A Canadian centre that promotes democracy around the world is calling for an overhaul of Nova Scotia’s Freedom of Information Act to reduce exemptions and add teeth to the appeals process.
The Centre for Law and Democracy is one of the first submissions to an internal review committee set up by the Progressive Conservative government, about two years after Premier Tim Houston promised reforms during the last election campaign.
The Halifax-based group says the vague wording of existing exemptions allows for wide interpretation that can lead to basic information remaining secret. It says a rewrite is long overdue.
In its submission, released last week, the Centre says many of the exemptions used by government officials to deny access to public documents don’t have clear tests that force the province to show what harm would result if the information were released.
“Access should only be denied if disclosure of the information would create a real risk of harm” to interests such as national security, privacy and public order, the submission says.
In an interview on Friday, Toby Mendel, the centre’s director, said it should be mandatory for civil servants to consider the “public interest” as the overriding factor in releasing documents, rather than the current system which leaves it as a discretionary test.
The report gives the example of existing exemptions where the government is allowed to keep material secret because it could be expected to harm the commercial interests of a public body.
“This would cover cases such as information revealing that the Department of Finance had invested the province’s debt poorly, or even forecasts of bad weather in a summer that could undermine tourism in the province,” the Centre’s report says.
How Nova Scotia stacks up against other provinces
The Centre produced a “Right to Information” score for Nova Scotia’s information system, giving it an overall score of 57 per cent and placing it eighth among Canadian provinces, territories and the federal government.
In its submission, the Centre also calls on the province to give Information Commissioner Tricia Ralph the status of an independent officer of the legislature and the power to make regulations to ensure her findings aren’t ignored.
“Her office should be transformed into a proper legislative office, including being appointed by the legislature, reporting to the legislature and having her budget functionally approved by the legislature,” the report recommends.
Legislative powers would mean that if the province wanted to reject the commissioner’s findings, it would have to go to court and face the commissioner’s lawyers, rather than ordinary citizens facing high legal costs to enforce recommendations the government refuses to follow.
Houston had promised to bring in these kinds of changes during the 2021 election campaign, but in October 2022 he appeared to backtrack on that pledge, saying he had seen the situation differently since becoming Prime Minister.
The current Information Commissioner and her predecessor have said that under the current system, some appeals can languish for up to four years. And even after a favourable decision, citizens can be forced to go to court to get what they want.
“International standards are fairly clear on this issue, calling for a power to order,” the report says. It adds that giving the commissioner this power would lead to faster decisions, as public bodies are more likely to meet a deadline if failure to do so would result in a decision against them.
The Newfoundland approach
Sean Murray, director of research at Newfoundland and Labrador’s Office of the Information and Privacy Commissioner, said in an email that when his province’s law was reviewed in 2014, the Halifax-based centre “was instrumental in making the case for change.” He said the resulting legislation is now among the best in Canada and the world.
However, Mendel noted that Newfoundland and Labrador had an inquiry with three independent commissioners. He and other experts were invited to testify and give advice directly to the commissioners.
This contrasts with Nova Scotia’s internal review, which is overseen by civil servants, he said.
“So far, all we have seen is an opportunity to make submissions. We asked the committee if they would give us an oral hearing. They refused to give us that, which I didn’t take as a good sign because we are … a world-leading organisation with expertise in this area.”