Winnipeg Free Press - PRINT EDITION

Redacted comment highlights flaw in law

Too much discretion for officials: lawyer

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A privacy expert says the decision to redact a cabinet minister's reference to the "ignorance of do-good white people" in a government email reflects a weakness in Manitoba's access-to-information law.

Winnipeg lawyer Brian Bowman, who specializes in privacy, access to information and social-media law, said provincial legislation gives government officials too much discretion in the release and redaction of certain documents.

"The legislation is not very clear. It's very subjective," he said in an interview Friday.

The Selinger government has landed in hot water over an email Aboriginal and Northern Affairs Minister Eric Robinson sent last November to a staffer who had raised alarms about the appropriateness of a fundraising event for the Osborne House women's shelter. The shelter had requested, under the province's Freedom of Information and Protection of Privacy Act (FIPPA), copies of government documents and emails to and from department staffer Nahanni Fontaine concerning the organization.

In a reply to one of Fontaine's emails, Robinson made the now-infamous remark. The controversial statement was redacted, although ineffectively, so Osborne House was able still to read it and tell the world.

While the remark itself has received the bulk of the public's attention, a second issue is whether the government had the legal or moral right to try to hide it.

In its response to Osborne House CEO Barbara Judt, the Aboriginal and Northern Affairs access and privacy officer said the "minimal amount of severing" in the nine pages of documents the department turned over was done in accordance with Sec. 23(1)(a) of FIPPA. In part, that section gives the government the discretion to disclose information if it could reasonably be expected to reveal "advice, opinions, proposals, recommendations... developed by or for a department or a cabinet minister." The section also permits it to refuse the release of documents relating to consultations or deliberations involving officers or employees of a public body or a cabinet minister.

The law does not categorically state such information cannot be released. It leaves it to the discretion of the access officer.

"I'm not a huge fan of discretionary exemptions," Bowman said. "If you're going to have those exemptions, then there should be absolute clarity about what are the circumstances where it can be exercised."

Opposition Conservatives this week criticized the redaction. They asked the premier whether Robinson's "do-good white people" remark was an opinion of government. "If it's not an opinion of government, then they can't fall back on that (reason to redact the statement)," Steinbach Conservative MLA Kelvin Goertzen said.

Conservative Leader Brian Pallister said cabinet ministers should be held to a higher level of accountability "than the average joe out there" for their statements.

"Any time that I see information redacted that is of this nature I have to ask myself, 'What was the purpose of redacting that? Was that information that was confidential in nature? Was it a clear outline of a government position on a specific issue?' And I think the answers to those questions is that it was not," Pallister said.

The letter of reply accompanying the documents released to Osborne House was signed by a senior department staffer, Angel Anderson, on behalf of access and privacy officer Justin Nedd. Neither could be reached this week for an interview.

A senior government official said the person who signs off on a FIPPA request is ultimately responsible for which documents are refused or redacted.

Cindy Stevens, deputy minister of the Department of Culture, Heritage and Tourism, which oversees FIPPA, said the government feels "it is not appropriate or feasible" for access officers to provide public explanations for their decisions. She noted, however, people who disagree with a decision can appeal to the provincial Ombudsman's office.

A spokeswoman for Culture Minister Flor Marcelino said this week the government plans no special review of the decision to redact the "do-good white people" line, nor does it intend to review the discretionary powers provided to access officials under the act.

larry.kusch@freepress.mb.ca

Republished from the Winnipeg Free Press print edition August 31, 2013 B6

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