Parker Donham is heading to court Monday in an effort to get background information on plans for the Seal Island Bridge in Cape Breton.
In July 2022, Donham filed a Freedom of Information (FOIPOP) request to get a report on future plans for the Seal Island Bridge, and whether the span over the Great Bras d’Or Channel would be replaced or reconstructed.
In a Facebook post last week, Donham said of the FOIPOP that he “received the cover, the cover page, and a single page noting that the remaining 307 pages had been redacted in their entirety as ‘advice to a minister.'”
Donham appealed that decision and is now heading to court in Sydney Monday.
In the notice of appeal filed on Oct. 11, Donham wants access to the remainder of the report:
Specifically, the department withheld pp. 3 to 303 of the report (all but the cover and and the cover page citing Section 14(1) of the Act, which reads:
The head of a public body may refuse to disclose to an applicant information that would reveal advice recommendations or draft regulations developed by or for a public body or a minister.
The notice of appeal notes that the Department of Public Works ignored subsection 14.2 of the Freedom of Information and Protection of Privacy Act, which says:
The head of a public body shall not refuse persuant to subsection (1) to disclose background information used by the public body.
Donham lives in Kempt Head on Boularderie Island. The 62-year-old Seal Island Bridge connects that island to New Harris.
Two delays in FOIPOP request
According to this article by Steve Macinnis in SaltWire from March 2023, Donham was notified in August 2022 that the Department of Public Works needed another 30 days to process the request:
Donham objected to the delay but later relented after a review of a section of FOIPOP which states that a 30-day extension can be granted “or” with, the review officer’s permission, for a longer period.
An extension was granted until September and then Donham was notified that a further extension had been granted until November.
“The sole issue before this court is whether the commissioner’s (FOIPOP) interpretation of Section 9 of FOIPOP was reasonable. The decision allowed a public body to take a time extension of its own accord and to request a further time extension,” wrote Justice Kevin Coady, in a decision released this week.
Coady said it was his view that the applicable standard of review in the case is reasonableness.
As SaltWire reported, the decision came to down a disagreement over the word “or.”
In his decision, Justice Kevin Coady wrote, “Mr. Donham argues that the word “or” must be interpreted disjunctively allowing the public body to either extend the time for responding to a request for up to 30 days of its own accord, or request permission from the commissioner for a longer extension, as opposed to both types of extensions.”
However, lawyers for the Crown and Attorney General argued that the word “or” permitted both extensions of the request, in September and again November of 2022.
In the second article, Baxter interviewed Toby Mendel, who is executive director of the Centre for Law and Democracy (CLD), who told Baxter a lot could be improved about Nova Scotia’s FOIPOP Act:
“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.
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.”
‘No panic that the bridge is going to fall down’
According to this Oct. 11 article from Ian Nathanson at SaltWire, the bridge won’t be replaced anytime soon.
Stephen MacDonald, the area manager of Public Works operations in Victoria County and northern Inverness County, told a crowd at a county council meeting earlier this month that while there have been assessments over the bridge for the last few years, “there’s no panic that the bridge is going to fall down at this point.”
Gary Andrea, a spokesperson with the Department of Public Works, told SaltWire that the department is waiting for the benefit-cost analysis (BCA) report on the bridge from engineering firm COWI. That’s the same firm that did the Big Lift on the Macdonald Bridge in Halifax.
Andrea told SaltWire details in the report “will be released at an appropriate time.”
Filing of the appeal
Last week, Donham shared a post regarding the appeal on the Seal Island Bridge Facebook page. Donham wrote
In September, I applied for a copy of the COWi Report on future options for the Seal Island Bridge. In response, I received the cover, the cover page, and a single page noting that the remaining 307 pages had been redacted in their entirety as “advice to a minister.”
Our inadequate FOIPOP Act gives government broad authority to redact advice to a minister, but it requires government to release any background material in support of that advice.
Putting it mildly, I am skeptical that the redacted pages contain not a single word of background information. So, yesterday, I filed an appeal in the Supreme Court of Nova Scotia at Sydney seeking any background material in the redacted portions.
At hearing on motions for directions is set for Monday, Oct. 30 at 10:30am at the Sydney Court House. The hearing may be available by Zoom as well.