The Broadcasting and Telecommunications Legislative Review panel’s surprising decision to keep the 2,200 public submissions secret for months has had immediate repercussions. Some organizations are refusing to disclose their submissions until the panel does and others have noted the missed opportunity for public discussion of a vitally important issue. To date, about 30 submissions have been posted, a tiny percentage of the total. The decision has had an impact on university courses and predictably created an information asymmetry with some companies cherry-picking who gets to see their submission.
The approach runs counter to the government’s support for open, transparent policy making processes and the standard used within the sector by the CRTC. When one report indicated that the secrecy was at the request of ISED Minister Navdeep Bains, chair Janet Yale issued a public statement:
Any suggestion of ministerial direction concerning the release of written submissions made to the Panel is flatly incorrect. All submissions will be published along with the Panel’s ‘What We’ve Heard Report’ to be released no later than June 30th. That decision was taken by the panel alone as is to be expected of an independent, arms-length panel. Interested parties are free to make their submissions public.
This represents a change in language from the panel’s own press release on the consultation, which stated “these written submissions will be publicly available after the deadline for submissions on November 30, 2018.” The release did not say submissions would only be available once the panel’s interim report was released and few reasonably thought that “after the deadline” was a half-a-year or more after.
I followed up with a request for an explanation of why the panel has chosen secrecy over public disclosure. The response in full:
The Panel wants to take time to read, review, and digest the submissions, and will make all submissions public when it releases the What We’ve Heard Report. Interested parties are welcome to make their submissions public and many have already done so.
Here is their initial statement clarifying:
January 11th marked the deadline for written submissions to the Panel – this is the extended deadline we set after accommodating requests for more time to prepare submissions.
The Panel members wish to extend our sincere appreciation to the 2,000 interested parties who took the time and dedicated the effort to prepare submissions.
In addition to the submissions, the Panel met with over 100 interested parties.
We will now take a period of time to review and evaluate these submissions, along with our other outreach activities. These inputs will form the backbone of our What We’ve Heard Report which we plan to publish no later than June 30th. At that time, all written submissions will also be posted on the Panel’s website.
This response doesn’t really answer the question since the panel can obviously “read, review and digest the submissions” while the submissions are public and being assessed by those interested in communications policy.
Yet the decision is more troubling for what it says about the panel (which, it must be said, brings decades of experience and has committed an enormous amount of time to this challenging work). Diverting from established transparency norms should not happen without a strong justification. In this case, at best the panel seems to suggest that public discussion, debate, or even rebuttals of submissions might distract from its efforts to engage in a fair assessment process.
This hardly represents a strong justification. First, such a response would be viewed as entirely unacceptable by CRTC commissioners, politicians, regulators, or government policy makers, who all frequently engage in policy review with a public record readily available (less redacted confidential information). If panelists do not want to consider public debate on submissions, they can mute the discussion on social media or ignore public postings and media coverage. Establishing a panel publication-style ban on submissions for months goes far beyond what is necessary for their assessment process.
Second, the panel’s report in June is only a “what we’ve heard” report, not the report’s actual recommendations. There will be no insulating the panel from public commentary about the submissions and perspectives in the period from the initial report in June 2019 to the final report in 2020. Indeed, if the panel has concerns about coping with public debate about submissions during the development of a factual report summarizing its meetings and public submissions, how will it handle the more critical phase that leads to its recommendations?
The submissions that are currently available provide a pretty wide range of perspectives, but without Bell, Rogers, Netflix, Facebook, the CMPA, dozens of other organizations, and hundreds of individuals, it is incomplete. The panel should reconsider its ill-advised approach and move to quickly release all submissions without further delay.