Information and Privacy Commissioner Michael Harvey has three concerns with Bill 22 – an Act to Amend the Management of Information Act – which the government has introduced to address the recommendations for a legislative duty to document.

As required by ATIPPA, 2015, the provincial government initially consulted the Office of the Information and Privacy Commissioner in fall 2022 on this draft bill. At that time we expressed three fundamental concerns:

• It exempts the entire Cabinet decision-making process;
• It has no independent oversight; and
• It does not actually create a mandatory duty to document due to the discretionary nature afforded to the Chief Information Officer.

The proposed Bill does not address these concerns. Given the importance of this subject to the mandate of the Information and Privacy Commissioner, we are sharing these concerns publicly to assist in the debate of the Bill within the House of Assembly.

A legislative duty to document would be a requirement in law for government to adequately document its decisions in writing. It was recommended in 2015 by the Statutory Review Committee of the Access to Information and Protection of Privacy Act (ATIPPA, 2015), led by former Premier Clyde Wells. More recently it was recommended by Justice Richard LeBlanc when, in his 2020 report of the Inquiry into the Muskrat Falls Project, he found that decisions regarding the troubled project were not properly documented in both government and in its energy crown corporation, Nalcor / NL Hydro. Former Justice David Orsborn commented on a duty to document in his 2021 report of the 2020 Statutory Review of ATIPPA, 2015 saying that “enough time has passed”.

The OIPC has great respect for the role that Cabinet Secretariat plays with respect to the management of the Cabinet decision-making process and agrees that a special role for it vis-à-vis Cabinet documents is warranted; however, Bill 22 excludes cabinet documents (whether in the custody of Cabinet Secretariat or not) from the duty to document altogether.

As it relates to independent oversight, Bill 22 would require the Minister to table an annual summary of compliance in the House of Assembly prepared by the Chief Information Officer, a government executive who serves at the pleasure of the Premier and reports to the Minister. This avoids implementing the Wells Committee recommendation to provide the Information and Privacy Commissioner, an independent statutory officer of the House, with authority for oversight of the duty to document. Many reports are tabled in the House of Assembly every year, often while it is closed, and receive little attention.

Finally, Bill 22 would require a duty to document to be implemented through a policy that the Chief Information Officer may develop, and could be amended – or discontinued – without even reference to Cabinet.

“A duty to document is critical to access to information – and ultimately transparent, accountable, democratic government,” said Commissioner Harvey, “While every day the Office of the Information and Privacy Commissioner works to get citizens the access to government documents to which they are entitled under law, there is nothing we can do when decisions are not properly documented. Bill 22 does not meet its potential as duty to document legislation. I encourage legislators to address these concerns with Bill 22 as it is considered by the House of Assembly. By addressing these gaps, we could continue to be the leaders in access to information in Canada”.

The Information and Privacy Commissioner is an independent statutory officer of the House of Assembly appointed under the authority of the Access to Information and Protection of Privacy Act, 2015 and with additional authorities under the Personal Health Information Act. Additional information, including how to contact the Office of the Information and Privacy Commissioner can be found at www.oipc.nl.ca.

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Media contact
Sean Murray
Director of Research and Quality Assurance
709-729-6309