Nova Scotia watchdog calls for overhaul of province’s FOI laws

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In a forceful submission to the Nova Scotia government, provincial Information and Privacy Commissioner Tricia Ralph is calling for stronger powers for her office and an overhaul of the province’s access law, which she says public institutions are routinely disregarding.

“My primary request for this legislative review is a simple one – please let me and my office do our jobs,” Ms. Ralph said in a statement accompanying her office’s submission, which was sent to an internal government working group tasked in September with delivering recommendations that would “modernize” Nova Scotia’s approach to freedom of information.

Last summer, Ms. Ralph told The Globe and Mail that the province’s access system was “barely” functioning. Her office, which mediates access and privacy disputes and oversees compliance with the law, has a four-year backlog of files to review.

Freedom of information laws, also known as access laws, promote government transparency by allowing anyone to request documents from public institutions, even if those documents would not otherwise be released publicly. Institutions are required to fulfill those requests, with limited exceptions.

In 2023, The Globe launched its Secret Canada project, an investigation into the state of Canada’s freedom of information systems. The examination found that public institutions across the country are routinely breaking these laws by overusing redactions, violating statutory time limits and claiming “no records” exist when they do. And these organizations face few – if any – consequences for ignoring the precedents set by courts and information commissioners.

Ms. Ralph’s office’s submission, published on Thursday, outlines 32 recommendations touching on the Atlantic province’s freedom of information and privacy regimes. The recommendations include proposed changes to her office’s funding model that would increase its independence from the government. The submission also calls for clarifying the grounds on which a public institution could withhold records, among other things.

Secret Canada

The document says the province’s “deteriorating” access system has become “appalling” and “demoralizing.”

“It’s intentionally strong,” Ms. Ralph said of the submission in an interview. “I’m frustrated, and not for me. This isn’t about me. The people who lose out the most from this are not my office – it’s the public.”

“The issues that are coming up in my office are a lot of the same thing over and over again,” she said. “Every annual report, I feel like I’m saying the exact same thing over and over again: Please give me staff, please do a better job of complying with the laws.”

Ms. Ralph is one of only a handful of information commissioners in Canada who do not have so-called “order-making powers,” meaning she can’t direct the government to disclose records. She can only issue recommendations – and those aren’t always followed. According to her office’s submission, in the 2022-23 fiscal year public institutions accepted her decisions just 65 per cent of the time. When Nova Scotia Premier Tim Houston was in opposition, he pledged to give the information commissioner the power to issue orders.

Nova Scotia was the first Canadian jurisdiction to enact a freedom of information law, in 1977. That law was replaced with its current incarnation in 1993, and was last substantially updated in 1999.

Andrew Preeper, a spokesperson for the Nova Scotia Department of Justice, said the working group will prepare recommendations for the province’s Justice Minister, including legislative options. “The goal is legislation no later than Spring 2025,” he said, adding that the group has received roughly 100 submissions. (The working group has asked media organizations, including The Globe, for their input. The Globe has not yet made a submission.)

Ms. Ralph’s counterpart in British Columbia also blasted his province’s approach to access this week, with a report showing response times to freedom of information requests have risen to their worst level in 13 years – an average of 85 business days, compared to 30 a decade prior.

B.C. Information and Privacy Commissioner Michael McEvoy’s analysis of the past three fiscal years of requests found the province was meeting its own legislated 30-day benchmark for answering these requests in just over half of cases. The lag is occurring despite the fact that requests by reporters and rival political parties dropped off a cliff when the province started charging a controversial $10 fee in November, 2021, according to the report.

The B.C. government told Mr. McEvoy the poor performance could be blamed on the pandemic throwing various ministries into disarray, and on access requests becoming more complex and involving many more pages of information.

Toby Mendel, executive director of the Centre for Law and Democracy, a Halifax-based human rights organization that scores the world’s access laws and ranks them by relative strength, praised Ms. Ralph’s office’s “punchy” recommendations.

According to the Centre for Law and Democracy, Nova Scotia’s legislation currently ranks eighth among Canada’s 14 freedom of information jurisdictions. The centre made its own submission to the working group last year.

Mr. Mendel said Ms. Ralph seems to be following an arc traced by many commissioners before her. “This is something that you find with information commissioners who have been in their post for a while,” he said. “They get increasingly frustrated with the system.”

Nevertheless, he said, he welcomes the opportunity for reform. “We’re always hopeful. You’ve got to be hopeful in this business.”