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ATIPPA exemption coming for Muskrat Falls Inquiry

Kate O’Brien, co-counsel with the Muskrat Falls Inquiry, responds to questions from reporters from The Telegram and NTV outside of the House of Assembly following a Management Commission meeting on Thursday morning.
Kate O’Brien, co-counsel with the Muskrat Falls Inquiry, responds to questions from reporters from The Telegram and NTV outside of the House of Assembly following a Management Commission meeting on Thursday morning. - Ashley Fitzpatrick

Management Commission vote splits along party lines

The House of Assembly Management Commission has voted to recommend cabinet approve an exemption to the Access to Information and Protection of Privacy Act (ATIPPA) for the Commission of Inquiry into the Muskrat Falls Project.

The vote was held Thursday morning and the Liberal cabinet is expected to ultimately see it put in place.

The exemption is temporary. It will be valid until the House makes a change in the access to information law — adding, or rejecting, a permanent exemption at some point during the spring session.

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The temporary measure is set to expire May 31, 2018, at the close of the next session.

Should a permanent exemption be brought in, inquiry records will still become subject to the ATIPPA, but only after the commission of inquiry is finished its work and its records are transferred to the care of a government department, likely the Department of Justice and Public Safety.

The final report from the inquiry is due at the end of 2019.

Not waiting for House of Assembly

The ATIPPA exemption was brought to the Management Commission because the House of Assembly is not currently in session and Inquiry Commissioner Richard LeBlanc put the matter forward as an urgent request.

LeBlanc wrote to assistant deputy minister in Justice Kendra Wright on Dec. 21, 2017, or roughly a month after his appointment as Commissioner, making the request.

Justice Minister Andrew Parsons, in his role as Government House Leader, put the request on to Speaker Perry Trimper on Jan. 21, who then put the request on to the Management Commission.

The process being followed is as set out in the act.

The Management Commission’s debate and vote included members from all parties represented in the House: Progressive Conservatives Paul Davis and Keith Hutchings, Lorraine Michael of the NDP, Liberals Mark Browne and, by phone, Andrew Parsons and Siobhan Coady, with Brian Warr present as chair.

The vote split along party lines, with the motion to send it on to cabinet made by Browne and seconded by Parsons. Warr, as chair, broke the ensuing tie in the vote.

“Access to information is a very serious matter and it’s not something we as legislators should take lightly,” Davis said ahead of the decision, adding the debate and decision on an exemption to the act should be left to the House of Assembly as a whole.

The House is scheduled to sit again on Feb. 26.

Michael also said it was a serious decision for more than just the Management Commission. She spoke about the public’s demands for openness and transparency, arguing against any delay in the release of information to the public.

Needed for inquiry’s progress

Inquiry co-counsel Kate O’Brien and Barry Learmonth, on hand to respond to member questions, noted the ATIPPA already contains exemptions for investigations in progress, including for law enforcement, but also public bodies such as the Citizens’ Representative and the Office of the Information and Privacy Commissioner.

“Simply stated, quality investigations cannot be carried out in public, as investigators really need to have the full freedom to explore avenues of investigation,” O’Brien said.

Without an exemption, she said, the inquiry would require an estimated four additional staff to respond, with added costs estimated at roughly $300,000 to $400,000.

And there was another reason — one Learmonth said was his main concern. That was in having information readily available to the inquiry, with solicitor-client privilege preventing even a first look for inquiry lawyers, before disputes are sent to the courts.

“Unless we get this exemption, our ability to do our job in a thorough manner will be compromised,” he said.

O’Brien later spoke with reporters outside of the House, where the meeting was held.

“It’s very important for the work of the inquiry,” she said. “The commissioner asked for this exemption because he was concerned that if he did not get it, our ability to conduct a thorough investigation might be hampered.”

Nalcor Energy co-operative

The inquiry had not received any access to information requests to this point.

  1. and Nalcor’s counsel have been very co-operative to date, I can certainly say that, but we’re all lawyers, we all know how these things go, and I think our concern that we would lose some or much of that co-operation was a very valid concern,” O’Brien said.

Looking ahead, while the inquiry won’t take on additional members solely to address ATIPPA demands, O’Brien said there is planning in place and more ongoing to handle the sheer amount of documentation coming in. The inquiry is prepared to add staff as needed to handle the workload.

O’Brien previously served as co-counsel on the Inquiry Respecting the Death of Donald Dunphy. She said the amount of documentation that inquiry was dealing with was, in comparison, “almost insignificant.” She has also spoken with a lawyer involved with the Cameron Inquiry, which looked at failures in hormone receptor testing, who suggested the amount of documentation faced in the Muskrat Falls Inquiry would be 100 to 1,000 times greater.

The Office of the Information and Privacy Commissioner weighed in on the ATIPPA exemption with a statement approving of the decision.

“This treatment would allow the Commission of Inquiry Respecting the Muskrat Falls Project to proceed more efficiently and expeditiously,” it stated.

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