Wednesday, May 15, 2013


New Brunswick's Legislature has seen a bevy of Question Periods dedicated to breaches of privacy law in recent years. As Bart Simpson once said, I can't help but feel partly responsible.

As Opposition House Leader some years ago, I was the lead interrogator when Minister Brenda Fowlie resigned over breaking privacy laws. Just so everyone remembers what was at stake in that case, I'm going to recap the facts here.

Liberal MLA Stuart Jamieson asked legitimate questions about a company getting permits despite not following local zoning laws, which Minister Fowlie oversaw as Local Government Minister. The next day, when he returned to the topic, she had clearly reviewed a new file --Jamieson's own. She released private information on his own home zoning applications which she thought might embarrass Jamieson, both in the House and in interviews after with media.

The Fowlie case was one of the more serious breaches of privacy law. The Minister was personally responsible for the breach, the information released was not trivial, and the intention was deliberate and malicious. Nor was there any mitigation, as she denied the actions were wrong and only resigned after an inquiry found that she was wrong. That is why, carefully and soberly, we insisted she resign.

A few weeks later, Social Development Minister Tony Huntjens blurted out the name of a patient in care during an interview. His intentions were entirely pure, but he had personally made the mistake and the information was again not trivial. He never faced a Question Period. He resigned immediately and was rightly praised for his honour and accountability.

There are good reasons for privacy breaches to require resignations. Ministers have access to a lot of sensitive information, and any of us given that power need an ongoing reminder of how great the responsibility must be. However, if we start demanding resignations over trivial or accidental breaches, soon we risk having people tune out when really serious breaches occur.

Oppositions seeking Question Period fodder need to remember this. The Tories, once in opposition, seemed to want to avenge their wounds on the issue of privacy law. First, when a bureaucrat lost data files at the Department of Health, they spent three days of Legislative time demanding the resignation of Health Minister Mike Murphy. The demand didn't pass the smell test. Murphy had no personal connection to the breach. He never would have even known the data file's whereabouts or existence. By the time Donald Savoie called the Tory charges "silly", the matter was closed.

The concept of ministerial accountability is important. In a policy sense, ministers are the final voice for their departments and must bear the burdens of office when policies, procedures and regulations (or the lack thereof) go awry. On matters of execution, however, the principle has evolved. There was a time where every mistake was deemed to be a minister's mistake. There was also a time when the whole bureaucracy fit inside the Government Members' Building at the Legislature. In today's large bureaucracies, this hardly makes sense. It strikes the public as foolish to insist that a minister must be lost if, say, one employee of thousands makes a mistake. Unless the mistake flows from the act or omission of the minister, it is now sufficient to competently take responsibility for addressing the matter and minimizing the chance of a second mistake.

Which brings us to Education Minister Jody Carr. Carr faces Liberal demands for his resignation because a member of his staff disclosed the test mark of a student. With all due respect to my former colleagues, to demand Carr's resignation over this cheapens the principle of privacy law and detracts from the ability of future legislators to punish truly serious and malicious breaches.

Jody Carr never had control of the information, had no means by which he could have known of or prevented the breach, and certainly has no malicious or political goal in the release. After a brief hyperpartisan stumble, he has acted appropriately in turning the matter over to an independent Commissioner so that the facts and his response can be scrutinized.

The Education Minister is no doubt paying the price for his own active role in prosecuting Bernard Leblanc, who resigned as Justice Minister when his own email account was used by a staffer to send communications that contained personal information about a third party.

Even in that case, Leblanc's decision to allow the staffer access to his account did create a vital link to the minister that doesn't exist in Carr's case. That said, Leblanc's voluntary resignation may not have been strictly necessary had he dug in. That he chose to accept a brief time out from cabinet speaks to the honour and dignity with which he served.

It is perhaps understandable that Liberals want Carr to answer for (in their eyes) overreaching sanctimony in opposition. But that is still unwise, for they are now promoting a standard of ministerial resignations that they surely should not apply if in government. Even if they think Carr overreached in Opposition, it follows that he must also be a cautionary tale for the perils of repeating the error.

Besides that, a huge reason for the loss of public trust in politicians is that MLAs get carried away in opposition and make demands of others they don't live up to in government. There are many legitimate issues in the Education portfolio -- underfunding, the lack of an Education plan, and micromanagement spring to mind --that with a little work, Liberal MLAs could marshall to keep the Minister hopping. One of those ways should not be demanding a resignation over this matter, as it cheapens the important vigilance of privacy law for the sake of a cheap headline.