This, the second of a two-part series about the state of the public’s “right to know” in Nova Scotia, looks at what options are available to those dissatisfied with a Freedom of Information (FOIPOP) result, and how the province’s access to information ranks internationally — spoiler alert: rather poorly — and what should be done to improve the FOIPOP process and legislation.
As detailed in Part 1 of this series, in April this year I filed a FOIPOP with Nova Scotia Environment and Climate Change (NSE), looking for communication and documentation that might explain why it was taking the provincial government so long to approve — or not approve — the application from the Municipality of the County of Colchester to keep mining activities out of the French River watershed that supplies Tatamagouche with its water.
The release package I received was so heavily redacted that if the provincial government’s goal was to sever every bit of information that could have even hinted at the cause of the delay, it certainly succeeded.
Perplexed and frustrated by the veil of secrecy over an issue of such public interest and importance — the protection of the Tatamagouche water supply — I then did two things.
First, I filled out Form 7, a “Request for Review” of my FOIPOP, and mailed it to the Office of the Information and Privacy Commissioner (OIPC). (I have submitted a fair number of those requests for reviews of heavy-handed redacting in my FOIPOPs in recent years, and am still waiting for decisions about them, as there is a backlog going back to 2017, which the 2020-2021 OIPC Annual Report says should be greatly reduced with additional staff and improved processes.)
Next, I turned to Arilea Sill, chief Information Access and Privacy officer with the province’s IAP Services, hoping for clarification on how the FOIPOP process actually works, and who decides what information we can and cannot see, and how much it will cost us.
Sill explained that each department has one or more IAP administrator, who receives FOIPOP applications, and then “reaches out” to the department that holds the records requested, without revealing the identity of the requester.
The record-holders then either provide the records, or let the IAP administrator know how many documents or emails would need to be searched, and the administrator decides on what fees should be charged. Sill said the fees that can be charged are “laid out in the regulations for FOIPOP.”
Whether fees will be charged or waived, she said, is based on “a conversation between the IAP administrator and the department that’s involved in the request,” and the fees, again, are based on “parameters set out in the regulations.”
But, I wanted to know, who actually decides if fees should be waived, either because the requester cannot afford to pay or because the FOIPOP is in the public interest? On some occasions, I pointed out to Sill, fees have been waived for my FOIPOPs, and on others they haven’t.
Sill replied that decisions about fee waivers are made “in the context of each individual request.” She explained that “the context could change,” and that could also affect how much information was withheld or severed from the release package.
“For instance, a record that’s requested at one point in time, may be severed differently when it’s requested six months later,” Sill said. “Because the context, the situation around the request has changed so that it’s kind of a moment in time for each individual request.”
Which makes it all seem rather subjective and arbitrary — and possibly even political. But there we are.
As for redactions and who decides what information we are — and are not — allowed to see, Sill said that “involves a lot of collaboration between IAP and the department.” She continued:
The IAP administrators will look at it from the FOIPOP lens based on the criteria that have been set up and the parameters that are set out in legislation for the specific information that may be exempted [from public access]. But to do that, they’ll work closely with the subject matter experts in departments, because context is really key in understanding the circumstances around each individual file.
Asked if this wasn’t akin to letting the fox decide how much of the henhouse we would be allowed to see, Sill replied:
The balancing act in FOIPOP really is that reviewing, and using the case law and precedent that’s been set to interpret the provisions of the [FOIPOP] Act and looking at the specific and limited exemptions that may or may not be applied … and then also building in the checks and balances too with the fee estimates as well, the ability for applications to seek a review of any decisions that are made.
I asked Sill if a FOIPOP seeking information about a government decision on protecting people’s drinking water from mineral exploration and mining, shouldn’t lead IAP to prioritize public interest over government privacy.
Sill replied that decisions on whether to release information because it is in the public interest, or withhold it, requires a “balancing of all those rulings in the public interest and the public good in releasing information and respecting that.” However, she added, “There are exemptions laid out for specific reasons and in looking at the justification for those reasons and keeping up to date on it.” Sill said they “strive” to meet that balance.
But what if the balance seems to favour government privacy over public interest, as it seemed to do in my FOIPOP and seems to do for many others as well?
Public interest thwarted
For his thoughts on this, I turned to Toby Mendel, executive director of the Centre for Law and Democracy (CLD), a Halifax-based international human rights NGO that works to promote democracy, including the right to information and freedom of expression.
Mendel has a wealth of knowledge about access to information the world over, and his organization made it into an election issue in the provincial election this past August, although none of the three parties polled promised to do all that the CLD asked for, specifically:
- Grant the Information and Privacy Commissioner of Nova Scotia binding order-making power.
- Ensure that all exceptions are subject to a robust and comprehensive public interest override which requires public bodies to release information whenever the overall public interest is served by this, notwithstanding the exceptions.
- Ensure that exceptions which protect public interests are subject to a sunset clause of 20 years or less, after which they no longer apply.
This prompted Mendel to comment:
It is regrettable that while all of the party leaders have made statements about the importance of transparency and accountability, none are prepared to make strong and specific commitments to reform the woefully out-of-date Nova Scotian RTI [Right To Information] law… We got the same general commitments two elections ago, when we conducted a similar exercise, and have yet to see any concrete reform of the act; Nova Scotians deserve more.”
In an interview, Mendel detailed several of the ways he would like to see the FOIPOP process in Nova Scotia change.
One of these involves fees. In Mendel’s view, fee waivers for FOIPOP requests from people who can’t afford to pay and on matters that are in the public interest should be mandatory in Nova Scotia.
He also noted that when the federal Liberals came to power in 2015, Ottawa eliminated all fees except for the $5 charged for submitting an Access to Information and Privacy (ATIP) application.
Mendel is also concerned about the discretionary language in Nova Scotia’s FOIPOP Act, particularly the use of the term “may refuse” in Sections 14 and 16, which allows the government officials handling the FOIPOP request to withhold information if they construe it as “advice” to a public body or minister, or subject to “solicitor-client privilege.”
Both of those sections of the Act were used extensively to withhold information in my FOIPOP package.
However, Mendel said that a 2010 Supreme Court of Canada decision means that the public interest consideration should override such exceptions as to what is released. He said that the Supreme Court of Canada declared that access to information is a human right if the information is to be used for specific purposes, including the public interest, as it generally is when journalists submit FOIPOP applications.
“Wherever there is a discretion in the Act, like the ‘may refuse,’ it’s not just a free exercise of discretion,” according to Mendel. “That doesn’t mean the public body can just do what it wants.”
Public interest should thus override considerations of whether information is exempted because it is considered “advice” to a minister or a public body.
“There may be certain circumstances where advice should not be made public, because it’s so highly sensitive that the person would not have given the advice if the person knew it was going to be made public,” added Mendel. “But the vast majority of government officials are there to give advice. It’s what they do all day. That’s their job, and the whole point is that we know what they’re doing.”
Mendel said the Centre for Law and Democracy is also “highly critical” of another justification for withholding information in the FOIPOP Act, the “solicitor–client privilege” that was also used to sever information from my release package.
“We want this one to be significantly narrowed and essentially to be reduced to a litigation privilege,” said Mendel, explaining that it should only apply if the information is going to be used for government negotiations that might wind up in litigation. If there is no lawyer involved, he said, “Then that’s a straight abuse of that exemption.”
Why all the secrecy in the first place?
Mendel also thinks there is a need for a change in attitude within government:
Instead of thinking, “Okay, can we release this information?” the attitude inside of government is, “Is there any exception at all that we can hang our hat on and refuse to release this information?” That’s the prevailing attitude within government. The law needs to be changed, but also that attitude needs to be changed.
Mendel also believes that much more information should just be made public in the first place, sparing both government and the public the lengthy, time-consuming and sometimes expensive FOIPOP requests.[1] In his view:
Anything that is likely to be of significant interest to the public should just be disclosed. It’s a lot more cost effective to proactively disclose a document than to process even a single request for it. It takes a website person five minutes to upload a document. It takes a lot of time to process a [FOIPOP] request because they’ve got to register it. They’ve got to have this exchange between the processing central processing unit and the body that holds information, and so on and so forth. Proactive disclosure is absolutely the right way to go.
Worse than Russia
Mendel said that there are a lot of things in Nova Scotia’s FOIPOP Act that need to be improved.
“Essentially it hasn’t been changed since 1977 when it was first adopted,” he noted. “In 1977, there were probably only five countries in the whole world that had a law [for access to information] at the national level.” Canada was not among them.
Today, however, Mendel said 135 countries have such laws, and Canada ranks a lacklustre 52nd among them for respecting the public right to information.
“For a so-called leading democracy, that’s a terrible position,” Mendel said. “If Canada was 52nd in terms of respect for women’s equality, you can imagine Canadians would be going nuts about that. Nobody would accept that kind of dire performance. Below Russia, just for example.”
But, Mendel noted, Nova Scotia ranks even further down the list than does Canada.
“Canada is 93 points and Nova Scotia is only 85 points,” Mendel said. That would place Nova Scotia 66th in world rankings, worse than nearly half the countries that have right-to-information legislation.
Mendel said that on Aug. 24, 2021 shortly after he was elected premier of Nova Scotia, Tim Houston said his government would be reviewing and reforming the FOIPOP Act.
Mendel believes Houston’s Progressive Conservative government is motivated to do so; when he was opposition leader, Houston took the Liberal government to court over its refusal to release documents about the costs of the Yarmouth ferry deal, even after the Information and Privacy Commissioner had ordered it do to so, as the Halifax Examiner reported here.
Mendel said he hopes Houston will fulfill his commitment to give the Information Commissioner binding order-making powers, which is common across Canada and around the world.
One of Mendel’s hopes may be fulfilled.
In his September 14 mandate letter to Brad Johns, Attorney General and Minister of Justice, Tim Houston wrote that one of his tasks in the next four years is to: “Amend the Freedom of Information and Protection of Privacy Act to give order-making ability to the Privacy Commissioner.”
However, Mendel pointed out that this was the only request that the Centre for Law and Democracy made that Houston’s government has committed to.
“Their promises have been fairly vague, apart from the one on the Commissioner, so we’ll have to see what they do,” Mendel said. “We have we’ve seen a lot of political parties of all different stripes … make promises and then break them.”
And the French River watershed protection?
Since this two-part series began with a FOIPOP to find out the status of the application that the Municipality of the County of Colchester submitted in May 2020 for protection of the French River Watershed, I once again contacted the County and Nova Scotia Environment and Climate Change, to find out if there is anything new since I received the release package.
Michelle Boudreau (formerly Newell), director of public works for the municipality, told the Examiner that there has been “no word yet” from NSE.
Tracy Barron, spokesperson for NSE replied that, “No decision has been made. The new minister will be briefed in the coming weeks.”
Maybe it’s time to file another FOIPOP to try to find out what Tim Halman, the new minister of Nova Scotia Environment and Climate Change, will be told about the application for protection of the French River watershed?
Oh, right, we tried that already.
Happy upcoming “Right to Know Week.”
A postscript: Lest these two articles give the impression that the federal government’s access to information is not also beset with problems, it may be worthwhile reading the recent account by Ian Young, Vancouver correspondent for the South China Post, about his own five-year wait for results from a crucial Access to Information (ATIP) request with the Canada Revenue Agency, and how a timely release of results that revealed vast amounts of fraud and money laundering in the Vancouver housing market might have helped curb the unaffordability crisis for people in that city.[2] And also, on March 18 this year — six months ago — I submitted an ATIP to the federal government for information on Pieridae Energy’s request to Ottawa for federal financing for its proposed LNG plant in Goldboro, Nova Scotia. On Apr. 1, I received a letter saying that the Department of Finance Canada needed an additional 30 + 90 days to “comply with” my request. That meant I should have had the information on August 1. On Aug. 5, I wrote to ask for an update and was told the file would be sent to me by Aug. 16. On Sept. 13, I wrote again for news of the ATIP, and was told by the Senior ATOP Advisor that she “hoped to have it moving along” and sent out soon. No word since then.
[1] In January 2021, the Halifax Examiner examined related problems of getting clear information from the provincial government in an article entitled, “Miscommunication: how government’s PR gatekeepers are increasingly controlling the message.”
[2] Before the federal election, the Canadian Association of Journalists and more than a dozen freedom and public interest groups asked political parties how their governments would reform “Canada’s archaic access to information system.” Four parties — Liberal, Conservative, New Democratic, and the Bloc Québécois — replied, as the Canadian Association of Journalists reported here.
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