The Gallant government is trying to block a CBC News request for new information about water contamination at Parlee Beach by using a rarely invoked section of the Right to Information Act about "frivolous and vexatious" requests.
The Department of Tourism, Heritage and Culture is asking Anne Bertrand, the access to information commissioner, for permission to disregard the request.
"We are concerned that the Applicant is using the access to information process and the resources of the Department to fish for information," Tourism Minister John Ames wrote in a March 24 letter to Bertrand.
Section 15 of the Right to Information and Protection of Privacy Act allows a department to disregard a request it considers "frivolous or vexatious." But the department must get approval from the information commissioner to do it.
The section is designed to allow departments to ignore repeated nuisance requests.
In this case, a journalist at CBC New Brunswick asked for August 2016 emails to and from Pierre Niles, who was the manager at Parlee Beach last summer. The beach is a provincial park and Niles was an employee of the department.
The period covered by the request is when the government says beach staff made mistakes in testing water samples, leading to fewer "poor" ratings than would have been the case.
After receiving the CBC request for the emails, a department official asked the reporter what subject she was looking for. The act doesn't require a requester to provide a subject.
The reporter offered to narrow the request to emails written by Niles between Aug. 15 and 31.
But in his letter to Bertrand, Ames writes that the reporter's supposed unwillingness to clarify the request would "suggest" that the request is frivolous and vexatious.
"We do believe that fishing for information is not a legitimate exercise of the right of access," wrote Ames, a first-term MLA who became tourism minister last year.
Environment minister praised CBC
That's a strikingly different tone from Environment Minister Serge Rousselle, who has repeatedly credited CBC's reporting for the province taking a second look at how Parlee Beach staff tested water samples last summer.
As recently as last Friday — the same day Ames was asking Bertrand to block the new CBC request — Rousselle again praised the news organization's reporting.
"I would love to give you answers" about test results in 2014 and 2015, Rousselle said. "I was very open on that: after CBC came up with its numbers, we decided to double-check what was happening and we explained to you what the discrepancy was."
The power to reject frivolous or vexatious requests is not used often by governments, but it could be getting more use in the future.
In 2015, a government discussion paper looking at how to update the Right to Information Act floated the idea of giving departments more power to use that section of the act.
The report suggested departments be allowed to make that designation themselves, without an independent review by the information commissioner.
At the time, Bertrand said it was "of concern to us, perhaps in a conflict-of-interest fashion, to have the decision-maker decide if the request is frivolous or repetitious."
The minister overseeing the review, Victor Boudreau, said at the time it should be up to the government to decide which requests it can ignore.
"Well, who else should it be?" he said. "There's time involved in putting this together. … There's cost involved in putting this together. And sometimes you wonder, is it really worth all this effort?"
Bertrand said at the time that there didn't seem to be a flood of frivolous requests. She said in her four years on the job until that point, she'd only had four or five requests from the province for permission to disregard requests.
"We haven't seen that traffic here," she said.
In a report on NB Liquor's handling of a right-to-information case last year, Bertrand said the government can't refuse a request if the applicant won't clarify or narrow it.
"It is important to say that when an access to information request is clearly expressed, the person who requests the information is not required to narrow or reduce the scope at the insistence of government," she said. "Such an approach borders on disrespect."