Catherine Tully’s power to persuade vs government’s power to ignore

If you’re denied access to information even after the information and privacy commissioner has reviewed your request and deemed it legitimate, your only recourse is to take the government to court. At your own expense, of course. It doesn’t have to be that way. It is because it’s in the government’s interest to keep you from knowing.

Information and Privacy Commissioner Catherine Tully.

This column first appeared in the Halifax Examiner November 19, 2018.

Nova Scotians deserve modern access and privacy protections including effective oversight of their rights. Our current laws are no longer up to the task. Consistent with my recommendations last year, I once again recommend that the laws be modernized to ensure that Nova Scotia and Nova Scotians are ready and able to meet the challenges of today and tomorrow.

Catherine Tully
Information and Privacy Commissioner

In Catherine Tully’s “Our Vision” annual-report perfect world, Nova Scotia’s public sector — which encompasses 400 provincial government departments, boards, agencies and commissions, plus municipalities and their police forces and library boards, not to forget another 26,000 “health custodians” — “is open and accountable. Privacy rights of citizens are respected and protected.”

That is our vision. The reality, as documented in Tully’s annual report released last week, falls somewhat south of perfect.

Thanks to the Freedom of Information and Protection of Privacy Act, the Municipal Government Act, Part XX, and the Personal Health Information Act, you can request all manner of public and your own personal information from governments.

But, of course, the official guardians of our public record can just say no. Or not bother to look very hard to find the records you’re seeking. Or delay and delay, and hope you’ll go away.

If you refuse to go away quietly, you can always ask Tully’s office to review the government’s decision. According to her latest annual report, 40 per cent of appeals result from a public body’s “denial of access” to records. “Other areas of ongoing frustration for the public are failure to conduct adequate searches for records and failure to respond on time.”

Interestingly, municipalities accepted the commissioner’s review recommendations in 65 per cent of cases while Stephen McNeil’s provincial minions only released those originally withheld records just over half the time.

They were able to ignore the information and privacy commissioner precisely because the commissioner has no order-making powers. The commissioner has no order-making powers because…

Well, we already know that story. In 2013, at a time when then-opposition leader McNeil was auditioning for an electoral promotion to premier, he glommed on to a report by the Centre for Law and Democracy that criticized the province’s abysmal record of failing to provide its citizens access to their public information. McNeil, in full-hot election campaign fever, immediately and solemnly promised to “expand the powers and mandate of the [information and privacy commissioner], particularly through granting her order-making power.”

McNeil won. His campaign-induced fever quickly broke. He saw the dark light, the power that comes with ultimate control of information. So, you can file that promise where the sunshine don’t shine… ever.

Even after the privacy commissioner herself — in previous annual reports, in a special report including 34 recommendations “to strengthen and modernize Nova Scotia’s access and privacy laws,” in this annual report, in interviews and public statements — has made the case over and over that her office needs to have order-making powers to be effective, McNeil remains his usual obstructionist and obdurate self.

“I ran on a campaign,” McNeil declared in September in full-Trumpian triple-speak, seeking to pretend his 2013 promise was not really an official promise and therefore didn’t count. “Was it in my platform? I didn’t run on that.”

The result is that if you’re denied access to information even after the commissioner has reviewed your request and deemed it legitimate, your only recourse now is to take the government to court. At your own expense, of course.

Most of us can’t afford to do that. What happens when the group seeking information has deeper pockets? Consider this. When the provincial department of fisheries and agriculture refused to follow a review report recommendation seeking information about fish farms in Nova Scotia, that group took the province to court. And won. The Supreme Court ordered all the information released. At great and unnecessary cost to the applicant. And to the rest of us, as taxpayers who had to foot the bill so provincial government lawyers could defend the indefensible.

What kind of information does the government choose to withhold? Well, let’s look at another case referenced in the commissioner’s annual report.

“An applicant requested access to a report made by a public body concerning her. The public body disclosed part of the record and withheld the remainder saying it was third party personal information…”

But when the commissioner’s office reviewed the parts of the file the public body — otherwise unidentified — had withheld, it discovered the blacked-out portions consisted partly of information the applicant herself had provided to the public body.

“Clearly,” the commissioner notes with classic understatement, “the applicant did not mean to keep the information confidential from herself.”

The rest of the withheld information turned out to have been either material “already supplied to the applicant by the public body” — ditto for dumb decision-making — or “other people’s opinions about the applicant.” As the commissioner pointed out to the public body: “The law states that other people’s opinions about the applicant are not the personal information of a third party, rather they are the personal information of the applicant.”

The good news in this particular case is that the public body took advantage of the commission’s early consultation and resolution service to “discuss issues with us before they make a decision.” That saved the unnamed public body embarrassment and taxpayers unnecessary expense.

The problem is that there is still no legislation that gives the information and privacy commissioner more than her too-often-ignored power of persuasion.

Ignore? Consider the infamous case of the camera outside the school can. In May 2017, the CBC reported a Russian website was broadcasting unsecured footage from a surveillance camera placed outside the boys’ washroom at the Rankin School in Iona, Cape Breton. While the school board quickly changed its password after the report, it not only didn’t remove the camera but adjusted it to collect images outside the boys’ and girls’ washrooms.

The school board did consult with the commissioner’s office, but then ignored her most basic advice/warning:

“When evaluating the authority to collect personal information, a public body must consider whether the collection is expressly authorized by law, whether it is necessary for the operation of its program, the sensitivity and nature of the information collected and whether another less privacy-intrusive method is an option… The [school board] has not yet established that its ongoing video surveillance program is in compliance with [protection of privacy laws]. Some identified and foreseeable areas of residual security risk remain and a [privacy impact assessment] has not been completed.”

And so it went.

To review: Why does the commissioner need order-making power?

Order-making power for the Information and Privacy Commissioner would both improve the quality of the evidence provided in support of exemptions and also motivate public bodies to more actively participate in informal resolution. After all, if at the end of the day they are required to comply with the Commissioner’s recommendations, informal resolution will likely be a more attractive option. Informal resolution decreases the time to resolve complaints and, of course, improves the resolution of matters to the satisfaction of both parties.

Will the government ever listen? Not this one.

A version of this column originally appeared in the Halifax Examiner.  
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