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Monday, September 23, 2013

New report slams Nova Scotia's Freedom of Information act

This province ranks with Honduras and Belize on right to information scale.

Posted By on Mon, Sep 23, 2013 at 5:08 PM

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The Centre for Law and Democracy has published its most recent report, which reviews Nova Scotia's Freedom of Information and Protection of Privacy Act, and the results, while not at all surprising, are also not at all good. Says CLD:
The RTI Rating, a comparative system for assessing right to information laws developed by Centre for Law and Democracy (CLD) and Access Info Europe, found that Nova Scotia scored a mediocre 7th among the fourteen access to information laws in Canada (from ten provinces, three territories and the federal government). Nova Scotia’s score of 85 points out of a possible 150 is even less impressive when considered in an international context. Were Nova Scotia a country it would tie for 46th place out of the 93 countries that have been rated, on par with Honduras and Belize.
CLD is a Halifax-based non-profit organization that does most of its work overseas, helping to bring about legal reform in places like Kuwait and Kazakhstan, says Michael Karanicolas, a legal officer with the organization. One particular CDL project is to evaluate access to information laws internationally, which is why it developed the RTI rating. Last year, CLD published Failing to Measure Up: An Analysis of Access to Information Legislation in Canadian Jurisdictions, and today's report builds on that, but specifically to Nova Scotia.

The Nova Scotia analysis is measured, yet thorough. Here are some highlights, with my comments:

1. Exemptions.

CLD faults FOIPOP for its many exemptions, noting that "while it is legitimate to exclude information which would harm the deliberative process within government, section 14(1) goes far beyond that, exempting any advice, recommendations or draft regulations developed by or for a public body or a minister."

This legislative exemption is now used perfunctorily to deny media access to ministerial briefing notes, but as recently as five years ago, those briefing notes were routinely made public. So when I asked for the ministerial briefing notes related to the outsourcing of the province's SAP operations to IBM, the department of finance cited section 14(1) of FOIPOP, and I got nothing but a bunch of completely redacted white pages.

The CLD report lists a variety of other exemptions that are problematic, particularly the exemption for solicitor-­client privilege. I run up against this repeatedly in my dealings with Halifax city council: there's no particular reason for the information to be withheld, other than that a lawyer was involved. Says CLD:

Moreover, government counsel often play a range of roles in policy development, planning and administration which are functionally similar to those of their non-legally trained colleagues. It is difficult to see why protection should apply to this advice just because it happens to come from a lawyer. Furthermore, the solicitor-client privilege exception as currently worded provides tremendous potential for abuse since, if government officials want particular discussions to be exempt from disclosure, all they need to do is bring a lawyer into the room.
And this is precisely what happens. I'm currently investigating a situation that mostly centres on the city's building department, but because two city lawyers were consulted, I'm facing an uphill battle for access to records. Outside the mere fact of the solicitor-client relationship, there is no other reason to keep the information secret: There are no privacy issues involved, it doesn't entail negotiations over real estate prices, the city stands to lose nothing except perhaps reputational value through embarrassment, but the information is being withheld (or at least, very much delayed) all the same.

2. The Public Interest

This is fairly self-evident, but as CLD notes, "a core principle of the right to information is that, even where information falls within the scope of a legitimate exception, it should still be released if the public interest in disclosure outweighs the harm to a protected interest that would result." CLD then goes on to criticize Nova Scotia for not having in place strong policies for making the "public interest test" viable.

I've faced several instances where this has been an issue. The above-mentioned ministerial briefing notes, for instance, but also Trade Centre Limited's initial refusal to turn over delegate projections and studies related to the new convention centre, and then its feeble (and laughable) attempt to redact some of that information.

3. The Review Officer

Supposedly, if you are denied information requested through FOIPOP, you can appeal to the FOIPOP review office for redress. But I've long argued that the workload delay of the office—it's now at two and a half years—makes any review meaningless. CLD report goes even further than my own criticism, saying that the review office should be fully funded and given additional powers to intervene.

4. Time Limits

CDL notes that:
Justice delayed is justice denied. As a human right and a core principle underlying democratic accountability, information requesters have a right to a prompt response. Long delays can frustrate requesters, discouraging them from making use of the system. Furthermore, information often loses its value over time. This is particularly true of information which is being requested for a commercial purpose or information which has been requested by a journalist for use in a news story. In both of these cases, a long delay can render the information effectively useless to the requester.
An example of this: I currently have two FOIPOP requests related to the Chain of Lakes Trail sewage project, and both organizations (the city and Halifax Water) got the now-automatic 30-day extension, making 60 days at this point, but it could be much longer. By the time I get the information I'm looking for, the sewage project will have already gone before the Utility and Review Board for approval. I have no idea what, if anything, my FOIPOP will uncover, but if there's relevant information that might have caused the public to intervene to stop or alter the project, it'll be too late.

5. Scope

Says CLD:
The FOIPOP should also be extended to cover private bodies that perform public functions or receive public funding, to the extent of that funding or function. Non-­governmental organisations, for example, that have accepted a grant to produce a report should be required to be open about how that public money was spent. A decision to outsource a task or service to an external organisation should not lead to the avoidance of access to information responsibilities about that task or service. Being held accountable for the use of public money is one of the principle tenets of the right to information.
I have a couple of examples to illustrate this point. First, as I understand it, the Saint Mary's University administration contracts with the student association, SMUSA, to conduct the annual Frosh Week program, now notorious for its rape chant. There are several issues I've been interested in drilling down into, including whether and how SMUSA officials responded to past complaints about the chant. Were SMUSA covered by FOIPOP, it'd be a simple issue of requesting all emails related to the chant, and then we'd know for certain what happened. But because SMUSA isn't covered by FOIPOP, we'll likely never know.

It shouldn't be this way. The SMU administration shouldn't be able to wash its hands of Frosh Week responsibility—even to the point of keeping it secret—by contracting it out.

A second example is the many and varied contracts Nova Scotia Business, Inc. makes with private businesses in the name of economic development. Beyond the most simple outlines, the details of these contracts are withheld from the public, even though it is public money paying for the arrangement, through reduced tax revenue.

CLD makes modest recommendations which, unfortunately, will be treated as radical. But having worked in other jurisdictions, I can assure you there's nothing remotely radical in CLD's recommendations: they're already standard practice elsewhere. I've discussed before my public records experience in the States, at length; Karanicolas, however, tells me that even though the US is far ahead of Nova Scotia, both jurisdictions lag behind places like Mexico and India, where public access to government information is considered a human right.


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