CBRM Proclaims ‘Right to Know Week’ With Straight Face

The agenda for Tuesday night’s Cape Breton Regional Council meeting included the proclamation, sponsored by Deputy Mayor Eldon MacDonald, of September 25-October 1 as Right to Know Week, the purpose of which is to “raise awareness of an individual’s right to access government information, while promoting freedom of information as essential to both democracy and good governance.”

I know, right? The CBRM proclaiming Right to Know Week is like Don Cherry proclaiming Swede Appreciation Week.

The CBRM has so little respect for its citizens’ right to know, it’s trying to charge one of them $42,804.50 for an access-to-information request. Our mayor once presided over 31 in camera council meetings (none of which was announced publicly) in 22 months. That would be the same mayor who once hid a publicly funded report from council for seven months.

But this doesn’t really make the CBRM an outlier in the province or the country. Neither Nova Scotia nor Canada has a particularly stellar reputation when it comes to access to information — our premier communicates with his staff by cell phone to avoid creating publicly accessible records; Canada’s information commissioner Suzanne Legault says the federal government uses the access to information law as a “shield against transparency.”

Just how far we have to go as a country, a province or a municipality becomes clear when you consider the 10 principles of the Right to Know movement:

 

10 Principles on the Right to Know

1. Access to information is a right of everyone. Anyone may request information, regardless of nationality or profession. There should be no citizenship requirements and no need to justify why the information is being sought.

We do pretty well here. Provincially, you do not have to be a Canadian citizen or a citizen of Nova Scotia to make an access-to-information request. Federally, you don’t have to be a citizen or permanent resident but you must be “an individual or corporation currently present in Canada” to do so. You do not have to justify why the information is being sought and your profession is not an issue with either level of government. So far, then, so good.

2. Access is the rule–secrecy is the exception! All information held by government bodies is public in principle. Information can be withheld only for a narrow set of legitimate reasons set forth in international law and also codified in national law.

This isn’t the approach taken in Nova Scotia (or Canada, for that matter). Secrecy is the rule, access the exception. One example will suffice: the province of Nova Scotia will not release passenger stats for the (publicly subsidized) Yarmouth ferry service. Do you know how Tim Bousquet of the Halifax Examiner gets those stats? He asks the director of communications for the City of Portland, Maine to send them to him each month — and she does.

3. The right applies to all public bodies The public has a right to receive information in the possession of any institution funded by the public and private bodies performing public functions, such as water and electricity providers.

Did you catch that? Do you know what that means? That means Business Cape Breton, the Cape Breton Partnership and Destination Cape Breton, all of which are funded by the public, should be subject to access-to-information requests as should Nova Scotia Power, which performs a public function. I’m thinking internet providers, which both receive public subsidies to provide service to rural areas and perform public functions, should also be included. And yes, I’ve always dreamed in technicolor.

4. Making requests should be simple, speedy, and free. Making a request should be simple. The only requirements should be to supply a name, address and description of the information sought. Requestors should be able to file requests in writing or orally. Information should be provided immediately or within a short timeframe. The cost should not be greater than the reproduction of documents.

Simple, yes: requesting information either federally, provincially or municipally is reasonably simple, although sometimes trying to formulate precisely the right questions is like playing Battleship: you feel like the bureaucrat knows exactly the information you’re trying to target, but will not — or, more generously, cannot — tell you unless you score a direct hit with your question.

Speedy? Not on your life. I am currently awaiting a response to a federal access-to-information request that has gone well over the 120-day extension I agreed to. This is because ATIP response is clearly not a government priority and the department in question has not assigned sufficient staff to it. The CBRM, in my experience, frequently requests more than 30 days to respond to FOIPOP requests as does the province.

As for free, that is the case federally but not provincially or municipally.

In the case of the CBRM, making information available free of charge would first mean waiving the $5 application fee which must be paid by check or money order. (I had to order checks, which I use for literally nothing else, specifically for CBRM access-to-information requests. I chose the check option because the clerk at Canada Post told me it would cost $7.50 to send a $5 money order within Canada. At least the province allows you to pay by Interac.)

What adhering to this principle would really mean is that the CBRM could not charge a citizen $42,804.50 to complete a FOIPOP request nor could the province charge $3,000. If the deputy mayor really wanted to celebrate Right to Know Week, he would have waived that outlandish $42,804.50 fee.

5. Officials have a duty to assist requestors. Public officials should assist requestors in making their requests. If a request is submitted to the wrong public body, officials should transfer the request to the appropriate body.

In my experience with the federal and provincial governments, this has been the way the system works, so bravo for that. My experience with the CBRM, on the other hand, has been that the municipal clerk (who is responsible for access to information requests) will tell you where you should address your request but will not always transfer it.

6. Refusals must be justified. Governments may only withhold information from public access if disclosure would cause demonstrable harm to legitimate interests, such as national security or privacy. These exceptions must be clearly and specifically defined by law. Any refusal must clearly state the reasons for withholding the information.

Notice the “legitimate interests” listed do not include economic interests, although the Section XX of the NS Municipal Government Act (MGA), which governs municipal access to information, includes protection of economic interests — chiefly those of the municipality — as a legitimate reason for refusing to disclose information. That protection extends to third parties where the release of information “could reasonably be expected to result in the premature disclosure of a proposal or project or in undue financial loss or gain.”

Nova Scotia also allows municipalities to refuse to release information that is subject to solicitor-client privilege. It’s an exemption that has come under fire from the Halifax-based Centre for Law and Democracy (CLD), which said in a 2013 report:

…government counsel often play a range of roles in policy development, planning and administration which are functionally similar to those of their non-legally trained colleagues. It is difficult to see why protection should apply to this advice just because it happens to come from a lawyer. Furthermore, the solicitor-client privilege exception as currently worded provides tremendous potential for abuse since, if government officials want particular discussions to be exempt from disclosure, all they need to do is bring a lawyer into the room.

Behold this July 2016 briefing note for PMJT, extolling Liberal govt's firm commitment to transparency and access-to-info reform (Dean Beeby via Twitter)

Behold this July 2016 briefing note for PMJT, extolling Liberal govt’s firm commitment to transparency and access-to-info reform (Dean Beeby via Twitter)

7. The public interest takes precedence over secrecy. Information must be released when the public interest outweighs any harm in releasing it. There is a strong presumption that information about threats to the environment, health, or human rights, and information revealing corruption, should be released, given the high public interest in such information.

Let me think, can I illustrate this with a recent, local example? Oh yeah! What about the environmental impact assessment of the property the CBRM wishes to buy from businessman Jerry Nickerson for the construction of the second cruise ship berth?

8. Everyone has the right to appeal an adverse decision. All requestors have the right to a prompt and effective judicial review of a public body’s refusal or failure to disclose information.

“Prompt and effective” are the key words here. Nova Scotians have a right to a review by the Information and Privacy Commissioner’s Office. Under the present commissioner, Catherine Tully, wait times for such reviews — which were measured not in months but years — have been reduced. CBC reporter Michael Gorman’s reporting on the financial scandal surrounding the former CEO of the IWK Health Centre is interesting for many reasons, but the aspect that leapt out at me was that he appealed a FOIPOP in January and got a ruling by September. That’s still too long, but it beats waiting two years.

In Gorman’s case, the IWK bowed to the Commissioner’s ruling and released further information but it didn’t have to — the Commissioner has no ability to enforce its decisions, another issue Tully raised in her most recent report.

9. Public bodies should proactively publish core in formation. Every public body should make readily available information about its functions and responsibilities, without need for a request. This information should be current, clear, and in plain language.

Amen to that! At the municipal level, why not put reams of public information on the CBRM website? The data base of municipal properties announced at council last night by the municipality’s technical officer John MacKinnon sounds like a great start.

10. The right should be guaranteed by an independent body. An independent agency, such as an ombudsperson or commissioner, should be established to review refusals, promote awareness, and advance the right to access information.

This isn’t the case in Nova Scotia, as Tully noted in her most recent report:

There are a variety of core elements of independence missing in Nova Scotia’s model including the fact that the Commissioner is not an independent officer of the legislature and that public bodies can simply choose to ignore the Commissioner’s recommendations.

 

Same time, next year?

I’m guessing that, despite Tuesday night’s acknowledgement that Right to Know Week exists, the CBRM will do nothing to mark it. But there’s always next year, so if Deputy Mayor MacDonald is serious about respecting citizens’ right to know, he has 12 months to bring to council concrete proposals for doing so. He can start slowly, maybe something like:

Be it hereby resolved the Cape Breton Regional Municipality will not charge sums in excess of the median annual Canadian salary ($33,000) to complete access to information requests.

Who would have the nerve to vote “no?”

 

 

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