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Civil servants’ emails not cabinet confidence

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A federal court officer has rejected an attempt by the federal government to keep emails between civil servants out of court on the basis they are cabinet confidences.

The decision comes in the latest round of a battle between Winnipeg-based Tribal Wi-Chi-Way-Win Capital Corporation and Aboriginal and Northern Affairs Canada over a program subsidizing banks which give loans to aboriginal businesses. TWCC wants in on the program. It says it was unfairly kept from applying and has gone to court to seek a remedy. None of the five banks which Canada signed up for the subsidies were aboriginal lenders. TWCC believes the program is unfair competition to aboriginal lenders and unfairly kept aboriginal lenders from qualifying.

Ottawa has said the program came into being because mainstream banks weren’t giving money to aboriginal businesses so the government offered subsidies to try and make the aboriginal business loans more palatable to the banks.

The Privy Council Office (which is essentially the head office of the public service and is supposed to be -- emphasis on supposed -- non-partisan) filed a claim in court last spring claiming 15 documents, e-mails between civil servants, were to be excluded from evidence because they are subject to the confidences of cabinet. If this were an access to privacy request that would probably have been the end of it. There are no real ways to get around it when PCO says sorry, cabinet confidence. But this isn’t ATIP. This is court.

And federal court officer Roger Lafreniere said he was pretty sure the emails aren’t cabinet documents so they are admissible as evidence. PCO does have the chance to make a new argument about why the emails should be kept secret.

It has until Oct. 1 to come up with a better argument. This is the second time the court has told the government it can’t keep evidence out as cabinet confidences. Previously it was briefing notes to the minister which were rejected as being confidential documents.

The case around the loan program is interesting.

But the case around what is and isn’t secret documents is equally important.

Governments claim to be transparent and open but you’d probably be amazed at how many things they get away with keeping private simply because they want to. Whether it is information that might be embarrassing to the government, or it gives a glimpse at how the government and its ministers are thinking about certain subjects, or it produces information about a program before the government has the chance for a splashy press conference to release it, or many other such reasons, information the public should be able to get is regularly withheld anytime PCO slaps it with a cabinet confidence marker.

Unless information would threaten our safety, or release private information about an individual, there are few other reasons to keep information from getting out. Political desire is not one of them.


-- Mia Rabson / The Capital Chronicles

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