Nova Scotia information czar wants law to put onus on province to comply with rulings

Nova Scotia's government should obey an oversight body's recommendations to release documents or have to convince a judge why they're justified in refusing, the province's information and privacy commissioner recommended Tuesday.

Catherine Tully made the proposal for changes to the province's freedom-of-information laws in an annual report that includes 33 other recommendations she said are needed to bring the province's information and privacy laws into the 21st century.

The Liberal government can currently sit on records and force citizens to go through expensive court battles even after Tully produces a decision ordering their release.

"It currently puts all the costs and the pressure on the applicant ... and it means the oversight we provide isn't that meaningful," she said in an interview on Tuesday. "If public bodies can simply ignore a recommendation, why are we going through all this process?"

Tully said with average wait times of over one year for resolution of complaints, citizens shouldn't also have to cope with the costs of fighting in court.

Of the 14 commissioner reports completed in 2016-17 in Nova Scotia, public bodies rejected all the recommendations in two of Tully's reports and some of the recommendations in four reports.

Information about aquaculture operation remains under wrap

In one recent case, Tully's office ruled in favour of a group of citizens that spent over three years in the review process battling for lab results and veterinary reports from an aquaculture operation.

Yet, the provincial Department of Fisheries and Aquaculture still hasn't complied with her recommendations, and the applicants are now before the courts, said the commissioner.

Changing the freedom of information laws would give bureaucrats pause before blacking out large sections of documents, the commissioner argued.

"It would mean that when they (public agencies) make their decisions, they know if they go to review they would be faced with a more significant oversight authority," Tully said. "So, they'll make better decisions, while it's still in their control."

She said the proposed change would be modelled on Newfoundland and Labrador's new system.

Under the Newfoundland system, the Access to Information and Protection of Privacy commissioner can intervene in the court case to defend a decision.

Strengthening one of Canada's 'most toothless regimes'

Fred Vallance-Jones, an associate professor at the University of King's College School of Journalism, said in an interview that while what Tully is proposing is an improvement, it needs "teeth" to ensure government would comply.

He said in an interview that under the Newfoundland legislation, the commissioner may order the public agency to release the documents if it doesn't go to court within a set timeframe.

"Without some kind of stick it can still just be a toothless regime. Nova Scotia's regime is already currently one of the most toothless regimes in the country," he said.

Vallance-Jones also said he would have preferred Nova Scotia consider a model where the commissioner has the power to order the release of a document, and that public agencies could only seek a judicial review in the courts on the basis of legal errors in the commissioner's ruling.

Nova Scotia Justice Minister Mark Furey declined an interview on the proposals in Tully's report, and a spokeswoman sent an emailed response saying they would review her report.

The 34 recommendations in the report also call for a general strengthening and modernization of the province's access and privacy laws.

For example, Tully recommends governments comply with requests to provide digital records rather than paper.

There have been frequent complaints to her office that government agencies have digital copies or databases, but they insist on providing the information to the applicants in large volumes of paper, she said.

Her report also calls for governments to stop charging people fees for the time officials spend blacking out information in documents.

The report recommends penalties of up to $20,000 in fines if government officials deliberately alter a record with the intent of avoiding an access request.

Tully said she hasn't received solid evidence of officials altering information, but says her office has had complaints that this has occurred.

For the third year in a row, Tully has recommended to the province that she be made an officer of the legislature, so that her hiring or firing is not as dependent on the whim of the government.

Chris d'Entremont, a Progressive Conservative member of the legislature, said his party agrees that the law needs to be changed.

"We need to move ahead with a number of these recommendations, and the first one is to have the commissioner as a full officer of the house of assembly ... rather than as a simple employee of the government," he said.