How it began
Mr. Houston Goes to Court, 11 Feb. 2019 (Source: Twitter)
The photo shows then-opposition leader Tim Houston striding purposefully toward the Supreme Court of NS where, according to his accompanying tweet, he:
…filed an appeal…to fight for answers. The Liberals have been hiding information from Nova Scotians for too long. While this lawsuit focuses on the management fee paid for the Yarmouth Ferry, it’s about standing up to this Government.
Those of us who get excited about access to information (you know who you are) took heart in the spectacle of a Tory opposition leader taking a Liberal government to court over access to information: Houston certainly seemed to understand the lengths to which a person must sometimes go in this province to get information that should have been public in the first place. In fact, he seemed to understand that these lengths were not possible for the average Nova Scotian who, as he said “couldn’t bring this forward” because they didn’t happen to have a chief of staff who was also a lawyer.
Hell, he seemed to understand why access to information is important more generally:
If I have the privilege to be premier of this province, I’m sure that giving order-making power to the privacy commissioner … will at times cause a bit of embarrassment for the government. But you have to take that. That is what democracy is built on …. That will force better decision-making all along the way.
So when, as premier-designate in August 2021, Houston said he would make good on his campaign promise to give Nova Scotia’s Privacy Commissioner order-making power, which would shift the onus to governments or third parties to prove information should remain confidential, there was reason to believe he might (unlike Liberal Premier Stephen McNeil before him) be telling the truth.
Certainly, privacy commissioner Tricia Ralph seemed hopeful, as the CBC’s Michael Gorman reported:
Ralph has not talked yet with Houston, but welcomed the news and said she hopes to also be consulted during a review of the legislation, which hasn’t had a substantive update since 1993.
She’s also feeling optimistic about what three new term positions her office is about to receive will do to help address an appeals backlog that has about 420 files.
How it’s going
This week, Ralph issued her office’s Annual Report for 2022-23 and her disappointment in Houston’s government is evident from the jump:
I had hoped that more than halfway through my five year term as Information and Privacy Commissioner for Nova Scotia I would be able to report better news and not have to repeat that the same challenges continue to plague the OIPC despite our best efforts to resolve them. However, the same two issues continue to dominate our work at the OIPC:
- Lack of sufficient resources resulting in a significant backlog of files.
- Outdated legislation that is not up to the task of protecting Nova Scotians’ access and privacy rights.
The cover of this year’s report includes this rather pointed graphic:
Ralph writes that the government gave the Minister of Justice a mandate to amend the Freedom of Information and Protection of Privacy Act (FOIPOP) in September 2021 to give order-making power to the commissioner.
This change, she believes, “would improve the quality of evidence public bodies, municipalities and health custodians provide to support their decision when they refuse access to information” and “motivate” such bodies to “more actively participate in the review process with the OIPC” with a view to resolving the issue informally rather than having to comply with an order from the commissioner. (Resolving issues informally seems to be something the OIPC is good at—the report says 83% of review files were resolved this way in 2022-2023.)
But Ralph says that just as big an issue as order-making power is independence:
Unlike all other Canadian jurisdictions, my position is not classified as an independent officer of the House of Assembly. Independence requires security of tenure and financial independence from those subject to oversight. In Nova Scotia, the Commissioner files her annual report with the House of Assembly but is required to seek budget approvals through the Department of Justice – a department over which she has oversight. This significantly undermines the perception and reality of the independence of the OIPC.
Ralph writes that the four-year backlog she inherited when she took the job persists “predominantly due to a lack of human resources.” The three, two-year positions that were added last year have proved largely ineffectual because:
…as is common with term positions, some left for permanent positions elsewhere. On top of that, the access and privacy fields are fairly niche ones so most new investigators that come to work with us require about six months of training. As a result, the gains we hoped to see were not as significant as we had anticipated.
The OIPC, she says, has “repeatedly” made requests for more staff “supported by detailed rationales and evidence of why they are needed” but these requests have been rejected by Premier “That is what democracy is built on” Houston.
It is, she concludes, “long past time” that government make the right of access to information and privacy in Nova Scotia a priority.
