Legislation changes would provide clout, resources to do the job, says privacy commissioner

Tricia Ralph, the information and privacy commissioner for Nova Scotia, says she has a simple request for the provincial government working group reviewing the province’s access and privacy laws. 

“Please let me and my office do our jobs,” Ralph said in a news release Thursday that accompanied her 48-page submission to the working group.

The commissioner’s submission identifies two major impediments to doing that job: cultural and leadership practices that disregard the public’s presumptive right to public body information and insufficient resources allocated to the access and privacy office.

The Freedom of Information and Protection of Privacy Act (FOIPOP) was passed in 1993, proclaimed in 1994 and amended in 1999.

In 2021, the newly elected Progressive Conservative majority government gave the justice minister a mandate to amend the FOIPOP legislation so that the commissioner would be given order-making power. 

The government announced last year that an internal working group had been struck to review the entire access and privacy legislative framework. The working group will prepare a package of legislative options and recommendations to be submitted to the justice minister.

Four-year backlog

Ralph, appointed information and privacy commissioner for the province in March 2020, said in her submission that 30 years after the law was proclaimed, the issue of governments’ failure to create a climate of openness is still widespread.

It is not emphasized to staff that it is more prudent to release information than to withhold it, Ralph said in her submission.

“In the reviews that my office conducts, we frequently see decisions that disregard the public’s presumptive right to all public body information, subject only to the limited and specific

exemptions spelled out in the laws,” Ralph said.

“My office was created to uphold this right but when we are so underfunded that we’ve had a four-year backlog since 2020, and an ongoing backlog since 2013, our ability to uphold the laws’ goals is significantly hindered,” Ralph said.

“Our ability is further hindered by many public bodies’ approaches to dealing with my office when we conduct reviews of their decisions to withhold information. My office puts a substantial amount of time and effort into helping public bodies understand their legal obligations and explaining to them how and why the laws mean they can or cannot withhold information.”

Ralph said the efforts of the Office of the Information and Privacy Commissioner (OIPC) are frequently disproportionate to the time and effort put in by public bodies, which are usually better resourced and better funded than the OIPC.

“Many times, it seems as though public bodies’ engagement with us is more performative than meaningful. I say this because public bodies continue to regularly advance arguments that have long been rejected. They do not address, consider, or rebut our comprehensive analyses, opinions, and recommendations. 

“This results in applicants not receiving transparent or justifiable reasons for why public bodies are withholding information. This is frustrating for me and my staff, but the people who lose out the most in this situation are Nova Scotians.”

5,000 requests

More than 400 public sector entities fall under the FOIPOP Act and related legislation, including provincial government departments, municipalities, Crown corporations, universities, colleges, health authorities, regional centres for education, agencies, boards and commissions.

In 2022-23, there were more than 5,000 requests for public sector records, nearly five times the volume of 20 years ago, the Justice Department reported.

The actions of public bodies over the past 30 years demonstrate that stronger statutory oversight provisions are needed to protect the public’s ability to exercise their right to information, the OIPC news release says.

Nova Scotians are often wrongly denied access to the information they are legally entitled to and it is common for public bodies to reject recommendations issued by the commissioner to release information to applicants.

“It is clear the current recommendation-making model does not ensure compliance with the law,” Ralph said. 

“Some form of order-making model is needed to hold public bodies to account.”

The commissioner says the office’s lack of independence is another major stumbling block.

Nova Scotia is the only jurisdiction in Canada that has not made its commissioner an independent officer of the House of Assembly, Ralph says in her submission.

Funding model

Seeking budget approval through a department that the commissioner oversees affects almost all aspects of the office’s work, most notably its staffing. 

“I believe the current funding model in Nova Scotia is contrary to the OIPC’s oversight mandate,” Ralph said. 

The OIPC website lists existing staff as the commissioner, an executive director, a director of investigations, a senior investigator and three additional investigators, an intake manager and an assessment and awareness officer.

Ralph said last summer that repeated requests for more OIPC resources have alway been denied.

The commissioner says any future amendments to the FOIPOP Act must be accompanied by adequate funding and a significant cultural change that better respects the public’s right to public body information.

“Legislative changes become hollow if you cannot implement them,” Ralph said.

“More and more, I see a culture of public bodies approaching the laws by withholding everything they can or think they can. This is not in keeping with the purpose, spirit, and intent of the law to give every Nova Scotian the right to all public body information, with few limitations.” 

Public input

Ralph says in the office’s submission that withholding information should be the exception, not the norm. The submission makes it clear that strong leadership is needed to address that issue.

In September, the Justice Department asked Nova Scotians for their input on the legislative review.

“It is important that we update the legislation so that it continues to provide public access to important information held by government while also ensuring it keeps pace with emerging technology and provides the appropriate privacy protections for the digital age,” Justice Minister Brad Johns said at the time, opening the process to public commentary with a Nov. 30 deadline that was later extended to Jan. 31, 2024.

The government will have another chance to deliver on long-promised access and privacy legislation revisions when the House reconvenes for its spring session on Feb. 27 but a department spokesman said Thursday the goal is to introduce legislation no later than the spring of 2025.