHAIR: I understand that there has been agreement among the parties that we will now take a brief recess for the supper break.

The House is now in recess and we will reconvene in Committee of the Whole at 7:00 p.m.


June 12, 2012                    HOUSE OF ASSEMBLY PROCEEDINGS                  Vol. XLVII No. 47A


The House resumed sitting at 7:00 p.m.

CHAIR (Kent): Order, please!

Welcome back.

I remind hon. members of the House that we are in Committee of the Whole. We are presently debating Bill 29. We most recently passed clause 5 and we will now resume debate, starting with clause 6.

CLERK: Clause 6.

CHAIR: Shall clause 6 carry?

The hon. the Member for Bay of Islands.

MR. JOYCE: We just –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

Clause 6.

MR. JOYCE: So clause 5 was finished? It was voted on?

CHAIR: We did vote on clause 5, it was carried, and we are now debating clause 6.

The hon. the Member for Bay of Islands.

MR. JOYCE: (Inaudible).

CHAIR: You are both standing.

The hon. the Opposition House Leader.

MS JONES: Thank you, Mr. Chair.

I am pleased to stand and have a few words with regard to clause 6 of the bill.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS JONES: Mr. Chair, for people who are just tuning in, what we are actually debating here is Bill 29, which is the Access to Information and Protection of Privacy Act. Basically what we have had in this Province has been a very good piece of legislation around the access to information and protection of privacy, which has allowed individuals in this Province to be able to access information on various issues throughout the government in government departments.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS JONES: What we are now seeing is we are seeing a tightening of that process. Mr. Chair, my colleagues are asking me where the Third Party is. I have no idea.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

I think it would be appropriate at this point in time for me to make a couple of comments on decorum in the House. It has been certainly a very long period of days in the House of Assembly. Both yesterday and today are long days in the House. I understand that there is a lot of interest in the legislation that we are debating.

I have had to rise numerous times to call for order in the House. That is prolonging the debate; it is making it difficult for us to –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

It is making it difficult for us to conduct the business of the House. We will take as much time as is required to debate each and every clause of this bill. Unfortunately, if the decorum continues to be a challenge, I will continue to rise, and at some point I will have no choice but to rise the Committee without any further notice and report to the Speaker. I ask members for their corporation this evening so hopefully we can get through the various clauses of this bill in an efficient and in an effective matter.

Once again, I recognize the hon. the Opposition House Leader.

MS JONES: Thank you, Mr. Chair.

I certainly support your ruling, Mr. Chair, absolutely.

SOME HON. MEMBERS: Hear, hear!!

MS JONES: Thank you, Mr. Chair.

There is lots of applause there for the Member for St. John's East, Mr. Chair. I am sure he is happy to be joining us this evening.

Mr. Chair, we are debating clause 6 of the bill. This relates to section 18 of the actual act and the amendments that are occurring here. Basically, what they are saying is that section 18 of the actual act is repealed and the following is substituted. In this section, Mr. Chair, they have defined Cabinet record and what Cabinet record now will mean under this new legislation is advice, recommendations or policy considerations submitted or prepared for submission to the Cabinet. It also includes draft legislation or regulations submitted or prepared for submission to the Cabinet; and, a memorandum, the purpose of which is to present proposals or recommendations to the Cabinet. It will include a discussion paper, policy analysis, proposal, advice or briefing material, including all factual and background material prepared for the Cabinet.

I am just going to read through all of them and then I am going to break them down, Mr. Chair. It includes an agenda, minute or other record of Cabinet recording deliberations or decisions of the Cabinet; a record used for or which reflects communications or discussions among ministers on matters relating to the making of government decisions or the formulation of government policy. It will include a record created for or by a minister for the purpose of briefing that minister on a matter of the Cabinet.

It will include a record created during the process of developing or preparing a submission for the Cabinet; or, that portion of a record which contains information about the contents of a record within a class of information referred to in subparagraphs (i) and (viii). Basically, Mr. Chair, if you even think that you might want to write down these words and give it to someone in the Cabinet when they are making a decision, it is off limits. That is how extravagant this legislation will now be.

Mr. Chair, it goes on to not only talk about that in the context of Cabinet records, but it also goes on to talk about discontinued Cabinet record – which means a Cabinet record that is referred to in paragraph (a), the original intent of which was to inform the Cabinet process, but which is neither a supporting Cabinet record, nor an official Cabinet record. So, Mr. Chair, even though it was never a Cabinet record, even though it was never used as an official Cabinet record, even if the intent of it was there, as I said, if you even thought that it might be, it is absolutely off-limits and you cannot access that information.

It also refers to what is called official Cabinet record, which means a Cabinet record referred to in paragraph (a), which has been prepared for and considered in a meeting of the Cabinet; and, supporting Cabinet record means that Cabinet record referred to in paragraph (a), which informs the Cabinet process, but which is not an official Cabinet record. So, basically, Mr. Chair, any scrap of paper that ever gets inside the door up there will be off limits. The head of a public body shall refuse to disclose to an applicant a Cabinet record, including an official Cabinet record, a discontinued Cabinet record, and a supporting Cabinet record.

What we are going to do now, Mr. Chair, is explain how this is going to work, how this will translate into the requests that are going forward to obtain information, and how it will impact and prevent you from actually accessing that information. First, Mr. Chair, you need to look at what was in the old act, because it is unbelievable, the difference that we are seeing here. In the old act it said, "The head of a public body shall refuse to disclose to an applicant information that would reveal the substance of deliberations of Cabinet, including advice, recommendations, policy considerations or draft legislation or regulations submitted or prepared for submission to the Cabinet."

It also says, "Subsection (1) does not apply to (a) information in a record that has been in existence for 20 years or more; or (b) information in a record of a decision made by the Cabinet on an appeal under an Act." There are huge differences in what was originally there.

Mr. Chair, Mr. Cummings recommended that section 18 be amended to include the complete listing of the Cabinet records found in the Province's Management of Information Act. He said this would include, for example, agendas, memorandums to present proposals to Cabinet, a discussion paper, policy analysis, or proposals, and that it should be amended to include a complete listing of almost all Cabinet records in the Management of Information Act.

Mr. Chair, what you have to remember is that a lot of Mr. Cummings' recommendations were not accepted. Some of them were, not all of them. Government actually even chose to implement some of their own. They chose to expand upon some of the ones that were recommended in tightening this legislation.

In addition, Mr. Chair, under this particular act, the Auditor General Act is also amended to provide that the Auditor General should not be permitted access to section 18 records where the Clerk of the Executive Council or his delegate certifies that they contain the deliberations of Cabinet, a committee of Cabinet, or matters of a confidential nature that would be injurious to the public interest.

CHAIR: Order, please!

I remind the hon. member that her time for speaking has expired.

MS JONES: I am sure I will speak again in a few minutes.

CHAIR: The hon. the Member for Bay of Islands.

MR. JOYCE: Thank you, Mr. Chair.

I welcome the opportunity also, Mr. Chair, to speak on clause 6 of this bill. Mr. Chair, of all the bills that are in this piece of legislation, this is one of the ones that disturbed me the most. As a person who has been around government for a number of years and as a person who has been around a lot of public bodies for a number of years, Mr. Chair, what is in this piece of legislation and what is in this section is one of the ones that disturbs me to the point where almost anything that is done anywhere can be now classified as a Cabinet document – anything whatsoever.

Mr. Chair, if you go through what was actually recommended and the submissions that were given – in the submission by Mr. Cummings, I will go through it very briefly. Executive Council, which is the branch of the government which would oversee the Cabinet and the Premier, Executive Council made it quite clear and I read this, Mr. Chair, because it says a lot, and if you wonder why, personally, one of the reasons why I am against this bill, you do not have to go no further than clause 6, Mr. Chair.

If you go through this, "Executive Council also made it clear in its submissions it believes that the list found in the definition of ‘cabinet records' in the Province's Management of Information Act would be useful to add to subsection 18(1) of ATIPPA. This definition reads as follows: 2.(a.2) ‘cabinet record' means a record that (i) is a memorandum, the purpose of which is to present proposals or recommendations to Cabinet, (ii) is a discussion paper, policy analysis, proposal, advice or briefing material, including all factual and background material prepared for Cabinet, (iii) is an agenda, minute or other record of Cabinet recording deliberations or decisions of Cabinet, (iv) is used for or reflects communications or discussions among ministers on matters relating to the making of government decisions or the formulation of government policy" – Get this, Mr. Chair, making of government decisions, not Cabinet; not Cabinet decisions, government decisions. It is very important, Mr. Chair, when you are going through this here and the example. If any government minister over there now wants to make a decision, they can stand up with this here and say it is a government decision; therefore, it is in ATIPPA and we do not have to release it to the public.

Mr. Chair, "…is used for or reflects communications or discussions…." Now, Mr. Chair, just that part, "is used for or reflects communications.…" Now the question that I have and I ask the minister, communications, does that mean any CBC report? Does it mean any report that the minister has sent out as a media briefing? What is defined by communications that is going to be included in the Cabinet report? What is so confidential in the communications report that is going to make up the Cabinet document that now no one in the Province of Newfoundland and Labrador is allowed to see?

It says, "(v) is created for or by a minister for the purpose of briefing that minister on a matter for Cabinet". Mr. Chair, it "is created for or by a minister for the purpose of briefing…." Here we have now a briefing note going to be included. Mr. Chair, we brought this up before and I know some people have brought it up before when the Cameron inquiry was on the go. When we had the Cameron inquiry and then when we were holding hearings, we had ministers who said they never read their briefing notes. Yet, when it was put out as public information, we realized that it was included in the briefing notes, Mr. Chair.

Now we are saying, Mr. Chair, if it is in preparation, it does not have to be in the briefing note, it does not have to be part of it whatsoever, it does not have to be handed to Cabinet for any type of deliberation, all it has to be now if it is in the briefing note then it is exempt – it is totally exempt. That is a wide range of topics, Mr. Chair.

This is no knocking on any minister over there, but we all know how much information that a minister gets running across his desk. Now anything that we can say, oh, put that in a briefing note for me, the next thing you know it is all exempt. I know there are people opposite, Mr. Chair, saying you are just using the extreme possibility. If there is a possibility, there is a way to get it done, Mr. Chair. That is very concerning just now, concerning a briefing note.

Mr. Chair, "(vi) is created during the process of developing or preparing a submission for Cabinet". Mr. Chair, again, "is created during the process of developing or preparing…". Mr. Chair, when you are developing that does not mean it is going to make it to Cabinet. That does not mean it is going to be a Cabinet paper given to a minister, Mr. Chair; that just means in developing.

Being around government for so long, for so many years, my question is: How many pieces of information does a minister get to develop to become a Cabinet paper? How many? I would submit, Mr. Chair, there are hundreds. If we took this legislation, under this legislation all those pieces of information going to be prepared for a Cabinet paper now are all exempt. That is just to get it prepared – all exempt. I really feel that if any clause in this whole act, it is this here that can have broad sweeping problems for people in Newfoundland and Labrador.

Mr. Chair, section "(vii) is draft legislation or a draft regulation, or (viii) contains information about the contents of a record within a class of information referred to in subparagraphs (i) to (vii)". Mr. Chair, "…contains information about the contents of a record within a class of information…". Now, that is pretty broad. Even for your standards, Mr. Chair, that is pretty broad. When you can say, "the contents of a record within a class of information referred to in subparagraphs (i) to (vii)".

So anything within those whatsoever, Mr. Chair, can be included in this here now. Now, Mr. Chair, that is pretty broad. We are saying now, okay, trust me – trust me. That is what we are looking at here now: trust me. Mr. Chair, it is pretty hard when you are out here – and we already know how secretive this government is and now all of a sudden we have this broad sweeping trust me –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. JOYCE: Mr. Chair, that is what they are trying to say to you: trust me. I know there are a lot of hon. people across the way, but I am sorry, I cannot trust them with such broad sweeping claims in this.

Mr. Chair, this is in Mr. Cummings report, "It is also worth pointing out that I have not found any interpretation of provincial legislation that necessarily excludes all cabinet information or entire cabinet documents or records from disclosure and avoids severance. The final noteworthy point is that the courts of the Province have never had occasion to comment on all this."

Mr. Chair, that is a statement saying nowhere has he ever seen this type of widespread legislation to cover such material for a Cabinet paper.

MS JONES: Who said that?

MR. JOYCE: Mr. Cummings, in his report.

When he did up his report that is what the man – and we all tout. I heard a lot of people touting Mr. Cummings. There is no doubt he is a good man – no doubt, absolutely. Everybody stood up and said yes, what a more qualified man to do this report. When Mr. Cummings comes out and says, "It is also worth pointing out that I have not found any interpretation of provincial legislation that necessarily excludes all Cabinet information or entire Cabinet documents or records from disclosure and avoids severance." Mr. Chair, that says a lot.

I see my time is up, Mr. Chair. I am sure I will be back again, and I just thank you for protecting me from the members opposite. I know they are all excited.

CHAIR: Any time.

The hon. the Member for Signal Hill – Quidi Vidi.

MS MICHAEL: Thank you very much, Mr. Chair.

I am glad that we are finally getting to a piece of the legislation that I believe is at the heart of the matter of what we are dealing with here in Bill 29 – and that is clause 6, which covers section 18 of the act that we are amending here in this House right now. What we had before in the act, what is there at the moment, which has not been changed yet, is something that is clear, that has worked, and that leaves itself open for the interpretation that needs to be made by the commissioner of information and privacy.

In my first response to this section, I would like to go to the presentation that the Information and Privacy Commissioner made to Cummings when he was doing the review of the act. I think it is important that we listen to the commissioner because the commissioner is the person who has been in this position for quite a number of years now, and has been doing such –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: – an excellent job in fighting for the people of Newfoundland and Labrador, of making sure that documentation is open for scrutiny by the commissioner so that decisions can be made whether or not a document should be passed over when requested.

I have to say, Mr. Chair, that when we look at the history of the office itself and the history of the commissioner, I think that we would all agree, and I think the minister himself has said it, that Commissioner Ring has done an outstanding job in the position that he is in. He has shown himself to be impartial, he has shown himself to be wise, and he has shown himself to be patient. So, when we are talking about the changes that are being suggested, I think it is extremely important to listen to what he has had to say, because he has had so much experience.

The thing that he points out – which I alluded to earlier today but did not go into detail because I was waiting for this point in time to go into detail – is the use of the term "substance of deliberations" when talking about Cabinet confidences. As he points out in the presentation he made to –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: – Cummings when he was doing his review, the phrase "substance of deliberations" is used in most jurisdictions in Canada. Even though it has not been interpreted here in our own court in Newfoundland and Labrador, it has been interpreted in other jurisdictions across Canada. It has become a term that has been interpreted, a term that has been used, and a term that has had judgments made on it.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: The definition or the ruling that Mr. Ring has made, which is so important, is based on a ruling of the Nova Scotia Court of Appeal. The Nova Scotia Court of Appeal characterized the term "substance of deliberations" this way, "Is it likely that the disclosure of the information would permit the reader to draw accurate inferences about Cabinet deliberations? If the question is answered in the affirmative," – that indeed you can make accurate inferences about the Cabinet deliberations – "then the information is protected by the Cabinet confidentiality exemption.…"

Nobody, neither myself, anybody in this House, nor the Information and Privacy Commissioner –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: – nor those who sit on the Court of Appeal in Nova Scotia would say that confidentiality should not be protected. It is so easy –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

I ask members for their co-operation.

The hon. the Leader of the Third Party.

MS MICHAEL: Thank you very much, Mr. Chair.

It is so easy for us to protect our privacy. Especially when we are in positions like the positions we are in and especially like positions that ministers and Cabinet are in, it is so easy for us to want to protect every little thing so that we can protect ourselves. Sometimes it is justified; sometimes it is not.

The role of the Information and Privacy Commissioner has been to make determinations that will balance the right to know by the citizen and the right to protect. Those two rights are there and those two rights have to be balanced. We all in this House have been speaking to that. We all say we recognize it. We all say we want it. Then, when we do that, we come to a clause in this bill which is now a whole list of documentation that is so detailed, that is so minute in detail, that the commissioner, in actual fact, would have very little to make judgments on, according to this list.

We now have a clause, a section of the act that we have at the moment, which has just one subsection with three parts to that subsection: The head of a public body shall refuse to disclose to an applicant information that would reveal the substance of deliberations of Cabinet, including advice, recommendations, policy considerations or draft legislation or regulations submitted or prepared for submission to the Cabinet. Subsection (1) does not apply to (a) information in a record that has been in existence for twenty years or more; or (b) information in a record of a decision made by the Cabinet on an appeal under an act.

Mr. Chair, that section of the act has worked well. It has worked well for us; it has worked well for the commissioner who has had to make determinations. The thing that is very disturbing, even if we were to say that this huge list that has been prepared and that is part of clause 6 in the bill, even if we were to say okay, let us do a list, the commissioner still has to make decisions, let us do a list, what is missing, Mr. Chair? What is missing is the phrase "substance of deliberations". Because the phrase "substance of deliberations" is missing, the heart of what should be here in the Cabinet confidences is missing, Mr. Chair. That is what is very disturbing. Not having the phrase "substance of deliberations" in the clause really takes away anything from the commissioner when it comes to interpreting.

You can have things that are here in this list, Mr. Chair. You could have a record created during the process of developing or preparing a submission for the Cabinet, but it might not in any way give any indication of how that really fed into a deliberation that happened. You can have a record created for or by a minister for the purpose of briefing that minister on a matter for the Cabinet and still not be a substance of deliberations, Mr. Chair. By removing substance of deliberations from the section in the act, which this clause does, we have now totally taken away any kind of interpretive information for the commissioner. The worst thing, Mr. Chair, is if a request that goes to Cabinet gets interpreted and people are refused a document, the commissioner cannot be the point of appeal.

Mr. Chair, I am bringing to the Table a motion of amendment that I would like to read in.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: We are moving, "The Bill is amended by deleting clause 6 and substituting the following: Cabinet confidences, 18.(1) The head of a public body shall refuse to disclose to an applicant information that would reveal the substance of deliberations of Cabinet, including advice, recommendations, policy considerations or draft legislation or regulations submitted or prepared for submission to the Cabinet. (2) Subsection (1) does not apply to (a) information in a record that has been in existence for 15 years or more; or (b) information in a record of a decision made by the Cabinet on an appeal under an Act."

That was seconded by the Member for St. John's East.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

We will now ensure that the amendment is distributed to all parties and I will take a moment to review the amendment to determine whether it is indeed in order.

We are awaiting copies of the amendment, so we will pause for just a moment. I thank you for your co-operation.

[Amendment is distributed and reviewed]

CHAIR: Order, please!

I have now had an opportunity to review the amendment to clause 6 and I have determined that the amendment is indeed in order. We will now commence debate on the amendment to clause 6.

The hon. the Member for Signal Hill – Quidi Vidi.

MS MICHAEL: Thank you very much, Mr. Chair.

I am very happy to speak to the amendment that we have put forward. What we have done in this amendment is what we have said we think is extremely important, is that we have once again used the term "substance of deliberations" which is standard across the country. Even in jurisdictions where they have listings of what fits under substance of deliberations, they still maintain the term "substance of deliberations". This is the key point for us, Mr. Chair, is that the substance of deliberations is maintained. When you look at the amendment that we are suggesting, I think that it covers everything that the list covers in the clause that is in the bill that has been put before us.

The amendment talks about advice, recommendations, policy considerations, or draft legislation or regulations, meaning draft regulations submitted or prepared for submission to the Cabinet. It covers things, whether they made it to Cabinet or not, prepared for Cabinet. I think this is one of the things that the clause deals with that has come forward. The clause in the bill covers documents that may not even make it to the Cabinet table, but if they are prepared for a Cabinet, they are covered.

Well, our motion, Mr. Chair, says the same thing. Even if something is prepared for submission to the Cabinet, whether or not it makes it to Cabinet, it is covered in our motion. We point out something which is really important, that subsection (1) does not apply to information in a record that has been in existence for fifteen years or more –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: – which I think is in the spirit both of how we have been operating already and it is in the spirit of the acts in other jurisdictions. Subsection (1) does not apply to information in a record of a decision made by the Cabinet on an appeal under an act.

Mr. Chair, I think that in what we are presenting we are definitely bringing forward something that is interpreted, can be used by the commissioner, can be used by Executive Council that is wide ranging, broad ranging, but which allows for determination, which allows for interpretation.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: This is what has to be done, Mr. Chair. We cannot tie the hands of the commissioner. I think what we have done, what we have in this bill, in clause 6 in the bill, Mr. Chair, is that we have tied the hands of the commissioner. The commissioner will not have – under this clause – the ability to take one of these phrases and to balance one of these subsections here under the phrase "substance of deliberations". That is not there for him.

The list, for example, in the clause, in section 18.(1)(a), includes advice, draft legislation and memos, which should be restricted, but policy, proposals, factual or background material are problematic. Many things could be defined as a Cabinet record that does not reveal any confidences whatsoever, Mr. Chair. Policy, proposals, factual and background material, there are all kinds of background material; I know, from the work that we do in our office. The background material that one has to read, of all stripes, in order to have information for thinking and for decision making but it is not confidential.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: That material, Mr. Chair, in the clause that we have would be defined as a Cabinet record, even though it does not have any confidences at all. The list is the same as the list in the Management of Information Act defining Cabinet records. The government says they are just being consistent, but the purpose of the Management of Information Act is totally different from the purpose of ATIPPA. The Management of Information Act is exactly that. What are we going to define as a Cabinet document in order to put it under management? It does not have anything to do with is it confidential, is it non-confidential, is it something that should never get out into the public – nothing like that. It is just a management list.

When we come to the ATIPPA, the ATIPPA is totally different. This is dealing with the release of information and it is looking at both information being released and privacy issues. The Cabinet documents in ATIPPA, the reason for its being there is totally different. How do we find documents, not because it is a management of information, but how do we find documents that are documents that need to be protected and documents that can be released? There are two different purposes.

I think what we really need is to listen to the voice of the Information and Privacy Commissioner, Mr. Chair. The IP Commissioner, under the bill that we have in front of us and that we are proposing that we amend, will never be able to review official records. We may be the only Province where the commissioner does not have the right to review a claim that something is an official Cabinet record. What if something they claim is official and it really is not?

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: It is not going to matter. The commissioner is not going to be able to make a judgement on it. If somebody goes to court to try to prove it, going to court will be costly and we know how much time gets consumed in trying to bring things to court. Mr. Chair, it is very problematic that the word of the Executive Council and the Clerk of the Council is the final word with no appeal except to court.

Section 18 is supposed to protect Cabinet confidentiality to keep from view any Cabinet record which would harm or threaten that principle if released, and we believe in that; however, what we have is a list, and if a document is on the list, it is protected by Cabinet secrecy whether it needs to be or not. That is the issue, Mr. Chair, whether it needs to be or not.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: That is what the government and the minister seem to be totally ignoring. It does not matter if it needs to be there. It may need to be in that list for the sake of management of information under one act, but it does not need to be in the list for the purpose of protection of information because it might do harm, even to our government.

Mr. Chair, it is very, very problematic. Any advice, policy, or anything else that a department wants to hide, they can submit it to Cabinet and protect it from scrutiny. The Department of Natural Resources has documentation on Muskrat Falls and if it says we do not think we want that document to get out into the public, so we can say: Oh, this was something that we prepared for Cabinet. We prepared it for Cabinet; therefore, it is totally protected under this list because it was prepared for Cabinet –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: – whether or not it is confidential information. Who is going to make the determination? It is not going to be the commissioner, who used to be able to do it. It will not be the commissioner. It will be the Executive Council itself, it will be the Clerk of Executive Council and if somebody wants to appeal, then they have to take it to the court system to appeal.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: Is this openness and transparency? Is this accountability? I do not think so, Mr. Chair.

Sometimes a lot of background material is sent by a department by order of Cabinet for review. Could this kind of information become confidential if it was not public before? Well, under this clause and under this bill it seems very, very clear that it would become protected. The commissioner will not be able to review and assess government's claim that information should not be disclosed. The case has to go to court.

In some provinces the release of Cabinet background information material is discretionary and Cabinet might from time to time decide to release information. Now, in Newfoundland and Labrador, under the clause that is being proposed, it is mandatory to hide it. That is the bottom line; it is mandatory to hide it.

With the amendment that we are proposing, Mr. Chair, we are maintaining the spirit and the meaning of substance of deliberations of Cabinet. We are including all of the categories that would cover documentation that could be in Cabinet, whether it is advice or whether it is research, no matter what it is. We also recognize the need that once a record has been in existence for fifteen years or more, it should be able to be accessed. We have not brought the number of years down to five, or six, or seven; we are saying fifteen. We are also allowing that the subsection (1) would not apply to information in a record of a decision made by the Cabinet on an appeal under an act. I think that we have really kept within our motion, Mr. Chair, what really is the essence of what protection of Cabinet confidentiality is.

Thank you very much, Mr. Chair.

CHAIR: The hon. the Member for St. John's East.

MR. MURPHY: Thank you, Mr. Chair.

I thank you for the opportunity to speak to the amendment and how important at this particular time this amendment is. I think that if there was any clause in this act that was really biting and really telling on what the government has actually proposed here, I think this is it.

Just to form a picture to the general public out there who are watching tonight and for the people out there for whom this matters, I think it is worth it to have to take a bit of a walkthrough on the things that we want to take out here and the things that we want in order for government to be held a little bit more accountable for its actions and for what it deems as Cabinet secrets. I think what we are losing here is the people of the Province are actually losing some say in what is going on. That includes everything from government forming policy to government undertaking some of the major projects that it will be undertaking in the next little while.

If I can start as regards to the things we are looking to take out, the best thing right now to talk about is the official meaning of Cabinet record as regards to what they want to substitute into the act. Cabinet record – this is interesting. When the general public out there understands the list of paperwork that can be covered under the guise of Cabinet secrecy, they would probably be quite surprised.

If you look at 18.(1)(a), "‘cabinet record' means (i) advice, recommendations or policy considerations submitted or prepared for submission to the Cabinet, (ii) draft legislation or regulations submitted or prepared for submission to the Cabinet, (iii) a memorandum, the purpose of which is to present proposals or recommendations to the Cabinet, (iv) a discussion paper, policy analysis, proposal, advice or briefing material, including all factual and background material prepared for the Cabinet" – this one kind of struck me. I was thinking that if you want to put this one into context, Mr. Chair, as to how this one would affect Newfoundlanders and Labradorians out there, look no further than the Muskrat Falls Project and some of the policy analyses we have been told about for the last couple of years, particularly as we have gone through the various Decision Gates and how transparent some of these numbers are.

Policy analyses as far as I am concerned, the definition of which can cover anything, for example, from the PIRA report on the price of oil – make no mistake, no doubt somebody out there is probably going to be able to crack down the price of oil and present the best numbers they can to government. Sometimes somebody wants to scrutinize these numbers and be able to have a look at things. What this does is allow some of these documents presented to Cabinet to be not made available to anybody who requests them because they are under the guise of Cabinet secrecy or because the conclusions of which may become detrimental to the third party involved, in this case the company that put together the analyses. Just having this clause in here is enough to kill debate, for example, on debating some of the facts when it comes to the Muskrat Falls debate.

Mr. Chair, to carry on further down, "(v) an agenda, minute or other record of Cabinet recording deliberations or decisions of the Cabinet". How they arrive at their conclusions sometimes is pretty important for the people who voted these people in and who end up governing us. I think that in order to make some of these things available under the act, I think it is kind of important. It is not the fact that people do not distrust the government, but when it comes time for people to question their government as regards to how they arrived at a policy, Mr. Chair, I think that it is important that we have things available so that the people can scrutinize them.

Mr. Chair, "(vi) a record used for or which reflects communications or discussions among ministers on matters relating to the making of government decisions or the formulation of government policy". Again, that is wide ranging. How they arrive at a conclusion should be made readily available to the public and the public should have no problem getting that documentation if it feels. It leads to good governance and we do not see why the government is looking at putting this under a guise of Cabinet protection. Again, it is one of these things that should be available for public scrutiny.

Part "(vii) a record created for or by a minister for the purpose of briefing that minister on a matter for the Cabinet, (viii), a record created during the process of developing or preparing a submission for the Cabinet, or (ix) that portion of a record which contains information about the contents of a record within a class of information referred to in subparagraphs (i) to (viii); (b) ‘discontinued cabinet record' means a cabinet record referred to in paragraph (a) the original intent of which was to inform the Cabinet process, but which is neither a supporting Cabinet record nor an official Cabinet record; (c) ‘official cabinet record' means a cabinet record referred to in paragraph (a) which has been prepared for and considered in a meeting of the Cabinet; and (d) ‘supporting cabinet record' means a Cabinet record referred to in paragraph (a) which informs the Cabinet process, but which is not an official cabinet record."

Mr. Chair, we are trying to keep the eyes of the public on governance here, but we are losing it with this piece of legislation. That is why we had to come out with this amendment. The amendment is fairly simple here, section 18.(1) of the amendment: The head of a public body shall refuse to disclose to an applicant information that would reveal the substance of deliberations of Cabinet – some things have to remain secret: the talks that they have around the Cabinet table, including advice from their own employees, recommendations, policy considerations or draft legislation or regulations submitted or prepared for submission to the Cabinet. Mr. Chair, (2) Subsection (1) does not apply to information in the record that has been in existence for fifteen years or more; or, for information in a record of a decision made by the Cabinet on appeal under an act.

So, we are trying to keep some transparency to government here, and we really do not know what government is afraid of here. I think that it is more important –

SOME HON. MEMBERS: Hear, hear!

CHAIR: Order, please!

MR. MURPHY: – at this juncture in our history that we are going to be able to have some say in governance in our Province. Just knowing that this act is going to come through, if we are not successful in getting amendments, instead of having our eyes wide open, we are going to have eyes wide shut when it comes to keeping an eye on our government. So, Mr. Chair, again, it is something for government to consider.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. MURPHY: We deem it to be very important. Again, we have to make sure that the general public out there is aware that this is coming down the pipes. I think that the general public out there are going to have to have a say in this, and that is why we are here. We do not oppose merely for the sake of opposing. We are opposing to make better governance and to make a better government out of what is here in the Province now, and that is what we were hired to do.

So, Mr. Chair, I will leave it at that for now, but again, the consideration is here for government to consider. I think that we are pretty much going to be able to cover off everything the government wants to do in the small amendment that we have made. Again, it is better to have a general public out there that is going to have its eyes wide open on government, to help government do a better job for the people.

Thank you very much, Mr. Chair.

CHAIR: Order, please!

The hon. the Government House Leader.

SOME HON. MEMBERS: Hear, hear!

MR. KENNEDY: Thank you, Mr. Chair.

Yes, Mr. Chair, I want to talk a little bit about the Cabinet process, since we are dealing with the proposed amendment to section 18 in Cabinet records. What I do like is the amendment proposed by the Leader of the Third Party is the same as the current section that exists, except for twenty years, they put fifteen years in. So, obviously they like the previous amendment.

Mr. Chair, what we are looking at here is the protection of Cabinet documents, and Commissioner Cummings certainly recognized and accepted the importance of Cabinet confidentiality. Mr. Chair, he did, as suggested by the member opposite, propose a substance of deliberations test, which has been rejected. He did, however, Mr. Chair, recommend also the similar IMCAT criteria in terms of the list of documents, and that has been put in here.

So, Mr. Chair, I thought it might be helpful if we just outlined what exactly takes place in leading to a Cabinet decision and why this section or this proposed amendment exists. First, Mr. Chair – and I can go from my own experience when coming from a law practice where there are all kinds of privileges, everything from solicitor-client privilege to informer privilege, to the issues in the courtroom. Rules were certainly well laid out. I then got in government, where I had the opportunity to go in Cabinet, and it was the first I had ever heard of a briefing note. I had no idea what a briefing note was, Mr. Chair.

So the Cabinet process oftentimes begins with that briefing note. What will happen, Mr. Chair, there will be a discussion as to proposed Cabinet amendments – excuse me, proposed Cabinet paper and proposed amendments to legislation as we get ready for either the fall or spring session. The briefing note will outline a factual background, Mr. Chair, and it will make a number of recommendations. Those recommendations, Mr. Chair, are not meant to direct the minister towards one way of thinking. I can use an example of this particular act. What would happen in this case, though, we have a commissioner's report, so it is not the exact same but, essentially, a briefing note would be prepared and there would be discussions with the minister.

Now, Mr. Chair, at that point there would be a question: Are there other documents which are needed? Then, Mr. Chair, the next stage is a Cabinet paper, after a period of time and after much discussion, would be prepared. There would be a draft Cabinet paper, Mr. Chair, that might have with it supporting empirical studies, supporting studies, supporting documentation. Those documents would be examined by the minister and again it would outline a range of possibilities – and this is important, Mr. Chair, because the Cabinet paper is not only saying do this, the Cabinet paper is outlining three or four options. Mr. Chair, out of the hundreds of Cabinet papers I have seen, each one of those has three or four options for Cabinet to choose.

So, the briefing note has options; the Cabinet paper has options. Then what happens is it goes to a Cabinet committee – and this is just general now. It could go to a social policy committee. If you are dealing with Health issues or Justice issues, they go to social policy. If you are dealing with IBRD or Natural Resources, they could end up in economic policy. Each one of these committees, Mr. Chair, is made up of six or seven ministers who are related to the issues considered by that committee. Then we have a committee, Mr. Chair, of Treasury Board and Treasury Board deals with a lot of different situations. So, you could have a cross over; you could have a paper in economic policy and in Treasury Board, or you could have a paper in social policy and Treasury Board.

Mr. Chair, the role of Treasury Board or a lot of the powers are set out in the Financial Administration Act. Now, each one of those Cabinet papers will be examined then by Cabinet Secretariat who will look at the recommendations and may or may not make a proposal to Cabinet. So, further research is done, another document is prepared, Mr. Chair, and attached, and an analysis is attached to the Cabinet document outlining the concerns of ministers. Now we are working our way towards the Cabinet process. As we get towards the Cabinet process, Mr. Chair, there could be further briefings of ministers. I have often been in Cabinet committees where issues will come back three, four, and five times. There can be further discussions. We have had issues that have come before committees for two years, Mr. Chair.

Now we have this mountain of documentation that is starting to be prepared. It works itself towards Cabinet. Then, Mr. Chair, we have the full Cabinet oftentimes, most times, having a weekly meeting whereby we look at a number of documents. There is very frank discussion, Mr. Chair; I can assure you of that. Sometimes the frankness is –

AN HON. MEMBER: Frankly.

MR. KENNEDY: Is very frank; yes, let me put it that way.

What happens is that Cabinet can send it back and we will start the process again; Cabinet can reject. Now, Mr. Chair, our documents are growing. When the member opposite talks about a substance of deliberations, where do you find the substance of our deliberations?

Mr. Cummings, in his report, recognizes the importance of Cabinet confidentiality, Mr. Chair. He states in referring to a document prepared, "Effective government requires that Cabinet ministers speak freely in the Cabinet room without fear of stating unpopular positions or making comments that might be considered to be politically incorrect if made public."

Mr. Chair, if the briefing note, which is factual, only had one recommendation, then I could see the point opposite. Where there are various recommendations, Mr. Chair, as a Cabinet we have to be able to choose which one we want or we are going to accept.

Mr. Chair, right from the beginning, the document, the trail, leads to our deliberations because each one of those documents may have options or advice given to us. Mr. Chair, let me give you an example. If a briefing note that leads to a Cabinet document is prepared, and let's say we are dealing with a contentious issue, and as a Cabinet we choose the tougher issue, then all of a sudden if the media or the Opposition gets their hands on the briefing note they will say: Why didn't you choose that safer course? Why didn't you choose option number two?

Mr. Chair, how can we as a Cabinet deliberate with the frankness required, with the confidentiality required, knowing that at some point in the very near future in this House of Assembly our deliberations are going to be made known? Mr. Chair, we have to be able to operate without fear. We have to be able to operate with a view to making decisions.

I would suggest that the member opposite read the introduction to the Green report by Chief Justice Green where he talks about how our system of democracy works. It is broken down between the Legislature, Mr. Chair, and the Executive. As Cabinet, we are the Executive.

Mr. Chair, there is nothing unusual; we are not hiding anything here. We are simply accepting that this is a principle as it was accepted by Mr. Cummings. We have decided the substance of deliberations is not the approach we want to take. What we are saying is from the beginning of that Cabinet process and up through, the documents have to be protected. It is no good, Mr. Chair, if the documents that begin the process are subject to disclosure, whereas the documents that end the process are not.

Mr. Chair, what we are trying to do here is allow for that seamless transition into Cabinet from that briefing note, from that decision note, leading to the decision Cabinet ultimately makes. Mr. Chair, all that we are doing here is very practical. If you understand the Cabinet process, then you will see why we have to do this.

Mr. Chair, maybe one of my colleagues can think of a tangible example that would not give away how we make our decisions. It is almost like the – I do not know; I have never been in the jury room. In the jury room, Mr. Chair, people speak. They are frank. They are not allowed to talk about their deliberations because they have to be protected. While we are in that Cabinet room, Mr. Chair, if it can come back to haunt us, well, you had before you option number two, two months ago, six months ago or two years, and you rejected it for option number three. Why did you do that? Mr. Chair, it is not a blanket withholding of documents. It is simply the protection of Cabinet confidentiality.

Mr. Chair, I said to the member opposite for Cartwright – L'Anse au Clair: Did anyone ask me for briefing notes in Natural Resources this year? In Health there were lots of them. We provided them, Mr. Chair, but they cannot be related to the Cabinet documents and also as the minister is getting ready.

Mr. Chair, the other thing, too – and I find this offensive – is the Leader of the Third Party. Perhaps she just does not know any different. Mr. Chair, the Clerk, the senior civil servant in this Province, is the one who will certify that it is truly a Cabinet document. To impugn and question the integrity of the Clerk is beyond the pale and something that simply should not be tolerated. To suggest in any way that the civil servants who do such good work in our Province, Mr. Chair – our senior civil servants – are going to hide documents and that they are going to allow this kind of thing to happen, I would suggest shows a basic lack of understanding of the process. It leads to a conspiracy theory that simply does not exist and shows the world in which they operate, which is not the real world that as Cabinet ministers we have to exist in as we make decisions in the best interests of the people in this Province.

Thank you.

SOME HON. MEMBERS: Hear, hear!

CHAIR: The hon. the Member for Bay of Islands.

MR. JOYCE: Thank you, Mr. Chair.

Once again, I stand to speak on Bill 29 but I speak on the amendment that was submitted, Mr. Chair. I hear what the minister was saying there earlier, but I have to disagree on some of the things that are needed for a Cabinet discussion and paper. I understand all the pressure that goes on when you are inside a Cabinet room and decisions that are made, and sometimes the decisions are made to affect people's lives and people's livelihood and affect children, affect schools – I understand all of that, Mr. Chair. At times, I am sure there is a lot of pressure and a lot of strain on a lot of ministers who have to make tough decisions and who have to find some way to find a balance. Mr. Chair, we also have to find a balance for the people of Newfoundland and Labrador. We have to find a balance to ensure that the integrity of the system is kept in place. We have to do that, Mr. Chair. Of course, it is our position that as an Opposition it is up to us to raise concerns that have been raised to us and to point out some of the drawbacks of a piece of legislation.

I understand, to the ministers, that the there is a lot of pressure on the ministers. I understand that. It looks like I have unlimited time, which is good, Mr. Chair. By the time we are finished here tonight, Mr. Chair, I guarantee you we will be through a lot of this.

Mr. Chair, in the whole situation that we have been speaking to, Mr. Cummings, at no time did he recommend to scrap the substance of deliberations test. That is very important. It is very important for the people of Newfoundland and Labrador. Now, we can stand up here, everybody can stand up here and say what is in it and what is not, but, Mr. Cummings, who did this report, who went out and had the public consultations with the minister – and this is what I find, Mr. Chair, a lot of times when you hear the minister speaking about Mr. Cummings going out, he had all these deliberations, but when he comes out and says something that is not in the favour or not what the government would like because they are making the proposed amendments to this act, all of a sudden they forget that Mr. Cummings made the recommendations. When it is suitable to the cause, all of a sudden we see Mr. Cummings put up on a pedestal in what he recommended.

So, it is very important that we keep that balance, it is very important that we keep the balance here, and the integrity of the act to ensure that all residents of Newfoundland and Labrador are protected. The openness and accountability – if we do not have it, I think it is bad for democracy, I think it is bad for the government, I think it is bad for Opposition, and I think it is very terrible for all.

I say to the members opposite, this is trying to find a balancing act. As Opposition we – I know it is my responsibility and I live up to that responsibility to the best of my ability, to ensure that when I bring something forward there is a reason for it. It is not a frivolous reason. It is not something because I just want to stand up and talk. It is not something because I want to get up and just speak about the government, the bad things about the government, because I do say there are good things about the government.

Mr. Chair, when you go through this and you look at the amendment that was made, the amendment actually just keeps, except for one small section, in section 2, subsection (a), it only changes twenty years to fifteen years. If you read the recommendation by Mr. Cummings – and this is very important because Mr. Cummings did have the hearings and he did make the recommendations throughout. Mr. Cummings recommended that section 18 be extended to include the complete listing of Cabinet records found in the Province's Management of Information Act. This includes, for example, agenda, memorandum to present proposals to Cabinet, discussion paper, policy analysis or proposal. "Amended to include a complete listing of almost all cabinet records in the Management of Information Act. The substance of deliberations test is removed. As well, the following three types of Cabinet records are included: official cabinet records, discontinued cabinet records, and supporting Cabinet records. Official cabinet records certified by the Clerk or his delegate… are reviewed by the courts in the event of a dispute and all other cabinet records are reviewed by the OIPC."

Mr. Chair, that is pretty broad, and the question we have to ask, and I ask anybody in this hon. House and anybody in Newfoundland and Labrador who is listening: What do you consider making up a Cabinet paper? What do you consider? Do you consider – which could be included in this act – do you include a news clipping that was made? Do you include a letter that was written that was submitted somehow? What is included?

Once it is included, Mr. Chair – and here is the problem with this piece of legislation – once it is discussed we cannot get at it, the public cannot get at it. We sit down – and I know there are a lot of members across who are civil servants. They know what it is like to do up information for Cabinet. The thing now, if you sit down and you do up any piece of information, no matter how frivolous, how serious, how much impact it will have, right now there is no one else in Newfoundland and Labrador who can get it under the Freedom of Information Act. What is going to happen, Mr. Chair, all you have to do is put the big cone of silence on it and say: Oh, Cabinet confidentiality, right now it is included because we had discussions about it and it cannot be given out to the general public. That is what this here, section 6, brings in.

If there is anything in this whole act which can take away, in my opinion, a lot of the rights of Newfoundlanders and Labradorians for access to information, a lot of access to the media – sometimes we know the media can be our friends and sometimes they cannot. We all know that of a political life, but the media do serve a purpose and they are sometimes a watchdog and sometimes they do have stories that they – we seen tonight as a prime example, Mr. Chair, on the news tonight some of the stories that were done, some of the information that was presented. Sometimes we have to question some of the information that is thrown this way and then we see a report that is opposite. That is why we need that. We need to have that balance. We have to have that balance. When we look at thousands and thousands of requests, we find out there is no thousands and thousands of requests –

MR. F. COLLINS: Over the years. Not in one year, but over the years; almost 2,000 in the last three years.

CHAIR: Order, please!

MR. JOYCE: I say to the minister, I know you are getting a bit touchy with it, I understand, but the thing was when the information was given out it was thousands the year. Now we find out it was not thousands. It was not.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. JOYCE: Can you understand why, Mr. Chair, we asked the questions? Can you understand why we are a bit nervous of this legislation? Because if all of this was included in the Cabinet – the cone of silence, I call it, in the Cabinet. Can you remember Maxwell Smart when they dropped the big cone down? This is what this is going to be like, the big cone of silence. Anything within that cone, no one is allowed –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. JOYCE: No one is allowed to get in there, Mr. Chair. No one is allowed to get in. A prime example tonight was on the news, Mr. Chair, about how many actually Freedom of Information requests were put in. It was a prime example, Mr. Chair.

MS JONES: Five hundred and eighty-one.

MR. JOYCE: Five hundred and eighty-one, my colleague told me there. So that is why we have to be careful about this cone of silence. That is why we have to be careful. Mr. Chair, it is a situation where we have to keep that balance.

I see the amendment that was put forward, Mr. Chair. We have the amendment that was put forward and it keeps it almost the way it was except change the time, the twenty years, to make it fifteen instead of twenty years. If we went on with the other piece of legislation that the government is proposing, Cabinet record means advice. Now, Mr. Chair, advice. I ask anybody in this House what does advice mean. Is it oral advice? Is it written advice? Is it correspondence?

AN HON. MEMBER: All of the above.

MR. JOYCE: All of the above? How do we justify that and how do we put that down that if someone speaks to a minister he cannot speak to no one else because it is advice. That is the –

CHAIR: Order, please!

I remind the hon. member that his time for speaking has expired.

MR. JOYCE: Thank you, Mr. Chair.

I am sure I will have an opportunity to rise again. Thank you.

CHAIR: The hon. the Opposition House Leader.

MS JONES: Thank you, Mr. Chair.

I am very pleased to rise and speak to section 6 of this bill. Mr. Chair, my, what a long way we have come. This is the same government, Mr. Chair, that in 2003 said to the people in this Province that we are going to ensure that we have transparency and accountability. In fact, Mr. Chair, they not only said that, but they said that they were going to have a very comprehensive and a very effective Freedom of Information Act that will have "the best safeguard against the tendency of governments to descend into official secrecy and elitism".

What are we seeing here tonight, Mr. Chair? We are seeing a clause in this act that will actually, Mr. Chair, preside over the greatest secrecy, legislatively, that we have ever seen in the Province of Newfoundland and Labrador. That is exactly what we are going to see here. My colleague, the Member for Bay of Islands, talked about the cone of silence. Mr. Chair, that is exactly the best terminology that I could find to use for this.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS JONES: Once this passes, if this clause ends up in this particular act, I can guarantee you, Mr. Chair, secrecy will be seen inside of the government in a way that we have never seen it ever before in our entire lives.

Mr. Chair, let me just tell you this, back in 2003 a number of them who are over there now –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS JONES: – who were here in 2003 supported the former Premier, Danny Williams, when he came forward in 2003. He said: The new Freedom of Information legislation "will include amendments that will clearly identify information that should be in the public domain, including cabinet documents, and will require full and prompt disclosure of the information to the public."

Mr. Chair, can you imagine the difference? In 2003, when the Minister of Finance and the Minister of Justice – not the Minister of Justice, sorry. When the Minister of Finance, the Minister of Advanced Education and Skills, the Minister of Municipal Affairs, the Minister of Environment, they were all here, and yes, Mr. Chair, they were going to bring in the act that was going to even give you Cabinet documents. Not only that, Mr. Chair, they were going to do it promptly.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS JONES: They were going to give them to you promptly. There would be prompt disclosure of information. What do we have tonight, Mr. Chair? What do we have tonight? The biggest locks they could find, Mr. Chair; they have them put on the doors.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS JONES: Like I said, the Cabinet room will be a black hole from here, Mr. Chair, because you will never get any information ever again – ever again. They have even amended the bill now, Mr. Chair, they have amended it, they have made it so tight, they have sewed up every single piece of the bill to ensure not only will you not get a Cabinet document, not only will you not get a briefing note, not only, Mr. Chair, will you not get any kind of advice that might have been given to the government or the Cabinet, but you –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

I ask for members' co-operation. Once again, I recognize the hon. the Opposition House Leader.

MS JONES: Thank you, Mr. Chair, but I thought the co-operation was great in the House of Assembly. I really appreciate your ruling, but I think the co-operation is great.

Mr. Chair, as I was saying before I was interrupted, I was saying that they are tightening up the rules so much now that you will not get a thing. You will not get a Cabinet paper. You will not get a briefing note. You will not get a piece of paper that has anything on it to do with anything that is being deliberated in the Cabinet. You will not get a piece of paper if it was written because it might be deliberated in the Cabinet. It does not matter if they did not use it, but if they thought they might use it, then you will not get that. In fact, Mr. Chair, if there is a scribble on a piece of paper that is passed to a minister, you will never, ever be able to access it ever again. That is where we are going. That is where we are going with this.

AN HON. MEMBER: You were in the Cabinet.

MS JONES: Yes, I was in the Cabinet, Mr. Chair, but I did not have protection like this. We had accountability to the people in the Province. People could get information. They could see what was going on, Mr. Chair. When we realized there was not enough disclosure, we went out around the Province, we did consultations, and we came back and brought in the new Freedom of Information Act in 2002. That is what we did.

Mr. Chair, we brought in that act and we broadened it. We included not only governments and Cabinets, but municipalities, colleges, universities, health boards, businesses, and corporations. Oh yes, we did not protect the secrecy of the taxpayers' money. That is what is going on here. Yes, Mr. Chair, that is what we are seeing here tonight.

Now, Mr. Chair, that I have them woken up, there are a few comments I would like to make with regard to the amendment that was put forward by the Leader of the Third Party. What the amendment is basically doing is asking that the legislation as we currently know it be maintained, that government not bring in the secrecy provisions we are seeing under clause 6, which would be amended in section 18 of the original bill, and basically allowing government to have some protection.

I agree; I think the amendment is very fair. I think it allows government to have some protection – actually quite a bit of protection, compared to what they were prepared to do in 2003 when they were prepared to give you Cabinet documents. This amendment, Mr. Chair, at least protects the actual Cabinet documents. I have no problem with that.

The other section here is that the information be available after a fifteen-year period as opposed to a twenty-year period. That was the recommendation that was in the Cummings report. Why the government chose not to go with that as one of the recommendations, we will find out as the debate goes on this particular bill.

Mr. Chair, we really do not have a problem with that. We do not have a problem with the government protecting Cabinet documents – we do not, Mr. Chair. Now, as an Opposition member, I would love to be able to get my hands on them. I absolutely would love to see every single one of them, but I realize there has to be a level of protection; however, you can take it too far, and this is what the government is doing now. They are taking this too far.

I will tell you why, Mr. Chair. As an Opposition, we have been going to Cabinet ministers under the FOI requests under this particular act and obtaining copies of their briefing notes and briefing books. Not all of those briefing notes and briefing books have to do with Cabinet decisions, but there is a lot of it in there that if you wanted to make the argument, if you wanted to tie it to a Cabinet document, you could indeed do that. The ministers know that, Mr. Chair. They know that. It is easily done. Because, if you are doing your work as a minister, you are reading all of these Cabinet papers, all of those Cabinet papers are influencing your debate, your level of thinking, your logic on decision making and where you are going to go with something.

Mr. Chair, therefore, you could easily argue that it would fall within the protections of the amendments that you are looking at under section 18 in the act. Because, Mr. Chair, what the act is being amended to say is that it is not only going to look at Cabinet papers, it is also going to look at discontinued Cabinet records, it is also going to look at supporting Cabinet records, all of those things which will include, Mr. Chair, everything from a letter that a minister might get from a company or a corporation regarding a decision that they are about to make, all of that will be off limits, everything will be off limits.

I am going to give you some examples when I stand up because I have lots of experience with this bill, Mr. Chair, lots of experience with FOI requests, lots of experience with getting dinged the big dollars to access information from the government, and now we are going to see the rates going up again. I will have lots to say on this bill, Mr. Chair, before the night is over.

CHAIR: The hon. the Member for Signal Hill – Quidi Vidi.

MS MICHAEL: Thank you very much, Mr. Chair.

I am glad to have an opportunity to stand again to speak to clause 6 and to the amendment that we have moved with regard to clause 6. The first thing I would like to do is to make comments on some of the things that were said by the Minister of Natural Resources. The Minister of Natural Resources interpreted what I said with regard to the Executive Council and the documentation of the Executive Council and the role of the Clerk of Executive Council.

I think it is important to point out that in the clause that we are dealing with, in the clause that we are recommending that we change, we do have this kitchen sink list here. This list that goes on and on naming every possible piece of paper that could be defined as advice, a recommendation, a policy consideration, any of the terms that we have used in our amendment. What we have here is a list – and I think I understand the list now because of what the Minister of Natural Resources said. We have a list that will make it very easy for the Clerk of the Executive Council to determine the document, to determine what is a Cabinet document.

I understand that because there has to be something – if the Clerk of the Executive Council is going to be the one making the decision, what is a Cabinet document, then they need very clear language, very clear instructions about how they determine what is a Cabinet document. Obviously, that is one of the reasons why we have this list. That is why we do not have the term "substance of deliberations" that was there that the commissioner could use, because the Clerk would now have very, very clear instructions from this piece of legislation.

Mr. Chair, I am in no way impugning the role of the Clerk of Executive Council. Here in this House of Assembly today we honoured the public service sector, the minister spoke to the public service sector, we honoured it, and we recognize the tremendous work that is done by the public service sector in this Province. They are wonderful, professional people; I know an awful lot of people who are in wonderful positions in the public service sector in this Province who do tremendous work.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: I am in no way impugning the position of the Clerk. What I am saying is we have an office of information and privacy protection and we have a commissioner. We have that office because we recognized in this House of Assembly, even more than ten years ago, the necessity to have external oversight. We have external oversight when it comes to our finances. That is the role of the Auditor General. This very government recognized the need of that external oversight when, under the former Premier, they made the decision, which they should have made, that the Auditor General would be able to come and look at the books of the House of Assembly – absolutely, that external oversight was needed and we found out how important that external oversight was.

What I am saying is and what my motion is saying is that we need to continue the external oversight. That is not denigrating in any way anybody or any role that is there now. It is saying we have to continue the external oversight, and that is what the change in the act that is being proposed by Bill 29 is ignoring. It is ignoring the need for the continuance of the external oversight so that when we read in the act, "Where a question arises as to whether a Cabinet record is an official Cabinet record, the certificate of the Clerk of Executive Council or his or her delegate stating that the record is an official Cabinet record is conclusive of the question." What the Clerk is going to do, the Clerk or the Clerk's designate, is going to take the proposed section 18.(1) that is in this bill, and is going to go through the three pages listing what a document is. It is going to say: Does the document that is requested fit into any one of these categories?

We note that the numbers go up eight, and then we have different sections that are alphabetized right up as far as, I do not know – well, roman numerals right up to (x) in some cases, alphabetized up to (d). The list goes on and on; there are three pages. The Clerk or the Clerk's designate will take this, will determine that this is a document that is an official Cabinet document and cannot be released.

If the applicant for that document is not satisfied and thinks a mistake has been made, the person cannot any more go to the commissioner. The person will have to go to Trial Division. That means going into the court system. That means paying money to try to fight the ruling of the Clerk. The ruling of the Clerk will be an honest ruling. It will be a ruling based on this list. What we are saying is we have to have, number one, external oversight; and number two, we have to maintain that phrase "substance of deliberations", which is used in jurisdictions right across this country, allowing the commissioner to have the latitude of determining whether or not a particular memo in actual fact gives information that is confidential and that could be harmful to government if it were released. It gives the commissioner the latitude to be able to determine if an agenda has information in it that breaks confidentiality.

The listing that is here is unacceptable. I have no problem whatsoever with the role of the Clerk of Executive Council. I do have a problem with not having external oversight and not having an appeal process that goes to the commissioner and to the office that we have recognized for almost a decade as being the place where the external oversight happens and where the expertise lies in making the determination. That is what I am speaking to, Mr. Chair. That is what I am concerned about.

I know that my colleague for Bay of Islands made some reference to this, but I want to do it myself as well. When we come to the Cummings report, after Mr. Cummings did the review of our act, the government seemed to cherry-pick from his recommendations. I note, for example, that in his Recommendation 11 in his review, concerning section 18 of the ATIPPA, he has a clear recommendation that "the list of information captured by section 18 of the ATIPPA be extended" – because there is a list there already and we have maintained that list in our motion – "to include the listing of cabinet records found in the Province's Management of Information Act."

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: Okay, I disagree with that list, but I can live with it especially because if the government had wanted to do so, Mr. Cummings does not in any way change anything else in section 18. He does not take out substance of deliberations. He does not change anything else. He just says: Add the list.

What the government has done is they have done a major change by taking out the term "substance of deliberations" and that is what I do not understand. That is why I want an answer. Mr. Chair, that does exist in other jurisdictions where they do have a list. They also still say substance of deliberations. Why would this government choose to take out substance of deliberations, an extremely important phrase? They have chosen to take it out and it was not the recommendation of Mr. Cummings, who did the review.

Now, Mr. Cummings does relate to a couple of the other issues I want to get at. He does talk about the fact that right now in the act subsection 18 says Cabinet records that have existed for twenty years – it is twenty years before there can be disclosure. He makes reference to the fact that the Information and Privacy Commissioner recommends fifteen years. He says eighteen, maybe. I actually think fifteen makes sense. It is also more common in other jurisdictions, and that is why that is also in our motion.

Mr. Chair, I really would like this government to explain to me why they have taken out substance of deliberations and why they would be against putting substance of deliberations back in this section of the act.

Thank you very much.

CHAIR: Order, please!

The hon. the Minister of Justice and Attorney General.

SOME HON. MEMBERS: Hear, hear!

MR. F. COLLINS: Thank you, Mr. Chair.

Mr. Chair, exempting Cabinet material is a standard practice across all jurisdictions. Cabinet materials under the current legislation are protected and will continue to be protected. In jurisdictions across the country, Cabinet materials are protected from disclosure, and for good reason, because Cabinet confidences are vitally important on all levels.

The hon. member who just spoke referenced the report of Mr. Cummings. She obviously did not read it. If you had read the section on substance of deliberations, then she would have known why he recommended taking it out of the act.

Mr. Chair, her amendment wants to put back the very thing that Mr. Cummings opted to take out. Why? Because of the confusion and the lack of clarity around substance of deliberations. Various jurisdictions, Mr. Chair, across the country cannot agree on how to interpret the substance of deliberations test, and the case law is conflicting.

Mr. Chair, in Cummings report, he makes reference to Ontario, Manitoba, the commissioner's office here in this Province, and Executive Council and how they all have different opinions and different interpretations on the substance of deliberations tests. Ontario says: Not only must the substance of Cabinet deliberations not be disclosed but that, in addition, any records specifically listed in the relevant section must also be protected from disclosure because they are deemed to reveal the substance of deliberations of Cabinet. Manitoba, on the other hand, wants to exempt the specific class of information that reveals the substance of Cabinet deliberations. The commissioner in this Province based his report on a Nova Scotia appeal case that the Executive Council feels is too narrow and will reveal too much information contrary to the fundamental principle of Cabinet confidentiality and leaves open the possibility that other information considered by Cabinet will have to be disclosed or severed.

Mr. Chair, there is no agreement, only conflicts, on interpretation of the substance of deliberations test across this country. Mr. Cummings saw that in all the case law and in the other provinces. He opted, Mr. Chair, on the basis of his deliberations to instead take the definition of Cabinet documents that appears in the Management of Information Act. What that does, Mr. Chair, it lists a list of documents that are considered by Cabinet.

Mr. Chair, let us look at them for a second. If you want to look at what is meant by substance and deliberations, a Cabinet record means advice, recommendations or policy considerations submitted or prepared for submission to the Cabinet. We are talking about Cabinet deliberations. Draft legislation submitted or prepared for submission to Cabinet; a memorandum, the purpose of which is to present proposal or recommendations to Cabinet; a discussion paper, including all factual and background material prepared for the Cabinet, and on and on it goes. These are documents that inform the Cabinet, so they deal with the substance of deliberations test; they are all built in. So, instead of having a general phrase "substance of deliberations", why not include all the documents and records that speak to substance of deliberations. That is what we are doing.

Now, Mr. Chair, in addition to that, we have classified all those records into three different types of Cabinet records. There is a discontinued Cabinet record, which means a Cabinet record that was started out as a Cabinet record, the original intent of which was to get to the Cabinet process, but did not get there, and it is neither a Cabinet supporting record any more or an official Cabinet record. Then, there is the official Cabinet record. That means a Cabinet record that has been discussed within the confines of the Cabinet room; it gets into the Cabinet room. A supporting Cabinet record is a record that is referred to which informs the Cabinet process, but is not an official Cabinet record; it does not get inside the Cabinet room.

Mr. Chair, a public body cannot disclose a Cabinet record, including an official Cabinet record, a discontinued Cabinet record, or a supporting Cabinet record – cannot disclose either one of the three. Mr. Chair, the commissioner, if you talk about oversight – as the member was just talking about lack of oversight – may review all Cabinet records, with the exception of those that are certified by the Clerk, the ones that got inside the Cabinet room – you cannot see them. If you want to see them, you have to go to court. Everything else can be reviewed by the commissioner – everything can be reviewed by the commissioner.

Now, Mr. Chair, I want to say as well that the Clerk is not going to certify anything. The Clerk can only certify a record as an official Cabinet record if it meets the definition of that – if it is prepared for and considered at a meeting in the Cabinet room. That is the only thing he can certify. If you want to get a hold of that document, Mr. Chair, you have to go to court. Anything else, the commissioner can review. There is no ambiguity about that. He has no discretion; he can only certify a document that gets inside the Cabinet room.

Mr. Chair, as I mentioned, the commissioner can review all the categories of Cabinet record, with the exception of those that have been certified by the Clerk. Now, Mr. Chair, I want to point out, in New Brunswick, the commissioner is unable to review any Cabinet confidences – none. At the federal level, Mr. Chair, they do not even fall under the act. They do not even allow Cabinet confidences under the act. Oversight, Mr. Chair, is provided.

Back to the amendment, what the Third Party wants to do is to put back in the act what Mr. Cummings, on his recommendations and on his deliberations and consultations, wanted to take out – for good reason. I heard the Leader of the Third Party in her opening presentation – and I know she is an intelligent woman with a lot of experience, but she does not understand the operations of Cabinet. Why would she? Because, before I was in Cabinet, I certainly did not understand how it worked either. I would venture that the people who are sitting in the backbenches of this House have no idea how the Cabinet process works because you have to be into it and be part of it to understand it. Obviously, you cannot understand it if you are not there. It is obvious from the feelings of the Third Party that she does not understand it.

Mr. Chair, we will not vote for this amendment because it is against the recommendations – the recommendations we fully support.

Thank you, Mr. Chair.

SOME HON. MEMBERS: Hear, hear!

CHAIR: The hon. the Leader of the Third Party.

MS MICHAEL: Thank you very much, Mr. Chair.

I find it extremely interesting to hear the Minister of Justice interpret what is in the report from Mr. Cummings, Mr. Chair. First of all, I will work right at the front and go backwards. The recommendation from Mr. Cummings says very, very clearly – it is Recommendation 11 and it comes at the end of the section in his report in which he deals with the whole issue of section 18 in the act. Section 18, Cabinet Confidences – it begins on page 37; he goes through and then he ends it with his recommendation, and I want to start there first. The recommendation is very clear. It says, "It is recommended that the list of information captured by section 18 of the ATIPPA be extended to include the listing of cabinet records found in the Province's Management of Information Act." It does not say take out the section that is there. It does not say remove language from the section that is there, a section that uses the term "substance of deliberations". It does not say change the whole thing. It does not say delete. It does not say get rid of. It says: extend the list to include.

Now, the minister is right, I think I am an intelligent woman, and when I read that, it means what is there, what is already in the act, stays and becomes extended. That is very simple; that is very clear to me. It means that the substance of deliberations – he did not recommend taking out substance of deliberations. This government made the decision to take out substance of deliberations. Then, I come to the whole section where he says that Mr. Cummings gave a position on the substance of deliberations – he did not, and I read every word of this section. What he does is he presents how substance of deliberations is used in different places, he talks about the rulings, he talks about Court of Appeal, where Courts of Appeal have dealt with this, he talks about the fact that there are different interpretations – and he says on page 39 of his report, "I do not intend to get into a more detailed analysis of various interpretations of Courts and Commissioners across Canada about the disclosure of cabinet information under various legislative regimes that, for the most part, are similar but also vary in some significant respects. Suffice it to say, there are at least two basic interpretations of similar provisions in which the ‘substance of deliberations' test is found."

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: Mr. Chair, he does not then go on and give a position. He does not say we take it out or we leave it. He does not touch it. The only recommendation is extending the list that is already in – there is a list in the current section 18, and he says extend it. He does not take a position on substance of deliberations – not at all. He presents, he gives some analysis, and he says: I am not going to go any further. He does mention Executive Council and he does say that Executive Council prefers one of the interpretations. He also says, "I also believe Executive Council has serious concerns about the restrictions…" – about the restrictions.

So, obviously, Executive Council, in making their presentation to him, saw substance of deliberations as being restrictive. He says, "I also believe Executive Council has serious concerns about the restrictions imposed by the ‘substance of deliberations' test and seem to prefer a more extensive listing of information similar to Ontario, Manitoba, and Saskatchewan legislation", and he ends it. He does not say take it out. He presents what the council presented to him, but he does not recommend taking it out.

Now, it is really too bad that they did take it out, so I have to question the minister. By taking substance of deliberations out we now – if this is what they are going to push forward in this act – will not be able, which could be the case, we will never get a Court of Appeal test on our interpretation of substance of deliberations.

So, the commissioner, before, had to go to other provinces to see, he had to come up with something that he thought was reasonable and he chose the Nova Scotia ruling. By taking substance of deliberations out of this section, we now will not have any basis for trying to get our own interpretation, because it will not exist any more. I would like to point out to everybody in this Province what we are told in this report – the Executive Council did not want it left in because it was restrictive. Now, I would like the minister to explain to me what is restrictive about having substance of deliberations in there. I think having substance of deliberations in there gave room to the commissioner, along with a list, if you wanted to extend the list – I really do not have too much problem with extending the list. I do not think it is needed, but I do not have a problem. The important thing is that removal of substance of deliberations. I would really suggest to the minister that he re-read the section on section 18 and realize that what I am saying is correct. There was no recommendation to take that out.

Thank you very much, Mr. Chair.

CHAIR: The hon. the Member for Bay of Islands.

SOME HON. MEMBERS: Hear, hear!

MR. JOYCE: Thank you very much, Mr. Chair, for recognizing me.

As usual, it is always an honour to be recognized by the Chair.

CHAIR: It is always an honour to hear you.

MR. JOYCE: Thank you, Mr. Chair.

I know, Mr. Chair, because the members opposite are so attentive and they listen so well, I am very appreciative of all that.

Mr. Chair, I just wanted to speak on the amendment again for another few minutes, on something that the minister said. Of course, once again, Mr. Chair, we have an interpretation that when you say it, it does not mean that it is factual in the essence of the act. The minister just stood up – and it is a very big part of this act – and said the only thing that is going to be included – I have unlimited time again. Thank you again, Mr. Chair. I know you make up, I have to say –

AN HON. MEMBER: That is twice.

MR. JOYCE: That is twice you have made up for me. Thank you very much, Mr. Chair.

Mr. Chair, once the minister says it and you take it at face value, people say: Oh, well, that sounds pretty good. When you dig into the act, when you look into the act, Mr. Chair, that is when you get the little so-called devil is in the details. The minister said that only Cabinet papers – you have to go to court to get the Cabinet papers, Mr. Chair. I can see that. I can honestly see that. I know my colleague, the Member for Cartwright – L'Anse au Clair, also said she can understand the confidentiality with Cabinet documents, the decisions that are made – the tough decisions that are made. So when the minister, on face value, says if you want Cabinet documents, you need to go to court to get them; that is understandable.

The minister went on to say that the only documents you need to go to court with are Cabinet documents. The rest, then, you can get through the co-ordinator. What the minister did not go on with in the act, Mr. Chair: The substance of deliberations test is removed. As well, the following three types of Cabinet records are included. Get this now: official Cabinet records – which I understand are part of the Cabinet and I understand the secrecy behind that – discontinued Cabinet records – here is the big kicker, Mr. Chair – and supporting Cabinet records. Official Cabinet records certified by the Clerk are reviewed by the court in the event – when we go back earlier and we talked about supporting Cabinet records, we have to ask what supports Cabinet records. That is the big discussion in this whole section, Mr. Chair. The amendment that was put forth keeps the act as it, except for a minor change, but it keeps it as is. The question is: What constitutes a Cabinet record, Mr. Chair? When you just stand up and say, if you want the Cabinet document you can go to court, everything else is open, but when you add all of the other parts to it, Mr. Chair, the question always comes in, then: What constitutes a Cabinet record?

Mr. Chair, we just used some things – for example, I mentioned earlier: discussions. If anybody has a discussion with a minister now and he uses it for his Cabinet paper, the discussion is part of the Cabinet record. Any memo written to a minister now, if it is used for Cabinet, it can be put under this umbrella. It may never reach the minister's table, it may never reach the minister's eyes, it may never reach it, but if it is a part of making up the Cabinet paper and even if it never made it to Cabinet, it is exempt now, Mr. Chair.

This is scary. It is actually scary, Mr. Chair. When you think about now if the minister – I use the Minister of Natural Resources just because he is here now and I am looking at him now. If the minister gets a Cabinet paper and he goes off and deliberates and makes a Cabinet decision, I understand that Cabinet paper has to be secret and I understand the confidentiality of it all, but if somewhere you are asking to do up a Cabinet paper and you have officials in your department who are doing up potential Cabinet papers, they get a list of information from all varieties, from all different departments, Mr. Chair, all different people, but it never makes it past the ADM for a Cabinet paper but it was part of the Cabinet discussion, possible Cabinet discussion, all that information now is exempt under the Freedom of Information. It is all exempt. It is one big umbrella. It is all exempt.

Mr. Chair, that there gets kind of scary, when you look at what is being proposed here. I am not accusing anybody of saying they are going to deliberately try to harm someone or deliberately try to keep information away if you thought it was going to harm. I am not saying that. What I am trying to say, though, we have to put that balance in there and the balance has to be somewhere that the public can get the information, Cabinet can go on with their duties, government can act as a government, but we have to make sure and ensure that our public responsibilities are taken care of for all the people in Newfoundland and Labrador. It is very concerning.

Mr. Chair, I go back to the report tonight on CBC. I saw the minister's briefing when he said thousands and thousands of requests. Then, all of a sudden, we find out that the information – I guess the minister forgot: over the years. We forgot those three words after the thousands and thousands. It was: over the years. Mr. Chair, this is why once we allow this here to be put in, that information that is put forth here, the information that is put forth in the Province of Newfoundland and Labrador, if this goes ahead, a lot of that information, even a lot of information that individuals are looking for, is gone – exempt. I do not think we need to go down that road. I honestly do not think we need to go down that road.

Mr. Chair, another good example – and I know you love hearing them, especially when the truth comes out. When we heard the Minister of Service NL talk about the big requests for the restaurants, in his statements that he made, and then the actual facts of it, Mr. Chair, that is why we need to open up the Freedom of Information Act under the ATIPPA. That is why we need do it, Mr. Chair. We cannot, for some reason, just take away some of the rights of the people of Newfoundland and Labrador who may want the information, may want it for public review, who may want it for public health reasons, who may want it for public concern out in the domain of Newfoundland and Labrador. We as residents and we as parliamentarians cannot shut that down, Mr. Chair. We just cannot shut it down. That is why it is very important.

I have said it before and I will say it again, and I will say it as many times as I can here tonight. One of the most concerning parts of this whole act is what we are discussing here tonight. My colleague earlier mentioned some of the people back in 2003. Mr. Chair, I did it last night and later on I will do it. I will go through some of the members opposite who made all the commitments back in 2003. I will ask each and every one of them to stand up and say what they committed to back in 2003, if they meant it. I am going to go through that after, Mr. Chair. I am going to do that. Last night, Mr. Chair, when I was bringing up some of the information in 2003, when they were all up on the stage with the former Premier (inaudible) his back – and I know the Minister of Finance said that was not in their Cabinet document. What did I do, Mr. Chair? I took it over, showed it to him, Mr. Chair – I showed it to him.

AN HON. MEMBER: (Inaudible).

MR. JOYCE: Yes, and I know the Minister of Education is bringing that up, the Corner Brook hospital. If this comes (inaudible) I will never know when that hospital started, when it is going to go to tender, or who got the tender. We will never know. I thank the Minister of Education for bringing that up because I know it is a concern, Mr. Chair. I would never know who got the tender. Although I have to say the Minister of Transportation and Works, I am not sure, the Minister of Transportation and Works was pretty good in the Estimates; I have to give him credit. He was pretty upfront and he was pretty forthright; I have to say, he was.

Then again, Mr. Chair, I am glad he was because the information I was getting earlier was not exactly the information that the minister – so when the minister said that we are in a pre-design of the hospital, that was not what the people in Corner Brook and the people of Western Newfoundland were thinking. They thought we were in the final stages. I know the Minister of Finance was waiting for the tractor and the steel to put in the ground so he could resign, but another seven or eight years. This is why we need this freedom of information, and we need to keep it as open and accountable as much as possible.

Later on, Mr. Chair, I will go through each member and I will see who is going to stand up. Last night, Mr. Chair, when I was doing that, going around, you could see them slithering down in their seats. Oh, do not recognize me – do not recognize me. I will, because I have the list.

CHAIR: Order, please!

I remind the hon. member that his time has expired.

MR. JOYCE: Thank you, Mr. Chair.

CHAIR: I now recognize the hon. the Minister of Justice and Attorney General.

SOME HON. MEMBERS: Hear, hear!

MR. F. COLLINS: Thank you, Mr. Chair.

I want to clarify a point in deference to the Leader of the Third Party. She took me to task, Mr. Chair, for my spout on my reference to Mr. Cummings taking out the substance of deliberations test. She is right, Mr. Chair, in that Mr. Cummings did not take out the substance of deliberations test, but standing alone the substance of deliberations test was too confusing and lacking clarity, as witnessed by the conflict in the case law across the country.

Cummings saw that, Mr. Chair. He saw that in the conflict of the case law and the various interpretations across the different provinces. Mr. Chair, standing alone, the substance of deliberations test does not give the protection necessary for Cabinet documents, so he suggested putting in the list of Cabinet documents under the Management of Information Act. That is what we have done, Mr. Speaker. To accept the amendment as proposed, Mr. Chair, will put back exactly what was in the initial act, which is not what we are proposing.

CHAIR: The hon. the Opposition House Leader.

MS JONES: Thank you, Mr. Chair.

I am pleased to stand and have a few more remarks with regard to clause 6 of the bill, Mr. Chair, just to pick up on a couple of things as it relates to the substance of deliberations test. Although Cummings in his recommendation recommended that the legislation could be much broader, in fact, he referred to – I have to get my notes here now, Mr. Chair; we are doing a lot of different sections – the Management of Information Act.

What he actually suggested to the government is that they broaden their perspective that was in the existing act, which talked about the ability to disclose to an applicant information that would reveal the substance of deliberations of Cabinet, including advice, recommendations, policy considerations, draft legislation, regulations, and so on. He actually recommended that would be expanded. That is where we are getting the definition now of things like agendas, memorandums, proposals, discussion papers, policy analysis, and all of those things.

Actually, Mr. Chair, I could probably even live with the further broadening of the legislation, but the problem that we have is the government removed the substance of deliberations test from the legislation. Basically, in doing that, they shut down the ability to be able to access any information whatsoever. There is not going to be any vetting process. There is not going to be anybody who looks at this and says: Did this piece of information contribute substantively to making this decision to this Cabinet paper? There is no clause in the bill now that allows for that. There is nothing in this bill, Mr. Chair, that allows for a person, whether it is the Clerk of the Executive Council, the Deputy Clerk, the Secretary to Treasury Board, or anybody to look at this information and say: Did this contribute to the deliberations of the Cabinet in making a decision on this particular Cabinet paper in any substantive way at all? If it did not, Mr. Chair, then that can be released to the public. If it did and it was a crucial piece of information in making that particular decision of Cabinet, then it would be restricted.

What the government has done now – and this was not recommended by Mr. Cummings; this was not recommended as part of his review process. Government, of their own accord, decided we are going to remove that. We are going to take that out of the bill so that now we do not have to give consideration to anything as to whether it was substantive in terms of making a decision, whether it was used in the deliberations of the Cabinet in any way. Now we do not have to do that; everything is going to be off limits.

What they did, Mr. Chair, they took Mr. Cummings recommendation that said the legislation should be broader and they accepted that. So they broadened the terms. When I say broader, I do not mean broader in terms of giving more information to the public, I mean broader in terms of protecting the government.

When he came in, he said we should make this a little bit broader so that government has the ability to reject other documentation. That other documentation, in which he quoted, would fall under the Management of Information Act, which is another act that you would have to pull out to look at what that means.

Basically, just to give you a quick example of what falls under the Management of Information Act – because there is a whole list of things – some of the things that fall under that particular act would be things like agendas, proposals that went to Cabinet directly in making a decision, discussion papers, any policy analysis that was done, and we know that is done every day. Every government department, Mr. Chair, has a team of people who do policy analysis. Everything that happens in a department is looked at. Every single issue that is looked at is then provided the pros and cons. Then, Mr. Chair, recommendations are made. These are the options for your recommendations. You can accept to do something; you can reject to do something. You can accept to do something in this way, or this way, or this way. I have seen many, many Cabinet documents and many, many briefing notes and many, many papers of policy analysis, and I know how it is done.

What Cummings was suggesting to the government is, listen; in other jurisdictions what they have done is extended their legislation to give them more protection, to be able to have more secrecy within Cabinet around information like this. All of that falls under the Management of Information Act. I am recommending to the Cabinet and to the government – this is what Mr. Cummings said in his report – that you now broaden your definition and that you now include those things. What he did not recommend was the clause that says the substance of deliberation test should be removed. He did not recommend that because if he did what he would, in essence, be saying to the government then is, listen, you now have the right to reject any information that you do not want to give out to the public.

I will explain that in just a minute. The Minister of Finance is saying it is not correct, but you have to go on to read the rest of the clauses in the bill; because what happens from that point on, Mr. Chair, is the decision is actually made under what they call a certification process. It is certified by the Clerk of the Executive Council. What happens is, because the substance of deliberations test is no longer applied to the legislation, the Clerk of the Executive Council or his designate, it says in the bill – I am not sure; I do not have the exact clause here in front of me now. Under section 18.(4), it says the Clerk of the Executive Council or his designate – and his designate can be the Deputy Clerk or it can be the Secretary of the Treasury Board – this is what they can do, Mr. Chair. They can walk in and they can say: Okay, this document, that document, this document, that document, all of that was part of the process of the Cabinet in determining the Cabinet paper, so I will certify all of that. Now, Mr. Chair, you are not eligible to be able to disclose that information under the Freedom of Information Act.

If there is something different, I would ask the minister to stand and explain that. When I read this bill, with the removal of that particular clause that is exactly what my interpretation of that bill is and what has been done. What government has done, Mr. Chair, is remove the substance of deliberations test from the bill altogether, yet expand it to protect more information that would be used in making decisions of the Cabinet or any decisions of the government. In essence, in doing that, they have indeed created one of the most secret – Mr. Chair, secret – Cabinets we have ever seen in the history of the Province when it comes to the disclosure of information. That is what our problem is, the real essence of what our problem is, in this bill.

There are other challenges, but when you look at it this is one of the major pieces, Mr. Chair, that has really been the hammer that will prevent the public from accessing the information they might seek. I will give a number of examples, Mr. Chair, when I speak again of the kind of information we ourselves have requested as an Opposition that would have not been provided to us if in fact the legislation we are seeing here today was interpreted and applied. We would not have received that documentation and in fact, Mr. Chair, it would have probably made it very, very difficult for us to get it, outside of having the opportunity to challenge it in a court of law at some stage.

That is the point that I wanted to make, and I would like for the minister to respond to that.

CHAIR: The hon. the Minister of Justice and Attorney General.

MR. F. COLLINS: Mr. Chair, as I mentioned earlier, the Clerk of the Cabinet certifies an official Cabinet document. He has no discretion. There is no ambiguity. He can only certify a document that is considered inside the Cabinet room. Look at paragraph "(c) ‘official cabinet record' means a cabinet record referred to in paragraph (a) which has been prepared for and considered in a meeting of the Cabinet". Only documents that get inside the Cabinet room to a meeting can be certified as an official Cabinet record by this Clerk. Mr. Chair, no one has access to that information, except for the court. All other information can be reviewed by the commissioner. I cannot make it any clear than that.

CHAIR: The hon. the Member for St. John's East.

MR. MURPHY: Thank you very much, Mr. Chair.

I just listened to the minister there then and this is a pretty extensive list that you just referred to when you said paragraph (a) as regards to Cabinet record. I will say it again, "(a) ‘cabinet record' means (i) advice, recommendations or policy considerations submitted or prepared for submission to the Cabinet, (ii) draft legislation or regulations submitted or prepared for submission to the Cabinet, (iii) a memorandum, the purpose of which is to present proposals or recommendations to the Cabinet". This is wide ranging. This is affecting everybody here in the Province.

Subparagraph "(iv) a discussion paper, policy analysis, proposal, advice or briefing material, including all factual and background material prepared for the Cabinet, (v) an agenda, minute or other record of Cabinet recording deliberations or decisions of the Cabinet, (vi) a record used for…" – I can go on. It is just not clear here. I do not know if government understands exactly what it is doing here. It is upsetting to know – and I would imagine that there are probably people out there who are watching that are probably pounding their fists in rage on tables right now saying: How come they do not get it? Why is the government closing the door on governance here in the Province? This does not make any sense. It is really troubling to see.

I carry on, "(vi) a record used for or which reflects communications or discussions among ministers on matters relating to the making of government decisions or the formulation of government policy, (vii) a record created for or by a minister for the purpose of briefing that minister on a matter for the Cabinet, (viii) a record created during the process of developing or preparing a submission for the Cabinet". Again, it carries on.

How many lives are we touching here? How many major projects are we talking about, we are trying to sell to the people of the Province, but at the same time we are slamming the door on their fingers to get to know exactly what it is behind the projects the government wants to undertake? The government probably has the best of intentions. Why is it closing the door on knowledge to the people of the Province?

It is a simple question. That is all you have to answer. We need clarity as regards to that. That is why we have no other choice but to go ahead and put in the change and flip it over as to who gets to put the checkmark on it and who gets to consider it to be Cabinet secrecy. No doubt, it is the Cabinet. If government wants to formulate policy, obviously it is going to have to be people of the Cabinet. There are several people here who can go ahead and authorize that, the Clerk of the Executive Council, Deputy Clerk of the Executive Clerk, and Secretary of the Treasury Board. There are a lot of fingers here in the pie.

There are other things here. The list includes advice, draft legislation, and memos, which should be restricted, but policy, proposals, and factual or background material are problematic. Many things can be defined as Cabinet records that do not reveal any confidences whatsoever. If it is dealing with my money, do I have any say? If it is dealing with the taxpayers' money, do they have any say? If a dam is going to be built upstream, do I have any say because my house is down there on the shores of the river that could get washed away? Would I be deemed as being that integral part of the need to know? I will leave that with the minister, and hopefully we will hear some more clarification on this.

I will take my seat and wait for an answer on that one, Mr. Chair. Thank you.

CHAIR: The hon. the Minister of Finance and President of Treasury Board.

SOME HON. MEMBERS: Hear, hear!

MR. MARSHALL: Thank you, Mr. Chair.

It is a pleasure for me to get up and take part once again in this filibuster debate. Since having to do it this morning, I have had an opportunity to have a bit of snooze over the supper break. I am now fresh and enjoying listening to members opposite, the Minister of Justice, and the Minister of Natural Resources talking about this issue of Cabinet confidentiality and why it is important.

I notice here, just having a look at Commissioner Cummings' report – and Commissioner Cummings, of course, was a former Clerk of the Executive Council of the government. He was a former Deputy Attorney General, Deputy Minister of Justice, and well familiar with this legislation. Familiar from one sense with how the legislation is so important to protect information but, on the other hand, having been the chief civil servant of the government, knows how there is the other side of the equation, when we talk about having a balance between ensuring that people have the right to know on the one hand with ensuring that government has the right to run its affairs, and that there is certain information, privacy and others, that does have to be kept confidential. I note his comment here that he agrees with the position about the need for Cabinet confidentiality, and it is important, and he talks about it ensuring that our system of government functions in an effective and timely way.

I think it is very interesting to look at another comment he made – he referred to a position that the Executive Council had advanced, in talking about the confidentiality of what is said in the Cabinet room and of the documents and papers that are prepared for Cabinet discussion. As the Minister of Natural Resources said, that takes place at a number of levels. It takes place in the minister's office, the minister who originates the Cabinet proposal. It takes place in different committees of Cabinet, because there is Cabinet but there are also some subcommittees of Cabinet. There is the Executive Council, there is the Social Policy Committee, and there is Treasury Board.

"The confidentiality of what is said in the Cabinet room and of the documents and papers prepared for Cabinet discussions is a long-standing principle of the British democratic tradition" that has been adopted in this country, in Canada and in our Province. It says, "Cabinet ministers charged with the responsibility of making government decisions must be free to discuss all aspects of the issues and to express all manner of views in complete confidence." They have to know that what is said in the room will not go outside the room. "Effective government requires that Cabinet members speak freely in the Cabinet room without fear of stating unpopular positions or making comments that might be considered to be politically incorrect if made public. Similarly, Cabinet documents must be protected to avoid creating the type of ill-informed public or political criticism that could hamper the ability of government to function effectively and efficiently."

In our ATIPPA legislation, Cabinet confidences are referred to in section 18, and section 18(1) reads, The head of a public body shall refuse – in other words the refusal is mandatory – to disclose to an applicant information that would reveal the substance of deliberations of Cabinet. Then it goes on to say what is included in that, what information would reveal the substance of Cabinet deliberations. It mentions advice. It mentions recommendations and policy considerations prepared for or submitted to the Cabinet. It also refers to draft legislation or draft regulations prepared for submission or submitted to Cabinet.

So that is what the law is right now, and we have brought in legislation to try to make it clear what documentation the head of a public body has to refuse to release, in order to protect the confidentiality of the discussion that has taken place in the Cabinet. The amendment that the NDP has brought forward tonight, essentially, is an amendment that would go back to what we have right now, with one exception that is a reference to fifteen years as opposed to twenty years.

So, Mr. Chair, if you look at the amendment, which is based on the Cummings recommendation, they define the Cabinet record – and of course the head of a public body, it is mandatory that the head of a public body refuse the disclosure of that information. As I said, section 18 provided that a mandatory exception to disclosure where the information requested would reveal the substance of deliberations of Cabinet, and it lists the types of records, as I said earlier – advice, recommendations, policy considerations, draft legislation, draft regulations submitted to Cabinet.

Mr. Cummings recommended that section 18 be amended to enhance the listing of Cabinet records that are found in the Province's Management of Information Act. This would include things that the Minister of Natural Resources mentioned. So, in addition to advice, recommendations, and policy considerations, in addition to draft legislation or regulations, he mentions a memorandum prepared, the purpose of which is to present proposals or recommendations to the Cabinet. Now, that would be the minister who starts it off. He would have a briefing note, he would have discussions with his officials, there would be analysis at the department, and they would go forward with this memorandum.

The next thing is a discussion paper, policy analysis, proposal, advice or briefing material, including all factual and background material prepared for the Cabinet. So that sounds like a Cabinet paper. That sounds like a document that has the information that is normally put together for the minister to sign containing a number of recommendations, and containing a policy discussion, containing various options, and containing a recommendation, which the minister would sign and it would then go into the Cabinet process and be dealt with by Cabinet.

There is an agenda of the Cabinet. There is a record, which reflects communications or discussions among ministers of matters relating to the making of government decisions or the formulating of government policy. This would be discussions taking place with different ministers as to how the Cabinet paper should proceed.

It talks about a record. Another thing would be a record created for a minister or by a minister for the purpose of briefing the minister on a matter for the Cabinet. The next one is a record created during the process of developing and preparing a submission to the Cabinet. The Opposition House Leader's concern was that it was too broad. All of these items are items that end up going to the Cabinet. If an applicant wants that information, the head of the public body, because of its confidentiality, is required to refuse it.

The Leader of the Third Party, the Leader of the NDP, talked about her concern that there was a lack of external oversight. She mentioned the Auditor General. The oversight is in fact here. The applicant can appeal the decision. If the head of a public body says no, you are not getting the information the applicant can appeal either to the Privacy Commissioner, on the hand, or go to court if the person chose. If the applicant goes to the commissioner, the commissioner may review the refusal and order otherwise. If the person wants to go to court or it is an official record, as the Minister of Justice just mentioned a few moments ago, if the document is certified as a document that was dealt with in the Cabinet, therefore it is an official Cabinet record, and then the only way to get that would be an application to the court.

Based on that, I think this legislation as recommended by government is clear and simply documents the documentation that is really part of the whole Cabinet process: starting in a minister's office, going through all the subcommittees of Cabinet, getting into Cabinet, discussion between ministers, maybe a briefing or a legal opinion someone may have gotten to help the minister convince his colleagues to advance the paper, no matter what it might be. It makes it clear and easier to identify what documents are in fact Cabinet confidences without having to go through these tests, which the commissioner seemed to indicate had caused some difficulty in coming with an interpretation that everyone considered appropriate.

With that, I would recommend the rejection of the amendment at this time and the ultimate voting for the government's proposal.

Thank you.

SOME HON. MEMBERS: Hear, hear!

CHAIR: The hon. the Member for Bay of Islands.

MR. JOYCE: Thank you again, Mr. Chair.

I know the Minister of Finance when he stands and when he speaks and gives out the information, I am sure he truly believes what he is saying. Mr. Chair, if you see the confusion that we in Opposition are in, this is from the briefing note on this bill. We heard the minister here tonight stand on several occasions – she challenged all of us, the minister did – on the substance of deliberations test, how Mr. Cummings recommended taking that out.

We stood here tonight and we heard it. I said it; I know the Leader of the Third Party said it, that he did not. The minister stood up and said yes, he did. The briefing note that we have from departmental officials – now, I have a copy. If anybody wants to see it, they can come over and see it, but you can see the confusion that we have.

In the briefing note from the departmental officials that was given to all of us, Mr. Chair, the government – here is what Mr. Cummings said. Mr. Cummings recommended that section 18 be amended to include the complete listing of Cabinet records found in the Province's Management of Information Act. This includes for example an agenda, a memorandum to present proposals to Cabinet, a discussion paper, policy analysis, or proposal. That is what Mr. Cummings recommended, Mr. Chair.

Here is where the discrepancy lies, I say to all hon. members. You can see why we have a problem with this bill, especially with this section, Mr. Chair. Here is what the government amended, the recommendations by Mr. Cummings. "Amended to include a complete listing of almost all cabinet records in the Management of Information Act. The substance of deliberations test is removed." The government did that.

When we stand here and say that the government took it out and the minister is over saying no, no, Mr. Cummings recommended it. The official – and I can see people looking, can you get it? Yes, I can show you guys after. If anybody wants to see it, I will show you. I have no problem with that because I am sure the minister has extra copies in his office also. If not, I am sure there is someone who can come down and give you all – when you see this here, we heard the government stand up on a regular basis and say Mr. Cummings made that recommendation and in their own briefing notes from the minister's office saying they never. You can see why we are asking all of these questions. You can see why we are bringing all of this out in the public domain.

If there is anything else that the people who are out watching tonight can understand why, as the Opposition, we are asking questions, we are going through this legislation bit by bit, and through Committee stage we can ask questions to the minister who gets up and answers the questions as we ask them, he also gives his interpretation, but when there is a thing in writing from his own department, Mr. Chair, that is why we have to challenge the minister.

This is not in a way to try to embarrass the minister. This is not in a way to try to embarrass the government. This is part of our Official Opposition, our duties to strengthen this legislation for all the people of Newfoundland and Labrador. If I have to raise these concerns, Mr. Chair, here in the Legislature, in front of the ministers, in front of all the government members, and the backbenchers, I will do it. I will do it, Mr. Chair.

The other thing the minister has said is the only thing that the Clerk will sign off is an official Cabinet document. I can tell you, that is not the information we got in the briefing note and that is not the information in the legislation, Mr. Chair, I can guarantee you. The information we got, Recommendation 11, which was amended by government –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. JOYCE: – "The substance of deliberations test is removed. As well, the following three types of cabinet records are included: official cabinet records" – which I know the minister was referring to – "discontinued cabinet records, and supporting cabinet records. Official cabinet records certified by the Clerk or his delegate… are reviewed by the courts in the event of a dispute and all other cabinet records are reviewed by the OIPC."

Mr. Chair, in part of the briefing we had, the official Cabinet records that can be signed off by the Clerk, any documentation that was brought up may never reach Cabinet. Any official information that was gathered to provide a Cabinet document for this government is now included in this here. It was broadened to the point where any information that you need, Mr. Chair – and I will even tell you something else. I am sure I can be corrected because when I heard this here at the briefing that we had, I even said: Well, hold it, there is an issue here.

If there is a dispute with some Cabinet – if there is, which I doubt very much will ever get out now because they have this scope broadened so much now. If there is ever a dispute about some information that was prepared for Cabinet that, now, we can try on the ATIPPA to try to get, we were told – and I stand to be corrected because I did make the notes – that Cabinet would appoint someone to decide if they can release that document or not, and that person makes the final decision. Am I correct on that? Is that the information that I had at the briefing? They can appoint somebody to overview the recommendation that is made by the ATIPPA and that person appointed by Cabinet has the final decision?

Now, that is if anything could ever get through, which I doubt very much anything will ever get through. I doubt very much anything will ever get through. That is just another safeguard, just in case someone lets someone sneak through or someone forgets the letter or piece of information somehow, that is just another safeguard to ensure that the cone of silence moves down on this government, Mr. Chair.

Mr. Chair, the sad part about it, in my opinion, the cone of silence is getting bigger and bigger and bigger. I know that no one here would want to deny access to a lot of the people we represent. We are fortunate enough to represent great people in Newfoundland and Labrador, and I do not think we would want to deny anybody the access to some information that they request to different bodies, Mr. Chair.

I can assure you, if we approve this legislation that is exactly what we are doing. We are putting a cone of silence over a lot of individuals, a lot of groups in this Province of Newfoundland and Labrador because government wants total control of what is happening in all the information that is going to be flowing through government.

Once again, when you look at the amendment, the legislation itself does need some revisions. We will make some amendments later as we move on. Keeping this bill as it is, Mr. Chair, is much better than what we going to move into.

I know the minister is concerned about it, but I can tell the minister – and I am not sure if the minister has seen the briefing notes that we had from the officials, because I will certainly supply the minister with a copy. If he stands once more and says that the substance of deliberations test was removed by John Cummings, not by this government, I will photocopy this and I will send it to the minister personally to ensure that we will take that off the table so that now we can move on to other parts of the legislation.

Thank you, Mr. Chair.

CHAIR: The hon. the Member for St. John's East.

MR. MURPHY: Thank you very much, Mr. Chair.

I just have a couple of more words to say about Cabinet confidence. It depends on what your definition of Cabinet confidence is too. While I sat down and listened to the hon. Minster of Finance talk just a few minutes ago, it occurred to me while government is thinking about papers, proposals, everything else that is under the whole definition of section 18 here – discussion papers, agendas, records of this, records of that – it occurred to me, again, this is really quite disturbing that they want to get rid of all that.

The one thing that I thought of when I was sitting down listening to him, and actually listening about the focus that government is actually putting on this, is how much we are actually losing by it. It is this – it finally clicked with me. The Cabinet has to have confidence and it has to earn it. We know that they earned it at the polls and maybe this time around they did earn it.

Deliberations of Cabinet have to include its confidences – sure. We are talking about those proposals and everything like that, but shouldn't it include one more confidence here: the taxpayer. Isn't that important here: the person who is supposed to have the rights here; the person that all of these confidences are taken into consideration thereof. That is the part that I find missing in section 18, that people are forgotten about here. That is the disturbing part about it. We still have a government that is protracted. It is looking upon itself as being the source of its own confidence.

Yes, I can see where governance would have to include confidence in their party and the people's ability, that sort of thing. Part of that confidence has to be earned on the part too, from the taxpayer and the citizens of which it serves. That is not being served under section 18 and that is what is missing from section 18.

People are looking for that human touch from the government, too; they want to know that they are going to be able to have some sort of a connection with their government, rather than the disconnect that they have been feeling. Over the last couple of years that is pretty evident worldwide, how much people are actually losing confidence in their governments and how much governments are actually losing contact with the people.

I just wanted to bring that forward that if government wants to go ahead and vote on this, they do so at their own trepidation because what kind of message are they telling the people here on this, that if they cannot support a very small amendment to what government is looking for. In a small amendment we are trying to give back a little bit of something of governance back to the people here, Mr. Chair. I feel that because they are turning a blind eye to it and only focusing on their own agenda, they are not focusing on people in that regard as well.

I want to drift back a little bit here too as regards to the substance of deliberations here. Cummings recommends extending it, not shortening it at all. Just one more fact just to leave it at that, the number of requests for ATIPPA – I came into this House this afternoon and I talked about the statistics over the last couple of years. I think it was the Office of the Information and Privacy Commissioner had, OIPC. One of the stats I had was talking about the last two years for the number of investigations that it had or the inquiries for ATIPPA; 585 I think it was the year before that, 581 last year. Two per cent of those were political. That amounts to about twelve or thirteen I think against 585. It is not very much that political parties go looking for when it comes to ATIPPA.

I will leave it at that, but I just have the one more thing to say as regards to governance here. First, they lose confidence, then they lose confidence in the people who they are serving, things close in on them and then they lose governance. I think that if they want to go ahead and vote against the amendments, they vote against it at their own peril.

I will leave it at that, Mr. Chair. Thank you very much.

CHAIR: The hon. the Member for Cartwright – L'Anse au Clair.

MS JONES: Thank you, Mr. Chair.

I wanted to pick up on the point that I was speaking to before I sat down, Mr. Chair, and that was under clause 6. The minister did respond to my comment, Mr. Chair, but I want to be very clear and I think that clarity is what is required here because when you look at the actual report that was prepared by Commissioner Cummings when he did the review; he explicitly talked about section 18 of the act. What he said, Mr. Chair, is that, "Section 18 consists of a mandatory exception to disclosure where the information requested would reveal the substance of deliberations of Cabinet, including advice, recommendations, policy considerations or draft legislation or regulation submitted or prepared for submission to Cabinet."

So we all understand that particular aspect of it, Mr. Chair. Let's move on, because when he did his consultations, he actually received three particular submissions under section 18. One of them came from the Executive Council, which is the Cabinet, Mr. Chair; one of them came from the commissioner's office, which was Mr. Ring; and the other submission came from ourselves, the Official Opposition. Mr. Chair, those were the only three submissions that he received.

Now let me tell you what those particular submissions said with regard to section 18. It was very clear to Mr. Cummings and to anyone who reads this report that the Executive Council intentionally sought out under their presentation to Mr. Cummings to have substance of deliberations removed from the particular bill. That was what they set out to do right from the beginning.

The commissioner's office had taken a position on the term "substance of deliberations". They felt it was too narrow and will reveal too much information contrary to the fundamental principle of Cabinet confidentiality.

Mr. Chair, the commissioner's office had cited O'Connor versus Nova Scotia. It was a decision that was looked at in the Nova Scotia Court of Appeal. Mr. Chair, it concluded that the only information protected from disclosure is that which would permit accurate references to be drawn about the substance of deliberations of Cabinet. This leaves open the possibility that other information considered by Cabinet may have to be disclosed or severed in any particular case.

The other thing the commission asked, besides that particular aspect which would have left Cabinet having to disclose probably more information than was currently being used, in addition to that, Mr. Chair, the commission also asked that it not be mandatory and that, in fact, it would be discretionary. In doing so, what that would have done is left it open in terms of what information could be given out. If there was some discretion, Mr. Chair, being used, instead of it being mandatory, we could have potentially the release of more information.

That was what the Privacy Commissioner was looking for. He had already run into several cases, Mr. Chair, where he could not obtain the information he required and as a result of it had to make appeals to the Trial Division of the courts. Therefore, when the review of this act under the Access to Information and Protection of Privacy came up, obviously the commissioner took the opportunity to go in and to say: Listen, we need to make some changes here because we need to ensure that some of these things are more accessible. We need to ensure that not all of this can be looked at from the mandatory perspective.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS JONES: That was what he was asking, Mr. Chair.

In addition, Mr. Chair, to that we also had the Official Opposition, ourselves, who also looked at section 18 and we felt that already section 18 was too broad in what it was restricting under the information to access. We felt that should have been changed. Unfortunately, Mr. Cummings did not agree with us under that particular term, but we felt that way, Mr. Chair –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS JONES: – because we had been going through a process where we had been asking for Freedom of Information requests, Mr. Chair, on a regular basis. I have bundles of them here on my desk. I do not know if you can see them or not, Mr. Chair, but here on my desk there are bundles of FOI requests that we have made to government – bundles of them. This is one I have here, but there are many. You need to realize, Mr. Chair, making those requests does not always mean that you get the information.

Therefore, Mr. Chair, we felt that the terms of it was already too broad. We were being restricted too much under the guise of the legislation, and when the review was done, as an Official Opposition, we went before Mr. Cummings and we said: Listen, we would like to see changes in section 18.

There were three people who made representation under that review to look at this act. One of them, Mr. Chair, was the commissioner's office, in which again to just recap what they were saying is that the bill should not look at mandatory but look at discretionary, and this would encourage the disclosure of more Cabinet information which would not cause any significant harm to the operations of the Cabinet. That was the point that Commissioner Ring was trying to make and he had his own experiences for making that; however, at the end of the day, it was the Executive Council at government that wanted to really hammer this down.

It was the Cabinet themselves that wanted to hammer this down and what the Executive Council provided and recommended was that the definition of Cabinet records would be extended, Mr. Chair, and that the Province's Management of Information Act would be used to add to section 18. That is what they were asking, Mr. Chair, because it is under this section where government now will be able to protect every single scrap of paper that they ever used, thought about or considered using, Mr. Chair, as a part of their deliberations on this.

It was also, Mr. Chair, the Executive Council in this particular process that wanted to do away with the substance of deliberations clause. At the end of the day, the commissioner did recommend that should stay in the act. He did not agree with the Executive Council on this. In fact, Mr. Chair, he said, "I am not prepared to say that this means all cabinet records must be protected from disclosure in their entirety for 20 years. This means that severance of cabinet records to determine the substance of cabinet deliberations –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS JONES: – should continue. I am prepared, however, to recommend extending the list of records captured by the section 18 exception of ATIPPA…."

He did not recommend that would be included in the act, Mr. Chair.

CHAIR: Order, please!

I remind the hon. member that her time for speaking has expired.

MS JONES: I will get to finish my comments when I stand again.

Thank you.

CHAIR: The hon. the Member for Bay of Islands.

MR. JOYCE: Oh, thank you again, Mr. Chair.

I just rise again, Mr. Chair, to speak about the amendment and this bill. Mr. Chair, last night I did it very briefly, but I am going to run through it again tonight. Sometimes I am convinced that not all members opposite understand what is in this bill. I really feel that, Mr. Chair. I always said if you are really going to put something forth and you are really going to stand by it, you mean what you put forth and what you stand by, by your party – I see members opposite already singing out to me: Yes, we do, we do, and we do. Okay, let us find out.

Mr. Chair, the Blue Book 2003 – and I can see a few members already slipping down their seats hoping I am not going to recognize them. I can assure you I have the list here, Mr. Chair, in 2003 when the former Premier, Mr. Williams, stood up and all that bunch grabbed hold to his coattails as hard as they could and they started flying around with him, would not let him go, like the magic carpet ride; they were holding on to his carpet so it could drag them along. He said, in his Blue Book, Mr. Chair, he is committed to open up Cabinet documents – openness and transparency. What was it? Elitist – we will not be elitist and have all of this documentation all confined, just to a bunch of us up in some room tucked away under security, Mr. Chair.

Most of the members opposite jumped on his magic carpet ride and went with him, Mr. Chair. I will just go through a few of them because if they really meant it back in 2003 and 2007 when they were making all of these promises and all of these commitments and telling the people of Newfoundland and Labrador, what changed their mind now, Mr. Chair? They went from going on this magic carpet ride to now putting a cone of silence on everything in Newfoundland and Labrador. As big as they can make this cone, Mr. Chair, they are going to go with it to keep everybody confined and going to control all of the information.

Now, let me go through a few of them. The Member for St. George's – Stephenville East – she was one of them. She promised – as the candidate and as a minister later – to open up all Cabinet documents. Guess what? She is for this now. I am willing to bet that she is going to stand up and vote for this now. So one of two things, Mr. Chair, when you stood up and supported the Blue Book back in 2003 with the former Premier when you were on his magic carpet ride, you either did not agree with this here now or you doing this here now and you have no idea what you are doing – one of the two. You cannot have it both ways. You cannot say that we are going to open up all Cabinet documents and now say: No, that was only just to get elected. We are just going to get elected. Once we get elected, we are all right, Mr. Chair. I am going to say, I am willing to bet the minister is going to vote for this – I am willing to bet.

The Member for Port au Port – he was there, Mr. Chair. Yes, I know he was there and he committed to all of the Cabinet documents and supported government to do it. I bet when the time comes for the vote he is going to stand up and vote, Mr. Chair. Do you know why? Because he is told to stand up and vote, Mr. Chair, that is why he is going to stand up and vote.

Listen to this one, Mr. Chair. The Member for Virginia Water, 2003 –

AN HON. MEMBER: (Inaudible).

MR. JOYCE: Yes, I cannot believe it.

The Member for Virginia Waters stood up with all government and Cabinet and got on the big magic carpet ride and she said we are going to go ahead and we are going to open up all Cabinet documents.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. JOYCE: Guess what? That is our Premier today. That is the Premier of our Province today who stood up and said we are going to open up all Cabinet documents. We are not going to be elitist. Guess what? Times have changed, Mr. Chair.

SOME HON. MEMBERS: Oh, oh!

MR. JOYCE: I hear the members opposite now shouting at me because they are hoping I am not going to mention their names.

CHAIR: Order, please!

MR. JOYCE: Sorry, Mr. Chair.

I know they are shouting out and hoping I am not going to mention their names. The Premier of the Province, your leader, Mr. Chair, stood up and said we are going to open up all Cabinet documents, now we are bringing in this secrecy act.

AN HON. MEMBER: Secrecy act?

MR. JOYCE: Secrecy act – yes, it is the secrecy act. That is what it is, Mr. Chair.

So, Mr. Chair, either she did not mean it then, or right now she was just saying to people, let me get elected and I will do what I want to do later. It is one of the two; you cannot have it both ways, Mr. Chair.

The Member for Conception Bay South, Mr. Chair, is another one. He stood up and he also said we are opening everything up around here. We are going to be open and accountable, Mr. Chair. Can you imagine, Mr. Chair? He stood up there yesterday and he was speaking for the bill – I nearly fell off my chair when that member, who is the minister now, stood up and is going to vote for this bill, after going around and saying we are going to be open and accountable. I just cannot believe it.

The Member for Harbour Main – I am not allowed to say Harbour Main – Whitbourne. Harbour Main – that is another one. He is over there now sliding down – I guarantee you that, Mr. Chair. That is another Cabinet Minister now who is going to go – you just take it, he is the Minister of Transportation and Works. He was going to open up all the Cabinet documents and now, with a lot of the infrastructure money that the Auditor General tried to see, the $5 billion, how they came up with the strategy, he could not even get to see it. One of the departments, Transportation and Works; yet, in 2003, he was going to open it all up – he was going to open it all up. He was not going to be part of the elitist group, Mr. Chair. So, we have to question all this here now, Mr. Chair.

The Member for Grand Falls-Windsor – Springdale – he was another one. I am willing to bet now that he may not ever speak on this bill because he is back in the corner so far now he needs to pack a lunch to get out, Mr. Chair. I can guarantee you one thing, he will stand up and vote for the bill, yet in 2003 he was against all – everything you are doing here tonight, everything you are doing here in this bill, these people, the people I mentioned here, in 2003 were against it all – against it. Here we are now going to come in tonight and bring it in, Mr. Chair. Can you imagine, Mr. Chair?

The Member for Trinity – Bay de Verde – she is another one. That minister, she is going to vote for it. I guarantee you, yes, she is over there and she is going to vote for it. So, either you are going to vote for –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS JOHNSON: (Inaudible) relevant to the clause.

MR. JOYCE: Yes, it is relevant to the clause, Mr. Chair, because this is an open and accountable government. Either, I say to the Member for Trinity – Bay de Verde, you did not mean what you said back in 2003 or you do not mean it now – one of the two; you cannot have it both ways. You just cannot have it both ways, Mr. Chair, because when you look at this act, open and transparent act, this minister is going to – make up your mind, if you meant it then or meant it now, that is all I have to say, Mr. Chair.

Mr. Chair, the Member for Humber East – he was another one. Mr. Chair, this act here is something that we need for all Cabinet documents. Most of these people I have mentioned are Cabinet Ministers, Mr. Chair; they are the ones who right now are going to have the cone of silence. The Member for Gander – I know he is trying to get out through the side door as fast now as a scald cat, Mr. Chair, but I tell you the Member for Gander in 2003 –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. JOYCE: The Member for Gander, Mr. Chair, in 2003, the same. He jumped on the magic carpet ride also, Mr. Chair. He will vote for it too, I agree. He will vote also. I guarantee you, Mr. Chair, you can hear the shouts in the halls coming behind and you can see more people falling down in their seats, because I was around in 2003 and I remember all the commitments that they all made. Tonight, they are taking it all and saying all the information and all the stuff we put out to the general public back in 2003, that did not mean nothing; there was nothing to it. When we called all them elitist, we did not mean that. That was going to be us, I say.

Mr. Chair, the Member for Terra Nova – why don't you go and get a prescription, get a bit of Tylenol. You are the Parliamentary Assistant to the Minister of Health, go get a bit of Tylenol.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. JOYCE: Protect, Mr. Chair, please.

The Member for St. John's South is another one who was going to bring all of this in. I bet you, Mr. Chair, when I keep out my list here, I am going to check them all off. All the ones in 2003 who committed to bring in the act, openness and transparency, committed to open up Cabinet documents, Mr. Chair, but now the same group are putting such a cone of silence on us, Maxwell Smart would not be able to get in there.

Thank you, Mr. Chair.

CHAIR: The hon. the Member for Torngat Mountains.

MR. EDMUNDS: Thank you, Mr. Chair.

It is good to speak to this amendment. I would just like to make reference to the comments by my hon. colleague, the number of members opposite who were present in 2003, in looking at the plan that talked about bringing everything to the forefront to certainly make everything transparent and allow for accessibility. It is certainly quite a different story this time around, Mr. Chair, when you look at section 18 of the act.

I would just like to make a few comments with reference to the amendment and to the recommendations by Mr. Cummings. Indeed, Mr. Cummings did make the recommendation that section 18 be amended and that it include complete listings of Cabinet records on Province's Management of Information Act.

Mr. Chair, you talk about Executive Council removing the substance of deliberations portion of this, I cannot help but notice that when you look at Bill 29, this government has taken the recommendations way above and beyond the recommendations put forward by Mr. Cummings. I think, had there been –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

I remind hon. members of the restrictions that are placed on the use of electronic devices in the House of Assembly. They must be in silent mode at all times. It would be convenient at times if certain hon. members were in silent mode as well. That is a lot to hope for, but I ask hon. members for their co-operation in terms of the use of electronic devices.

Once again, I recognize the hon. the Member for Torngat Mountains.

MR. EDMUNDS: Thank you, Mr. Chair.

I will just try to pick up my train of thought here. As I said, Mr. Chair, it is obvious that this government has taken the recommendations of Mr. Cummings and certainly elevated them way above the actual recommendations put forward by Mr. Cummings. You can see in the list, in section 18 of the act, where it gives a long list of what would be now inaccessible to the people of this Province. Having said that, I do realize that there is certain information that is in the hands of the heads of public bodies or ministers or Executive Council that should remain in confidence.

Mr. Chair, I would just like to go to discretion and had there been more discretion used, some of these problems that are certainly bringing a lot of attention to this act – and I commend my hon. colleagues for bringing it out into the open, Mr. Chair. A little more discretion would have left a safeguard for transparency and accountability.

Now, Mr. Chair, with the introduction of these amendments, this door to the proposed legislation is now closed. Other than going to the Trial Division, it will be next to impossible to get information that could benefit the people of this Province. I think it will lead to comments that I heard earlier from the Minister of Natural Resources, Mr. Chair, about the potential of having to live in fear, and being haunted by the FOIs, and at the risk of information being used against the head of public bodies.

In good governance if you are doing your job and you are doing it well, I think you have little to fear, Mr. Chair. We again question the motive behind these amendments, Mr. Chair, as we have done in the last thirty-two hours.

I can almost understand the comments by the minister as we look at the list of proposed amendments to this legislation. I can see a certain level of fear. Mr. Chair, to relieve that fear and the fear of being haunted by a request for information and accessibility, they have gone above and beyond. Now they have closed that door to eliminate that level of fear of being haunted, and by doing that, Mr. Chair, they have shut the door on accessibility by the people of this Province.

Mr. Chair, it takes in restriction of accessibility or the level of accessibility to the level of inaccessibility and that is where the concern comes from, Mr. Chair, certainly from this side and certainly from the people in the Province who have come forward and shared their dismay at this restriction on accessibility.

Mr. Chair, I would like to go back to the comments raised by the Minister of Justice about understanding some of these clauses in the act, making reference to the amendment and how it applies to section 18. Mr. Chair, I have certainly heard the Minister of Justice make reference to the Leader of the Third Party on her knowledge and her education. He went on to say that this is – excuse the pun, Mr. Chair – a hard act to follow. He made reference to members opposite in the back who are not in Cabinet who would have trouble understanding this, Mr. Chair.

If it is that difficult for the people in the back of government to understand and for leaders of opposite parties to understand, I wonder how hard it is for the people of this Province to understand. They have issues with it. They would like to know what it is all about, Mr. Chair. As I have said on two occasions, I am not a lawyer and I have trouble going through some of this.

The impact of this bill on the people of this Province brings us to the forefront. Many people have major concerns with it. Mr. Chair, if it is that difficult for members opposite in the back row to understand, or anyone who has not been in Cabinet – and the minister has verified this in his remarks.

We talk about the changes since 2003, a full turnaround, Mr. Chair, from having full disclosure at that time, and a number of members of government were present back in 2003, to non-disclosure now. It certainly speaks volumes as to what is going to happen. The thing I would like to point out to government is that at some point in time there will be a change in the governing body, Mr. Chair, and certainly in Opposition we find it difficult to have to live with inaccessibility and non-transparency. I am sure at some point in time I would not wish this on the government when they become Opposition, Mr. Chair.

Thank you.

CHAIR: The hon. the Member for Bay of Islands.

MR. JOYCE: Thank you, Mr. Chair.

I will just stand and have another few minutes on this amendment. I assume then that we will vote for the amendment.

AN HON. MEMBER: (Inaudible) blueprints.

MR. JOYCE: Mr. Chair, they are asking me are they blueprints. No, they are the notes I am making on this legislation that is going to be so draconian that most people will not be able to get anything this size any more. That is what it is, Mr. Chair, so many notes on this legislation.

Mr. Chair, I just want to explain something very, very quick, and I heard it from the minister and I heard it from a few members and the few ministers who have spoke on this. It is very important and it is very telling. I just want the people out in the general public to know, on many occasions when we hear members speaking – and I heard the minister and I heard during the briefing that we had – we do it in Ontario or we are following Ontario, we are following British Columbia or we are doing it in Alberta, what we find here, what the general public needs to know, is that under this legislation and under this amendment, if you kept the act the way it is and you take out this from Ontario, here is what happened.

When they were developing this legislation, they went around the Province and they said: What kind of legislation do we need? After Mr. Cummings did his report, they said let's look around Canada. They went around Canada and went through all the information all around Canada, each province that had the strictest and most draconian legislation, Mr. Chair, on each one, and would pick that little piece, take it, put it in this part. They would go to another province, see some other part that is very draconian –

MR. KENNEDY: A point of order, Mr. Chair.

CHAIR: Order, please!

The Government House Leader, on a point of order.

MR. KENNEDY: (Inaudible) I am sitting here very patiently tonight listening to these amendments. It is my understanding, Mr. Chair, when you are speaking to the clauses it has to be strictly relevant to the clauses that are under debate. For three hours here now we have listened to most debate that has not been relevant at all. We are dealing, Mr. Chair, with the clause and the amendment and I would suggest that relevance has to be applied.

CHAIR: Order, please!

The point raised by the Government House Leader is indeed well taken. During the course of this debate the Chairs have attempted to allow a fair degree of latitude in allowing members to speak quite broadly on the Access to Information and Protection of Privacy Act; however, the Chair has acknowledged this evening that the debate is getting somewhat repetitive, and I would ask all members to –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

I would ask all hon. members to be sure to relate their comments to the clause and, in this case, the amendment that is actually what is being debated. So, with that in mind, I will once again recognize the Member for Bay of Islands.

MR. JOYCE: Thank you, Mr. Chair.

Once again, it is an opportunity for me – it is hard for me to be shut down, Mr. Chair. How I relate it to the amendment is that here we are coming in and saying if we keep the legislation as is, as to this amendment, under the Cabinet confidence, section 18, the amendment is almost keeping the legislation as is. If we kept the legislation as is, we would not have to go across, as I mentioned, to take all the draconian pieces from all across Canada, Mr. Chair – to take it and go for each little small bit that we want for each section of this act, and take the worst piece in Ontario, put it together, take another piece out in Alberta, put it in together, Mr. Chair. Then, the next thing you know we have this act in front of us.

So that is why this amendment is very important, Mr. Chair, because all those of pieces of legislation that we went around and grabbed it and hauled it in to try to form this legislation that we are voting on, Mr. Chair, this is why this amendment is saying that no, keep it as it is. It is very relevant, Mr. Chair, because this amendment, as it is, keeps the old act as is and it does not allow the changes to the act – it does not allow the changes to the act.

Mr. Chair, if someone can tell me how keeping the act as is right now and ensuring that we are not putting in some cone of silence, some draconian legislation, is not relevant in this House of Assembly, which I was elected to do, it is beyond me. It is absolutely beyond me, Mr. Chair, because with this amendment that we have here it definitely shows that we should keep the legislation as is, and not approve this legislation.

So, to me, it is very relevant, and I am sure you agree with me, Mr. Chair, that it is very much a part of this debate. Instead of just saying, okay, here is the legislation, we have a motion in front of us, Mr. Chair, what is it we can talk about on this motion. The motion is: Let's get the legislation back to the people. That is what I say. Give the legislation back so that people can have the access to information, so that people can stand up and be proud if they want some information, Mr. Chair. That is what this motion does, Mr. Chair.

I will read the motion, Mr. Chair, just in case there is a bit of a problem. "The head of a public body shall refuse the disclosure to an applicant information that would reveal the substance of deliberations…" –

MR. KENNEDY: A point of order, Mr. Chair.

CHAIR: Order, please!

The Government House Leader, rising on a point of order.

MR. KENNEDY: Thank you, Mr. Chair.

I refer to O'Brien and Bosc, House of Commons Procedure and Practice, under Amendments, page 763, "Proposed during debate on a clause, an amendment attempts to modify the text of the clause under consideration so that it will be more acceptable, or to propose an alternate text to the committee. An amendment must be relevant to the clause it is proposed to amend, and may therefore relate only to a single clause of the bill."

It goes on to talk, Mr. Chair, about the need for relevance here and how there has to be discussion about the amendments. It talks about admissibility and says on page 766, "The rules concerning the admissibility of amendments are essentially the same for a bill…". It goes on to talk, Mr. Chair, about relevance. "An amendment to a bill must be relevant in that it must always relate to the subject matter of the bill…". Mr. Chair, so does the speaking.

I am suggesting to you that for a member to get up and repeat fifteen times he thinks it is relevant, it is not relevant.

MR. JOYCE: To the point of order, Mr. Chair.

CHAIR: The hon. the Member for the Bay of Islands, responding to the point of order.

MR. JOYCE: Mr. Chair, I have to clarify to the minister and I am not sure where he is coming from. When I stand up and say here is an amendment of what I am going to be voting for and explain what the act is here in the legislation, how can someone tell me that it is not relevant that I am going to be speaking and why I am speaking for this motion, Mr. Chair. I am explaining and I was just reading this motion –

CHAIR: Order, please!

I ask the hon. member to conclude his remarks on the point of order.

MR. JOYCE: I will, Mr. Chair.

Mr. Chair, when you are standing up and explaining it and showing the difference of the two bills and the amendment to the bill, how can someone tell me that this is not part of our discussion here in this House, so the people in the general public out in Newfoundland and Labrador can see what I am not voting for and what I am voting for.

CHAIR: Order, please!

I have reviewed the section in O'Brien and Bosc, Chapter 16, that the Government House Leader –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

I have reviewed the section of O'Brien and Bosc that the Government House Leader is drawing our attention to. I would also refer members to Chapter 13 in the Rules of Order and Decorum in O'Brien and Bosc on page 624 where it notes, "Should an amendment be proposed to a motion, the rule of relevance requires that debate be limited to that amendment until it is disposed of by the House."

I ask members to be guided by that. I ask for members' co-operation in confining their comments to the actual amendment that we are in fact debating. The Chair will be doing his best to enforce that procedure in our House as the evening unfolds.

The hon. the Member for Bay of Islands.

MR. JOYCE: Thank you, Mr. Chair.

I am very pleased with your decision, Mr. Chair. As I said, showing the difference between the two, the amendment and the bill, it is a great victory for the people of Newfoundland and Labrador that we can show the difference, Mr. Chair.

I see my time is running out but, Mr. Chair, I probably will be back on this amendment again. I need to show the stark difference between this amendment and what is actually being proposed in clause 6.

Thank you, Mr. Chair.

CHAIR: The hon. the Member for St. John's East.

MR. MURPHY: Thank you, Mr. Chair.

I again rise to talk to the amendment. It is coming down to the wire with this one; it really is. We are not asking for much when it comes down to this amendment. We are talking about –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. MURPHY: – very little changes here when it comes to the actual before and what the government is proposing now. I do not see what the difficulty is, why government is having trouble dealing with the amendment. It is all fairly simple and it is about maintaining what we feel is a degree of openness that the taxpayers and the people of the Province of Newfoundland and Labrador deserve.

At the same time, we can understand why government has to come out with its reasoning behind the privacy of some information, that sort of thing. We understand, the people of Newfoundland and Labrador can even understand, some reasons why government is coming out with their beliefs on privacy and that sort of thing.

I think that there is probably a degree of levity here that the people of Newfoundland and Labrador believe that government should have when it comes to something like this. I think that is probably being brought forth in this amendment. I think what the amendment is saying is that status quo is not that bad. We do not have to close up the doors. We do not have to put the stamp of secrecy on all of these things that touch Cabinet's fingers or touch the thoughts of Cabinet. Because that is what they are doing; they are closing the doors to anything that would be available to the taxpayer or the person who is seeking knowledge out there.

AN HON. MEMBER: That is not true.

MR. MURPHY: It is true.

I say, Mr. Chair, as regards to the stuff that the people of Newfoundland and Labrador would want and I will go over it again: discussion papers, policy analysis, and again I will refer back to Muskrat Falls. The Muskrat Falls deal that government is supposed to be negotiating for on behalf of the people of Newfoundland and Labrador. The people of Newfoundland and Labrador, as much information that they would want because it is their money that is being sunk into the deal, Mr. Chair, cannot get their hands on a policy analysis because that would be considered to be Cabinet material. That is what we are talking about when it comes to this.

CHAIR: Order, please!

I ask hon. members to be seated.

I would remind the hon. member that he does need to relate his comments to the amendment to clause 6; however, I would remind all hon. members of this House that if they wish for the Chair to be able to make a ruling on relevance, the Chair has to be able to hear the comments of the member who has the floor. I ask members for their co-operation.

The hon. the Member for St. John's East.

MR. MURPHY: Thank you, Mr. Chair.

Again, for some, it may not seem like it is relevant, but I feel that it is and that might be my interpretation of it. Maybe that interpretation could be wrong, or maybe it is not. That would be up to the people of Newfoundland and Labrador to decide as well because I think their opinion matters on it.

Again, when I come down to the simple fact about the amendment – policy considerations, or draft legislation or regulations submitted or prepared for submission to the Cabinet. It is all fairly simply and straightforward to leave things as they are. Subsection (1) does not apply to information in a record that has been in existence for fifteen years or more. Government wants to put twenty years on it. Why? Why keep it for so long? Can't we make it a little bit more relevant to the people than that? Can we make this information available to the people sooner rather than later? What is the importance behind that? Again, I can understand where there is a timeline there when it comes to privacy and everything, but again, Mr. Chair, I just have to reiterate the thought.

I thank you for your time, Mr. Chair.

CHAIR: The hon. the Opposition House Leader.

I remind the speaker, before she begins her remarks, that we are debating the amendment to clause 6 that has been presented by the Leader of the Third Party.

MS JONES: Yes, Mr. Chair, and I will try to conclude my comments –

CHAIR: The hon. the Opposition House Leader.

MS JONES: Thank you, Mr. Chair.

Mr. Chair, I was speaking to the bill the last time that I had an opportunity to rise in the House and I was responding to the comment that the minister had made in reply to a question that I had earlier in the evening. Mr. Chair, I was talking about the implications of removing substance of deliberations from the act, and that is the problem here. That is the crux of the entire problem that we are dealing with under this particular bill. It is about moving substance of deliberations of Cabinet.

Mr. Chair, when Mr. Cummings did his review, he specifically recommended that it should be left in the act, although the Executive Council, the Cabinet, the government, had went before Mr. Cummings as part of this review and said look, we would like to have this removed. We do not want to have that there. We find that this is restrictive. Mr. Cummings, in reviewing the entire legislation and taking into account what people were saying, felt that no, we have to leave this there. The reason he knew that it had to be left there is because removing it would mean that there would leave absolutely no discretion in terms of what would be released.

In fact, he knew, Mr. Chair, if he removed this from the bill, the public would not be able to access the information that they required; therefore, he recommended against it. Government, Mr. Chair, from the very beginning, had went before the review and said it should be removed. At the end of the day, they made the decision to remove it. That was the reason, when Bill 29 came into the House, and we looked at clause 6, which pertained to section 18 of the act, we recognized immediately that it had been removed and we knew immediately, Mr. Chair, that this bill was going to disallow a lot of information that we would have originally been able to obtain, that the public were able to obtain, that the media were able to obtain. In fact, Mr. Chair, that is the real crux of why we are here tonight. That is the real crux of why we are doing the filibustering that we are doing tonight. It all falls – not all of it, but a great deal of it falls within the wording that we will now see in section 18 of the act, along with a whole bunch of other things like restricting the Auditor General and so on, which we will get into in other sections of the act as we look at this, Mr. Chair.

Under this particular section, the Government House Leader rose, the Minister of Finance rose, and they talked about fear. They talked about the reason this was removed from the act is because they did not want to operate with fear. In fact, the Minister of Finance read and quoted from sections in the particular review and the briefing that was provided, Mr. Chair, in which he talked about that.

When the Government House Leader spoke, he said: We want to be able to operate without fear. That was his quote, and I wrote it down. He said: We want to be able to operate without fear. That is why we are removing this clause that has to deal with substance of deliberations, because we want to be able to operate without fear.

Mr. Chair, I have to ask the Government House Leader: What is the fear that he refers to? Who do you have to be afraid of? Who does the Cabinet have to be afraid of? You represent the best interests of the public. I wrote it down, verbatim, Mr. Chair. When the minister was up, I wrote it down, verbatim. He said two things in his response. He said: We need to be able to operate without fear. He said: We need to ensure that it does not come back to haunt them. That is what he said: does not come back to haunt them.

Mr. Chair, when he spoke to the amendment put forward, these are the two things that he said – and I think we need to have this clarified, because who does the Cabinet have to fear? They are representing the best interests of the people of the Province. Mr. Chair, they are representing the best interests of the people of the Province.

Mr. Chair, in my wildest dreams, I cannot imagine what the Government House Leader would be afraid of anyway. In my wildest dreams, I would not be able to pick one thing that he would have any fear –

MR. KENNEDY: A point of order.

CHAIR: Order, please!

The hon. the Government House Leader, on a point of order.

MR. KENNEDY: (Inaudible) relevance, Mr. Chair.

CHAIR: I would remind the hon. member to relate her comments to the amendment to section 18 related to Cabinet confidences. We are debating the amendment that is proposed to clause 6 and I would ask her to relate her comments as much as possible to the amendment.

MS JONES: Thank you, Mr. Chair.

I would be happy to do that. Hansard will show that when the Government House Leader spoke to the amendment that I am speaking to, he made two points. One of the points is that we need to be able to operate without fear. That was one of the things that he said. The other thing that he said, Mr. Chair, is he did not want this to come back to haunt them. Those are the two things I am responding to.

Mr. Chair, whether it is relevant or not, the Government House Leader is the person who put it on the floor. He is the person who put it on the floor in responding to the amendment that was put forward by the Leader of the Third Party.

Mr. Chair, we need to ask those questions because in the review that was done on page 38, this is what the Executive Council said in relation to the same thing, "The submission of Executive Council presents the position that strong protection from disclosure is needed for cabinet confidences. This position is based on the well known and longstanding principle that the ability of Ministers to discuss issues frankly and without fear of disclosure is a vital part of our democratic tradition. Executive Council expressed this point of view in their submission…." It goes on to talk about how they expressed it.

MR. KENNEDY: (inaudible) my quote.

CHAIR: Order, please!

MS JONES: No, when you stood in your place, the Government House Leader, the Minister of Finance, Mr. Chair, was the one who quoted a number of things from this, whether it was that one or not. When the Government House Leader stood he said: We need to be able to operate without fear. This is the exact same thing that the Executive Council said in their submission to Mr. Cummings, Mr. Chair. The Executive Council is who? They are the Cabinet.

So, the Cabinet obviously feels that they have to be able to operate without fear in making decisions, but they are making these decisions in the best interests of the public – they are making these decisions in the best interest of the public. They are the ambassadors, Mr. Chair, of the people and the people's issues. They lead the decisions that are being made; they justify those decisions. What is it they have to fear? What is it they have to hide? Why is it that the substance of deliberations of Cabinet has to be removed from the bill? Why is that, Mr. Chair? We have absolutely no idea, but we do know that it is a concern, it was raised by the Cabinet, the Executive Council submitted it to Mr. Cummings when they provided their brief, and tonight, when the Government House Leader spoke, he certainly alluded to the same. We would just like to get some clarification, Mr. Chair, why removing this from the act is going to cause the Cabinet to have any fear in the work that they do.

CHAIR: The hon. the Member for The Straits – White Bay North.

MR. MITCHELMORE: Thank you, Mr. Chair.

I am quite pleased to speak to the amendment of Bill 29, An Act to Amend the Access to Information and Protection of Privacy Act here tonight, and the clause pertaining to Cabinet confidences. Certainly, we have seen some sweeping proposed changes from the original act to what was put forward. After the review, the proposed amount is that section 18 would expand, it would broaden the role of what classifies –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. MITCHELMORE: – as a Cabinet document, whether it would be an official, a discontinued or supporting documentation, as well as advice, draft legislation, memos. So, as it broadens the interpretation of what qualifies as a Cabinet confidence; therefore, it was seen the need –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. MITCHELMORE: – to put forward an amendment to this clause under Cabinet confidences, because Cabinet confidence is important. That is why under section 18.(1), under the amendment that is put forward, "The head of a public body shall refuse to disclose to an applicant information that would reveal the substance of deliberations of Cabinet, including advice, recommendations, policy considerations or draft legislation or regulations submitted or prepared for submission to the Cabinet." This puts forward information that would classify and clearly states, rather than expanding the complete list and restricting different roles. It states under subsection (2) there are some areas where this would not apply, such as information in a record that has been in existence for fifteen years or more.

After the certain passage of time, information should be made available to the public if it is still acceptable and not sensitive. That can be reviewed through your independent body to go through that. If you have information, decisions that are made, and can be retained indefinitely, this certainly is some additional question as to if there is something more. There should be an independent body, somebody who can actually scrutinize this information – information in record of a decision made by the Cabinet on an appeal under the act. There are some instances where information –

MR. KENNEDY: A point of order, Mr. Chair

CHAIR: Order, please!

The hon. the Government House Leader, rising on a point of order.

MR. KENNEDY: In O'Brien and Bosc, on page 622, we are talking now about repetition. Mr. Chair, it talks about the prohibition of repetition, "Although the principle is clear and sensible, it has not always been easy to apply…. The purpose of this practice is to safeguard the right of the House to reach a decision. The freedom of debate enjoyed by Members does not extend to the repetition of arguments that have already been heard."

Mr. Chair, we have been here now three hours listening to the same thing over and over and over. It is simply repetition, Mr. Chair. I would suggest we are not using our time – they can filibuster all they like, but there still has to be the relevance principle and the rule against repetition.

CHAIR: Order, please!

The Chair would like to comment on the point of order. The Government House Leader is referring to Chapter 13 in the Rules of Order and Decorum in O'Brien and Bosc, "Although the principle" – related to repetition – "is clear and sensible, it has not always been easy to apply and the Speaker" – or Chair – "enjoys considerable discretion in this regard."

The Chair would observe, having been in the Chair for multiple consecutive hours now, there has been a considerable amount of repetition in the debate this evening. While it is important that all members of the House have ample opportunity to participate in this important debate, it is also the responsibility of members to abide by the rules of order and the code of conduct that is generally accepted in this Legislature.

I would ask all hon. members to limit their speeches to points that have not already been made. I am even noticing members rise and make the same statements repeatedly in the course of a ten-minute period.

I ask for members; co-operation. Obviously, we will take whatever time it –

MS JONES: (Inaudible).

CHAIR: Order, please!

It sounds like the hon. Opposition House Leader is challenging the ruling that I am in the process of making.

MS JONES: (Inaudible).

CHAIR: Do you care to respond to the point of order?

If I can continue –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

I would ask all hon. members, as we proceed with this debate, to limit their speeches to points that have not already been made. We will be here for as long as is necessary. All members will have ample opportunity to participate in the debate, but it is disrespectful of House practices to continue to repeat the same points over and over again in a ten-minute internal.

I would ask members for their co-operation.

Following that ruling, I would once again recognize the hon. the Member for The Straits – White Bay North.

MR. MITCHELMORE: Thank you, Mr. Chair.

With that, I guess going back to clause 6, it is highly important with all of the new proposed additions that we look at clarifying and tidying up some pieces here. Because if you look at what is being added, if this amendment is not put forward, then the commissioner cannot review official Cabinet record documentation because it would have been certified as official. This seems quite clearly to be unprecedented. There has to be a means in which some independent body can review documentation if something is under a Cabinet confidence, and no better office to do that than the Office of the Information and Privacy Commissioner. Clearly, this amendment states that there are criteria in which the information would be held back, but it does not apply if it has been in existence for over fifteen years. That seems to be quite clear.

Mr. Chair, I will have an opportunity to speak again on this.

Thank you.

CHAIR: The hon. the Member for Bay of Islands.

MR. JOYCE: Thank you, Mr. Chair.

I rise again, Mr. Chair, to have a few words on this amendment. As usual, every time you read it and every time you hear the information, you always find something new to speak about through the amendment and through the legislation.

Mr. Chair, I just want to pick up on something that the Minister of Natural Resources said earlier. It comes back to haunt them, Mr. Chair, in the Cabinet decision, on some things he said here tonight. I just want to refer back, Mr. Chair, to submissions that were made to Mr. Cummings. This is very telling, Mr. Chair, on that statement tonight on Cabinet –

AN HON. MEMBER: (Inaudible).

MR. JOYCE: Oh yes, I went and checked Hansard. Oh yes, I checked Hansard.

Mr. Chair, I just want to come back and read the submission that was made to Mr. Cummings. It was made by the Executive Council. I will just explain how and why this – I could see why now this portion of the act, by comments that were made by the minister, and I state again: come back to haunt them, decisions made by Cabinet.

Mr. Chair, I know every decision that Cabinet makes can affect a lot of people and I know that there are a lot of decisions made throughout the Province that is going to affect a lot of towns and communities. If you make the right decision, with the proper information in front of you, with the best information to you, I cannot see why it is going to haunt you, Mr. Chair. I just cannot see why it is going to haunt you. It just amazes me why you would think something like that.

Mr. Chair, I just want to read into the record – and I just want the general public to know, with comments like that, then we see the legislation, I just want to read what the recommendation was. It is very telling, very relevant to this act, and very relevant to the amendment that was put in, Mr. Chair, why it should remain the same, and why I feel this act has probably put out a few fears and some people are in fear, for whatever reason, scared they might get haunted, for whatever reason, when they make a decision in Cabinet. I read it – and this is coming from Mr. Cummings himself, Mr. Chair, from his report.

If they want to have a little argument outside, may I ask that they go outside? I am trying to read something very important here, Mr. Chair.

CHAIR: Order, please!

I ask members for their co-operation.

MR. JOYCE: Thank you, Mr. Chair.

CHAIR: I also ask the hon. member to ensure that he confines his comments to the amendment that we are, in fact, debating.

MR. JOYCE: It is, Mr. Chair. It is why I am supporting this amendment and why it should stay there. Mr. Chair, it is very relevant when you talk about, and I quote again: come back to haunt them in Cabinet. "I received three submissions on section 18 from the Executive Council, the Commissioner's Office and the Official Opposition. The submission of Executive Council presents the position that strong protection from disclosure is needed for cabinet confidences. This position is based on the well known and longstanding principle that the ability of Ministers to discuss issues frankly without fear of disclosure is a vital part of our democratic tradition. Executive Council expressed this point of view in their submission as follows:

"The confidentiality of what is said in the Cabinet room and of documents and papers prepared for Cabinet discussions is long-standing principle of the British democratic tradition. Cabinet ministers charged with the responsibility of making government decisions must be free to discuss all aspects of the issues and to express all manner of views in complete confidence."

Here is the part, Mr. Chair, I think reflects what is in this bill and why I think we need this amendment. "Effective government requires that Cabinet members speak freely in the Cabinet room without fear of stating unpopular positions or making comments that might be considered to be politically incorrect if made public. Similarly, Cabinet documents must be protected to avoid creating the type of ill-informed public or political criticism which could hamper the ability of government to function effectively and efficiently."

Mr. Chair, with this submission from the Executive Council, now I can see why the act was changed. It was changed to be part of that. I can see why they are putting such a strict review on all the information that is going into Cabinet. You can see it very well. Then, when you have the amendment, which says I move that the words after be deleted – it is almost like keeping the bill the way it was prior, Mr. Chair.

With that, I can see why we need to support the amendment because the amendment brings it back to the common person. I do not think any decision of any Cabinet minister over there, that they should be haunted. Come back to haunt them, Mr. Chair. I mean, sometimes we make a decision with the best information that we have in front of us. Sometimes it may not be the best decision because things may not work out sometimes as you expect, but then again if you made the decision in the best interests of the people of Newfoundland and Labrador, if you made the decision with the best information available, and if you made the decision for the right reasons, I think you can go out and justify that decision. The end result may be not as good as you want, but at least you can stand up and justify a decision.

When you hear words like that, Mr. Chair, and you see legislation being brought in to reflect the words you know that what is happening here now, there is more of a secrecy going around the whole Cabinet, Mr. Chair. This is one of the concerns that I have. This is why I support the amendment and this is why I am going to be voting for the amendment, Mr. Chair. This is why I think we need not to approve this here and support the amendment.

Thank you, Mr. Chair.

MS JONES: A point of order, Mr. Chair.

CHAIR: Order, please!

The hon. the Opposition House Leader, on a point of order.

MS JONES: Thank you, Mr. Chair.

When I was making my comments last time when I was on my feet in the House of Assembly, I know the Government House Leader was shouting something across the House to me. I could hear it, but could not hear it very well. I have since learned, Mr. Chair, that he was actually saying, when I was referring to my comments on the bill that he had made – he had made comments in response to the motion that we have on the Table and the amendment, and he said: We need to be able to operate without fear.

I was questioning the minister on that. I asked him why they felt that they needed to be able to operate without fear. He pointed at me, Mr. Chair, and said: Because of people like you who lie and cheat. The minister knows that those words are unparliamentary and unacceptable in this House. I ask that they be withdrawn and that he apologize.

CHAIR: Does the hon. the Government House Leader wish to respond to the point of order?

MR. KENNEDY: Yes, Mr. Chair.

What I did say – and I did not point – was because –

CHAIR: The hon. the Government House Leader, go ahead.

MR. KENNEDY: Yes, thank you, Mr. Chair.

What I did say was – and I do not remember pointing. She said: Why would you be in fear? I said: Because of people who lie and cheat. If that was in any way a reflection on the member opposite, I certainly apologize, Mr. Chair.

MS JONES: Like you.

MR. KENNEDY: No, I did not. I did not say that. We will check Hansard. That is not what I said.

CHAIR: Order, please!

I have listened to the –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

I ask for the co-operation of all members, including those who have spoken to the point of order.

I would like to briefly respond. The Government House Leader has apologized if any offence was taken. I would also remind all hon. members, and this is –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

The Government House Leader has withdrawn and apologized, but further to that I would like to provide a reminder to all hon. members of this House. Unparliamentary language, at any point in time, is not acceptable, whether you are standing on your feet and you have been recognized or whether you are shouting from your chair.

I ask all hon. members of this House to always keep that in mind. Unparliamentary language, if it is audible and the Chair is aware of such language, the Chair has an obligation to bring that to the attention of the member and to this House.

I ask all hon. members to conduct themselves accordingly. We will now resume debate on the amendment and I will recognize the next speaker.

The hon. the Opposition House Leader.

SOME HON. MEMBERS: Hear, hear!

MS JONES: Thank you, Mr. Chair.

I am going to try to conclude my comments with regard to the amendment. The amendment, of course, as we have said earlier this evening is based on the fact that under section 18.(1) of the act the government has removed certain clauses that we felt were necessary in order to be able to obtain further information. We feel the amendment that has been put forward will allow for more accessibility of information to be distributed to the members of the public and others who seek information, Mr. Chair, from the government and whether they are seeking that information on any particular topic, government department or decision that is being made.

While we agree with the fact, Mr. Chair, that Cabinet documents should be or could be restricted in order to protect some privacy of government and of Cabinet – although it was the members on the very opposite side, in 2003, who said they would make all Cabinet documents available to the public, but obviously, that was before they ever sat in Cabinet and realized what the implications of that would be.

We have no problem, Mr. Chair, with them backtracking on that, changing their mind now and saying that those documents should be protected, but what we do have a problem with is the fact that they have now amended the legislation to ensure that every single thing around those documents are also protected. Whether that be briefing notes, whether it be other material that is used in the deliberations and the making of those decisions, all of those things now, Mr. Chair, if Cabinet feels that it is in some way associated with the decision that they have made, then they can refuse now to release that information, which will make it very difficult to access any kind of information.

For example, Mr. Chair, I have an FOI request here, one that was actually submitted to the Department of Health and to the Minister of Health. At the time, the current Government House Leader was the Minister of Health when I submitted it. It had to do with briefing notes and documents that would be provided to the Health Minister. We had requested that, Mr. Chair.

At this time, if you were to look at section 18.(1) and how the bill is now being amended, how much of that information could be left out, could be no longer able to be provided? When you look at things like briefing notes and documents that would have been prepared, now under the current act, the current amendments that the government is bringing in under this section, they could now restrict any and all of that information by saying that it was used in some way, Mr. Chair, in their decision making with regard to a Cabinet document. That is for a number of reasons. Some of those reasons we will get into under other amendments that we are going to propose to this particular section of the act.

Mr. Chair, just to sum up, that is the whole crux of why this amendment is before the floor right now, to amend what the government is proposing. It will completely restrict access to information requests and a lot of the details that we would have normally accessed under this bill, Mr. Chair. That is the objective of government.

They will stand in their place and they will talk about it is because of all the work of the bureaucracy and the cost of money and all of those kinds of things. Mr. Chair, that is not the case at all. For example, let me give you this example of a request that I made under the FOI which would have come directly under section 18, which is clause 6 of this bill. Mr. Chair, we asked for, under the access to information act, correspondence, briefing notes, fact sheets, backgrounders, meeting minutes, reports, e-mails, studies, information material, and other documentation related to the splitting of the environmental access of the Lower Churchill Project which would be project splitting. We made that request to the Department of Environment and Conservation.

Now, Mr. Chair, if you were to have taken that request and applied it under the old section 18, we would have been granted certain information; but, unlike what the Minister of Service Newfoundland and Labrador said the other day it would not have been free and, in fact, it would have been far from free. Do you know how much money they requested from us to give us this information? Mr. Chair, $2,265. Now, can you imagine that?

AN HON. MEMBER: How much?

MS JONES: It was $2,265.

With the way the act is now amended, they would not have to give us any of this information. So it would not even be a question now of whether we can afford the $2,000 price tag to purchase the information, we would not be able to get it anyway, Mr. Chair.

That is what I am talking about because although the information that we asked for, through the Department of Environment and Conservation, had to do with the environmental assessment of the Lower Churchill Project and project splitting, the government now can come back and say, we cannot release this because of the fact that it is affiliated with the decisions of Cabinet; therefore, they would not be able to release any of that information.

Mr. Chair, before, we could have at least gotten it. We would have had to pay $2,265 to get it on our little budget in the Opposition Office – that was absolutely impossible, as you know – but the price tag was high enough that we would not be able to get it. Now, under the new amendments, we still will not be able to get it because now there will be no consideration for substance of deliberations of Cabinet, of which these documents would have been used in the Cabinet making the decision on whether they would have had project splitting under the environmental assessment for the Lower Churchill Project or not, so it all be restricted. Therefore, Mr. Chair, the ability to access information is being tightened, the door is being closed, and that is the reason we are proposing this amendment because we feel that it is wrong and that we should be able to access information like this.

CHAIR (Forsey): The Chair recognizes the Member for Bay of Islands.

MR. JOYCE: Thank you, Mr. Chair.

I just want to stand for a few minutes. I just want to make an apology. It was brought to my attention earlier, Mr. Chair, when I was speaking about some members who were here in 2003 I mentioned the Member for Port au Port. I just want to make a point that the member who was here for Port au Port was not the member actually in the House at the time; it was Jim Hodder. To the current member, I just want to say that I am sorry. I got the list and he was not the member at the time. I just want to make that clarification and not to let him have that around his neck, thinking I was saying about him, as a member, who stood up back in 2003 and was part of the government. He was not. I just want to clarify that, Mr. Chair, to ensure that as usual I am pretty upfront, honest, and on the record.

Now, Mr. Chair, I am going to speak about the substance of deliberations of Cabinet. I am going to speak about that for a few minutes now. I am just going to try to explain to the best of my ability to the general public, Mr. Chair, what I feel this is and how this is.

What this is, Mr. Chair, is that back when Cabinet was making a deliberation, document, or something for the Cabinet, there was a certain number of documents – just say there were ten documents there, Mr. Chair. What could happen then, Mr. Chair, is the commissioner could come in, look at the ten documents, and he can go through each document and he can say: Well, this one here is part of the Cabinet proposal. That is going to be there on the Cabinet. He can look at the next one and say: Yes, this one. He can go down to the next one: Yes, okay. He can go down to three or four and say: Oh no, this one is not, so we can release this one and we can take this one out. We need to keep this one in. Those are ten documents. Eight or ten may be part of the Cabinet preparation and two or three may not. So he can say: Okay, we are going to release these two or three because they are not actually part of the Cabinet deliberation.

What is after happening now – and I know the minister tried to clarify it earlier – is that John Cummings recommended to take out the substance of deliberations of Cabinet. He recommended taking it out, Mr. Chair. As we have found out now, and also we had it through the briefing notes and we had it through other different ways, in actual fact, it was the government that took it out. Now, the co-ordinator is not even allowed in to look at the Cabinet documents. That is the big change here, Mr. Chair. He is not allowed in to look at the Cabinet documents. Where before, he could go in, go through each one, and say which one should be kept in and which one should be taken out. Mr. Chair, he is out of it now.

Make no mistake to the people of Newfoundland and Labrador, who took him out, it was this government – it was this government, Mr. Chair.

SOME HON. MEMBERS: Oh, oh!

MR. JOYCE: I ask for protection, Mr. Chair.

It was this government that took him out, Mr. Chair, which is very, very important. What they did now, they took the commissioner who used to be able to go in, look at the information, take out what he thought was not needed for Cabinet deliberations, and he would be sending it out. Now, with him taken out of it and the minister admitting that no, it was the government, not John Cummings, that made the recommendation – it was government who did this – they put in a series now of other restrictions of what can be included in the Cabinet documentation.

They were going on about Cabinet deliberations. Mr. Chair, "‘cabinet record' means (i) advice, recommendations or policy considerations submitted or prepared for submission to Cabinet, (ii) draft legislation or regulations submitted or prepared for submission to the Cabinet, (iii) a memorandum, the purpose of which is to present proposals or recommendations to Cabinet". It goes on, Mr. Chair. They have broadened the list, Mr. Chair. This is why this amendment is so important. They broadened the list. I will not go through all of the list, because most people can see it on-line. If anybody wants it they can see it, Mr. Chair.

Mr. Chair, here is the part, "The head of a public body shall refuse to disclose to an applicant a Cabinet record, including (a) an official Cabinet record; (b) a discontinued Cabinet record; and (c) a supporting Cabinet record.

Mr. Chair, that is opening up a large gamut, which information that now, once it goes up to Cabinet, the commissioner does not have the opportunity to walk into Cabinet, have a view of the documents, line them up and so no, no, this one here should not be included in Cabinet documents and present it out to the general public. Not only is this person, Mr. Chair, not allowed in the room, not allowed in to even look at the documents, the government took over and they expanded the list in the legislation.

Not only are the people of Newfoundland and Labrador saying that the person who is supposed to be looking to see what is available, what we can get, and what we can look at, not only is he now saying you are not allowed in, you are barred from the doors, you are going to be locked out, we are saying now we are going to give you a double whammy. We are going to keep him out and we are going to take all of this information now and we are going to expand it right on down, expand it on down, Mr. Chair. We are asked, Mr. Chair, on several occasions and in the briefing – and I say to the minister there is a great briefing by the way.

SOME HON. MEMBERS: Oh, oh!

CHAIR (Verge): Order, please!

MR. JOYCE: Mr. Chair, you can pass on to the minister that the officials who gave us the briefing, it was a great briefing on this piece of information. I just want to pass that on. You can pass that on to the officials, Mr. Minister.

The briefing, Mr. Chair, included – when we asked this here, and this was an issue that we asked, we asked what type of document. We were told anything to be considered for Cabinet. That is what we were told. We started going on, any document that may be sent up to the minister or may be passed on to the minister, there was no defined piece of legislation or information that can say here is what can be or here is what cannot be. Now, not only can't you say to us here is what can be or here is what cannot be, the member, the person who used to go in and make that decision, is not allowed in any more.

That is very important. That is very, very important. I have to say, Mr. Chair, that is very important because now the little watchdog that we had to be able to go in and let us know what we could get and the freedom of information that we could make a request, we had confidence in this person that he could go in and make this decision, but right now, Mr. Chair, the person cannot go in there.

Mr. Chair, that is why I am going to be voting for this amendment, this proposed amendment, because I really feel this legislation that is put forth is in such a way that it will take away a lot of rights from people in Newfoundland and Labrador. It will become more restrictive, very restrictive to the people of Newfoundland and Labrador, and I feel that most of us as parliamentarians should give back rights to the people.

I understand that we need a certain amount of legislation for protection for Cabinet confidentiality; I understand all of that. I understand the personal information and privacy act. We have all been there. We all understand all of that, but I feel that sometimes we go a bit too far and I feel with this legislation, not only have we gone too far in broadening the scope, we also took the bad step of saying you cannot go in now and look at what documentation is there and see what we can give to the public.

Mr. Chair, in closing, I will just say I feel we are getting a double whammy out of this piece of legislation. I can assure you that the people who are going to lose by this are the people of Newfoundland and Labrador.

Thank you, Mr. Chair.

CHAIR: Order, please!

Are there any other speakers to the amendment?

The Member for The Straits – White Bay North.

MR. MITCHELMORE: Thank you, Mr. Chair.

I once again speak to the amendment put forward by the Leader of the NDP, the Member for Signal Hill – Quidi Vidi. The amendment to the act here is a means to realize that the Cabinet confidence needs to be protected – there is a mechanism for that – but as the original recommendations are put forward in this act, it is just extending that Cabinet secrecy there and reclassifying a lot information, and the availability of how information can be made available.

With the amendment that is put forward, it is stating, clearly, information that can be refused. As the original act states, that is good and we need to maintain that integrity, but if we are looking at adding all of these other mechanisms in the proposed amendments put forward by the government, it is really going to put forward a lot of information that not necessarily would need to be kept away from the general public.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. MITCHELMORE: Thank you, Mr. Chair.

This amendment is being put forward to protect the ability of the public to be able to access information. We need to make sure that information of documents and briefings that are prepared by Cabinet – some of this information that would never even get considered by Cabinet now is going to have that ability to be classified so. This will not be able to be reviewed in any shape or form by the Auditor General or by the Office of the Information and Privacy Commissioner. Their ability will be greatly reduced. This is why the clause, the amendment is put forward, and also the importance of making sure that information that can be made available after a period of time, that passage does.

I just cannot reiterate enough in terms of this piece under Cabinet confidence – we all recognize the importance of information that Cabinet shares, and some of it is highly privileged, but what is being put forward, we need to have clarity and we need to make sure that there is not too much authority or an ability to restrict information. That seems to be what the original is and what our amendment is. It is about keeping more consistency and ability to have that information that is acceptable, made available, while still protecting the integrity of the Cabinet and their decisions.

I think this is something that is highly relevant and we should look at making that amendment as we go forward. I will have an opportunity once again to speak to the original clauses, which I have a lot more information on and some concerns with, if this amendment is defeated.

I am hoping that people will vote for the amendment here today and I certainly thank you for your time there, Mr. Chair.

CHAIR: Order, please!

We are voting on an amendment to clause 6, as proposed by the Leader of the Third Party.

Is it the pleasure of the Committee to adopt the amendment?

All those in favour, ‘aye'.

SOME HON. MEMBERS: Aye.

CHAIR: All those against, ‘nay'.

SOME HON. MEMBERS: Nay.

CHAIR: The amendment is defeated.

On motion, amendment defeated.

CHAIR: We will now speak to clause 6.

The hon. the Opposition House Leader.

MS JONES: Thank you, Mr. Chair.

I am going to speak to clause 6 because there have been a number of things that have been looked at under this particular clause of the bill. This is a very important clause of the bill – not that all of the rest of them are not important because they are and they all speak to different things, but this one is critically important and what is really important to note is where these substantial changes are coming from in this particular bill.

For example, Mr. Chair, under clause 6, which is section 18 of the original act, I want to just read for you because under section 18 of the original act this is what it had said, "The head of a public body shall refuse to disclose to an applicant information that would reveal the substance of deliberations of Cabinet, including advice, recommendations, policy considerations or draft legislation or regulations submitted or prepared for submission to the Cabinet."

That was what the old act said. When we did our presentation to the actual commission, we said: Listen, this here is too broad. We are having trouble trying to access the information that we need. Notwithstanding, Mr. Chair, when we were able to access it, they would charge us a huge bill, as the one I outlined just now, well over $2,000 to get that one piece of information, but if not, we would be restricted.

So, what we did is we went to Mr. Cummings and we explained this to him and we made recommendations to him in where the changed needs to be made, but so did the government, Mr. Chair. The recommendations that they made were very different than the ones that we made. Their recommendations were how do we make this more difficult to get information out to the public, because we do not want to make decisions in fear of having to disclose information. Yes, Mr. Chair – imagine.

Anyway, that was the context under which they were making their submission. What we ended up with at the end of the day was a new section 18. So, all of the old section was now taken out, it is gone, it is cut, cut out, deleted altogether from the bill and now is replaced by this particular section. This particular section says, first of all, it defines what a Cabinet record is, that is the first thing that is does. What is a Cabinet record, Mr Chair? Well, a Cabinet record is any advice, recommendations or policy considerations that would have been submitted to the Cabinet, or even if they were prepared to be submitted to the Cabinet. It did not actually mean if they gave it to him or not. That was irrelevant. What it meant, Mr. Chair, is if they were even prepared. If, for example, a department prepared some notes that might have had to go to Cabinet, to advise the Cabinet on certain recommendations, but at the end of the day never even got sent, then now that would make up what is called a Cabinet record.

In addition to that, they say draft legislation. Now, draft legislation or regulations submitted or prepared for submission to the Cabinet; this would be off limits. For example, this bill that we are doing now, Bill 29, maybe they had a draft copy of this bill that they were looking at. They would say: Well, let us bring it up to the Cabinet and have a look at it. Maybe it was the animal protection bill, where they had to go and make a whole list of regulations after that went with the bill. Maybe they were going to send those regulations up to Cabinet, Mr. Chair, to have a look at. Anything like that, that would have been prepared under this definition of Cabinet record, would now be off limits, Mr. Chair.

It also speaks to what is called a memorandum, the purpose of which is to present proposals or recommendations to the Cabinet. Say, for example, the Coast of Bays Economic Development Board decided that we are going to submit a proposal to the Cabinet because we just had our funding cut under ACOA and 70 per cent of our funding is now gone. The Province only pays 25 per cent and the feds paid 75 per cent. We know what is going on in Ottawa, Mr. Chair. Everything is getting the guts cut right out of it, including the economic development boards. So the Coast of Bays Economic Development Board, Mr. Chair, all of sudden –

MR. GRANTER: (Inaudible) relevant.

MS JONES: This is relevant, Mr. Chair. If the Member for Humber West was actually paying attention, he would know it is relevant. It is dealing with the purpose of which is to present proposals or recommendations to Cabinet.

Mr. Chair, if, for example, because the Coast of Bays had their federal government cut by the Harper government and they wanted to present a proposal to the Province to increase their 25 per cent funding, then they would bring forward a proposal to the government. If that proposal in any way entered into the Cabinet making a decision to give more monies to economic development boards in the Province, or restructuring that, and we applied to get a copy of that proposal, Mr. Chair, we would be restricted because now those things would fall under what is called the Cabinet record.

Mr. Chair, in addition to that, we see another broader term being looked at. The broader term – and this actually, to the credit of the government, was recommended by Mr. Cummings in his report. What he actually recommended is that the government would look at accepting a lot of the definition that was contained under the management act. In fact, Mr. Chair, in doing so, they would have broadened the definition. Therefore, that is why we see included in this section as well things that relate to discussion papers, policy analysis, proposals, advice, briefing material, and all of those kind of things.

What they did do is omit the very clause that would allow you to have access to that information. That is the reason, Mr. Chair, that we are proposing the following amendment under clause 6, section 18.(2) in which would now say: Clause 6 of the Bill is amended by deleting the proposed subsection 18(2) and substituting the following:

"The head of a public body shall refuse to disclose to an applicant a Cabinet record which would reveal the substance of the deliberations of Cabinet, including (a) an official Cabinet record" – as I just defined under the rules – " (b) a discontinued Cabinet record; and (c) a supporting Cabinet record."

Mr. Chair, I table those amendments for the Chair of the Committee to have a review of those amendments to see if they are indeed in order under this section of the bill.

Basically, what this would do is amend the bill to return to the substance of deliberations test under this particular act, which we see as a crucial piece, by placing it in the clause; however, it preserves everything else that is in this particular bill –

CHAIR: Order, please!

The member has proposed an amendment. We will consider if the amendment is in order before you speak to it.

MS JONES: Yes, of course.

[Pause to consider amendment]

CHAIR: Order, please!

We have considered the amendment to be in order.

The hon. the Member for Cartwright – L'Anse au Clair, speaking to the amendment.

MS JONES: Thank you, Mr. Chair, for your ruling with regard to this amendment.

I would like to point out, Mr. Chair, that unlike the previous amendment with regard to this clause, we are actually protecting everything else, preserving everything else that is in that section of the bill about dividing the Cabinet records into three categories. What it will do is impose the test on each of those categories to determine whether the information that we are asking for was substantive in the deliberations of Cabinet in making that decision. If it was not, then it goes in this pile, Mr. Chair, and it is mailed out to the public, or to the Opposition, or to the media, whoever asks. If, Mr. Chair, it was substantive in the deliberations of the Cabinet as it pertained to all of that broad definition, then it goes in this pile where it cannot be released to the public.

As it stands right now, under what the government is proposing, Mr. Chair, to ram through the House of Assembly, there would be no test under this act – absolutely none, and they could do whatever they would want to do. What we are trying to do is protect the public interest here, protect the people who have a right to know why government are making the decisions they are making.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS JONES: Mr. Chair, we are being very kind in our amendment under this particular section because what we are doing is allowing the recommendation of Mr. Cummings, as it relates to broadening the definition, to include the factors that are contained within the management act. In doing that, what we are doing is allowing that recommendation to stand, we are allowing the government –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

The Chair would ask for order in the Chamber.

The hon. the Member for Cartwright – L'Anse au Clair, to continue on the amendment.

MS JONES: Thank you, Mr. Chair.

I really appreciate you bringing this House of Assembly to some order, because I am finding that I am starting to have to strain my voice to make these very important, yet factual points, Mr. Chair, to this bill because it is paramount. It is paramount that the public understand what the government is trying to do here – absolutely.

Mr. Chair, we have been very fair in our amendments – very, very fair. What we have allowed the government to do is allow them, under this, to basically continue to broaden the definition of this section of the bill. What this section would also involve is: If there were any discussion papers, for example, any policy analysis that were done by any bureaucrats within the department, any proposals, advice or briefing materials that were used in the background for Cabinet to prepare this, then we are allowing that they still be contained within the brief but we are saying that it needs to go through a test; it needs to go through a substance of deliberations test. It needs to have that test because if it does not, then all of it can be restricted and none of it can be released to the public.

Mr. Chair, they are doing a crew change on the other side over there now. That is why we are getting all of the noise. We have the crew change coming in now. The old crew is going out on the Conservative side of the House. The new crew are coming in, Mr. Chair.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS JONES: They just went home and had eight hours of snoozing.

CHAIR: Order, please!

I would ask the member to speak to the amendment.

MS JONES: Yes, Mr. Chair.

I did not mean to say that anybody went home for a snooze. I know that was unparliamentary. I am sorry.

Mr. Chair, what I was saying is that also what Cummings recommended was that everything to do with agendas, minutes or other records of Cabinet recording deliberations or decisions of the Cabinet would now be included in the definition. When we made our amendment, we did not change that. We left that in there. All we are saying, again, is that if it is going to be included, then it needs to go through the substance of deliberations testing that should occur whenever a request is made for material like that to the government.

Mr. Chair, Cummings also suggested that a record used for or which reflects communications or discussions among ministers on matters relating to the making of government decisions, or the formulation of government policy. We also allowed for that to be left in the bill. We did not remove that either in our amendment, Mr. Chair. Basically, we have said as long as there is a test in which you can look at this and say: Look, were these records of material? Were these communications between ministers on these matters in any way substantive in forming this decision of Cabinet and this Cabinet paper? If it was not, Mr. Chair, then it can go in this pile here and be released to the public when it is requested.

The other thing added to the bill is that it said, "a record created for or by a minister for the purpose of briefing that minister on a matter for the Cabinet". Mr. Chair, this is where we get into talking about briefing notes. Mr. Chair, all we are saying is that even though this is an addition, we are prepared to leave that there, but it has to go through the test. Mr. Chair, if that particular document was not substantive as part of the deliberations of the Cabinet in making that decision, then again it has to go in this pile and be released to the public. If it was substantive, then it goes in this pile where it cannot be released, but the way the bill works now is everything is in that pile and none of it will ever have to be released.

We have been very, very fair in allowing for the broadened definition of the act; however, Mr. Chair, we feel that the test is imperative in terms of protecting the rights of the people of this Province in being able to access this information.

Another section that was added here is "a record created during the process of developing or preparing a submission for the Cabinet.…" That could be anything. It could be a public consultation. It could be soliciting information. It could be having a bunch of people in to say: Give me some recommendations. We are prepared to leave that in there, but if it did not contribute to the decision of the Cabinet or the Cabinet paper in any substantive way, then again it goes in this pile to be released to the public, Mr. Chair. How do we know that if there is not a test of the information? We need to make sure that is included. That was where Mr. Cummings was coming from when he said he could not follow through with that recommendation of the Executive Council, Mr. Chair –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS JONES: – because he knew to do that would have been too restrictive.

Mr. Chair, another piece that has been added here, it says "that portion of a record which contains information about the contents of a record within a class of information…". What that basically means, Mr. Chair, is that if there is any particular bunch of information out here, a whole collaboration of consultation documents, maybe it is what people presented to the minister when he ran around with his big clock in the Budget hearings, talking about how much money the deficit was costing us every hour – remember the big clock that went around and around? Yes, he went all around the Province, Mr. Chair. It was bigger than a calculator, I say to the Minister of Education.

Mr. Chair, he went all over the Province with the big clock. Well, Mr. Chair, everybody came in and said: I am not worried about the big clock; I want money for my roads, I want money for this, I want money for that, and I want money for something else. All of those documents were presented as part of that consultation process by the Minister of Finance.

Well, maybe some of those documents were used in the deliberations of Cabinet, but maybe, Mr. Chair, they were not substantive in those deliberations. Therefore, they could be released to the public. Therefore, they would go in this particular pile.

What we are saying is that Mr. Cummings, in his review, recommended these particular recommendations and we are prepared to –

CHAIR: Order, please!

I remind the member her time for speaking has expired.

MS JONES: By leave, Mr. Chair, to clue up these remarks.

CHAIR: Does the member have leave?

AN HON. MEMBER: By leave.

CHAIR: The member has leave.

MS JONES: Mr. Chair, what Mr. Cummings did is recommend that these things be added and that they be added based upon what was in the Management of Information Act. That is what has happened under this bill. In our amendment we are saying, okay, we respect that and we are prepared to leave that intact. Mr. Cummings also said: I cannot honour the recommendation of the Executive Council to omit that of which is substantive in deliberations. Therefore, Mr. Chair, he recommended that substance of deliberations be left in the legislation and that it be a vital, critical component of the legislation. What our amendment is saying, Mr. Chair, is to do just that. That is what we are prepared to support.

We would ask the government to meet us halfway on this, Mr. Chair, to meet us halfway on this amendment. It is a good amendment, Mr. Chair. It is a very good amendment and we would ask the government to meet us halfway here. We are giving them what they want, the broader definition. We are asking that they give us what we want and that is the opportunity for someone to look at all of that information, to determine if it was substantive in making a decision or not, and if it was not then it could be released to the public and we would be able to have access to it. It is not too much to ask, Mr. Chair, very simple, but would make a huge difference in where we go with this bill.

I hope the minister will be able to respond to that, Mr. Chair, while I take my seat.

CHAIR: The hon. the Member for Torngat Mountains.

MR. EDMUNDS: Thank you, Mr. Chair.

It is a pleasure to rise to speak to this amendment that was tabled by my hon. colleague, the Member for Cartwright – L'Anse au Clair. I, too, support this amendment and I also urge the government to support this amendment. Hopefully, I will lay out the reasons within the next few minutes.

Mr. Chair, when you go back to the existing legislation on section 18, it states in section 18.(1) "The head of a public body shall refuse to disclose to an applicant information that would reveal the substance of deliberations of Cabinet…". I think this is a key phrase that certainly was based on the recommends by Mr. Cummings and certainly one that the government seems to have overlooked, Mr. Chair, when they came forward with the new amendments.

Again, I do not have to read them, but in the proposed amendments on Bill 29, section 18, Mr. Chair, there is a whole list of different categories in which the government would have the right to restrict access to information. I think this would be where the government has admitted that there could be fear and there could be haunting through Freedom of Information requests, Mr. Chair. It also relates to comments of how difficult this would be and how hard it is to understand to the point where if you are not in Cabinet, you probably would not know a whole lot.

Mr. Chair, as representatives in this House, we conduct the people's business and we conduct this very business on behalf of the people of this Province, certainly not on behalf of ourselves, and I think that is certainly relative to this amendment, Mr. Chair.

We go back to the substance of deliberations and what this mechanism does is that it gives the commissioner some flexibility in applying the restricted material to their view and giving it an avenue to come forward to the public, which is so very important. I think this key piece of legislation or this key recommendation is one of the reasons why section 18 of this act is so contentious and so difficult for the people to accept, based on how the recommendations are put forward now.

The introduction of this new amendment that was tabled by my hon. colleague gives a change to this section specifically, where it gives a little bit of leeway into putting restrictions to some degree of a test. It certainly opens up the door to allow a bit of access to information, Mr. Chair – not all. As we pointed out, almost every one of us, there is certain information that should not be disclosed.

Mr. Chair, this amendment here would give a route to apply the test again to see what would be not disclosed to the people of this Province. Yet, it leaves room for discretion through the commissioner and certainly through the heads of public bodies. It opens a route for them, Mr. Chair, to make information available through the access to information act. It would allow for accountability and transparency, and avoid a lot of the problems this government will bring upon itself, as we have seen already.

In conclusion, Mr. Chair, I think this is a good sub-amendment that was brought forward. I will accept this amendment and I would hope the government opposite would, too.

Thank you.

CHAIR: The Leader of the Third Party, to speak to the amendment.

MS MICHAEL: Thank you very much, Mr. Chair.

Yes, I am quite happy actually to speak to this amendment moved by the Opposition House Leader. I will be supporting this amendment. The amendment does not substantially change the original clause in the bill. The original clause in the bill says, "The head of a public body shall refuse to disclose to an applicant a Cabinet record, including" – and then names the three classifications that are in the bill – "(a) an official Cabinet record; (b) a discontinued Cabinet record; and (c) a supporting Cabinet record."

The amendment that has been moved by the Official Opposition changes the first sentence and adds, "The head of a public body shall refuse to disclose to an applicant a Cabinet record which would reveal the substance of the deliberations of Cabinet, including…" –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

The Chair is having difficulty hearing the Leader of the Third Party. I would ask members for their co-operation, please.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

The hon. the Leader of the Third Party.

MS MICHAEL: Thank you very much, Mr. Chair.

What I was saying, Mr. Chair, was that the motion that we have before us for an amendment to subsection (2), in section 18.(2) of clause 6, does not change the classifications of the Cabinet documents, but does say that the head of the public body would disclose to an applicant a Cabinet record which would reveal the substance of the deliberations of Cabinet. That is the heart of the change, of course.

The amendment is not questioning in any way the three classifications: an official Cabinet, a discontinued and a supporting Cabinet record. Though, I personally have a few questions about the discontinued Cabinet record. For the moment, let me say that the motion does not change the classifications but brings up a really important point and that is not every document –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

Once again, I would ask members for their co-operation. If you have private conversations, I would ask you to take it outside the Chamber as the debate continues here. I am sure that some of the speakers' voices on both sides of the House will weaken the longer we are here. It is important that the Chair hear the person who is speaking, as all debate needs to be relevant to the clause in which we are debating and the amendment in which we are debating. In order for the Chair to rule on that, he needs to clearly hear the speaker.

The Leader of the Third Party.

MS MICHAEL: Thank you very much, Mr. Chair.

What I would like to speak to, Mr. Chair, is the wording: the substance of the deliberations of Cabinet. Now in another context there has been some discussion on this, but in the context of the new amendment I want to bring up these issues again.

We do know that when Mr. Cummings did the review of the ATIPPA that Mr. Cummings had representations made to him by Executive Council with regard to the wording: the substance of the deliberations of Cabinet. Mr. Cummings did quite a scan of what exists across Canada throughout our country with regard to the wording: the substance of the deliberations of Cabinet. He did recognize in his report that there are varying definitions of the substance of deliberations.

He noted in his report the fact that there have been court cases across Canada; Courts of Appeal have dealt with the interpretation of this phrase: the substance of the deliberations. He himself declined from choosing which interpretation would be one that he would name. He actually declined in doing an in-depth analysis. He says, "I do not intend to get into a more detailed analysis of various interpretations of Courts and Commissioners…."

He recognizes that there are a couple of basic interpretations of similar provisions around the substance of deliberations. We do know there has never been a court case here in Newfoundland and Labrador, so we have not used our own interpretation or we do not have our own ruling. The Information and Privacy Commissioner did also study the different Courts of Appeal rulings across Canada, and he decided a couple of years ago that he would use the interpretation of the ruling from the Nova Scotia Court of Appeal. He presented that information to Mr. Cummings.

I think what is important, Mr. Chair, by bringing this phrase into section 18.(2) of clause 6, we are recognizing that there are Cabinet documents, whether it is an official record, or a discontinued record, or a supporting record, there are documents that can be identified under the classification but could be fairly innocuous when it comes to actually relating to decisions. It could be anything under the sun. It could be discussion papers. It could be just even memos that just highlight some issues – bringing attention. It could be something that was just – staff themselves have sat and discussed and mused about and maybe never ever got to the Cabinet table. Recognizing that not every single electronic file or every single piece of paper would show us any substance of deliberations of Cabinet is important.

I believe this should be in the whole of section 8 and that is what my amendment was about earlier and of course it was defeated, that is fine. Here, at least if it comes into this one section, it would be extremely important. We have to be able to recognize that there are differing levels of importance when it comes to the various documents and their import with regard to revealing the substance of deliberations of Cabinet. This amendment, which I would really like to see passed, would be a way of making sure that not every single word that can in any way be related to Cabinet is kept secret. This is what this is doing. This is adding to the whole notion of secrecy.

I know that the minister has not liked the whole thing of our saying that there is secrecy built into these amendments. Well, I think this is an example of where there is secrecy built into the amendments. I am trying to find my thing – I had something that I am looking for, Mr. Chair. I must have filed everything so well I cannot find it. Here we go, I have it.

The implication in some of the things that have been said in the House is that what we are bringing up here on the Opposition side of the House is just political and we are doing it for political purposes. Mr. Chair, what I would like to say is that the voice of Opposition with regard to this bill –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: – here in our Assembly is being heard right across Canada. People are shocked by what they are reading. They are going on-line, they are reading the bill, and they know what is in the bill. The word is coming in from everywhere in this country of people who are upset.

CHAIR: Order, please!

I would ask the Leader of the Third Party to keep her comments relevant to the amendment which we are debating.

MS MICHAEL: I will, Mr. Chair.

The point I am making is the issue of secrecy. The relevance is that there are other people besides members on the Opposition side of this House who understand the need to make sure that we do not have secrecy in this bill. Some of those groups, for example, are the Canadian Association of Journalists which have come out and said that. They recognize the secrecy issue, and that is the problem. When we protect every single word of every single document that fits into these classifications –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: – then we are creating secrecy because not every single word needs to be protected. This amendment is trying to deal with the fact that the way things are now, there is not a word, there is not a dot and there is not a comma, there is nothing that is going to be seen as not part of a Cabinet record. Mr. Chair, for that reason, I would be very happy to support this amendment.

Thank you.

CHAIR: The hon. the Member for Bay of Islands.

MR. JOYCE: Thank you, Mr. Chair.

I will stand here just for a few minutes, Mr. Chair, to offer my support here for this amendment. There always comes a time in politics when you must make a bit of compromise. There is always a time in everybody's parliamentary life – if they have been around long enough – that you compromise. I know the Opposition House Leader made an overture to the Government House Leader that, in this bill, we are right now making this amendment and it is a compromise on this section of the bill – it is a compromise.

Mr. Chair, as we hear speaker after speaker after speaker talking about this part of the bill – as we know, this bill is mainly about Cabinet secrecy, it is mainly about what documents are put before Cabinet, and it is mainly about what documents now are included that were never included before. It is a lot about the substance of deliberations, which again I know the Minister of Justice earlier stood up on his feet and said how John Cummings recommended taking it out. Then, after reviewing his own legislation, he finally came back and said, oh no, no, it was a misunderstanding. John Cummings did not say that; we did that, Mr. Chair. As I said, Mr. Chair, we got that in the briefing from the minister's office, and I was actually even going to share the briefing notes that I had, just to ensure to him yes, that was taken out by the government.

Mr. Chair, I am going to read this amendment, because it is a compromise. I know the members opposite are listening very attentively about the compromise, because this is the way parliamentarians should work, and this is the way we all should work for the betterment of the people of Newfoundland and Labrador.

I will read the amendment: Clause 6 of the Bill is amended by deleting the proposed subsection 18(2) and substituting the following:

"(2) The head of a public body shall refuse to disclose to an applicant a Cabinet record which would reveal the substance of the deliberations of Cabinet, including (a) an official Cabinet record; (b) a discontinued Cabinet record; and (c) a supporting Cabinet record."

This compromise that we are putting on the table here, what we are saying is we are going to go back and we are going to include what was in the act before, which everybody agrees worked pretty good – it worked pretty good. I know the government is looking also – and I can go through it, if need be, but I am not sure there is any need to do it right now. I can go through the changes that they made to try to increase the secrecy of the Cabinet, but there is no need to do that. Most people understand that, most people know that already, Mr. Chair, because it has been discussed here many times.

Mr. Chair, what we are proposing here, as a compromise, is have the commissioner as before. If there are certain documents that you need for Cabinet, if there is eight, ten – say there are ten, Mr. Chair. Just say there are ten for a Cabinet, this commissioner comes in and looks at these documents and he can make a decision what is relevant for Cabinet. If he comes in and says okay, seven or eight out of these ten are needed for the Cabinet confidentiality, you take the seven or eight, you put them aside, the other two or three he releases into the public. That is what we are proposing.

Mr. Chair, I know you are a reasonable man; you agree with that. Let some other third body to come in and look at that and be able to move in and take that. I know most members opposite are pretty reasonable people, Mr. Chair. This is why instead of just staying here for the next day or two wrangling, it is a time for compromise.

Government is getting what they want; they are getting a person to come in so you keep the confidentiality for government. You are keeping the confidentiality, Mr. Chair, you are keeping the privilege that Cabinet needs to have, and you are keeping the solidarity. Yet, you are getting a third person to come in and look at it, look at the information and say what we can release to the public if there is a request made concerning that particular Cabinet paper.

Mr. Chair, I feel it is a fair compromise. It is something that we are willing to move on. I am not sure if the government is willing to move on it, but there comes a time for every government to stand up and say: Okay, this is fair. Let us sit down and have a second look at this – a sober approach, as they would say. Let us have a sober approach to this here.

What happens, Mr. Chair, what is being proposed in this bill now is the person who used to come in to be able to look at this bill – he is gone. He is gone out through the door; he cannot even get up the elevator any more, Mr. Chair. What they are going to do now is they are going to say: Okay, not only are you gone but now we are going to increase the umbrella of materials that we can look at, that no one else can look at, because of Cabinet solidarity, because we need it for Cabinet deliberations, we looked at this somewhere along the line, and we used it for a Cabinet discussion, Mr. Chair. They broadened the whole gamut to take all this in.

I ask the members opposite: How many times would you need that? That is the question. Why are you taking away the rights of the people of Newfoundland and Labrador? How many times over the years – since 2003, how long have you thought you needed this? How long? I think that is a serious question, and either one of the ministers can get up and explain how many times that happened; because I do not know. I really, truly, do not know - I do not – how many times.

Mr. Chair, I am willing to say that with this compromise that we are putting forth here – and it is not the way to take away anything from the government, because what we are saying is that let us not weaken the legislation, but let us put in the legislation that was there prior, which for a number of years, has worked pretty well. There is absolutely no doubt in my mind that there were times that there were differences, that there were times that there were differences of opinion, there were times when there was discussion on what we can do, because it may be a bit of a headache or sometimes it maybe becomes a bit of an annoyance. Mr. Chair, I guess that is just any job, and that is anything that we do whatsoever that we work at. We are always going to have those annoyances, those nuisance things.

So, Mr. Chair, I just ask the government to have a look at these amendments, because it is a fair compromise. It is a way that we can say and we can show Newfoundlanders and Labradorians that all parliamentarians are working together. Mr. Chair, that we are all working together, instead of trying to weaken the legislation. We are not trying to weaken the legislation, what we are trying to say is let us compromise. Let us have a compromise, as we see on many occasions, Mr. Chair.

That is why I will be voting for this amendment, because it is a way to reach out and say: Come on, let us all work together, let us put back this legislation, let us work together to try to ensure that we have the confidentiality of Cabinet, yet we have the safeguards built in for the people of Newfoundland and Labrador – the people who elected all of us, the people who we need to ensure that we keep their confidence, and the people who can look up to us and say, yes, we are being protected, our rights are being protected, yet you can operate government to the best of your ability without the compromise of giving up the documents you need to make a sound, firm decision in Cabinet, Mr. Chair. That is why I will be supporting this amendment, Mr. Chair.

Mr. Chair, I have lots of time to speak on this, and I just thank you very much.

CHAIR: The Member for St. John's North.

MR. KIRBY: Thank you, Mr. Chair.

It is my pleasure to continue to discuss this bill, because I am certainly sure people would agree and members opposite would agree that it has been a vigorous debate, and it has been highly insightful at times. I am sure all the people who are watching at home have seen how compelling some of the arguments are around making improvements to this flawed piece of legislation, which has variously been called more secretive a bill that reduces access, that blocks the release of data and records and information and files and so on that the members of the public would be seeking.

I am really pleased to speak to this comprise amendment, because I believe it is a necessary compromise to the language that is proposed. I think it does bring us to a necessary middle ground. If you look at what is really being proposed here: Clause 6 of the Bill is amended by deleting the proposed subsection 18(2) and substituting the following:

(2) The head of a public body shall refuse to disclose to an applicant a Cabinet record which would reveal – and this is the important part – the substance of the deliberations of Cabinet – and it goes on to say including a list of things: an official Cabinet record, a discontinued Cabinet record, and a supporting Cabinet record.

The important part here really is the substance of deliberations of Cabinet. That is really the standard wording across the country in similar legislation, because as you go across the country and you go to Nova Scotia or Ontario, or Alberta or British Columbia, or what have you, a lot of other provinces – all other provinces, I expect – have some form of freedom of information, or access to information, or information providing legislation. The substance of deliberation is the standard wording that is used across the country.

In his report, Commissioner Cummings said, "Most access to information legislation across Canada protects from disclosure cabinet confidences which would reveal the ‘substance of deliberations' of cabinet." In British Columbia, Alberta, Prince Edward Island, all of those provinces, the legislation on access to information, freedom of information or what have you in those provinces – BC, Alberta and PEI – all include substance of deliberation provisions. It is extremely important that we have that.

He goes on to say that Nova Scotia is also substantively similar to those other provinces. While it would be our own, if we accept the compromise amendment that has been put forward here this evening, with Nova Scotia, the exemption is that the application of the substance of deliberations exemption is discretionary. Whereas, in the case of the compromise amendment put forward by the Member for Cartwright – L'Anse au Clair, it would be mandatory that it would refuse to disclose a Cabinet record which would reveal the substance of deliberations of Cabinet.

That really takes us back to the heart of the matter here which really is the purpose of the Access to Information and Protection of Privacy Act, which is to make public bodies more accountable, to make Cabinet more accountable by giving the public the right of access to records and by giving individuals the right of access to and the right to request collection of personal information about themselves and specify limited exemptions to the right of access.

Exemptions are really supposed to be limited from the legislation, rather than unlimited. Really, what is proposed right now in Bill 29 is a more freewheeling – as I said, it really reduces access and it provides for a greater level of Cabinet secrecy and provides for a situation whereby the block of release of information is more likely to occur. As I have said before, that really runs counter to what we really would expect from a piece of legislation such as this, which is really supposed to be ensuring that if there is Cabinet documentation, if there is information which is an official Cabinet record that an individual is seeking, that a party is seeking, an agency, an organization or a member of the public is seeking that they should be able to access that for whatever reason.

In addition to that, the clause points out discontinued Cabinet records and supporting Cabinet record. As I have said before if there are problems, there is no question that the government, or individuals who are advising them on this, could certainly block out any sensitive information, any information that is extremely sensitive, any information of a personal nature, any information that would be damaging to a public body or a member of the public, or would damage some initiative of the government. As it stands, without this amendment, we could certainly say that the bill as it is proposed, unamended, does not enhance the Access to Information and Protection of Privacy Act. It does not allow for a greater degree of access. It does not allow for more access, and that is what we would expect from a modern system of access to information.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. KIRBY: One that has some assurances that we have an increased level of transparency when it comes to these Cabinet records: discontinued Cabinet records and supporting cabinet records. That we have some increased level, some enhanced level of transparency. There is accountability. As my colleague has said, we were elected and Cabinet ministers are elected, and I think it is a responsibility, in part, to ensure some disclosure of information. We are not talking about complete disclosure of information. It is bad enough because when it boils right down to it, overall, individuals are going to have to resort to the courts enough as it is. I know my colleague for Signal Hill – Quidi Vidi has said earlier that whereas other provinces have had legal tests, where courts have considered the question of the substance of deliberation – but that has not happened here. We have not had a court case at this point in time which really looks at the question of what exactly entails the substance of deliberations.

So, it will be interesting when that will happen, because there is no question with this act – unless we see a helluva lot more amendments of this as we go along. It is going to have to be substantively amended. We are going to be seeing many more Newfoundlanders and Labradorians having to resort to accessing the courts at great expense to themselves, at great expense to the taxpayer, in order to access information.

I think I will leave it at that. I have much more to say in the hours to come, and I really appreciate having the opportunity to participate and contribute and to have the attention of my colleagues in government.

Thank you.

CHAIR: The hon. the Opposition House Leader.

MS JONES: Thank you, Mr. Chair.

I just wanted to rise and say a few words with regard to Bill 29, section 18, and some amendments that we have proposed in the House of Assembly. You have to love those family-friendly sittings in the House, because it is an opportunity for members, Mr. Chair, to bond and get to know each other a little bit better as we debate important bills on the floor of the House.

Mr. Chair, this is an important bill, because this is a bill about learning about what happens inside of government, about how they make the decisions they make, how they spend the money the spend. That is what this bill is about, Mr. Chair. It is about understanding where things go inside of government.

Now, section 18 of the bill – as we have already gone through – is one of the most, I would say, comprehensive pieces to the bill because this is the part that defines what you can access and what you cannot access, under information. As you know, as an Opposition, we file a lot of FOIs. I showed you tonight, stacks of them that I have on my desk.

AN HON. MEMBER: (Inaudible) frivolous.

MS JONES: No, no they are not frivolous either. They are very serious FOIs.

Mr. Chair, as well, there are others that do the same, whether it be in the media or whether it be in the public. We heard today of a number of incidents where ministers, I do not know, Mr. Chair, I guess they were somewhat complaining about the amount of work that went into filing and providing the information under some of those Freedom of Information requests, but they obviously came from the public out there in the Province.

The amendment that we are proposing is basically an amendment under section 18.(2) of the bill. What we are proposing under section 18.(2) of the bill is, "The head of a public body shall refuse to disclose to an applicant a Cabinet record which would reveal the substance of the deliberations of Cabinet, including (a) an official Cabinet record; (b) a discontinued Cabinet record; and (c) a supporting Cabinet record."

Now, Mr. Chair, the only thing that this does in terms of altering this particular act and the legislation that the government is proposing is it inserts too little words – two words that were in the original act. The rest of it, Mr. Chair, we are maintaining the integrity of the act and what the government is asking for. The reason we are doing that is because we had an opportunity to read and to report to Mr. Cummings while he did his review of the legislation in the Province. We have had a chance since then to review all of his findings and to read those very closely, to pay very close attention to what he had to say, especially under section 18, and we do understand the rationale under which he has made the recommendation that government should broaden the perspective and the definition of what would be included under section 18.(1) of the bill. That means, Mr. Chair, defining what a Cabinet record is. They have expanded that and they have done it based on the information, based on I guess the same information that is found in the Management of Information Act.

When we read through Mr. Cummings' recommendations, we learned that he as well was recommending that government make that addition to their legislation. Therefore, in our amendment, we have protected that, we have respected that, and we understand it. We know the reason why government often has to protect Cabinet documents and protect information, so we do not have a problem with that.

Mr. Chair, our amendment speaks to section 18.(2), where we would be basically inserting the words under that section that would say that it would have to look at the substance of deliberations, of the information that was being provided to Cabinet. We feel that is important in order for us to continue to do our work as an Opposition. It is important for the media to have disclosure in the work that they do. It is important, Mr. Chair, for the public in terms of being able to obtain information relative to certain subject areas. That is the reason that we are proposing this particular amendment.

Mr. Chair, I could give you many examples of how this would particularly have impact. For example – no, that is not a good example. Let me get another one, Mr. Chair. I just have to move my parliamentary book here. For example, we made requests for information to various government departments. Mr. Chair, one of those, for example, was with regard to reports and investigations that were completed surrounding the circumstances of a fire in Happy Valley-Goose Bay in June of 2008, in which unfortunately there was a tragic death of two children.

We applied under the freedom of information to obtain any reports or investigations around that. Why did we do that? Let me explain, because this is where this falls under this particular act. We first of all, Mr. Chair, we asked government in the House of Assembly to provide us with the information. We asked that the investigations be done and we could not get a commitment. We learned after that there were some investigations done and we wanted to access that information, so we requested it. It did not happen. We did not get the information. Mr. Chair, we may not get it under the revisions in the act well. If it was not used in making policy decisions and it was not disclosing any privacy information, then there should be provisions to allow for it.

The other thing that we asked for, Mr. Chair, under access to information was the announcements of government regarding laboratory and X-ray services that happened on August 1, 2009. Now, Mr. Chair, we do know that, obviously, this decision changed afterwards because of political outcry that was associated with it; however, we wanted to know what documentation existed, what information was out there that would prompt the government to make decisions to close down laboratory and X-ray services in areas all over the Province. Most notably at the time, in Lewisporte district, in The Straits – White Bay North district, were two of the areas where there was a tremendous amount of outrage over that decision.

We had to file under an FOI to try and get that information. Under the current changes in the legislation, we would not have been able to access any of that information because it could have been protected under the bill. That is the reason that we are now asking the government to meet us halfway with the amendment that we are proposing. We are prepared to support the recommendations of the Cummings report to allow for the broader definition of what constitutes a Cabinet document or a Cabinet record; however, we want to ensure that the words are added to subsection (2) to ensure that there is, in this particular case, an opportunity for the consideration of substance of the deliberations and whether that was used to make decisions within Cabinet or if not. If it was not, then it should be released under the freedom of information. We are asking the government to meet us halfway here, to look at a compromised revision and an amendment to that particular section 18.(2) of the act.

CHAIR: Order, please!

I remind the member that her time for speaking has expired.

Are there any other speakers to the amendment?

The hon. the Member for The Straits – White Bay North.

MR. MITCHELMORE: Thank you, Mr. Chair.

It is good to speak to Bill 29, An Act to Amend the Access to Information and Protection of Privacy Act. Certainly, the amendment put forward by the Member for Cartwright – L'Anse au Clair is one that is something I certainly can support because it brings back under subsection (2) here, "The head of a public body shall refuse to disclose to an applicant a Cabinet record which would reveal the substance of the deliberations of Cabinet, including.…"

It also includes the expanded form which did not exist previously, but it is there and it shows that well, if there is additional documentation that is required, as long as it meets a test and if there is something that is relevant, if it is something that needs to be retained for Cabinet purposes, then it would. If there is information that can be provided, then it should undergo that test and be made public.

When it comes to the substance of Cabinet deliberations in the existing act under section 18.(1), it clearly states: The head of a body shall refuse to disclose to an applicant information that would reveal the substance of Cabinet deliberations.

That is highly important to be able to have that there, or else Cabinet would have the ability to say any information, any piece of documentation that we do not want out there in the public realm, can be retained. A substance of deliberation is really the standard wording that is used across the country, as Commissioner Cummings had stated in his review.

When he put forward his review, he did not look at removing this substance of Cabinet deliberation, this test. When it comes to looking at the recommendations that are put forward in the act by the government, it clearly states that they want to have a complete listing but also to remove this. This really discredits, I believe, the ability for the public to be able to access information that otherwise rightfully it would have that ability to.

In other provinces, they do have those legal tests where the courts can consider what would be included as a substance of deliberation. That has not happened here. It has been referenced about cases in Nova Scotia, but also an ability here where we have precedents set with the Office of the Information and Privacy Commissioner where they have been able to look at documentation and be able to make a determination.

Under the new wording, that is completely removed: the substance of deliberation. I wonder why; I really do. I think it needs to be put back in there. There needs to be a test to show that if there is some information that is being requested, there could be some policy proposals, it could be factual or background information that really could be provided to the general public that is not sensitive, that it could not be disclosed, and if I have a whole bunch of information, notes, documentation, some of those things might be my own intellectual thoughts, they may be completely private information that cannot be disclosed in the same form that Cabinet has information that it cannot disclose, but there is other information that I would happily disclose to members of the public and information, as long as it meets a certain test.

That is what this amendment is putting forward, saying that we need to reveal the substance of deliberations to show that there was something gone through, an analysis to show that it meets either an official Cabinet record, not just because it is certified because someone has said oh yes, this is going to come to a decision-making process and needs to go through and be certified. I mean, that kind of really discredits – it is a bit ludicrous actually.

The amendment that is being put forward by the Member for Cartwright – L'Anse au Clair is looking at making a compromise when it comes to section 18, clause 6 of this act, because all of the changes that have been put forward here takes away from the ability for anyone to have a fair interpretation of what would not be classified as an official Cabinet record, what would not be a discontinued record or supporting Cabinet record. The information is out there that anything at this point could be, and that is quite troubling.

I definitely believe that for records to be defined as official, discontinued, and supporting, they have to have some form of classification on that. That is not the case. It seems like if I make a decision to say that this documentation – or if an Executive Council member makes a decision to say well, this is going to be part and it gets that approval, then there is really little that can be done to gain access to that type of information. That is not really protecting the integrity of the public when it comes to information that could be made available. This is going back to say it is regressive.

Therefore, the amendment that is put forward is one that is more positive. It brings back what is in line with the rest of the country when it comes to putting in that test. We do need that. We need that legal test there to show that what information can be provided, that it certainly should. It is the right to the citizens, the people of the Province, that if it can be provided, then it should be.

Therefore, I think that this amendment is a good one and I will support it. I may get the opportunity to speak again further on this amendment.

Thank you, Mr. Chair.

CHAIR: The hon. the Member for St. Barbe.

SOME HON. MEMBERS: Hear, hear!

MR. BENNETT: Thank you, Mr. Chairman.

I feel like a preacher tonight because I want to read just one line to this hon. House which says – and I am going to say here what wonderful words the hon. J. Derek Green had regarding transparency. I think that this bill clearly is about transparency, "Transparency is the foundation upon which accountability of public officials is built."

CHAIR: Order, please!

I ask: Is the member speaking to the amendment?

MR. BENNETT: Yes, Mr. Chair.

CHAIR: Okay, I would ask the member to clarify that.

MR. BENNETT: Mr. Chair, I understand that some years ago there was a little bit of a problem in this Province with a lack of transparency. I understand that certain members got into some trouble. Some of them even were guests of Her Majesty in certain institutions that Her Majesty has. This may have been overcome if there had been more transparency.

This amendment, Mr. Chair, seeks to improve transparency, whereas the bill itself seeks to do away with transparency and to hide Cabinet discussions and deliberations and anything that would inform Cabinet. The Opposition has proposed an amendment which clearly is within the spirit of parliamentary democracy. The amendment says, "The head of a public body shall refuse to disclose to an applicant a Cabinet record" – the operative words which are different from the bill – "which would reveal the substance of the deliberations of Cabinet.…"

Mr. Chair, if Cabinet is concerned about the substance of their deliberations not being revealed – and I agree with that position. That is actually what the original act does. Mr. Chair, it seems that this government has learned nothing from the Green report; it has learned nothing from all of the loss of confidence in government and it is seeking to go back to the bad old days when government was not accountable. This government seeks to be less accountable, seeks to be less transparent.

The ministers of this government, Mr. Chair, seem to think that it is their government and, in fact, it is the people's government. The ministers seem not to want to be reminded of the Green report. Mr. Cummings was consistent with the Green report –

MR. KING: A point of order, Mr. Chair.

CHAIR: Order, please!

The Deputy Government House Leader, on a point of order.

MR. KING: Just on the member's last statement, I would ask relevance. It was, in actual fact, the Speaker of the House who questioned the relevance to the Green report in this debate. The member made a statement that members do not want to hear about the Green report. We have said nothing about that report. It was you yourself who questioned the relevance to the debate. I would ask the member to perhaps rephrase his comments.

CHAIR: Order, please!

There is no point of order, but the member can clarify if he wishes. I would ask him to speak to the amendment.

MR. BENNETT: Thank you, Mr. Chair.

The amendment seeks to improve transparency with the legislation after this bill is passed. The government members are intent to use their huge majority to ram through legislation which will diminish transparency in this Province which will reduce accountability. In fact, Mr. Cummings in his report upon which much of this legislation is founded – Mr. Cummings says on page 40, "…I have not found any interpretation of provincial legislation that necessarily excludes all cabinet information or entire cabinet documents or records from disclosure and avoids severance."

Mr. Chair, this government and this bill is actually on the one hand claiming to want to use the Cummings report. They are picking and choosing the sections from the Cummings report which seems to satisfy their requirement for secrecy, their requirement to do away with transparency.

I was referring back to a time of only a half-a-dozen years ago in May 2007, which is just five years from the Green report when a lack of transparency had caused or created an opportunity for considerable wrongdoing by Members of this House of Assembly. Five years later, the Opposition again is trying to fight off the government's attempts to do away with transparency, to do away with accountability, and to have ministers not answerable to the House of Assembly with respect to information that is found in their records.

The amendment, Mr. Chair, clearly is within the spirit of all parliamentary democracy whereby the essence of and the substance of Cabinet deliberations would not be made available but any other information would be made available. Mr. Chair, this is the same concern that the Auditor General, as recently as this past year, had when he went looking for information related to the government's so-called infrastructure program and there is no infrastructure program. He went further and attempted to obtain information to try to reconstruct what would have been an infrastructure program, had there been one, by going department by department to try to find out what had been the submissions of those departments.

The response that he was faced with is that the departments were required or, in fact, did coordinate their responses all through legal counsel, all through the Department of Justice, so that any requests for information from any one department, what was your ask of Cabinet, the information was completely shut down. This government is well on its way to secrecy all over again and a lack of transparency.

The bill that is before this House of Assembly without this amendment simply entrenches the habits that this government has moved in to certainly within the last year. Within the last year, there seems to be little to no accountability, a move back toward the bad old days of secrecy and not wanting to share the information.

The information that is acquired through researchers and the information that advises Cabinet is the information that belongs to the people of the Province; it does not belong to the individual Cabinet minister. If there is political fallout because of unpopular decisions, then what is that really saying if the government wants to be shielded from political fallout? It means that it does not want the people to be informed as to what the government's intentions are. Well, why shouldn't the people be informed of government's intentions? If government –

SOME HON. MEMBERS: Oh, oh!

MR. BENNETT: Mr. Chair, I hear again from the member for Bedrock asking me to speak to the amendment. Maybe he would get somebody to read it for him because I guess the schooling system in Bedrock is not so good.

Mr. Chair, this amendment says, "The head of a public body shall refuse to disclose to an applicant a Cabinet record which would reveal the substance of the deliberations of Cabinet…." This is all this is asking for. It is saying that we do not need to know the substance of Cabinet deliberations. The documents that are looked at are an official Cabinet record, a discontinued Cabinet record, and a supporting Cabinet record.

Mr. Chair, I am sure that I will have additional commentary on this amendment.

MR. KING: A point of order, Mr. Chair.

CHAIR: Order, please!

The Deputy Government House Leader, on a point of order.

MR. KING: Thank you, Mr. Chair.

We are all certainly entertained by the member opposite's speech on this issue, and I will have a few comments in a minute to respond, but there is a parliamentary expectation in the House – and I am not sure if it is a point of order or a point of clarification, but he referenced a Member for Bedrock across the House, and I am not aware of any district in this Province represented in the Legislature. Could we ask for some clarification as to exactly who he was referring to, or if in fact he was making fun of a member. I would like some clarification or a withdrawal of that statement, please.

CHAIR: Order, please!

There is no point of order. The member referred to the Member for Bedrock; he did not identify any particular member in the House. While his comment may have been frivolous, I do not believe it to be unparliamentary.

The Member for St. Barbe.

MR. BENNETT: Thank you, Mr. Chair.

The commentary that I was hearing from across the way seemed to be so ill-informed that I could not imagine a member representing any particular district would have made such commentary, so I assumed it must have been someone from the fictional Bedrock.

CHAIR: Order, please!

I would ask the member to speak to the amendment.

MR. KING: A point of order, Mr. Chair –

CHAIR: Order, please!

The Deputy Government House Leader, on a point of order.

MR. KING: I think the member has just indicated to you very clearly that he is referencing a member on this side of the House, by the response that he just provided. I would submit and ask you to again reconsider the tone of the language and the manner in which he is referencing an hon. member on this side of the House.

CHAIR: Again, the Chair has ruled that I did not see it to be unparliamentary. If the member had identified a member on the other side of the House in his commentary, then I would have ruled differently.

The Member for St. Barbe, to speak to the amendment.

MR. BENNETT: Mr. Chair, I see my time is at an end for this round.

Thank you, Mr. Chair.

CHAIR: The hon. the Member for St. John's North.

MR. KIRBY: Thank you, Mr. Chair.

I am pleased again to rise to speak on the compromise amendment that has been put forward. Of course, this really puts the substance of deliberations of Cabinet into this particular section of the legislation, of clause in the bill.

CHAIR: Order, please!

The Member for St. John's North – I do not know if you are standing in front of your mike, but I am having difficulty hearing you, and there is very little noise in the Chamber.

MR. KIRBY: Yes, sorry, I will speak up.

So, it adds a substance of deliberations of Cabinet to this subsection 18.(2) of the Access to Information and Protection of Privacy Act. I think that is really important. As I said before, that is the standard wording that we see across the country. There is nothing really extraordinary about it. There is no reason why we would not want to have a standard language that is acceptable and that others have deemed to be acceptable. We often talk about wanting to be exemplary.

I think that we could have less stringent rules, but we also have to recognize that there certainly are legitimate reasons from time to time whereby some information that is provided or prepared for Cabinet, an official Cabinet record, discontinued or supporting Cabinet documents, or what have you, there are legitimate occasions where some information should not be made public because they are potentially damaging or are not things we want to have in the public domain. There are occasions where members of the public, members of the media, or even Opposition political parties should have the opportunity to request and gain access to information that would otherwise just be under the cloak of Cabinet secrecy.

In this standard language that is proposed here in the compromise amendment, substance of deliberations is language that is in effect in a number of other Provinces in the country, including Prince Edward Island, Alberta, and British Columbia. There is some reference to it as well in the similar legislation that exists in the Province of Nova Scotia. As we have said previously, there will have to be or there likely will be, because I think there will be more and more cause for individuals to have to take their case for access to information to the court system with this new legislation unless it is significantly further amended, including this particular amendment. We will probably see many more intersections of members of the public or members of the media having to take their case for access to information to the courts in order to gain information. We will probably then have a ruling, a legal position on the substance of deliberations and further clarification on what we exactly mean by that.

The amendment really speaks to something that the Information and Privacy Commissioner had said some time back. He said that we really are looking at the changes involving legislation, the proposed changes to this Access to Information and Protection of Privacy Act over time and the things that the government has wanted, the Department of Justice has been advocating for. He says we have to ask ourselves whether the citizens of the Province, citizens of Newfoundland and Labrador, should enjoy the services of a strong commissioner who is fully able to uphold the rights of citizens granted under the act, and whether citizens should stand at the back of the line and settle for having the weakest commissioner and access to information law in Canada.

I think this really speaks to having an act and having access to information and protection of privacy legislation that is not the weakest in Canada. In fact, it is highly consistent with the legislation that we see in the rest of the country. It is legislation that does not overtly increase the potential for instances where citizens are blocked when they are seeking release of information, where there is more secrecy surrounding the release of documents that are under the purview of Cabinet, whether those are official records, or supporting records, or even records that have been discontinued.

If we go ahead with the section without this amendment to clause 6 of the bill, what we are really doing is reducing access and diminishing access. That really is not consistent with what I think should be happening with this legislation. I think we really want to be improving it. I like to think that we are enhancing the act. I would like to think that we are enhancing access to information, as well as protection of privacy for private individuals in particular. I would also like to think that we are strengthening the provisions.

I think without the amendment it is not strengthening access to information, especially when it comes to Cabinet deliberations and documentation. As I said before, I am fully aware and my position certainly is that there would be instances where we would not want to have information just wholly provided to the public. I think that there are legitimate reasons for not wanting 100 per cent disclosure, but we could have partial disclosures of information; there is no question about that.

I mean, that is another determination that would have to be made. I think it is certainly a role for the commissioner in that, but at least here we are going back to the standard language that we see across the country. Because, as I said, we really do not want to have the least forward looking legislation in Canada; we really want to have the most forward looking legislation in Canada. We can have the most progressive language in this legislation that we want to have. It is the willingness of the government to compromise and to understand that some of this is a little too severe. It tightens things up a little too much and it provides more – what someone said a few hours ago in the debate – really a blackout on access to information rather than really holding true to what this should be, which is an act that does provide access to information and not one that provides for a diminution of access to information.

I think I will leave it at that for now. I strongly support the amendment and I thank the member for bringing it forward.

CHAIR: The hon. the Member for Burgeo – La Poile, to speak to the amendment.

MR. A. PARSONS: Thank you, Mr. Chair.

It is a pleasure to stand here this evening, or this morning, or whatever time of day it is and speak to this amendment. A very substantial amendment, Mr. Chair, as it relates to section 18.(2). Again, section 18.(2) is where we talk about these public bodies that shall refuse to disclose to an applicant a Cabinet record which would include again the official Cabinet record, the discontinued Cabinet record or the supporting Cabinet record.

As I understand it, Mr. Chair, what we have asked for here seems to be a very reasonable compromise and actually a return to what was there previously and what I believe Mr. Cummings actually wanted to stay in the legislation. I do not think he made a recommendation, if I am correct, that it be removed.

We talk about the substance of deliberations. So, really, I think you need to figure out – because it sounds like a nice term "substance of deliberations". We have to look at, what does that mean when we talk about the substance of deliberations? We have to figure out was there a meaningful conversation, discussion, chat that took place in the Cabinet room about government policy as it relates to any number of departments? What was the substance of that? If it is trivial, then is that something that was meant to be included in exempt documents, documents that should be hidden from the public?

What I would say is that it was always intended that no, that is not the case. We all know the line of there has to be a case of certain information needs to remain out of the public eye in order to allow government to do their job. We all realize that, and I do not think there has been any disagreement with that. It has been recognized in scholarly text, it has been recognized in different papers that have been written over the years, and it has been recognized I am sure by anybody who has ever been in government. You cannot have all the information released to the public or else you are just going to be unable to do the job at hand.

When you cross that line to protecting all the information then that is not conducive to good government, there is that line. When you think about the act as a whole, we are talking about the balance that must be struck. When we talk about life in general, there is a balance. In relation to this piece of legislation, there is a balance as to information that is exempt or is not a problem to be exempt, versus information that should not be held from the public view.

What I would say when we talk about the report and the recommendations that Mr. Cummings looked at – and I am not sure if it was the government position that Mr. Cummings in his recommendations suggested that we remove the test. Certainly, my review of the recommendations that were released in January of 2011 was that no, he actually said very clearly, I agree that Executive Council's position about the need for Cabinet confidentiality is important; however, he is not prepared to say that this means all Cabinet records must be protected from disclosure in their entirety. It means that there needs to be a severance of Cabinet records to determine the substance of Cabinet deliberations should continue.

What Mr. Cummings is saying – and this has been echoed in the unanimous decision of the Court of Appeal – was that we cannot have blanket coverage exempting all Cabinet documents or discussions from view by the public. There is no need to have this widespread blackout of information. He said that very clearly. When you review the judgement of Justice Harrington and when you get to paragraph 80 in his judgment where he goes into the opener sections, he says this type of coverage is going to lend itself to abuses. That is not what anybody wants when we talk about government or when we talk about the release of information.

We talk about the fact that there needs to be that balance and that trust between both the Privacy Commissioner and between government departments. Government departments are expected to release or put forward information that is relevant. It is also expected upon the Privacy Commissioner to take this information, review it, and use discretion and good judgment to figure out what information should validly be released or validly kept out of the public eye.

I go back, Mr. Chair, to when we talked about the amendment here. We look at what the old section said. The old section, section 18.(1), is the original section which we thought was fine. There was no, I guess, section 18.(2), but there was a section 18.(1). It says, "The head of a public body shall refuse to disclose to an applicant information that would reveal the substance of deliberations of Cabinet, including advice, recommendations, policy considerations or draft legislation or regulations submitted or prepared for submission to the Cabinet."

Now, in this case, the subsection (1) did not apply to "(a) information in a record that has been in existence for 20 years or more…." In this case we are saying that Cabinet documentation that was there for twenty years, which is certainly a very, very long period of time, and it is hard to make something relevant that was used or followed twenty years prior.

When we look at the new section 18.(2) that has been suggested, what we are saying is the head of a public body – and look at these public bodies that are out there. I believe it is something that was referenced in the 2010-2011 Annual Report of the Office of the Information and Privacy Commissioner. There were some 500 public bodies that are subject to this legislation. Some of them were referenced in the CBC reports tonight. "The head of a public body shall refuse to disclose to an applicant a Cabinet record, including (a) an official Cabinet record; (b) a discontinued Cabinet record; and (c) a supporting Cabinet record." What we are adding there is a very relevant piece, a piece that never should have been excluded and it was not recommended – it was not recommended - by Mr. Cummings.

What we are asking is that the Privacy Commissioner be given the right and the opportunity to examine the information and have a look and see what should be excluded, what should not be excluded, and I think that is quite important. When you look at the recommendation, and certainly what the commissioner - the review of the Access to Information and Protection of Privacy Act, it is quite substantial here, this recommendation particularly. There are some sections that are not so large; they are sort of housekeeping in nature. In this case, it is quite substantial. A lot of this report was done on other provinces, other jurisdictions. I guess the good term is best practices. Best practices is the term that seems to be used whenever we talk about legislation.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. A. PARSONS: Again, one thing that was specifically noted was the Manitoba Ombudsman. The Manitoba Ombudsman interpreted similar Cabinet confidence provisions and specifically rejected the notion that the Manitoba provisions exempt entire classes of records from disclosure.

AN HON. MEMBER: MHI?

MR. A. PARSONS: We certainly do not want to get into MHI here tonight. We might be going on into the fall then.

Rather, what the Manitoba Ombudsman suggested was you could exempt a specific class of information that reveals the substance of Cabinet deliberations. For the exceptions to apply, the information itself must itself reveal the substance of the deliberations of Cabinet.

What I am saying here is very important. I am saying to you right now look, you are about to vote on this piece of legislation, so please listen to what I am trying to say because it is very important – it is very important.

There is a difference between records and information. You might not agree, but as long as you listen, that is the main thing. You have no obligation to agree with me, certainly, not a problem; but, as long as you understand what it is I am putting out there is part of this amendment. There is a specific difference between records and information.

CHAIR: Order, please!

MR. A. PARSONS: I guess I am going to have to wait until my next opportunity to speak before I can continue on.

CHAIR: I remind the member that his time for speaking has expired.

The Member for The Straits – White Bay North.

MR. MITCHELMORE: Thank you, Mr. Chair.

I have to speak again to the amendment put forward by the Member for Cartwright – L'Anse au Clair and reiterate the importance of having the substance of deliberations added back into the act. This is highly critical; it is the standard across the country when it comes to having this information there. If we look at certain offices of government – if we look at, for example, the Auditor General and his ability when he had looked for documentation or looked for information, there was a request put forward for the infrastructure strategy and it was denied. In the opinion of the Auditor General, which was stated in the report, when the Auditor General went to the individual departments seeking information –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. MITCHELMORE: – under the department's interpretation of section 18, the Auditor General had reported that it is a much broader interpretation of the act that has been seen in recent memory. That is of concern when you are starting to broaden the act and if, right now, without the amendment, it would not have a substance test. So it is certainly broadening that ability and that authority of a government's department to withhold information.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. MITCHELMORE: Thank you, Mr. Chair.

The importance of having that ability to have that test – because the position by the department is of very significant concern, not only just for this individual review but the precedent that it sets for refusal is quite clear. It is very evident that without the substance of deliberations of Cabinet, that terminology, which is put forward in this amendment, without it in the act, then it opens up the ability for the rejection of the Office of the Auditor General to have further information refused. That is not allowing us to have a more open and transparent government.

When it comes to the Auditor General and what the report had stated, the request for information from various departments – there were five departments that were requested – the request was inconsistent with previous decisions that government has made. The Auditor General has been provided with similar information for audits similarly that were conducted in past years. This really sets into question: Why withhold that information?

If we look at the Office of the Information and Privacy Commissioner, they found that this acclaimed exemption by the government should not have applied or may be too broad. When you look at that, when you look at two independent bodies, offices of this Province that are serving the people, it is really question why – why would there be a removal for the substance of deliberations? It is taking out an ability to have some protection when it comes to what classifies as an official Cabinet record, what is a discontinued Cabinet record or a supporting Cabinet record. If there is information that can be supplied to the general public, or whether it be the media or whatever the case, to the Auditor General, to another body of government, it should be able to go through that substance of deliberations for that determination.

You only have to look at that $5 billion proposed infrastructure strategy, which the previous Acting Auditor General stated about the broad definition of Cabinet secrecy. This, without putting the substance of deliberations back in the amendment, you will see a greater level of secrecy put forward because you will not have that measure in place. Despite commentary by others saying that there are reams and reams of information available, if you are hindering someone like the Auditor General in the ability of receiving information – which clearly has guidelines in the act – then that is posing as a problem to looking at how we spend money, how government makes decisions, and really will put into question the future ability and the role of this office to be able to do their job.

I really think this amendment is putting back and it is keeping in line with what is happening in the rest of the country, to have the substance of deliberations, that test, put in there. I think it is highly critical and it is a mistake. I feel it is a mistake to not have that measure put into play.

So with that, I may have an opportunity to speak again, but I will let other hon. members in this House, if they would like to speak to this amendment, have the opportunity to do so.

Thank you, Mr. Chair.

CHAIR (Forsey): The Chair recognizes the hon. the Member for St. Barbe.

MR. BENNETT: Mr. Chair, I thought government members were so anxious to advance and promote the bill that there was going to be some competition with the front bench as to whether we should be – the pros and the cons.

In any event, Mr. Chair, to go the heart of the amendment, this is an excellent amendment. The Opposition is helping the government bail itself out from a very sticky situation. They are in a freefall in the polls and this is a terrible debate for them. It is really hurting, pretty much.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. BENNETT: Mr. Chair, what is an official Cabinet record? This amendment refers to a Cabinet record, and again the operative words are "which would reveal the substance of the deliberations of Cabinet". So what is a Cabinet record? For the purposes of this particular debate, a Cabinet record means advice, recommendations, or policy considerations submitted or prepared for submission to Cabinet. Mr. Chair, that could be practically any document whatsoever.

It also includes draft legislation or regulations submitted or prepared for submission to Cabinet. It also includes a memorandum, the purpose of which is to present proposals or recommendations to Cabinet. Mr. Chair, it also includes a discussion paper, policy analysis, proposal, advice or briefing material, including all factual and background material prepared for the Cabinet. It also includes an agenda, minute, or other record of Cabinet recording deliberations or decisions of the Cabinet.

It also includes, Mr. Chair, a record used for or which reflects communications or discussions among ministers on matters relating to the making of government decisions or the formulation of government policy. Mr. Chair, it also includes a record created for or by a minister for the purpose of briefing that minister on a matter for Cabinet. It also includes a record created during the process of developing or preparing a submission for Cabinet. It also includes that portion of a record which contains information about the contents of a record within a class of information referred to in subparagraphs (i) to (viii).

Mr. Chair, the intent of this particular bill, absent the amendment, would mean that all of these documents would be off limits. None of these documents would be producible and there would be, as the Member for Cartwright – L'Anse au Clair said, a cone of silence descends on Cabinet. Not just on Cabinet, Mr. Chair, a cone of silence would descend on government. This would be a virtual blackout on government information of anything that would be meaningful would not need to be disclosed.

This means that this government is desperately attempting to go back to the bad old days of no disclosure, of not providing any information, of carrying on business as if it is their government, and in fact it is the people's government. The hon. members on both sides of the House are elected by the people; there have three-and-a-half more years to go. This piece of attempted legislation would mean that there would be little to no information to debate.

It is really unfortunate that the government – I will not say in its wisdom because clearly it does not seem to be very wise – wants to shut down information, wants to make government not to provide information. Mr. Chair, this is simply from reading directly from the bill. If the members opposite say stick to the facts, well obviously the facts must be in the bill. If the bill is passed and then becomes law and at a later date anybody who seeks to get information from this government, then they will be told: Well, go back and read the act because the act tells you what you get.

The bill is telling us what the government intends to put in the act and that means to limit, reduce, and exclude information that would be made available to the public in a whole range of areas. Anything that would inform any Cabinet – if it goes to the substance of deliberations of Cabinet, clearly it could be and should be off limits, but the whole wide spectrum of information that the government is seeking to suppress is almost reminiscent of going to some sort of a totalitarian state that this government is attempting to impose on the people.

Mr. Chair, it is easy to understand why the government would be very sensitive about information. When this newly elected government was only two weeks old it suffered a terrible defeat in the Court of Appeal, and that had to deal with solicitor-client privilege on information that the Department of Justice had attempted to suppress. That went to the Supreme Court of the Province. The Supreme Court of the Province ruled in the government's favour. The Court of Appeal ruled against the government. So, what is the government's response?

The government's response, Mr. Chair, is not to take the matter on appeal to the Supreme Court of Canada, it is not to comply with what the Court of Appeal said it ought to do, the government's response is to introduce an oppressive piece of legislation which means that if the law does not work, you simply change the law to fit your conduct. Instead of modifying your conduct to comply with the law or having the courage of your convictions and take the matter from the Court of Appeal on to the Supreme Court of Canada and get an outcome which might be more favourable to the government's point of view, they did not do that. This government would prefer to use a very large but temporary majority in order to put into place a piece of legislation which would govern not just their conduct, but their misconduct. The misconduct is in not supplying information that the current ATIPPA says that you should supply.

The act, when it was enacted in 2002, an act from a Liberal Administration which was proclaimed by this government and which this government saw fit to operate under for a number of years, now they have determined that is too generous, it provides too much information, it results in too much openness, and this government is about anything but openness. This government does not want openness. If we have openness in government, then we find out all sorts of information about government. What is bad about that? Why shouldn't the people know about the workings of government? It is the people who are paying for the government; it is the people who elect the government, and the people to whom the government should be accountable.

The amendment seeks to fix up the bill so the government's misguided attempt to shut down information and to lower that cone of silence, as referred to by my colleague for Cartwright – L'Anse au Clair, will be abrogated to some degree so that at least the government could still come into some reasonable compliance and still provide all the information that is necessary, except any information in the Cabinet record – and the operative words again are – which would reveal the substance of the deliberations of Cabinet. Nobody needs to know that. If Cabinet ministers are debating a matter, then what is inside the Cabinet walls certainly does not need to come out, but any information or documents that may have been submitted to Cabinet, what is wrong with the people knowing what it is that Cabinet is even considering?

The loss of openness with this government will be simply astounding. It is little wonder that the commentary today from Democracy Watch absolutely slams this bill. Mr. Chair, democracy ought to be one of our defining principles. When well-informed commentators say that this results in a diminishment of democracy, clearly that must be a concern.

Mr. Chair, I will have further comments when I am again permitted to rise.

Thank you.

CHAIR: The hon. the Minister of Finance.

MR. MARSHALL: Thank you, Mr. Chair.

It is my pleasure to rise again today – it has been a long day – to take part in this filibuster debate where the government is being prevented from bringing forth its legislative agenda. We will have that debate and eventually we will see if the legislation is passed or not.

Mr. Chair, I am rising to speak against the amendment in this particular case. This is an amendment to clause 6 of the act. I do not know how many amendments we have had, but I think we have probably had four, or five, or six amendments over the course of the day to the same section.

Mr. Chair, in order to understand the amendment you have to look at the original act which is section 18 of the original legislation. That legislation mandates that the head of a public body shall refuse to disclose to an applicant, to a person applying to the head of a public body for information. He shall refuse to release information that would reveal the substance of deliberations of Cabinet. So the substance of deliberations of Cabinet is not to be disclosed. The question is: What is the information that he has to refuse to allow an applicant to get? What is the information that would reveal the substance of deliberations to Cabinet?

We have some help in the legislation. When it is referring to the information that would reveal the substance of deliberations of Cabinet, it says including advice, it is including recommendations, policy considerations, or draft legislation or regulations submitted or prepared for submission to the Cabinet. Mr. Chair, that is the first thing we are going to look at. You are going to look at the policy, you are going to look at the advice, you are going to look at the recommendations and those things cannot be disclosed.

According to the Cummings report, there are other jurisdictions in the country that have similar legislation to what we have in ours. Manitoba, New Brunswick, and Ontario's provisions include a much more substantial description of what information is included within the scope of the exception, insofar as it offers a definition of information that would reveal the substance of deliberations of Cabinet. This is all set out in the Cummings report, and I am sure many members here tonight have read this.

If you look at the Ontario Freedom of Information and Protection of Privacy Act, it says, "a public body shall refuse to disclose a record that would reveal the ‘substance of deliberations' of Cabinet." This section then goes on to list Cabinet confidences as specifically including the following – and there are a bunch of them listed. While the wording is not totally exact, they are pretty much what are included in section 18 of the proposed legislation. In the definition of Cabinet record, it includes advice, recommendations, or policy considerations submitted or prepared for submission to Cabinet, just like the existing legislation provides for.

The proposed legislation also includes reference to draft legislation or regulations submitted or prepared for submission to the Cabinet. It then goes on to include other matters, which are examples of information that would disclose the substance of Cabinet discussions or deliberations. They include a memorandum, the purpose of which is to present proposals or recommendations to the Cabinet. They would include a discussion paper, a policy analysis, proposal, advice or briefing material, including all factual and background materials prepared for the Cabinet. There would be an agenda, minute or other record of Cabinet recording deliberations or the decisions of Cabinet.

These documents are the documents we rely on in the Cabinet process. The first thing that happens is there is a briefing note, where the minister who is going to bring forward a particular item as part of the Cabinet process would have discussions with his officials or her officials in which they would look at different options. They would consider different policies. They would consider different options. The minister might instruct the staff to go forward and prepare a Cabinet paper to bring it forward. A Cabinet paper would be prepared, including analysis, including the facts, including recommendations, including policy decisions, and including options and recommendations.

Then that document with things attached to it like gender analysis, like effects on rural parts of the Province, communications plans, these things would then be submitted into the Cabinet system and go through the different subcommittees of Cabinet, whether it is Economic Policy, Social Policy or Treasury Board. These documents, the briefing note of the minister, the Cabinet material, the documentation that supports the discussion that is in the Cabinet paper, possibly the minister may seek some advice from an official, maybe a lawyer in the Department of Justice to get an opinion, and that would be included with the documentation. There might be other advice; maybe a memo. Maybe the minister might seek a memo from the Human Resources Secretariat on a particular issue. That advice would be included with the material.

All of those documents, all of which are listed in the act, in section 18 of the act, are the documentation which is subject to the discussion and the deliberations of members of Cabinet at the subcommittee level and at the full Cabinet level, on which they base their decisions. The existing law excludes deliberations – the substance of deliberations of Cabinet are excluded. If anyone applies for that information from a head of a public body, the law right now says that information cannot be made available. That information cannot be disclosed.

All we are doing here in the act is expanding the definition of the things that would be information that would reveal the substance of deliberations including advice, recommendations, policy considerations, draft legislation, which we have in the existing legislation and also adding to it "a memorandum, the purpose of which is to present proposals or recommendations to the Cabinet, (iv) a discussion paper, policy analysis, proposal, advice or briefing material, including all factual and background material prepared for the Cabinet, (v) an agenda, minute or other record of Cabinet recording deliberations or decisions of the Cabinet, (vi) a record used for or which reflects communications or discussions among ministers on matters relating to the making of government decisions or the formulation of government policy, (vii) a record created for or by a minister for the purpose of briefing that minister on a matter for the Cabinet".

All we are trying to exclude, by the legislation, is the information that would disclose the matters which are the famous words that have been tossed around here today: information that would reveal the substance of deliberations of Cabinet. What we are trying to do is say these are the documentation, these are the normal forms that are relied upon in the Cabinet process and these are the things that, therefore, cannot be disclosed.

It is pretty simple, Mr. Chair; it is not a big deal.

Thank you.

CHAIR: The Leader of the Official Opposition.

MR. BALL: Thank you, Mr. Chair.

This is my first opportunity tonight to speak to the amendment of Bill 29, clause 6, section 18.(2). The basis of the discussion, for most of discussion, of course the amendment tonight, is as the minister said about the substance of deliberation. Mr. Chair, this was an issue that we first raised in the initial debate yesterday and the reason why we have moved from the original bill back in 2005 to this amendment now to remove this clause.

Mr. Chair, what this speaks to – and as we know that Commissioner Cummings, as he did his review, his mandatory review was part of this piece of legislation. What happened in section 18, this speaks to the Cabinet confidences. Mr. Chair, section 18 consists of the mandatory exemption of disclosure where the information requested would reveal the substance of deliberation of Cabinet. This includes the advice, the recommendations, the policy considerations, or the draft legislation of regulations submitted or prepared for submission to Cabinet.

Mr. Chair, when the decision was made by Mr. Cummings, part of his review, what he did is he looked at other jurisdictions across Canada. Most of the access to information from his review of the legislation across Canada protects the disclosure of Cabinet confidence which would reveal the substance of deliberations of Cabinet. Mr. Chair, there was a precedent set for the substance of deliberations to be not just openly disclosed to the public in this particular case. In ATTIPA, the advice, the recommendations, the policy considerations, the draft legislation, or the regulations are all listed within the meaning of the substance of deliberations. This all happened as a review of other jurisdictions, Mr. Chair.

There was a submission made, as we know. As part of this review, there were submissions made by many groups across the Province. Indeed, Executive Council in this particular case had made a number of submissions, three, on section 18. Of course, you would understand in their particular case they were concerned about the amount of information that would be available to the public and what would be used for a Cabinet to make a decision.

After reviewing all of this and reviewing the submission by the Executive Council or the Cabinet, Mr. Chair, what the Executive Council wanted to do in their presentation, the submission of Executive Council presents the position that strong protection from disclosure is needed for Cabinet confidences. What they were asking was to strengthen this. They actually felt that in this particular piece of legislation the disclosure was a little too loose for their liking. They wanted to firm this up, tighten this up, Mr. Chair, so this would make it much more difficult for public disclosure.

This position is based on the well-known and long-standing principle that the ability of ministers to discuss in an open and frank way without fear of disclosure. Mr. Chair, in our opinion, if a minister was going to actually enter into a meaningful discussion and they want to be frank about that, the blanket here is cast way too broad. Not everything the minister would say in terms of deliberations within Cabinet needs to be held from disclosure to the public. Mr. Chair, this is where the substance of deliberation – there would be a test that would mean that someone could actually review this information and decide whether this is something that should be able to be disclosed to the public.

Mr. Chair, added to that, what Cabinet asked for was to actually have the list expanded. There was a list of things that would be included under the Management of Information Act. The Executive Council has made it clear in its submission it believes the list found in the Management of Information Act, which was an act that was last amended in 2008, and this is an act that really deals with how government deals with its internal information. We will speak a little bit more about that, but what we really want to focus on here today is the position of the Executive Council or indeed the Cabinet, in their submission to the commissioner that they wanted to actually tighten up and to make the information less available to the public. They wanted fewer documents that would be disclosed.

In this particular case, the commissioner's office, he felt that after his review that he was not prepared to say that all the Cabinet records must be protected from disclosure for a number of things. First of all, this substance of deliberation, there needed to be a test that would be determined if indeed the items that were being discussed would actually mean that they should not be open to the public.

Also, the commissioner was not prepared to say that all Cabinet records must be protected from disclosure for the entirety of twenty years. As a matter of fact, he went to say we should consider maybe fifteen years. This means that the severance of Cabinet records to determine the substance of Cabinet deliberation should continue, in his opinion.

So, what happened here is when the commissioner made his recommendation that, indeed, this should stay in, not only did we expand the records that would be prevented from disclosure, the items that would be included in the Management of Information Act – in that particular case, we could actually almost agree with because this makes the legislation consistent with what we see in other agencies. In this particular case, to actually remove the recommendation or not accept the recommendation from the commissioner that the substance of deliberations test must be met and all the material that was available for Cabinet deliberations would not be disclosed, we felt that this was way too tight and there needed to be this test that was put in place to determine the impact of the substance of Cabinet deliberations.

It is also worth pointing out that the commissioner in this case had not found out any interpretation of provincial legislation that necessarily excludes all Cabinet information or entire Cabinet documents or records from disclosure and avoids severance. What he is saying here and his final noteworthy point is that the courts of the Province had never had an occasion to comment on this, so there was really no precedence set in the court to determine if this test indeed should be met.

The commissioner's office suggested that it may be worthwhile making the exception from the disclosure found in section 18 discretionary – discretionary, in his recommendation, instead of mandatory. So what he wanted to do was still allow for the opportunity for someone to actually review this information and then make the decision on a discretionary basis instead of making it mandatory that the information would not be available for public disclosure. This would then encourage the disclosure of some Cabinet information – not all of it – is something that should be exempt from public disclosure.

Mr. Chair, in this particular case the government did not accept the recommendation under clause 6, section 18.(2), allowing for the substance of deliberation to be on a discretionary basis versus a mandatory basis.

This causes us great concern right now. It is five years in part of this review and we see where even after the jurisdictional scan that, really, it makes no sense for this exemption of disclosure to be mandatory in this particular case. It has not been there in the past, so why add it at this point? It makes no sense to do it now. We would be suggesting in our amendment that the substance of the deliberations of Cabinet would still be included on an official Cabinet record, a discontinued Cabinet record and a supporting Cabinet record.

So Mr. Chair, I will conclude my remarks at this point, but I will be coming back to this amendment in a few more minutes.

Thank you very much.

CHAIR: Order, please!

The Member for Burgeo – La Poile.

MR. A. PARSONS: Thank you, Mr. Chair.

I am happy to stand and continue my comments as it relates to this section. I am sorry if I interrupted the Member for Exploits who looked like he had some comments to make. Certainly, I look forward to those after.

What I would say is I will go back to where I was and what I would ask is that you keep in mind that in a lot of ways this particular section we are talking about and the amendments we are making to this section, this is the most important clause in many ways in this entire piece of legislation. There are so many different issues that we have with it, which is why we have put the amendment forward in the first place. I am putting it out there; I have put it out there numerous times. The statement that this is improving openness and transparency is directly contradicted by this new section. That is out there and if somebody can stand – I would invite a government member to stand and show how I am wrong. Not just in rhetoric, but actually explain to me in substance why or how openness and transparency has been improved by the amended section here. That is what I am waiting to find out because I do not think that is the case.

Basically what we are doing is two things – which again are why we have put the amendment forward. We are putting a blanket statement on Cabinet documents all being excluded from review; that is number one. The second part is that this is another section where we have removed the Review Commissioner from being able to do his job that he was appointed to do. Simply, that is just not good enough, Mr. Chair, I would submit. It is just not good enough. I can keep saying that again, and again, and again and I do not know if the people will understand.

I go back to the amendment that we have there, which is the substance of deliberations. Really, what you have to do is go back to why we have stood here in the first place which is the report done by Mr. Cummings, which I would note again was done without the benefit of hearing the Supreme Court of Appeal's decision, done without the benefit of that which specifically discussed the same stuff that we are talking about now. I go back to the fact that much of this legislation was done by going through various jurisdictions and picking out the most stringent or the tightest sections from all the different jurisdictions to give us the most strict piece of legislation that possibly could have been done, which is in direct contradiction to the promise made in the first place of unprecedented openness and transparency.

I think where I left off, Mr. Chair, was when I talked about information versus records. It is right here on page 38 of Mr. Cummings' report. The Manitoba Ombudsman – we have listened to what Manitoba has done. In their case, they rejected the notion that we should exempt entire classes of records instead of information. What I would say is that if you take somebody's record and by doing that, just to give you an example, if we take someone's record, maybe it is in a file filled with different pieces of information, and completely, 100 per cent, exclude that from consideration that is not the intent nor is the purpose nor is it the right thing to do.

What you need to do is you need to allow your Privacy Commissioner to go through the record and review the information and the different pieces of information in that record. By doing that, what you are able to do is figure out which information was, say, pertinent or contributed to Cabinet discussions and which information did not. Therefore, the information that did not should be allowed to be accessed.

We talk about the parts of this that we already discussed where Cabinet records are going to be excluded, I think, for five years. We already have to deal with that part, which again all the different pieces here contribute to the greater goal which is to suppress the information in the first place.

What I would say when we talk about the amendment, Mr. Chair, is we are trying to add the substance of deliberations, a very reasonable compromise and one that certainly the commissioner suggested should have remained there in the first place. We look at the Executive Council, the commissioner's office and the Official Opposition; they were the three groups that made submissions regarding this specific section. The long-standing principles that ministers need to have the ability to discuss issues frankly and without fear of disclosure – again, that is a vital part and we recognize that it is a vital part.

Executive Council expressed this here. Their words to this effect, Mr. Chair, were: The confidentiality of what is said in a Cabinet room is a long-standing principle of the British democratic tradition. They must have the ability and responsibility of making government decisions and being free to discuss all the issues that go with it.

MS JONES: Who said, though?

MR. A. PARSONS: Oh, this is what Executive Council said.

MS JONES: Who is the Executive Council?

MR. A. PARSONS: The Executive Council is Cabinet. That is right. So, just to make sure for people who are watching this, yes – Executive Council is Cabinet. We are discounting Cabinet records.

Cabinet wants to make decisions without fear of having certain unpopular positions held against them down the road. It says: Effective government requires that Cabinet members speak freely without fear of stating unpopular positions or making comments that might be considered to be politically incorrect if made public.

Now, God forbid that a government do something unpopular. We have spent the last number of hours in here discussing something that is obviously unpopular with the public given –

MS JONES: It is not popular with us.

MR. A. PARSONS: No, it is not popular with us and it is certainly not popular with the people.

AN HON. MEMBER: (Inaudible).

MR. A. PARSONS: There is, when you get the democracy watchdogs on this and when you get the number –

MS JONES: The who?

MR. A. PARSONS: The democracy watchdogs.

MS JONES: Who are they?

MR. A. PARSONS: I am going to break that down into laymen's terms. That is a group that likes democracy.

CHAIR: Order, please!

I would ask the member to keep his comments relevant to the amendment.

MR. A. PARSONS: Sorry, Mr. Chair. I will go back to discussing relevant stuff, such as democracy.

What I would say is that I understand the fear of a minister putting out an unpopular situation. Depending on which portfolio you might have, the fact is – I look at the Minister of Fisheries and I empathize with him because that is a tough portfolio. Certainly, you have to discuss things that are unpopular and might go against, we might even say, the historical underpinnings of this Province. That is a tough thing.

Do you know what? Here is what I would say to you: You have discussed those unpopular things out in the public and it has not affected your ability to do your job. You have come out, you have been frank, and you have been forthright. You have discussed the thing. You were not afraid to put out the fact that you may have to close fish plants. What I am saying is that you have taken these unpopular topics that no doubt were discussed behind closed doors and you have put them out there; you have done your job.

There are other ministers who do not have the – and the term I would use, there are other ministers who do not have the intestinal fortitude to have something unpopular discussed out in public. I will go back to laymen's terms, guts – who do not have the guts to discuss something unpopular out in public. There is a difference between –

CHAIR: Order, please!

Again, I would ask the member to be relevant to the amendment that we are considering at this stage of the debate.

MR. A. PARSONS: Mr. Chair, what I am saying is we are talking about Cabinet and the fact that Cabinet needs to have the ability to discuss things frankly. What I was using was an example of one particular minister and there are other ministers over there who have tough jobs to do. I was just using one particular minister to outline what I am getting at, which is that just because something is unpopular does not mean it should not be disclosed to the public. The public has a right to know these things. If we amend this section, as has been suggested – and that is why we are putting the amendment to that – what I am suggesting is that we are getting away from the whole point of this. Just because something is unpopular does not mean the public should not know. If we are just going to put the good news out there, Mr. Chair –

CHAIR: Order, please!

I remind the member his time for speaking has expired.

Before I recognize the next speaker –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

If I could have everybody's attention, please –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

We have been discussing for probably a couple of hours now an amendment proposed to Bill 29. The amendment basically just adds a phrase. The phrase is "which would reveal the substance of the deliberations of Cabinet…" We have been straying off topic, I would say, quite considerably. I am going to require speakers to speak to the amendment and to the amendment only now as we recognize further speakers.

I want to draw everybody's attention to a section in O'Brien and Bosc, page 620 –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

It deals with repetition and relevance in debate. I am going to read directly from the Parliamentary handbook here, "When enforcing the rules against irrelevance and repetition, the Speaker can call a Member to order and, if necessary, warn the Member" – which I have done several times in the debate here in the last few hours; I have certainly spoken to relevance many times – "that he or she risks being directed to discontinue his or her speech." I will do that. If people do not stick with relevance in the rest of this debate, I will be asking the people to discontinue the speech.

Further to repetition, on page 622, "The Chair can curtail prolonged debate by limiting Members' speeches to points which have not already been made." I would argue the points particularly that we have been discussing in this amendment, I have heard many points being made over and over again in the last couple of hours. "In the context of the legislative process, this latter restriction" – which are the points being made over and over – "applies to the Members' remarks only within the same stage of debate on a bill."

This ruling – if we were in second reading and you were making repetitious points, we can rule on it in second reading. When we are in Committee, again, I am not ruling that the points you have made you have already made in second reading, I am ruling that the points you are making over and over again you have already made at the Committee stage.

"The freedom of debate enjoyed by Members does not extend to the repetition of arguments that have already been heard." I am going to be guided through the rest of the evening on this particular section of O'Brien and Bosc. I will recognize the next speaker to speak to the amendment.

The hon. the Member for Cartwright – L'Anse au Clair.

MS JONES: Thank you very much, Mr. Chairman.

Thank you for drawing our attention to the repetition and relevance in debate in O'Brien and Bosc, Chapter 13.

Anyway, Mr. Chair, it has been some time now since I last spoke. When I did, it was when I proposed the amendment. I was speaking to the amendment and was stating my particular case, so I will pick up where I left off. That was in terms of why I was making this amendment and it had to do with the fact that government had redefined what a Cabinet record was. As I said, we had supported that, but we were asking for an amendment under subsection (2) of section 18 of the original act because we felt that it was going to limit us in the access of information.

I was explaining how a Cabinet record was defined and I was just about to get to the point where they had established three different levels. One is discontinued Cabinet records, one is official Cabinet records, and one is supporting Cabinet records. I will explain how that works.

Mr. Chair, "‘discontinued cabinet record' means a Cabinet record referred to in paragraph (a) the original intent of which was to inform the Cabinet process, but which is neither a supporting Cabinet record nor an official Cabinet record".

For example, Mr. Chair, it could be documentation that was used or was designed with the original intent to be used to help Cabinet make a decision or to support a process that they might be involved in. Maybe it never ever was used and maybe, Mr. Chair, it is not even relevant any more so it does not need to be used. Then that would be termed a discontinued Cabinet record.

When you look at the rest of the definition – because in order to explain the reason why we are making the amendment in section 18.(2), you need to understand where the changes are in section 18.(1). There are only two other points that I have not had an opportunity to talk about here. The other piece has to do with the official Cabinet record. The "‘official cabinet record" means a Cabinet record referred to in paragraph (a)…" and those are all the things I listed when I spoke the last time. That was, Mr. Chair, the nine different sections that were added in defining that. That makes up what they call paragraph (a). I am not going to go back and read them all again because they are there, they are on-line if people want to look them up, and I have already read through all of them in making my original comments.

Mr. Chair, basically what that says is that the official Cabinet record is anything that has been prepared for and considered in a meeting of the Cabinet. That could mean a briefing note that was submitted. It might look at some kind of policy analysis that was done. It might be a cost analysis that was done. It might be a request that came externally from a corporation, from a school board, from a health board. It might be something that came from the general public, from a non-profit group, from a municipality. Any of those particular groups that may have submitted something to government making a request that ended up formulating some aspect of a Cabinet record, then that would be off limits. That is basically what has been defined here.

Mr. Chair, I do not see any limitation on that. That could be a newspaper article. It could be as little as a newspaper article which is easily available or it might be an internal poll that the government had commissioned. Maybe the government decided that they would poll people before bringing forward a Cabinet document on a certain issue. Well then, Mr. Chair, that would disallow you from being able then to access, under information, the results of that poll, the polling question, the periods in which is was done, any of the information that was contained in it because then, all of a sudden, it becomes a part of the official Cabinet record.

So, Mr. Chair, that is significant because like I said, it could be something small, but it could be something really big. I just used the idea of a polling thing as one aspect, but it could be something else. Maybe they have asked someone at the Harris Institute to do a review. Maybe it is going to be of the employment services in the Department of Advanced Education and Skills and they are going to ask someone over there to do a review of that for them and to do a report of that for them and to submit that to the government. Then, all of a sudden, they are looking at it and they say: Well, we have to make changes in this program and there are some good ideas in here. Maybe what we will do is we will look at making a change in this direction or that direction. Therefore, that document then becomes a part of that process that has helped them in preparing for that decision or that meeting to be taken in Cabinet and it can be deemed an official Cabinet record.

So we are not just talking about Cabinet papers here. We are not just talking about briefing notes that would be done in a department. What we are actually talking about is anything that could be used in preparing for that. Whether it is a survey, whether it is a poll, whether it is a study that was commissioned. Whether it is newspaper clips, whether it is some kind of advice that came in, in writing in a letter. Whether it is the unions that want to have input into something that might be going on in labour relations; it might a labour bill, Mr. Chair. So, it is endless. I can stand here of the next three hours and come up with different kinds of information that would actually fall under this particular clause.

The other thing that they looked at is what they deemed to be supporting Cabinet records. This "means a Cabinet record referred to in paragraph (a)" – paragraph (a) is all the new aspects of this bill – "which informs the Cabinet process, but which is not an official Cabinet record."

So, Mr. Chair, even if it is not an official Cabinet record, even if it is just for information purposes, maybe a good example might be that they are going to make an amendment or they are going to bring in a new policy in Education – maybe they are going to have all-day kindergarten. Perhaps that is the piece that we will look at. Perhaps they are going to look at all-day kindergarten. What do they do? They go out to the school boards and they say to the school boards: Listen, this is what we are looking at, but we want to be better informed about this.

Let me give you a better example, Mr. Chair. A better example is they may take a senior person in their department, they might say: Listen, we need to get more information on this. We want you to see what is done everywhere in Canada with regard to full-day kindergarten and we want you to see what is done in Europe, in the United States, pick two or three countries – Australia – and we want you to report back to us on how they deal with all-day kindergarten and do they have those programs.

Well, Mr. Chair, that is information that the minister goes out and looks for, to educate themselves in what is going on. Well, now, that information will be considered a supporting Cabinet record. In having that information considered as a supporting Cabinet record, it ties our hands; it restricts us under the legislation from obtaining that information because they have removed the substance of the deliberations of Cabinet clause. Because they have removed that, that information now will not be able to be accessed, probably not without having to go through the tribunal courts.

CHAIR: Order, please!

I remind the hon. member that her time for speaking has expired.

MS JONES: Thank you, Mr. Chair.

CHAIR: The Member for St. John's North.

MR. KIRBY: Thank you, Mr. Chair.

Maybe I can continue on along here. When we are looking at the compromise amendment and going back to this whole question of substance of deliberations, I think one important thing that has not be mentioned at this point, which is certainly of relevance, is the way that this was really approached by Commissioner Cummings who said he did not intend to get into a more detailed analysis of the various interpretation of the courts and the commissioners across Canada about the disclosure of Cabinet information under various legislative regimes.

We have talked about various legislative regimes across the country and they are variously interpreted by the courts where individuals or political parties, or the media or organizations, or businesses or agencies do not have any other option but to go to the court, which would likely be the case in the event that we end up with some morass to this bill. In any case, there are other instances, of course, where commissioners – the way we have it now and the way we would certainly like it to be maintained well into the future – have an opportunity to interpret and make rulings with respect to the acts.

He goes on to say, for the most part, these are similar but they vary in some significant respects. There are two basic interpretations of provisions in which the substance of deliberations test is found. There are multiple interpretations, we understand, of the substance of deliberations test. That is something that will inevitably be ironed out here sometime in the future, I am well certain. Interestingly enough, Commissioner Cummings goes on to say that even though Executive Council – Cabinet here – prefers one of the interpretations, in the end it believes the test for Cabinet confidentiality lacks clarity and disapproves of the line-by-line severing required to determine what information must be disclosed or withheld from disclosure when applying the test.

I understand that Cabinet has serious concerns and reservations about this. That makes sense. As a member stated earlier, anybody who knows anything about the operations of government knows the delicate issues that are involved, has an appreciation for the difficult work Cabinet ministers have to do and a Cabinet as a collective, that Executive Council has to carry out in completing their functions and their responsibilities to the people of Newfoundland and Labrador. They know there are valid reasons for there to be serious concerns about interpretations of legislation, especially the question of the substance of deliberations, which is a test that has multiple interpretations in jurisdictions beyond ours. Where it is yet somewhat unseen, there is a lack of clarity around where this would go in the future here.

In any case, Commissioner Cummings goes on to say that the interpretation that is preferred here is one that is more extensive and that is similar to legislation that exists right now in the Province of Saskatchewan, in Manitoba, and in Ontario. When the member was speaking earlier – I know for the people who are watching at home when we are talking about Cabinet records, discontinued Cabinet records, and supporting Cabinet records, it all seems rather unwieldy; it is difficult to understand for the layperson. A lot of this is laid out in pretty significant detail, I think, in a way that is far more detailed than was laid out by Commissioner Cummings. Commissioner Cummings had – I think it was a far more simplistic list in some ways.

I know the member was talking about if all-day kindergarten was the question that somebody wanted to be seeking information about, or records or data, other information that government has reviewed, maybe that could be something that is on an agenda for Cabinet. Really, what would be the harm? What would really be the harm on knowing whether that is on the agenda or not? I know a lot of my constituents would like to know whether or not that is on the agenda for Cabinet.

If it is in the minutes, if it is in the official records of meetings that are held by Cabinet – we are not saying that you have to give all of that out, that you have to provide a complete 100 per cent disclosure. No, not at all. That is the beauty of effective access to information and protection of privacy legislation. You do not have to do that. The minutes could have some portion of it redacted, but you could see that issue is being considered.

Then if you think about the question around policy options or policy papers, whether things are being considered more in-depth, maybe there are things that are in policy papers or research papers, options papers, Cabinet documents that not only provide background for the background research of what government has done. That could be useful to the public and that could be relatively innocuous. If you are thinking about in the context of something like all-day kindergarten, that could be helpful to a member of the public. They could be seeking that information because it would be of some help to them. If the Cabinet does not want its recommendations, the direction that it is planning to go in made public –

MR. KING: A point of order.

CHAIR: Order, please!

The Deputy Government House Leader, on a point of order.

MR. KING: Mr. Chair, just a point of order following up on your latest ruling. I think the point has been made very clearly a number of times here that there is information which members feel the public ought to have a right to and if there is information that ought not be shared that it can be redacted or blacked out. I think it has been made multiple times across the way by many speakers.

I am just asking you to enforce the ruling you made a few moments ago that if points have been made on this particular debate, they will not be allowed to be repeated over and over.

CHAIR: Order, please!

One of the difficulties in enforcing the repetition is that the Chair will need to recall what was being said earlier, and that is sometimes difficult.

I appreciate the point made by the Deputy Government House Leader, particularly with respect to the point about redacting information. That has certainly been made several times in this debate.

I would go back to the Member for St. John's North and ask him to continue with his comments on this amendment and to try to avoid repeating any points that have already been made.

The Member for St. John's North.

MR. KIRBY: Thank you, Mr. Chair.

As I was saying, some of these documents relate to options papers, so they provide a background of information for the decision that Cabinet is going to be making and then a number of options that government has to select from. They will provide, sometimes, suggestions around what the level of difficulty would be involved or what cost would be involved, the political price to pay, what would be involved there. Whether something is at high risk, of low risk, rather innocuous, that sort of thing.

Then there are other documents, if you think about communications between ministers. Is the Minister of Education writing to the Minister of Finance to say well, do we have funding available for all-day kindergarten; or he is writing to the Attorney General to say what are the legal implications for government of having an all-day kindergarten program; or writing to the Minister of Advanced Education and Skills and saying do we have the suitable programs in education, whether that is at the college level or at early childhood education, or whether it is at the university level, preparatory programs. Those sorts of communications between ministers, consultations between them when they are looking at whether or not they should go in a certain direction. They are all basing that on the advice of various records and information that they have been provided with to make their decisions in the most competent way that they are able.

Draft legislation is another area that is before Cabinet. For example, this draconian access to information legislation that we have before us, Bill 29. This, at some point, was considered by Cabinet. Somebody actually thought this was a good idea to bring this to the Legislature and, obviously, did not predict the public outcry that would have resulted in doing that.

Thank you, Mr. Chair.

CHAIR: The Member for St. Barbe.

MR. BENNETT: Mr. Chair, I would like to take the next ten-minute segment, and hopefully it will be enough. If not, I will look forward to continuing there after and speak on how I would see the bill working with the amendment as opposed to without the amendment. The amendment includes certain operative words, "which would reveal the substance of deliberations of Cabinet…".

Mr. Chair, why that is important, is that in the annual report of the Office of the Information and Privacy Commissioner - it is interesting to note that it is titled: Promoting Access & Protecting Privacy: Finding the Balance. This is really what the amendment seeks to have the legislation, when it is passed, do. Mr. Chair, in the commissioner's annual report, he starts with the statement, "By providing a specific right of access and by making that right subject only to limited and specific exceptions, the legislature has imposed a positive obligation on public bodies to release information, unless they are able to demonstrate a clear and legitimate reason for withholding it. Furthermore, the legislation places the burden squarely on the head of a public body that any information that is withheld is done so appropriately and in accordance with the legislation."

Mr. Chair, if we then refer to a simple statement from the Green report, it says, "In most cases, the operative logic – buttressed by notions of the rule of law – is that if legislators are going to impose requirements on society," – that means all the other groups would have to comply – "they should be willing, with appropriate safeguards in place, to have such requirements apply to themselves as well."

Consequently, Mr. Chair, by looking at the legislation, by looking at the annual report and referencing the Green report, it is easy to see how this legislation ought to apply to Cabinet and how it should apply to Cabinet. Now, with respect to determining which information is provided and which information is not provided, the Court of Appeal last October paragraph 82 said, "The key to all of this is the good faith in the exercise of authority."

Mr. Chair, that is all the Opposition is seeking to do, is to provide a mechanism whereby the government can use and implement the recommendations of Mr. Cummings and, in fact, allow the government to proceed and make the act more effective. The Court of Appeal itself said just six months ago, "The key to all of this is good faith in the exercise of authority."

So, where does that take us? It takes us to the Cummings report. On page 40, Mr. Cummings says in his discussions, "I agree that Executive Council's position about the need for cabinet confidentiality is important. It ensures that our system of government functions in an effective and timely way."

Then he goes on to say, "I am not prepared to say that this means that all cabinet records must be protected from disclosure in their entirety for 20 years. This means that severance of cabinet records to determine the substance of cabinet deliberations should continue." He proceeds to say, "I am prepared, however, to recommend extending the list of records captured by section 18 exception of the ATIPPA to include the listing of cabinet records found in the Management of Information Act referred to above."

So, Mr. Chair, the amendment then puts into place a mechanism whereby the documents that would be exempt or not disclosed are the documents that would reveal the substance of the deliberations of Cabinet. Then it is important to refer to what documents we are speaking of. The documents that Mr. Cummings refers to are the documents that are found and listed on page 39 and 40. Under the Management of Information Act, the definition of a Cabinet record means a Cabinet record (i) which is a memorandum – and then it is important to note – the purpose of which is to present proposals or recommendations to Cabinet.

So, Mr. Chair, it is not simply a memorandum. It is not any memorandum to Cabinet whatsoever; you have to look to the purpose of why that document was created: the purpose of which is to present proposals or recommendations to Cabinet.

The second refers to a discussion paper, policy analysis, proposal, advice or briefing material, including all factual and background material prepared for Cabinet, that is exclusively for Cabinet. It includes an agenda, minute or other record of Cabinet – and then the operative words are – recording deliberations or decisions of the Cabinet. It does not mean simply an agenda, minute or other record of the Cabinet.

The Opposition's objection to the bill, as stated, is that the bill would exclude all of these documents. The Opposition, in its proposed amendment, wants to perfectly comply with Mr. Cummings' recommendations and that such a document should be documents that record deliberations or decisions of Cabinet. That would seem to be fair enough. It would not mean any minute, or any agenda, or any record, but those that deal with recording deliberations and decisions.

He goes on to say a document is used for or reflects, and the next one is, communications or discussions among ministers. Not all communications or discussions among ministers. It does not mean who is going to go pick up the Tim Hortons or whatever among ministers. It means the communications or discussions on matters relating to the making of government decisions or formulation of government policy.

MR. KING: A point of order.

CHAIR: Order, please!

The Deputy House Leader, on a point of order.

MR. KING: Again, I hesitate to interrupt the speaker, Mr. Chair. I am following up again on a ruling that you have made in the House. The member speaking – and while I provided a little latitude – has made significant reference to the Green report and the Cummings report which I would remind you less than fifteen minutes ago or so he spoke to because I stood on a point of order at that point in time.

He has now gone into talking about items related to communication between ministers, ministerial decision making, which I remind you that the previous speaker for St. John's North spent ten minutes talking about. We are starting to repeat making the same points in this debate.

CHAIR: Order, please!

The hon. the Opposition House Leader, to the point of order.

MS JONES: Thank you, Mr. Chair.

We are debating a bill here and we are debating an amendment. Every member in this House of Assembly has the right to their opinion as to whether they are for or against an amendment, a bill, a clause in a bill. Therefore, they have the right to stand in their place and be able to make that point.

Just because the Member for St. John's East or –

AN HON. MEMBER: North.

MS JONES: – North made the point, it does not mean that the Member for St. Barbe does not share the same perspective in supporting that amendment in the bill. Every member has the right in this House to state why they support or do not support something. Just because a member on the government side decides that they are going to support a certain clause in the bill does not mean that no one else on this side can stand and support that for the same reasons.

Based on that, Mr. Chair, I think every member, first of all, no matter how many times, if already thirty-six members have said it, the other twelve still have the right, in my opinion, to state as to why they support or do not support a clause in the bill.

I think, Mr. Chair, the Member for St. Barbe has every right to stand in his place and speak to the bill and speak to the amendment and as to the reason why he is supporting it.

MR. KING: A point of order, Mr. Chair.

CHAIR: Okay, thank you.

The Deputy House Leader, on a point of order.

MR. KING: To clear here, my point of order is not challenging the right of any member in this House to speak. I think we have demonstrated over the last thirty-six to forty-eight hours that we are prepared to sit and listen. My point of order, Mr. Chair, was drawing attention to a ruling made by the Speaker in this House and I reference back to the Standing Orders, O'Brien and Bosc,page 623 which does not differentiate between members but it says and I quote, "The freedom of debate enjoyed by Members does not extend to the repetition of arguments that have already been heard."

That is not an opinion I am expressing, Mr. Chair; I am simply reminding the House that a decision was rendered here, very clearly, not long ago. I am just asking that since that decision has been rendered that we would have it enforced.

CHAIR: The guidance that I gave members in debate just maybe a half hour or so ago, I would not call it a ruling I would say to the Deputy House Leader, it is guidance based on the authorities – and, of course, our main authority, first is our Standing Orders but if are our Standing Orders are silent on it, then this authority of O'Brien and Bosc.

I am giving guidance. Having given the guidance – and I just had a discussion with the Table Officers – one of the problems we have in enforcing repetition is that you are kind of relying on memory. If we had a current, really up-to-date version of Hansard here it would make it more sound for me to rule on repetition because I could go back and refer to the written record of points that have already been made.

To the point made by the Opposition House Leader, while I do agree, yes, everybody has the right to render their opinion here, the authority that governs debate here says clearly that the freedom of debate enjoyed by members does not extend to the repetition of arguments that have already been heard. We are not going to listen to the same arguments being made over and over again. We are on very solid ground here as we rely on the parliamentary procedural authority book there.

Having said that, I am finding it difficult as the Chair to rule on repetition because I am relying on my own memory here, and I would think that as the Committee stage continues to unfold and we have versions of answers that I can go back to, I would feel like I am on much more impartial ground to make a ruling. I would ask members to avoid repetition. If it is clear that repetition is taking place, yes, I will rule on it at that point in time.

I do not know if the last member was finished his commentary.

MR. BENNETT: (Inaudible) I can resume when I get another opportunity. I am content to do that.

CHAIR: The hon. the Leader of the Official Opposition.

MR. BALL: Thank you, Mr. Chair.

I will try to switch gears. I can assure you this is not something I spoke about a few minutes ago, although it did come up during the discussion. It is very difficult, actually, when you go through clause 6 and section 18 and not get some kind of repetition throughout all of this because it speaks to so many different things about being the official Cabinet record. I did take a brief look at the Management of Information Act, and what I was expecting to see when you had a definition of a Cabinet record, it actually used somewhat different numbers; but, Mr. Chair, the intent and the content is certainly similar in this particular case.

What I want to speak to, as we know, when Commissioner John Cummings did his review there has been a lot said about the jurisdictional scan that has been done. As we went across the country, we have taken particular pieces from each province. There have been a lot of references made to Alberta, Mr. Chair, in some of the things that we have included into our own legislation here in Bill 29.

To the amendment we are speaking about today, it is about the substance of deliberations, but also about the Privacy Commissioner. He was suggesting that office would have the ability to have a discretionary versus a mandatory review, that the exemption would not be mandatory. Indeed, it would be discretionary in nature.

Now, there were many provinces, and we have seen this even in our neighbouring province in Nova Scotia, where the discretionary review was something that the Province of Nova Scotia did consider. The substance of deliberation, which is the basis for this amendment – which is the only difference really, except for the fact that we have added the definition of a Cabinet record – that it has been now included into the amendment of the Access to Information and Protection of Privacy Act, Bill 29.

Mr. Chair, when you look at the Office of the Privacy Commissioner, there has been a lot said in terms of the public debate and that that office really has the authority now as it did in the previous bill. In our opinion, Mr. Chair, that is certainly not the case. One of the things, of course, in clause 6 here, in section 18, is that the Office of the Privacy Commissioner has very little authority at all, and in this particular case, the ability to review on a discretionary basis the exemption for disclosure of information.

If we put that into our own lives and we think about what the substance of deliberation would actually mean when it comes to Cabinet material and we go back, there have been a number of different instances and examples that have been given. In particular, we know back in 2005, I think it was, during the Williams Administration and the release of polling information. Now, Mr. Chair, I would have to say, when you think about a Cabinet deliberation, and if it uses polling information, really, that is not going to have any significant impact on what would happen in the lives of the people in Newfoundland and Labrador. Why would you not want to disclose polling information?

AN HON. MEMBER: Why would you want it?

MR. BALL: The minister asks: Why would you want it? Well, I guess the question would be: Why would the Cabinet want it? The public may want it for the same reason that a Cabinet minister would want it, because it actually informs them about their debate or about their response, or about a question that they would ask. What it would mean is there would be, I guess, some unfairness if someone was to ask a question of government, being the public or if it was an Opposition party, in this particular case, that they would not have the availability of the same information.

In this particular case what they wanted to do was hold back the polling information, Mr. Chair, and not have it available. Now it took a lengthy debate, and for some reason it was seen that withholding this polling information would have some kind of draconian effect on our democracy for some reason. This polling information was so important to form the basis of a Cabinet deliberation that it was felt this should not be available to the public.

Mr. Chair, this would be the perfect place where the Office of the Privacy Commissioner would take a look at the polling information and really see if this fit the test, the substance of deliberation of Cabinet and how meaningful it was. Then in the opinion of the commissioner, he or she could then determine if this was something that could be released to the public.

Mr. Chair, right now with this current amendment, the Office of the Privacy Commissioner would not have the authority to do that. Indeed, this information would be mandatorily exempt from public view. It would just not be available.

Mr. Chair, this is the perfect scenario or a good example of where information should be available to the public and we should be able to use the Office of the Privacy Commissioner. He is indeed an independent office and has the experience and the knowledge to be able to look at information that would be available – the supporting document, in this particular case, which is outlined in the definition there in the amendment.

What the Office of the Privacy Commissioner would do in this case is take a broad look at that information just to see if it met the test of the substance of deliberations. The head of the public body, in this particular case, under our proposed amendment; that the head of the public body shall refuse to disclose to an applicant a Cabinet record which would reveal the substance of deliberation of Cabinet. This includes a Cabinet record or the supporting Cabinet record or the information, Mr. Chair.

This is the kind of information that we believe the Office of the Privacy Commissioner here should be able to meet the discretionary test, and should be available to the people of the Province. Many jurisdictions, what they have done, this is the approach that they have taken, but that is not the case here with this piece of legislation. What it does there is it makes it mandatory that this information would be kept and not available to the public.

There are many other examples, Mr. Chair. This was the example of the polling information which to us really makes no sense at all. If we are to use public funds to go out and gather this kind of information that could be used by a Cabinet minister but yet it is not to the point where it would be private in nature. It is not private in nature. As a matter of fact, it is collected from the public realm and in a lot of cases is done through polling or through telephone polling. It is really not something that is specific to any particular person in nature, but it is information that a government or a Cabinet, in this particular case, would use in its Cabinet deliberations.

As I said, Mr. Chair, it is not something that is private, and it is not something that should not be available to the public. It is polling information, Mr. Chair, and it is gathered over a period of time. Mr. Chair, it is something that we feel the Office of the Privacy Commissioner should be able to make an opinion, pass an opinion in a discretionary nature, indeed, that this information should be available.

Mr. Chair, I will conclude. As I finish up here, this, indeed, ties into our amendment which we believe would make the availability of information a little broader, which would actually fit the definition of an open and transparent government. Clause 6, section 18(2) is indeed the substance of deliberations of a Cabinet meeting, which is actually new to this piece of legislation. We believe it should be put back in. When you look at the advice of the commissioner that was given, Mr. Cummings suggested that that would be there and it was excluded only after this particular government put this piece of legislation together. It was their decision and their recommendation to actually remove this and go against the advice and the recommendation of the Commissioner, Mr. Cummings.

Mr. Chair, I obviously support the amendment. I believe it adds to the openness and transparency of government. I believe the substance of deliberation in a discretionary nature is something that will actually strengthen this bill and lead to a more open and transparent government.

Mr. Chair, thank you.

CHAIR: The hon. the Member for Burgeo – La Poile.

MR. A. PARSONS: Thank you, Mr. Chair.

What I intend to do right now is to continue on and provide some backdrop as to this particular recommendation, showing in my opinion the different considerations that were taken in making the recommendation and how that recommendation really was ignored when this law was drafted. What I would say is that there were a number of groups that made representations. Obviously, one of them was Executive Council, which Cabinet members form a group. For the public record, Executive Council equals Cabinet.

Executive Council, in their submissions to Mr. Cummings, suggested it was their position that the Commissioner's Office had taken a position on the term substance of deliberations, which goes back to 18(1). That was too narrow and would reveal too much information, contrary to the fundamental principle of Cabinet confidentiality. What I would say is that makes sense because that is what Cabinet has been striving for, is to limit the amount of information that is put forward to the public domain. By suggesting the interpretation was too loose or too narrow, they are saying: Look, we do not agree with the test you are using. We think it is not broad enough to cover everything we want to keep hidden in our Cabinet room, our Cabinet caucus.

Continuing on with the Executive Council, what they wanted was a broader interpretation, Mr. Chair, which gave them greater protection from disclosure. Going back to the overarching theme here, when we talk about openness and transparency, it is directly in contradiction to what Executive Council presented to Mr. Cummings in that they wanted greater protection from disclosure. It is such a contradiction in the wording when you really look at it: Openness and transparency, but greater protection from disclosure. So I put that out there, Mr. Chair.

What they did is they went to the case law and to the courts out in British Columbia. There was a case called Aquasource Ltd. v. British Columbia. That was a case they referred to when helping make their decisions. They said, "The British Columbia courts have determined that the ‘substance of deliberations' test encompasses the body of information that Cabinet considered (or would consider in the case of submissions not yet presented) in making a decision."

SOME HON. MEMBERS: Oh, oh!

MR. A. PARSONS: I would state to the peanut gallery: This stuff has not been talked about yet.

AN HON. MEMBER: That is unparliamentary.

MR. A. PARSONS: If it is, stand on a point of order.

"Executive Council is of the view that the information and advice contained in Cabinet documents is a compilation of analysis and synthesis of strategy, policy considerations, legislative and legal considerations, financial considerations, communications, evidence, relevant facts and operating constraints that set the context for the advice being given and the recommendations forward for consideration and direction."

What the commissioner did was, when he heard from Executive Council, they went to the courts in BC to provide the best case possible to support their notion that we need greater protection from disclosing the evidence we discuss in Cabinet. Again, a very broad sense of anything and everything they have considered. In doing this the commissioner also presented his case. The commissioner, as is his right to do so as well, went to the case law as well, but he used the case from Nova Scotia's Court of Appeal called O'Connor v. Nova Scotia. Again, they talk about similar provisions, but in this case they are going back to the Nova Scotia access to information legislation.

When the commissioner presented this, what the case over there decided was, it concluded the only information protected from disclosure is that which would permit accurate inferences to be drawn about the substance of deliberations of Cabinet. This would leave open the possibility that other information considered by Cabinet may have to be disclosed or severed in any particular case. It is a less broad, a more selective interpretation of Cabinet documentation. It is still covering off Cabinet's concern which is, there is a fundamental principle of Cabinet privacy, but what they are saying is: Look, the only information is that which accurately goes to the point. That is what they are looking at there.

That was the position put forward by the commissioner. Now, in what would be an obvious submission, the Official Opposition said that what the Executive Council or Cabinet wanted was obviously too broad. We have said that from day one and will continue to do so.

In the recommendation which was not followed in the drafting of this legislation, what Mr. Cummings actually had to say is that he was not going to get too much into the different parts, but suffice it to say, there were at least two basic interpretations. Depending on how you want to look at it, there are different ways you can determine substance of deliberations which forms the basis of this amendment.

This is what Cummings said. This is directly from Mr. Cummings recommendation, "Even though Executive Council prefers one of the interpretations as outlined above, in the end, it believes the test for Cabinet confidentiality lacks clarity and disapproves of the line by line severing required to determine what information must be disclosed or withheld from disclosure when applying the test."

What happened here was Cabinet did not want to go line by line or actually piece by piece and figure out what was exempt and what was not exempt. That is the problem here, they do not want to take the time to figure out what should be included or not included. That is too selective here. They are saying: No, let's take it and spread it out as far as we can. Let's cast that net as wide as we can to protect Cabinet documentation. This is actually coming from Mr. Cummings. His recommendations are being used in many cases to justify or substantiate this piece of legislation that has brought us all here this evening at 2:40 a.m.

I am going to come back to Mr. Cummings and some of the statements he had to make. Mr. Cummings states very specifically, "It is also worth pointing out that I have not found any interpretation of provincial legislation that necessarily excludes all cabinet information or entire cabinet documents or records from disclosure and avoids severance."

What I would say is any statement put forward saying that Cummings recommended blanket coverage or to remove the substance of deliberations is not right. It is clearly wrong. It is clearly against the specific words of Mr. Cummings. It cannot be any clearer, Mr. Chair, I would suggest.

What they are saying here is that there is nowhere else in the provincial legislation that we exclude everything or entire documents. Again, we talk about entire documents or partial documents. In Mr. Cummings words, "The final noteworthy point is that the courts of this Province have never had occasion to comment on all this."

Our courts have never had the opportunity to have this put forward to them. They have had to go outside to refer to the case law of other jurisdictions. He also suggests, and he is referring to the Privacy Commissioner's Office here, that "it may be worthwhile making the exception from disclosure found in section 18 discretionary instead of mandatory, since this may encourage the disclosure of cabinet information which would not cause significant harm to the operations of cabinet."

The Privacy Commissioner knew full well that he does not want to disclose everything. He does not want to harm Cabinet operations; it was never the intent. Cabinet sometimes thinks that, depending if there is a paranoia that sets in sometimes. Mr. Chair, the commissioner does not want that. He just wants to make sure that information requested, that is not harmful to Cabinet, is out there. It should be out there.

Discretion is what we are talking about here. There is a huge difference between mandatory and discretion. Mandatory suggests that is that, it is getting covered. There is no way around that. The problem is we should allow these independent officers discretion. That is why we place them in these jobs, because they have a very high skill set. They know what they are doing.

In the case of our Privacy Commissioner, who has had a number of years on the job now – I would note, it is going to be interesting to see whether that reappointment will come forward or not because his contract runs out very shortly. This is a person who not only has the skill set but also has the experience in order to exercise discretion to ensure that the right thing is done. Something that is right for both the Province, both the Cabinet and the people of this Province. He is allowed to look at it all.

I am going to sit down as my time has run out, but I look forward to returning to this section, Mr. Chair.

CHAIR (Forsey): The Chair recognizes the hon. Member for St. John's Centre.

MS ROGERS: Thank you very much, Mr. Chair.

I am happy to speak to this amendment, and I support this amendment. I would like to speak to the unintended consequences of not including substance of deliberation in the new legislation, in the new proposed act. In fact, the unintended consequences of this approach to Cabinet information it is unfortunate, because what it does is it sets up an unnecessary mistrust in Cabinet by the populous.

What is quite interesting, I find, Mr. Chair, is that to include this substance of deliberation may in fact work in Cabinet's favour, because the information that the public may be looking for might point to the fact that Cabinet has done a wonderful job, that Cabinet has done a good job, that Cabinet has done a thorough and a comprehensive job. To deny the public information and access, and unnecessarily denying access to information, in fact, undermines the confidence of the people of the public in Cabinet.

Mr. Noam Chomsky, who is an internationally renowned political philosopher, said that to keep information from the populous actually causes the populous to be opposed. It is important to keep the populous informed. The populous, in particular, needs to be able to be informed and feel that they have access to information, particularly in the area of economic agreements. We know that at this point in our history there are several economic agreements that are on the cusp of being decided, or have recently been decided, or that are in our near future.

Patrick Henry, who was an American politician, said that the liberties of a people were never, "…nor ever will be, secure when the transactions of their rulers may be concealed from them."

Mr. Chair, what is happening here in fact is that this is about concealing the transactions of rulers from the people. What does that do to the fabric of our society? We are a peaceful people, we are a trusting people. We have a history of taking care of one another. We have a history of sharing our resources.

By casting this huge net of closing information off from our people, the unintended consequences are so regrettable. This, Mr. Chair, is avoidable because we do know that in the current legislation there are protections and safeguards for Cabinet documents that need to be protected and safeguarded. We have an experienced officer in the Commissioner of Information and Privacy who can actually execute those safeguards.

Openness and transparency is the spirit of this law. This movement to not include substance of deliberation goes against the substance of the spirit and intent of the act. We need, and we have a right to know how and why decisions are made; whose advice has been considered, accepted or rejected; whether substantial research has been done.

My colleagues across the floor have said: Well, get your own research, this is about political parties trying to get access to research that has been done. I feel that, Mr. Chair, what an absolutely ridiculous an accusation –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS ROGERS: Thank you very much, Mr. Chair.

Besides, any research that is being done on behalf of the people of the Province is research that should be available in the public domain because it is about all of us, bringing us forward. It is about doing the best that we can for our Province.

Cabinet might from time to time release information. In fact, without including this amendment of substance of deliberations, now Cabinet is obliged and it is mandatory to hide all of their information. This is not healthy for an open, modern practising democracy. Again, this is not the intent that Mr. Cummings had.

Lists are neither a comprehensive nor a philosophical way of applying this act. We have safeguards in our act. We have, in the body of the commissioner, methods of taking care of the need, of the intent, and of the purpose of the act without coming up with lists and lists and lists. These lists can never be comprehensive. It is a fallible way of trying to apply this particular legislation.

My concern is the unintended consequences on the public of creating atmospheres of mistrust, of creating atmospheres of lacking confidence in Cabinet and in government. From Democracy Watch, Duff Conacher said in a CBC interview last night: This is a dangerously undemocratic move that reduces access to the public for information that they have paid for and have a right to know. It goes against what the trend is across the country, which is more openness. This is more towards more excessive, unjustifiable democratic secrecy.

Mr. Chair, this would place Newfoundland as the only Province, the only jurisdiction in the country that will have this unnecessary – I would like to stress here, Mr. Chair, this unnecessary veil of secrecy. What exactly does Cabinet feel they have to protect from? Who is Cabinet protecting their information from? Is it the general public? Is the general public a threat? Are the democratic rights and the democratic principles of the general public, of the media, a threat to Cabinet? I would like to say that this kind of movement is a threat to our general democratic principles. This, Mr. Chair, is the thin edge of the wedge in the erosion of our democratic principles, in the erosion of our right to access to information and our right to privacy.

Mr. Chair, our governments over the past number of years have worked so hard, have worked so diligently to come up with an ATIPPA that responds to the needs of the Province, that responds to the needs of the general public. In a modern democracy to do this kind of work behind closed doors, to come up with proposed legislation without taking it to the open sphere of an all-party standing committee is a regressive act. This is a thin edge in a challenge to the erosion of our principles of access to information and privacy. It is a regrettable action, Mr. Chair.

I thank you, and I look forward to speaking to this once again.

SOME HON. MEMBERS: Hear, hear!

CHAIR: The Chair recognizes the hon. Member for St. Barbe.

MR. BENNETT: Mr. Chair, when I was last speaking there was some concern raised about the potential for repetition. I was not here from 7:00 until midnight, so if I happen to stray into some areas that may have been mentioned by some other member then I will feel happy to be guided by the Chair.

Mr. Chair, I was reviewing the categories of documents that were referred to by Mr. Cummings and how the amendment would have the effect of permitting a reasonable amount of disclosure. Now, Mr. Chair, it has been said – just to pick up on a subject by the previous speaker – that in dictatorships the people fear the government, and in democracies the government fears the people. It is clear that in this democracy this government fears the people because it is afraid for the people to know what they are doing.

Mr. Chair, in other documents that would be Cabinet documents, it would continue to say the document is created for or by a minister. This is for the purpose of briefing that minister on a matter for Cabinet. Mr. Chair, that particular category of documents was already dealt with in an earlier section today. The operative words are for the purpose of briefing that minister. Clearly, this type of document would reveal the substance of deliberations of Cabinet potentially, so obviously that would be exempt. In that sense the government clearly would have its way and not have to disclose that document.

The next is a document that is "…created during the process of developing or preparing a submission for the Cabinet". That type of a document would potentially be exempted. If that type of document is exempted, then there will be full compliance with the statute.

Mr. Chair, the next category of documents is draft legislation or draft regulation. I can see where if legislation or regulations are only in draft form it may not be necessary to disclose those immediately.

Mr. Chair, the final category that is referred to by Mr. Cummings would be documents that "contains information about the contents of a record within a class of information referred to in subparagraphs (i) to (vii)" which were previously referred to.

Mr. Chair, my colleague from Burgeo – La Poile referred earlier to whether certain documents would be discretionary versus mandatory. The current statute mandates, section 18 says, "The head of a public body shall refuse to disclose…" – shall means that this is mandated.

Mr. Cummings felt that, he said the commissioner's office also suggests – and this was a recommendation from the commissioner's office to Mr. Cummings, "…that it may be worthwhile making the exception from disclosure found in section 18 discretionary instead of mandatory, since this may encourage the disclosure of cabinet information which would not cause significant harm to the operations of cabinet."

Mr. Chair, the section could be strengthened and the act could be improved by having section 18 made discretionary instead of mandatory. That then would engage the decision that the government lost in the Information and Privacy Commissioner against the Attorney General of Newfoundland and Labrador. That was a Court of Appeal decision. The Court of Appeal said the key to all of this is good faith in the exercise of authority.

Mr. Chair, the government is seeking to introduce legislation which exempts a whole category of documents, a blanket exemption so that none of these documents would be disclosed. That clearly would not appear to be acting in good faith. It appears not to be one to take a chance that the commissioner may know what he is doing. It certainly would not want to take a chance on having a reference to the courts because a reference to the courts then may well go against the government, as references have regularly gone against the government in matters such as this.

What the government has opted for is a type of provision that was referenced in the Cummings report, and that is the Alberta section. Mr. Cummings says, "Alberta has a unique provision…" Now, Mr. Chair, unique means it is the only one. The Alberta provision was the only provision in Canada until this government decided to enact similar legislation. Do we want to follow the pattern of Alberta, which is generally regarded as the most right-wing provincial government in Canada? Right-wing governments are generally those who do not favour disclosure.

The provision found in section 6(4) of the Alberta legislation protects "from disclosure, records created solely for briefing Ministers assuming new portfolios or for briefing a Minister in preparation for a sitting of the legislature." What the government is seeking to accomplish in this new bill goes even further than the Alberta legislation goes.

The Alberta legislation is unique legislation; unique meaning there is no other legislation like this. This legislation wants to go further than the Alberta unique legislation. The wording is "protecting from disclosure…" Well, who is being protected? Mr. Chair, I would submit it is not the people. The people are not being protected from too much disclosure. It is as if the government has adopted the attitude of Big Brother. We will simply tell the people what we think they need to know. We will not tell them anything that we do not think they need to know, and we certainly will not tell them anything that is going to result in any embarrassment to us.

Mr. Chair, the amendment which is proposed would clearly put the people back in the driver's seat in access to information in this Province. It would also promote what the commissioner refers to as promoting access and protecting privacy, and finding a balance; whereas the government legislation intends to introduce absolute limits and restrict the amount of information that people can access.

The amendment proposed by the Opposition, which I clearly support, tends to put back into legislation the balance. The balance is more desirable in the legislation. It is more desirable certainly in democratic governments.

Mr. Chair, I have no more to say on that point at this time.

Thank you, Sir.

CHAIR (Verge): The Member for St. John's North.

MR. KIRBY: Thank you, Mr. Chair.

It is a pleasure to stand in my place here again and say a few words about Bill 29. I should know the number of it because we have been debating it for hours now.

AN HON. MEMBER: Thousands (inaudible).

MR. KIRBY: It is interesting, the member is shouting thousands. I was interested to watch the TV news this evening, Mr. Chair, with the Minister of Justice talking about the thousands of requests that the government has to deal with.

CHAIR: Order, please!

I would ask the member to –

MR. KIRBY: I think it was 500 –

CHAIR: Order, please!

I would ask the member to speak to the amendment.

MR. KIRBY: Sure. No problem, Mr. Chair, I was just responding to the comments from across the way.

AN HON. MEMBER: (Inaudible) Question Period.

MR. KIRBY: No, it is certainly not Question Period.

I know this debate is difficult, and the hon. Deputy House Leader was on his feet a while back. I do not have any doubts, Mr. Chair, that Cabinet has already had a similar lengthy discussion as we are having right now. I am sure that to bring a bill such as this one to the floor of the House of Assembly, that the Cabinet of this government must have had a similarly lengthy discussion and deliberation and appropriate research that goes into this sort of a bill that is as significant and has far-reaching implications for the people of Newfoundland and Labrador that this one has.

I am sure that the government caucus as well, all the members of the House of Assembly who make up the government caucus have also had a similarly lengthy discussion. I cannot imagine bringing legislation to the House of Assembly without having significantly lengthy and comprehensive discussions about what the implications of the bill will be for us.

We are still speaking about the compromise amendment that was put forward by the Member for Cartwright – L'Anse au Clair. This really goes to the heart of this legislation as probably one of the most important provisions that are included here.

It is interesting, I was reading – the Canadian Association of Journalists has come out strongly in opposition of this legislation in recent days. It said that with this legislation, "The definition of ‘cabinet secrecy' would be broadened to include newly created classes of information and any documents or briefings prepared for cabinet – regardless of whether or not they ever get considered by cabinet." It is interesting that we would be going down this path.

This actually helps maintain that. I would expect that government members would be interested in supporting this amendment because in fact it actually helps maintain that level of secrecy, cloak of secrecy in terms of discontinued Cabinet records. Information that may never, ever have been considered, or reach the Cabinet table, or been discussed or circulated, just documents that have been created.

We know Cabinet. Cabinet confidentiality is one element that is at the core of our system of government, no one over here disputes that. That is at the heart of British parliamentary tradition, we absolutely know that. Transparency, accountability, openness and access to information are also at the heart of any modern democratic system.

Government should not develop legislation as a matter of convenience. We know it is a privilege to be here, there is no question about that, but we also are well aware that it is often difficult to achieve any consensus on this sort of legislation, because members on this side – as evidenced by this amendment – believe this is too austere, that this goes too far. The right of access should not be a burden, and without this amendment this does create a burden.

The access to information act should not suppress disclosure, it should enable disclosure. Commissioner Cummings was quite open about this in his report. He said he could not find any example in any province – of course he could not – where all Cabinet documents were exempt. That makes lots of sense. We know, as we have said, there are legitimate reason. We know there are legitimate reasons, and we know that will all be sorted out in due course.

The other thing too, is that in most jurisdictions this is discretionary. It is not mandatory. Really, when it boils right down to it, we are talking about something here that is mandatory. It is being foist upon us. It is one way or the other, without having that intervening status. The beauty of the current legislation, which is the role of the commissioner and having someone who is able to adjudicate and to be able to provide some discretion – a third party is able to look at it, give it a second look and say: Okay, well maybe you are right or maybe you are wrong. Nobody here is infallible.

Like I said before, I do not have any doubt about the integrity of the ministers of this Cabinet. That is not what this is all about, but people can be wrong sometimes. You could think, well maybe this is not a matter of importance to an individual or a business, or an organization, or an agency, or some member of the public who is seeking information of importance to them, but you could be wrong too.

I think this amendment is quite generous really, because it does help to meet partway with what the government is proposing and the inclusion of the question of the substance of deliberation. Although it might be problematic – and maybe that is where government is coming from. Maybe because it has not been decided by a court here yet, maybe that is why government does not want to support the amendment, does not want to support the inclusion of that language.

I think the language is important, and through the debate here this evening I think it has been increasingly illuminated. There has been a lot of insightful information and new information that has been brought to the floor here. I hope members and the minister are starting to see that this is an important question and it is an important inclusion. It is really something that we ought to consider as a compromise here.

We want to have the best legislation that we can have, nobody here is disputing that. There is a middle ground, we all could agree. It will come down to a vote at some point. If we get to the end of the road on this and we have not had a single amendment that has been proposed by the Opposition parties accepted, it just shows an unwillingness to negotiate and an unwillingness to meet parties part way.

We are all elected here. The governing party did get a majority of the seats in the last election, but they did not get 100 per cent of the vote. There are certainly voices of Opposition over here that represent differences of opinion. There has been a vast public outcry across the country.

This was on the national news this morning, Mr. Chair. This was on the national news. This very issue that we are talking about in this amendment was a subject of the national news. People all across Canada are looking to this debate that is going on right here, right now in the Legislature of Newfoundland and Labrador, and they wondering –

 

MR. KING: A point of order, Mr. Chair.

CHAIR: Order, please!

The hon. the Deputy House Leader, on a point of order.

MR. KING: Mr. Chair, we will provide as much time as necessary to debate this bill, but with the greatest respect to members in this House, this clause we are debating has nothing to do with public opinion across Canada and the national news.

I would ask you to make a ruling that the member's comments certainly are not in line with the item we are debating here this evening.

CHAIR: I would ask members to be relevant at this point in the debate to the amendment we are debating.

The Member for St. John's North.

MR. KIRBY: My time is up, Mr. Chair. I just quoted from the Canadian Association of Journalists' press release, which talks about this very issue of Cabinet secrecy.

Thank you.

CHAIR: Order, please!

The Deputy House Leader.

MR. KING: Thank you, Mr. Chair.

I am pleased to rise for a few moments this evening and have a few words as well on this particular bill, perhaps to break up the long litany of Opposition members who have had an opportunity to speak, and give them a chance to have a drink of water and catch their breath a little bit.

I want to make a couple of comments in a broad sense, and in particular about the category that we are debating because, Mr. Chair –

CHAIR: I would ask the member to speak to the amendment.

MR. KING: I am speaking to the amendment, Mr. Chair. I think you need to hear what I have to say before you rule whether I am in order or out. I think we have established parameters on a number of points of orders here on relevancy, but thank you for the caution on that. I appreciate that.

AN HON. MEMBER: The anticipated caution.

MR. KING: The anticipated caution, yes.

Mr. Chair, the intent of the section we are debating and the amendment put forth, it is all about bringing forth good legislation. I understand and respect the views that are being expressed here. As the member who spoke before me talked about, people can be wrong sometimes. I do not necessarily accept that, I really do not. I do not think anybody is wrong for expressing a view on whether they agree or disagree with a position in this House. I think it is all a matter of context.

As I talked about the whole issue of briefing notes and Cabinet confidentiality earlier in the day, I talked a bit about perspectives, Mr. Chair. The perspective that an Opposition would have in trying to formulate a strategy for this House and a strategy for how they present good public policy, and I talked about the differing perspective that would come from this side of the House being a government and needing to protect some of what we try to do as Cabinet ministers in bringing items forward. I do not think anybody is wrong in bringing their views forward. I think it is just a matter of perspective and opinion. I offer that up for the member who spoke before me.

I would also submit to this House that there are many occasions when we have discussions here. The Member for St. John's North is one in particular who has had a number of debates with the Minister of Education. Any time the Minister of Education references other jurisdictions, we are always reminded that the debate is around Newfoundland and Labrador. This evening, while we are debating this particular reference to Cabinet documents, the Member for St. John's North has taken the opportunity to talk about other jurisdictions. I say we need to focus our debate on what is happening in this Province, in this Legislature, and what we feel is good for us here, Mr. Chair.

This particular debate I believe is a good debate and a healthy debate, but I believe it has gotten away to focusing on some pretty direct views that are perhaps based more on politics than they are really on what is in the best interests of the people of the Province. I do not particularly believe the amendment will strengthen this item that we have before us; and I do not believe a number of the arguments that are being brought forth really have much merit.

I listened with intense interest as the Member for St. Barbe talked at length a while ago about the Green report and the need for transparency and accountability. He proceeded at length to condemn the current government. I cannot remember the exact words he used; it really does not make a difference I suppose.

Mr. Chair, from time to time people like myself need to stand and remind the members opposite, the Member for St. Barbe, that it was his Liberal government who kept the Auditor General out of the House of Assembly when we went through what people affectionately know as the spending scandal. It was this government who changed that and opened things up so that –

CHAIR: Order, please!

I would remind the minister, we are debating the amendment of clause 6 to Bill 29. I would ask him to keep his comments relevant to that particular amendment.

MR. KING: Sure, and I appreciate the reminder, Mr. Chair.

I guess I was following the train of thought of the member opposite when he was permitted to talk about the Green report and transparency and accountability as it related to Cabinet documents. If I did not make the connection I will try and do so now, with apologies to the Chair.

The member was talking about the lack of transparency and accountability, and using the Green report to reference Cabinet documents and what he felt this bill was trying to achieve. My point is that we are trying to continue to achieve with this bill the pattern that we have set as a government, which is to be open and transparent and to do what we feel is in the best interests of the people.

Mr. Chair, with that said, I wanted to get those few brief comments in. I am going to sit back and allow the Leader of the Opposition to have a few comments. I will step up at some point in time a little later.

SOME HON. MEMBERS: Hear, hear!

CHAIR: The Leader of the Official Opposition.

MR. BALL: Thank you, Mr. Chair.

I am pleased to be able to stand again and speak to the amendment of Bill 29. In particular, clause 6 in section 18(2), and speak a bit about the substance of deliberations as it affects the official Cabinet record, a discontinued Cabinet record and the supporting Cabinet record.

Mr. Chair, when you look at the process the commissioner, in this particular case Mr. Cummings, did in his analysis of where we were in other jurisdictions – and I do support the fact that as a Province when we want to do a review of legislation, just to see what the level of impact that it could have in our particular Province, there is nothing wrong with doing this scan of legislative jurisdictions just to see where we would fit in all of this. It is important to all of us as Canadians that our Province would be similar with other jurisdictions.

What happened was in the consultation phase of his review there were a number of submissions, as we have mentioned, that were made to the Commissioner, Mr. Cummings. There were three in particular he makes reference to in section 18. That being the Executive Council or the Cabinet, the Commissioner's Office – what he is referring to there is the Privacy Commissioner's Office – and the Official Opposition, which was our party, the Liberal Party at the time.

The submission by the Executive Council, or the Cabinet in this particular case, presented what should be – their position was that strong protection from disclosure is needed for Cabinet confidences. This position was based on, as was mentioned before, a long-standing principle. This principle would allow ministers in their deliberations to openly, frankly, and freely speak to issues in the discussions where they would make Cabinet decisions.

The point of view that was expressed by Cabinet in their submission was as follows. "The confidentiality of what is said in the Cabinet room and of documents and papers prepared for Cabinet discussions is a long-standing principle of the British democratic tradition." In this particular case, the submission went on to say, "Cabinet ministers charged with the responsibility of making government decisions must be free to discuss all aspects of the issues and to express all manner of views in complete confidence."

Mr. Chair, the confidence of Cabinet, obviously, in my opinion, is something that has been widely discussed and something we support. What happens in a Cabinet meeting versus any other meeting that people would have participated in, being a public body, such as health authorities or an education board, or indeed in the boardroom of any particular business, in a lot of cases, even though I have never been in a Cabinet meeting, I would guess the deliberation and the discussion sometimes can get to be pretty frank.

Where I wanted to differentiate here, Mr. Chair, is the fact of what defines an official Cabinet record. In the old act, the original act, subsection (2) made two references that subsection (1) did not apply to information in a record that has been in existence for twenty years or more, or information in a record of a decision made by Cabinet on an appeal under the act. When the submission was made by Cabinet, what they wanted to do was add more criteria to the record. They used the Management of Information Act which broadened the definition of a Cabinet record.

When I looked at the basis of the point of view that was given by Cabinet to the commissioner in his review, this is one thing that jumps out at me. It says, "Effective government requires that Cabinet members speak freely in the Cabinet room without fear of stating unpopular positions or making comments that might be considered to be politically incorrect if made public."

Mr. Chair, the records we have used here to define the official Cabinet record would not be available to the Privacy Commissioner to do the discretionary test, whether it meant the substance of deliberation or whether that could be available to the public or not. What we are suggesting is the Privacy Commissioner would be able to take a look at this and that it would not be mandatory. It would be discretionary in nature, but we are not referring to the verbal conversation that would happen in a Cabinet room. What we are referring to is the supporting documents, the official records or the discontinued Cabinet records. We are not talking about recorded Cabinet meetings here. What we are talking about is the official definition of a Cabinet record.

The submission that was made by Cabinet, their concern was about the ability to speak freely in the Cabinet room. It makes it quite clear in their submission to the commissioner where said it says, "Effective government requires that Cabinet members speak freely in the Cabinet room without fear of stating unpopular positions or making comments that might be considered to be politically incorrect if made public."

They were not concerned about the actual text or the written part of the record when they made that submission. It was more about the language that was used or something that might be a part of the banter that might happen between one Cabinet minister and another Cabinet minister. For instance, you might have the Minister of Finance who was the Minister of Education let's say. He was making a proposal within Cabinet that he felt very strongly about, looking for money for a particular school or something. So in this particular case the discussion may not have been something that the two ministers would not have been comfortable in having this widely known to the public.

This is not the type of Cabinet record we are talking about here that would be available to the public. What we are talking about is submissions that would be made to Cabinet, or indeed sometimes briefing notes that would be available to the public so they could use that to be more informed or to be better educated on how Cabinet ministers made their decisions.

To use a submission that was made to the commissioner, Mr. Cummings in this case, to actually take from the verbal component of a Cabinet meeting and to take that into where the exemption should be mandatory is really a stretch from what that submission is actually saying. We are not saying that the verbal component of the Cabinet meeting is something we are looking for disclosure on.

When I look at the amendment here, and I am saying, "The head of a public body shall refuse to disclose to an applicant…" The applicant could be a member of the public. We know, as we have been speaking to this legislation, that we have had many, many –

CHAIR: Order, please!

I would like to remind members, in accordance with acceptable procedure in the Chamber, devices with cameras, video or audio recording capability, must have these functions disabled at all times in the Chamber. Photographing or recording members in the Chamber will be a serious breach of privilege which could result in serious sanctions. I would like for all members to bear that in mind.

It is back to the Leader of the Official Opposition.

MR. BALL: Thank you, Mr. Chair.

I did not realize it was recorded. I am sure it will be Web cast at some point anyway.

Mr. Chair, I will go back to my comments about the official Cabinet record. The expansion of the Cabinet record, the definition of a Cabinet record to include the records that are specifically outlined in the Management of Information Act is something that we would support, in addition to the definition that already exists in the old act.

The amendment really strengthens the definition of a Cabinet record, but we are not suggesting that the verbal component or the recorded Cabinet meetings is what we are looking for here. What we are saying is that the substance of deliberations of Cabinet should meet the test on a discretionary basis, not on a mandatory basis. This would enable the Privacy Commissioner, in this particular case, to be able to make a decision to give his or her oversight in the future; the oversight to review these records to determine on a discretionary basis whether they should be available to the public.

Mr. Chair, again, just to summarize, when I look at the submission that was made to the consultants and the Cabinet, their concern there was about inhibiting Cabinet ministers from actually speaking freely in Cabinet meetings. This is a far stretch from where we are in determining that the text and the official record, and the expansion of the records, should indeed meet the discretionary test on the substance of deliberations and how that would impact the decision of Cabinet. We really cannot connect the two. We do not believe the submission that was made by Cabinet to the commissioner actually draws a connection.

Mr. Chair, we will continue to support and debate the amendment to Bill 29, clause 6, section 18(2). With that, I will conclude my remarks now on this submission and the ability to speak freely, Mr. Chair. I will look forward to continued debate on this particular amendment in a few minutes.

Thank you, Mr. Chair.

CHAIR: The hon. the Member for Burgeo – La Poile.

MR. A. PARSONS: Mr. Chair, I am going to speak to this bill here tonight. I will try to restrain myself with my comments.

Mr. Chair, I am going to continue on with my comments as to the backdrop in terms of information that was considered and put forward in this recommendation which was supposed to have been used in drafting the legislation. In this case it was not followed. That is the crux of the point I continue to make is that there are certain recommendations followed, certain ones not, which goes to the overarching theory that we have cherry-picked the sections of the legislation that we want to follow.

I have referenced the commissioner's review of the different submissions from different groups. One thing that he did do is he reviewed what the Ontario commissioner did. The Ontario commissioner interpreted – they have a similar section in their legislation, Mr. Chair. In Ontario, they have subsection 12(1) and what theirs is called is the Freedom of Information and Protection of Privacy Act. What they have set up in Ontario –

CHAIR: Order, please!

We have been debating the amendment to Bill 29 for several hours. Again, I would remind members, there is one insertion into this amendment. It is one insertion which reads, "…which would reveal the substance of the deliberations of Cabinet…"

While speaker after speaker has been getting up and quoting that little insertion, their debate has been wide-ranging. My suggestion, as Chairman, is if speakers want to speak to background of the bill, the ATIPPA, or some other substance of the bill, then we would vote this amendment and then we can move on to other clauses which people may want to debate.

The Chair has given a fair degree of flexibility here and I have called relevance many times. The speakers continue to not debate the amendment. If there is nothing else to say to the amendment, then I will be calling for the vote.

The hon. the Member for Burgeo – La Poile.

MR. A. PARSONS: If I may continue, Mr. Chair, what I would say in my defence –

CHAIR: I would ask the member to speak to the amendment.

MR. A. PARSONS: Yes, what I would say in my defence, Mr. Chair, and I understand your concern in putting this forward, but the substance of deliberations is so fundamental to the importance of the freedom of information to the people of this Province is why we continue to go to it.

The second part of what I would say in defence of where I am going with this, is that the section I am referring to, I do not believe has been referenced or mentioned specifically by any speaker before me. If it has been, by all means, I do not want to be repetitive here. That is not my intention. What I would say is that the section I am referring to, if the members opposite can point out who and when this section was referenced, then by all means.

CHAIR: I would insert some commentary here. The Chair is not disagreeing with the Member for Burgeo – La Poile in that what you may have to say you have not said before. What the Chair is saying is that Bill 29 and the amendment that has been proposed by the Opposition House Leader is very succinct and very direct.

In actual fact, in amending clause 6, we should not even be talking about clause 6. We are just talking about the amendment. If you want to talk about clause 6, then we need to vote the amendment and then go back to clause 6 so you can debate clause 6.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. KING: (Inaudible) we are prepared to vote the amendment and allow the speakers to move on back to the clause if they are ready.

CHAIR: The hon. the Member for Burgeo – La Poile.

MR. A. PARSONS: What I would suggest, Mr. Chair, is I respect your ruling and I will continue to speak to the amendment. If I do, in your opinion, move away from that, then I am prepared to discontinue talking about it, but I feel I do have more to contribute to this fundamental amendment.

What we are suggesting here, Mr. Chair, this amendment is going to the crux of one of the most important pieces of this entire piece of legislation. Substance of deliberations is something now – it has been said so many times that you forget the meaning of it, but what I am trying to put forward here is how very important this is. The reason we are putting this amendment in is because in the recommendations made by the commissioner, at no point did he suggest that test be removed; at no point did he suggest that.

In fact, Mr. Chair, he says, "I am not prepared to say that this means all cabinet records must be protected from disclosure in their entirety for 20 years. This means that severance of cabinet records to determine the substance of cabinet deliberations…" must continue. The substance of deliberations must continue, which is why we put that amendment forward.

What I would suggest, Mr. Chair, is that we have put forward a very valid amendment here which carries a lot of merit. Again, I would refer to the points made by the previous speaker, the Minister of Fisheries. He said –

AN HON. MEMBER: (Inaudible).

MR. A. PARSONS: I would sometimes question whether that has relevance.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. A. PARSONS: Mr. Chair, perhaps I could continue. After that brief musical interlude, I would like to continue discussing the amendment.

What I would say is the Minister of Fisheries, the Deputy Government House Leader who spoke previously, I listened to what he had to say and he was talking about merit. He did not believe that our amendment had merit. What I would say is it had merit, but it is two different things to agree or disagree or say something has merit or no merit. I would put forward, this has definite merit because it is something that was completely ignored in the drafting of the section that we are attempting to amend.

What I would put forward, Mr. Chair, is that when we talk about the substance of deliberations of Cabinet, when we talk about Cabinet speaking freely and feeling they should have the right to speak without fear, again, that is not a problem. That is not an issue. They should have that, but they should not have fear from the fact that the Privacy Commissioner is going to look at that information and after looking at the substance of deliberations, making sure whether it does or does not have merit as to whether it should be disclosed to the public or not.

Mr. Chair, I know we are only talking about an amendment, and the amendment has been discussed for quite some time here, but when we look at some of the sections that are put forward here, some of them, as we talked about earlier – we talked about very briefly, but this one really cuts to the heart of it. It really cuts to the heart of the legislation here and what the government is attempting to do.

In this section, which we are trying to amend, government is trying to avoid information going to the Privacy Commissioner, which is why we are putting this amendment forward. I am hoping the members opposite will hear what I have to say. They might not agree. They might disagree, which is why the minister stood up and put that out there.

What I would say in concluding my remarks there, I have to respond very quickly to the minister's comments about the AG. I would remind him, I believe there were a number of members of the other side who voted to put the AG out of this House as well. I believe you need to take your share of that decision as well. I think everybody had a little say in that. What I would say is we are moving forward to remove the AG in this piece of legislation as well.

Those are my comments.

Thank you, Mr. Chair.

CHAIR: Order, please!

The hon. the Member for St. Barbe.

MR. BENNETT: Mr. Chair, one of the comments made by Mr. Cummings, which is quite noteworthy, he says: The final noteworthy point is that the courts of this Province have never had occasion to comment on this. What he is referring to is exactly what this amendment deals with, and that is provision of Cabinet documents.

What I would like to do is to basically walk through, how would a court challenge on this particular amendment work since we have no court decision? If this matter –

MR. KING: A point of order, Mr. Chair.

CHAIR: Order, please!

The Deputy House Leader, on a point of order.

MR. KING: Mr. Chair, I am guessing, because I have not heard the speech, but I am really questioning the relevancy of talking about how a court challenge would play out, how that is relevant to whether we vote on an amendment to a piece of legislation that is not even law in this Province yet. We are supposed to be debating the amendment and whether we support amending the potential legislation or not.

The member is proposing to talk about how a court challenge might play out if it went to court, if the amendment became adopted, and if the adopted amendment became law. I suggest to the House, Mr. Chair, that we are way off relevancy here.

CHAIR: Order, please!

I have not heard the Member for St. Barbe engage in that conversation yet, even though he did say at the beginning that he was going to be going down that road. Indeed, if he does, I will be calling him on relevance.

The hon. the Member for St. Barbe.

MR. BENNETT: Yes, Mr. Chair.

The reason I gave that advance notice is I wanted the Chair to be cognizant of the type of references that I will be making regarding the amendment. What we are looking at is, the amendment says, "The head of a public body shall refuse to disclose to an applicant a Cabinet record which would reveal the substance of deliberations of Cabinet, including (a) an official Cabinet record; (b) a discontinued Cabinet record; and (c) a supporting Cabinet record."

CHAIR: Order, please!

The amendment only says, "…which would reveal the substance of the deliberations of Cabinet…" Everything else the member has said there is already in the bill in clause 2. If we are going to speak to the amendment, the amendment is only the insertion of those words: the substance of the deliberations of Cabinet.

MR. BENNETT: Yes, Sir.

CHAIR: The Member for St. Barbe.

MR. BENNETT: Consequently, it will be necessary to look at, what does this mean? What is the substance of the deliberations of Cabinet? If we are dealing with –

MR. KING: A point of order, Mr. Chair.

CHAIR: Order, please!

The Deputy House Leader, on a point of order.

MR. KING: Mr. Chair, I know we are nitpicking, but the fact of the matter is the member made a statement and you called him out on relevancy. His response was: yes, okay, but if we go – and he continued down the same line of thought back to a discussion away from the amendment about the main article of discussion.

I ask again for the House to make a decision. Are we talking about the amendment or are we back to the main article for discussion here? If we are back to the main article, let's vote the amendment. Let's have it done and get back to the point that the member is obviously trying to discuss.

CHAIR: Order, please!

The Member for St. Barbe was not very far into his conversation since the last point of order. I would ask him to start. If the Deputy House Leader would give the Chair an opportunity to hear what he has to say, then I will make a decision on relevance.

The hon. the Member for St. Barbe.

MR. BENNETT: Thank you, Sir.

What does it mean to reveal the substance of the deliberations of Cabinet? That really is what we are looking at. If we are looking at how these documents relate back, then there needs to be an interpretation of: What is the substance of the deliberations of Cabinet?

The documents that are to be excluded are any of those documents which would say you would be able to draw an inference, because you presumably would not have any minutes from Cabinet. That is not sought to be disclosed. The records that would be sought to be disclosed are any records that have come to Cabinet in the form of an official record, a discontinued record, or a supporting record as defined in the earlier part of the bill.

Based on that, anybody reviewing those documents would be able to determine from looking at those documents: What was the substance of the Cabinet deliberations? The court would have to say: Looking at these documents, can we say what was the substance or can we not say what was the substance? If we are able to say what the substance was, then clearly the document would not be released. The document could not be revealed if it will show the substance; however, if these documents would not show the substance of the Cabinet deliberations, then they would be revealed.

MR. KING: A point of order, Mr. Chair.

CHAIR: Order, please!

The hon. the Deputy House Leader, on a point of order.

MR. KING: Mr. Chair, with all due respect to everyone, I am asking for a ruling.

The member has mentioned at least twice now the issue of a court case. I am asking if I am out of order, then I appreciate you telling me, but I really do not see any relevance to the amendment. As I said before, we are talking about an amendment to a piece of legislation that is not yet law. To make the stretch from an amendment to what would happen if that became law or became part of the legislation and then became law up to now talking about a court case. Mr. Chair, I think we are moving away a fair degree from the amendment on the table that we are supposed to be debating here.

CHAIR: Order, please!

There is no point of order.

The Chair is listening intently to the Member for St. Barbe. On three or four separate occasions the member, thus far in his debate, has mentioned specifically the amendment and is quoting from the amendment. Thus far, the Chair does not see where the Member for St. Barbe is being irrelevant.

The hon. the Member for St. Barbe.

MR. BENNETT: Thank you, Sir.

When the Legislature has passed legislation that legislation has to be applied, and in order to be applied it has to be interpreted. It has to be interpreted by people working for government. The whole range of society that we pass legislation for would need to interpret the legislation in order to know what it means. You need to know what it means to apply it.

Quite often, and there are references throughout the act, if disclosure is refused then there is an automatic recourse that the individual who has been refused can apply to court. What I am attempting to discuss is how does the proposed amendment change the bill? It changes the bill dramatically, because if the main bill as it stands says that all of this information shall not be disclosed, then clearly it says all of this information shall not be disclosed. However, instead of that it says, "The head of a public body shall refuse to disclose to an applicant a Cabinet record which would reveal the substance of the deliberations of Cabinet." That puts a completely different gloss on the legislation because that leaves the legislation open to differing interpretations by different people.

One person looking at a document might say, well you can conclude or you can surmise: What was the substance of the Cabinet deliberations based on this document? Another person could be looking at it and say, well there is no way really to determine: What was the substance of Cabinet deliberations? You can look at the document in isolation. You can look at maybe a series of documents. Quite often under access to information requests a whole range of documents are requested. Then the person receiving those documents can review the documents and come to certain conclusions.

Mr. Chair, what I am saying is this amendment changes the bill substantially, in that it brings it more into the arena of requiring interpretation. If the bill is really straightforward and does not have this amendment then it is more or less black and white. Such-and-such documents will not be disclosed or shall not be disclosed; however, with this amendment it opens the door to interpretation.

In fact, by having the door open to interpretation, in my view it makes it better legislation. It makes it legislation which is more responsive to the times. Because legislation that has some measure of flexibility and interpretation, as times change and as practices change, that legislation is more responsive, is more flexible and is better over the long term, as opposed to having legislation which is literally carved in stone without the possibility for change.

This would improve the legislation substantially, although it would open the door for interpretation. Of course, the final interpretation on legislation is the interpretation goes to the court. If the parties disagree as to what the interpretation should be then one or the other will take an application to court. The court will make a ruling and then it may or may not be appealed. Then we are back into the whole cycle of, how do we interpret what the legislation is?

This brings us full circle to what Mr. Cummings said when he said, one "…final noteworthy point is that the courts of this Province have never had occasion to comment on all this." Mr. Chair, all I was trying to relate is that with this proposed amendment, it allows more interpretation under the act. It makes it an act that will be more responsive to change over time and simply better legislation for the people of the Province.

Thank you, Mr. Chair.

CHAIR: The hon. the Member for St. John's North.

MR. KIRBY: Thank you, Mr. Chair.

I will have a few more comments on this amendment regarding the substance of deliberations. I really think, as I have said and I do not mean to repeat myself, but this really gets to the heart of what we are talking about with this legislation, this particular amendment. The so-called compromised amendment really gets to the heart.

We want the best legislation that we can get for the Access to Information and Protection of Privacy Act, there is no question. We all want the best product in the end. That is why we are here. That is why we are working hard trying to move this through in as expeditious manner as we can. We want to produce the best product, and we can only do that through debate.

It is interesting; I was talking about the public outcry because I have received any number of letters, e-mails, and phone calls –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. KIRBY: I think, Mr. Chair, if there were still telexes I would be getting telexes about it. People talk to their neighbours, they talk to their co-workers, and they talk to their friends, their families. That is why we are seeing this.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. KIRBY: With respect to the subject of deliberations of Cabinet, we are not implying here that Cabinet is doing anything scandalous.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

The Chair is having difficulty hearing the Member for St. John's North.

MR. KIRBY: We are not trying to imply that Cabinet is doing anything of a scandalous nature; nothing could be further from the truth. We are not trying to suggest that Cabinet is doing anything untoward but we have to ask, what is the problem with this amendment? It is not that difficult, it maintains the provisions around Cabinet records, on three different types of Cabinet records.

It is interesting, because if you read the Cummings report, he talks about how he had three submissions on this particular issue of Cabinet confidences, this particular clause. There were three submissions: he had one from Executive Council; he had one from the Official Opposition; and one from the Office of the Information and Privacy Commissioner.

For me, based on my own meetings with the Information and Privacy Commissioner, and reading attentively the documents that have come out of that office since I was elected, and prior to that, he is one of the persons in the office right now who is closest to the ground on this particular issue of the substance of deliberations.

If you go and look at what he had said, the Office of the Information and Privacy Commissioner went through significant lengths to inform the Cummings commission on the issue of the substance of deliberations, and a myriad of other issues. He submitted quite a lengthy report. It is very interesting stuff. It is over sixty pages long. He said, as we have been saying, most jurisdictions in Canada use this language, but the provision has not been interpreted here. The member is suggesting what might happen here.

The Office of the Information and Privacy Commissioner has reviewed the interpretations of courts in different jurisdictions in Canada and determined that the interpretation and test offered by O'Connor v. Nova Scotia, 2001 NSCA, as the most appropriate one. It says, "Is it likely that the disclosure of the information would permit the reader to draw accurate inferences about Cabinet deliberations? If the question is answered in the affirmative, then the information is protected by the Cabinet confidentiality exemption…"

In other words, the exception is not simply a list of categories. We largely have this here, which must not be disclosed. The substance of deliberations test must be met in order to refuse disclosure. It goes on to say, through the exchanges with Executive Council, with Cabinet about this.

Basically, in the experience of the Office of the Information and Privacy Commissioner in carrying out its statutory responsibilities to the House of Assembly and with the Department of Justice, it appears government has generally not shared that interpretation of section 18, that the Office of the Information and Privacy Commissioner has.

I think the implication here is that Cabinet would want to see things tightened up substantially, which is really what landed here on our desk in the form of Bill 29. Of course, government is free to amend that, and that is what we are trying to do here. We are trying to amend that to provide a better product, we think in the end, through compromise.

He goes on to say, that does not mean in the end that any record – and this will not mean either that any record that is classified as a Cabinet record would harm or threaten, or cause damage or difficulty to Cabinet or individual ministers, or the government as a whole, in the eventuality that it was eventually released to the public; whether we are talking about documents that are official Cabinet records, or discontinued Cabinet records, or supporting Cabinet records.

The Office of the Information and Privacy Commissioner then goes on to urge the government to take a more balanced view which maximizes the right of the public; the public right of access to information.

You have heard a lot about how we want the government, we want Executive Council, or we want government members, or we want the Cabinet to do our research for us. Well, this is the Office of the Information and Privacy Commissioner who wrote this, not Opposition political parties. This is based on the experience of that office in carrying out its statutory responsibilities to the House of Assembly for the duration of time that the office has been in existence. That it is the right of public access to information, generally speaking. It is not talking about Opposition political parties.

I think the other important part of this is that some jurisdictions in Canada do empower Cabinet to consent to the disclosure of records which would otherwise be protected by equivalent exception or an exception that either includes or does not include the substance of the deliberations of Cabinet. It goes on to reiterate that government has to take a balanced view. You do not need to have a siege mentality. There is no ill intent here. Yes, there are certainly questions of politics. That is the nature of our democratic system, that there are different competing political parties. Some are on the ascent and some are on the decline, and that is just the way. There is always ebb and flow, a cut and a thrust. That is really just the way it works.

We have to take a balanced view. What is best when it comes to the right of access to information for the general public of Newfoundland and Labrador? What is right when it comes to the protection of privacy in Newfoundland and Labrador?

CHAIR: Order, please!

I would ask the member to speak to the amendment.

MR. KIRBY: I conclude my comments with that.

Thank you again, Mr. Chair. I really appreciate the opportunity to contribute.

SOME HON. MEMBERS: Hear, hear!

CHAIR: Are there any other further speakers to the amendment?

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

We will be voting on the amendment that was put forward by –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

We will be voting on the amendment put forward by the Opposition House Leader.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

Is the House ready for the vote?

Is it the pleasure of the Committee to adopt the amendment as put forward by the Opposition House Leader?

All those in favour, ‘aye'.

SOME HON. MEMBERS: Aye.

CHAIR: All those against, ‘nay'.

SOME HON. MEMBERS: Nay.

CHAIR: The amendment is defeated.

On motion, amendment defeated.

CHAIR: We will now go back to clause 6 to continue with debate.

Are there any further speakers to clause 6?

The hon. the Member for St. Barbe.

AN HON. MEMBER: Let's go to clause 7, would you?

MR. BENNETT: No, we have to go to 6. We have to keep them in the right order.

SOME HON. MEMBERS: Oh, oh!

CHAIR: The hon. the Member for St. Barbe.

MR. BENNETT: Yes, Sir.

Clause 6, "An applicant may appeal a decision of the head of a public body respecting Cabinet records referred to subsection (2), except an official Cabinet record, to the commissioner or the Trial Division under section 43."

Mr. Chair, the appeal process as set forth in this particular section clearly is not set forth with any degree of –

AN HON. MEMBER: Where are you at, 6?

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. BENNETT: Clause 6.

SOME HON. MEMBERS: Hear, hear!

CHAIR: Order, please!

The Member for St. Barbe was speaking to clause 6. He was reading from clause 6, section 7. Do you want to continue?

The hon. the Member for St. Barbe.

MR. BENNETT: Yes, Sir. I was following notes that were probably more detailed than I required. The research was done by the Department of Fisheries and Aquaculture and I was very grateful. Thank you.

Cabinet record means "advice, recommendations or policy considerations submitted or prepared for submission to the Cabinet". Mr. Chair, the "draft legislation or regulations submitted or prepared for submission to the Cabinet".

Mr. Chair, when I made my notation I went through all of the amendments. In the left-hand column, depending on the section that I was looking at, I made my notation. In this one I wrote in very bad, very, very bad. This whole section is very bad. Mr. Chair, in an earlier one I said okay.

In any event, "Cabinet record means advice, recommendations or policy considerations submitted or prepared for submission to the Cabinet". Mr. Chair, what do we mean by advice? Is this a written communication? Is it an oral communication? Is it an electronic communication? Is it first-hand advice, is it second-hand advice? What exactly is it?

Mr. Chair, clearly, there needs to be more detail in this particular section. Obviously, simply to say advice is just too vague. It may be broad, it may be narrow, but clearly it is too vague. It needs to have more clarity introduced into the legislation.

"(i) advice, recommendations or policy considerations submitted or prepared for submission to the Cabinet". Does that mean, by whom? Would anybody be the ones who would have prepared this? Shouldn't this be drawn more tightly to put forward a category of individuals who actually prepared this type of Cabinet record? Does this mean from consultants? Does it mean from bureaucrats? Does it mean from private companies? Where is this coming from? Mr. Chair, in dealing with this particular section, this section is unclear, it is vague and it is overly broad.

To go on, Mr. Chair, "(ii) draft legislation or regulations submitted or prepared for submission to the Cabinet". I have no particular difficulty with that section. That seems to be relatively straightforward.

"(iii) a memorandum, the purpose of which is to present proposals or recommendations to the Cabinet". Mr. Chair, does that mean a Cabinet record simply includes the memo, the cover sheet? The memo attached to whatever is the underlying document. In my submission, I do not understand why that would be seen as a Cabinet record. It is not the proposal itself. It is not the recommendation. It is simply the attached memorandum.

"(iv) a discussion paper, policy analysis, proposal, advice or briefing material, including all factual and background material prepared for the Cabinet". Mr. Chair, all factual and background material is much too broad. It is necessary for this legislation to be effective in this category to draw a tighter circle around the type of material that is looked at. All factual; does this mean newspapers? Does it mean briefs? Does it mean electronic communications? What exactly does it mean?

To go on, Mr. Chair, "(v) an agenda, minute or other record of Cabinet recording deliberations or decisions of the Cabinet". Why would the simple matter of an agenda, just the list of the agenda be a Cabinet record? I can understand the minute; I can understand maybe other Cabinet recording deliberations, but not simply the agenda. The agenda for a meeting to be a Cabinet record does not make any sense to me. It smacks of paranoia. It is overly broad. Just to say you may not even have a copy of the agenda simply makes no sense.

"(vi) a record used for or which reflects communications or discussions among ministers on matters relating to the making of government decisions or the formulation of government policy". That particular one seems to be noteworthy. I have no particular problem with that part of the proposed bill.

"(vii) a record created for or by a minister for the purpose of briefing that minister on a matter for the Cabinet". Mr. Chair, we dealt with this, the five-year blackout period. I simply would not need to restate my earlier comments. I am opposed to this not being able to be provided, unless it goes to the substance of the deliberations or discussions of Cabinet.

"(viii) a record created during the process of developing or preparing a submission for the Cabinet". That really should be something which is subject to review and maybe to be redacted, because we do not know how far back the record was created. Is it a record that was created and then over a period of time it evolved? It may have little irrelevance, it may have immediate relevance, it may be of some importance, or it may not be of any particular importance.

Mr. Chair, to go on, "(ix) that portion of a record which contains information about the contents of a record within a class of information…" It is a portion of that record which contains all of the previously mentioned information. Clearly, the portion of the record would depend on which of the earlier ones it applied to. If the earlier ones were not seen to be Cabinet records, then obviously the portion of the record which contains information about the contents of that record would not apply. If the earlier document was a Cabinet record, then clearly it would apply.

A discontinued Cabinet record, why is it necessary not to have to disclose a discontinued Cabinet record? I suppose it would mean how long ago it was discontinued. If it meets the twenty-year rule it clearly would not be problematic. Does that mean a discontinued Cabinet record from three years ago which was not acted upon and is also caught by the legislation or is it not? A discontinued Cabinet record clearly needs a better definition and more fine detail.

The official Cabinet record, I can understand why this should be caught by the legislation if it is an official Cabinet record. It means "a Cabinet record referred to in paragraph (a) which has been prepared for and considered in a meeting of the Cabinet". Obviously, that document should not need to be disclosed. That would seem to strike to the intent of proper legislation, which is not necessarily this legislation.

The supporting Cabinet record means "a Cabinet record referred to in paragraph (a) which informs the Cabinet process, but which is not an official Cabinet record." This seems to be very problematic, Mr. Chair, because –

CHAIR: Order, please!

I remind the member his time for speaking has elapsed.

MR. BENNETT: By leave, Mr. Chair?

CHAIR: Does the member have leave?

AN HON. MEMBER: No.

CHAIR: No leave.

The Leader of the Official Opposition.

MR. BALL: Thanks, Mr. Chair.

Clause 6, section 18.(3), it makes reference to the official Cabinet record. I would like to ask the minister if he would give us an explanation of the process, how this would unfold in subsection 3 about how the Clerk of the Executive Council will actually determine whether the record was an official Cabinet record or not.

CHAIR: Order, please!

Is the Leader of the Official Opposition finished his comments?

MR. BALL: Yes.

CHAIR: The hon. the Member for The Straits – White Bay North.

MR. MITCHELMORE: Thank you, Mr. Chair.

With the changes that are put forward here under section 18 relating to the Auditor General Act, amended that the AG shall not be permitted access to section 18 records where the Clerk of the Executive Council, or his or her delegates, certifies they contain the deliberations of Cabinet or the committee of Cabinet or matters that are confidential in nature that would be injurious to a public interest. Well, that has some concern to me because it is further changing matters.

Mr. Chair, the Newfoundland and Labrador Auditor General had criticized the provincial government and also the Canada-Newfoundland and Labrador Offshore Petroleum Board, the C-NLOPB –

CHAIR: I would ask the member, we are speaking to clause 6. Which section in clause 6 were you referring to?

MR. MITCHELMORE: I am referring to the proposed amendment to change section 18 of the Auditor General Act and the denial of information.

CHAIR: Order, please!

I remind the member, the amendment was voted on just a little while ago. If you want to speak to clause 6 in general, that is what we are debating at this time.

MR. MITCHELMORE: Okay, Mr. Chair.

There is quite a discontent when we look at what the proposed changes mean and what is put in clause 6. Because if we look at that omission, the omission of substance of deliberations being removed from the act as to how it determines a list of Cabinet records – and I know we just had an amendment put there to have that added back. Now we are debating the clause as it is without that list, and that is putting forward the potential for a lot of documentation, such as policy proposals, information –

CHAIR: Order, please!

The Member for The Straits – White Bay North, the Chair is unclear. We debated the amendment for quite some time tonight and we voted on it, and from what I can hear of your comments so far, you are debating the amendment still?

MR. MITCHELMORE: No, I am actually debating the original clause and the fact that the changes that have been made from the original act, as to what is put forward right now, does not have the substance of deliberation and what the repercussions of having that there means. I am just asking for some clarification as to what that means for papers, agendas, advice, and documentation as to –

SOME HON. MEMBERS: Oh, oh!

MR. MITCHELMORE: Mr. Chair, when we look at a record that is used or which reflects communication or discussions among ministers, or matters relating to or making government decisions or the formulation of government policy, does that reflect any type of mode of communication there? Is that all including electronic pieces? What constitute as to a mode of communication, that if something is written down on a note of paper that now it will be put forward as a potential Cabinet recording? I would like to see further clarification on that, maybe from someone on the other side.

With that, I will take some time to do further review of this section and hopefully have further commentary.

Thank you.

CHAIR: The hon. the Leader of the Official Opposition.

MR. BALL: Thanks again, Mr. Chair.

Again, I rise on clause 6, section 18.(3). I would like to ask the minister, given the importance of a Cabinet record, what makes on official Cabinet record? In subsection 3 it makes reference to a Cabinet record becomes certified by the Clerk of the Executive Council or his or her delegate.

I would like to ask the minister if he could explain the process of the certification of that record, which would make it an official Cabinet record.

CHAIR: The hon. the Minister of Justice and Attorney General.

SOME HON. MEMBERS: Hear, hear!

MR. F. COLLINS: Thank you.

Mr. Chair, yes, I would be happy to. In earlier discussions in this debate, on this clause, it was pointed out that there is an extensive trail of documents and records that begins from the briefing notes getting ready for presentation to Cabinet until the time that the matter is eventually considered in Cabinet. They are referenced in section 18.

I think it was the Minister of Natural Resource who pointed out the process of preparing materials for Cabinet. There are briefing notes, there is analysis, there are policies, there are expert opinions, and there are research notes. There are agendas and minutes and records and so on, that are developed in the process of getting something into Cabinet. Some of these might be at the Cabinet Secretariat level; it might be at Cabinet committee level, Social Policy, Economic Policy, Treasury Board, back and forth, Mr. Chair. By the time the matter gets into Cabinet, there might be a trail of records having been established.

Mr. Chair, something eventually gets into the Cabinet room and at the Cabinet table for discussion. It is that record that gets in the Cabinet room or at the Cabinet table that is certified by the Clerk as being an official Cabinet document. There is no ambiguity.

As I mentioned earlier, the Clerk can only designate material that gets into the Cabinet room as an official Cabinet record. That record can only be accessed by the courts. To get access to that record you have to go to court. Everything else, Mr. Chair, the Privacy Commissioner has the right to review. That is as specific as I can get, Mr. Chair.

CHAIR: The hon. the Leader of the Official Opposition.

MR. BALL: Thank you, Mr. Chair.

I guess the confusion that would be around the supporting documents that they would not – are you saying that those supporting documents may not necessarily always make it to the Cabinet room, therefore they may not be an official Cabinet record so they would be available to the public? Is that what you are saying?

CHAIR: The hon. the Minister of Justice and Attorney General.

MR. F. COLLINS: Mr. Chair, if you go to section 18.(2), "The head of a public body shall refuse to disclose to an applicant a Cabinet record, including (a) an official Cabinet record; (b) a discontinued Cabinet record; and (c) a supporting Cabinet record." If there is a dispute in any of that, or there is a complaint about not getting access to a record, Mr. Chair, the Privacy Commissioner can review Cabinet records, with the exception of the official Cabinet record.

CHAIR: The hon. the Member for Burgeo – La Poile.

MR. A. PARSONS: Thank you, Mr. Chair.

I am happy to continue to speak to clause 6 of the official secrets act. We have debated the amendment and we have moved on. I guess one of the things is that this section has been greatly expanded from what it was previously, which is obviously one of the concerns that we have. The original section, section 18.(1) and (2), and now we have gone to section 18.(1), (2), (3), (4), (5), (6) and (7).

One of my overarching questions to the minister, and perhaps you can – I am going to ask this question now. I am going to continue on, so you can mark it down and come back to it later. When you add a number of documents and a number of issues to things that are exempt from disclosure, please, explain to me how this makes something more open? If you close more doors, how are you making things more open? I think that is a very fair question. That is what I ask.

We have talked about openness and transparency, so when you add more sections, when you add five extra subsections to a section –

AN HON. MEMBER: Clarity.

MR. A. PARSONS: Okay, the member on the other side said clarity. Well, explain how this clarity has made it more open and accountable and transparent. Again, Mr. Chair, I think that is a fair question.

We talked about unprecedented openness. It is one thing to talk about clarity – and clarity is fine, clarity is a great thing. One would want clarity in the legislation. Protection of privacy is one thing, but do not confuse protection of privacy with openness and transparency. It is two different things altogether. What I am saying is if you are making more information private, how can you say that it is open?

I will take my comments to the Chair. I will continue speaking to the Chair here. I think that is a fair question, Mr. Chair. I wish you could answer it for me because I do not know if any of the members on the other side are going to answer a very simple question.

SOME HON. MEMBERS: Oh, oh!

MR. A. PARSONS: I am just saying. I am sorry if it is 4:23 a.m. and I am getting a bit punchy here. I am asking a question, a direct question, Mr. Chair.

I will continue on. This section has been greatly expanded, Mr. Chair. What we are doing is we are adding a whole other section of information; information that is official or discontinued or supporting. There is a lot of it we are adding to this.

Again, and I think this has been verified by the minister, this information is not going to be privy to the Privacy Commissioner. This is information you will have to go to the court to access. You are not going to have the Privacy Commissioner looking at it. You are going to have the courts having to look at this.

We add subsections (3) and (4). Subsection (3) states, "The commissioner may review the refusal of a Cabinet record by the head of a public body under subsection (2) except where the decision relates to a Cabinet record which has been certified as an official Cabinet record by the Clerk of the Executive Council or his or her delegate." I would imagine, and you might call this a factious question here: Will there be any documents that are not forthwith official Cabinet records? Is there anything that is not going to get the stamp from the Clerk as not being official?

It says here, "Where a question arises as to whether a Cabinet record is an official Cabinet record, the certificate of the Clerk of Executive Council or his or her delegate stating that the record is an official Cabinet record is conclusive of the question." Once the seal is placed on there, yes, that is an official Cabinet document. Again, I would ask: Is there anything that is going to escape the stamp of the Clerk of the Executive Council? I do not think there is. I certainly do not think there is.

The second part here comes back to the crux of our issue with this particular section, which is that more and more information is now secret, more and more information is excluded for the Privacy Commissioner and one has to go to court to get it. We have seen many occasions in the past where we have had to deal with the Privacy Commissioner when it comes to Cabinet documents and trying to get these documents, some of which are obviously very, very important.

There are concerns, because we have seen reports and seen notes of statements that have been made in Cabinet that were deemed off limits. The government tried to keep them away from us. The problem we have is – the reason why sometimes the trust is not there, this is one actual sentence that was excluded: this hospital is forty years old. That one sentence was a sentence that was excluded. The Opposition could not get that.

If you are excluding something as benign as this hospital is forty years old, then what else is being hidden? If the benign statements are being hidden, then how are we not going to have that lack of trust as to whether the rest of the information which may not be benign, which may be, obviously, much more important or pertinent is being put out there? That is an example of something that the Privacy Commissioner did have an opportunity to review. When he saw that, then obviously he said: there is no reason – this is not a document that should be released out to the public.

I will continue on, Mr. Chair. Subsections (3) and (4), this one clause, this is the one that really, really helps get this piece of legislation to where the government wants it to go. What we are saying is that we are giving the Clerk or his or her delegate that ability to be certified; therefore, by being certified, being excluded.

What I would say is you do not actually need the certification to have it excluded because if it falls under subsections 2(a), (b) and (c), then you already have the right to refuse to disclose as whole. Basically, it is extra protection. It is extra protection; you do not have to disclose it.

So, 2(a), (b) and (c), you already have that you are going to refuse to disclose. Now you put in the extra protection. It is like the double-secret handshake here. We are going to make sure that stuff does not get out there. So, if the first part was not bad enough, we are going to add the second part. We cannot make sure of it, Mr. Chair, because if we want to, we have to go through a court challenge to get there anyway.

The Privacy Commissioner is not going to be allowed to do this, and that is one of the problems here. The Privacy Commissioner – and we can go right back to the start here, right back to the start. Is that the Privacy Commissioner is someone who only has recommendations.

AN HON. MEMBER: Relevancy?

MR. A. PARSONS: Oh, it is all relevant.

Recommendations, he does not have any official powers. In this case, he has been eliminated from looking through everything here when it comes to Cabinet documents, and especially the certified Cabinet documents. Now, the good news is that subsection (5) does limit the delegates of the Clerk who are going to stamp these official secret Cabinet documents. We know it is limited to the delegate of the Clerk of the Executive Council referred to in subsections (3) and (4), and it will be limited to the Deputy Clerk of the Executive Council and the Secretary of the Treasury Board. So, it is reassuring to know that it is not everybody who can sign off and make these Cabinet documents secret, there are only a couple.

Again, I have a few more – actually, I have a good one to bring up shortly. I will take my seat at this point, Mr. Chair.

CHAIR (Forsey): The hon. the Member for St. John's North.

MR. KIRBY: Thanks, Mr. Chair.

This is the first time I have had an opportunity to rise in my place and talk about the un-amended section here, clause 6. It is really interesting, because I was reading today about how our original legislation goes back to the Peckford era. It really has evolved over time, the understanding of access to information, what it should include and what it should not include.

I have to say, and I do not mean to sound cute, but to look at this laundry list, excessively comprehensive list that is up-front in this piece of legislation, you have a Cabinet meeting and these provisions – there is not a single scrap of information possible that you could access afterwards. The only thing you have in here is probably the food wrappers from what you had for your lunch at the Cabinet meeting. About the only thing you would be able to read would be the ingredient list on any food wrappers. It is so excessively comprehensive, it is hard to believe. I have to say, Mr. Chair, it is excessively comprehensive.

If this is about access to information, it is about accountability, it is about transparency. If it is about providing an ease of access, than I am not sure what it is people are going to have access to, because you have all these things about advice and recommendations, and policy, and draft legislation, and regulations, memoranda, proposals, agendas, and minutes; any sort of paper, discussion paper, policy analysis, proposals, advice, briefing materials, any sort of records whatsoever. We have all of that, and then we have the whole bit about discontinued Cabinet records, official Cabinet records, and supporting Cabinet records.

We have the next section – somebody said double top secret. It is really, really putting this behind the curtain. I am not sure anybody would be able to break through it. We debated at length the suggestion of whether or not we would add the substance of deliberations. We decided not to do that for section 18.(2). Then we get down to "(3) The commissioner may review the refusal of a Cabinet record by the head of a public body under subsection (2) except where the decision relates to a Cabinet record which has been certified as an official Cabinet record by the Clerk of the Executive Council..."

That means the Information and Privacy Commissioner will never, ever be able to have any access to review those official records at all. I cannot claim to be an expert in access to information legislation across Canada, but I think those provisions probably set us up to be the only province in Canada where a commissioner or some intervener has absolutely no right to get in there and adjudicate and look at concerns around whether or not information should be provided. What if there is a claim that something is official when in fact it is not official?

The level of comprehensiveness is mind-boggling. The laundry list I am talking about here is taken from the Management of Information Act defining Cabinet records. Government says it is just being consistent here.

I go back to the submission made by the Office of Information and Privacy, as I have said, I believe is closest to the floor on a lot of this because that office has had a lot of experience in adjudicating these concerns. There are not thousands, by the way; there are only 581 apparently last year. So, that is not a whole lot. That is about three a week or something, or eleven a week. It is not a whole lot, about three appeals a week.

In any case, he says, last year government amended the Management of Information Act in relation to the definition of Cabinet records. It should be clear that the definition has no bearing on how the Cabinet confidences provision of the Access to Information and Protection of Privacy Act is to be interpreted. That act bears on the management of information but it is the Access to Information and Protection of Privacy Act which bears on the public's right of access to information found in records, regardless of how the Management of Information Act categorizes those records. This decision is completely contrary to that advice provided by the Information and Privacy Commissioner's Office.

As we have said already, there were only a very few individuals or organizations that went and presented to the Cummings commission on this. The submissions came from Executive Council, the Official Opposition, and the Office of the Information and Privacy Commissioner. Now, I am not privy to all of the information that was presented or provided at those hearings, but I say that the Official Opposition did not recommend this, and it is clear from what I just read that the Office of the Information and Privacy Commissioner did not recommend this.

I guess it is convenient when you are able to make these sorts of suggestions that are proposed legislation which is completely contrary to what I would say is some of the best advice that you are going to be able to get in Newfoundland and Labrador, because that is how I regard the Office of the Information and Privacy Commissioner. That office has the most experience in dealing with all of these problems.

If we want to make sure the public has access to data, records, files and information that may be of some use to them, and are related to Cabinet confidences, then this really closes the door on that. There is no interest on that. This is reducing access. Access to information should not be a burden. The burden should not be on the individual, but that is what it is doing. It is blocking the release of information and suppressing disclosure, ultimately. It does not provide for more scrutiny. What we have is legislation that provides for more secrecy.

I do not think it is amusing at all when members refer to this as the official secrets act because I think this is excessively secretive. If you take all of these sections together, what will now be included in 18 in the Access to Information and Protection of Privacy Act, we have an iron curtain of secrecy, that I believe, I would contend – unless someone is able to prove to the contrary. I have been proven wrong before and I am certainly willing to admit when I am wrong, but I think we probably will have the most comprehensive list of information that is placed beyond the access of the public in the entire country, and that is not what we should be trying to achieve here. I think there has to be a balance. As Commissioner Cummings has said, as the Office of the Information and Privacy Commissioner has said, there has to be a balancing act between what Cabinet provides and what Cabinet does not provide.

Again, as I have said a number of times, I would not be foolhardy enough to suggest that everything should be disclosed, but everything should not be hidden behind the curtain. Everything cannot be because that does not enhance or strengthen the provisions in the act. It completely runs contrary to that. It does not allow more access. If we want to have a decent legislation that is going to be a model for the rest of the country then I think we have to do better than this.

It is really unfortunate we ended up where we are, but I am sure, maybe after several additional hours of debate on this, we may be able to come to some reasonable compromises with, I am sure, the many amendments that are yet to come to this legislation.

Thank you, Mr. Chair.

CHAIR: The Chair recognizes the Member for St. Barbe.

MR. BENNETT: Mr. Chair, it would be really helpful to have some examples so it would make it easier to understand how some parts of this legislation would work. What I am referring to is 18.(2). It says, "The head of a public body shall refuse to disclose to an applicant a Cabinet record, including…" and it lists three. Immediately, I wonder, how did the head of this public body come into possession of an official Cabinet record?

Some head of a public body has an official Cabinet record and shall refuse to disclose it to an applicant. Why would the head of this public body have an official Cabinet document in the first place? Why would the head of a public body have a discontinued Cabinet record, and how would the head of that public body even know that such Cabinet records were discontinued?

I do not suppose there is anybody at Cabinet who has a stamp that would say discontinued Cabinet record and then circulate discontinued Cabinet records to heads of public bodies. That does not make any sense to me whatsoever.

AN HON. MEMBER: Read the definition.

MR. BENNETT: The minister says read the definition. I have read the definition, and it is helpful in that it makes it even more confusing.

Then there is the supporting Cabinet document. A supporting Cabinet document means "a Cabinet record referred to in paragraph (a) which informs the Cabinet process, but which is not an official Cabinet record." We have a document that is in possession of the head of a public body which is a supporting Cabinet document, even though it does not say that it is an official Cabinet record, and the head of a public body shall refuse to disclose such a record to the applicant.

How is the individual who is going to receive this access to information request even know that this person is in possession of what is a supporting Cabinet record? Unless there is a stamp; I suppose Cabinet could have a stamp to put on documents that are supporting Cabinet records which says supporting Cabinet records.

Such a record could be; it says it is "…referred to in paragraph (a) which informs the Cabinet process…" Then all of these records would need to be identified to say what they are so that the head of the public body knows that they have a discontinued Cabinet record, an official Cabinet record, a supporting Cabinet record, or a document which is not a Cabinet record at all.

Mr. Chair, I do not see how this can possibly be applied except in the most limited of circumstances. If we go on to sub (3), this says that "The commissioner may review the refusal of a Cabinet record by the head of a public body under subsection (2) except where the decision relates to a Cabinet record which has been certified…"

If we say the commissioner is going to review the refusal of a Cabinet record by the head of a public body, again I ask: Why wouldn't the application for the information be made directly to Cabinet? Why would an applicant under an access to information request be seeking a Cabinet record from someone who was not Cabinet, be seeking a Cabinet record from the head of a public body which is not Cabinet? This seems not to be very well thought out. In fact, it seems almost like it is an oxymoron to have a commissioner reviewing a refusal of a Cabinet record by the head of a public body even though this is not a Cabinet record.

Mr. Chair, I would like to be able to put that question to the Minister of Justice, and ask the Minister of Justice if he could provide an example of how this would work. I say, Mr. Chair, to the Minister of Justice, can you explain how it would work that the head of a public body would refuse to disclose to an applicant a Cabinet record?

Mr. Chair, I seem not to have the attention of the Minister of Justice. I seem not to have his attention. I ask the Minister of Justice, can he explain how the head of a public body would come into possession of an official Cabinet record that he would then refuse to disclose to an applicant under an access to information request?

CHAIR: The Chair recognizes the Leader of the Official Opposition.

MR. BALL: Thank you, Mr. Chair.

We are still on section 18. When we look at the original act being two subsections (1) and (2), with the new amendment we have added right up to subsections (3) through (7).

We spoke to the minister and asked some questions about getting clarification on, what makes on official Cabinet record? This is where the basis of the debate and most of the concerns and questions that we have been raising as the Opposition in this particular debate, being what makes the record official? What we have come to find out is that right now the Clerk of the Executive will make a determination of the paper that actually makes it to the Cabinet room; that is the official Cabinet record.

In this particular case, Mr. Chair, the only way for anyone to access a Cabinet record would be through an appeal through a court. Our opinion has been that this would add length to the process and would make it – in a general sense, the public would have no way to, in an efficient way, access any of these records because, number one, it would be very lengthy. It would be expensive.

Indeed, when you look at the comparison between the Crown in this particular case and an individual member of the public, it would be very difficult for any member of the public to access an official Cabinet record. Therefore, once the record becomes certified by the Clerk of the Executive Council, based on this piece of legislation, it would virtually be almost impossible for anyone to ever get access to that.

When you look at subsections (3) through (7) in the amendment of Bill 29 here, it says, "The commissioner may review the refusal of a Cabinet record by the head of the public body under subsection (2)…", which would be the list of the records from the old bill plus the ones that were added through the Management of Information Act. So we get, "…a public body under subsection (2) except where the decision relates to a Cabinet record which has been certified as an official Cabinet record by the Clerk of the Executive Council or his or her delegate."

Subsection (4) goes on to say, "Where a question arises as to whether a Cabinet record is an official Cabinet record, the certificate of the Clerk of Executive Council or his or her delegate stating that the record is an official Cabinet record is conclusive of the question." This says there is no room for appeal here. That once this record is certified by the Clerk then no one will review that, unless you take the time and you have the money to make an appeal to the court of law, which really is not efficient at all in our opinion.

There needs to be a process here where someone could independently – in this particular case we would be suggesting the Office of the Privacy Commissioner – review this and see if this certification met the independency, or I guess the test that at some point in time this would be available to the public for public review. Now, Mr. Chair, that would be subsection (4).

In subsection "(5) The delegate of the Clerk of the Executive Council referred to in subsections (3) and (4) shall be limited to the Deputy Clerk of the Executive Council and the Secretary of the Treasury Board." That really defines anyone who could authorize a particular Cabinet record. Therefore, it is those individuals who could actually certify the Cabinet record.

Mr. Chair, this is where the definitions would be but it really does not provide any area at all or any opportunity at all for someone independent of those particular individuals to review that record, to make a decision and to help the public, and in some particular cases, could determine if this record could ever be available to the public. In actual fact, this particular document or these records would have to be around for twenty years before anyone from the public could ever get their hands on it. Mr. Chair, over that period of time there would be very little relevance if any relevance at all to accessing records that would be that old.

Mr. Chair, the official Cabinet record and who makes it official is an area of concern. In subsection (6), "An applicant may appeal a decision of the head of a public body respecting Cabinet records referred to subsection (2)…" These are the records that I have just mentioned, and there is quite a list. I think there are about nine items on that list that would be included as a Cabinet record. Indeed, then we would see that the Clerk of the Executive Council or the Deputy Clerk of the Executive Council and the Secretary of Treasury Board, they being the people who would be in a position to authorize or certify the fact that the record is an official Cabinet record.

An applicant may appeal a decision of the head of a public body representing Cabinet records referred to in subsection (2), except an official Cabinet record. The only way to appeal a decision of that particular type of record is to the commissioner or the Trial Division under section 43 of the act.

Mr. Chair, this is where we get the introduction of the Trial Division as being the only opportunity for appeal for anybody in the public who could ever appeal and request access to a public record, one that is certified to be a Cabinet record.

Mr. Chair, when we go back to last fall and we look at the appeal that was won by a particular employee at the Department of Justice, it was something that became a matter of public review. When you look at the panel of a Trial Division, three very good judges, well-known judges in our Province who reviewed that and said the solicitor-client privilege in this particular case is not something that met the test and that this record should have been available, or that this test was not available. There were things in that record which should have been available to the particular employee in this case.

Mr. Chair, for a Cabinet record to be determined to be a certified Cabinet record and not available to the public and no means for the commissioner to determine if it met the test, there is no option for that here. The only option the members of the public would have is to appeal this through the Trial Division of the courts.

Mr. Chair, we see this to be a little heavy-handed in this particular case. Indeed, it makes it virtually impossible, for a number of reasons. As I mentioned, the length of time and the expense, and who would be in the position to actually prepare for this kind of process. Indeed, most people would find this to be extremely intimidating, Mr. Chair.

When you look at the addition of subsections (3), (4), (5) and (6), and (5) in particular, these are sections that very much inhibit the availability of the public to ever see something from a Cabinet record. Maybe it is something that could even affect a member of the public itself. So it makes it extremely difficult, Mr. Chair.

In this particular case, there needs to be a mechanism, in our view, where someone other than the Trial Division or the court would make that determination. Because in this particular case the Office of the Privacy Commissioner, the authority there is virtually stripped in any efficient way in reviewing those types of documents where they could actually help or facilitate any member of the public in getting access to any record that would be certified as an official Cabinet record.

Mr. Chair, I will finish up my comments with just a few seconds on the clock. We see that this amendment, especially as it relates to subsections (3) to (7) right now, as indeed being very prohibitive in making any government more accountable or more transparent because of this legislation.

CHAIR: The hon. the Member for St. John's North.

MR. KIRBY: Thank you, Mr. Chair.

I am pleased to rise a second time now to talk about clause 6, the ‘unamended' version of clause 6. I think it needs to be amended, but we will see what happens in any case. I will try to keep my comments as brief and succinct as I can, but I want to address subsections (4) to (7).

Subsection (4) says, "Where a question arises as to whether a Cabinet record is an official Cabinet record, the certificate of the Clerk of Executive Council or his or her delegate stating that the record is an official Cabinet record is conclusive of the question."

Subsection (5) says, "The delegate of the Clerk of the Executive Council referred to in subsections (3) and (4)…", (3) which I discussed previously when I spoke, and (4) which I just mentioned, "…shall be limited to the Deputy Clerk of the Executive Council and the Secretary of the Treasury Board."

Subsection (6) goes on to say, "An applicant may appeal a decision of the head of a public body respecting Cabinet records referred to subsection (2), except an official Cabinet record, to the commissioner or the Trial Division under section 43." That part is very important.

Subsection (7) says, "An applicant may appeal a decision of the head of a public body respecting a Cabinet record which is an official Cabinet record directly to the Trial Division." – so back to the courts again.

Subsection (8) says, "This section does not apply to (a) information in a record that has been in existence for 20 years or more". That is an awful long time, and "(b) information in a record of a decision made by the Cabinet on an appeal under an Act."

To me, this says that this word is final of Cabinet. The Clerk of the Executive Council, who is going to be empowered now to certify documents as being official Cabinet records, it is going to be official and there is no other course of action than for members of the public to go directly to the Trial Division. Again, I have said several times, it really gives individuals, members of the public who are seeking access to information or data, or records, or other information, it gives them no other recourse but to go to the courts, which of course comes at some expense to them and some expense to all of us.

Section 18 of the Access to Information and the Protection of Privacy Act is supposed to protect Cabinet confidentiality, to keep from view any Cabinet record which would cause harm or threaten that principle if released. I think this goes well beyond that step, well beyond those bounds. Instead, we have this comprehensive list and if a document is on the list it is protected by Cabinet secrecy, whether that is necessary or whether that is not necessary, Mr. Chair.

Any advice, policy, or anything of that nature, anything else that the department wants to hide, wants to keep beyond public view, wants to keep behind the curtain, wants to blackout, they can submit it to Cabinet. They can protect it from public scrutiny, and individuals who are seeking that information will be unable to access it.

The commissioner will not be able to review, by and large, and access the government's claim that the information should not be disclosed, and the case then has to go to court. I think that is an unfortunate course of action for individuals to be forced into.

In some provinces the release of Cabinet background information is discretionary. A Cabinet might from time to time decide to release information. Now, in Newfoundland and Labrador, if we pass this it will be mandatory to hide it.

If you go back to what was said by Commissioner Cummings, and I think this is really essential to the debate we are having right now. Commissioner Cummings was talking about the Information and Privacy Commissioner when he said that the Information and Privacy Commissioner's office position is based on O'Connor v. Nova Scotia, the case which I referenced earlier. That was a decision of the Nova Scotia Court of Appeal about a similar provision in Nova Scotia's access to information legislation.

"It concluded the only information protected from disclosure is that which would permit accurate inferences to be drawn about the ‘substance of deliberations' of Cabinet." We have been over that. There appears to be no interest among members opposite in going in that direction. That leaves open the possibility that other information considered by Cabinet may have to be disclosed or severed in a particular case.

In its presentation to the Cummings commission, Executive Council advocated for a broader interpretation of the current act as it exists in its ‘unamended' form and wanted greater protection from disclosure. It looked at other cases. Aquasource Ltd. v. British Columbia was the case that they were looking at.

"The British Columbia courts have determined that the ‘substance of deliberations' test encompasses the body of information that Cabinet considered (or would consider in the case of submissions not yet presented) in making a decision. Executive Council is of the view that the information and advice contained in Cabinet documents is a compilation of analysis and synthesis of strategy, policy considerations, legislative and legal considerations, financial considerations, communications, evidence, relevant facts and operating constraints that set the context for the advice being given and the recommendations forward for consideration and direction."

Commissioner Cummings was quite forthright when he said he did not intend to give a more detailed analysis of the interpretations that have been provided across the country. It is interesting, he said, Executive Council prefers one interpretation. Executive Council also made it clear – the Executive Council, of course, which is one of the three organizations aside from the Official Opposition and the Office of the Information and Privacy Commissioner, was the only other organization that presented.

"Executive Council has also made it clear in its submission it believes that the list found in the definition of ‘Cabinet records' in the Province's Management of Information Act would be useful to add to subsection 18(1) of the ATIPPA."

I will not read the definition, because guess where the definition is, Mr. Chair? That definition and that list which was and is preferred by Executive Council, with no irony, strangely – it is not a surprise to me that that is what appears in this amendment. So, why have Cummings at all? Why did we have Commissioner Cummings do this review? Why was there a review of this legislation when Executive Council, Cabinet, was going to insert these provisions in any case? Because no one else, according to the report that was issued by Commissioner Cummings at the end of his review, no other body who presented to the Cummings commission had interest in doing what has been done there.

The other thing about it is this goes far beyond the Province's Management of Information Act. It adds additional provisions, as we have already discussed. I do not know, I cannot imagine the information is that sensitive – things are that sensitive that Cabinet cannot allow some intervener, like the commissioner, to make decisions.

If there is sensitive, economic information, be it related to Muskrat Falls or other major projects that the government has under consideration, I am sure an independent third party, an officer of the House of Assembly, like the commissioner, would have no problem understanding why that would be sensitive. The fact that this has ended up there is very one-sided and really questions why Cummings was commissioned to do this at all.

Thank you, Mr. Chair.

CHAIR: The hon. the Member for St. John's Centre.

MS ROGERS: Thank you very much, Mr. Chair.

I would like to just simply pick up where my colleague has left off. Why this government once again would ignore its experts, those being in the person of Mr. Cummings and also in the person of the Information and Privacy Commissioner who are experts in this area. Particularly, when we look at our Information and Privacy Commissioner who has served us well and who has done extensive work, not only in fulfilling his mandate as a reviewer, as an arbitrator, as an independent party in doing assessments and appeals, but also he and his office becoming experts in the whole area of information –

CHAIR: Order, please!

I would ask the member to let me know to what section of clause 6 she is speaking.

MS ROGERS: I am speaking to the whole of clause 6, Mr. Chair.

Once again –

CHAIR: Clause 6, the Chair does not see any reference –

MS ROGERS: I am sorry.

CHAIR: – to the privacy officer there. I do not know, unless I could be missing it, I do not see it.

MS ROGERS: Okay, thank you, Mr. Chair.

Mr. Chair, the Privacy Commissioner has made recommendations to Mr. Cummings. My concern about the far-reaching implications of what can be dragged into the area of government, of Cabinet documents, and therefore Cabinet secrecy, that government need only keep the draft stamp on an incomplete report and it is incomplete, it never needs to be released again. They can shift a few paragraphs every few years.

I am not casting aspersions on this particular government, but, Mr. Chair, what if we had a different government? What if we had a government that was much more in line with, for instance, Stephen Harper's government on the federal level?

CHAIR: Order, please!

Again, I would ask the member to speak to clause 6 and to keep her commentary relevant to clause 6 of Bill 29.

MS ROGERS: Thank you very much, Mr. Chair.

One of the issues -

CHAIR: I will elaborate, just for a minute. I might say to the Member for St. John's Centre, in committee we debate the bills clause by clause. It is important that our comments be in line with the clause in which we are debating. In second reading is when we debate the principle of the bill and the debate is much broader.

The hon. the Member for St. John's Centre.

MS ROGERS: Thank you, Mr. Chair.

I would also like to ask the Minister of Justice – I suspect we may see more appeals because of the long list of information that will be covered under Cabinet privilege and what may end up designated as official Cabinet documents or Cabinet records, so off to Trial Division.

What I would like to ask the Minister of Justice: Has there been any assessment on the effects that this may have on Trial Division, the burden that it may place on Trial Division? Also, has there been any work at all in assessing the cost that this might cost the Province? Also, has there been any assessment done in terms of what the cost may be, for instance, to a member of the public or a group or organization who in fact does have to go to trial to appeal the refusal of assess to information?

CHAIR: The hon. the Member for Burgeo – La Poile.

MR. A. PARSONS: Thank you, Mr. Chair.

I will continue on. I know the member previous asked some questions, but I am not sure if those will be answered so I will continue on with my comments as to this section.

What we have been talking about overall is the Cabinet secrecy that will ensue from the implementation of this specific section, and all of the different sections to it, whether it be, first of all, the new definition and inclusion of Cabinet records. Then we move into the Clerk's signature, then we move into the appeals and we bypass the Privacy Commissioner. Just to give an idea, because sometimes I do not know if people are aware of what we have to go through in order to get this information and what has actually resulted in some cases.

Back on March 25, 2010, the Official Opposition submitted a Freedom of Information request to the Department of Health and Community Services. This was back, just over two years ago. At that time, what was requested were copies of briefing notes prepared for the minister between dates. I believe it was between the period of January 4 of that year and March 26 of that year. There was an FOI submitted for those briefing notes by the office and it had gone through the normal procedure.

I would wager a guess, Mr. Chair, that this is what a Cabinet department would consider a simple standard request. They get these on a regular basis. I do not think it is in the thousands, as was referred to in a press conference I saw somewhere. It is certainly far less than that. I believe the Office of the Information Commissioner said it was in the hundreds, but later on, about one month later actually, one month and one day later, there was an estimate received of $67.50. That estimate was received by the Official Opposition.

Mr. Chair, this is a good way to explain to people the process that we have to go through, the good that can come out of this and how this is all going to be kyboshed by the enactment of this provision. A cheque was written on May 6, 2010, for the amount of $67.50 and that cheque was sent. On June 14, 2010 – we are getting into now one, two, three months later – the office spoke to the ATIPP Co-ordinator about the records that were requested. The ATTIPP Co-ordinator said the information had been gathered but they were waiting for final signoff from the Minister of Health.

The fact is, the minister is not supposed to be dealing with these requests as is, but this came from the ATIPP Co-ordinator. So there is already an issue there. There is not supposed to be that interference with the procedure, with the process, with the collection of this information. This is the information we get three months later, ninety days later. Already, the department had violated the statutory time limits that had been imposed. We already have one violation there in that the minister is not supposed to be anywhere near this. The second part is that the timeline has been violated. Again, I would say that the Privacy Commissioner can only make a recommendation and nod the order.

An appeal at that time was filed with the Privacy Commissioner, and that was filed on June 10, 2010. The documents were finally received on July 20, 2010. Now, we were not going after a lot of information here. It took us four – I think that was four months, April, May, June, and July. Yes, four months. There were twenty-seven pages in that document. We are not talking about hundreds of pages of information; twenty-seven pages that we had to wait four months to get and had to go through the process and make complaints about. I am going through what we had to go through and explain how we are not even going to have the luxury of that going forward.

The Privacy Commissioner looked into the matter and made a ruling on October 6, 2010. That ruling was made in favour of the Opposition office, which would appear obvious to anybody who would have seen it. That is just blatantly obvious there.

Here is the important part, and I will take my time. I have to get these facts out right, so if I have to take two times to do it, then I will stretch it out. This is important because this is an actual example of the step by step process. We have talked about the theoretical underpinnings of what we are doing, but this is the meat –

AN HON. MEMBER: That is one piece.

MR. A. PARSONS: That is right. We are talking about the meat here, what we have to go through.

I thought he was standing on a point of order.

The commissioner makes his ruling and says one, uses that phrase that we have been talking about on numerous occasions: access delayed is access denied. On page 6 of the report we received from the commissioner, it says it very blatantly that access denied – it was totally shutdown in appearance, it was intentional. I would imagine it had to be intentional because we are not talking about it took this much time to go through documentation; it is twenty-seven pages.

Number two, the commissioner at that time said he sympathized with our concern that the ability of the ATIPPA to fulfill the purpose of making public bodies accountable to the public "…would indeed be undermined if public bodies delay disclosure of records until after an issue had faded from the minds of the attentive public." Now this was on page 11 of the report.

This is what we get into here. It is an obvious delay tactic that has been utilized in order to delay matters so they are not on the news every day. That is just how it operates sometimes; you have to find other things to put out there. It is delayed, delayed and delayed. The commissioner saw this and he actually put it in writing and put it in the report. It is not just us saying this as the aggrieved party, this was the commissioner.

The commissioner is saying that the law we had then, I guess it is the law we have now, that it is about to be flipped.

AN HON. MEMBER: Amended.

MR. A. PARSONS: Amended is a very nice, diplomatic word. I am going to say, what is a better word? Amended is a parliamentary word. I am going to say had the clamps put on it, is a more realistic layman's term to put on there.

The third thing he said is that the department failed to make every reasonable effort to respond to our requests within thirty days, and in turn the department failed to us in an open, accurate, and complete manner. That phrase I keep hearing: open, transparent and accountable government. Well, not that day, or not during that span of time and not that department. It was not open, it was not transparent. We have an independent officer of this House of Assembly saying they failed us.

Now, this was actually based on two FOI requests that had been submitted at the same time. I think I heard a comment about: well, it must have been frivolous or vexatious. This was based on the infamous WDJ Consulting report on air ambulance consultation. Yes, of course, that was frivolous for us to ask about a life and death service in the Province of Newfoundland and Labrador. My God, why should we be asking about that information? Why should we be doing that, because it had nothing to do with the best interests of the people? No.

Again, for the purpose of Hansard and whoever is recording this, insert sarcasm here. We paid $76.25 on the same day for that report from the Department of Health and Community Services.

What I am going to do now, because this story is too good to just clue up in one, I am going to hold off on this. I will end off on this here, to be continued, part one. I will move on to part two in my next opportunity to speak.

CHAIR: The Chair recognizes the Member for St. Barbe.

MR. BENNETT: Mr. Chair, when I was speaking before I was referring to the confusion that seems to be introduced into this legislation by the proposed bill dealing with what is an official Cabinet document, a discontinued cabinet document, and a supporting Cabinet document.

This brings beyond further an issue, and in looking at subsection (3), "The commissioner may review the refusal of a Cabinet record by the head of a public body under subsection (2) except where the decision relates to a Cabinet record which has been certified as an official Cabinet record by the Clerk of the Executive Council or his or her delegate."

Mr. Chair, there are no grounds for appeal made available in the legislation for this particular certification. If we have a situation whereby there has been a refusal of a record, the commissioner can review that record, unless it relates to a record which has been certified by the Clerk of the Executive Council or his delegate. When a question arises as to whether a Cabinet record is an official Cabinet record, the certificate of the Clerk of the Executive Council or his delegate stating that the record is an official Cabinet record is conclusive of the question.

Mr. Chair, this brings us into a situation whereby, are all of these documents going to be certified by the Clerk as official Cabinet records in the first instance? In other words, when the document is produced is it going to be as a matter of course what is an official Cabinet document? Because if it is, that would seem to be a preferable course, certify whatever documents on the outset are official Cabinet documents, and then the others would be open to disclosure. However, that does not seem to be the intent of the legislation. It seems the intent of the legislation is that if there is a request for a document, and it is unclear as to whether it is an official Cabinet document or not, then reference would be made to the Clerk of the Executive Council for a request that the document would be then certified as an official Cabinet record.

Mr. Chair, this seems to put the Clerk in a difficult position of answering, on the one hand, to the legislation and on the other hand to what may be seen as potentially political masters. The Clerk can be drawn into the situation of being asked to certify a document, and maybe there is no proper reason that the document should be certified, but this would tend to look to compromise the Clerk.

It would be better if the legislation were to say from the outset that any documents that are official Cabinet documents ought to be certified from the outset, all certified and reviewed from the outset. Then there would be no further need to refer the matter to the Clerk. It looks like it is a mechanism being introduced into this legislation to be able to give a fallback position to government and to members of Cabinet, to get something certified after the fact which may or may not have been – Mr. Chair, where a question arises, whether a Cabinet record is an official Cabinet record, the certificate of the Clerk or his or her delegate state in the record is an official Cabinet record is conclusive of the question.

My question is: Is this certification numbered when the document is created or is it done when the document is requested? If this document is certified at the outset then I have no difficulty with that, but it needs to be an appropriate certification. A certified Cabinet document is a certified Cabinet document, but to leave an opening whereby maybe a whole range of documents are not certified as official and then they are requested to be certified at a later date simply because a request is made seems to go against the spirit.

AN HON. MEMBER: You are reading that wrong.

MR. BENNETT: Mr. Chair, I am certain that if I am reading this wrong then somebody from Cabinet will speak to this matter and clarify the question that has come up for me.

When I spoke last, I attempted to get some clarification from the Minister of Justice as to what would constitute the head of a public body and for an explanation as to how it would happen that a head of a public body would have an official Cabinet document, or a discontinued Cabinet document, or a supporting Cabinet document. I was unable to get any response. It is difficult to determine, should I ask a question for clarification and if that question is not answered then where do I go from there if I have already given up my opportunity to speak to the legislation?

This section goes on to say, "An applicant may appeal a decision of the head of a public body respecting Cabinet records referred to subsection (2), except an official Cabinet record…" That means records will be subject to appeal, except for an official Cabinet record and a Cabinet record is official if it is certified by the Clerk. Then it becomes a self-serving circular argument, to have a record certified then there is no appeal.

If an applicant seeks a document that has not been certified, there is nothing to say the minister simply cannot request that the Clerk certify something after the fact and this avoids the avenue of appeal. If the appeal goes to the commissioner or a Trial Division under section 43 that is fine, but this would give the Clerk – there would be an overriding veto on certifying Cabinet documents.

CHAIR: The Chair recognizes the Deputy House Leader.

MR. KING: Thank you, Mr. Chair.

I just want to take a minute, then the member can rise again if he would like. I want to reference the item he is speaking to.

First, I think it is important to recognize the definition of an official Cabinet record. Official Cabinet record will be as the definition says here, would be a Cabinet paper and or a deck that is used and presented and considered in Cabinet. Any document that is considered in Cabinet is certified by the Clerk at the time it is presented.

If you go back and read subsection (3) the member references, and I am just going to read through it carefully so we are all clear. It says: The commissioner may review the refusal of a Cabinet record by the head of a public body except where the decision relates to a Cabinet record that has been certified by the Clerk.

In other words, if, for example, you come to the Department of Fisheries and the head of the Department of Fisheries deems that this particular document is a Cabinet record, you appeal it to the commissioner. If the commissioner comes and sees that this is a Cabinet paper certified by the Clerk, you cannot appeal it. If the commissioner comes and sees that I ought not to have deemed it a Cabinet record, you are entitled to it. I cannot go to the Clerk after the fact and have it deemed certified. That has to be done when it goes to Cabinet as a Cabinet paper and or an accompanying deck considered by Cabinet.

CHAIR: The Chair recognizes the Member for St. Barbe.

MR. BENNETT: Mr. Chair, I thank the Minister of Fisheries and Aquaculture for that explanation because the legislation really is not clear. It is not clear as to the process as to when and how certification of a Cabinet record would be made by the Clerk. Clearly, it makes sense but the legislation would be stronger legislation if it had greater clarity and maybe a reference to a regulation.

Mr. Chairman, sub (7) says "An applicant may appeal a decision of the head of a public body respecting a Cabinet record which is an official Cabinet record directed to the Trial Division." This is permissive. It says may appeal to the Trial Division, but it does not say may appeal to the commissioner.

That seems to imply in that section, from dealing with the head of a public body respecting a Cabinet record, which is an official Cabinet record. If the record is in the possession of Cabinet there would seem to be no appeal, but if the record is in the possession of the head of a public body then there would seem to be an avenue of appeal to the Trial Division.

Mr. Chair, why wouldn't that first level of appeal be to the commissioner? The first level of appeal, if it were to the commissioner, would be quicker and would cost, presumably, little or nothing to do.

Permitting an appeal to the Trial Division, while it does open up an avenue of appeal, it is an expensive process. It can cost several thousand dollars and the legal proceeding may well go on for a year, two years, three years, and then be subject to further appeal to the Court of Appeal. That seems to overlook the opportunity to make the commissioner one level of appeal right in that section.

Mr. Chair, at this time I have no further commentary on this part of the bill.

CHAIR: The Chair recognizes the Member for Burgeo – La Poile.

MR. A. PARSONS: Thank you, Mr. Chair.

I am going to continue on with the comments I was making earlier when I was discussing the specific FOI requests, and what goes into them and what we have had to deal with in the past in trying to make sure that access to information happens.

I think I have taken enough time leading up to that and going into the process, the initial request, the estimate provision, the cheque being sent. The information being sent back after the time period runs out saying you are delayed for whatever reasons, good or bad, finally getting the information months after it was supposed to have been provided; appealing to the Privacy Commissioner, which is a right that people deserve and need to have, is the ability to go and bring your issue to the Privacy Commissioner, and getting the report back from the Privacy Commissioner where he comes out and really, really is very explicit in his comments about government.

It is one thing for a government to fail to respond, but when the government fails to make reasonable efforts to respond, and when the departments fail in an open, accuracy and complete manner, then that is a problem. That is a problem within the system that needs to be fixed. That is why the Privacy Commissioner is so important, because it is the Privacy Commissioner who has that ability to look into these matters, investigate them, and get the information that we need.

As I continue on, the appeal itself, Mr. Chair, was actually based on two Freedom of Information requests that were made at the same time regarding the same subject. We appealed both of them. The second one was for the WJD Consulting report which was on air ambulance consultations. We know government hired a consultant to come in and review the air ambulance. This was a very important issue. It had significant attention in the media and in this House back when it was going on. There was a lot of attention on this.

That would be a great example of why this matter was delayed, it was strategy. It was a strategic matter to make sure the information did not get out when it was more relevant to the public wanting to know and the public needing to be informed. It was a strategic move which might explain the fact that the ATIPP co-ordinator said that the information had been gathered but it is sitting there waiting sign-off from a government minister, which is wrong in the first place. Maybe that minister did not actually have to physically sign-off but there was approval. Either way, neither one of them is what the intent or what it is supposed to be. It is supposed to be an impartial process.

There was a second amount paid, it was $76.25. It is not a huge amount, no complaints on that. It was paid on the same day. The report showed up the same time as the briefing notes. It is amazing that the delay here is astounding really when you think about it. The two delayed responses made up the appeal to the commissioner and he put the response to them both in the same report.

That is a report that we have here from, we will say, a couple of years ago. It is just amazing when you read through it. It is fairly substantial. There are about forty paragraphs done by the Privacy Commissioner. That is why I come back to one of the big things here. This was a request that was made for Cabinet information. That is one thing, is that Cabinet information now is going to be off limits and not going to have access to it. You get into the fact of what is official and what is not official. The fact is, as I have said on many occasions, anything near government is going to be labelled as an official Cabinet record from this point forward. That is the easiest way to get it out of the light of day.

The second issue is not only do we not have the right – I have to digress for just one moment because I have heard comments made along the lines of: Well, now you have to do your research. That is what we do. How are you supposed to do research when the information is placed under lock and key? That is the inherent fallacy in those comments: Now you have to do it. That is what we do; we do the work.

I cannot comment as to everybody else, but I am saying our Official Opposition, we do our work. Part of it is requesting the information, but you cannot get that information when it is placed under lock and key and made privileged. Maybe there are some departments that are better than others in the provision of information, I do not know, but what I would say is that all Cabinets now will have the right to place, if it is a Cabinet record, that information is off limits. How can we research it when you will not even let us look at it?

The second part here now, look, in this specific case, after which it was examined the Privacy Commissioner said the department was wrong, and strategically denied and frustrated our efforts to do our job. We are not going to get that next time because the Privacy Commissioner is not going to be allowed to do that. What I would imagine we are going to have to do is we are going to have to – and I will talk about it as if we do not have to go and hire a lawyer, which we will have to do. I am talking about, we are going to have to file an application in the Supreme Court Trial Division in St. John's, or I guess if you wanted to you could go outside, but we are going to say St. John's since this is where the House of Assembly is.

AN HON. MEMBER: In Port aux Basques.

MR. A. PARSONS: There is no Supreme Court in Port aux Basques, a Provincial Court and Circuit Court.

We are going to have to make an application, and I am not talking about a simple application that you see for a permit of some sort where you fill in the boxes, check it off, sign your name, put the date on it and send it off. No. These applications are different. They involve a significant amount of work to filing these applications, which is why you usually have to go and get a lawyer so that you can follow the process and procedure correctly.

What we are going to have to do now is we are going to have to file the application. If you were doing it on your own without a solicitor is difficult enough. Then you have to file that application with the court, then you have to get it back and have it served on the – we will say the government for lack of a specific term. We are going to say served on the government. Then the government who have their lawyers which are paid for by us, the taxpayers, they are going to use their Department of Justice lawyers to file a response to that application where they are going to just delay it further.

Let's get down to it here; I will put it out there now. They are going to delay it. They are not going to follow the timelines. If the timelines are not followed in the provision of twenty-seven page documents, why would they be following the – they will skirt their way around it by using the court process and procedure that is laid out there. Once we get that back, then we have to go through the entire civil court procedure. It is just unfathomable.

The fact is we are talking about this as an Official Opposition where we may have the resources, depending on if government decides to give those resources to us to do that work, which was a recommendation of Mr. Cummings report. If we had the resources is one thing. We have to go through that process, but what I would say is – it is actually referenced but I do not have it right here in front of me – the Office of the Information Commissioner puts out his annual report and shows the number of matters that they hear.

Somebody quoted earlier this week and said thousands of claims come in. We are not talking petitions, we are talking information requests. Thousands come in, but for 2010-2011 it was 581; 581 requests came in.

CHAIR: Order, please!

I would ask the member to explain the relevance of what he is doing now to clause 6.

MR. A. PARSONS: The relevance of what I am saying here, Mr. Chair, is that we are discussing a section which is going to eliminate our ability to use the Privacy Commissioner to do his job. The substance used by the government to substantiate or justify that is by saying: My God, the fishing expeditions and the thousands of requests that come in –

CHAIR: Order, please!

The member is not satisfying the Chair with his arguments for relevance.

MR. A. PARSONS: I will continue on then with my previous relevant story, Mr. Chair.

CHAIR: The hon. the Member for Burgeo – La Poile to continue.

MR. A. PARSONS: Now that we are at the end of my time, I will just have to conclude at this and say that I will continue on with Part III at another time.

Thank you, Mr. Chair.

CHAIR: The hon. the Leader of the Official Opposition.

MR. BALL: Thank you, Mr. Chair, for the opportunity to stand again and speak to clause 6, section 8. Most of my comments will be between subsections (3) to (7).

Mr. Chair, when you look at what we are talking about here today, the Access to Information and Protection of Privacy Act, I did take a look at it and what this all means in terms of access. It says that a public body, in this particular case being government, must demonstrate a clear and legitimate reason for withholding it. The basic premise of all of this is that the burden squarely is on the head of the public body that the information is withheld. The basic objective of any government is to be more accountable and more transparent.

When I look at subsections (3) through (7), in clause 6 in section 18 there, Mr. Chair, we can actually see that there are limitations and restrictions placed on making this information readily available. The public body, its ability to demonstrate and clearly the legitimate reason for withholding the information – right now, what we will have with this amendment is we will be left with a process that if the Cabinet document that we are talking about here is certified –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. BALL: I thank the minister for his explanation of what makes a Cabinet an official documentation and the certification process. What we understand right now is that if a particular document makes it to Cabinet, then it would be certified by the Clerk of the Executive Council or by the other individuals who are outlined here in this particular piece of legislation if the Clerk is not available.

Mr. Chair, this certification raises the question of what the legitimate reason would be for withholding the document. We look at the other individuals who are mentioned here, that being the Deputy Clerk of the Executive Council and in subsection (5) the Secretary of the Treasury Board. When you look at what recourse any member of the public would have with a document that is certified by the Clerk, then we have to ask ourselves: How would you expect the public to access this information? What I did, I went back and said: What are people doing today? What is the impact of this amendment going to be?

If an official Cabinet record becomes official once the Clerk or the Deputy Clerk of the Executive Council or the Secretary of the Treasury Board makes that Cabinet document, that record certified, once it is certified it takes it out of the hands of the public. The only recourse any member of the public would have would be to go to court. I go back and I look for information and say: What happens now? How often did this happen? I go back to the document that the Member for Burgeo – La Poile mentioned.

The Office of the Privacy Commissioner, when he did a review of this he said that the most common route for applicants today in such cases, the appeals would very rarely, would never go to the Trial Division. Those complaints would range from records that were denied. What we learn from all of this is that the public is very uncomfortable in even entertaining the fact that their only right of appeal, their only avenue to appeal would be to go to court.

Mr. Chair, what we are left with here is taking the ability of anybody in the public to have a legitimate, or any efficient or easy way to access any of this information once it becomes certified. This is a concern for us because there is no way to actually define any government or any particular body to be more open and transparent if what we are doing is essentially locking up this information.

Mr. Chair, this is what we see, especially in subsections (3), (4) and (5). The Office of the Privacy Commissioner is already saying that people very rarely, if at all, ever go this route of going through a Trial Division to access the information that they would make an application for. This is what happens, in our opinion at least, once we go through the certification process. Indeed, this is very prohibitive in helping the public. In this day and age, in 2012, you would expect people to be looking for ways, looking for avenues that would make this information more readily available and easier to access.

Mr. Chair, when you look an Access to Information and Protection of Privacy Act, the basic premise on all of this is to make this information more readily available, more easily available and protecting the privacy, as was mentioned. That is something we cannot lose sight of here in this argument, that the privacy of individuals is ultimately important here.

With that said, when the criteria are met to access the information, it should be done where people can do it in an efficient way. In this particular amendment we believe, especially through sections (3), (4) and (5), because of the certification process, it would make it much more difficult for any member of the public to make this information readily available.

Mr. Chair, there needs to be, in our opinion, a more efficient way to do this. There needs to be an intervening way. In our opinion, the Office of the Privacy Commissioner, an independent set of eyes, someone who could look at this information to make a final determination on behalf of the public to determine if this process met the test and if there was any legitimate reason why this material or this information should be withheld from the applicant. This intervener, the Privacy Commissioner or someone else, I think it makes all sense; it makes a lot of sense that this person would be the Privacy Commissioner. It is the person we have in place right now.

We have seen in the past where the Privacy Commissioner has participated in the appeal process on behalf of individuals or applicants in the Province, and has done so very successfully, I might add. Indeed, as the Opposition from time to time, that avenue exists there for us as well. What happens here, because of the certification process of the Cabinet documents, it rarely takes away any of the authority of the Office of the Privacy Commissioner to be an intervener in any of this. Therefore, the Office of the Privacy Commissioner is not an enabler at all to access to information, which when you look at the history of this office, that was its intention.

Mr. Chair, when I look at subsection (3) and (4) in clause 6 here, there is an opportunity where an intervening process, or an intervener should be available so that this information is readily available or easily accessible, or a way that an independent person could review the decisions to make sure that the certification process is indeed intact.

Mr. Chair, I will conclude my remarks and say that, in our opinion at least, there needs to be an opportunity here, not because a Cabinet document or a Cabinet record that is outlined here in subsection (2), simply because it is certified by the Clerk, or by the Deputy Clerk, or by the secretary, because of this certification, it should not necessarily mean they have the absolute authority to take away the appeal process and the only way to appeal it would be through a very expensive, very lengthy – I know the member opposite, I see him waving down, of course, he does not want to hear anything about making information more readily available. That is the Member for Exploits. He is not interested at all in making any of this information more readily available to the public.

Mr. Chair, we do believe and do feel that there needs to be an intervening process here, that simply the certification of a Cabinet record does not mean it should be locked away and the only way for any member of the public to ever get access to that would be through a very timely, a very expensive, a very intimidating trial process.

Mr. Chair, I will conclude my remarks with just a few seconds on the clock. Indeed, we will ensure that this debate will continue keeping in mind that access to information is paramount for all of us in Newfoundland and Labrador.

CHAIR: The hon. the Member for St. John's North.

MR. KIRBY: Thank you, Mr. Chair.

Interestingly enough, I was planning to discuss the same section as well. That is section 18.(4), which says, "Where a question arises as to whether a Cabinet record is an official Cabinet record, the certificate of the Clerk of Executive Council or his or her delegate stating that the record is an official Cabinet record is conclusive of the question."

This whole question of certification is certainly problematic for a number of reasons. You really have to go back to the heart of what it is we are trying to achieve with the Access to Information and Protection of Privacy Act. What is it we are trying to achieve with this act? It says right up front that one of the key purposes of this act is to make public bodies more accountable to the public. I cannot understand how it is that adding this provision is going to add an additional level of accountability.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. KIRBY: It is certainly not relevant to that section of the description of the act.

If we go further down, it is about giving the public a right of access to records. Again, this certainly does not achieve that in whole or in part. This certification process is really about concealing information and withholding it from people. It is an additional stipulation, as if there were not already enough stipulations. If you take all of what is in (1), (2) and (3), that we actually need to have this additional provision.

The act is also for specifying limited exemptions to right of access, and it says limited exemptions. Increasingly, this seems more and more to be about more limitations, near unlimited exemptions when it comes to the prohibitions on access to information. It also prevents here, as far as I see it, it really prohibits the Information and Privacy Commissioner from operating in a way that the commissioner currently does. I think the role of commissioner is integral, and this certainly takes away from that.

As the commissioner said in his report to the Cummings commission, "…the statutory jurisdiction of the Commissioner is not a jurisdiction over records. It is, rather, a jurisdiction to conduct reviews (of decisions, acts or failures to act of heads of public bodies in respect of access requests)…"

One of the questions I would have to ask is: What role is there for the commissioner in this? Because there does not appear to be anything left here for the commissioner in terms of having jurisdiction to be able to conduct a review. That seems to be entirely stripped now. It seems to no longer be relevant in light of this section here. I will be interested to see how this will work out in terms of the commissioner's role to review complaints, because I can see many complaints arising from this stipulation in respect to individuals seeking information.

The kinds of decisions that are made by heads of bodies which have been subject to review by the commissioners are decisions about whether certain records are responsive to requests, and refusals to disclose records. This stamp is a stamp of certification. This stamp of certification or signature of certification is a stamp of denial. It is a refusal to provide information in the way that we have come to understand it.

I have said a number of times, and I will try to say it a different way because I would like members to understand that this will diminish our act in comparison to other acts in the country. Last year, the Canadian Newspapers Association gave – we came fifth in access to information in the rankings of access to information amongst the provinces and territories. In thirteen jurisdictions in Canada, we came fifth with a grade of B-.

This new subsection (4) is not going to improve our standing in the comparison to other access to information legislation in Canada. It is not going to do that. To quote a gentleman from the Canadian Association of Journalists: government work, including information, information created at the cost of the taxpayer – because this is all created at the cost of the taxpayer – is paid for by the public. It inherently belongs to the public, Mr. Chair.

This bill creates significant roadblocks for journalists, for the media, and for any other members of the public for that matter, who want to see what government is doing, is interested in the decisions that government is making, wants to know why governments are making the decisions they are, what is informing government's decisions, what sorts of discussions are going on. This stamp of certification will no longer make that possible.

I agree that this flies in the face of what the Minister of Justice has said about this legislation – there is an alarm going off somewhere, I do not think my time is up yet. It flies in the face of the comments made by the Minister of Justice, and I am not talking about the comment about thousands. I am talking about the comments about this government being committed to openness, this government being committed to transparency, and this government being committed to accountability.

You have the largest national organization, professional organization representing journalists in Canada saying that sort of thing. It is not going to do much. It is draconian on a lot of levels, but I think this additional provision – again, I do not see any reference to this in the submission that was made.

Correct me if I am wrong, I do not see it in there anywhere in the submission that Executive Council made to the Cummings commission. It is clear that all of this has come from Executive Council, the changes and the Management of Information Act stipulations that were suggested to be added to ATIPPA. This was not mentioned at that time, so I think it is a significant addition. It is not going to improve the legislation at all.

If the intent here is for something that is more open, something that is enhanced, or legislation that is strengthened, I do not see that. This particular subsection (4) will do nothing but further reduce access. It will suppress information. It will provide for a greater level of secrecy than what we currently have. In the end, it will place a burden on individuals.

To be honest, this will probably present an additional burden on the work of the Executive Council and Cabinet itself. It is additional work that has to be done that does not need to be done right now. It is just an additional piece of bureaucracy that is being added on here in an effort to stamp out approval of Access to Information that is currently available.

I will continue my comments later, Mr. Chair. I appreciate the opportunity.

CHAIR: The hon. the Member for St. John's Centre.

MS ROGERS: Thank you very much, Mr. Chair.

I, too, would like to speak to subsection (4) here, "Where a question arises as to whether a Cabinet record is an official Cabinet record, the certificate of the Clerk of Executive Council or his or her delegate stating that the record is an official Cabinet record is conclusive of the question."

Mr. Chair, I would like to pose that, in fact, what happens here then, because it bypasses and prohibits access to any official Cabinet records to the Information and Privacy Commissioner, that this bypasses the independent body and the body that has the expertise in this area of information and privacy protection. Therefore, because the Clerk of the Executive Council does this, then the process is no longer independent, transparent or accountable, and that is the very heart of this act.

The Access to Information and Protection of Privacy Act, the very heart of it is about independence, its about transparency and accountability; but, the very fact that the Clerk of the Executive Council makes these decisions, is the arbiter, is the interpreter, is the gatekeeper, renders the spirit and the purpose of the act – it certainly takes away that independence, that transparency and that accountability. What does that mean for us? Well, we know that the word of the Clerk of the Executive Council is final. There is no appeal, except in court.

I would like to refer again to Duff Conacher from Democracy Watch. He says that this affects everything. Essentially, it is in every area. There are more loopholes, more exemptions and disclosures and information, and they are weakening enforcement as well. When you do that, it is a double whammy that ends up leading to excessive, unjustifiable secrecy at an even greater level then you usually see from governments across the country, unfortunately.

Also, Mr. Chair, we see in the public sphere that the commentary, particularly around the whole area of what is happening to Cabinet records secrecy, is that it is seen as a step backwards. That it is diminishing, once again, the tenet of independence, transparency and accountability.

Section 18 is supposed to protect Cabinet confidentiality, to keep from view any Cabinet record which would harm or threaten the principle if this information was released, but instead what we have is a list. If a document is on a list, it is protected by Cabinet secrecy whether or not it is necessary.

There are documents that are on the list, but it may not be necessary in fact for them to be relegated as official Cabinet records, but this is what the mandate will be. Any advice, policy, or anything else that a department wants to hide, they can submit it to Cabinet and protect it from scrutiny. Again, Mr. Chair, I would not say that would be the intent of this government.

MR. KING: A point of order, Mr. Chair.

CHAIR: Order, please!

The Deputy House Leader, on a point of order.

MR. KING: On that particular point, I want to correct the member.

Mr. Chair, that is factually incorrect, what she just said. You cannot submit a document to Cabinet and have it certified as a Cabinet document. The only document that may be certified is a document like a Cabinet paper with attached supporting documentation that is presented, considered, and ‘minuted' in a Cabinet meeting.

CHAIR: Order, please!

There is no point of order.

The hon. the Member for St. John's Centre.

MS ROGERS: Thank you very much, Mr. Chair.

The broad and far sweeping aspects of this legislation are in fact very disturbing in terms of what it means to easy access to information. Sometimes a lot of background material is sent by a department by order of Cabinet to review. Could this then be taken up in this broad-sweeping, far-reaching piece of legislation?

Again, the commissioner will not be able to review and assess government's claim that information should not be disclosed. So then this has to go to court. We have all heard again and again, over the past two days, how onerous this can be, how timely it can be, and how costly it can be.

In some provinces the release of Cabinet background information material is discretionary. A Cabinet from time to time might decide to release information, but now in Newfoundland and Labrador this may be more difficult.

The issue we are dealing with here, Mr. Chair, is legislation, how the legislation will be used and how it will be applied. Again, I cast no dispersions on this particular government, but the latitude that this particular legislation gives really threatens the basis and the spirit of the act of our Access to Information and Protection of Privacy which is based on tenets of independence, transparency and accountability.

Mr. Chair, I believe there is a bit of a yawning gulf on this amendment. Again, the concern is how this can be used in the future. The other aspect is that this is not necessary. The safeguards are in the legislation and the execution of the safeguards is safely in the hands of the commissioner. This is a step backwards in our ATIPPA.

Thank you very much, Mr. Chair.

CHAIR: The hon. the Member for Burgeo – La Poile.

MR. A. PARSONS: Thank you, Mr. Chair.

I am going to continue on with my story that I have spoken to on two previous occasions. Again, any opportunity to speak to the government's secrets act is a great opportunity.

Where was I going with my commentary earlier? Mr. Chair, what I was talking about was Freedom of Information requests. That is what I was talking about. I was talking about the difficulties that have been faced by people trying to access information.

I referenced specific occasions where the Opposition has had difficulty, which was acknowledged by the Privacy Commissioner. What I would say is if this section 18 is implemented then what this is going to result in is certainly an influx of new court applications into the court system to access information. How can anyone deny that?

When you are taking away the Privacy Commissioner's right by law to examine information, then obviously if somebody wants that information they have to go the other way. That is the obvious part. People are not going to stop looking for information that they want to get, and if they cannot get it through the Privacy Commissioner they have to go through the court.

What I was talking about, Mr. Chair, is that to go through the court process, I think sometimes – I went through a Freedom of Information request to show what you actually have to go through to get it. What I am going to talk about is the court process and what you have to do in the court process. I think I started this earlier.

AN HON. MEMBER: Relevance.

MR. A. PARSONS: The relevance to this is quite obvious to anybody who has tried to get information from this government. They have had to go through the Privacy Commissioner. The relevance to this section is quite clear, but I will wait until the Chair questions me on relevance.

What I am going to talk about is in order to get this information you will have to make an application as per subsection (7) of this, when we talk about "An applicant may appeal a decision…" This is where I am going. There are subsections here that I am referring to, just so everybody has that clear.

An applicant is somebody who makes the application to court. We are not talking about those general forms you check off, insert date, sign your name, and put in a little bit of stuff. It is not like that. An application to a court is a much more comprehensive, difficult process.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. A. PARSONS: If I could have some protection there, Mr. Chair, I am trying to educate some of the members on what goes into this court process.

SOME HON. MEMBERS: Oh, oh!

MR. A. PARSONS: I see I have a response here, so I know you are listening, excellent. I will continue on, Mr. Chair.

When you are doing this application, the fact is that usually you are going to need to get a lawyer because it is a very difficult process. It is not a general form that you can fill out. You have to lay in all of the relevant information: who the applicant is, who the respondent is, what is the information in the matter you are putting to the court, what is the remedy you are seeking for the court, et cetera.

This is something that before this, Mr. Chair, the Privacy Commissioner would do. What this results in are things like the Court of Appeal decision that we got. That is all based on an application that was initially made by the Privacy Commissioner, but now he cannot do that. The individual person or body who is seeking the information will have to go through this.

What I am saying is that the person who has to do this more than likely will have to go and get a lawyer. That is going to involve a significant cost, whereas the Privacy Commissioner had funding before this to commence these applications for people. In this case, now you will have to go out and pay money to get a solicitor to take this into court for you. I will continue on.

Mr. Chair, they put out that this does not affect the common person, well it does. This is where I was going earlier. If you look at the Privacy Commissioner's report that he put out, the fact is that 90 per cent of requests for information in 2010-2011 were by private individuals; 2 per cent were from political parties, just 2 per cent; 90 per cent were from individuals. Again, I will table that report. It is not a problem, right here.

The Privacy Commissioner in this report also referenced that there was an increase in the requests in the last fiscal year from the year previous. Will that number go up or go down? I would submit it will go down because he will have fewer requests that he is actually allowed to handle now. What I would suggest is, in my opinion, the number is not going down overall. It is just the number that he is handling is going down. These people are still going to avail of their right to get information except they will have to go through this courtroom process.

AN HON. MEMBER: There is no issue with a courtroom process.

MR. A. PARSONS: No, there is an issue because that money is coming out of their pocket to get information that they should be entitled to. That is the issue there.

What is going to happen is that when they file this request, the people responding, the government – basically, the government is going to use the Department of Justice lawyers to do this. I am making a request that I am paying for, but the response I am getting I am also paying for, because this government is run on taxpayers' dollars. You see the inherent irony in this, in that I am making a request that I am paying for but then the government is going to respond using the Department of Justice lawyers. That is what they do; that is what they are there for.

The Department of Justice is going to file that response and then we are going to go through that entire process, but here is the kicker now, Mr. Chair. These processes take time. They take a lot of time, and if you get through and you manage to afford to be able to continue on – and there are cases out there. I have talked to individuals who cannot continue on because over the course of time they cannot afford to keep spending their money to get the information. They have to be self-represented litigants, and that is more difficult.

If you do manage to carry on and you keep the matter in court and you get through the settlement conference and the different procedural aspects, then you get to court. Then if you get to court, and if you have the matter heard and you win, the government has the right to appeal that. The government is going to spend more time and more money fighting you for the information you should have had in the first place, and a Trial Division judge said you should have had it.

This came out in a Court of Appeal decision. October 26, 2011, the Court of Appeal ruled in favour of the Privacy Commissioner who acted on behalf of a former Department of Justice solicitor who was trying to get their own file. In this case they lost that first instance, so they had to continue on, but it was the Privacy Commissioner handling that for them. They were lucky, because it was the Privacy Commissioner's funds paying for this.

The Privacy Commissioner could afford to take this decision. Again, they had issues with that, whether the issues were of fact or law or whatever, either way they brought it to the Court of Appeal and the Courts of Appeal unanimously ruled in their favour. The Court of Appeal said you were entitled to this information. You should have had it. The government should not have kept this information from you.

This is something we are going to talk about after, but I guess it is relevant to the entire piece of legislation, this solicitor-client privilege. We will get more into that as we continue on. Again, there should not have been that blanket coverage.

What I would say, Mr. Chair, it is obviously relevant if we are going to have the vast majority of individuals in this Province who were using this Privacy Commissioner and can no longer use the Privacy Commissioner, that is going to be an issue. That is increased costs to the people of this Province. I think that is relevant, Mr. Chair.

This legislation and this section is not lending itself to making things easier for people. That is not the intent of this, to make it easier for people to get information. We cannot say that because that is not true. It is making it easier for information to be excluded from what people are entitled to. That is what we are dealing with here.

Again, the whole point of this information is not to make life easier for government. That is not what it is about at all. It is about ensuring there is a balance. There is a right to information and it is up to a judge, whether that is the Privacy Commissioner or the court saying should you have it or should you not have it. There should be discretion there to figure out, should we let it be passed out or should we not let it be passed out?

In this case, there are mandatory exemptions. There is no discretion whatsoever. We are going to have just mandatory, across the board, a shutdown of information that is allowed to go out to the public that is being perpetrated by this piece of legislation and this specific section. That is my issue with this section.

I am going to sit down at this time now. My time has run out, but I look forward to speaking again.

Thank you for your attention.

CHAIR: The hon. the Member for St. John's North.

MR. KIRBY: Thank you, Mr. Chair.

I just want to add a few additional comments from where I left off earlier when I was talking about these sections.

My comments are also relevant to the same sections the Member for Burgeo – La Poile discussed, subsections (6) and (7). It really relates to the whole issue of the courts. As it stands right now, we have an impartial third party who is able to intervene here, the Information and Privacy Commissioner, in the event where there are conflicts and there certainly are conflicts.

The member was talking about requests for review and complaints that have occurred in the past. The majority of those are by individuals. If all of those or a large proportion of those have to be adjudicated through the judicial system, I think it is a significant problem compared to the situation that we have at present where individuals are able to avail of the services of the Office of the Information and Privacy Commissioner. Instead of reaching an informal resolution, then we will have a more formal, judicial, legal situation where there is more conflict and which involves the courts.

I remind the members, where there have been requests for review on complaints in the past, in 2009-2010, 93 per cent of those were by individuals. The previous year there were 88 per cent of the cases, 145 were initiated by individuals. Those were the requests for review. In the year prior, 83 per cent, Mr. Chair, were a request for review in complaints that were brought to the Information and Privacy Commissioner for adjudication. Those were by members of the public, by individuals.

There are a variety of other organizations and bodies that have sought recourse from the Office of the Information and Privacy Commissioner, aside from private individuals, businesses, the media – obviously, which we know – political parties is obvious, but those are relatively a small number. Interests groups or other public bodies, or organizations, they are relatively small numbers outside of private individuals who are seeking information.

If they have to go through the judicial system to get recourse, then I think that is a real problem because, as the member said, that ties up lawyers from the Department of Justice. Somebody has to pay them, they are public servants. They are civil servants and their salaries are paid for by the taxpayer.

Do we really want to set up a system where individuals have no other option but to go to Trial Division to revert to courts in order to get a resolution to their concern? Then that comes at, like I said, a great cost to the Province, because we have lawyers from the Department of Justice who are tied up doing that work. Individuals have to pay themselves, who knows how much.

We know a lot of people cannot afford to access legal counsel just because they do not have the financial means themselves. Then, of course, the courts are tied up. Members have to realize this, there is no question. There are a lot of bright people here in the room. We know the courts should not be tied up.

The courts should not be unnecessarily tied up dealing with legal cases that relate to information and privacy concerns that could be dealt with through far more rational mechanisms, such as the Office of the Information and Privacy Commissioner. It makes perfect sense to have an impartial, independent third party, an officer of the House of Assembly who is able to come in and have a look at these situations, decide how to move things forward, decide whether information should be or should not be concealed, whether it should be released to the individual. Like I said before, there is no mistaking it here.

We know the whole business around Cabinet confidences is intended to protect information and to make sure that damaging information is not released, but I think this will also contribute to extending the length of time that people have to access information, that it is going to take them to get information compared to the case now. If they are looking for records or information they are going to be stymied. All of the legal process of getting a lawyer, getting to court, getting a date, getting a resolution and all of that, that is going to slow things down considerably. It is going to make it more difficult for the media, for the public, and for political parties too, to get access to this information.

As I said, it increases the cost to the individual and to the Province because right now I think we are getting a relatively good deal from the Information and Privacy Commissioner's Office. I think that is a far cheaper solution. We are all interested in finding efficiencies and cutting down on red tape, so why would we make the system more inefficient? Why would we add more red tape to create more barriers for individuals when that is really not the intent of section 18 of this legislation?

I think all of that really has the combined impact of restricting information, adding additional restrictions where they are not. Subsections (6) and (7) are very clearly going to contribute to that. They are going to contribute to cost and more or less the rigmarole, as you would say, associated with trying to get resolution to problems around accessing information and records that are held by government that people are seeking.

There is no question that ministerial briefing books and other information have significant sections that there would be a need for information to be held in confidence. There is sensitive information included and none of us over here is denying any of that. We force individuals who have legitimate concerns to resort to the judicial system in order to –

SOME HON. MEMBERS: Oh, oh!

MR. KIRBY: There is a bit of levity here in the House right now for everybody who is watching at home at 6:28 a.m.

Individuals have legitimate concerns and legitimate requests for information and they ought not to be stymied by additional provisions such as these. They have legitimate concerns. There are legitimate reasons for not releasing everything either. The best adjudicator of that, the best person to make those sorts of determinations in a collaborative way, in a way that works for Cabinet, in a way that works for government, in a way that works for the public, for individuals who are seeking information, that works for the taxpayer, Mr. Chair, is to involve the Information and Privacy Commissioner. That is why other provinces across this country rely on a similar system.

I would like to know at some point, if someone can tell me if this is just something that was created here, whether this is a native development, if this is language that we created here for our own purposes or if this was yet another piece, other language that was just graphed on from other legislation in another province or territory or Canada because those who are drafting this legislation thought that it would be convenient to have this additional level of secrecy to block the release and access to information that otherwise would be potentially publicly available to suppress the disclosure of Cabinet information.

Thank you, Mr. Chair.

CHAIR: The hon. the Leader of the Opposition.

MR. BALL: Thank you, Mr. Chair.

We will continue the discussion on clause 6, section 18.

Mr. Chair, there has been quite a bit of discussion around clause 4 and the certification of Cabinet –

AN HON. MEMBER: Subsection (4).

MR. BALL: Subsection (4). It is subsection (4), clause 6, section 18.

Thank you, Mr. Chair.

There has been a lot of discussion about the certification of Cabinet documents and what that means in terms of public access.

Mr. Chair, the intention here, and one of the things we will propose is that this is an opportunity for an intervener. Because right now when you look at the clause and the three-part definition of Cabinet records, the official records, the discontinued records, and the supporting records, Mr. Chair, all of which could be, once certified, become an official Cabinet record. This would be determined by the official, the Clerk of the Executive Council. There is really no appeal process here, except through the court. This has already been determined to be very expensive, in this particular case.

What we will do is, we will be proposing an amendment to clause 6, section 18.(4). The amendment will be supported simply because – this amendment will do the following. It will require the commissioner to review the certification – the commissioner we are talking about here is the Privacy Commissioner – and allows the Privacy Commissioner to reclassify the document to another type of Cabinet record, or to reject the Cabinet classification completely. The decision of the commissioner can be appealed to the Trial Division and the applicant shall be represented by the commissioner.

What this does is allows for an intervention. It gives the public, in this particular case, an opportunity to still use the Privacy Commissioner as an avenue to help facilitate the process of getting to the information. Why is this important? Because right now the system that is being proposed by this amendment really makes it more difficult to get access to the information.

When you look at the spirit of this legislation, Access to Information and Protection of Privacy, Mr. Chair, we see that this new amended legislation will actually make it much more difficult. In this particular case, amending subsection (4), if we put an intervening role here, that being the role of the Privacy Commissioner, it would make the facilitation and access to this information a little easier.

Mr. Chair, I will read the amendment; the amendment would be to clause 6 of the bill.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. BALL: The amendment would be, "Clause 6 of the Bill is amended by deleting the proposed subsection 18(4) and substituting the following:

"(4) Where a question arises as to whether a Cabinet record is an official Cabinet record, the certificate of the Clerk of Executive Council or his or her delegate stating that the record is an official Cabinet record is conclusive of the question only after a review of the record by the Commissioner who shall confirm the certification as an official Cabinet record."

What we would do is add, "(4.1) If, in the opinion of the Commissioner, the document is not a Cabinet record, the Commissioner may certify the Cabinet record as a discontinued Cabinet record, a supporting Cabinet record or not a Cabinet record.

"(4.2) A certification by the Commissioner may be appealed to the Trial Division and the applicant shall be represented by the Commissioner."

That is the proposed amendment, Mr. Chair.

CHAIR: Order, please!

It is moved by the Member for Humber Valley that clause 6 of the bill be amended by deleting the proposed subsection.

Shall I dispense with further reading of the amendment? The Government House Leader, shall I dispense with further reading of the amendment seeing that it was already read into the record?

AN HON. MEMBER: (Inaudible).

CHAIR: Okay, the amendment is in order.

I will go back to the Leader of the Official Opposition to speak to the amendment.

For the information of members in the Chamber, you do not need a seconder to propose an amendment when you are in Committee of the Whole.

The hon. the Leader of the Opposition, to speak to the amendment.

MR. BALL: Thank you, Mr. Chair.

Thank you for the opportunity to speak to the amendment.

What this amendment does, of course, is it allows for an intervening role. Right now, what we have here is once a Cabinet document is certified, there is really no recourse to get access to the information, except through the Trial Division. In this particular case, what this amendment does is it allows for the commissioner to get involved.

What we are proposing is subsections (4.1) and (4.2), where the commissioner can take a look at the Cabinet record that has been certified and then be left with a couple choices, to discontinue the Cabinet record and the supporting Cabinet record and it would not be, in that particular case, a Cabinet record. Then it does allow for an appeal process. If a public body would want to appeal the process, it could do so and the applicant would be represented by the commissioner.

Mr. Chair, what this does, it still makes the information – when you look at the old bill, the original bill to where we are today, it actual adds a layer there but involves the commissioner, gets the commissioner involved to play the role as the intervener in this particular case.

Mr. Chair, as we all know, any member of the public, it would be very difficult if the only route of appeal was to go through the courts or through, in this particular case, the Trial Division, which would make it very lengthy, very expensive and very intimidating, as we said.

Mr. Chair, I do not think any of us in our society right now would be promoting the idea that the only way for a member of the public to get access to information would have to use the courts as the avenue to retrieve the information based on the application. In this particular case, the Privacy Commissioner would represent the client or the applicant, and if it was appealed and it did go to the Trial Division, well then the commissioner would represent the applicant.

Mr. Chair, this amendment really speaks to subsection (4). What it would do is it would give more authority back to the Privacy Commissioner, in this particular case, and his or her opinion, or the office at least, would review the Cabinet document that is certified, and in this particular case the commissioner would be left with a couple of options to discontinue the Cabinet record. "If, in the opinion of the Commissioner, the document is not a Cabinet record, the Commissioner may certify the Cabinet record as a discontinued Cabinet record".

MS BURKE: (Inaudible).

MR. BALL: Yes, I agree with you.

What we need to be looking at here are Cabinet records that are certified. What we would actually do is – the commissioner would have the right to discontinue that and if there was an appeal here, the commissioner then would represent the applicant in the Trial Division.

Mr. Chair, that is the intent of the amendment here, to give the authority to the commissioner to become the intervener and work on behalf of the public here. That is the spirit of the amendment, and we will look forward to the discussion on this amendment in the few minutes ahead.

Thank you.

CHAIR: The hon. the Member for Burgeo – La Poile, to speak to the amendment.

MR. A. PARSONS: Thank you, Mr. Chair.

I am happy to stand here and speak to this amendment that was just put in by the Leader of the Official Opposition. I am pretty sure that everybody in this hon. House understands the intent of what this amendment is trying to convey; there is no doubt about that.

It is an amendment to subsection (4) of section 18 of clause 6. What we are saying here is subsection (4) stays the same. We are saying if there is a question as to whether it is an official Cabinet record, then the Clerk, the certificate of the Clerk, or their delegate stating that the record is official is conclusive of the question only. That part stays the same, but there is a little part after that, "…only after a review of the record by the Commissioner who shall confirm the certification as an official Cabinet record."

What we are trying to do here with this amendment is give some teeth back to the Privacy Commissioner by giving him the opportunity to do his job and review this. One of our concerns is that under the system that is proposed almost anything, when you think about it, can be hidden away virtually permanently, simply on the say-so of the Clerk. The fact is that with the Clerk signing off, it now becomes an official document.

We keep coming back to trust, and trust is one of those things you have to build up. Given some of the things I have talked about here in this House, Mr. Chair, you can see why there is not exactly trust always there when we know that government departments have, in many cases, wilfully disregarded – the government has wilfully disregarded the instructions of the Privacy Commissioner and people trying to get information. They just put it to the side because they did not want to follow it. There has been a fair amount of documentation of that over the last eight to ten years or so.

What we are proposing here, Mr. Chair, is an oversight to this. Nobody in their right mind should have any issue with inserting an extra level of review or an extra level of oversight to a government – a piece of legislation that really governs every, single one of us in this Province. I know legislation, when we talk about it, covers off everybody, but this really is legislation that affects our fundamental rights of information.

What we are suggesting is that this amendment will help improve the section as proposed. We already have some issues with that section, no doubt. We have already put forward one amendment. This is the second amendment, Mr. Chair – the third amendment. I am sorry, I lost count there. There have been a few here tonight.

What I would say is that we are trying to improve the level of oversight on government legislation, especially when we are dealing with something as fundamental as a person's right to know. What we are allowing for here is we are saying there should be a system for a review by an independent set of eyes. We are saying there should be someone else looking in on this to make sure that what is being done, or proposed, or suggested is right. We cannot just go on trust here.

The best choice for that, obviously, would be an independent, impartial body. We are not trying to put in somebody who is not experienced, or somebody that is out of the loop. Why not put in somebody who is independent? Why not the Privacy Commissioner whose job it is, is to be an independent, impartial officer of this House of Assembly?

This allows the, upon something being certified, the commissioner can then look at this and accept the certification. They can change it, reject it, or accept it. It is up to the commissioner then to do either of these things because they are all within his power, if we continue on with this amendment as proposed.

Now, if the government disagrees with the decision of the commissioner then certainly all of the bodies are going to go on to court and resolve it there. That is the provision as it is stated here in the legislation as it is. If government disagrees with the commissioner's assessment of whether something is certified or not then take it to court. That is what you are telling the people of this Province, is take it to court. Well in this case the government can take it to court, go to court, and use the Department of Justice lawyers.

What this amendment is doing is requiring the commissioner to review the certification. That is a fair amount of leeway here when we talk about subsection (4) that we are suggesting requires an amendment. When a question arises as to whether something is official or not, the Clerk stating it is official is conclusive. That is a fairly large amount of power to convey upon the Clerk of the Executive Council; Executive Council being comprised of Cabinet ministers. It could possibly lend itself to abuse. What we are suggesting here, let's eliminate any possibility of that happening.

What I would say to government is don't just think of this from today. It is short-sighted to look at legislation just today, look at it ten years down the road. What I would suggest is imagine yourself as if you are not government, then how would you feel if you were the Opposition or if you were the Third Party and you are looking at this, then wouldn't you want to know that that oversight is there? Wouldn't you want to know that the right thing is being done?

I guess this could apply to any amendment we make, really, or the legislation as a whole, that government needs to ensure that: Look, don't be short-sighted and look at this – don't just be thinking of yourselves now. In many cases I really believe that is what this law is all about anyway, is thinking about the government and making it easier for government to withhold information that belongs to the people, but think of yourself down the road when you are not the government, because we all know that is coming. To suggest anything otherwise is simple arrogance. That is just the nature of politics. Unless there is a dictatorship, or I guess you could be facetious and suggest that unless it is Alberta where they have had one government for a number of years, but the fact is things turn around. You want a piece of legislation that is fair and right, so keep that in mind when you are looking through this.

The commissioner, after reviewing this, is able to reclassify the document to maybe another type of Cabinet record. There are three being proposed here, there is Cabinet, there is discontinued and there is supporting. Each of them has a different meaning and a different purpose. Depending on how they work, each of them should probably be more open to inquiry than others.

A supporting or discontinued Cabinet document is not the same as a regular Cabinet document in that they are over or they have been discarded. So they cannot be treated, in my mind, with the same level of credence. In this case, the commissioner, under this amendment has the power to look at it and say: No, that is not an actual Cabinet record, that is a supporting Cabinet record or that is a discontinued Cabinet record. They have the ability to reclassify for one of these sections of, I guess, Cabinet records as it is stated here under section 18.

The onus or the challenge of proving that something is not certified could be very difficult, but just because something is difficult does not mean that we should not strive to achieve it. What I would say is that the commissioner would have the right to toss it out if they did not find that the Cabinet classification matched or was proper. We have to consider anything as being possible.

There have been lots of cases in any kind of political system, especially we have seen – in the federal government in the last number of years you had pieces of legislation and government documents that were altered. Actually, there was a particular Cabinet minister who altered a document because there was a bit of trouble over it. It caused a bit of fuss. So these things happen. At the end of the day, sometimes when people are in times of trouble they will make sure that they change things to better suit their needs at that time. That is a reality of where we are.

What I would suggest again, finally, on this amendment, is that this decision of the commissioner is able to be appealed. There is discretion. It is not just a final – we are chopping it off and that is all there is to it. It can be appealed.

I am going to sit down, but I am sure I will have an opportunity to speak to this amendment now shortly.

CHAIR: The hon. the Deputy House Leader.

MR. KING: Thank you, Mr. Chair.

I am pleased to take a few moments to speak to this particular amendment that has been brought before the House by the Opposition Party.

I have listened for a long time to a number of speakers opposite, and I think one of things that is very important to clarify for people in debating this particular amendment is what we are talking about when we talk about the definition of a Cabinet document, and the whole process surrounding them. I rose probably an hour-and-a-half or so ago to provide some particular clarification, but Cabinet documents are not general documents of government.

In this particular clause we are debating, we are not talking about general information that people of the public would come looking for, and it is important for people to understand that. This is not generally a place where members of the general public go when they are looking for information from government. They are typically looking for other sorts of information.

Cabinet information is typically sought by members of this House, Opposition Parties, political staffers, and members of the media. Cabinet documents are defined very clearly as documents; being Cabinet papers and attached documentation to support the Cabinet papers that go before the Cabinet, are considered by the Cabinet, are ‘minuted' in the Cabinet and certified.

We have been very clear in this particular bill that we believe it is the role, as defined here, for those papers to be certified, as we have outlined it there. We have also outlined very clearly provisions for other types of information to be made available to the public through this particular act.

If, in fact, there is a feeling by someone in the public that they have been denied access, there are provisions here through the commissioner that that can be appealed to the head of a particular public body, vis-ΰ-vis it could be a school board, which would be the CEO or the chairman. If it is a provincial government department it would be minister. Those provisions are made here, Mr. Chair. I want to be very clear, first of all, as we speak to this amendment, on the designation or not of Cabinet documents. People need to understand what we are talking about.

I listened to the Opposition House Leader speak at length, and he does a good job in portraying his points, but in my view he is overemphasizing some things and he is playing on the dramatic here. It is his role, I understand that and I accept that. He is playing on the dramatic here, perhaps to incite further public debate, discussion, and consideration, I believe, in places where it is probably not warranted.

The debate on this particular clause I do not believe is a debate that is being watched widely in the public. If any members of the public, and if members can correct me, then I encourage them to do so. I do not think there are many public documents that will demonstrate that members of the general public in Newfoundland and Labrador are regularly looking to have access to Cabinet documents.

Mr. Chairman, the other thing I want to say to lay clarity to this is to talk about the nature of Cabinet documents. I defined a Cabinet document as a Cabinet paper with supporting and attached documentation that is considered and ‘minuted'. When we are talking about Cabinet documents, we are not talking about simple day-to-day operations of government, simple day-to-day things that happen in departments. We are talking about pretty significant decisions that Cabinets of all political stripes make with the government of the day.

In today's terms, we are talking about things like decisions on Muskrat Falls, we are talking about decisions on projects like Vale Inco, we are talking about policy decisions on health care services in the Province, and we are talking about policy decisions around court cases, as members would know, that we have gone through in the last number of years. These are very significant, very intense, and very private decisions, Mr. Chair.

The information being contemplated by Cabinet is not only for the protection of Cabinet. When they talk about privacy, it is not only to keep the information private to Cabinet. It is for the protection of the information for the good of the Province as a whole, Mr. Chairman.

I think it is very important that we lay a balanced view out here. When we are in this Legislature speaking, it is important that people understand what we are talking about so we have some balance. I am not criticizing members opposite. They are doing what they need to do. I thought I would take a few moments to provide a different perspective.

I am going to conclude, Mr. Chairman, but I would offer a comment to the Leader of the Opposition. While I know the intent of the amendment, I suspect, upon reflection, there might be cause to reword a section here for your consideration.

In (4.1), the second last paragraph, as I read it, it seems to be contradictory. "If, in the opinion of the Commissioner, the document is not a Cabinet record…" In my upbringing, in my work record, I would say okay, that is clause 1, which means we have deemed is not a Cabinet record. Then we go into part two which says, "…the Commissioner may certify the Cabinet record…"

Now, it seems to me to be contradictory. If you have determined that it is not a Cabinet record, then all of the subsequent statements after that should not reference a Cabinet record. It should reference the document that has been deemed not to be a Cabinet record.

I offer that commentary, Mr. Chairman, for consideration by the member who brought the amendment forward.

Thank you.

CHAIR: The hon. the Member for St. John's North.

MR. KIRBY: Thank you, Mr. Chair.

I thank the hon. Deputy Government House Leader for offering that clarification. I believe there is a typographical error here. It is obvious to me what the intent of the amendment is. There is a surplus one, that should not be there, but otherwise I think it is a good amendment. It speaks to the sort of thing that I and my colleague from St. John's Centre were speaking about a time back. The need to have somebody who is an independent and impartial arbiter involved in making determinations about the necessity of secrecy involved with documentation, records, and information that falls under the bailiwick of the Cabinet.

While I respect what the hon. minister has said about the nature and sensitivity of information that is being provided to Cabinet, we know, because we have been repeating it over and over for hours, that section 18, its intent is to protect Cabinet confidentiality. I think that if the Office of the Information and Privacy Commissioner is involved, then I do not think there is a lot to fear.

You have to just go back and review the outcomes for the Office of the Information and Privacy Commissioner. It is a statutory office of the House, as we now. It is a public body to whom access to information requests can be made.

The Information and Privacy Commissioner is prohibited from releasing any access to information records connected with an investigatory function of that office. Any record or any information provided to the Information and Privacy Commissioner by a public body, or by Cabinet, or by a government agency, either in the informal resolution stage or in a more formal resolution stage in the event that there is a conflict of questions about the nature of sensitivity, whether privacy is necessary, that information is privileged. It is not subject to disclosure through an access request.

There is really no harm in having the commissioner involved in the process. Because, in fact, there is no way that it can be requested through the Access to Information and Protection of Privacy Act as it stands, or as other amendments propose, that this information could get out if it indeed requires the level of secrecy. I am sure there are quite legitimate reasons for that.

To go back to if a question does arise as to whether a Cabinet record is indeed an official record, we have seen cases in the past, and not necessarily with respect to Cabinet, but there have been cases where information is not sensitive or private, or in need of a shield from public distribution or sharing with private individuals. We have seen cases in the past where information is not necessarily private. I think in the most egregious cases we have seen, information that is already public is shielded from public view for whatever reason. We have talked about some of that with respect to the full issue of solicitor-client privilege, which obviously does not apply here but is certainly of some relevance I think.

The commissioner is enabled to intervene, is provided with an opportunity to have a role here. The commissioner can review this and certify the record themselves, and have a look at it to see if there is a legitimate reason for this information. Again, it is a process of negotiation that takes place. There is an informal stage that takes place when there is a dispute, and there very well could be, and then there is also a formal process that takes place.

In a lot of cases, as far as I know, with the Office of the Information and Privacy Commissioner, a lot of these questions are often dealt with quite amicably. A mutually, agreeable resolution is achieved. Individuals or agencies, or individuals and agencies, or what have you, are able to come to a conclusion without having to resort to the courts.

I really like the way this amendment is drafted because the courts are a last resort here. (4.2) says, "A certification by the Commissioner may be appealed to the Trial Division and the applicant shall be represented by the Commissioner."

It provides for a last resort. It is not the first thing that folks have to resort to, going to the Trial Division. Then the applicant has an opportunity to be represented through the Office of the Commissioner, which I think will enable individuals to access representation that in many events they may not be able to afford. Of course, that is not necessarily the case when it comes to the media or the Official Opposition.

I am interested to hear the Deputy Government House Leader say that in a lot of cases these requests for information do not involve anyone, other than political parties and the media. I think when it comes to the press, they really do provide – there is a journalistic service provided that I believe is essential, the nature of the free press and its ability to intervene. We have seen it the world over throughout civilized history, if you want to call it that. The press does play a major and significant role in public life and in holding us all accountable. It is essential that the media have an opportunity to assess these documents, but I digress somewhat.

The key here is that an impartial third party, such as the Information and Privacy Commissioner, will have an opportunity to investigate question of certification and validate any certification. I think that is good for all parties involved, that there will not be any questions around the validity of certification decisions made in relation to Cabinet documents.

This provides some assistance to Cabinet, to Executive Council in some ways, because it really enables that validation process to take place. Then there are no questions about secrecy and the reduction of access, blocking the release of Cabinet papers, information, or records or what have you, suppressing disclosure, preventing the free, open and access to information that we really want to have from a government that is truly open and interested in accountability and transparency.

I think these provisions are very well done and I compliment the author of this. The typographical error is only a minor problem and it certainly can be resolved without issue.

Thank you, Mr. Chair.

CHAIR: The Leader of the Official Opposition.

MR. BALL: Mr. Chair, I would like to ask for leave of the House to make an insertion of two words into the amendment. It is on the advice of the Member for Grand Bank. The amendment is a little – it needs a couple of words that would probably better explain the amendment.

What we would be suggesting doing is in (4.1): If, in the opinion of the Commissioner, the document is not "an official" Cabinet record – we insert those two words. Take out the letter "a" and that would clarify the amendment.

Thank you, Mr. Chair.

CHAIR: Does the Leader of the Official Opposition have leave to insert that? The amendment will now read in section (4.1): If, in the opinion of the Commissioner, the document is not "an official" Cabinet record, the Commissioner may certify the Cabinet record as a discontinued Cabinet record, a supporting Cabinet record or not a Cabinet record.

The hon. the Deputy House Leader.

MR. KING: Thank you, Mr. Chairman.

I just want to take a few moments, again, to speak to this particular amendment.

I want to, first of all, make a couple of comments. In no way, shape or form did I suggest in my previous comments that the media does not and will not play a significant role as part of sharing information around public policy in the Province. I want people to be clear about that.

My commentary around those seeking access to Cabinet documents was to offer a view, my view, about where this sits in the grand scheme of things in the public. In other words, who are we talking about when we are talking about those looking for access to Cabinet documents?

My commentary, to paraphrase, was that it would be predominately members of the media, politicians and political staffers, and that I felt, and I still feel, the general public would be more interested in other aspects of information in government, not Cabinet documents. I just want to be very clear. I did not suggest that or intend for that to be perceived that way.

The other thing, Mr. Chairman, it is important, I think from my perspective, to be clear here. Government in no way, in this document, is talking about suppressing information. We can debate the issues here and we can offer philosophical differences of opinion, but it is very much not the intention of this government, as it has been characterised by at least one member in the House a few moments ago, to say that we are suppressing information and we are looking at blocking information and keeping things from the public. This whole debate, as much as we are at odds in some respects about how we feel about it, is all about making information accessible to the public in the Province, Mr. Chairman, and at the same time providing for the right mix to protect information.

As I said on a number of occasions here, the Cabinet of the Government of Newfoundland and Labrador, whether it is the Cabinet as we know it today or whether it is a Cabinet of a different day, a different government and a different political strip, and I suspect outside this Legislature, if any member were to talk to previous Cabinet ministers, they will share some of the views that I will share with you. The information Cabinet deals with, when we talk about protecting that information, it is not about keeping information away from people. It is about making decisions about how you treat information and what is in the best interest of the Province.

Mr. Chairman, as I said a few moments ago, we are dealing with very significant files and very sensitive issues that will touch not only broad public policy in the Province, but in some cases, as members will recall, touch very, very specific individuals through court decisions and other kinds of things. Those kinds of pieces of information, Mr. Chairman, have to be and ought to be, and must be protected. Protected does not mean simply not making it available to the public, Mr. Chairman. The individuals and the corporations, and the businesses who deal with governments and who are part of those deliberations, also are owed the duty to protect them from disclosure of personal, private, and confidential information.

I want to offer that commentary again to make sure we are getting a balanced view when we are talking about the Access to Information and Protection of Privacy Act. It is very important for people to understand what this is all about, Mr. Chairman. It is a very significant issue and a very serious issue. It is important that we continue to hear balanced views as we go through this clause by clause throughout the next period of time in debate.

Thank you.

CHAIR: The hon. the Member for St. Barbe.

MR. BENNETT: Mr. Chair, I welcome and support this amendment. This amendment goes a long way to making the proposed overall amendment more user-friendly and certainly a better piece of legislation for the people of the Province.

One noteworthy issue is that in looking at the amendment of this particular section, this is not a simple amendment. The whole section is deleted and replaced by what I would call an omnibus type of amendment. Three short paragraphs are taken out and a whole bunch of paragraphs are inserted. The intention of this amendment is to bring back the commissioner and put the commissioner in the appropriate role to assist in providing Access to Information and Protection of Privacy for people of the Province.

Mr. Chair, we hear commentary from time to time and certainly in debate over who actually uses the act. One might think from some of the submissions of government members that it is simply political parties and members of the media who use it, but in the 2010-2011 report of the commissioner, if you look at page 17 of the 175 requests for review and complaints dealt with in 2010-2011, 158 or 90 per cent were initiated by individuals. Only seven or 4 per cent were initiated by the media, and only four or 2 per cent were initiated by political parties. The overwhelming majority of individuals who use the Office of the Commissioner to access information are individual members of the Province.

This amendment which says, "Clause 6 of the Bill is amended by deleting the proposed subsection 18(4) and substituting the following:

"(4) Where a question arises as to whether a Cabinet record is an official Cabinet record…" – I must admit, we are getting an education on what is a Cabinet record and what is an official Cabinet record and a discontinued Cabinet record and so on – "…the certificate of the Clerk of Executive Council or his or her delegate stating that the record is an official Cabinet record is conclusive of the question only after a review of the record by the Commissioner who shall confirm the certification as the official Cabinet record."

Mr. Chair, what this does is, instead of having the Clerk be the one who makes the determination, it is actually the commissioner who makes the determination. Given the role of the commissioner, the experience of the commissioner and the interest of the commissioner in furthering the access to information and protection of privacy of individuals and groups in this Province, it only seems appropriate that the commissioner should be the one who makes that determination.

It goes on to say: If, in the opinion of the Commissioner, the document is not "an official" Cabinet record –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. BENNETT: Thank you, Mr. Chair.

It feels like we have new energy here in the last hour. I noticed the same thing around midnight. It seems to come in surges, this new energy. Every six, seven, or eight hours we get new energy all over again in the House.

CHAIR: Order, please!

I would ask the member to speak to the bill.

MR. BENNETT: Thank you, Mr. Chair.

If, in his opinion, the document is not an official document, the commissioner may certify the Cabinet record as a discontinued Cabinet record, a supporting Cabinet record or not a Cabinet record at all. Mr. Chair, this introduces the commissioner in the appropriate level of determination as to the type of document that is being reviewed under the legislation.

Mr. Chair, to go further, the third sub-clause is probably more important to individual applicants than either of the other two clauses. That is not just the appeal by the commissioner to the Trial Division of the Supreme Court, but the final phrase "…the applicant shall be represented by the Commissioner." As many of us know who work in the courts and who are familiar with the legal system, applications to court and appeals to court can be expensive procedures. The exposure to cost consequences, the cost of legal fees, and the energy it takes for an individual to mount a legal challenge can be quite daunting for a lot of people.

This part of the section not only gives the commissioner the right to appeal this matter to the Trial Division, it also mandates that the commissioner represent the applicant. Mr. Chair, I cannot think of a better way to have the individual's personal interests represented and protected at that level of the court than by having the commissioner with the resources of the commissioner's office to represent the individual at the Trial Division.

This clause creates a three-part definition for Cabinet records: official, discontinued, and supporting records. As proposed, but without the amendment, the official Cabinet records are determined to be official by the certification of the Clerk of the Executive Council with no appeal. With other types of records being appealed to the court, this would appear to create a double standard for what was to be determined to be Cabinet records versus non-Cabinet records, and Cabinet records in the heads of public bodies versus the Cabinet.

This amendment to the bill that is before the House requires the commissioner to review the certification, allows the commissioner to reclassify the document to another type of Cabinet document, or to reject the Cabinet classification completely. Then the decision of the commissioner can be appealed to the Trial Division and the applicant shall be represented by the commissioner.

Mr. Chair, this does not mean that only the commissioner may take the matter on appeal to the Trial Division. Clearly, the government or the body has the right to file a court application and seek a legal determination from the Trial Division. This creates and restores a measure of balance in who is applying for information and who has the power to obtain information. This is very important, because under the system as proposed almost anything can be hidden away, virtually permanently.

If the Clerk makes a certification – and a signature from the Clerk is enough for that to happen. That is not to say the Clerk would do anything improper but somebody might well insist that because the matter is to be signed off by the Clerk or former Clerk, not understand or know the background or be privy to it with governments changing. This simply makes the commissioner the person who reviews the matter.

This amendment puts into place a system for review by an independent set of eyes, and the best choice for that is the commissioner. This allows the commissioner to accept a certification, to change a certification, or to reject a certification. If either party disagrees, whether it be the government or the applicant, then both parties can be off to court in the Trial Division and have the matter resolved by a judge of the Trial Division.

Mr. Chair, thank you very much. I have no further comment at this moment.

CHAIR (Kent): The hon. the Member for St. John's Centre.

MS ROGERS: Oh, sorry. I am leaving.

CHAIR: The hon. the Member for Burgeo – La Poile.

MR. A. PARSONS: Sorry, I was confused there, Mr. Chair.

I am happy to stand here and speak to this amendment which was entered by the Leader of the Opposition. What we are trying to do here with this amendment that has been entered to clause 6, section 18(4) is we are questioning these official Cabinet records.

What we know is that there has been the entry of an abundance of information which is now going to be classified as Cabinet records. That is laid out in the beginning of section 18. It is laid out in (a), in all of the subsections there, all the different things that comprise a Cabinet record, whether it is a discussion paper or policy analysis, or an agenda or a minute. Then it talks about the three major types. There is the discontinued, there is the official, and then there is the supporting Cabinet document. I think those three are very important. We can distinguish very easily between the three and each carries with it its own weight, Mr. Chair.

I would suggest that a discontinued Cabinet record is probably one that lies on the lower scale of importance or relevance, or should have the lowest amount of protection in terms of access to information because it is something that was a Cabinet record which was originally formed or put forward to inform the Cabinet process but for whatever reasons, even if it was considered in a meeting of Cabinet, is no longer being considered. Therefore, once you get past a period of time – what I would say, Mr. Chair, we still have a twenty-year deadline on these documents, if I read subsection (8)(e) there. We do not need to put that amount of time on a discontinued Cabinet record or one that is not even being looked it.

It is one thing if it was put forward and informs Cabinet, but it is another case where they are put forward and they do not inform Cabinet. Cabinet for whatever reason – maybe it does not make it through the initial stages. We know how this is being set up, in that we are covering off not just the Executive Council or Cabinet ministers, we are also covering off the bureaucracy underneath, whether it be the Deputy Ministers or the Assistant Deputy Ministers, or right down into staff. They are all going to be covered under the Cabinet and Cabinet secrecy.

There is the supporting Cabinet document, Mr. Chair. This means a Cabinet record which is referred to, which informs the Cabinet process but is not an official Cabinet record. Again, it is another important ‘distinguishment' there. I guess you might have to be in Cabinet to understand the difference between some of these in theory, but I can just imagine that some are more important than others.

Finally, you have your official Cabinet records. I would presume that these are documents which are currently being used or reviewed or referred to by government, or are not long out of that process. They are still on the table, maybe not being acted upon, but certainly still within the realm of possibility.

What we are saying here, Mr. Chair, is that if you look at subsections (3) and (4), is that we have a commissioner who – when we talk about a document, whether it becomes official or not, we are allowing the Clerk of the Executive Council, basically, the Clerk of the Cabinet ministers, to sign off on these documents. Then boom, they are official, and once they are official they are exempt from the eyes of the Privacy Commissioner.

What we are suggesting here is that there might be some issue as to whether it should be official or not, and that is a fair ‘distinguishment' to put in there. A fair suggestion to make is that some of these should not be official Cabinet documents. What we are putting forward is certainly a very fair amendment. It is suggested if there is a question that arises – and before it said if a question arises then the Clerk's signature was conclusive, which is very open and shut. It does not lend itself to being as open and transparent as it really should be, or as open and accountable as it really should be.

All we are asking, Mr. Chair, is that if there is any issue, if there is a question that arises then the commissioner should be the independent officer who looks at it and it is up to that individual whether to confirm the certification or not confirm the certification. We are giving the commissioner some options here as to what they can or cannot do.

We are not saying they must make decision A or decision B. We are saying they can accept that it is the right thing; they cannot accept that it is an official Cabinet document, or they can change it around here. They can say, look, it is a Cabinet document but it falls under a different category than the one that was originally suggested. That, in my mind, should play itself into whether there is a protection that should be offered for a much longer period of time.

Another level of oversight in making the process more open and accountable is we are saying: Look, if you do not like the commissioner's decision, by all means take the commissioner's decision to court. I think that is only fair, given that a number of people in this Province are being told: Look, if you want information, by all means take yourself to court and go get the information. Certainly, the AG has been told this in the Province.

What I would suggest in this case, is if the government or if the Cabinet do not feel that the commissioner's decision was right or fair, then they should take it to court themselves. The good news here, and one of the things I like, is that the applicant in this case is going to be represented by the commissioner.

We have discussed on a number of occasions, Mr. Chair, that there is a big cost factor involved here, and allowing these applicants to be represented by the commissioner makes the process fairer, and that is what we want. We want to make sure we have a fair process and one that is not open to abuses or allowing the people with power to exploit the people without power.

When I say power, the fact is that government has more resources at its disposal in order to prosecute cases or causes that are important to them. Certainly, when it comes to the release or non-release of information, I would suggest, Mr. Chair, that they have the most resources. Giving an applicant the opportunity to be represented by an officer of the House of Assembly who will assume the load here, then that is just making life easier for everybody.

Again, without continuing on here, I have spoken to this amendment once or twice previously. What I am going to suggest is the amendment that has been proposed – and I believe with leave it was actually changed around. There was a slight modification to one of the parts here.

What I would suggest is that I think it is fair and I think it should be considered by government. It is only adding to the process. It is not saying I agree with section 18 as it stands. God knows, I have a number of issues with that, but by adding this in we are going to make section 18 a little easier to stomach, a little easier to swallow when we are forcing this legislation down the throats of the people of this Province.

Thank you, Mr. Chair.

CHAIR: The hon. the Member for St. John's East.

MR. MURPHY: Thank you, Mr. Chair, and I guess it is good morning.

Thank you again for this chance to speak to the changes to the Access to Information and Protection of Privacy Act., the Liberal amendment as presented.

"(4) Where a question arises as to whether a Cabinet record is an official Cabinet record, the certificate of the Clerk of Executive Council or his or her delegate stating that the record is an official Cabinet record is conclusive of the question only after a review of the record by the Commissioner who shall confirm the certification as an official Cabinet record."

CHAIR: Order, please!

I would remind the hon. member that at this stage of the debate it is probably unnecessary to reread the amendment. I would ask the hon. member to identify which new arguments he is introducing to the debate on the amendment at this time.

MR. MURPHY: Thank you, Mr. Chair.

This is my first opportunity to speak to this amendment. I wanted to dwell on section (4) of the amendment as presented and talking about the restoring of confidence here that this amendment would do. I think it is fairly important when you are talking about government coming out with a piece of legislation like this that we ensure that citizens' confidences will be remaining an integral part of this piece of legislation.

I think it is important to note as well, that whenever we are talking about the citizens of the Province we can also be talking about the fact that the electorate out there has to have the confidence of the government. Government should be looking at this amendment as a way of restoring confidence in this particular piece of legislation and restoring confidence, or at least giving the assurance from government that the citizens out there can have confidence that government is performing its role to the full.

A couple of concerns have been brought up in my short time here. I heard the hon. Deputy House Leader talk about the best interests of Newfoundlanders and Labradorians. He did touch on as regards to the various departments that may be affected; for example, health.

We have to make sure that the citizens of the Province have confidence in the system. It is a pretty important point that he brought up when he talked about the Department of Health and the protection of documents that are there, but at the same time this amendment is also making sure that confidence is there and it is going to have representation there.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. MURPHY: It is also giving confidence to the citizens out there, that there is going to be somebody there who is going to be representing their best interest. I think it is a very important point to make, ensuring and reinforcing the role of the commissioner, and that the commissioner will be representing their best interests if indeed it has to go to trial. They are going to have the restoration of confidence here in knowing that the commissioner is going to be performing his role to the best interest of the citizen who asked a question about the initial piece of information that they are looking for.

That is what I like about this amendment, is the restoration of confidence here in that first section, because –

CHAIR: Order, please!

In the last four minutes the hon. member has mentioned restoring confidence in the system six times in four minutes. I would ask the hon. member if he does not have anything new to add to the debate he can feel free to take his seat, otherwise I would ask him to make his point on the amendment.

MR. MURPHY: That is exactly my point, about the restoration of confidence, Mr. Chair.

CHAIR: That is the seventh time, I remind the hon. member. I would ask him to avoid being unnecessarily repetitive in this House.

MR. MURPHY: Mr. Chair, I really do not know what else to say then.

CHAIR: Well, then, you have the opportunity to take your seat if you wish.

MR. MURPHY: I will take my seat.

CHAIR: The hon. the Member for Torngat Mountains.

SOME HON. MEMBERS: Hear, hear!

MR. EDMUNDS: Thank you, Mr. Chair.

I will just make a few comments on the amendment proposed by the Leader of the Opposition, Mr. Chair. I have heard some responses from the minister opposite that this is to broaden the act to include materials and that the government is not suppressing or blocking. People have the right, Mr. Chair, to be protected. This act is obviously not in the best interests of the people. It is definitely in the best interests of the government.

The reason for bringing this amendment forward, Mr. Chair, is to hopefully alleviate some of the concerns that are out there. The whole purpose of this new amendment is with respect to the commissioner. I am glad the changes were put forward in section (4.1) which states, "…the document is not a Cabinet record…" rather, this document is not an official Cabinet record.

As my hon. colleague alluded to and the media alluded to earlier, Mr. Chair, there have been less than 200 requests, and to one particular department across, less than twenty. Most of these requests, Mr. Chair, come from individuals as opposed to organizations, groups, or even government. As these requests come through, there are conditions in the existing act that by bringing in this new legislation those avenues would close.

The whole purpose of the amendment put forward is to leave a catch there, Mr. Chair, to allow documents to be reviewed, not necessarily by an executive member of the staff as opposed to the Clerk, but it allows that extra option for review by the Privacy Commissioner. It is another avenue to determine whether or not information that has gone through the government process, through heads of public bodies, through representatives in this Legislature, to see if this information can be made available to the public to determine – and I have to say again, Mr. Chair, there is information that goes to the heads of public bodies or to ministers that should not be made available, and we completely understand that.

The whole purpose of putting this bill forward, Mr. Chair, is to have that information filtered so that if there is a chance for it to be available, then certainly it is made available.

CHAIR: Order, please!

I am struggling to understand how the hon. member is relating comments to the amendment in question. I think members of the House are well aware of the fact that this legislation is about making information available to the public. I think members of this House are also well aware of the number of Freedom of Information requests that various government entities have received. I think members are also well aware that this amendment specifically has to do with introducing and requiring a review of records by the commissioner.

I ask the hon. member to relate his comments to the amendment and be clear about what new arguments he is introducing at this time.

MR. EDMUNDS: Thank you, Mr. Chair.

I just have a few more comments on this amendment, Mr. Chair, and I am sure they will be relevant.

In subsection (4.2), there are times when the commissioner can be overruled and has been overruled and then we can see requests going to trial to be furthered on behalf of the people of the Province or on behalf of an organization or on behalf of an individual. Mr. Chair, subsection (4.2) allows that opportunity when a commissioner has been overruled.

Just one very quick comment before I conclude, Mr. Chair, is that it allows provision for the commissioner to be representative of that person. I think it is a good amendment and one that we support, and I urge the government opposite to support.

Thank you, Mr. Chair.

CHAIR: The hon. the Member for St. John's North.

MR. KIRBY: Thank you, Mr. Chair.

I am happy to rise again and say a few comments about the amendment, which I think is quite helpful in the sense that it does provide another avenue for applicants who are looking for information that is related to the operations of Cabinet, whatever records or information.

It is interesting, because while we have talked somewhat about who uses access to information requests when it comes to government agencies and when it comes to Executive Council and Cabinet, maybe it is a reality that members of the general public do not, with the same level of frequency, seek out information that is provided in documentation that has been under the purview of Cabinet. Maybe that is indeed the case, and I accept that.

This legislation, the Access to Information and Protection of Privacy Act is also about who ought to have access to information, who should be able to access information in the event that they have an interest in some aspect of Cabinet deliberations. There have been examples that have been given in the past where political parties have been seeking access, but I am sure there are instances where members of the public might want to access the information or where they ought to be able to get it, and they should not be denied if they are looking for it.

The Information and Privacy Commissioner provides the necessary intermediary. We do know that the Information and Privacy Commissioner, as it stands already, has fairly wide powers to carry out various functions under the Access to Information and Protection of Privacy Act, but there are also restrictions on those powers as well. Likewise, there certainly would be restrictions here. No one is advocating sort of a freewheeling approach to this, that there would be some rights of Executive Council trampled upon. No one is really suggesting that.

The responsibility of the Information and Privacy Commissioner is clear in this amendment and the responsibility is very specific. It is more or less validating, confirming the certification of documents as a Cabinet record.

MR. KING: A point of order, Mr. Chair.

CHAIR: Order, please!

The hon. the Deputy Government House Leader, rising on a point of order.

MR. KING: Thank you, Mr. Chair.

Just a reminder, there has been a condition or a ruling on repetition. For the benefit and a reminder of those who have been here for awhile, both the Member for St. John's North and myself on two separate occasions have had the discussion about the intent of this amendment to the point he is speaking to now. We have had the discussion about the access to information and the engagement of public bodies versus political bodies and staff. I believe we are into repetition again. The same points have been made on two separate occasions.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

The point raised by the hon. the Deputy Government House Leader is indeed well taken. Thus far in the close to five minutes the member has been on his feet, I fail to understand what new information he is introducing to this debate. I ask him to make his new points on this amendment and then take his seat.

MR. KIRBY: One new point I wanted to make is that maybe it is the case that the volume of requests for information from Cabinet, from Executive Council, maybe the number of requests are relatively low. Maybe it is not the same frequency we see with individuals who are seeking information from other public bodies or agencies like school districts, health boards, municipalities, or whatever the other 460 or so agencies that fall under that.

If there is a smaller volume of requests that are made, then you could make the argument that this is completely manageable. It may look like a lot of work or it may look like it is time consuming on the surface to have the Clerk of the Executive Council or his or her delegate doing their job and then the Commissioner providing some oversight as well of the work that is being done. Maybe that is not going to be a problem because maybe there are fewer requests for information.

In the end, another thing this will assist with is it may lead to fewer complaints about secrecy. That is one of the things we are hearing a lot about the legislation overall, that it is a reduction in access and provides for more –

MR. KING: A point of order, Mr. Chair.

CHAIR: Order, please!

The hon. the Deputy Government House Leader, rising on a point of order.

MR. KING: Again, Mr. Chair, I rise on a point of repetition. I reference my own notes from about 7:00 p.m. or 7:05 p.m. The member opposite talked about secrecy, suppression of information, the same comments that he is making right now on the numbers of requests for access to information. I think there has been a direction given to the House that you provide new information and not repetitive information in this debate.

CHAIR: Order, please!

It is clear to the Chair that the House by this point should be well aware that we are discussing the powers of the Information and Privacy Commissioner, the responsibilities of the commissioner, the volume of requests, the number of requests, the number of agencies impacted by the legislation, none of this is new information. I would ask the hon. member to make his points and introduce whatever new arguments he wishes to make, because I have not heard any yet.

The hon. the Member for St. John's North.

MR. KIRBY: Thank you, Mr. Chair.

Maybe I should rephrase what I was saying because the point I was trying to get at was that maybe there would be a different public perception of what is transpiring as individuals or other organizations seek access. Maybe there would be a different public perception. Maybe it would be more positive. Maybe people would feel that there is not – and I would say that there is not anyone trying to pull a fast one at all, but maybe the public would generally, seeing that the commissioner has a role, that the Information and Privacy Commissioner is able to intervene and be an arbiter in the decisions around Cabinet documents, maybe individuals who have a cause, or the media or what have you who have a cause to make such access to information requests, maybe they would feel that they are better served.

Overall, I think it would be a positive thing for government to be able to have this amendment adopted. It would be a better way of doing business and people would feel better served. There would be less suspicion. All around, people would feel that while sensitive information is being protected, their personal Cabinet information is being protected, anything that is potentially damaging or embarrassing for the government would be protected, yet people would have an opportunity for free and open and transparent access to information under a process that allows the commissioner to act and provides them with a high quality level of service.

That is really the major point I wanted to get at, Mr. Chair, and I hope I am not repeating myself too much. I know we have had quite a lengthy debate at this point. I am sure we will continue to have a lengthy debate as we continue to go through the debate on the Access to Information and Protection of Privacy Act, Mr. Chair.

Thank you for the time, and I really appreciate the opportunity to contribute to the debate.

CHAIR: Is the House ready for the question on the amendment?

All those in favour, ‘aye'.

SOME HON. MEMBERS: Aye.

CHAIR: All those against, ‘nay'.

SOME HON. MEMBERS: Nay.

CHAIR: The amendment is defeated.

On motion, amendment defeated.

CHAIR: We will now resume debate on clause 6.

The hon. the Member for Burgeo – La Poile.

MR. A. PARSONS: Thank you, Mr. Chair.

I am happy to continue speaking to the official secrets act that is being put out here for us to discuss.

Anyway, the reason, Mr. Chair, that we have had so many questions on this is that this particular section is especially onerous in terms of it is making it harder on the people to get that access to information – which is the name – making it harder on the people, on the public, to get access to the information. What I would say is that being the representatives of the people – we are all the representatives of the people – it is making it harder for us to represent those people and do our job and get that information.

So, that is why we have a significant concern with this. The fact that we are removing the Privacy Commissioner from this equation is not where this was intended to go in the first place. I mean, that was never the intent. I recall reading plenty of documentation from Administrations past saying well, my God, we have to give the Privacy Commissioner some teeth. There are people over on that side that ran on that promise.

AN HON. MEMBER: (Inaudible).

MR. A. PARSONS: Yes. Those people know who they are; they ran on that promise. By doing this, we are getting rid of it.

So, Mr. Chair, when you look at these sections here we are making it harder in so many different ways, but particularly I want to look at subsection (7). Subsection (7) says, "An applicant may appeal a decision of the head of a public body respecting a Cabinet record which is an official Cabinet record directly to the Trial Division."

Now, again, I recall plenty of promises made in the past about how, look, we have to avoid this and make it easier for people to access information and to avoid these court costs on people. That was the problem there, there was a promise made, and now we are changing that law to get away from that.

Certainly, I do not agree with that. That is why we have to ensure that people continue to have a right to access the information. We have to have that right to access the information. That information, especially when we talk about the access to information, it is ironic that is the name that is on this piece of legislation sometimes, especially as we debate some of the sections here, Mr. Chair.

CHAIR: Order, please!

I remind the hon. member that the section we are debating is clause 6. I ask the member to keep his comments relevant and to attempt to avoid being repetitive during this debate.

SOME HON. MEMBERS: Hear, hear!

MR. A. PARSONS: I am glad to hear that I am being kept in line by the Chair, and I will continue to be relevant.

What I am going to say then, I am going to discuss the amendment we want to make to section 7 here, Mr. Chair, because we certainly do not agree with this. We are going to move an amendment. It would be clause 6, and this is seconded by the Member for Bay of Islands.

Clause 6 of the bill is amended by deleting the proposed subsection 18.(7) and substituting the following: the commissioner, on behalf of the applicant, may appeal a decision of the head of a public body respecting a Cabinet record which is an official Cabinet record directly to the Trial Division.

CHAIR: Order, please!

The Chair will take a moment to review the proposed amendment and it will be circulated to all parties.

[The Chair takes a moment to review and circulate amendment]

CHAIR: Order, please!

I have reviewed the amendment that has been submitted, moved by the hon. the Member for Burgeo – La Poile, seconded by the Member for Bay of Islands.

It is proposed that clause 6 of the bill is amended by deleting the proposed subsection 18.(7) and substituting the following: the commissioner, on behalf of the applicant, may appeal a decision of the head of a public body respecting a Cabinet record which is an official record directly to the Trial Division.

Is it the pleasure of the Committee to adopt the amendment?

SOME HON. MEMBERS: Aye.

CHAIR: All those against, ‘nay'.

SOME HON. MEMBERS: Nay.

CHAIR: The amendment is defeated.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Sorry, there appears to be some confusion among members. I was calling the question; I did not realize the member wished to speak.

AN HON. MEMBER: (Inaudible).

CHAIR: I did rule it in order and then I asked the members of the Committee is it their pleasure to adopt the amendment. With leave of the House, I will allow the member to speak to the amendment.

The hon. the Member for Burgeo – La Poile.

MR. A. PARSONS: Thank you, Mr. Chair.

I am going to explain why we have entered this amendment to this particular section. The clause itself creates a three-part definition for Cabinet records. We talk about official, discontinued, and supporting.

Now, official Cabinet records are determined to be official by this certification of the Clerk of the Executive Council, which we have discussed quite a bit in the last number of hours. We have discussed the Clerk. In fact, we tried to enter an amendment to that, that was voted down as well, to make sure that there was some amount of oversight on that, but again we did not get anywhere with that. There is no appeal to the Clerk so other types of records can be appealed to the court.

Appeals to see discontinued records and supporting records must be done through the Trial Division by the applicant. By moving this amendment what we are saying is that we are allowing the commissioner to take this case to the Trial Division on behalf of the applicant; we are allowing the Privacy Commissioner to do the job that he was intended to do.

Mr. Chair, why would we move this amendment? Well, the goal of this legislation in the first place was to relieve applicants from the burden of having to take the government to court in order to win the access to information. That was supposed to have been avoided in the past. It was debated here about ten years ago by the now government, which was the Opposition at the time, debated it, and went up one side and down the other: We need people to have a commissioner here to take this to court.

In this case what we are saying is a person should have the right to ask the commissioner to take this to court on their behalf. We note that this is a necessary thing to have. I have discussed here over the last number of hours about why this right is so important. As the Minister of Fisheries knows, when I talked about the FOI requests and how we, as an Official Opposition, have been stifled by the departments strategically denying information in the past. You can imagine what is going to happen to the individual who is not going to get the right or is going to forced to go to court and try to fight the government to get the information they are entitled to. Certainly, right now as we speak, there are people out there right now who are being denied this information that is in the court process against the government to get information.

What we are suggesting is that we are putting the amendment out there to bring the act back to what it was intended to be. We want to make sure that the commissioner is going to take these appeals to the court on behalf of the people. The bill is changing the intent of what was supposed to have been put there in the first place and is completely against what was supposed to have been set out.

Obviously, we do not agree with this and we will not agree with it. This was debated back in the late 1990s and early 2000 and then, I believe, voted on in March 2002. The fact is that people have the right to the information. If this government wants to take that right away, by all means they cannot support this amendment. Again, I would say: Listen to your constituents here. I wonder what they are saying out there. I know I am getting e-mails from some of them, from the government –

AN HON. MEMBER: Table it.

MR. A. PARSONS: Actually, I can table them. I will make sure to do that.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. A. PARSONS: I will table the e-mails. That is not a problem.

What I would say is that we are trying to bring the legislation back to what it was intended to be. By doing this amendment, this is what we are trying to get and I am hoping that we are going to get some support to this.

CHAIR: The hon. the Member for Bay of Islands.

MR. JOYCE: Mr. Chair, I stand here this morning and I will just say good morning to everybody because I know it is a nice morning. Mr. Chair, democracy is at work. We are all here in the Legislature speaking about this, the access to information bill. I see we had long nights, Mr. Chair. We are here again going through another amendment.

Mr. Chair, as you can see here, we are still on clause 6 of the bill. Here we are with the amendment, and I will read the amendment. The bill is amended by deleting the proposed subsection 18.(7) and substituting the following: the commissioner, on behalf of the applicant, may appeal a decision of the head of the public body respecting a Cabinet record which is an official Cabinet record directly to the Trial Division.

Now, Mr. Chair, we know on many occasions how this came about. What happens now is when you are at Cabinet, you have information coming to your Cabinet, then all of a sudden the umbrella is so big, Mr. Chair, what happens now is everything is included in the document for Cabinet – everything.

We have a lot of individuals and we are going to have a lot of groups who are going to be looking for information, Mr. Chair. What is going to happen is that we are not going to be able to go and just make a request, Mr. Chair. What we are going to do is we are trying to make it easier for the individuals. This is all about the people of Newfoundland and Labrador, Mr. Chair – this is all about the people of Newfoundland and Labrador. This is all about keeping people's rights here in Newfoundland and Labrador. This is a time, I know, when we are all concerned. I just find it a bit strange, Mr. Chair.

It is time for the members of the government to stand up and defend all of this. I do not know if we have heard anybody yet standing up there and defending this. This is what we are talking about. We need to be able to defend this, Mr. Chair. This section here is talking about we are going to ask the commissioner to go to court on behalf of the people of Newfoundland and Labrador. I am willing to bet, Mr. Chair, when the commissioner goes to court they are going to be representing some of the members opposite. They are. They are going to be representing some members opposite.

It is going to nice to see some members opposite stand up here and support this amendment, Mr. Chair. I hope they are going to stand up and support this amendment, Mr. Chair. What we are doing here is carrying the load here for the members opposite. I guarantee you there is going to be situations, Mr. Chair.

I will just give you a good example, Mr. Chair, of the commissioner on behalf of the applicant. There is a petition going around Corner Brook about the hospital in Corner Brook. If they cannot get any information, the individuals, the group who has the petition going, they are looking to find out about the sub-tender or the sub-design of the pre-design of building the hospital, Mr. Chair. When did they start the design work? Who is the consultant? When was the consultant hired? All of that information, Mr. Chair, we are going to need the commissioner. That is what we are going to need. We are going to need the commissioner to go and find the information because when you apply for it – Mr. Chair, here is a prime example, the hospital in Corner Brook –

CHAIR: Order, please!

I remind the hon. member that we are debating an amendment to clause 6 that relates to giving the commissioner the ability, on behalf of an applicant, to appeal a decision respecting a Cabinet record. I ask the member to keep his comments relevant to that particular amendment.

MR. JOYCE: I am giving an example, Mr. Chair. I am giving a great example.

CHAIR: I would ask the member to relate his example to that particular amendment.

MR. JOYCE: I am. Before you were speaking to the speaker, I was.

What I was saying – and I know you were a bit busy – is that there is a group that were there that is going to be applying, and because it was a Cabinet document, because it was a Cabinet decision for this hospital in Corner Brook, in order for them to get the information of who is the consultant, when did the pre-design work start and how much did it cost, what is going to happen, Mr. Chair, they are going to have to appeal the decision because they are not going to get it from government. They are not going to get that from government. If they go ahead and do it, they are not going to get it from government, Mr. Chair. They are not going to get it.

Mr. Chair, what I am saying is people who are looking for this information now, if we approve this amendment, we are going to ask the commissioner to go to court on their behalf. If not, what we are going to have is a group of concerned individuals out in Corner Brook who are going to be having to make an appeal, having to go to court, Mr. Chair, all because they are trying to better their community.

MS SULLIVAN: A point of order, Mr. Chair.

CHAIR: Order, please!

The hon. the Minister of Health and Community Services, rising on a point of order.

MS SULLIVAN: Yes, Mr. Chair, I fail to see relevance on this. He is talking about Corner Brook hospital once again when we should be debating clause 6 of this particular act. I really do not see the relevance of this. If he needs to talk about Corner Brook hospital, Mr. Chair, there is another time we can do that.

MR. JOYCE: To the point of order.

CHAIR: The hon. the Member for Bay of Islands, to the point of order.

MR. JOYCE: I say to the minister, with all due respect, if you were in on the whole conversation we are talking about we cannot get the decision on who got the design work, when the design work started, who is the consultant, and I was giving an example, Mr. Chair, if those people –

CHAIR: Order, please!

I am aware of the example that the member has stated twice. I understand that he was using the example to illustrate his point related to this amendment. I would ask him not to continuously restate that example, but I encourage him to continue his comments on the amendment.

MR. JOYCE: Mr. Chair, I cannot help it on the point of order because I am allowed to explain to the point of order, as you know.

CHAIR: I gave you the opportunity to do so, I say to the hon. member.

MR. JOYCE: Thank you, Mr. Chair.

That is why we need this amendment in here. A prime example of the Minister of Health just saying what does that have to do with the hospital, Mr. Chair – because we have to protect the rights of the people. It is a prime example, Mr. Chair – and I agree with your decision 100 per cent – the people in Corner Brook, if they want an opportunity to get the information from Cabinet which they cannot get now, if we put this clause in there, the commissioner can take the burden, he can take this here to court, he can go on to the court instead of some group in Corner Brook, volunteer group in Corner Brook, Mr. Chair.

I know everybody is tired, Mr. Chair, but this here is a very important amendment. It is a very important amendment, Mr. Chair. When we have individuals – individuals – trying to take on government in court, right away have to go in and take on government in court. We have to go back, where all this started.

With this amendment, the commissioner, who was barred from a lot of this information, now all of a sudden we are all trying to say and what I am trying to say on behalf of this amendment is that this commissioner, on behalf of the applicant – and remember the word applicant – the applicant is the individuals of Newfoundland and Labrador, Mr. Chair. That is who the applicants are.

SOME HON. MEMBERS: Oh, oh!

MR. JOYCE: Here we go, Mr. Chair. We have members opposite again – I ask for a bit of protection, because I know when you bring up the word applicant it means the people of Newfoundland and Labrador.

Mr. Chair, what is happening here, once again we have people on this side standing up for the rights of Newfoundlanders and Labradorians, because if we do not the commissioner himself, when he was trying to get the information, they are going to try to get information for Cabinet, now he is even being denied. Now, Mr. Chair, if the commissioner is being denied himself, what are we going to do when you have ordinary citizens of Newfoundland and Labrador.

I see my time is getting short, Mr. Chair, and I think we have a few other members who are going to stand up to this here. I am sure I will be back and have the opportunity to be back again.

Thank you, Mr. Chair.

CHAIR: The hon. the Deputy Government House Leader.

MR. KING: Thank you, Mr. Chair.

I do not want to rain on anyone's parade here, but we are debating a moot point. It already exists in the act. Section 6, "The commissioner may, with the consent of the applicant or third party involved, appeal a decision of the head of a public body…." It currently exists in the act today, Mr. Chair.

CHAIR: The hon. the Member for Signal Hill – Quidi Vidi.

MS MICHAEL: Thank you very much, Mr. Chair.

I am happy to speak to this new amendment –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: – an amendment to subsection 18.(7) of clause 6 of Bill 29, which we are debating.

MR. KING: A point of order, Mr. Chair.

CHAIR: Order, please!

The hon. the Deputy Government House Leader, rising on a point of order.

MR. KING: Mr. Chair, I would like a ruling.

We are debating an amendment to an act when it is not an amendment. It already exists in the act. I am not sure what the purpose is of continuing to debate something that already exists.

CHAIR: Order, please!

I will allow the member to respond to the point of order and then I will make my ruling.

MS MICHAEL: Thank you, Mr. Chair.

My understanding as a member of the House and a person who has been a part of this process to date is what we have before us is a bill, Bill 29, which contains amendments to the act. The amendment that we have now in front of us is an amendment to the bill that is before us, so we are not speaking to the act as it exists. We are speaking to the bill that is before us.

I humbly say to the Chair it seems to me that when we were allowed to bring this bill to the floor this was understood by the Table Officers who approved it as an amendment.

CHAIR: Order, please!

There is no point of order.

I previously ruled that the proposed amendment to the bill, Bill 29, specifically clause 6, is indeed in order and as the Member for Signal Hill – Quidi Vidi points out we are not debating what is already in the act, we are debating Bill 29, and in this case an amendment to clause 6 of that bill.

I ask the hon. member to continue her remarks.

MS MICHAEL: Thank you very much, Mr. Chair.

I am happy to speak to this because I think it is a very important distinction that is being made in the amendment. When we look at the subsection in the bill it says, "An applicant may appeal a decision of the head of a public body respecting a Cabinet record which is an official Cabinet record directly to the Trial Division."

What the amendment says, Mr. Chair, is that the commissioner, on behalf of the applicant, may appeal a decision to the head of a public body, et cetera. The important distinction here, Mr. Chair, is that individual applicants in particular have real difficulty dealing with the court system, with Trial Division as it is called in the bill, both from the perspective of not knowing the system and from the perspective of not having the resources to deal with the system and requiring help.

When we look at the information from the OIPC, the Office of the Information and Privacy Commissioner, we see that one of the roles of the commissioner is to resolve complaints about access to information and protection of privacy involving public bodies. One of the roles of the commissioner is, when there are applicants who cannot, or feel they have not been treated correctly by public bodies, the commissioner does enter in, work with the applicant, and help them.

The commissioner's office is an external body and it is an independent body. It is set up to make sure the balance of the right to information and the privacy of public offices are maintained. It is the commissioner who has the responsibility to do that, Mr. Chair. This is an extremely important point we have to continue making because it is at the heart of what our act is all about and what this bill is trying to change.

I would like to point out – and I know this statistic has been used before, but in the context of this clause I think it does need to be made – last year in this Province there were 581 applicants with regard to freedom of information. Ninety per cent of the applicants were individuals and only 2 per cent were political bodies. The 90 per cent of individuals, many of those will need help –

SOME HON. MEMBERS: Oh, oh!

MS MICHAEL: Mr. Chair, I would like to point out, because I am hearing comments from across the floor, the information we have comes from the Annual Report of the Information and Privacy Commissioner. Obviously the names of people would not be available to me and should not be. The numbers are and they are public numbers.

This speaks directly to the amendment that is here. The purpose of this amendment, as I understand it –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: – is that the commissioner's role is to represent citizens. Citizens, on their own, would find it difficult dealing with the Trial Division. Consequently, Mr. Chair, this amendment is saying: Put the responsibility in the hands of the commissioner for applicants who need it to be able to deal with Trial Division.

I am concerned about the fact that there are so many aspects now in the amendments coming forward which are demanding things go into Trial Division rather than to the Office of the Information and Privacy Commissioner. This point now, Mr. Chair, is extremely important –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: – that we listen to the arguments being made and the government listen to the points being made. There are points being made not just by us here in this House but by very significant bodies everywhere in the country right now who are watching what we are doing, who are seeing the backward steps we are taking, and who are concerned about what is going on in this country and here in this Province.

Thank you, Mr. Chair.

CHAIR: The hon. the Member for St. Barbe.

MR. BENNETT: Mr. Chair, any individuals who faceoff against the government in court would well welcome this amendment. This amendment permits the commissioner, on behalf of the applicant, to appeal the decision of the head of a public body respecting a Cabinet record which is an official Cabinet record directly to the Trial Division.

Mr. Chair, there are a number of considerations the individual must face when they undertake a court challenge. One is that many people are not at all comfortable putting on court challenges, retaining legal counsel, coming up with the cost to fund a legal battle, and not having the experience or expertise. This particular amendment is permissive on the commissioner. It does not require the commissioner to appeal, but it makes permissible for the commissioner to take that person's case for them and take it to the Trial Division.

What that would do, I would suspect, Mr. Chair, is it would be beneficial from the point of view of the courts. Sometimes we have unrepresented litigants at court, and unrepresented litigants are as entitled to their day in court as are any other litigants; however, unrepresented litigants tend to require far more assistance from the court. Not legal assistance because the court does not profess to offer legal advice to the unrepresented, however procedural and technical advice and assistance that unrepresented litigants would require.

From that perspective, Mr. Chair, the courts, I am certain, would welcome having someone who is more experienced with the court retaining counsel and representing that person in court.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. BENNETT: Mr. Chair, when an individual is litigating against – in this case we say a public body, but generally it is some branch of government, it is some public entity. Litigation that involves respondents, or even applicants that are government entities, tend to be very difficult litigation because these entities tend to have very deep pockets. They can fund litigation for a long period of time. They have the public purse available to them to retain counsel, some of them have their own in-house counsel, and it is a huge imbalance if the individual has to launch the challenge in court on a matter like this.

When it is a public entity that is being represented in court, quite often the person who is behind that public entity likely has made some sort of decision or decisions; it may have been policy, it may have been an individual decision. Then that person may want to take comfort behind the public entity and have the litigation funded through the courts at the public expense. Having that type of an imbalance with an individual versus the whole system tends to result in litigation.

We see sometimes individuals who have been dismissed from positions and feel they have been discriminated against. We have heard questions in the last few days, even in this House, involving individuals. What was the cost to litigate for such-and-such a person? How much has the government spent to date?

If both parties are well represented – and I do not mean, by that, necessarily the competence of their counsel, though competence is presumed if somebody is practicing before the court. If the parties are relatively more evenly matched by having lawyers on both sides, believe it or not, Mr. Chair, it does tend to result in matters progressing more quickly and overall at less cost to the individuals.

Also, the individual may well be wrong. The individual may feel aggrieved and feel they have a case they want to take to court, and by having the commissioner, the commissioner's counsel might sit down with the individual and explain – instead of in an adversarial setting, the commissioner's counsel could sit down with the individual, as any private-practising lawyer would sit down with somebody and explain to that person: Even though you feel you have been done wrong, and maybe you have, your prospects of success are very low, maybe even nil. Whereas, the unrepresented litigant might feel that the court is a place where they are going to be able to air their grievance and maybe two, three, four, or five years later they have not had their day in court.

This amendment, Mr. Chair, means that if the commissioner has to take on a case on somebody's behalf, advance that case and then provide the applicant with the services of the Commissioner's Office and the service of the commissioner's counsel, then the individual who has been unable to access information and may be well-meaning but misguided, certainly has the benefit of the Commissioner's Office.

This amendment, Mr. Chair, can only improve the functioning of the Commissioner's Office, improve the functioning of the courts and provide better resolutions. Not necessarily that the applicants would win more frequently, they may not win at all, but if justice is seen to be done the person tends to have a much better feeling. That at least they had their day in court, properly represented through the Commissioner's Office and then the matter progresses further, or maybe no further.

Mr. Chair, I have no further comments on that point.

Thank you.

CHAIR: The hon. the Member for Signal Hill – Quidi Vidi.

MS MICHAEL: Thank you very much, Mr. Chair.

There are a few more points that I would like to make with regard to the amendment, focusing on the commissioner, because that is the important piece about this amendment. Bringing the commissioner in as the person who may appeal a decision does not mean that the commissioner would always appeal on behalf of an applicant. Obviously, it will be up to an applicant to say to the commissioner: I have to appeal; I believe I need to appeal a judgment of a public body with regard to a Freedom of Information request that I have made.

The commissioner then may appeal the decision on behalf of the applicant. I think that is really important. It is not saying the commissioner will always do it. He may appeal, she may appeal. Right now it is a male, so I will use ‘he'. The commissioner may appeal. The importance of that is it also gives the commissioner the right and the obligation to look at the appeal.

I am sure just as the commissioner would have to look at an appeal on behalf of the office itself, it has to look at what are the chances of this appeal working. They have to look at the balance of the pros and the cons. They have to make a decision about whether or not an appeal should be made. It would also be the role of the commissioner to advise an individual applicant about their chances of appeal. It would be advice also that would be going on between the commissioner and the applicants.

I think that is what is extremely important, is to understand that the commissioner is there to help. The commissioner is there, first of all, to have oversight over the acts but the commissioner is also there to conduct reviews into decisions. That is the role of the commissioner, to conduct reviews into decisions that are made and to investigate and attempt to resolve complaints about access to information.

If the commissioner has a responsibility to investigate and attempt to resolve complaints about access to information when an applicant says I believe I have been wronged in the response –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: Thank you very much, Mr. Chair.

It is very difficult to hear oneself with that noise. It is hard to keep ones focus, Mr. Chair. I think I was talking about the role of the commissioner investigating and attempting to resolve complaints.

Part of resolving complaints, Mr. Chair, is listening to applicants, and if part of the complaint is that the applicant wants to go to the Court of Appeal, that it is absolutely logical that the Court of Appeal –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: - then the commissioner can be involved with the applicant in doing that as well. It is a natural flow from what is the responsibility of the role of the Information and Privacy Commissioner.

The other thing, Mr. Chair, I would like to point out is the role of the Information and Privacy Commissioner; those two words, information and privacy, talks about access to information and then privacy, not just the privacy of the information that the public body has but also the privacy of the applicant. This is one side that the government side seems to be forgetting. They keep talking about the need to keep private the information that is within the public body, and there is that responsibility –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: - if a disclosure of the information would be harmful to the work of the public body, whatever that public body is, but it also is the responsibility of the commissioner to protect the privacy of applicants as well, because sometimes what applicants are making appeals about have to do with their own privacy. The commissioner has to be concerned about that as well.

In helping applicants make appeals, the commissioner is fulfilling responsibilities on all sides, both with regard to access to information as well as with regard to the privacy, not just of the public body but also of the individual. It seems to me that this amendment, Mr. Chair, falls totally –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: – within the definition of the commissioner and it makes absolute sense that the commissioner should have the ability to represent applicants in such cases.

Thank you very much.

CHAIR: Order, please!

The hon. the Minister of Finance and President of Treasury Board.

SOME HON. MEMBERS: Hear, hear!

MR. MARSHALL: Thank you, Mr. Chair.

Once again we are here debating amendment 124 to section 6 of the act. I do not know how many amendments have been brought forward – I am sure there is plenty – over and over, bringing in amendments to the same piece of legislation and wasting the time of the Legislature of the Province of Newfoundland and Labrador. This is a filibuster and the people of Newfoundland and Labrador are looking on television to see what is happening in this House, and looking at the waste of money and waste of resources on this.

We just spent probably half an hour debating something that does not need to be debated in the amendment. I have heard the members of the Opposition saying that section 6 does not give the applicant an appeal to the commissioner, that the applicant has to go to the Supreme Court, that an applicant who is seeking information, who wants Cabinet records, who wants records that were used by Cabinet in making a decision, if they are turned down, they do not have an appeal to the commissioner. Of course they do.

Mr. Chair, section 18.(6) says, "An applicant may a decision of the head of a public body respecting Cabinet records referred to in subsection (2)… to the commissioner or the Trial Division under section 43." There is an exception for what is called an official Cabinet record. They can go to the commissioner or they can go to the Trial Division. If they go to the commissioner, the commissioner has the chance to review the refusal. The commissioner has the chance to review it. If it is an official record, then of course it would go to the court.

Then the question is that the applicant does not have the resources to take it to the court. Therefore, the amendment that is being brought forward is an amendment to allow the commissioner to take the appeal on behalf of the applicant. Of course that already exists under the legislation. It exists in section 61.(1) which says: The commissioner, with the consent of the applicant, may appeal a decision of the head of a public body in accordance with section 60. Another section says: The commissioner may intervene as a party to an appeal.

Mr. Chair, there is an appeal. If someone applies to the head of a public body, which is usually the deputy minister of the department, if someone applies looking for that information and if the request is rejected there is an appeal, number one, to the commissioner, and there is appeal, number two, to the Trial Division if that is the way that the applicant wishes to go. The commissioner has the right, under section 61, with the consent of the applicant, to appeal that decision.

The commissioner – and I understand this happens all of the time, because the applicant does not have the ability, does not the means to take the matter to court, that the commissioner does, in fact, take the appeal for the applicant. My understanding is that has happened on a number of occasions.

Thank you, Mr. Chair.

CHAIR: The hon. the Member for Torngat Mountains.

MR. EDMUNDS: Thank you, Mr. Chair.

I will speak a few words to the new amendment proposed by my hon. colleague, Mr. Chair. I think the interjection of this amendment into subsection (7) of section 18 is a worthy amendment and certainly one that would allow a little bit of comfort to a proponent in the event that he or she is looking for information that, through section 18, would maybe not be readily available, Mr. Chair. It involves the Trial Division and certainly the issues and the expenses that come with it.

This is designed to allow assistance and fairness to the applicant when he does go to trial. Although the commissioner, Mr. Chair, would not be the proponent, it would certainly allow for their representation and certainly an alternate co-representative in Trial Division. In many cases, when individuals go to court for access to information, there is a level of intimidation and many involved in court procedures.

I submit, Mr. Chair, that if the information requested is that important that it would bring an individual to the point of Trial Division, then it is obviously very important. Otherwise, it would not be done. I could not come up with examples of why a person would be so inclined to go to court to access information, Mr. Chair. It could be job related or some other relevant dispute where vital information that could be available is not available and it certainly allows Trial Division as the other option.

The proposed amendment, Mr. Chair, although it does not make provisions for this, with the removal of substance of deliberations earlier in this same section, this avenue now is not an option. Having the commissioner take part in the court process would interject a level of comfort to the person or persons who is looking for this relevant information, as I said shortly ago, whatever the case may be. If it is important enough to drive a person to court to get access to information, certainly it must be viewed as being very important.

Having the commissioner there throughout the court process as an advocate for the proponent, I think, would be an asset to all involved. I think it would be a show of good faith from the heads of public bodies, as we have all made relevance to that, before Executive Council, Mr. Chair, they are first legislators and representatives of the people of this Province.

As I said earlier what this amendment does, it proposes an alternative to substance of deliberations, Mr. Chair. When you speak about substance of deliberations – and there was an amendment tabled earlier that was defeated in terms of the whole proposed amendment to Bill 29. What we have been trying to do on this side, Mr. Chair, continuously for the last forty hours is to create avenues in this bill that would allow for the protection of the people of this Province.

Once you go back to section 18 and the list of things where it does not apply, Trial Division certainly is the only option that is left. The proposal earlier last night was rejected in terms of giving the right to the commissioner to make rulings on information. I have always said and I will maintain that not all information should be or will be made available. There is certain information that will pass through members of government, and the Minister of Justice talked about yesterday how difficult it is and how hard to understand it is. We would agree with information being withheld for the very nature of the information, Mr. Chair.

I ask again just briefly in my closing remarks, Mr. Chair. What we propose here is an avenue, another route, for this government to loosen up the closet, the door that is being closed, and to come forward with support for this amendment.

Thank you, Mr. Chair.

CHAIR: The hon. the Member for St. Barbe.

MR. BENNETT: Mr. Chair, in speaking again to this amendment, my observations and my comments are directed to the comments from members of the governing party that the relief sought by this amendment already exists. On reviewing these sections, Mr. Chair, I am not satisfied that it does at all.

This particular amendment deals specifically with an appeal related to a Cabinet record, which is an official Cabinet record. I have now had an opportunity to review the existing act, the original act, and the bill we are debating. I see two clear differences between this amendment and anything that is available in the act.

First of all, the act in section 61, Appeals, and then you have a reference to section 60, which also references subsection 43.(3) and section 28 and section 50, none of those deal with any sort of an appeal by the head of a public body respecting a Cabinet record. That is one important consideration.

Mr. Chair, with no disrespect to the members of the legal profession of which I am honoured to be one, lawyers can split hairs. I think all of us would agree. If this matter came before a court on a judicial determination, I have no doubt there would be three or four different briefs, each one espousing a point of view. The amendment, as proposed, is not covered precisely by the current act or by the proposed amendments to the act.

Furthermore, another area where it is not covered is that the amendment, as proposed, does not require the consent of the applicant. Mr. Chair, the sections of the existing act require the consent of the applicant, and there is no reference to this requirement in the bill that we are debating. This is a different sort of relief and a different statute that is being proposed in this amendment.

Now, it might seem to be unusual that consent be required or not be required, but in the amendment, as proposed, there is no requirement for consent. If the commissioner felt that a matter was sufficiently important that he – in this case, he – needed to do an application to court, it would not be necessary to get the applicant's consent. The commissioner may want to file an application to court. There could well be deadlines involved. Maybe there is an applicant who is deceased and it may be difficult to get consent from the deceased's estate. Although there may have been an important point involved that the commissioner wants to clear up or the person may simply not wish to provide to consent, the commissioner, in advancing the public interest, clearly would be entitled under the amendment to proceed to the Trial Division, A, without the person's consent, and B, in a matter dealing with a Cabinet record which is an official Cabinet record.

Mr. Chair, in my view, that is not covered in the current legislation.

Thank you.

CHAIR: The hon. the Leader of the Third Party.

MS MICHAEL: Thank you very much, Mr. Chair.

I really do need to rise again because I want to make a response to what I heard the Minister of Finance say, about two speakers ago, in direct response to the amendment to subsection 18.(7) of clause 6. I heard it made by another member of government, some other speakers ago as well. It is the point that we do not need this amendment because of section 61 in the act, which says, "The commissioner may, with the consent of the applicant or third party involved, appeal a decision of the head of a public body in accordance with section 60."

That is fine. That is something that the commissioner may do in his or her role as commissioner. The commissioner may look at a case and say to an applicant: I think that this should go to Trial Division, that there should be an appeal. The appeal by the commissioner, of course, has to be an appeal in the Trial Division. So, the commissioner may make that determination. The twist here is that an applicant who feels that he or she has to go to Trial Division, that they have to appeal, is going to the commissioner and saying: I would like you to do this appeal for me.

I think it is important that in a subsection of an act, if this subsection is going to become part of the act, because this is the amendment that government is suggesting is going to become part of the act, then wording it the way that this amendment does is important because it reflects the role of the commissioner as it is stated in section 61 of the act. It reflects the fact that an applicant can say oh yes, the commissioner is able to go to Trial Division on an applicant's behalf or able to ask an applicant if he or she can go to Trial Division because of something the commissioner has observed.

What this is saying is because an applicant knows that, an applicant can go to the commissioner and ask the commissioner to appeal. So it is taking the onus to the applicant going to the commissioner, not the commissioner going to the applicant. I think that is extremely important. It is doing two things. It is bringing this subsection into line with a section that already exists in the act, but it also is making the ability to have this relationship happen a mutual ability, both on the side of the commissioner and on the side of the applicant. I think that makes really clear – if the government is serious and if it means that they think this right exists, then why not put it in here because it makes it extremely clear.

If you are doing an amendment to an act which Bill 29 is all about, if you are doing amendments to acts, then the amendments should be making things clearer. There should be a reason from the amendment. One of those reasons should be making the act clearer. I think the amendment to clause 6 that we are dealing with is making sure that we are making clearer that relationship between the commissioner and an applicant, and it is a mutual relationship. The amendment that we have in front of us recognizes that mutual relationship.

There is no questioning and there is no doubt, an applicant knows right from the beginning that the applicant can do this. When an applicant is being briefed by staff from the Information and Privacy Commissioner's office – because they can do that; they go to the office, they get help, they get advice, and they get information from the staff – this is a piece of the information that staff can give to the applicant. You have the right to ask the commissioner to go to the Trial Division for you.

Section 61 of the act does not put it that way, Mr. Chair. So, for that reason I think the amendment is very apt and the amendment is in line with the spirit of the act that exists. The amendment to the clause makes things much, much clearer than would exist with the way in which it is now worded in clause 6.

Thank you, Mr. Chair.

CHAIR: Is it the pleasure of the House to adopt the amendment?

All those in favour, ‘aye'.

SOME HON. MEMBERS: Aye.

CHAIR: All those against, ‘nay'.

SOME HON. MEMBERS: Nay.

CHAIR: I declare the amendment defeated.

On motion, amendment defeated.

CHAIR: We will now resume debate on clause 6.

I thank members for their co-operation during the debate on that particular amendment. I was paying, obviously, close attention to the comments. While there was some degree of repetition, for the most part members have abided by my previous ruling.

I now ask as we go into the debate on clause 6 once again, considering we have been debating that particular clause for several hours –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

I ask members to keep in mind my previous rulings on repetition, and keep that in mind as they make their comments on clause 6.

The hon. the Member for St. Barbe.

MR. BENNETT: Mr. Chair, we are now down as far as clause 8, which is the last clause in this section. Clause 8 says, "This section does not apply to (a) information in a record that has been in existence for 20 years or more; or (b) information in a record of a decision made by the Cabinet on an appeal under an Act."

Quite frankly, Mr. Chair, I do not fully understand what is being said there. I am uncertain if there is somebody from the – maybe the Government House Leader, being a lawyer, can clarify that.

If we are looking at, "This section does not apply to (a) information in a record that has been in existence for 20 years or more". Does that mean that such a record would be available or does it mean that because the section does not apply to it then if somebody is looking to obtain such a record they would have to look elsewhere? That question relates to (8)(a).

I will continue on with (8)(b), and it would be very useful to have this information before voting, "information in a record of a decision made by the Cabinet on an appeal under an Act." Again, I restate the question, Mr. Chair. Does that mean if the section does not apply to it that a person could look or would look elsewhere for information on such a record? Is such a record available, or does it mean that because this section does not apply to it that it is not available?

Those are my observations on that section. It is just not clear to me.

CHAIR: The hon. the Member for Bay of Islands.

MR. JOYCE: Thank you, Mr. Chair.

I hear the members opposite are also glad that I am up here again, Mr. Chair, standing up for democracy, standing up for the people in Newfoundland and Labrador. I am just glad of that.

MS SULLIVAN: (Inaudible).

MR. JOYCE: I hear the Minister of Health saying do not say anything about the hospital. Minister of Health, it is no reflection on you; there is no reflection on you whatsoever. There is absolutely no reflection, Mr. Chair.

We are going to go on to section 8, Mr. Chair. I will read the section, "This section does not apply to (a) information in a record that has been in existence for 20 years or more". What I am going to be talking about here is reducing it to fifteen, as per the commissioner's request.

What we find, Mr. Chair, is that once again, with fifteen years to release the Cabinet documents in Newfoundland and Labrador, and that was the request of the commissioner. Mr. Chair, the bigger issue with this, with the request of the commissioner, is that once again we see a lot of cherry picking here, because you can see here and we hear the government saying: Oh well, at times – or the commissioner requested that. Then, we go to –

SOME HON. MEMBERS: Oh, oh!

MR. JOYCE: Mr. Chair, I ask for a bit of protection, please.

CHAIR: Order, please!

MR. JOYCE: Thank you, Mr. Chair.

Mr. Chair, what happens is that now the document is for twenty years. The commissioner recommended fifteen. Mr. Chair, what we hear is government members opposite on a regular basis saying well, we listen to the commissioner.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. JOYCE: What we see is they cherry pick, Mr. Chair. When the commissioner makes a certain statement over here they say: Oh, yes, this is going to make this bill really, really tough. They will take that and put it in. The commissioner over here will make a recommendation, Mr. Chair, and what happens then? Oh, no, we do not need that now. We are not going to listen to the commissioner now. We do not want to listen to his recommendations even though they are a bit reasonable.

What happens if you take it from twenty to fifteen years, Mr. Chair? What happens if you make it fifteen? Mr. Chair, it gives people confidence. They will say twenty years is a long while, fifteen for the release of Cabinet documents. It definitely gives an opportunity and it gives some credence to it when you can say well, the commissioner made that recommendation.

Mr. Chair, if you take this a bit further – which I think is very relevant to this section. If you go around and go through the act, and every time you go through the act you can see: Oh, this is what Ontario does. When you go through the act, this is what Alberta does. Mr. Chair, this is exactly what is happening here with the commissioner, is that you turn around and you take one section and say: Here is what we want, put it down and put it in the legislation. Then you take the other section.

What is happening in this whole act is what most of us Newfoundlanders call cherry picking. You take the strongest piece of legislation from Alberta that is going to be some part of this bill, you take it, you put it down and you put it in there. You take another piece from Ontario, the strongest part, you take it and you lay it in there, Mr. Chair. You take the strongest part that you already have and you lay it in there. Then you come back to the commissioner's recommendations, like this fifteen years, and they ignore him. They actually ignore him. Do you know why, Mr Chair? Because if you take this and if you go along with what Mr. Cummings recommended, it does not match with all the other stringent, draconian measures that they have taken from all the other bills across Canada. It does not match it. That is what is happening, Mr. Chair. That is why they did not follow this recommendation here, Mr. Chair, because it does not match the draconian act that is being brought forward here. It just does not match.

What is happening, Mr. Chair, once again, and all the members opposite, they understand what is happening here. I have to give them credit, they understand. They understand that they have to put this act through. They understand that. I would even say some of them would not support a lot of this act, Mr. Chair.

When you get reasonable people like yourself, Mr. Chair – I have to say you are reasonable with a lot of the rulings here today, very reasonable. I am sure, Mr. Chair, if you have a commissioner out doing a report and you have a commissioner out making recommendations which are very reasonable, I am sure you are going to follow the reasonable recommendations of a commissioner; unless what you are trying to do, Mr. Chair, is trying to take this act and make it as draconian as possible. You go up to Ontario somewhere and pick the hardest one; you go to Saskatchewan somewhere and get the hardest one; go up to Alberta and get the hardest pieces of their legislation; go to New Brunswick and get the hardest piece of their legislation, and put it all together, Mr. Chair, and cherry pick the commissioners. Mr. Cummings' recommendation, they feel, okay, we can probably go in there and say there may be a bit of reason. We will take a few of his recommendations, too, Mr. Chair. We will just take them and pile it all together. When the minister stood up here and tries to defend this draconian bill, Mr. Chair, he said: Well, Ontario is doing, New Brunswick is doing, and Alberta is doing it. Mr. Chair, what we have to realize is there is a lot of information that could be released in fifteen years instead of twenty. Does that make a difference to the people in Newfoundland and Labrador? I am sure it does.

Mr. Chair, if you want to look back at some of the information that can be released, look at the major projects that are happening in Newfoundland and Labrador that are decisions made by Cabinet. Wouldn't the media love to be able to say if there was a good decision made by Cabinet with a major project, Mr. Chair? Wouldn't the media or the Opposition love to be able to say yes, okay, there are some good decisions here? How can we improve on that? As we know, Mr. Chair, in Newfoundland and Labrador fifteen years is not a long time. It would be great to be able to look out and see the pros and cons of a decision.

Mr. Chair, I just want to give you a good example of something that has been haunting Newfoundlanders and Labradorians that we can learn from: the Upper Churchill. A decision was made at Upper Churchill. If we are making decisions now that are still haunting us from way back – we have to wait until 2041 before we can rectify this decision, Mr. Chair – wouldn't it be nice if we could speed up a decision made by Cabinet?

Mr. Chair, at no time am I suggesting that decisions made by Cabinet are made in a way that they are trying to hide the decisions or hide the information. I am not trying to say that, Mr. Chair. What I am trying to say is that for our children and our grandchildren, Mr. Chair, if there is some way we can see how decisions made now can help us in fifteen years for decisions down the road. I look at oil, gas, and energy. I look at a lot of other ways, Mr. Chair, whereby if we had this information five years sooner, we could help out our children and our grandchildren to make decisions.

We hear here on a regular basis, and you hear it too, Mr. Chair – you have been here for a couple of days – that we are going to do things better, we are going to do things a different way, we are going to learn from the past –

MR. KING: A point of order.

CHAIR: Order, please!

The hon. the Deputy Government House Leader, on a point of order.

MR. KING: With the greatest of respect to the member opposite, Mr. Chair, I fail to see the connection between the political statements about government's agenda and timelines on bringing the issue to the table and the current debate we are having on the amendments before the House.

MR. JOYCE: To the point of order, Mr. Chair.

CHAIR: The hon. the Member for Bay of Islands, to the point of order.

MR. JOYCE: Mr. Chair, I am trying to explain that when you release documents five years earlier, there are five years earlier that people can look at the decisions and see how we can improve the decision for the future. So, it is very relevant, Mr. Chair.

Mr. Chair, just before we finish, how many times did we hear people and the members opposite say: Oh, if we only had the decision of the Upper Churchill quicker, we could have helped. It is very relevant, Mr. Chair. I am sure you are going to rule that way.

CHAIR: Order, please!

To the point of order, we are trying to continue to allow some latitude. The cherry-picking argument, which was the focus of the last ten minutes of the member's comments, is one that we have heard over and over and over again during this debate over the last couple of days in this House.

I would ask members to avoid repetition to whatever extent possible. I remind all members of the House that we are still debating clause 6; we have been for several hours. I ask members to introduce whatever new arguments they need to make and then we can move on.

The hon. the Member for Bay of Islands.

MR. JOYCE: Thank you, Mr. Chair.

I just want to say we are debating a bill here, open public, and every time I stand up and speak there are people trying to shut me down. I refuse to be shut down, Mr. Chair.

CHAIR: The hon. the Member for Signal Hill – Quidi Vidi.

MS MICHAEL: Thank you very much, Mr. Chair.

It is a new point with regard to clause 6. It is actually something I have only picked up on recently. It is a bit of technical question with regard to how the section is written and I am seriously pointing this out to the minister.

In looking at the bill, where the bill is amending a section in the act, obviously, we have to go to the act to see what is being amended. I would like to point out that in the act section 18 starts Part III of the act, which is called Exceptions to Access. So the access, Part III, Exceptions to Access, Cabinet confidences, and then you have subsection 18.(1). In the act, subsection 18.(1) begins with, "The head of a public body shall refuse to disclose to an applicant…" then goes on and spells out the ways in which that happens.

When you go on reading in the act, you go to subsection (19), it starts off, "The head of a local public body may refuse to disclose to an applicant…". When you go to subsection (20), "The head of a public body may refuse to disclose…". So, the whole section, under Part III, are exceptions to access with every single subsection beginning with the head of a public body may refuse to disclose information, et cetera, which makes sense because the whole part of the act is exceptions to access and it is named very clearly.

I do think that there is a weakness in the way the amendment to the act in the bill is written, because the amendment says section 18 of the act is repealed and the following substituted. Starting right off at the top of the section, Exceptions to Access, it says we are going to substitute what is there and here is what is going in: subsection 18.(1), in this section (a) Cabinet record means. All of subsection 18.(1), all of that part in subsection 18.(2), (3), (4), (5), and (6), right down, all of it talks about – section 1 starts off with the definition. It seems to me if it is going to be consistent with everything else in the act, the section 18.(1) needs to start off with a statement on the right of the public body to refuse to maintain the whole of the thing, and then go on with the definitions of the Cabinet document.

I think it is an important distinction, because each of the subsections of the parts under Cabinet confidences, that is what it is about, the refusal. It is not a parallel thing, and I think it makes it clear right upfront what everything under Part III is about, so I would like to point that out.

Having said that, that is a bit of a technical thing, it just makes sense to me that it happens that way. I would like to speak to a broader point which is under clause 6, which has to do with the Cabinet confidences, et cetera. I think it is an important distinction.

MR. KING: A point of order.

CHAIR: Order, please!

The Deputy Government House Leader, rising on a point of order.

MR. KING: Maybe clarification might be – well, I will say point of order.

I am unclear as to where the member is speaking to now. I understood we were under section 18.(7). I am looking for some direction from –

CHAIR: There is no point of order.

We are debating clause 6 and I believe the member is about to make a new point related to clause 6. I ask her to do so.

MS MICHAEL: Thank you, Mr. Chair.

That was my understanding, once we are now into the open discussion of clause 6 that everything then under clause 6 is being discussed. It is not the same as when there was an amendment to the clause. Thank you very much, Mr. Chair. That was my understanding.

I have made that sort of distinct point with regard to how the amended section, as it is written in clause 6, how it does not seem to follow the parallel structure of the act – and I am questioning that – but the bigger issue which comes under this whole area of Cabinet confidences is a point that I would like to make.

One of the points that the government has been making, in this hours of discussion that we have done, is the issue that we are not just talking about access to information, we are also talking about privacy, and that is correct. Mr. Chair, I would like to point out that the responsibility of the Information and Privacy Commissioner's office is not to protect the privacy of the government, it is protect the privacy of the citizen in relationship to accessing information from public bodies that pertain to the applicant's privacy.

Now, in that context, government does need to have protection, public bodies do need to have some protection, but it is not a matter of protecting the privacy of the public body or the privacy of government, it is a matter of making a ruling on how much can a public body or a government withhold in responding to the request to an individual about the protection of the individual's privacy. I think that is a really, really important distinction.

So, the Privacy Commissioner is not there to say to government: Oh, you may keep all this private; it is your privacy we are concerned about. The responsibility of the commissioner and the responsibility of the legislation are to say to public bodies and to Cabinet: We recognize that there are things that perhaps would harm your work if you had to disclose it. So, we are recognizing that there are certain things that need to be protected under disclosure, while we protect the right to privacy of the individual citizen. That is the meaning of privacy in the title, Access to Information and Protection of Privacy Act. That is the whole purpose.

That is why the Personal Health Information Act comes under the commissioner. It is the privacy issue of the individual that their information has to be held in private. The commissioner is there, the commissioner's office is there, to help the public access information about themselves, and about their own health information and other private information. We have legislation that says we recognize the need for disclosure, we have to keep a balance, we will put that in legislation, we will allow disclosure, but the issue is the privacy rights of the individual. This is something I do not think is being recognized.

Yes, we are not protecting Cabinet or protecting public bodies, necessarily. We are saying we recognize there are some things you should keep and that you should not have to disclose. We recognize that. We are balancing that against the right of the individual, recognizing there are some things you cannot disclose. We have such an obligation to make sure there is nothing that is being held back that is going to be of harm to the individual as well. We are not just saying: Okay, we do not want anything to harm the work of Cabinet, to harm the work of government, or to harm the work of the public body. Later on, in the act, we will get into the whole harms issue. I am not trying to go there now, but trying to say what the recognition of privacy is all about.

When an individual goes to the Office of the Information and Privacy Commissioner and looks for help with seeking information, what the staff of that office does is explains to people their right to have privacy protected. It explains to people how they can seek the information they need. They have to show how their privacy is being affected by a public body's action and why they need to appeal for the sake of their privacy. The legislation recognizes cases where disclosure may not be appropriate. We will recognize it. That is why we have to have language in here that allows for determination of adjudications that can have freedom to really make a full determination whether or not a piece of material should be kept from an individual.

Thank you, Mr. Chair.

CHAIR: The hon. the Member for Burgeo – La Poile.

MR. A. PARSONS: Thank you, Mr. Chair.

I just want to speak specifically as it relates to section 18.(3). Section 18(3) states, "The commissioner may review the refusal of a Cabinet record by the head of a public body under subsection (2) except where the decision relates to a Cabinet record which has been certified as an official Cabinet record by the Clerk of the Executive Council or his or her delegate."

In this section, we are giving the possibility of a review. By saying the commissioner may, you are saying it may or may not happen. It is possible, but it is not definite.

I have an amendment, Mr. Chair, that I would like to propose. The amendment that we are moving is stating that: Clause 6 of the Bill is amended by deleting the word "may" proposed in subsection 18(3) and substituting the word "shall".

If you were to start the paragraph off, it would say: The commissioner "shall" review the refusal…. I have that amendment here for the Table, Mr. Chair.

CHAIR: Order, please!

I will take a moment to review the proposed amendment and it will be circulated to the parties in the House.

[The Chair takes a moment to review and circulate amendment]

CHAIR: Order, please!

At the moment there are not copies of the amendment available, so we will pause momentarily so we can obtain the appropriate number of copies for the parties in the House.

I ask members of the Opposition, when they are proposing amendments, to have several copies available just so that it does not result in a delay in proceedings. I would appreciate members' co-operation.

While we are waiting, the amendment pertains to clause 6 and the amendment reads: Clause 6 of the Bill is amended by deleting the word "may" in the proposed subsection 18(3) and substituting the word "shall".

[Pause to review amendment and obtain copies for parties in the House]

CHAIR: Order, please!

I have reviewed the amendment and I have determined it to be in order.

The hon. the Member for Burgeo – La Poile.

MR. A. PARSONS: Thank you, Mr. Chair.

I will be very concise and very clear on this. By changing the word "may" to "shall" the commissioner will hereby be required to review the decisions.

What this is doing, we propose, it is guaranteeing the public's right to access to information. Again, all we are doing is solidifying that. I do not think the government is going to have any opposition to that, I would not imagine. What you are offering in the section, as is, is that the commissioner "may" but it is not a guaranteed right. What we are suggesting here is that by making that one word suggestion "shall" then we eliminate the possibility that the person may not have the right to have the commissioner look into that particular situation.

So, I will end on that. Perhaps if one of the members of government would like to give me their take on the ramifications of that amendment, I look forward to listening to that.

Thank you.

CHAIR: The hon. the Member for St. Barbe.

MR. BENNETT: Mr. Chair, sometimes the change of a single word can make a significant difference to a piece of legislation. In this case, my colleague, the Member for Burgeo – La Poile, has moved an amendment that the word be changed from "may" to "shall".

Mr. Chair, those of us who are involved in legislation, we know that this moves this whole section from being permissive to being mandatory. If the House adopts this amendment, it means that instead of the commissioner having the option to review or look at or not look at, the commissioner, in fact, will be required to look at or review the decision.

Mr. Chair, the reason that is important is the – and we are not saying the commissioner is not doing his job, but as we know, this is the shortest term of any commissioner in Canada. The term proposed is to be only two years and the next shortest is five years. In the last year, the statistics provided by the commissioner indicated – and this is at page 17, if anybody has this report.

The report of 2010-2011 is called Promoting Access and Protecting Privacy: Finding the Balance. He reported there were 175 requests for reviews and complaints dealt with in 2010-2011, and of the 175, 158 were initiated by individuals. I referenced this earlier in debate on another one of our proposed amendments. If the requests for review or complaints are initiated 90 per cent by individuals, then clearly the act is being used more by individuals than by anyone else. The second highest request was from members of the media. This was only 4 per cent, and only 2 per cent were initiated by political parties. Mr. Chair, of these there were 149 requests for review and the others were complaints.

If the commissioner is requested to review something and if he is mandated to review it then nobody will be sent away from the commissioner's office. If the commissioner is understaffed, overworked or tends to be exceptionally busy, it is important that people who are turning to the commissioner know that if there is a decision where they feel they have aggrieved, then obviously the commissioner will look at it. The commissioner must look at it, not the commissioner may look at it. That does not necessarily mean there will be court action or appeals.

In this instance of 149 requests or reviews, fifty-eight of them were resolved through an informal resolution. Mr. Chair, that is probably somewhere in the order of 40 per cent being resolved through an informal resolution. If we look at 90 per cent of them being individuals, this means a large number of individuals, approximately one per week for the whole year, had their concern or their request or review resolved through an informal resolution; twenty-one more resulted in a commissioner's report.

Mr. Chair, it is very important, if the system is working well then we tend not to hear as much in the way of a concern; however, if the system is not working very well then the commissioner will prepare a report. In this past year, the commissioner advised that he did twenty-one commissioner's reports. If the matter is important enough for the commissioner to provide a report, then obviously this is also helpful in the functioning of the office. If the commissioner's office –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. BENNETT: If the commissioner's office finds it necessary to do twenty-one commissioner's reports in the course of a year that is probably very good work, a couple of reports going through a month. I would look at that as basically maintaining the system and allowing people to get the benefit from the commissioner's office.

In addition to requests for review, the office received 473 access to information related inquires during the year, and there were twenty-six complaints received under section 44 related to fees being charged or to extensions of time by public bodies. Mr. Chair, it is important that people have these issues resolved expeditiously and properly.

Mr. Chair, the sense that I am getting from the report from the commissioner's office is that this office tends to be working very well; however, we do not know that it always will.

CHAIR: Order, please!

The hon. member has made numerous comments related to the commissioner's report. I believe over the last couple of days members of this House have a good understanding of the contents of the commissioner's report and the number of individuals who have inquired and informal versus formal resolutions. So I ask the member to speak to the amendment specifically, if he would.

The hon. the Member for St. Barbe.

MR. BENNETT: Thank you, Mr. Chair.

What I say with respect to this amendment is if we are happy with the way the commissioner's office is performing then we should change this from may to shall and that should go some ways down the road to ensure that the commissioner's office continues to work as well as it is working today. That is why I would support the amendment.

Thank you, Mr. Chair.

CHAIR: The hon. the Member for St. John's East.

MR. MURPHY: Thank you, Mr. Chair.

Just a quick point on what my colleague for St. Barbe was saying, just a side observance. In the number of reviews, as he said, there were 149 requests. We could be avoiding unnecessary court costs and at the same time saving money for the taxpayers here.

The potential here for court savings is obvious because I think this is reinforcing exactly what you would get in the review process by making that small change. If you change it from "may" to "shall" it is giving more confidence as well to the taxpayer out there or to the user of the system who may be subject to a review or maybe questioning the source of the information that they may be after. Mandatory review could solve problems in a number of complaints here.

I have to agree with the motion because overall I think that what we are looking for is the restoring of confidence in people in governance, number one, but at the same time in the whole review process.

Thank you very much, Mr. Chair.

CHAIR: Is it the pleasure of the House to adopt the amendment?

The hon. the Member for Bay of Islands.

MR. JOYCE: Thank you, Mr. Chair.

I am sorry about that; I was just a bit delayed because I was looking at some of the notes on this draconian bill and these amendments once again.

Mr. Chair, as I usually say, and it has always been my way over the years, you always try to make compromise. Compromise is the way in life, we can never get what we want, Mr. Chair. In this bill here, we can go through it, compromise is the way that we all as parliamentarians should be able to discuss things, debate things, change things, make things better for the people of Newfoundland and Labrador. That is what we need to do. We need to make sure that we do things better for the people of Newfoundland and Labrador.

Mr. Chair, I am going to read the bill, and excuse the people here because I am trying to make sure that I have all my notes on the one page. It is a bit big because I wanted to make sure I have the entire bill in front of me. I am going to read the section as it is now, Mr. Chair. I just wanted the people of Newfoundland and Labrador to know as it reads now.

"The commissioner may review the refusal of a Cabinet record by the head of a public body under subsection (2) except where the decision relates to a Cabinet record which has been certified as an official Cabinet record by the Clerk of the Executive Council or his or her delegate."

"The commissioner may review the refusal of a Cabinet record by the head of a public body under subsection (2)…" Mr. Chair, the word there is "may". In all of our parliamentary language that we use in the Legislature and we use in the courts of Canada, in Newfoundland and Labrador, "may" means discretionary. I have to explain to people, especially the members opposite, discretionary means I could go in, I may want to do it, I may not want to do it. There is nothing there saying, well this should be done.

Mr. Chair, when you look at something discretionary – and I know the job you have here in your chair, Mr. Chair, is pretty, pretty tough because sometimes you have to make decisions that are discretionary. It is a judgment call. I am going to use you as an example, I hope you do not mind, Mr. Chair.

CHAIR: I will let you know if I do.

MR. JOYCE: I am pretty sure, Mr. Chair, you do not. I know you are a reasonable person, Mr. Chair. I will just use you as an example, Mr. Chair – discretionary.

You were here the last two days, Mr. Chair, and you have to sit in that chair. You have to be discretionary about what is relevant and what is not. Sometimes I envy you because I know, Mr. Chair, except for myself, there are some people here who can be a bit trying on your nerves and a bit trying when you are tired. I am pretty reasonable and I know I would not do that. Most people when they get tired would do that. When it becomes discretionary, Mr. Chair, you have to make a decision on the discretionary call if something is repetitious or if something is relevant. Mr. Chair, it is a tough job.

Now, Mr. Chair, I just want to ask you a question again. I hope you do not mind me using you as an example because you are the best one I can pick here and you are the most reasonable one here. I know you are pretty good with it, Mr. Chair.

Mr. Chair, if you stand up in the act, under Beauchesne or under Bosc and O'Brien, and you have a ruling in Bosc and O'Brien: What do you have to do? You have to stand up and you have to say: Here are the rules by Bosc and O'Brien. We have to follow it.

SOME HON. MEMBERS: Oh, oh!

MR. JOYCE: Mr. Chair, some members opposite are saying not to shout. I am sorry. My voice is just a bit harassed. I am sorry, Mr. Chair.

Mr. Chair, one of the reasons I am shouting is I am so excited because we are offering you another compromise. We are saying: Let's all work together. We are all parliamentarians, we should all work together, Mr. Chair. We should all work together. So if I am shouting it is because of excitement.

Mr. Chair, I will get back to your discretionary. As I mentioned, Mr. Chair, you have to make a lot of discretionary calls here in the next couple of days. When something happens in this House of Assembly – and I know it because I am a member, on one or two occasions, who was called on some of the issues that were brought up in Bosc and O'Brien. Once the rule of the House is made, you have to follow it. There is no discretionary about it, Mr. Chair.

What I am saying is people like you, Mr. Chair, the residents out in Newfoundland and Labrador, let's not put you in that position, or the least number of times possible. Mr. Chair, just imagine if you had less discretionary power and you had the rules to go by how much easier it would be. That is what we are offering here. Take away the discretion of Cabinet, take away the discretion of the individual applying, and take away the discretion of the commissioner. Let's put in and say: he shall look at it. That is not saying he is going to release it.

Mr. Chair, as I mentioned to you before, just imagine if every decision you had to make was there right in front of you how easy it would be, and it would be. That is why I do not envy you, Mr. Chair. You have to make a lot of tough decisions.

Just think about someone, Mr. Chair, who is applying to the Freedom of Information Act for some information, gone to Cabinet, it is affecting their life, affecting probably their families more than likely, and now you are up to a discretionary call that you may or may not look at to see if it is going to affect your family or not. Imagine how trying that must be on individuals, Mr. Chair. Imagine how trying that would be. Imagine, Mr. Chair.

Once again, I will use you for the last example. Imagine how trying it is on you, Mr. Chair, when you have to make the discretionary call. You have members opposite thinking their point of view is right; you have members over here thinking our point of view is right. No matter what you do you are going to upset one side or the other; no matter what you do, Mr. Chair, because that is just the role of the Speaker in this House of Assembly, and I do not envy you.

Mr. Chair, the least number of times that we can put you into a discretionary call is going to be better for all parliamentarians because we will know the rules. When we stand up on rules, on Beauchesne and O'Brien and Bosc, Mr. Chair, we have it in front of us, you make a ruling.

Mr. Chair, it is very important that we put in that word "shall". It is a compromise, because many times – I do not want people like you having to be put in the position whereby what is my decision because it is discretionary. I do not want that, Mr. Chair.

We are in the House of Assembly debating a major bill and I just about have the pressure that it puts you under sometimes, Mr. Chair. I relate it to this bill. I will ask all of the lawyers here in this hon. House, I just want to ask all of the lawyers, I just want to ask a question. How many times in Canada can you go in right now and punch up, whatever the computers they have in the courts, that there have been cases across Canada, just across Canada – I am willing to bet there are thousands, thousands upon thousands where the court has ruled that the word "shall" is included.

There are thousands of case laws in the court of Canada, Mr. Chair. I am willing to bet there are thousands.

AN HON. MEMBER: (Inaudible).

MR. JOYCE: I say to the minister, my point is: Why are we making this arbitrary? Why are we saying it is up to this person, you may or may not? Why not just say, you shall go in and look at it? We are not saying release it, but you shall go in and review the Cabinet document.

Mr. Chair, this is a great compromise for all of us Parliamentarians. It is not divulging Cabinet secrecy. It is definitely not saying we are going to take all Cabinet issues and throw them on the table. What we are saying is we are going to take an independent body, someone who is trusted by government with the credentials of John Cummings, for example, and put him into a position. Okay, this person wants to look at this information. We want you to go look and say: Should we release this or not?

When it is over, Mr. Chair, it is like you. You can say: It was not discretionary. Here is the law that I have to go look at. That is what we want in Newfoundland and Labrador, Mr. Chair. We want to be able to say to the people: You got the best option possible for fairness.

I see my time is up, Mr. Chair. Thank you very much for allowing me to use you as a prime example. I do not envy your position, Mr. Chair.

CHAIR: I think you made that clear. I thank the hon. member.

The hon. the Opposition House Leader.

MS JONES: Thank you, Mr. Chair.

I certainly want to speak to the amendment that was proposed by my colleagues to section 18. This is my first opportunity, Mr. Chair, to be able to speak to this particular amendment. Mr. Chair, the amendment, which can be found under section 18 of the act, applies to subsection 18.(3). As was said by my colleague, the purpose of this particular amendment is to ensure that the commissioner shall have the right to review any decisions that would be made, as opposed to may review them.

The reason we put that in there, Mr. Chair, is not only for the discretion and the protection of the public, but also for the government as well and for the Cabinet. If the commissioner is required to review these decisions and guarantees the protection of the public right to access to information, we do not see why there should be a problem.

We trust, Mr. Chair, that the commissioner will be balanced. We trust that the commissioner will be fair. We trust that the commissioner will not only do what is required of him to protect the public interest, but he will also do what is required of him to protect the Cabinet as well, to protect Cabinet papers, to protect information that is directly used within the Cabinet to carry out the work of the government. We know, Mr. Chair, and we trust that the commissioner will uphold privacy laws, protect individuals' private rights and private information. Therefore, Mr. Chair, we see no problem with this amendment.

Mr. Chair, we feel if government were to support this amendment and change the wording in subsection 18.(3) to read that the commissioner shall review the refusal of a Cabinet record by the head of a public body under subsection (2) except where decision relates to a Cabinet record, and so on and so on, Mr. Chair – I will not go through it all. If the Cabinet and the government were to support this amendment, I think that they would have the protection that they were looking for.

When the Government House Leader spoke there a few hours ago, he talked about they have to be able to operate without fear. I think that if you actually trust the commissioner to do his work, to uphold the interest of the public and the interest of the Cabinet, then those decisions can be made without any fear whatsoever, Mr. Chair.

I believe that the commissioner will protect the Cabinet's right to keep information private that needs to be private. I think that is the crux of what the Access to Information and Protection of Privacy Act is all about, Mr. Chair. That is what it is all about. Why, in this case, would the commissioner all of a sudden decide that I am not going to review and look at this request for information based on what the implications, impact or consequences could be upon the Cabinet, upon the Executive Council and the decisions that they have made? I do not think the commissioner would do that.

In fact, Mr. Chair, in the past we have seen complete opposite. We know because we have dealt extensively with this act. We have filed a number of FOI requests over the last nine years. We have filed them since 2003, but especially since 2005 when the new act came into play, which is the one that we are discussing now, when that particular act was proclaimed. Mr. Chair, over that period of time, we have made many requests and we have had many cases where the Privacy Commissioner has said: We cannot give you that information because that information has to be protected as a part of Cabinet secrecy.

We have seen many cases where the commissioner has upheld the decision of the Cabinet and the government; however, we have also seen decisions where the commissioner did not uphold the decision of the Cabinet and the decision of the Executive Council, and we have sited some of those examples. Some of those examples are very public. They are very public because they actually made it all the way into the court system.

They were requests for information where the government, in their definition, deemed it to be secretive and not to be released; however, the commissioner felt differently. That was in only very few cases. There has probably been as many or more cases where the commissioner upheld the decision of the Cabinet and what they deemed to be the protection under the secrecy regulations and legislation.

Mr. Chair, what we are saying now is that we trust the commissioner. We may not always agree with him. We certainly did not agree with him when he upheld decisions of Cabinet and refused to give us information, and I am sure others in the public felt the same way. Mr. Chair, we do trust the decisions that he makes. We do trust that he will be balanced in the protection of what is in the best interest of the public and in what is in the best interest of the Cabinet.

I think, Mr. Chair, if the government were to trust the commissioner, if they were to accept this particular amendment and say we will trust that the commissioner will protect the rights of the Cabinet and protect our right to keep certain information secretive, then I think we could see this amendment, this friendly little amendment, included in the bill at the end of the day.

I think it is a very friendly amendment. I think it is a very good compromise between what the government is trying to achieve in this particular bill and what we are asking for. Because, Mr. Chair, you cannot just have everything off limits. At some point there has to be an independent body who examines what I want and what you want to give me and determines where is the balance here.

All we are saying is that it should be a mandatory piece of this bill and that the commissioner shall have the opportunity to do that. Not that they may; they shall be required to review all of these decisions, Mr. Chair. That is exactly what we are asking under this amendment: To review the decisions in the interest of guaranteeing the rights of the public and, at the same time, guaranteeing the rights of the Cabinet.

So, Mr. Chair, it does not really change a lot in the bill. What it does is it brings a little more balanced perspective; it brings an independent level of thought and decision making to the particular process. This is what we are asking to be done. There is absolutely nothing wrong with that.

MR. MARSHALL: (Inaudible).

MS JONES: I know, Mr. Chair, the Minister Finance is making a comment, but I cannot really hear him. I would appreciate it if you could put it on the record, because I think it is really important that we have this debate.

Mr. Chair, everyone here, I think, who has ever served as part of a Cabinet process knows that there has to be a certain level of secrecy. We all know that there has to be private information kept private. We all know, Mr. Chair, that oftentimes in your job you have information that you cannot disclose. As MHAs, we do.

Every day in my office I am handling private information. I am handling people's social insurance numbers, their date of birth, other forms of identity, access codes and numbers for different services and programs in which they may be involved in, information pertaining to their children, their spouses, and so on. That, Mr. Chair, is all private information. I know that I, as an MHA, have to uphold that privacy. I know that I just cannot give out that information to whoever I want. That would be a violation. I would be in violation.

So, Mr. Chair, we know that there are cases where information will have to be protected by the Cabinet. We are just offering a compromise.

CHAIR: The hon. the Leader of the Third Party.

MS MICHAEL: Thank you very much, Mr. Chair.

I do want to speak to this amendment, to subsection 18.(3), which says, "The commissioner may review the refusal of a Cabinet record by the head of a public body under subsection (2) except where the decision relates to a Cabinet record which has been certified as an official Cabinet record by the Clerk of the Executive Council or his or her delegate." The amendment is changing the wording the commissioner may review to the commissioner shall review the refusal of a Cabinet record, et cetera.

I do want to put my two cents' worth in here, because I think it is an appropriate amendment, Mr. Chair It is obviously appropriate as an amendment or we would not be discussing it, but I think it is right to suggest this change of the verb from may to shall.

If the commissioner has become aware that an applicant has been refused a Cabinet document as described here by a public body, it is because somebody has come to the commissioner, the applicant has come to the commissioner. There would be no other way for him to know.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: So an applicant has come. The applicant has reported that a public body has refused a Cabinet document and the person obviously is questioning whether or not the document is officially a Cabinet document in the definition that is in the act. Whether or not the applicant wants the commissioner to go ahead and do an investigation, it becomes incumbent on the commissioner to do an investigation because of having the knowledge. That is what the "shall" is all about.

A public body is arm's-length from government and is arm's-length from Executive Council. The public body, as we know, in the act covers quite a range of organizations and groups. Now, with the amendment, the public body would also cover other entities that are put in place by public bodies.

Because the public body or another entity is at such an arm's-length from the Executive Council, I think the Executive Council would want the commissioner to study what the public body has done. The commissioner is an external body. The commissioner has the obligation of oversight and the Executive Council should want the commissioner to make sure public bodies are making correct determinations. That is what is at the problem here.

SOME HON. MEMBERS: Oh, oh!

MS MICHAEL: Mr. Chair, I am finding it hard to hear myself.

CHAIR: Order, please!

I ask members for their co-operation.

MS MICHAEL: Thank you.

The commissioner should want an oversight of what is happening with public bodies. That is exactly why the commissioner and the commissioner's office is there: To maintain the external oversight, to do reviews, and to have its eye to everything that is going on with regard to the response to Freedom of Information requests and to the disclosure or nondisclosure of documents as they are requested.

Changing "may" to "shall" recognizes that it is to the benefit of everybody, to the benefit of good governance, to make sure the commissioner always reviews, as it says here, the decision of a public body. That, of course, would mean reviewing the documents themselves to determine whether or not they fit under what should be protected by the legislation.

This is something that I cannot find any notes from the commissioner on this particular point, in his comments to Mr. Cummings, but it would be my understanding the spirit of everything that he has said would indicate that the experience in that office would say this is a good way to go. If we do not have the external oversight, then we know from other experiences that an agent of the government, a public body, a department of government, can be misstepping and nobody knows that the misstepping has happened. I mean, it happened here in our own House of Assembly.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MS MICHAEL: We had a major mess going on that was not picked up because we did not have the external oversight. When it finally got picked up, then we had investigations, we had actions, and we had new legislation, et cetera.

We do know that even an individual department, an individual part of a department, an individual office that has responsibilities can be making errors. Sometimes errors that is quite innocent. Sometimes making decisions that they believe in, they believe they are right, but we all believe sometimes that something is right. Sometimes we do not have enough information to make the determination. Sometimes we may not have all of the knowledge that will help us figure out whether something is right or wrong. Even with a public body, it may make a decision about a document but in actual fact they have not made the right decision. Who is going to make that determination? It has to be the commissioner.

What we are saying is, through this amendment – and I am happy that the amendment was brought forward – that it is the commissioner's responsibility to make sure that all of those decisions are correct decisions for the good of the public, that all of those decisions are also correct decisions for good governance. Therefore, government should want this in here. Because if not, something could be going on – it could be a school board. It could be even with our own energy corporation. It could be anywhere. Surely, government do not want decisions being made that are not for the good of public.

From that perspective, Mr. Chair, I am happy to support this amendment. I think it is to government's own good and it is to the good of the public. It is to the good of all of us here that we have this language in. Government has to remember that the language of this legislation is not for them, it is for everybody. It is for all of us in this Legislature and it is for the whole Province. For the good of governance in the whole Province, for the good of having public bodies who are becoming more and more aware of what their responsibilities are, and for the good of the individuals of the provinces, I really do urge the government to support this amendment.

Thank you, Mr. Chair.

CHAIR: Are there further speakers to the amendment?

The hon. the Member for Torngat Mountains.

MR. EDMUNDS: Thank you, Mr. Chair.

I just have a few words on this proposed amendment. What we see here is a change in the terminology. One simple change, Mr. Chair, that changes the whole presentation in section 18.(3). What this allows here is to give the commissioner a chance to bring fairness to decisions made by the Executive Council.

When commissioners are put into place, Mr. Chair, they are selected based on their knowledge. I am certain that the person who is in this position will be capable, will be informed. I think in every case, Mr. Chair, the mandate of the commissioner is to give due diligence to government documents and to government information. What this would create, Mr. Chair, is more openness when decisions on information have been made by the Clerk of the Executive Council and certainly by the heads of public bodies and or Cabinet.

In the past, commissioners have given judgement both in favour of government and in favour of parties or the parties requesting access to information. Secrecy and privacy with respect to information, as my hon. colleague had alluded to earlier, is a code. It is a code when we take public office. What it does is it entrusts us with information that we know we cannot share. There were some examples given earlier, Mr. Chair, from my colleague, the hon. the Member for Cartwright – L'Anse au Clair.

I know the same sensitivity or the same care with respect to information that goes through the government and comes through Cabinet, Mr. Chair, is of the same essence and should be given the same consideration. We expect this, and certainly we understand this.

Mr. Chair, what we are proposing in this amendment with respect to section 18.(3) is where the original amendment states, "The commissioner may review the refusal of a Cabinet record by the head of a public body…" to: The commissioner "shall" review the refusal of a Cabinet record by the head of a public body.

What this does is it simply makes it protocol for the commissioner to review decisions made by Cabinet or the heads of public bodies. Having said that, there is a certain trust put into us as MHAs, Mr. Chair. There is a certain trust put into the Executive Council, Mr. Chair, as legislators and are just as important as the same.

MS SULLIVAN: A point of order, Mr. Chair.

CHAIR: Order, please!

The hon. the Minister of Health and Community Services, rising on a point of order.

I also remind hon. members that in Committee of the Whole, technically members are not required under our Standing Orders to be in their own chair, although I do notice the minister has moved to her own seat.

The hon. the Minister of Health and Community Services, on a point of order.

MS SULLIVAN: Thank you, Mr. Chair.

Mr. Chair, last evening we had some commentary around and the Chair spoke to repetition in the House. I just want to read back this sentence from the House of Commons Procedure and Practice where it says, "Repetition is prohibited in order to safeguard the right of the House to arrive at a decision and to make efficient use of its time."

Mr. Chair, we have heard the same comments on this amendment, which is about one word, about changing a word from may to shall now for about twenty or twenty-five minutes. I have not heard anything new in that length of time, Mr. Chair.

I would like a ruling on the repetition.

CHAIR: Order, please!

The hon. the Member for Bay of Islands, responding to the point of order.

MR. JOYCE: Mr. Chair, we made an amendment on this very important bill that is in front of this House. The member who is speaking now from Torngat Mountains, Mr. Chair, is expressing his point of view. It is the first time this member has spoken on this amendment change.

Mr. Chair, if someone can explain to me how a member who is passing on his experiences about may and shall and about government trying to hide things in the whole scheme of this bill –

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. JOYCE: Once again, we see a way that the government is trying to stifle us, Mr. Chair.

SOME HON. MEMBERS: Oh, oh!

CHAIR: Order, please!

MR. JOYCE: I just feel, Mr. Chair, that every member in this House has a right to speak on every piece of legislation, and this member is speaking for the first time.

SOME HON. MEMBERS: Hear, hear!

CHAIR: Order, please!

The Minister of Health and Community Services is raising a point of order that has been raised several times during the course of this debate. I will acknowledge that the Member for Torngat Mountains is speaking to the specific amendment for the first time. I would remind the hon. member, and all hon. members, to keep their comments relevant to the particular amendment we are debating, which relates to clause 6, of course. I ask members to avoid being repetitive in their remarks as well.

The hon. the Member for Torngat Mountains.

MR. EDMUNDS: Mr. Chair, I concluded my presentation right at the point of order.

CHAIR: Is it the pleasure of the House to adopt the amendment?

The hon. the Minister of Finance and President of Treasury Board.

MR. MARSHALL: Thank you, Mr. Chair.

It is my pleasure to stand today and take part in this discussion again on another amendment of clause 6, which is to amend section 18 of our legislation, which is called the Access to Information and Protection of Privacy legislation.

It might be appropriate to reiterate today that we have legislation called the ATIPP Act, Access to Information and Protection of Privacy Act. It used to be called the Freedom of Information Act before it was amended back in 2002. What this legislation does is it gives members of the public a right of access to government records; a right that we have, a right of access, as I said during the debate yesterday. It is important that we have rights and that we cherish the rights we have, but rights are not absolute. The rights we have are subject to reasonable limitations.

The example I used yesterday was that I referred to some of our most cherished rights and freedoms, which are set out in the Canadian Charter of Rights and Freedoms. In section 2 of the Charter, it talks about everybody having certain fundamental freedoms. The one I used was freedom of expression, and how freedom of expression is so important to all of us. It gives us a right to speak.

Even though we have this right, the freedom of expression, we have the right to do this, it is set out under our Charter of Rights and Freedoms, it is subject to reasonable limitation. The Charter, in fact, says that our rights and freedoms are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." So when I have the right of freedom to expression, I can say what I want but I cannot defame someone and I cannot slander someone. I cannot go into a movie theatre and yell there is a fire when there is no fire. There are reasonable limitations on our rights.

In our ATIPPA legislation, in our access to information, we have the right to information but that right is also subject to reasonable limitations. The limitations on our rights to information are set out in the legislation. There are certain sections of the act which say that the act does not apply to certain types of information. No one has the right to that information because the act does not apply to it.

There are certain sections in the act, for example, that say the head of a government department, called the head of a public body, shall not release the information. In other words, the information is considered so private that the information cannot be disclosed. In fact, the government would be in trouble if it disobeyed its own law and gave out information the law said you cannot release.

There are other sections of the legislation that say the government may release the information. Now, of course, it is a debate as to whether the legislation should be released or should not be released. What we see here and what we see in the media sometimes is that you may have certain types of information which the law says you cannot release and the Opposition or some people will criticize the government for not releasing information when, in fact, there is no legal right to release the information.

Mr. Chair, if somebody applies for information and the government says no, you are not entitled to that information, whether it is a mandatory exception or a discretionary exception to the act, or whether or not the act even applies to that type of information, the applicant has an appeal. It has an appeal to an independent Officer of this House, called the Information and Privacy Commissioner who is appointed under this legislation as well. That person is an independent Officer of the House of Assembly who does not work for the government. That person is appointed by this House and is subject or reports to this House of Assembly, not the government.

What we are doing here is we are looking at an amendment to clause 6 of the new bill and we are attempting to amend section 18 of the original legislation. What they are saying here is that the commissioner shall review a decision. If an applicant goes to the commissioner, the commissioner shall.

Mr. Chair, in my view what that is doing is attacking the very independence of that officer. The independent Officer of the House, such as the Auditor General or such as the Child and Youth Advocate, or such as the Citizens' Representative or the Privacy Commissioner, is independent. They are given their discretion to do their job, to do their duty. They are given discretion in the exercise of their authority and their jurisdiction. We trust them.

The Government House Leader talked about the fact that we trust these officers. We trust them to exercise their discretion appropriately and by virtue of an independent status. When you are saying that you have to do this, when you are saying to the commissioner, who is an independent officer, you are not just telling him you may do it, you can look at it, and decide what is appropriate and do it, what you want to do now is amend the legislation to force him to do it, then I think what you are saying to that commissioner is you do not trust him.

Therefore, I would recommend that we reject the amendment because I believe all of us in this House do trust their independent officers and we do trust that they will exercise their discretion appropriately in accordance with the legislation. If we remove that discretion from the commissioner, then I think we are setting a dangerous precedent.

On that basis, Mr. Chair, I would recommend and suggest to members of the House that we reject this amendment. Therefore, we can rely on the provisions of the legislation which allows an applicant who has applied, if the applicant is turned down, the applicant can appeal the decision either to the commissioner or, alternatively, the applicant can go to the Trial Division of the Supreme Court.

If the applicant does, in fact, go to the commissioner, it says the commissioner may review the refusal. The commissioner has the right to review the refusal. I think it would be inappropriate for us to order the commissioner to do it. I think we have to give the commissioner the authority to do it, which this amendment does, and we have to rely on the commissioner to exercise his or her discretion appropriately.

Thank you, Mr. Chair.

SOME HON. MEMBERS: Hear, hear!

CHAIR (Osborne): The hon. the Member for Bay of Islands.

MR. JOYCE: Thank you, Mr. Chair.

Welcome back to the Chair –

CHAIR: Pardon me, I ask the Member for Bay of Islands, I recognize some guests in the gallery and I think they are about to leave, so I would like to recognize them before they do. That is the Grade 3 class from Cowan Heights Elementary in the District of St. John's West.

SOME HON. MEMBERS: Hear, hear!

CHAIR: We welcome our guests to the gallery. I hope you enjoyed watching our debate.

The hon. the Member for Bay of Islands.

MR. JOYCE: Thank you, Mr. Chair.

As I was saying, welcome to the children in the gallery and welcome to see how democracy works in Newfoundland and Labrador. It is good to see you and enjoy your day.

Mr. Chair, welcome back to the Chair yourself – welcome back. It has been a while. It is good to see that you are back to the Chair making rulings and helping us go along with this long session. It is great to see that you stepped in to help everybody through this issue.

Mr. Chair, I just heard the Minister of Finance. I have to say when the Minister of Finance stands up and speaks he usually speaks from his heart. He usually speaks the way he feels and he usually lays out a good argument. I have to give him credit for that because the minister usually stands up and has a point of view and he likes to express it, which is good. I thank the minister for that.

As a layperson who is not into the lawyer lingo of some of the issues, I will just speak as Mr. Joe Blow out in Newfoundland and Labrador and the people who I represent to express why I feel that this amendment should be accepted.

The minister started off with something that we all agree with: the rights of individuals in Newfoundland and Labrador, with all the rights in Newfoundland and Labrador, Mr. Chair. One of the words that he used was reasonable intentions. The minister went off and explained that the reasonable intention of anybody is that if you have certain rights, you cannot abuse your rights in Newfoundland and Labrador.

He used the example of how, if someone went into a movie theatre and sang out fire, fire when there is no fire, it would cause a disruption. Mr. Chair, I agree with the minister on that. I think it was a bit of a far stretch when the minister is talking about fire, fire in the movie hall when some individuals looking for information that has gone to Cabinet, that is going to affect him personally, affect his family personally, affect his business personally, and say that there is not a reasonable intention for this person to be able to get the information.

How can anybody here explain to me that it is not a reasonable intention to get information when the decision was made about you, your family, your business, which may affect your family and business for the rest of your life? How can anybody explain to me to say that is not reasonable intention?

I agree with the minister and I understand the logic that the minister is saying about reasonable intention, but we also have to look at the reasonable intention of an individual who is having a decision made by Cabinet. Is it reasonable intention for him that he should have access to the information that is made about him? Mr. Chair, that is just one issue.

Mr. Chair, when you have reasonable expectations and limitations, and I will use the minister's own words: reasonable expectations and limitations. I think every person in this Legislature, and the very vast majority of people I know throughout Newfoundland and Labrador, have reasonable expectations and limitations of government, of our health care system, of our municipal infrastructure. There are some, we all agree, who absolutely, no doubt, sometimes push it to the extreme. They are rare, but the majority of people in Newfoundland and Labrador have reasonable expectations and limitations. We all know that.

I ask you, and I ask the House of Assembly, the Minister of Finance, government cannot – because people have reasonable expectations and limitations – walk on people's rights. By changing this legislation and by this amendment we just made, Mr. Chair, this is ensuring that the commissioner shall go in and look in; if someone makes a request, shall go in.

Mr. Chair, the impression given here in this House on this amendment is that with every Cabinet decision the commissioner has to go in and look at every piece of documentation and say: Oh, here is what we can release. That is not the intent, Mr. Chair. That is not the intent.

The intent is if someone puts in a request for some information pertaining to that individual and it goes to the commissioner, the commissioner shall look at the documents. Now the commissioner can go in and say: Okay, no, these documents are not relevant and we should not be releasing it. He makes the final decision, or the person can take it to the Supreme Court.

Instead of he may, which the government – how can we ensure that people are saying okay, your rights have been taken care of, we are exercising your rights because we are going to say you shall go in and look at those documents, you shall go in and you shall make a decision. Now if you do not agree with that decision, you can take it to the Supreme Court.

Isn't it a reasonable expectation – and the minister has mentioned about the officers of the court – that if you make a request to a person of the court, and in this case about some information about that person, that person has a reasonable expectation that the officer of the court will go in and have a look. You looked at it; I feel there is not a lot there that can be released. I feel there is not a lot there that is prejudicial to the Cabinet, and therefore I am going to release so much. Isn't that a reasonable expectation?

I ask anybody in this hon. House, if we had a problem at one of our banks, if we had a problem with our banks and we went to the bank manager and said, look, we have a major problem. I ask every member in this hon. House, if you went to the bank manager should you have it on your clause you may look at my statements, or you shall, if I make a serious complaint to the bank? What would you all agree?

Do you know what you are going to do? You had better go look at that stuff, this is mine. I am making a complaint. I do not want you to have the discretion to stand up and say: Oh, you may go look at it. Hold on, I am making a serious complaint. I am a reasonable individual in this place, I am a reasonable individual. This is something serious. This is affecting me, this is affecting my family.

If anybody in this hon. House went to a bank and your mortgage – one of the major investments that we all make in our lives, one of the most major investments that most people in Canada will ever make is a mortgage for a house. If we went to a bank and we had a problem with our mortgage, Mr. Chair, don't you think if you went to your bank manager – if you had a problem with your mortgage, would you not expect your bank manager to go and look at it because you have a problem to look into it, or do you think he should have the discretion to say: oh, I may look into it?

To me, that is not unreasonable. Mr. Chair, I am actually amazed why government cannot see that. There are times we are going to have our differences, but I think we are all here for the rights of Newfoundlanders and Labradorians.

Mr. Chair, I have a few other issues I will come back to later, but I know the Minister of Finance – I do not want to leave this out in the world when people are watching, when the minister said: We do not trust the Officers of the House. That is just not true, minister.

With all due respect to you, I do not know if you meant it in the way that I have taken it or not. You can stand up and say that, but when you stand up and say: We do not trust the Officers of the House. That is just not true, Mr. Chair.

When you say that, I take it personally because I respect everybody who works in government. I respect all Officers of the House. I just cannot stand here and because there is an argument made up that I am trying to get people's rights pushed through in Newfoundland and Labrador, saying the reason why I am pushing for this amendment is because I do not trust the Officers of the House.

Mr. Chair, I just hope the minister is going to stand up and say: Well, that is not the way I meant it. I know the members here, when it was said, all of their eyes opened up. Mr. Chair, I will just put it out there and I want it on the record that we do trust the Officers of the House.

Mr. Chair, you are one of them. We know the responsibility you have in that Chair. We have to have trust in people like you, Mr. Chair, in this House to go ahead and be a referee in this House. We all have to have that trust, Mr. Chair.

Mr. Chair, I am going to come back and speak about the courts. The minister mentioned about the courts. If you cannot get it, you can go to court. I can tell you one thing; there was a situation with me back in 2003 where I went through the courts about this House and an election, a false election. I will come back and tell you about that. I will explain to the minister about the courts because the minister is well aware of it.

CHAIR: Order, please!

The Chair recognizes the Opposition House Leader.

MS JONES: Thank you, Mr. Chair.

I certainly wanted to pick up on some of the comments the Minister of Finance made when he stood to speak to clause 6 of this bill and the amendment we were putting forward. He was trying to justify the reason government would not accept this amendment by saying that there was recourse; that if a person had applied to have disclosure of information and that disclosure was rejected, then they would have the right to appeal to the court, Mr. Chair.

That is all fine and dandy, but we have to be realistic about this. Not everyone has the ability or the provisions to be able to appeal to the courts. That is the problem we have with this legislation. It is not allowing the independent venting of whether information should be requested or not requested without accessing the court system.

Mr. Chair, in my experience of dealing with the Freedom of Information Act, and there has been lots of experience in doing that, we have requested information many times from government departments in which we were sent back huge invoices to access that information. We were not being told: No, you cannot have it. That was not the case. We were not told: No, you cannot have it. We were told: Oh, yes, you are able to access that information.

Mr. Chair, I am going to refer to this one piece that I had asked for. This was with regard to the environmental assessment on the Lower Churchill Project. It was with regard to project splitting. We wanted to know, Mr. Chair, if there were any particular notes or deliberations, what kind of background the government used to make that particular decision, if they had any kind of studies, anything, that they had referred to in doing this.

We submitted to the Privacy Commissioner to access that information. Now, keep in mind with the new restrictions that are going in here, we would probably never be given this kind of information in the future. To get to my point in responding to the minister, they came back and said: We will give this information to you, but this is what it is going to cost you: $2,265. We could not afford that information. We could not afford to access those documents; therefore, of course, we have not accessed those documents.

The point that I am making, Mr. Chair, is that it is all right to say you do not need to go from may to shall because the recourse is already there to appeal to the courts. Well, in doing that, it is a very costly process. If in accessing a piece of information like this, I cannot afford to do it because the price tag is $2,200 to get that information, how much would that actually cost me to get that through the court system in which then I would have to fight the Executive Council of government, which has a full team of lawyers and a full Department of Justice, which has the legislation behind him to protect him and I am walking in a court room to try to access that information?

I cannot even imagine what the price tag would be. Some of my colleagues here in the House who are lawyers and have practised, I am sure you can give me a very quick estimate if you were to take my case. I am sure you can give me a very quick estimate that would see this number go from probably $2,200 to about $22,000 to access that kind of information.

Is that accessible? Is that accessible to the people of the Province?

MS SULLIVAN: (Inaudible).

MS JONES: I say to the Minister of Health, if you had the legislation in front of you and you were following where I am going with this – because the Minister of Finance is and he knows exactly what I am talking about – you would know that the reason we are proposing this amendment is because of the facts that I am stating right now. It is because we need –

CHAIR: Order, please!

I remind all hon. members to direct their comments through the Chair.

MS JONES: Yes, of course, Mr. Chair.

As I was saying, the reason that I am putting this forward right now is because we feel that the recourse is not adequate, it is not affordable, and it is not allowing for the public to have full accessibility. So, in order for the act to work, in order for the people to feel, and not only feel but to actually have the right to access information, they need to be able to have an independent body which shall look at this, and that is what we are saying.

Mr. Chair, it is not mandatory that the commissioner look at it. The Cabinet can take this request that I have filed under the Lower Churchill Environmental Assessment Project regarding project splitting, they can take this request, they can look at this request and they can say no, because of the secrecy of Cabinet, because a lot of the information that is being asked here was in some way indirectly a part of a Cabinet decision, whether it falls under discontinued Cabinet records – something that was intended and never used – whether it falls under an official Cabinet record or supporting Cabinet record.

The definition is so broad now that government can hide behind that in saying that we do not have to release that information. So where do I go? Where do I then go? The commissioner, Mr. Chair, normally should be the person who would then look at that and say: Is what the Opposition is asking for here in this request in the best interest of the public? Then he would also look at it and say: Is this in the best interest of the government in terms of protecting information, in terms of protecting privacy? He would look at it and say: Is this in the best interest of all involved?

We need to trust the commissioner to make those decisions. I need to be able to feel, Mr. Chair, that when I ask for something that it is not just going to be a decision of the Executive Council and of the Cabinet, or of the minister, or of a department that deems whether I should get that information or not.

I think, Mr. Chair, that at the end of the day it needs to be and it should be the commissioner who looks at that when the Cabinet says because this has to do with secrecy, we cannot release this information. We cannot allow this information to go out there; therefore, we are rejecting it. Then, Mr. Chair, we need to make sure that we have the ability to be able to have that reviewed and to look at it and see if that is a fair and adequate judgement around this or whether it is not.

Mr. Chair, I think this is a good compromise; that is what we have said to the government. These are not frivolous amendments. These are very important amendments which will strengthen the act, Mr. Chair, to the benefit of all of the people of this Province, and at that same time it still protects the Cabinet and the work that the Cabinet does.

Mr. Chair, I will not be repetitive, but we understand the need oftentimes for government to be able to protect information. We know that, but we also know that there needs to be a fair and balanced approach, and that is what we are asking. We also know that the commissioner should have discretion to be able to do his job and do it appropriately.

Mr. Chair, we feel that clause 6, section 18.(3) under this bill, as the government is currently proposing, will not allow us to do that.

CHAIR: The hon. the Minister of Finance and President of Treasury Board.

MR. MARSHALL: Thank you, Mr. Chair.

I will just take a few minutes to respond to some of the comments that colleagues opposite have mentioned today.

The Member for Bay of Islands said that I had indicated, that I said, that they did not trust the commissioner. I did not say that. I said that if you make the word shall, instead of may, that raises the concept that you are not trusting the commissioner because the commissioner is independent, the commissioner has a discretion and the commissioner is going to do what is in the best interest of the people of the Province, not what government tells him to do and not what the applicant tells him to do. He is going to look at the law and he is going to do what is right. In our view, we should trust him and allow the commissioner, him or her, to exercise their discretion in accordance with what is contained in the legislation.

Now, I would like to refer to some comments that the hon. House Leader made. I think she was talking about really two different things. She was talking about, one, getting the right to access and she was talking about fees. If the hon. House Leader makes an application to the head of a public body for information, the head of the public body will make a decision whether or not to give access, whether or not to grant the information or to withhold the information and has an obligation, if the information is being refused, to point out under what authority, under what section of the ATIPP legislation, the information is not being made forthcoming to the hon. member.

So, the hon. member was talking here about the only access you would have in that case is to go to the court, and that is not correct. The law is very clear here; the amendment is very clear. I will read it here. It is in subsection (6) of section 18. It says: An applicant may appeal the decision of the head of a public body respecting a Cabinet record. Now, if it is an official Cabinet record, yes you do have to go to the Trial Division; otherwise, there is an appeal to the commissioner. In subsection (3), as I said earlier, it says, "The commissioner may review the refusal of a Cabinet record by the head of the public body…".

So the commissioner may review it, and I am sure if it is right thing to do and if it is the appropriate thing to do, I am sure the commissioner will exercise his or her discretion to do the review, but what I said earlier is that we should not make it mandatory. We should not, in essence, destroy the independence of the commissioner by saying you have to do this, you have to do that. He is an independent Officer of the House who we trust and we trust that person to exercise their discretion appropriately.

As we said earlier, I think it is under section 60, if you do have to go to court, if you do determine that is the way you have to go, the commissioner can do that for you. That is under section 60 or section 61 of the legislation. I understand and am advised by officials that this happens on many occasions.

Although it is the applicant who has been refused the information from the government, the applicant might apply to a government department and ask for certain information and the government may say: No, we cannot release that information to you because of a certain section of the legislation which says that we should not release it or we may not release it, and government may feel that it is not appropriate for different reasons: for the protection of maybe financial information of somebody, for the protection of privacy information of somebody.

If they say we are not going to release it, you have the right to appeal to the commissioner. That is why we have the commissioner and it is set out in subsection (3). It is set out in the section that sets out the purpose of this whole legislation, is that we give people the right to get records. That is the right and it is a general right. Then, I think it is in subsection (c), you limit the right, and that why I gave the example of the freedom of expression, to show that our greatest rights and freedoms, rights and freedoms that are set out in our Constitution, the highest law in the land, even those rights are subject to limitations.

I use that simply as an analogy to say that the right of access to information, which is also a right, is also not absolute and is subject to reasonable limitations, which of course are set out in the legislation. If you are refused, if that applicant is refused, we have this independent commissioner that the applicant can go to. The commissioner would look at the situation – and I can assure you, based on my time in the Department of Justice, I felt the commissioner did his job very appropriately and very aggressively and was relentless in protecting the rights of people who he felt were entitled to information and pursued on many occasions – I cannot answer how many, but there were certainly a number of occasions where the commissioner, on behalf of the applicant, took that application to the court.

Again, I want to emphasis that I was not accusing the Opposition of not trusting the commissioner, but I feel that if we change the word may to shall, we are then telling this independent commissioner what he should or should not do and we should rely on his discretion to do the right thing. It is as simple as that.

Thank you.

CHAIR (Kent): The hon. the Member for Bay of Islands.

MR. JOYCE: Thank you, Mr. Chair.

Once again, I have the opportunity to rise on this amendment, and I thank the minister for his comments, but I am just going to stand to make a few points on what the minister just said.

Once again, I want to make sure that everybody realizes that I am not a lawyer. The idea of not only someone feeling that they get justice is a given, but they must feel that they have been given the right and justice has been properly given. That is why when you change this act, if someone is bringing something forward, Mr. Chair – again, there is no questioning the commissioner's ability or the commissioner's partisan or a question of not trusting him, it is just the point that someone who is making this request and who wants to look at some of this information is saying, yes, not only do I know it, I feel confident now that everything that was done is prim and proper. Mr. Chair, that is a very important issue.

I have to ask one question, Mr. Chair, and I am sure there are members opposite who know a bit more than me. Once again, I speak on behalf of the common person who grew up in Curling, fourteen kids; all the boys I grew up with, I am still knocking around with the same bunch and we are all in the same piece of cloth, Mr. Chair. We are all pretty common people of the earth and we are not too familiar with the courts, but I have a question and this is something – I am sure that minister can answer it and probably give me direction on it, or someone across the way. If I make a complaint to a commissioner about some information being denied, how would the commissioner know what has been in front of Cabinet unless he gets access to it and he goes in? How would he know? You might say, well, I do not have to go in, but isn't it better for the commissioner to say you must go in to ensure that whatever information is there may be given to the individual. You would not know –

AN HON. MEMBER: (Inaudible).

MR. JOYCE: If he feels it, but the commissioner may not know what is in those documents. If you say he shall, you know he goes in, but if he says oh well, I have decided I am not going to go in and there may be information there that he does not know – I am looking for someone to explain that to me, Mr. Chair. This is very important.

For example, Mr. Chair, and I use anybody in this House, if you are making a request – I said it earlier – to your bank manager because your mortgage is not proper and you have a chance to lose your house, should you have the right to say you shall go in and look and find out what is going on, or you may, and leave it up to him?

My question to the bank manager would be: Did you have all of the information in front of you or did you go in and look at the information? Because if he just says I may go in, he may not get to the information that I do not have, he does not have, but somebody else has somewhere in the system, Mr. Chair.

When you say the word "shall" that means he goes in, looks at all of the documents, and the only way to know for sure what is available is to go in and look at all of the documents. That is the only possible way to know, Mr. Chair, is to go in and look at all of the documents.

It amazes me why members opposite, who are reasonable, do not say if a request comes up – because I am sure now, Mr. Chair, after the reports that we had yesterday there are not thousands and thousands and thousands of requests being put in. We know that is not correct now. We know that, Mr. Chair. We know there are not thousands and thousands and thousands, Mr. Chair. We know now that the requests that are put in, some of them may be frivolous, but the numbers of requests are not out of proportion in Newfoundland and Labrador.

If the requests are not out of proportion out of Newfoundland and Labrador, I am pretty confident that the requests that are going to be made to look at Cabinet documents, the information pertaining to some individual, are not out of proportion. I am willing to bet.

AN HON. MEMBER: (Inaudible).

MR. JOYCE: I say to the minister I am just thinking about Newfoundland and Labrador. Because the way it was presented to us was that we had these thousands upon thousands upon thousands of requests. We know now that it was not thousands and thousands and thousands of requests. I am sure, Mr. Chair, if we had the information here in front of us, how many requests went and looked for the Cabinet information, I do not say there are a lot.

My question is: If some individual wants to take this here and push it to make sure to not only have their rights protected and not only being told, but to ensure the confidence in that person, that my rights are being protected, if they are being protected, they should be able to stand up and say yes, everything that was done.

I still ask any member opposite: Can you tell me what is in the piece of paper outside the commissioner's office if you do not go out and look at it? You will not know. You can say: Well, I may be able to go look at it. Until you go in with certainty, haul out the documents in front of you, and say here is what is in the documents, you cannot say for certain. That is why we need this word "shall". It is all across Canada. It is law. In the courts, the judge uses shall.

Mr. Chair, one of my lawyer friends, if I can find it, gave me a few terms with the legalities of it. Mr. Chair, it is a part whereby you look at it and when you say shall, it is mandatory. When you say may, it is permissive. Shall is mandatory.

I feel very confident, Mr. Chair, that if I –

MS SULLIVAN: (Inaudible) look at both sides and weigh it out.

SOME HON. MEMBERS: Oh, oh!

MR. JOYCE: I hear the Minister of Health saying you have to look at both sides and weigh it out. I agree – I agree with you 100 per cent. That is why you should have an independent body to go in and let that person make the decision, Mr. Chair, not have that person make a decision and not be inside the Cabinet room and have that information in front of them.

I ask any minister over there, and I ask the Minister of Health: Would you make a decision unless you had all the information in front of you? Would you do it?

MS SULLIVAN: I certainly would not.

MR. JOYCE: The minister just said, and I do not know if I can say it: I certainly would not. I agree with you, and I believe the minister that she would not do that. So why should we ask the commissioner –

AN HON. MEMBER: (Inaudible).

MR. JOYCE: Of course she would not. Now we are starting to get somewhere, Mr. Chair. We are starting to make progress here because the Minister of Health just said: Of course you would not; no one would. So why should we ask the commissioner to make a decision on information he has not seen?

AN HON. MEMBER: (Inaudible).

MR. JOYCE: He has to go look at it, I agree. That is why we should say he shall go look at it if someone makes a request. I agree with the Minister of Finance he can go look at it; that is why he shall. The Minister of Finance as a legal person, as you always said we always hear people have to perceive that they have justice.

Mr. Chair, I have not gotten back to the legal cost of once when I had to represent people in courts in Newfoundland and I will get back to that later. I just want to explain to people, and I hear they could take it to court. I am going to explain after, Mr. Chair, some of the legal costs that you take through court and why I feel that this amendment is so important.

I know the Minister of Health and I just get back to her point, she said no, no one would. I agree so we are making some progress here. The Minister of Health finally agrees that no one should make a decision unless they have all the information in front of them. I ask you: If I put in a request to the commissioner, how can the commissioner make a decision without going in and looking at the information? I ask any hon. member across, Mr. Chair, to stand up and explain that.

Mr. Chair, once again if you are in this hon. House of Assembly and if you are Chair, would you make a decision unless you read O'Brien and Bosc, if you never read Beauchesne's? Of course not, that is so important to our fundamental – of any rights of individuals, is that not only do you get the rights but you have to make sure you perceive to have all your rights, and this is a prime example. I am some glad the Minister of Health said that, Mr. Chair. Of course you would not make a decision unless you have all the facts and the information in front of you. I agree and I do not think she ever would.

Mr. Chair, I will be back talking about the cost of the courts from personal experiences. Thank you very much.

CHAIR: Order, please!

Before I acknowledge the next speaker, I just would remind hon. members that we are debating another proposed amendment to clause 6 that relates to deleting the word "may" in the proposed subsection 18.(3) and substituting the word "shall". We have been debating that amendment now for approximately ninety minutes. I would encourage members to ensure that their comments are both relevant and also to ensure that they are not repetitious. I ask members for their co-operation.

The hon. the Member for The Straits – White Bay North.

MR. MITCHELMORE: Thank you, Mr. Chair, for the opportunity to speak to the amendment put forward on clause 6 of the bill, which does request to delete the word "may" and replace it by "shall".

I think this is quite a good move because it really enhances the powers of the independent body to protect the House, protect the integrity of the House and the people of the Province, certainly not diminishing it by putting in shall review. If somebody makes a request for information to any department and if it is determined that it is a Cabinet record, then it is refused; but, if you do not have that review by the independent body, that extra oversight, then we have to know what are the protocols because this would slow down the process with the option of may.

If I file a request, or if an individual in Newfoundland and Labrador files a request for access to information and it goes through a period of time where there is a thirty-day passage and then they receive documentation that this request has been refused because it is a Cabinet record by a head of a body, if that is the case, I would like to know why then as it is optional.

Automatically, if it is going to be rejected, then it should be reviewed by the independent body which has the integrity of the House in place. They are the independent body and it would speed up the process. If the department head knows that they are going to refuse information, if they automatically had the process that the independent body reviews it, the commissioner, and information is sent out to the general public saying the request is refused, then it would also comply with a letter from the Office of the Information and Privacy Commissioner saying that it was reviewed and these are the reasons why and highlight that. Then highlight the options for appeal, making sure that every citizen has the absolute opportunity when it comes to looking at if it is possible to receive access to the information or not.

If it is optional, as it is put in right now, they may review it. Citizens may just clearly accept that this information that is stated by the Cabinet record or the public body saying that this is something that we do not want to share, and they have that full authority to say that.

A number of people out there in the general public would most likely accept that, but the information may be made available. It may be something that is quite acceptable, and that is why if you have shall it is going to enhance the process, enhance the flow of information when it comes to the process. If information is denied, then the option for the Information and Privacy Commissioner to review that, make that assessment and then documentation go out to the person who filed the request, it seems like that is a much better approach because then they know that the information was requested. It was thoroughly reviewed by an independent body. Here are the reasons why it cannot be released. Then the option is if they want to appeal and if they have to go through the court system. As it has been stated before, everyone knows in this system that the court system is quite expensive.

There are situations in the Province where we look at offices that are independent, such as the Office of the Citizens' Representative, and they are able to review a report but they are unable to make a call. Such as in a case with – we look at notes and deliberations and things that were made in a swift case such as the air ambulance removal and relocation, and being able to access documentations there. If there is no formal review automatically made by the commissioner, then the option can be just deny, deny, deny. That is certainly not acceptable to basically send the option of the courts to the everyday person. It seems like an area where we do not want to go; it is just not affordable.

When it comes down to it, the Office of the Information and Privacy Commissioner is there to protect the rights of the people of the Province of Newfoundland and Labrador. They conduct investigations based on the complaints from the citizens relating to the collection, use, or disclosure of personal information. They also review the failure or refusal by the head of a public body to correct personal information that is in its control.

Rather than make it optional, let us have it mandatory so that you shall review that information. I think it is not a request that is absurd. I mean if I was making a request to any public body in Newfoundland and Labrador and wanted information and they just denied that access to me, they basically can stamp it and say no, that information is not available to you. Then I may not have knowledge, I may not – we know how some government documentation and form is there.

Is the appeal process for the Privacy Commissioner clearly outlined? Is it made easy? Is it made informative to show that this is an independent body, they will do this? Does it give them any ability to say to the person who is requesting it, this is a good process, this is something, and this is another option for me rather than seeing that there is no other recourse for me.

I do think that if it was shall, you would have a better process because the protocols would be enhanced. It may delay some of the information but if it is refused automatically or denied, then the person would have received a letter right away saying that it was denied. Rather than sending that direct letter, why not have the Office of the Information and Privacy Commissioner to review it. Documentation can also say: In the current state, your information has been denied. It has been automatically referred to the independent body here. They will determine if it is accessible or not and go through their resources. It could also outline in that original letter that you have the process to appeal to the courts, if you feel this information is absolutely vital.

I think I have made my points here on this amendment that has been put forward. I think it is a very clear amendment that we need to enhance the powers. We truly do need to enhance the powers of the independent bodies that we have to certainly protect the integrity of the House, and it is clear that having it continue to be optional is just not acceptable.

With that, Mr. Chair, I will allow other speakers to make further comments.

CHAIR: The hon. the Member for Bay of Islands.

MR. JOYCE: Thank you, Mr. Chair.

I am just marking down the last note there, Mr. Chair.

Once again, I am going to stand just for a few minutes. I have to go back to the minister who stands up and gives a reasonable argument for his discussions in here. Again, I cannot see how the average person, on this amendment, would ever disagree with someone saying you shall go look at the information that I asked you to request. It is beyond me, Mr. Chair, how that was done.

It came to my mind – and I used the word draconian before on this legislation, this bill, by not allowing the commissioner shall. In 1929 the Great Depression started. This Bill 29, Mr. Chair, is going to start the Great Depression on the media and the public from the lack of information. This is going to be now such a depression on information, lack of information, and this is going to be a sad time.

I really feel, Mr. Chair, in Newfoundland and Labrador that we are going to be deprived of all the information that is rightly ours, that we all can get, it should be in the public domain, we are trying to get the information that we need. Mr. Chair, that brings me back to the Great Depression, 1929; this Bill 29, the depression and the suppression of the material and the information that should be out in the public domain. I just want to make that because I just feel that point.

Mr. Chair, I hear the minister – and you may have to grant me a bit of latitude on this. We are talking about the courts in this bill. I heard the Minister of Finance stand up on several occasions and say the person could take it to court.

MR. MARSHALL: The commissioner will take it for him (inaudible).

MR. JOYCE: Will take it for him, or the person can take it to court.

Let me ask you a question, Mr. Chair, I remember back in 2003 with the election – and the Minister of Finance is well aware of this – I went to the commissioner about information about the election out in the Bay of Islands in 2003, Mr. Chair.

Guess what? Do you know what I was told, Mr. Chair? Do you want me to tell you what I was told? Oh no, no, that does not affect us because we are not really involved with it yet. Guess what, Mr. Chair? I had to go and represent all the DROs and deputy DROs in the Province of Newfoundland and Labrador for the District of Bay of Islands, Mr. Chair. Do you know why? Because the government said oh no, we cannot look at that information; we cannot get involved there.

Guess what, Mr. Chair? I am all right with it because I believe in the rights of individuals. The Minister of Finance is well aware of this because he was on the management committee at the time. Guess what, Mr. Chair? For me to represent the DROs and the deputy DROs, it cost $14,000 back in 2003.

When we all stand up here and we all –

MS JOHNSON: (Inaudible).

MR. JOYCE: If the Minister of Child and Youth wants to stand up, stand up. If you want to say something, stand up. You are always there talking, stand up. You were not there; I was there.

CHAIR: Order, please!

MR. JOYCE: The Minister of Finance was there, Mr. Chair.

When I make this amendment this would make sure that the people, the average – when the government goes off and says oh, we are talking about going to the courts, take it to court. Mr. Chair, I did for those DROs for the rights that they had, for the people of the Bay of Islands. Guess what, Mr. Chair? It was $14,000.

Mr. Chair, this amendment here that I am talking about gives everybody in Newfoundland and Labrador the sense that we are going to go ahead and we are going to ensure that you look at all the information. Ensure, Mr. Chair, that not only are your rights going to be taken of, your perceived rights are going to be taken care of, as we always hear that you have to make sure that people – and the same thing in the courts and I know the Minister of Finance was in the courts for a number of years and has a distinguished career there. Mr. Chair, (inaudible) you have to perceive justice was served. You have to perceive. I know the Minister of Finance is saying that is right and I know he believes that, Mr. Chair.

My question, Mr. Chair, and again I speak on behalf of the ordinary Joe out in Newfoundland and Labrador. My question is: If I put in a request to a commissioner, shouldn't I perceive that the commissioner went in and looked at every bit of information? When the commissioner comes back to me, who we all have confidence in, can I feel confident and have the perception that every piece of information put in front of that Cabinet, every piece of information that was talking about me, was looked at? The perception was then: Okay, there is nothing to be done.

The Minister of Finance agrees with me saying that justice has to be perceived to be done properly also. Why can that not be extended outside the courts to the individual out in the street, the over 500,000 Newfoundlanders and Labradorians, to have the same confidence that when you put in a request not only are your rights going to be taken care of, but the perception that your rights are going to be taken care of, Mr. Chair, like the courts of Newfoundland and Labrador, like the courts in Canada, and like the courts all across our British parliamentary system.

Mr. Chair, this amendment goes right to the heart of justice. The Minister of Finance would agree. When the Minister of Finance says you are correct when you say that justice has to be perceived to be done properly, right to the heart of justice in Newfoundland and Labrador – this goes right to the heart of every individual.

Mr. Chair, my mother used to always use a term – I will never forget it – except for the grace of God, there goes I. Except for any of us in this House, anybody in Newfoundland and Labrador, Mr. Chair, could find themselves in the position where they may have to take something to court and to feel so strong –

CHAIR: Order, please!

I have listened carefully to the hon. member's remarks for the last seven minutes. While the stories related to events 2003, the Great Depression, and going to court are all very interesting, it really does not relate to clause 6 of the bill being amended by deleting the word "may" in the proposed subsection and substituting the word "shall".

I would ask the hon. member to relate his comments to the proposed amendment to clause 6.

The hon. the Member for the Bay of Islands.

MR. JOYCE: Thank you, Mr. Chair.

In my opinion, they are relevant. I respect your ruling, but I was talking just then that except for the grace of God – as Mom used to always say – there goes I. Any person in Newfoundland and Labrador could find themselves in a situation where they have some pertinent information, Mr. Chair, that may have been in the government domain that they cannot get access to, the commissioner is not sure if he has seen everything, and we have to ensure that their rights are done and not only done, but are perceived to be done –

CHAIR: Order, please!

I have listened to the member make comments regarding the rights of individuals and the perception of those rights. I have heard those comments a number of times in the last eight-and-a-half minutes. I would ask the member to do his best to avoid being repetitive on the discussion of this particular amendment.

The hon. the Member for Bay of Islands.

MR. JOYCE: Sorry, Mr. Chair, but I was just passing on some of the comments that you go out and you get phone calls from individuals about it.

I would just love, on this act, for someone to stand up on the government side in a debate, this is not a major disruption, in a debate process here in Newfoundland and Labrador, and explain to me for the very few requests that I assume that we get at this magnitude, why we cannot say, when it comes in, the commissioner shall look at the information if the request is made. We know now that there are not as many requests as we thought there were at first. If someone can explain to me why we cannot say, commissioner, you shall look at it – as the Minister of Justice said that we have to make sure all our rights are perceived to be.

I will just sit down and I thank you for your indulgence, Mr. Chair. I am going to sit down and hopefully someone can get up and explain to me why just that one word that would save the rights and give the people the confidence that if I put in a request into government that all the information, all across, to sit down and say no, the information is not there.

CHAIR: The hon. the Member for Signal Hill – Quidi Vidi.

MS MICHAEL: Thank you very much, Mr. Chair.

I did not think I was going to speak to this amendment again, but there were a couple of comments by the Minister of Finance that I wanted to respond to. Of course, we are talking about the amendment which changes one word in subsection 18.(3) of Bill 29, changing may to shall.

When I talked about the need for doing this because we need oversight of decisions made by public bodies, if the commissioner gets information that somebody has been refused a request by a public body and thinks that it was not the right decision in determining what is a Cabinet document, I was not saying that we do not trust the public bodies, we do not trust the different agencies, we do not trust the departments and we do not trust the individuals in the roles; however, we do know that systems can fail. There can be systemic failure.

Sometimes things that go wrong inside of an organization or a public body are systemic and sometimes they are individuals. We have had our own example here in this House of Assembly where we had the most unfortunate circumstance where we found that our system, in terms of the use of money and resources in the House of Assembly, the system was inadequate, the system failed and individuals maybe took advantage of that system that was a failing system. Some of them actually were found to be guilty of having done that.

What I am saying is that we have to make sure that if a public body will not disclose a Cabinet document that they have made an accurate decision. That the person who should make that determination is the officer who has been given the responsibility for the external oversight of information and privacy, and that is the commissioner. It has nothing to do with not trusting our systems; it has to do with vigilance. It has to do with being vigilant about how public bodies are operating, whether that public body is a school board, whether it is a municipality, whether it is a health authority, whether it is a Crown corporation, whoever the public body is – and it could be an entity that has been set up by the public body if this bill goes through, which is good actually. That is one thing in the bill I absolutely agree with: Having the words in there about entities that are set up by public bodies are also governed by the same rules. That is a really good part of this bill and absolutely essential.

It is not about not trusting; it is about vigilance. Government has a responsibility with regard to vigilance, and that is why we do have the OIPC. That is why we have the commissioner's office, is because of its vigilance with regard to people's right to information and protection of their privacy. That is exactly why it is there.

That is all I am asking of government, is that we recognize the responsibility for vigilance. By putting in shall instead of may, we are ensuring that vigilance because in any case where a public body refuses disclosure of a request for what could be deemed a Cabinet document that the public body is doing the right thing.

One of the realities is – and it is something that comes up in the report from Mr. Cummings – we have not had adequate training of bodies in the Province with regard to what is a request for information, what is an FOI. More training is needed and he actually has recommendations with regard to training. Public bodies may be not making correct decisions, simply because they do not know because they have not had adequate training.

We also have some public bodies that do not have adequate resources. For example, a lot of our municipalities do not have the resources to deal with requests for information of this nature. Not only do they not have the training, they do not have people to be able to do it. Consequently, they may make the mistake not deliberately, not knowingly, but simply because they do not even know how to do this. It is government's responsibility to make sure that they have the help in doing it.

Having the commissioner in a position where the commissioner knows that he or she should, under the law, investigate this stuff is not investigation for the sake of hand slapping, that very investigation can be training for the public body that really is dealing with something for the first time maybe. When we are saying public bodies here, we are talking about everything from bodies that can be thousands of people down to bodies that could be less than a dozen.

It is government's responsibility to have vigilance. Let us realize that this is not just about hand slapping or trying to find wrong or trying to find neglect. It is trying to make sure that the system works correctly. By putting in shall, then the commissioner knows that the commissioner's role is to do this, and that the purpose for doing it is to make the system work for the good of the individuals in the Province.

I really believe this is something that government needs to think about, that the ministers need to think about. It is not here trying to punish – I will not repeat that any more. To say that putting in shall instead of may is vigilant, it is wise, and I cannot see what goal government has that would stop them from changing may to shall.

Thank you, Mr. Chair.

CHAIR: The hon. the Member for Torngat Mountains.

MR. EDMUNDS: Thank you, Mr. Chair.

I have just a few more comments on section 18, Mr. Chair, and certainly relevance to this amendment. Let us bring some different situations into this case. At times, there is a lot of information that cannot be released electronically, Mr. Chair, or sent through the mail. It is sensitive information, but it is relevant. From time to time, groups have to travel to the government, Mr. Chair, and certainly that is no strange circumstance in the region that I represent.

The laws of this Province do extend to sometimes overlap with other governments in our Province. I have come here, as a representative of other governments, to meet with Cabinet ministers and with heads of bodies, Mr. Chair, that represents the views of the Province on a whole. Sometimes, the information must be lobbied for timeliness and to be acted on. This, Mr. Chair, is without the precedent of having to go to trial. We are in a somewhat complicated situation where you have, at times, three levels of government that are trying to make decisions for the people that are represented by the levels of government.

Take, for example, the Nunatsiavut Government. The Nunatsiavut Government has entered into three party agreements: the Nunatsiavut Government, the Federal government, and the Provincial government, Mr. Chair, and certainly there are times when information needs to be accessed. I would just like to say that having a commissioner who is mandated to review decisions, sometimes, can result in timely decisions and cost-saving decisions. I would like to see subsection 18.(3) contain the word "shall" as opposed to the word "may", where a word can certainly expedite the circumstances that would save money to all levels of government.

Thank you.

CHAIR: The hon. the Member for Cartwright – L'Anse au Clair.

MS JONES: Thank you, Mr. Chair.

I just wanted to rise to respond to a couple of the comments that the Minister of Finance made when he was standing in the House. It was in relation to the amendment that is currently on the table under clause 6, section 18.(3), Mr. Chair. When the minister spoke, he said that the only time that you would really have to go to court is if you were dealing with what is termed as an official Cabinet record.

Mr. Chair, that was a very important point that he made, because what is telling is how a Cabinet record, an official Cabinet record, has been defined within these amendments. We talked about this earlier in the day, but when I talked about making this amendment under clause 6, section 18.(3), the minister was quick to point out that it was unnecessary because, in his opinion, the commissioner still had some discretion and was still independent in being able to make that particular decision. We certainly feel, Mr. Chair, that is not necessarily the case, as you look at the different clauses throughout this bill, and that is the reason that we are proposing this amendment under the section that we are.

He also went on to say that the only time that they would actually have to go to court is if it was in the case of an official Cabinet record. Well, Mr. Chair, what is an official Cabinet record? In order to understand the full point and scope and perspective of the amendment, I think the minister made a good point. He made a good point in defining official Cabinet record. Let us point out for the record now what that exactly is, and then we will tell you how restrictive it can be. Because you have to realize that the full scope of the bill has now been expanded. The definitions are broader, in terms of what can be protected.

An official Cabinet document, Mr. Chair, is no longer just those three or four pages that make up the Cabinet paper. It is no longer that, Mr. Chair. An official Cabinet document, an official Cabinet record, now includes everything from advice, from recommendations, policy considerations – whether they were used or not use, Mr. Chair. It does not make any difference. Even if it was intended to be used, it now becomes a part of the official Cabinet record. That is the point that we are trying to make.

It also was broadened to include a whole lot of other things. Everything from agendas, from minutes, from proposals, from all of these kinds of things that not only would have been used as part of this Cabinet record, but even if it was intended to be used in any way. Therefore, Mr. Chair, when the minister says that you only have to go to court if it is an official Cabinet record, well right now, under the amendments in the act, that includes pretty much everything. That includes pretty much everything, I say to the minister, and that is the reason that we are bringing this in. Because we know that it is not practical, it is not feasible, it is not sensible for you to have to go to the courts to be able to access every single scrap of paper that the government deems may or may not have been affiliated with what they call an official Cabinet record.

In addition to that, Mr. Chair, the Clerk of the Executive Council, the Deputy Clerk, the Secretary of the Treasury Board, can all look at other documents such as discontinued Cabinet records and supporting Cabinet records and also make a ruling that they are official Cabinet reports as well. Isn't that right, Minister? They can certify that they are. They have the authority under this new bill now to be able to do that. So, your argument to me in saying that this amendment is not necessary was to say to me because it is only official Cabinet records in which you will have to seek the courts to be able to access.

Well, all I am doing is pointing out, Mr. Chair, to the minister that official Cabinet records now have been broadened, they have been more defined, they take in a whole contingent of new information that would have not originally been included under the old sections of the act. In addition to that, it gives authority to the Executive Council through the Clerk, the Deputy Clerk, and the Secretary of Treasury Board to look at all of the other sections or records that are not directly referred to Cabinet, but it allows them to now certify them. In certifying them they make them official Cabinet records, which again restrict them in what the commissioner may do. Therefore, it leaves you one option, and that is the courts.

That is the reason we are saying that the commissioner shall have the ability to do this, because it gives them the freedom and flexibility to uphold what is in the public interest of the people of this Province in making those decisions.

I do not doubt that the minister, the Cabinet, do trust the commissioner. I do not doubt that, not for one minute. They appointed the individual to be the commissioner for the Province. Obviously, they trust the commissioner. We trust the commissioner. What the Cabinet failed to say is that they do not always agree with the commissioner and they do not always uphold the decisions of the commissioner. We have seen evidence of that in the Province – we have seen evidence of that.

So, if there is a case, Mr. Chair, whe