Expert: Halifax sewage plant decision violates freedom of information laws

[Editor’s note: Darce Fardy was Nova Scotia’s privacy review officer from 1995 to 2006, overseeing the provincial Freedom of Information and Protection of Privacy office. After retiring from that position, Fardy founded the Right to Know Coalition of Nova Scotia, an organization that advocates for greater access to government information.]

I know of no bigger issue ever to face the people of the Halifax Regional Municipality than the cleanup of our harbour. It provides council with an excellent opportunity to adopt a policy of full disclosure on a matter of such enormous public interest.

According to the Chronicle-Herald, city officials are about to find out why the sewage plant failed. A consultant’s forensic audit of the treatment plant’s failure will be delivered soon. But:

[…] residents won’t be able to see the report until the five-month-old sewage issue is finally resolved, or until the study is entered as evidence in a potential court case, he said.

Before either of those scenarios happens, Mr. Anstey said, the municipality’s lawyers will decide how to use the report’s findings to city hall’s advantage in advance of a possible settlement—or litigation—with other parties involved in the contractual mess.

“Once the information is gathered, then it’ll depend on what the report says as to what the (city’s) strategy will be in dealing with the other side,” he told The Chronicle Herald.

Mr. Anstey, the municipality’s deputy chief administrative officer and a former municipal solicitor, said when and how the consultant’s report is released “will depend upon negotiations and/or arbitration and/or litigation.”

HRM is obliged by law to be “fully accountable” to the public. That’s the stated purpose of the freedom of information legislation which applies to all municipalities. It’s found in Part XX of the Municipal Government Act. (Section 462):

The purpose of this Part is to

(a) ensure that municipalities are fully accountable to the public by

(i) giving the public a right of access to records,

(ii) giving individuals a right of access to, and a right to correction of, personal information about themselves,

(iii) specifying limited exceptions to the rights of access,

(iv) preventing the unauthorized collection, use or disclosure of personal information by municipalities, and

(v) providing for an independent review of decisions made pursuant to this Part;

(b) provide for the disclosure of all municipal information with necessary exemptions, that are limited and specific, in order to

(i) facilitate informed public participation in policy formulation,

(ii) ensure fairness in government decision-making, and

(iii) permit the airing and reconciliation of divergent views

The language in the MGA Act is similar to that found in the Nova Scotia Freedom of Information and Protection of Privacy Act (FOIPOP).

Such an explicit obligation is found in none of the other provincial, territorial or federal freedom of information acts.

Justice J.M. Saunders wrote about that Act’s “purpose” in a Nova Scotia Court of Appeals decision, O’Connor v. Nova Scotia (2001):

Thus, it seems to me that the Legislature has imposed a positive obligation upon public bodies to accommodate the public’s right of access and, subject to limited exceptions, to disclose all government information so that public participation in the workings of government will be informed, that government decision making will be fair and that divergent views will be heard.

As well both the municipal and the provincial Acts allow for only “limited” exceptions to disclosing information. And it requires solid proof of any harm from disclosure that might be claimed. Section 498 of the MGA places the burden of proof on the public body to prove that an applicant has no right to the information requested:

498 (1) At a review or appeal into a decision to refuse an applicant access to all or part of a record, the burden is on the responsible officer to prove that the applicant has no right of access to the record or part.

The view of the Nova Scotia Supreme Court [Jobb V. Nova Scotia (1999)] is that:

“[t]he burden is on the head of the public body to satisfy the court that the applicant has no right to access the information… any doubt as to whether the information sought falls within a legislated exemption from disclosure ought to be resolved in favour of disclosure”.

And in Chesal v. Attorney General (2003) Justice Coughlan required a public body to show that disclosure of information “could reasonably be expected to result in probable harm.”

In the Supreme Court of Canada, former Justice LaForest wrote:

The overarching purpose of access to information legislation is to facilitate democracy. It helps ensure that citizens have the information required to participate meaningfully in the democratic process and, secondly that politicians and bureaucrats remain accountable to the citizenry.

I hope HRM will reconsider its decision with respect to the release of the audit in the light of its obligations under the freedom of information legislation. If it can show that disclosure “could reasonably be expected to result in probable harm,” it should do so.

At the same time though it should consider the importance attached to re-engaging its citizens in the political process. The kind of openness and accountability required by the Act may help satisfy voters that they are part of the process. And it may go some distance in countering low voter turnouts.

I believe citizens are less likely to go out and vote if they feel they aren’t trusted with the information they need to make intelligent decisions in the voting booth.
As Justice LaForest said some years ago, access to information legislation is intended to facilitate democracy.

This article appears in Jun 4-10, 2009.