Last week I reported on the Nova Scotia Information and Privacy Commissioner’s damning critique of the CBRM’s response to my 2015 access to information request regarding the municipality’s decision to award an exclusive port promotion/development contract to Harbor Port Development Partners (HPDP).
Commissioner Tricia Ralph faulted the municipality for withholding 862 pages of information without justification, for failing in its duty to assist me by not conducting a “reasonable search” for records and for breaking the law by withholding documents in full without conducting a line-by-line review. She also knocked the CBRM for blowing off timelines and redacting information (from the 28 pages I was given) that should not have been redacted.
The ball is now in the CBRM’s court and according to what I heard on the CBC on Tuesday morning, the municipality is working on its response to the Privacy Commissioner. If that response is, “We accept your ruling and will release the documents in full,” I say “Huzzah!”
If the response is, “We will give you the documents but charge you a honking great fee” I will protest because, as I discovered perusing the Commissioner’s 2014 ruling on another CBRM FOIPOP:
Fees cannot be charged for work that was already done. It is clear from the documents that have been provided by CBRM that the records have already been retrieved; the search was already completed. Claiming that additional effort is required to respond to the complete scope of the Access Request is not accurate.
(In that case, the applicant made an informal request of a CBRM employee who forwarded the request to the person “responsible for FOIPOP requests.” A full 294 days later, that person contacted the applicant asking that they submit an official access to information request.)
If they say, “We will not give you the documents,” my only recourse would be to go to court, which I cannot afford to do.
I’ve been doing some research into access to information in this province to try to place my particular battle with the CBRM into context and what I’ve discovered (as you may have guessed from the reference to that earlier FOIPOP) is that I am not special.
I gleaned some excellent insight into the subject from this September 2019 panel discussion sponsored by the Nova Scotia Office of the Information and Privacy Commissioner (OIPC) featuring:
Laura Notess, legal officer, Centre for Law and Democracy
Janet Burt-Gerrans, senior investigator and acting director of investigations & mediation, OIPC for Nova Scotia
Michael Karanicolas, president of the Right to Know Coalition of Nova Scotia and Wikimedia Fellow, Information Society Project, Yale Law School
Graham Steele, professor of business law, Dalhousie University, author, former MLA and former cabinet minister
(Fun fact: before coming to Nova Scotia, Tricia Ralph was the legal counsel for the information and privacy commissioner of Nunavut and the Northwest Territories and as of January 2021, Graham Steele will become Nunavet’s new information and privacy commissioner.)
I’d like to consider my case, then, in light of what these panelists had to say on the subject of access to information.
Buck stops…where?
I don’t mean to be rude, but I think there’s an obvious question to be asked about why this municipality is so reluctant to release information.
Under the Municipal Government Act (MGA), the CAO, where one has been appointed, is the “responsible officer” making decisions about such requests. But the CAO can delegate that responsibility, under clause 497:
(1) The responsible officer may delegate to one or more officers of the municipality a power granted to, or a duty vested in, the responsible officer.
(2) A delegation
(a) shall be in writing; and
(b) may contain any limitations, restrictions, conditions or requirements that the responsible officer considers necessary or advisable.
In the CBRM, the municipal clerk, Deborah Campbell-Ryan, also holds the title FOIPOP administrator and access requests are handled through her office. But I’ve noticed that when the clerk sends me a letter regarding a FOIPOP request, she CC’s CAO Marie Walsh. I have not seen the letter delegating responsibility for FOIPOPs to the clerk and cannot say what “limitations, restrictions, conditions or requirements” it contains; therefore, I do not know if the clerk is entirely independent of the CAO in handling these matters.
If there were any questions regarding the laws governing access requests — and given that the Privacy Commissioner says the CBRM actually broke these laws, it seems a few questions might have been in order — I would have thought they’d be directed to Regional Solicitor Demetri Kachafanas. (There are three pieces of legislation governing access to information in this province, FOIPOP, MGA and the Privacy Review Officer Act. During the panel discussion, Janet Burt-Gerrans listed reorganizing and tidying up this “cumbersome, three-act conglomeration” as one of the top five changes she’d like to see to the province’s access to information regime.) But the CBRM is in the process of hiring a new Communications/Information Officer and one of the 21 (!) “main functions” associated with the position is:
- Researching and analyzing legislation, OIPC and court decisions, policies and procedures to provide interpretation, advice and recommendations on privacy and security matters in relation to FOIPOP
Although this person will be expected to advise on what are, in essence, legal matters, a law degree is not a requirement of the job (although “knowledge of Joomla” is). Let’s hope the lucky candidate knows that Nova Scotian courts have established that the province’s freedom of information legislation is to be interpreted — “liberally in favor of disclosure.” See Donham v. Nova Scotia (Attorney General), a 1993 case involving journalist Parker Donham, or O’Connor v. Nova Scotia (Minister of the Priorities and Planning Secretariat, a 2001 case in which Graham Steele represented the appellant.
In fact, something Steele said during the panel discussion strikes me as relevant here. He said that people tend to blame elected officials for the lack of transparency in government, and he agrees they are part of the problem — he said that at the provincial level, the premier’s office will not release information they don’t want to release “and anybody who tells you otherwise is pulling your leg.” This struck me as relevant, given that the mayor of the CBRM at the time I made my FOIPOP request, Cecil Clarke, had a reputation for being secretive — he once went to China on public business without telling anyone he was going, not even his deputy mayor. My FOIPOP was inspired by the fact that he’d been dealing with port promoters in secret for 16 months. And let’s not forget that between 7 January 2014 and 20 October 2015, CBRM council, under Clarke, met in camera 31 times and many of those meetings were not announced publicly in contravention of the Municipal Government Act (MGA). So if “direction from the center” is a factor provincially, could it not also be a factor municipally?
That said, Steele thinks the real problem with our dysfunctional access-to-information system lies with the bureaucracy, beginning with FOIPOP administrators who “have the normal civil service attitude of being defensive.”
“If the civil service had a hockey team,” he said, “it would have six goalies on it.”
But it’s the deputy ministers who, in Steele’s opinion, are most responsible for gumming up the works. As department heads, he says their fear of making mistakes leads them to an over-reliance on exemptions and a failure to interpret the province’s freedom of information legislation “liberally in favor of disclosure.”
This “over-reliance on exemptions” was a factor in my FOIPOP case — the Privacy Commissioner found the municipality was citing exemptions that didn’t apply. Are our municipal bureaucrats worried about making mistakes?
Or is it, as Janet Burt-Gerrans suggests, that they don’t entirely understand how these exemptions work:
…one of the bigger hurdles with these exemptions is, many times public bodies believe that that “may” means that they can apply that exemption to whatever they like, not going through an analysis of whether the exemption actually applies to the information that they’re intending to apply it to, and then deciding whether they want to disclose anyway.
That sounds exactly like what happened in my case — exemptions were applied to 862 pages without any analysis as to whether they actually applied. (And the Privacy Commissioner, who did analyze the documents, said they didn’t.)
Fees
Close-up of assorted Canadian paper currency
I’ve noted my fear that the CBRM is going to try to charge me a fee to provide me with documents it has already collected and that that fee will be unreasonably high. I say this because I have been charged several unreasonably high fees by the CBRM (which, let us not forget, once put a price tag on $42,804.50 on a FOIPOP request).
It turns out my experience with access to information fees is part of a province-wide trend. Burt-Gerrans said the Privacy Commissioner’s office has seen a 143% increase in complaints about fees over the past eight years and that in investigating these complaints, they have come across fees:
…that can only be described as astronomical amounts with very little basis or effort to work with the applicant or put a realistic amount, which leaves the possibility that public bodies use the fee estimate as a way to discourage or dissuade the applicant from continuing with the application.
Burt-Gerrans said they also get complaints about the “fee process,” under which public bodies provide applicants with an estimate for the final fee, then insist on 50% payment up front. And don’t forget the cases in which an applicant pays a hefty fee and receives documents so heavily redacted they can’t be said to have “accessed” any information at all.
Nova Scotia doesn’t track how many applications are abandoned, let alone how many are abandoned because the applicants couldn’t afford the fees, but Burt-Gerrans said:
We do see many cases where the fee is a barrier to an applicant.
The solution, she said, is to dedicate more resources to information requests, so you don’t have public servants trying to deal with them in addition to their regular work, dragging out the time it takes to respond and adding to the cost.
Laura Notess had another answer: proactive disclosure. Putting information out before anyone asks for it.
It was noted that, federally, no fees are charged for access to information requests beyond the initial $5 application fee. Burt-Gerrans said that fee was worth $13,564 to the Nova Scotia government in 2018-2019 a sum she suspected wasn’t enough to handle processing costs. (Here in the CBRM you have to pay it by check or money order — the latter makes no sense because it costs more than $5 to get a money order and the former is anachronistic in a world where most things can be paid for online.)
On the bright side, Burt-Gerrans said they’ve seen “some overall decline” in the amounts charged for information which they think is related to digital records — public bodies are no longer charging up to 20 cents per page for photocopies.
Delays
It took the CBRM 104 days to respond to my initial FOIPOP request. Under Nova Scotia law, the public authority must reply in 30 days, but can apply for a 30-day extension and, “with special permission,” can go beyond that.
Notess said that globally, the 30-day period is outdated and tends to be found in jurisdictions with older legislation. She said lots of countries have much shorter deadlines — as little as five days in some places — reflecting the fact that much data is now stored digitally and retrieving it does not take a lot of time. (She then made an interesting point about federal ATIP responses, which are often provided in CD-ROM form. When first introduced, this represented a giant leap forward from photocopying and shipping hundreds — if not thousands — of pages but in 2020, it represents dated technology. Notess said in her office, where everyone works on a laptop with no CD drive, CD-ROMs are not a particularly convenient format for data.)
Notess also said that the 30-day limit — which often stretches to 60 days or more; Burt-Gerrans said their office has seen a 172% increase in the past two years in the number of requests for time extensions past 60 days — may reflect a broader problem with record-keeping. Are public bodies maintaining good records?
This is a question I have asked myself frequently with regard to the CBRM and that 2014 FOIPOP I cited above contains a section that I find less than comforting. This is related to both fees and delays. The Privacy Commissioner wrote:
I find CBRM has not calculated the fee fairly and accurately in accordance with section 471 of the Act for a number of reasons, including:
- Fees cannot be charged for work that was already done. It is clear from the documents that have been provided by CBRM that the records have already been retrieved; the search was already completed. Claiming that additional effort is required to respond to the complete scope of the Access Request is not accurate.
- Fees cannot be charged for sorting through disorganized filing systems to locate and retrieve the records.
- Fees cannot be charged for time spent for locating or retrieving records in order to prepare the fee estimate.
- Fees cannot burden the Applicant with costs for poor administrative systems.
- CBRM has provided no real explanation of how it could possibly take 23 hours to locate and retrieve the records.
We’re not that far away from 2014, has the CBRM cleaned up its “disorganized filing systems” and “poor administrative systems?”
New broom
Much of the panel discussion focused on what needs to be done to update the province’s 25-year-old access to information legislation, introduced when records were predominantly paper-based, at the very dawn of the internet age. Burt-Gerrans said the definitions are “broad enough” that “you can kind of work with it,” but there are many challenges in the age of social media and electronic communications. (What is a government record? Is a text message a government record? What about multiple email accounts? When do they become public records?)
Steele said the OIPC must have order power to compel public bodies to act on its rulings and public bodies must face consequences if they fail to comply. (Burt-Gerrans suggested that Newfoundland and Labrador’s model might work in Nova Scotia. Their privacy commissioner doesn’t have order-making power, but if a public body does not want to comply with the commissioner’s ruling, the onus is on it to go to court. Michael Karanicolas, though, held out for order-making power, saying the Newfoundland government was already in court trying to get exemptions to the law.)
But even without changes to the legislation, a change in a public body’s attitude toward the legislation could work wonders — if the CBRM were, for instance, to embrace the case law and interpret access to information legislation “liberally in favor of disclosure.”
Karanicolas (who carries around a letter he received from Stephen McNeil in October 2013, a week before McNeil became premier, promising better timelines and order power for the OIPC) says if you want to get strong reforms to access to information, “the best time to do it is right after a government comes to power.”
Because when a government is new on the ground, all the documentation, all the information, all the scandals are basically the property of the previous administration.
We have a new mayor, who says the question of access to information will be on the agenda of the first or second council meeting, and of the 12 councilors, eight are new.
Sounds to me like the iron is hot…
