I have no reason to doubt Catherine Tully when she told the subscriber-based business website allnovascotia.com last week she would have retired from her job as the province’s information and privacy commissioner this summer even if Premier Stephen McNeil had offered to extend her five-year term. She didn’t ask his plans before announcing her own.
“There are other things I want to do,” she told allnovascotia’s legislature reporter Brian Flinn. “I want to travel and I want to spend eight hours a day outside.”
There’s no reason to doubt her, of course, because Tully has an enviable track record of speaking uncomfortable truth after uncomfortable truth to unreceptive power.
That said, it is worth wondering whether Tully — a dedicated public servant — might have been persuaded to remain even a little longer if the premier had given her office the powers he’d promised even before she was appointed, and which she has been asking for, in vain, ever since.
You know the story. Back when he was campaigning for our votes but before he won them in 2013, Stephen McNeil promised — cross-his-heart-and-hope-to-be-premier — to “expand the powers and mandate of the [information and privacy commissioner], particularly through granting her order-making power.”
Promised. In writing, no less. But not — read the fine print — in the Liberal party platform.
The next year — on September 1, 2014, to be official about it — McNeil appointed Tully Nova Scotia’s information and privacy commissioner.
It is worth reviewing her bona fides. She has her BSc, BA, and law degrees from the University of Ottawa, and her Master’s of Law from Dalhousie. Since 2000, her lawyerly focus has been exclusively in the fields of access and privacy. She spent six years as the director of access, privacy and records management for three provincial government institutions in British Columbia and was then BC’s Assistant Information and Privacy Commissioner from 2008-2012. Before signing on with the ill-steered good ship Stephen McNeil in 2014, Tully served as the director of access and privacy for Canada Post.
So Catherine Tully knows her stuff. She was an excellent appointment by a premier who had pledged to run the most open and transparent government in Canada.
And then… Well, our public interest collided with Stephen McNeil’s political interest. And the rest, as they say, is sorry, sordid history.
That five-year history is too long to get into here, but here’s a sort-of recap-sampler from a column I wrote in September of last year regarding…
… a scathing 18-page report from Information and Privacy Commissioner Catherine Tully. She concluded the government had violated its own freedom of information act when it rejected 2017 access-to-information requests from then-Global News reporter Marieke Walsh, and that its response to her was “not open, accurate or complete.”
Walsh, who had already reported on Health Minister Leo Glavine’s use of a private email account to conduct ministerial business, wanted to find more about how much government business had been done through Glavine’s private emails.
The government rejected the requests because it claimed the act only applied to records “in the custody or under the control of a public body. This does not include personal email accounts.”
Tully begged to differ. In fact, in a 2016 report, she’d already noted: “If the record is used to make a decision, if it’s relied upon by the public body, it doesn’t matter what tool you’ve used to record that, it’s in the control of the public body. It has to be produced in response to an access request.”
In her investigation into the health department’s rejection of Walsh’s request, Tully reported she’d been prevented from even questioning Glavine’s executive assistant about the matter by a deputy minister from the premier’s office.
McNeil claimed that wasn’t true but then added it didn’t matter because Tully has no power to force witnesses to speak to her anyway — a reality that is, of course, one part of the problem the premier has refused to remedy.
“What more was she looking for?” the premier asked disingenuously. “What does she want? You don’t call witnesses when someone actually says, ‘You know what, you’re right, I was wrong.’”
As my colleague Tim Bousquet astutely noted in Friday’s Morning File: “That’s such an absurd statement I don’t even know where to begin with it. But how ’bout this?: Anyone who has ever been in a courtroom knows that every person who ever pleads guilty to a crime must sign and swear to an agreed statement of facts that is compiled by investigators who, yes, interview witnesses.”
Not that absurdity counts for much when it comes to government’s right not to tell.
McNeil himself has bragged he prefers telephoning his staff rather than using emails to discuss government business to avoid having to disclose those discussions with the public. “I need to be able to communicate to my staff, and there are certain things I want to be able to tell them that I don’t believe should be out in the public domain.”
Tully’s report included six specific recommendations, including that Glavine “identify all emails that relate to government business and move those records into government system… then ensure that all original emails in the personal email accounts are securely deleted,” and that the department not only provide Walsh with the records she requested but also “develop and implement a policy prohibiting the use of personal email accounts to conduct government business.”
Of course, there’s no requirement for Glavine or the government to respond. There would be if the premier had followed through on his 2013 promise to improve the act. But that promise — remember? — wasn’t in his platform so it didn’t count that he promised to do it.
Speaking truth to power. Still. Again. Tully released her final annual report last week. In it, she noted that our provincial government departments (Stephen McNeil, proprietor) were even worse than other public bodies like municipal governments when it came to accepting her office’s recommendations (all voluntary, of course).
While those other bodies said thank-you-very-much-and-done to 62% of Tully’s recommendations, the province fully accepted only 40%. Worse, our my-way-or-no-way provincial government was “least likely” to take part in informal resolution processes.
“The overall informal resolution rate was just 81 per cent because government departments brought the average down by informally resolving just 66 per cent of cases compared to 88 per cent by all other public bodies, municipal bodies and health custodians.”
More generally, Tully once again urged the government to bring our woefully outdated privacy laws up to 21st-century-technological date. Can you say fake news, rampant social media hacks, runaway electronic electoral jiggery-pokery? “With each passing day,” Tully declared, “Nova Scotia falls farther behind other provinces and democracies.”
What to do? Ever the optimist, Tully suggested, according to Star Halifax reporter Taryn Grant: “If (citizens) care, if this is important to them — they need to communicate that to the government. Changes in other jurisdictions have come often from a push from citizens.”
The problem is whether anyone in authority in Nova Scotia will care.
Our premier-in-eager-anticipation, Tory leader Tim Houston, was quick off the shocked-and-appalled mark. “The data in Catherine Tully’s report shows that this is a hyper-secretive government that stubbornly hides information from Nova Scotians,” he said in an official statement. “The numbers are shocking, particularly from a premier who once promised to lead the most open and transparent government in the country.”
And blah blah blah.
The problem is — as it always is — getting the next government to do something about it. You may recall that Stephen McNeil even promised in writing, and we know what that was worth.
What can Tim Houston — or NDP leader Gary Burrill, or whomever — say now to convince us they really mean it and will put our interests ahead of their own if they get elected?
No wonder we’re cynical.