A (Small) Victory for the Right to Know

Catherine Tully, NS Information and Privacy Commissioner

Nova Scotia Information and Privacy Commissioner Catherine Tully (Photo via FOIPOP.NS)

If I were the editor of the Cape Breton Post, which [SPOILER ALERT] I totally am not, I guess I would call what I’m about to write a rave/rant or a rant/rave (there isn’t even a good portmanteau word for that—all you’d get would be “rant” or “rave” which would be dead confusing).

The subject is everybody’s favorite thing—Freedom of Information. Hurrah! And the rave is for Catherine Tully, Nova Scotia’s Information and Privacy Commissioner, who a) did me a solid and b) is calling on Nova Scotia Premier Stephen McNeil to step away from the phone and start properly documenting his official communications.

I didn’t even know Tully had my back (and frankly, she didn’t either, and probably still doesn’t) but someone from her office spoke to the Clerk of the Cape Breton Regional Municipality and explained that, and I quote:

[U]nder the ‘Duty to Assist’ provisions of the [Nova Scotia Freedom of Information and Protection of Privacy] legislation, records that were provided by a public body under another FOIPOP application can be released subject to certain conditions (i.e. personal information or other exemptions under the Act).

The Clerk went on to state that:

The records released did not fall under those exemptions, therefore attached you will find the information that was provided to CBC under their application

Oh Frabjous day! Let information range free! Let the public know all! Let the unredacted documents pour down from the sky like weird, papery rain!

Even in my jubilation, however, I remembered that both the Municipal Clerk and the CBRM Solicitor had been of the opinion I had to submit my own FOIPOP request to see information (about monies paid to the CBRM’s old port consultants, Paul Richardson Associates) that had already been released to the CBC’s Paul Withers . They were very, very certain about this:

CBRM Staff is not at liberty to discuss the contents of CBRM FOIPOP applications nor the names of the applicants. Further there are personal/confidential considerations with all applications, and possibly third party notice and search fees. Thus the onus must be on the applicant to submit an application clearly delineating the records to which they are seeking access.

Not only that, when I did submit a FOIPOP request (having first schlepped to the credit union for a check for the $5 FOIPOP fee—because who writes checks anymore?) I was informed I could not simply ask for the information Withers had received, I had to formulate my own request.

But then along came the Privacy Commissioner’s office and suddenly, I was in the catbird seat—not only did I get the information, I get my five bucks back. (I’ve been daydreaming all day about how I’m going to spend it.)

That jubilation lasted about the time it took to download an attachment from the Municipal Clerk’s email and view my bounty. Which looked like this (which was, in fact, this):



Here’s come the ‘rant’ part…

Okay, that raises more questions than it answers and I’ll clearly have to do more work on this story, but for today, I’m going to be glad our Privacy Commissioner understands the purpose of our FOIPOP legislation. Something which cannot be said for Nova Scotia  Premier Stephen McNeil.

The same day I received my answer from the Municipal Clerk, I also received an email from the Right to Know Coalition of Nova Scotia, a freedom of information watchdog group, calling on McNeil to ban public officials using private email accounts, personal cell phones and tablets for government business. If you don’t know why using private communications platforms for government work is problematic, you clearly failed to register one of the biggest issues in the recent US presidential campaign (or maybe you’re just tired of talking about her damn emails).

The danger of carrying out public policy work using private communication tools, says the Coalition, is that:

[I]t is likely to fall through the cracks of the province’s right to information rules, since officials responding to requests typically only search official databases, and private communications tools may not even be set to preserve information the way official ones are.

Tully herself called for the ban in September, and McNeil responded by…admitting he sometimes calls his colleagues rather than emailing them precisely to avoid their communications becoming public.

Tully (no doubt once she’d picked her jaw up from the floor) called on the provincial government to establish a legal duty to document. The Right to Know Coalition wholeheartedly supports this recommendation and do you know who else does? Me, that’s who, I support this recommendation.

I have spent so much time banging my head against the walls surrounding the information citizens are supposed to have that I am more than ready to march in this parade. I’ll be in good company — I assume Suzanne Legault, the Information Commissioner of Canada, will be one of the leaders. She has said that:

Access to information relies on good recordkeeping and information management practices. When records are not created or appropriately preserved to document decisions…

I’ll take it from here, Suzanne:

…citizens are charged $42,000 FOIPOP fees; processing ATIP requests takes 180 days (or more) and municipalities can’t tell you what their high-priced consultants have done for them.

If I seem particularly het up, it’s because I’ve been reading a lot about the Ben Eoin Marina lately and I discovered something I hadn’t known before: Enterprise Cape Breton Corporation was nominated for the Canadian Association of Journalists’ 2013 “Code of Silence” award, an honor reserved for “the most secretive government or publicly funded agency” in Canada. ECBC got the nod for its fine work on the marina file but lost the award to Whistler, BC. (Note to self: nominate CBRM and/or Port of Sydney Development Corporation for 2016 award.)

The Coalition acknowledges that introducing a duty to document won’t solve all the problems with our “badly broken” FOIPOP system, but it would be a start. Here’s the text they want to see added to Nova Scotia’s FOIPOP legislation:

Proposed Duty to Document
Every public office or local authority must create and maintain full and accurate records, in an accessible form, so as to be able to be used for subsequent reference, containing adequate and proper documentation of the office or authority’s organization, functions, policies, decisions, decision-making processes, procedures, and essential transactions.

(1) The “decision-making process” shall include the selected outcome and all options considered in reaching said outcome, as well as all discussions or deliberations regardless of their level of formality.
(2) This includes records of any matter that is contracted out by a public office or local authority to an independent contractor.

Can I get a, “Hell, yeah!”

I knew I could — you can find out more here.