Public secrets

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 privacy…it 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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This article appears in Apr 2-8, 2009.