Democracy group urges overhaul of Nova Scotia’s right to information law

A Canadian centre that promotes democracy around the world is calling for an overhaul of Nova Scotia’s freedom of information law to reduce exemptions and give the appeal process more teeth.

The Centre for Law and Democracy is among the early submitters to an internal review committee created 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 redraft is long overdue.

In its brief, released last week, the centre says many exemptions used by government officials to refuse access to public documents don’t have clear tests that force the province to show what damage would occur if the information were released.

“Access should be denied only if disclosing the information would pose a real risk of harm,” to interests such as national security, privacy and public order, the submission says.

In an interview Friday, Toby Mendel, the director of the centre, said it should be mandatory for civil servants to weigh “public interest” as an overriding factor in releasing documents, rather than the current system that leaves this 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 hurt the economic interests of a public body.

“This would cover such cases as information revealing the fact the ministry of finance had invested the province’s debt poorly or even predictions of poor weather one summer, which might undermine tourism in the province,” the centre’s report says.

How Nova Scotia compares to 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 status as an independent officer of the legislature and order-making powers that will ensure her findings aren’t ignored.

“Her office should be transformed into a proper legislative office, including that she is appointed by the legislature, reports to the legislature and has her budget actually functionally approved by the legislature,” the report recommends.

Order-making powers would mean that if the province wants to refuse the findings of the commissioner, it would have to go to court and face the commissioners’ lawyers, rather than ordinary citizens facing large legal costs to enforce recommendations that the government refuses to follow.

Houston had promised during the 2021 election campaign to bring in these kinds of changes, but in October 2022 he appeared to pull back from the pledge, saying he has viewed the situation differently since becoming premier.

The current information commissioner and her predecessor have said that under the existing system, some appeals have languished for as long as four years. And even after a favourable decision, citizens can be forced to go to court to obtain what they are seeking.

“International standards are fairly clear on this issue, calling for order-making power,” says the report. It adds that giving the commissioner this power would lead to more rapid decision-making, as public bodies are more likely to comply with a timeline if failing to do so would result in a decision against them.

The Newfoundland approach

Sean Murray, the 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 rated 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 provide advice directly to the commissioners.

This contrasts with Nova Scotia’s internal review overseen by civil servants, he said.

“So far, all we have seen is an opportunity to provide submissions. We did ask 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 organization with expertise in this issue.”

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