Manitoba needs crucial changes to FIPPA laws

Opinion

“Journalism plays such a critical role in our society in terms of upholding the freedom of speech, the ability of citizens to express themselves and, really importantly, to hold the powerful to account, including government.”

Manitoba Premier Wab Kinew uttered those words in a media scrum with Winnipeg reporters last November. It was shortly before his government announced plans to strike an all-party committee with the goal being to protect democracy, journalism and freedom of the press in this province.

That particular all-party committee made the rounds in July, and heard from various members of the media, including representatives from The Brandon Sun, Steinbach Carillon and the Winnipeg Free Press. The report from those public consultations is slated for completion by the end of October, but we wonder if the committee might consider yet another recommendation among the many it has already taken under advisement: the overhaul of Manitoba’s freedom of information and protection of privacy law.

Manitoba has been deemed to have among the most restrictive set of freedom of information laws of any province in the country, save perhaps Alberta, which made some “improvements” to its information laws last June.

The latest example of the hurdles Manitoba newsrooms face in extracting information from our province was typified in a recent investigation by The Canadian Press into the reasons why the former Progressive Conservative government rejected calls to search a landfill for the remains of two murder victims.

As reported by CP, the organization had obtained records from the province showing how senior bureaucrats had assembled a 13-page digital slide deck presentation for cabinet ministers on a potential search of the Winnipeg landfill in 2023. This was done in the weeks leading up to the Stefanson government’s decision not to search the landfill.

However, the province has refused a request by CP to release the contents of that presentation, which was finalized at the end of May 2023 and would have shown what civil servants told politicians about the search potential.

According to the CP report, the ombudsman’s office had noted in a recent report that the materials presented to the Tory cabinet included “proposals, views, analysis, questions and staff recommendations to brief ministers about response options to the recommendations in the landfill search feasibility study.”

For this reason, the office ruled that the Municipal and Northern Relations department was correct in rejecting the request by The Canadian Press for the material. Section 19 of Manitoba’s freedom of information law states that “discussion papers, policy analyses, proposals, advice or similar briefing material submitted or prepared for submission to cabinet” must not be made public.

Newsrooms in Manitoba and critics of government transparency alike have often complained about the wall of secrecy that seems to be built into Manitoba’s freedom of information laws.

A 2023 project by the Globe and Mail called Secret Canada noted that Canada’s access to information laws are supposed to ensure that “publicly held information is open by default.” And while each jurisdiction outlines specific instances where information can be withheld — personal information, business trade secrets, advice to cabinet and national security, for example — many jurisdictions have a “public interest override” stipulation that is there to ensure that even information that is covered by an exemption can be made public if it is important enough.

But as Secret Canada noted, “there is no public override in Manitoba,” which means that the public’s right to know important information is not taken into account when decisions on releasing information are made by the province.

And there are other problems.

Coincidental to Kinew’s comments last November, the 2023-24 annual report on the Freedom of Information and Protection of Privacy Act in Manitoba showed, according to a Free Press report, no progress on speeding up government replies to FIPPA queries, no record-collection fees being waived in the previous fiscal year, and that publicly funded authorities collected three times the total year-over-year fees to process requests.

“It’s a slow secrecy. They make people wait for it, until maybe they forget about it or until the information is irrelevant,” Kevin Walby, director of the Centre for Access to Information and Justice at the University of Winnipeg, told the Free Press at the time. “The more ‘slow secrecy’ goes up, the more (public) trust goes down.”

As the CP article notes, this secrecy is not permanent, as cabinet documents are releasable after 20 years in Manitoba. But in the case of the digital slide deck presentation, the simple excuse of “advice to cabinet” should not be good enough to prevent public understanding in the here and now.

If Kinew really wants to help media “hold the powerful to account,” he will consider making crucial changes to Manitoba’s FIPPA laws. Here are two that we propose:

First, revamp the current slate of FIPPA law with an eye to the inclusion of a public interest clause that could loosen up access to important government-held information.

And second, give the ombudsman the authority to compel a public body to release a record, instead of merely making recommendations.

Kinew has the opportunity to truly make his government, and potentially those that come after, more open and transparent to the public they serve.

It’s the kind of legacy Manitobans could support, and the kind of action that local media need.