A thought on the now-only-referred-to-as-secret -using-finger-quotes memorandum on food safety

Is the Globe and Mail – or, for that matter, CanWest News – under any legal* obligation that would prevent it from posting the full CFIA document online?

Is the Globe and Mail – or, for that matter, CanWest News – under any legal* obligation that would prevent it from posting the full CFIA document online?

Let’s assume, for the purposes of this discussion, that the government considers this particular document – the letter, and the list of proposals for budget cuts at the Canadian Food Inspection Agency – to be a cabinet confidence, despite the fact that there is no way of knowing whether it actually went to cabinet. Even if it did, documents that would otherwise be made public but are attached to a cabinet confidence are still public; the only thing that needs to be kept secret is the fact that it was part of a submission to cabinet.

From what I can tell, despite the long-standing thirty year rule that protects cabinet material from disclosure, publishing cabinet confidences that don’t fall under separate legislation – the Security of Information Act, for instance – is not actually a criminal offence, or an offence at all if done by an independent third party.

Leaking the document in the first place, on the other hand, may qualify as contempt. If the matter was brought to the House, the Speaker would rule on whether there was a prima facie case exists. If there was, in a functional parliament, he would send it off to the Procedure and House Affairs Committee, but in this one, it would probably end up at Ethics somehow, or maybe Government Ops. Or they could always do it via committe of the whole, but now I’m getting all tangential, and the four readers still paying attention are starting to reach for the back button.

Anyway, the committee could then recommend sanctions, which would be voted on by the House, but I think the worst case scenario would seem to be for Leonard Asper or Edward Greenspon to be called to the Bar for a scolding from Peter Milliken. Even that seems fairly remote, since I can’t find any law that requires the leakee – in this case, a media outlet – to keep a document secret. The contempt, if so determined, would have occurred at the moment of the initial leak. After that, it seems to be fair game, at least as far as releasing it to a wider audience. The Agriculture committee might even be able to get a copy!

Am I missing something? Are there any PCO/TBS protocol and/or policy geeks who can point to a law that enjoins a news outlet from publication?

*I am not, of course, suggesting that there aren’t moral, ethical and practical considerations that could well lead a newspaper to decide, on its own, not to publish the document.

INSTAUPDATE: If you think about it, the Globe or the Post might actually be doing the government a favour by publishing the full memo. By doing so, they would save the minister from being forced to either a) table the thing himself, which would establish a precedent that this, and any future government would consider to be horrendously unfortunate; or b) refuse to release the document, stonewall the committee, and reinforce the perception that the government has something to hide – right in the middle of a massive recall of possibly-tainted meat, and on the eve of a possible election.

An unauthorized release by a media outlet would, on the other hand, at least make the proposals public, which would back up the government’s position that the opposition parties are simply fear mongering. (If the document makes it clear that this is actually the case, of course. If not – well, then I could see how making the document public could be problematic.)