New Brunswick’s access regime among the most restrictive in Canada, Globe audit finds

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Before New Brunswick’s department of education changed its gender-identity policy, restricting the ability of students to use their preferred pronouns in the classroom, Education Minister Bill Hogan said the decision to review the issue followed “hundreds” of complaints from concerned parents.

Don Darling, a former mayor of Saint John turned politically engaged citizen, was skeptical. In June, days before the new policy came into effect, he filed an access request – called a right to information request in New Brunswick – for copies of those complaints. He was told via e-mail to expect a response “no later than September 25.”

But that deadline came and went. Mr. Darling e-mailed for updates, but the department would not provide any target response date.

It wasn’t until earlier this month – 108 business days after submitting his request – that Mr. Darling received a response: There had been four written complaints. (Department spokesperson Erika Jutras said the minister’s “hundreds” comment was accurate as of when he made the remark, which suggests the vast majority of complaints were received after the review became public.)

“It’s very discouraging,” Mr. Darling said. “This is a government that says all the time that they’re ‘open and transparent.’ I just absolutely disagree.”

The data back up his criticism.

For the past two years, The Globe and Mail has been investigating the country’s freedom of information regime through a project called Secret Canada. Part of that work included a national audit of every ministry and department’s access practices, at the provincial, territorial and federal level. (Alberta was not included in the audit, because the province – which is now under investigation by the information commissioner – would not comply with The Globe’s requests.)

That audit showed that New Brunswick is among the least accessible jurisdictions in Canada.

In 2021, the province had the second-longest average response time at 72 days, behind only the federal government, which averaged 83 days. The average of all jurisdictions was 55 days. The law in New Brunswick requires institutions to respond within 30 business days, although institutions can extend the deadline in certain circumstances.

New Brunswick was also the least likely jurisdiction in Canada to provide full access to records. Only 5 per cent of requests were returned to applicants in full without redactions, while the overall average was 21 per cent. A total of 68 per cent of access applicants in New Brunswick received a partly redacted response.

One explanation for the province’s poor performance is that New Brunswick’s access law is weak compared with other jurisdictions, said provincial Ombud Marie-France Pelletier, who investigates access complaints.

“The legislation seems to be built around protecting information as opposed to promoting access,” she said. She noted that New Brunswick’s law contains provisions that don’t exist elsewhere, such as a section that protects many records connected to the attorney-general’s office.

The province is one of the jurisdictions in which the appeals body does not have what’s called “order-making power.” This means the Ombud can only make recommendations. Ms. Pelletier cannot force a public institution to release records, even if an investigation determines the institution broke access law. The government has ignored two of the past seven Ombud decisions.

New Brunswick also has no overarching “public-interest” override clause, unlike jurisdictions such as Ontario and British Columbia. This override gives applicants an avenue to advocate for a record’s release – even if it is covered by an access exemption – because of its importance to the public discourse. (While there is no standalone override in New Brunswick, the law does allow institutions to consider the public interest in some specific areas, such as if there is “a risk of significant harm to the environment or to the health or safety of the public.”)

And now, it looks like New Brunswick is poised to make its law even more restrictive.

Earlier this year, the province completed a review of its right to information law – a measure that takes place every four years. The final report included 29 proposed changes to the legislation, some of which could significantly reduce the province’s access obligations.

For example, there’s a recommendation to modify the definition of what constitutes a “record.” The proposal would limit the scope to “existing physical records” – raising questions about digital information such as provincial databases – and to exclude metadata, which covers information such as when a file is created. Another recommendation would make it easier for public institutions to obtain even longer response-time extensions.

Ms. Pelletier has raised her concerns with government – including about the proposed amendments – but nothing has come of it.

With respect to her office’s lack of order-making power, she says she actually prefers a model similar to the one in Newfoundland, which requires the government to appeal to court if they want to disregard an Ombud recommendation. Currently, it’s up to regular citizens to go to court to force government transparency if a public institution chooses to ignore a complaint decision.

Charles Murray, the province’s former Ombud, says placing the onus on requesters to go to court is expensive, time-consuming and not in the spirit of the legislation. He added that public institutions also don’t seem willing to honour precedents set in the courts, so the same issues keep coming up.

For example, in 2019, the managing editor of the Telegraph Journal filed an access request for a licensing agreement between the Harbour Station Commission and a local hockey club. The commission denied access claiming the release would be an “unreasonable invasion of the privacy of third parties.”

When Mr. Murray reviewed the appeal, he concluded that the institution’s denial made no sense.

“I begin with the notion that the public has a right to know how the government is spending money. I don’t consider that controversial,” he told The Globe. “A company that contracts with government has to recognize that they’re contracting with a public entity. If you don’t want to accept that don’t seek to contract with a public agency.”

Mr. Murray recommended that the documents be released. The hockey club asked for a judicial review – and lost. The judge sided with the Ombud’s analysis. Mr. Murray says the case should have made it clear to public institutions in New Brunswick that they need to release this type of financial information to the public.

“But the next time this type of issue came up, we got the exact same arguments. So there was no learning,” he said.

The Globe reached out to New Brunswick’s Finance and Treasury Board, which manages right to information in the province, regarding its access performance. Spokesperson Morgan Bell did not address questions about some of the proposed legislative changes that would limit New Brunswick’s access obligations. However, she highlighted other recommendations that she says would improve the process and reduce response delays, such as a plan to remove exact duplicates from responses.

She also touted a proposal to disclose previously released access requests and noted that New Brunswick is the only Canadian jurisdiction that does not charge any fees – either application fees or processing fees – connected to right to information requests.

But for access advocates in the province, it’s not enough.

Ms. Pelletier said the thing that is especially frustrating is that New Brunswick was once a trailblazer on freedom of information.

“Back in 1978, when the province adopted right to information, it was the second in the country to do so, to recognize the right of access and privacy of its citizens,” she said. “Unfortunately, over the last few decades that’s eroded. We need to get back to a place where New Brunswick is a visionary.”