Putting bureaucratic foxes in charge of cleaning up the freedom of information henhouse

An internal working group of bureaucrats who benefit from “a culture of disregard for access and privacy laws” are reviewing Nova Scotia’s freedom of information system. What can go wrong?

Tricia Ralph is Nova Scotia’s Information and Privacy Commissioner, the person best positioned to know what’s wrong with our failed and flailing freedom of information system — and how best to fix it.

Last week, she dropped a scathing 48-page submission into the laps of the internal working group of government bureaucrats appointed by the Houston government to review the province’s Freedom of Information and Protection of Privacy Act (passed 1993, proclaimed 1994, sort-of amended in 1999, ignored for much of the next 24 years).

The real problem with the review is encapsulated in that second paragraph: “internal working group” … “appointed by the Houston government.”ous

Ralph, despite her background and expertise, isn’t part of that working group, either as a member or advisor. Neither is anyone else who might have an interest in government transparency and public accountability — people, say, like the rest of us.

Instead, the group is made up of “employees from the Department of Justice’s Policy and Information Management and Legal Services divisions and the departments of Service Nova Scotia and Cybersecurity and Digital Solutions.”

In other words, the same butt-covering bureaucrats who have created and continue to benefit from what the information commissioner calls “a culture of disregard for access and privacy laws, and for the expertise and work of the OIPC [Office of the Information and Privacy Commissioner] in its mandate to ensure those laws are upheld.”

Ralph and the rest of us, of course, are welcome to make submissions to this working group, just as we are free to spit into the wind for all the good it will do.

Early in her submission, Ralph makes a telling point about the process.

The Terms of Reference for the Legislative Review do not indicate that stakeholder submissions will be made public. If stakeholder submissions are kept confidential, then the OIPC … and other stakeholders will lose the ability to provide context to the submissions of others.

The OIPC believes that any amendments to Nova Scotia’s access and privacy laws will benefit when the submissions of those who participate in the Legislative Review are subject to scrutiny from all… The OIPC encourages the Internal Working Group to make public all submissions (subject to any privacy concerns) as well as its findings and recommendations, so that there is an opportunity to respond.

Although the working group has received 100 submissions, we only know about the few submitters who have chosen to make them public, like the Halifax-based Centre for Law and Democracy, which “works internationally to promote those human rights which it deems to be foundational for democracy, including access to information.”

Interestingly, the centre says it offered to meet with the working group to discuss its recommendation-packed 23-page submission.

“The head of the committee refused to meet.”

Even just making all those submissions public would allow us as citizens to measure what ultimately comes out of this review process with what went into it — if anything ever comes out of any of it.

This is Nova Scotia, after all, the province where reviews go to die. And where premiers routinely lie about their election campaign promises of transparency and accountability.

There is not much that is new in Ralph’s submission; not much you — or the internal review committee — couldn’t have found in a Google search of previously released reports (Here, here) Ralph and her predecessor, Catherine Tully, submitted to the government.

Submitted, dismissed, ignored…

But let’s review, once more for the record and for old time’s sake, some of what needs/has needed for far too long to happen to bring our freedom of information laws and process into at least the late 20th century:

  • Make government information public by default, in fact as in law, except in limited, clearly defined circumstances.
  • Make the information commissioner an officer of the legislature rather than a creature of whatever government happens to be in power.
  • Give the information commissioner order-making power. In 2022-23, public bodies only accepted the commissioner’s decisions 65 percent of the time.
  • Give the information commissioner the budget to do her job. There is currently a four-year backlog (!) of requests to review.
  • Give government departments and agencies the resources — and the direction — to respond to access requests in a timely manner.

Beyond those specifics, there is also this, from Ralph’s submission:

The problems plaguing access to information and protection of privacy in Nova Scotia are not solely legislative ones.

There are two main others: cultural and leadership practices that disregard the public’s presumptive right to public body information, and insufficient resources allocated to the access and privacy regime…

In the reviews that my office conducts, we frequently see decisions that disregard the public’s presumptive right to all public body information, subject only to the limited and specific exemptions.

Our ability is further hindered by many public bodies’ approaches to dealing with my office when we conduct reviews of their decisions to withhold information. My office puts a substantial amount of time and effort into helping public bodies understand their legal obligations and explaining to them how and why the laws mean they can or cannot withhold information… Many times, it seems as though public bodies’ engagement with us is more performative than meaningful. I say this because public bodies continue to regularly advance arguments that have long been rejected. They do not address, consider, or rebut our comprehensive analyses, opinions, and recommendations. This results in applicants not receiving transparent or justifiable reasons for why public bodies are withholding information. This is frustrating for me and my staff, but the people who lose out the most in this situation are Nova Scotians. 

“My primary request for this legislative review is a simple one,” Ralph says in the final paragraph of a news release accompanying her submission: “Please let me and my office do our jobs.”

The working group’s report is expected to be delivered to the minister of justice in the spring of 2025 — on the eve of a provincial election. The minister will then find ways to “consider it carefully” until the election is safely in the rearview. If the government is re-elected, the report will be yesterday’s news — filed and forgotten. If another party wins, it will owe no allegiance to a report it didn’t commission.

And the universe will unfold as it always has.


A version of this column originally appeared in the Halifax Examiner

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