P.E.I. PCs 'trying to hide behind' FOIPP Act, as opposition parties flex their power to compel documents
Liberal, Green MLAs wield threat of subpoena
P.E.I.'s opposition parties are using their combined majority on legislative standing committees to compel government records and information that otherwise might never see the light of day, flexing privileges they've had since committee rules changed in 2019.
In response, the governing Progressive Conservatives are citing the province's freedom of information laws — which don't apply to committees or the legislature.
And last week, PC MLA Brad Trivers was taken to task by the clerk of the legislature for exceeding his authority as chair of the standing committee on education and economic growth in an effort to prevent records related to the government's NHL sponsorship deal from becoming public.
All this comes after the education committee issued a rare parliamentary subpoena last year, forcing Tourism Minister Zack Bell to provide an unredacted copy of the sponsorship contract. Copies obtained by the Liberals and Greens through freedom of information had the dollar amounts blacked out.
Committees are now asking for more NHL records and for contracts between government and private long-term care providers. The PCs are trying to delay the requests, but with the threat of more subpoenas hanging over them.
Trivers had the committee clerk alter a letter the economic growth committee had voted to send to Bell demanding more records of the NHL deal.
Last Thursday, he told the committee he did that to have the documents come directly to him — rather than to the clerk, who is obligated to distribute them to all committee members — so he could decide whether the information should be made available to the public.
"This is information that should not become public," Trivers said during the meeting. "I'm going to look at it before I let it become public. That's my role as chair and that's my right as chair."
When the non-partisan committee clerk at the meeting, Samantha Lilley, told Trivers the change he was making unilaterally required a majority vote of the committee, Trivers replied "That's your opinion clerk, and I don't know where you're getting that opinion from."
That led to an at-times fractious rules debate that lasted more than an hour, and to an unscheduled and largely unprecedented appearance by Joseph Jeffrey, the senior clerk of the legislature, as a witness to set the record straight.
"The chair's authority is scheduling meetings and setting the agenda. And that's it," Jeffrey told Trivers.
"Your job is to facilitate the will of the committee… I just wanted to make sure that that was very clear. You don't have authority to change what the committee has decided."
FOIPP doesn't apply here
Jeffrey also made it clear, as did P.E.I.'s privacy commissioner at a committee appearance the following day, that members of the legislative assembly are not bound by the Freedom of Information and Protection of Privacy Act, or FOIPP, and that committees are within their rights to demand documents without redactions.
"That's to protect the ability of you as private members… to have scrutiny on decisions that government is making," said Jeffrey.
But there are multiple examples from the past few weeks where the PCs are suggesting the FOIPP Act should limit what committees members are allowed to see.
Health Minister Mark McLane cited FOIPP in a letter to the standing committee on health and social development on Jan. 21, saying his department would delay a request from the committee for copies of contracts between government and private long-term care operators. McLane said he was giving operators 30 days to respond on how their "third-party business interests" could be affected by the disclosure.
Members of the committee have said they want to see how conditions the government said it was putting on additional funds for private care operators — for example, that a set percentage be used to increase employee wages — are being enforced through the contracts.
PC MLA Robin Croucher equated making the contracts public to "opening up [the] books" of private long-term care providers.
But the Greens and Liberals pushed back, saying that letting Islanders see the contracts would not encroach on private business interests.
"If the private sector is prepared to take public money, then it must be prepared to endure public scrutiny," said interim Liberal Leader Hal Perry, who accused government of "trying to hide behind" the FOIPP Act.
Requests 'undermine' spirit of FOIPP, says Lantz
Education Minister Rob Lantz also cited the act after the education committee demanded a copy of a consultant's report on the province's plan for a universal after-school care program.
Lantz provided the full report, but wrote to the committee saying the recommendations were considered protected under FOIPP.
"Using a standing committee to bypass the legislation in this province appears to undermine the spirit and intent of the legislation," he wrote.
Records to go to closed meetings first
In the case of the long-term care contracts and the NHL records, the PCs won a small victory in each committee by passing amendments to require those records to first be examined in closed meetings before being made public.
But as long as Liberal and Green MLAs are prepared to vote together they will retain the power to request documents, make them public and issue subpoenas if they feel government isn't co-operating.
The rules for standing committees were changed after Dennis King's PCs came to power in 2019 to have two voting members from each party in the house on each committee.
You don't have authority to change what the committee has decided.— Joseph Jeffrey, senior clerk of the P.E.I. Legislative Assembly
While the change was made by the legislature itself, it reflected a commitment made by the PCs in the 2019 election campaign — part of a promise to give opposition and backbench MLAs more power, and have less power concentrated in the premier's office.
"The premier, he brags about the fact that the committees are set up the way they are," said Liberal MLA Robert Henderson Thursday, addressing Trivers.
"You can't have it both ways. You can't have… this sense of openness and transparency, and then if you get a motion or instructions as chair that you don't like, you can't just use your authority to say, 'Oh I'm not implementing this.'"
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