Public secrets

Freedom of Information law gives you the right to get government information. Good luck accessing that. Here's the trouble with Nova Scotia's rules of silence.

One summer day in the mid-1990s, there was an illegal Mexican immigrant working as part of a crew pruning an orchard in California. The man was lopping off tree branches while standing in a metal box of a cherry picker truck; one of the branches fell onto a high-voltage power line and the electricity arced from the power line, through the branch and onto the cherry picker. The man died instantly.

The orchard was owned by one of the largest and wealthiest landowners in the county. Through an exercise in "plausible deniability" the landowner was able to have lowly paid illegal migrants work his fields by using fly-by-night labour contractors who actually hired the illegals. That scheme also got around any need for safety training and equipment.

On the power line side of the story, the multi-billion-dollar utility that owned the line hired a multi-billion-dollar tree trimming service to clear its lines. The utility basically passed the liability onto the trimming company, but managers at the latter were rewarded for cutting costs, not trees---this particular high-voltage line was documented as "clear" even though no work had been done to it, the presumption being that the orchard workers would take care of it.

The dead fellow was completely powerless: The people he worked with were also illegals and spoke no English besides. His death was inconvenient for the most powerful entities in the state, and so it was quite literally ignored. No one in a position of authority dared question how he died, or why, or the circumstances around his death.

A few days later, I was combing through vital statistics in the county courthouse, as part of my regular duties as a reporter, and I came across the death certificate for the man who had died in the orchard. That tweaked my interest and, after some more research, I wrote an article detailing the full story.

That story in turn prompted a government investigation, a lawsuit and public outrage. It changed the way the power company clears its lines and, ideally, has made orchard owners more accountable for safety standards on their operations.

It all started with the death certificate, a public record.

I couldn't do that story here in Nova Scotia: Death certificates and other vital statistics aren't public record. They're just one of many government records that are bureaucratically ruled off limits to the public, including vital statistics, government employee salaries, physician discipline rulings, building department files and more. Other records are nominally public, but damn near impossible to actually get.

And that's a problem.

Nova Scotia's Freedom of Information and Protection of Privacy Act, the law mandating open access to government documents, dates only to John Savage's government of the early '90s. In the intervening 15 years, FOIPOP hasn't really come into itself, says Darce Fardy, because government agencies are refusing to live up to the spirit of it.

From 1995 until 2006, Fardy was the province's privacy review officer, the lone official charged with making recommendations to government agencies about their responsibilities under FOIPOP---those recommendations, however, have no force of law and agencies can (and often do) ignore them. After leaving government, Fardy founded the Right to Know Coalition of Nova Scotia, an organization that advocates for greater access to government information.

"What gets my dander up is government's reluctance to trust citizens, give out the information they should be giving out and just to govern more openly---govern as openly as they say they will---and stop putting all these hindrances up," says Fardy. "They do everything to frustrate the citizen. Everything they can do to frustrate, they do. The applicant [seeking government information] goes through hell no matter what---not only the cost, but the wait."

I brought my enthusiasm for public records research to Nova Scotia and have used it when I can---my investigation into Halifax's failed Commonwealth Games bid rested on a successful battle to gain access to the bid committee's documents.

But it took nearly six months for the city to agree to let me view all the documents I requested, and even then many of them were redacted---important details blacked out with black marker.

Since then, I've faced an uphill battle every time I've tried to do research through government documents: As a rule, public agencies resist, deny, delay, charge exorbitant fees and otherwise frustrate all requests to view information. When it comes to access to information, I've found, Nova Scotia is more restrictive than even the most backward of the US states.

For example, when premier Rodney MacDonald announced a "long combination vehicle pilot project"---his government would allow two-trailer trucking rigs to travel the province's highways---I looked for the journalistic angle. Surely there must have been RCMP reports on the issue, insurance studies and lobbying by trucking companies before public officials. MacDonald didn't come up with the pilot project idea in a vacuum---he must have based his decision on something---so I asked for that information.

In the States, had I filed the same request, a week later I'd be called into a government office where some workspace would be provided and I'd sit with my laptop and read through thousands of pages of government reports and documents. If I needed copies, I'd be charged a nominal fee, but otherwise there was no money involved.

But not in Nova Scotia. Two months after I filed my request for the trucking records, I was sent a terse letter demanding $1,600 to process it. I don't have that kind of dough, so I'm trying to narrow my request. Further delays will likely drag this investigation out for years. In the meanwhile, the pilot project is morphing into permanency, and the public has no idea what information or lobbying pressure guided the decision-making in this change in public policy.

But to hear MacDonald tell it, there's no problem.

"The FOIPOP legislation works very well," says MacDonald through his press secretary, Paul Palmeter. "One of the reasons why it was put in place was as a measure of accountability. People deserve the right to receive information and that's why the government has department FOIPOP officers in place so information can be retrieved and released in an appropriate manner. We're satisfied that the system is working."

"That's not in the spirit of the freaking act," says Fardy of the $1,600 charge. "When a reporter calls, instead of just levelling with the reporter, they try anything to try to discourage people. I'm sure the cabinet officers are good people, but on this side of it, it's 'uh-oh, The Coast is on the phone'---it poisons the atmosphere."

In similar fashion, related to a Coast article written by Matthieu Aikins ("Adam's fall"), in January 2008 I asked the Halifax-Dartmouth Bridge Commission for all documents related to bridge suicides---I had a list of some of the documents, as they were named in a lawsuit.

The bridge commission argued that if that information were made public, it would encourage other people to use the bridge as a suicide destination, and therefore they declined to release the documents, citing a "public safety" exemption in FOIPOP. I countered that because the public doesn't know the numbers and names behind the suicides from the bridge, there is no way to assess the full extent of the problem or to put a cost-benefit analysis to potentially pricey suicide barriers.

The bridge commission's rationale is typically old-school Nova Scotian government paternalism: "We have the information and we know best, so we'll make the decisions; we can't trust the public to make an informed decision."

Fifteen months later, we're still battling over access to the documents.

Beyond those specific cases, I agree with Fardy: The entire atmosphere around public access issues is poisoned. Just about everywhere in the province, at every level of government, people looking for information are regarded as interlopers and possibly criminals. The presumption is that government records are not public and it's up to the person wanting access to records to prove otherwise.

A lot of my work in the States was simply trawling through public records. I'd regularly stop at the courthouse, the assessor's office, the county clerk's office and city hall.

I once pulled the city building department's files on rental houses owned by a public official. One of the houses, which he rented to a fraternity, had been an inferno waiting to happen: Uninsulated heating vents were lying on top of wooden cabinets and the wiring was in deplorable condition. He had been cited repeatedly for bylaw infractions, but had taken no action to address them.

The inevitable fire, which started in a light fixture, struck at 3am on a Saturday morning, with a house full of drunkenly passed out frat boys. Somewhat miraculously, one of the guys was returning home at the time and woke the others, bringing them to safety. The fire was put out in about an hour, but the fire chief at the scene was so appalled by the condition of the house that he roused the building inspector and insisted on an inspection then and there, in the middle of the night.

The daily newspaper reported the fact of the fire, but the public was not aware of the underlying story---that the house was owned by a public official who had repeatedly ignored bylaw citations. Only two years later, when my curiosity led me to look at public records, did the story become known. I published a lengthy article about the official and his properties, including photos taken by the building inspector of the fire-trap house rental.

That story couldn't be done here: Building records aren't public, except to the owner of the property.

I can't even count all the American courthouses I've done research in---dozens, anyway. It's pretty basic reporting: You use a public computer terminal to search a person or company's name, you see what court cases the person or company has been involved in and you ask the clerks to pull the paper court files. There's never a charge, except if you want photocopies made.

But it's a different story in Nova Scotia. There is no public computer terminal at the Spring Garden courthouse, so if you want to research someone or some company, you have to ask the clerk to do it for you. Effectively this means no journalist or citizen can hunt around willy-nilly and see what's been through the courts. And my single interaction with the clerks was not a positive one---they regarded me as an imposition, as not in my place.

"It depends on the person you talk to---it really shouldn't," says Jennifer Stewart, the Chronicle-Herald court reporter who was laid off recently (see, "Victims of the Herald," March 19). "But, a lot of times when the staff knows you, there are no problems whatsoever."

Stewart says that the clerks are "very good" with reporters and I probably would have gotten better results if I had identified myself as media. But this rubs me the wrong way: I don't deserve any special access just because I'm a journalist, and the public's right to access should be fully accommodated, regardless of employment.

I've done more work at the Supreme Court office on Upper Water. Helpfully, there are two public computers in the clerk's office with which to search for names, but there is a $7 fee for a clerk to retrieve the paper court file, a chore that usually takes less than 15 seconds. The fee is an obstacle to the kind of broad research I'd like to undertake, and could be a barrier to some of the public.

Police records are another standard reporting resource in the States: Each police department keeps a "blotter"---a log of every police call that lists the time, the block the police were dispatched to, any arrests and short narratives written by the officers. In lots of small towns, the police blotter is printed in full, right in the newspaper. Big city newspapers typically edit the blotter down, but they'll publish a few dozen representative incidents daily.

Police reports---the full, longer narratives written by officers, which describe in detail what happened during a call---are public in the States, as are recordings of 911 calls.

In Arkansas, I once used a combination of these records, which were turned over by a police chief who knew his obligations under the freedom of information law, as the basis for an article describing an ugly incident by a local cop. The officer was visiting Brinkley, a town several counties over, out of his jurisdiction. My article begins as follows:

A detective with the White County Sheriff's Department's Narcotics Unit has been suspended for 10 days as punishment for an alcohol-fueled disturbance in the east Arkansas town of Brinkley on Sept. 21.

Det. Brett Simpson repeatedly patted down several black men for drugs, grabbed a Brinkley police officer's gun, threatened the men with it, and, after returning the gun, confronted the officer with a raised fist, according to a statement given by Ryan Hollowell, an officer with the Brinkley Police Department.

Hollowell's report says the officer witnessed Simpson drinking.

People at the scene said Simpson then drove through an apartment complex firing a gun out the window of his truck, but police could not verify those accusations.

Throughout the evening, according to the statement, Simpson repeatedly referred to the black men with racial epithets.

Before my article ran, the sheriff had covered up the incident. The detective had been given a short suspension, but had long since returned to full duty. Subsequent to my reporting, the detective resigned. A bad cop was taken off the streets, thanks to liberally interpreted public records laws.

Could I do that article here in Nova Scotia? Probably not.

For starters, the Halifax Police Department does not maintain a public blotter. There are typically between 400 and 500 police calls daily and usually only two or three of those will be made public, at the discretion of the watch commanders, says police spokesperson Jeff Carr. It is simply impossible to independently see what the police are up to---we have to take their word for it.

Likewise, 911 calls are not public, says Carr. Or, if they are, I'd have to go through the lengthy FOIPOP process to get them---he's not really sure.

Carr and I talk around the issue of police reports. He says he'd turn over a police report if the case was closed and I asked for it directly, but how am I to know a report exists if there's no blotter listing it?

The theoretical was made concrete last year when several off-duty Halifax police officers were involved in a racially tinged brawl in Digby. Even now, the case having gone to court and judgement made, not all the records related to the incident have been made public.

There are, of course, objections to making it easier to access public records. Some argue that government's prime concern should be protecting people from an invasion of their privacy, and should therefore guard personal information closely. Others have concerns about identity theft. And many will take umbrage at the notion that the Americans do it better than Canada.

On the last point, here's what I tell my American friends stressing over reform of their health-care system: There's a successful working model of socialized health insurance, just three feet north of your border. You don't need to reinvent the wheel; many of the potentially problematic details have already been worked out and if you don't like this or that particular, you can tweak it to meet your needs.

Similarly, Canadians should recognize that just one metre to the south, Americans have already addressed many of the privacy and identity-theft issues related to opening public records, and if parts of the American system don't work for Canada, tweak it so it does. It'd be foolish to think countries can't learn from each other.

Clearly we do need to guard against identity theft. Social insurance numbers shouldn't be made public, for example, and arguably many records shouldn't be put on the internet---simply requiring people to trek down to a government office in person to access potentially sensitive records will prevent broad data mining by identity thieves.

On the privacy front, I'd suggest something less than a knee-jerk "that shouldn't be public" response. The poor state of the right to know in Nova Scotia isn't just a problem for journalists---it has huge implications for the public as well. Overly interpreted "privacy" rights could be costing you money.

Consider that the sale prices of houses are not publicly available from the government, as is the case in all of the US. (Assessed values are available in Nova Scotia, but they often have very little to do with sale price.)

It's true that real estate agents will give prospective buyers a sheet of paper listing nearby sales, but that information does not come from government; rather, it is self-reported by other real estate agents to the Multiple Listing Service database and is not independently verifiable. Real estate agents, who work on commission, would benefit by dishonestly reporting inflated house sale prices.

When I raised that possibility with local agent Steve Patterson, he rejected it out of hand and insisted all agents would be truthful. But he raised a related issue: "What about private sales---why can't I access that information?" Patterson argues that those who sell privately are probably paying more than they would through an agent, but because the sales price isn't public, there's no way to know.

Capitalism, the argument goes, is the perfect economic system because informed markets lead to the most efficient allocation of resources. But here we have a system where only one side of a transaction---the seller, and only some of those---knows how the product is valued. Buyers are uninformed, so the market is likely skewed against them.

It'd be as if every time you went to the grocery store, you had to separately negotiate the price of eggs and you were not allowed to know what eggs sold for at the grocery store down the road. It's the antithesis of an informed free market.

In the States, you learn house sale prices by calculating from the transfer tax, which is public information. Every paper I've worked for regularly published house sale prices---it was a public service that informed the market.

And then there's the watchdog role of the press; although I never had such good fortune, there are hundreds of examples of journalists discovering illegal bribes and kickbacks to public officials that take the form of below-market sale prices for property. Each of those instances was revealed because transfer taxes are public record.

In his role as privacy review officer, Darce Fardy reviewed hundreds of freedom of information requests and made recommendations related to dozens of lawsuits over them; the courts agreed with nearly all of his recommendations. Fardy's background isn't in law---before working in government, he was head of CBC's current affairs section, which oversees the fifth estate and other investigative news programming---butmore than anyone, he has helped lay the groundwork for legal interpretation of FOIPOP in Nova Scotia.

When I mention to Fardy that the transfer tax is not public information in Nova Scotia, he pauses and thinks out loud. "The only way they could deny [transfer tax information] in the act, is to say that's someone's personal information," he says. "But it has to be an unreasonable invasion of someone's seems to me if the province has this information, on what basis are they withholding it? I think you're on a pretty good wicket there."

Halifax mayor Peter Kelly agrees that the FOIPOP process is too cumbersome and expensive, and says his own government can be overly restrictive when it comes to making documents public. "I think sometimes we get a bit too sticky in our processes---we can do better," says Kelly. "Staff tries to work within the realm of their interpretation of the FOIPOP legislation [but] I think sometimes we go a bit too far, and I'd like to see it freed up."

He's right. Accessing HRM records is a mixed bag. The clerk's office at City Hall has been generally helpful when I ask for specific documents and once my Commonwealth Games FOIPOP was granted, Nancy Dempsey, the city's public information officer, was very accommodating, giving me wide latitude to work in her Burnside office.

But I've had less luck with following money trails. One of my strategies for watching municipal government expenditures in the US was to each month review the city's cheque register, looking at every payment made from city funds. This gave me a wealth of information, including, for example, payments made as part of otherwise "non-disclosed" settlements to lawsuits. (American cities regularly settle lawsuits with nondisclosure agreements, but with the caveat that any payments are public record.)

When I asked Dempsey if I could look at HRM's cheque register, she said I'd have to file a FOIPOP application for it and employee pay information and payments related to lawsuits would not be turned over. That's a lengthy and frustrating process to simply see where taxpayer money is going.

HRM has settled many lawsuits with nondisclosure agreements, including several suits filed by employees over alleged discrimination. We don't know how much discriminatory work practices are costing us, because HRM says such information is covered by a "solicitor-client privilege" exemption in the FOIPOP act.

It's true that such an exemption exists in the act, but that exemption is applied too broadly, and certainly shouldn't cover payment of taxpayer funds to settle embarrassing lawsuits.

Another example of improperly using the solicitor-client loophole appeared when I asked Carl Yates, manager of the Halifax Water Commission, for technical reports related to the sewage treatment plant shutdown. Yates rebuffed me, saying that such documents are exempted from the law because of on-going lawsuits related to the shutdown.

"That's not solicitor-client privilege," agrees Fardy of my request for sewage plant information. "It's a very selective clause protecting communication between the solicitor and the person the solicitor's representing. Everybody honours solicitor-client privilege, but you can't drag every record that you've got that's even remotely associated with a court case, and hiding behind solicitor-client privilege. That [sewage plant] report is not covered by solicitor-client privilege."

As Fardy tells it, in terms of what it requires of government, Nova Scotia's freedom of information law is about in the middle of the range of freedom of information laws adopted by other countries and provinces. The problem isn't so much the law as it is the bureaucratic and political culture that refuses to implement it, he says.

With a bureaucratic culture that fundamentally distrusts openness, we're left with citizens giving up on the process, journalists that can't do their jobs and a government that is not responsive to citizens' needs.

To achieve truly open government, to get to the point where the freedom of information law is understood, taken seriously and implemented for the benefit of the public, it will take political leadership.

"The premier has to come out, write to all the senior bureaucrats and say, 'This is the law, and the law obliges us to be fully accountable,'" says Fardy.

And bureaucrats, from the deputy minister down to the part-time clerk, should reverse their knee-jerk response to public inquiries: A record should be presumed to be public information until it is proven otherwise, not the other way around.

Ultimately, freedom of information is about how government interacts with the citizenry. Traditionally, Nova Scotia governments take a paternalistic approach to the public---government knows best, so please just leave them alone to make the decisions that are best for us. But that way of thinking is fundamentally undemocratic and it leads to distrust and apathy on the part of the people.

"And they wonder why voter turnout is low," says Fardy. "Make no mistake---there is a direct connection between access to information and voter turnout."

There's a different kind of government, one where the public is fully informed and fully engaged in the decision-making process.

"Openness, accountability, lack of secrecy, it's good policy and good politics," says Fardy. "If they would just open the doors and admit it when they make mistakes, and trust people to have information, they would find the public is on their side. But they just can't seem do it."

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