Monday, May 23, 2011

Premier Brad Wall threatens striking teachers with talk of ‘massive layoffs’; Ministry of Education flouting freedom of information law

“Be it resolved that a Saskatchewan Party government will recognize and respect the valuable role that labour and the collective bargaining process have played and will continue to play in the growth and development of Saskatchewan.”
Saskatchewan Party Policy Resolution LB05-1 Recognizing the Contribution of Labour and Collective Bargaining in Saskatchewan

Premier Brad Wall respects organized labour so much that he recently threatened striking teachers with the spectre of “massive layoffs” if they didn’t lower their wage demands.

On May 5, thousands of members of the Saskatchewan Teachers’ Federation (STF) rallied at the Saskatchewan Legislative Building in Regina as part of what the Leader-Post described as “the first-ever, provincewide, one-day teacher walkout” to protest stalled contract talks.

At the time, the government was offering a 5.5 per cent salary increase over three years (which is less than the current rate of inflation in Saskatchewan) while teachers were asking for a 12 per cent increase over one year.

During question period at the legislature that day, Wall warned teachers about what happened in Alberta after that province signed a large contract settlement.

“The Alberta situation is instructive and important for us here because we want to avoid a settlement where our school boards would have to, because of budgetary constraints caused by a settlement, potentially look at layoffs,” said Wall, who encouraged the parties to return to negotiations. [Teachers make a statement (Leader-Post, May 6, 2011)]

The legislative Hansard shows that Wall’s scare tactics went further than what was reported by the Leader-Post and StarPhoenix.

In addition to job cuts, Wall said teachers in a number of school districts in Alberta are “working 20 per cent more in terms of teaching time or assignable time.” They are also seeing “teacher/student ratios that are too high.”

“They are high also in centres in this province. We want to see that problem relieved, not exacerbated,” Wall said, the implication being that the same thing would happen here if teachers secured a large contract.

Education Minister Donna Harpauer said after the rally that both sides needed to start talking again, and then promptly declared the offer of 5.5 per cent is firm. [Contract lessons: Teachers walk out of class for first time in Saskatchewan (Globe and Mail, May 5, 2011)]

So much for good faith bargaining.

Teachers have been without a contract since August 31, 2010. In April, they voted 95 per cent in favour of job action. Wages are the main issue in the dispute.

The STF and the government-trustee bargaining committee, which is comprised of representatives from the Ministry of Education and the Saskatchewan School Boards Association, returned to the bargaining table on May 17, however, talks broke down two days later.

The teachers’ federation has asked the government to increase salaries by about 5.4 per cent per year over three years, for a total of 16.3 per cent, or agree to binding arbitration -a third-party, legal settlement both sides would be obligated to agree to, the StarPhoenix reported.

The government and school boards rejected the proposal, refusing to budge from its offer of 5.5 per cent over three years, with a 1.5 per cent increase the first year and two per cent the next two years.

The STF says it would take an increase of 10.8 per cent for Saskatchewan teachers to be situated between the salaries of Manitoba and Alberta. During bargaining, the STF added a further 5.5 per cent in its demands to account for cost-of-living increases and moved to a three-year proposal from its original request of a 12 per cent increase over one year.

On May 20, the STF announced plans to strike on May 25-26.

“Our two parties are extremely far apart on direct compensation,” Gwen Dueck, spokesperson for the STF said. “It was disingenuous of the government to invite us back to the table without being willing to move off of their original proposal.” [Teachers plan strike (StarPhoenix, May 21, 2011)]

Meanwhile, officials in the Ministry of Education are busy flouting the province’s freedom of information law.

On May 3, an access to information request was submitted to the ministry for copies of any briefing notes regarding the STF contract negotiations since January 1.

Access and Privacy Coordinator Marie Syrnyk responded on May 6 acknowledging receipt of the request and to say that a review of “all the records” relevant to the request was underway. A formal written response in accordance with the Freedom of Information and Protection of Privacy Act would be provided as soon as possible.

Then, just four days later, the ministry advised that access to the records was denied.

“The reason for refusal of these records is that they provide information related to current negotiations with the Saskatchewan Teachers Federation and release of such records could interfere with current and future negotiations,” said Drew Johnston, the ministry’s access and privacy officer, in a letter dated May 10.

A follow-up email was sent to Johnston on May 16 asking how many records and the total number of pages was being withheld. The reply from Johnston later that day was stunning to say the least:

“I cannot tell you how many briefing notes, pages etc. have been prepared on this issue as we did not ask the branches of the ministry to submit them since we knew we wouldn’t be releasing them under the legislation,” he said. “This would have required several hours of work for staff searching, reviewing and copying documents knowing that they would not be released. As you can appreciate planning for and conducting negotiations requires confidentiality, particularly given that negotiations are continuing at this time. Thank you again for your interest in this matter.”

So it would appear the ministry lied on May 6 when it said that “all the records” relevant to the request were being reviewed.

Under section 8 of the province’s freedom of information legislation, government institutions are required to give access to as much of the record as can reasonably be severed without disclosing the information to which the applicant is refused access. When asked if this mandatory section was applied to the request, Johnston replied:

“From speaking with the people who prepared briefings on the matter, there would be very little left in as the notes go over what is offered and what is proposed and next steps. We cannot disclose proposals, analysis of those proposals, possible options, next steps or strategy. Some information such as what the STF is requesting in terms of pay and the response of the collective bargaining committee has been publicly communicated and is already publicly available. Some proposals have not been made public and would not be disclosed. In summary, once severing was done on a briefing note the only information left in it would have been what is already publicly available through media reports and other public communications.”

The short answer is no, the ministry did not follow the law.

The Office of the Saskatchewan Information and Privacy Commissioner publishes a document entitled Helpful Tips – Best Practices for Public Bodies/Trustees for the Processing of Access Requests (Sept. 2010). Page 6 states: “The public body/trustee has a duty to search for, identify and consider all responsive records. We highly recommend that public bodies/trustees thoroughly document their search efforts.”

The ministry failed to do this.

The freedom of information legislation contains two types of exemptions: discretionary and mandatory.

In his May 10 letter, Johnston cites sections 17 and 18, both discretionary, and 19, which is mandatory, as the reasons for denying access.

The ministry failed to exercise discretion. In Saskatchewan OIPC Report LA-2011-001 involving the City of Saskatoon, the information and privacy commissioner states:

“As we received minimal submissions from the City, it is unclear whether the City has exercised its discretion. However, based on the fact that of the over 500 pages of responsive records only eight pages were subject to any severing, while the rest were withheld in their entirety, it seems that the City did likely apply the exemptions in a blanket manner without regard for whether there are actual reasons or a need to withhold the specific document, or to sever portions and release the remainder of the document.”

The Ministry of Education did the same thing. It applied a blanket denial without properly reviewing the responsive records.

On the issue of discretion, Report LA-2011-001, states:

“[45] I also wish to make a note about the exercise of discretion. The exemptions applied in this case are primarily discretionary exemptions. That is, the language in the legislation is that the record “may” be withheld, as contrasted to “must” be withheld. Whenever a public body invokes a discretionary exemption, my office looks for evidence that the public body has properly exercised its discretion. A good discussion of discretion can be found in Alberta’s FOIP Guidelines and Practices:

“The exercise of discretion is not a mere formality. The public body must be able to show that the records were reviewed, that all relevant factors were considered and, if the decision is to withhold the information, that there are sound reasons to support the decision.

“Discretion amounts to the power to choose a particular course of action for good reasons and in good faith, after the decision-maker has considered the relevant facts and circumstances; the applicable law, including the objects of the Act; and the proper application of the law to the relevant facts and circumstances.

“The Commissioner can, however, require the head to reconsider a decision if it appears that the obligation to exercise discretion has been disregarded, or where discretion has been exercised without due care and diligence or for an improper or irrelevant purpose (see IPC Order 96-017).”

The ministry showed no discretion whatsoever.

On the issue of severability, Saskatchewan OIPC Investigation Report F-2007–001 states:

“[108] There is nothing in the procedure document that makes reference to severing certain parts and providing the balance of the document to the claimant which is a requirement of section 8 of FOIP. Severing requires a line-by-line analysis of the record.”

The Ministry of Education has already admitted that no records were retrieved and no severing took place. They simply didn’t feel like doing it. To them it was a waste of time.

Apart from responding within the required thirty days, the ministry has made a complete mockery of Saskatchewan’s freedom of information legislation.


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