Politicians fixing freedom of information legislation? Don’t hold your breath

“I had hoped that more than halfway through my five-year term as Information and Privacy Commissioner for Nova Scotia, I would be able to report better news and not have to repeat that the same challenges continue to plague the [Office of the Information and Privacy Commissioner] despite our best efforts to resolve them…

Unlike all other Canadian jurisdictions, my position is not classified as an independent officer of the House of Assembly. Independence requires security of tenure and financial independence from those subject to oversight. In Nova Scotia, the Commissioner files her annual report with the House of Assembly but is required to seek budget approvals through the Department of Justice — a department over which she has oversight. This significantly undermines the perception and reality of the independence of the OPIC…

Despite the mandate to amend [freedom of information and protection of privacy legislation], the OIPC has not been briefed on the status of its implementation. In last year’s annual report, the OIPC updated the 2017 special report entitled Accountability for the Digital Age — Modernizing Nova Scotia’s Access and Privacy Laws. We reviewed access and privacy laws across the country and detailed updates to 34 recommendations to modernize Nova Scotia’s legislation. This was a substantial project that we spent a significant amount of time on — time that was taken away from our ability to focus on our [four-year request] backlog.

We had hoped that by now, government would have proposed a bill to amend the legislation or at the very least, initiated consultations on legislative amendment. Unfortunately, that hope did not come to be. Access and privacy legislation can and should be fairly consistent across jurisdictions. There is no need to reinvent the wheel.

I am hopeful that 2023-2024 will be a year of repair and not one of repeat. The time for change is overdue.”

Tricia Ralph
Annual report
Information and Privacy Commissioner
June 20, 2023.

Tricia Ralph is right to be frustrated, but wrong to be hopeful. This is, after all, Nova Scotia, where our political leaders change their lies to suit their own in/out-of-power circumstances.

Consider that during the 2013 provincial election campaign, then-Liberal leader Stephen McNeil promised — in writing, no less — that if we elected him premier, he would “expand the powers and mandate of the [privacy commissioner], particularly through granting her order-making power.”

We did.

He didn’t.

Five years and one re-election later, in fact, McNeil claimed he hadn’t promised any such thing or, if he did, it didn’t count. “I ran on a campaign,” he explained without explaining. “Was it in my platform? I didn’t run on that.”

Uh… Apparently, he didn’t cross his heart and hope to die, so it didn’t count.

This brings us to Tim Houston. As Tory Opposition leader in 2019, he took the McNeil government to court to pry open details of the government’s secret management contract with the operators of the Yarmouth-Portland ferry.

“The privacy commissioner has said this is information that should be available to Nova Scotians,” Houston declared, conveniently for his purposes at the time citing a finding by then-privacy commissioner Catherine Tully. “So, this is the time to take a stand and say that’s not good enough, government should be better.”

Houston outlined his own supposed political philosophy in his 2021 campaign pitch: “Words matter. Promises matter. That’s what is too often missing in politics.”

Right. He did promise. He just never said he would deliver.

During that 2021 campaign, Houston upped the ante, arguing the McNeil government’s lack of transparency undermined democracy.

“Every time you undercut democracy, you turn people off from democracy. People think, ‘It just doesn’t matter.’”

It mattered to Tim.

“A Progressive Conservative government is one that will have the courage to be held accountable by the people. It is one that will be transparent. That means giving order-making ability to the [privacy] commissioner.”

In the week before he was sworn in as premier, Houston publicly reiterated that promise. “I know that there are lots of Nova Scotians that have put in legitimate information requests that have got a lot of pushback, a lot of hurdles. We’re going to work with the privacy commissioner to make sure that the proper authority is there so that Nova Scotians have access to the information that they rightly should have access to.”

Houston even issued a marching-order mandate letter to Brad Johns, his new Attorney General and Minister of Justice. “You will… amend the Freedom of Information and Protection of Privacy Act to give order-making ability to the Privacy Commissioner.”

“You will…” Not you might if you feel like it.


But not really. Remember, we’re still in Nova Scotia.

Less than two months into his first term, Houston had already begun backtracking, insisting that while he, of course, remained committed to the idea of giving the commissioner the power she needed to force government departments to comply with her orders… well, really, what was the rush?

Let’s appoint a committee instead.

Flash forward to today. After nearly two years on the Houston majority do-what-it-wants governance clock, the premier has chosen to do nothing.

Responding to complaints in the commissioner’s latest report that the system is “barely” functioning — the four-year complaints backlog, the lack of adequate staffing, the failure to update the system for the digital age and the Houston government’s own abysmal track record of ignoring more than half of Ralph’s “recommendations” — the premier’s press secretary issued a blandly unrevealing yet revealing statement to the Globe and Mail:

An internal committee is in place to develop a plan for reviewing the FOIPOP legislation. No decision has been made about granting order powers and the decision will not be made until the review is complete,” she said.

Let’s parse that.

“An internal committee…” The committee doesn’t include anyone from the privacy commissioner’s office and apparently, according to the commissioner herself, hasn’t bothered to consult with her.

“Develop a plan for reviewing the FOIPOP …” There is no plan. There likely isn’t a committee. If there is a committee, it probably hasn’t met.

“No decision has been made about granting order powers…” Houston’s mandate letter to his justice minister, instructing him to amend the act to provide those powers?

Just kidding.

“The decision will not be made until the review is complete.” Translation: Don’t hold your breath.

Only in Nova Scotia? Pity… pity us.


A version of this column originally appeared in the Halifax Examiner

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