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VIBERT: FOI needs fixing as much as POP

Jim Vibert
Jim Vibert - SaltWire Network

The Nova Scotia government is working on a bill to modernize the province’s obsolete privacy law, but it seems content to leave access to public information in the dark ages.

The premier confirmed this week that a new privacy bill is under construction but won’t be ready until the fall session of the legislature. Privacy and access to information are inexorably tied together in one law in Nova Scotia, the Freedom of Information and Protection of Privacy Act, aka FOIPOP.

The government’s interest in updating the 25-year-old privacy law was heightened this week after the province’s information and privacy commissioner said that, in the digital age, the current law isn’t up to the job of protecting Nova Scotians’ private information held by the province.

Catherine Tully noted that when the province’s current privacy law took effect there were just 130 websites worldwide and Google was five years in the future.

Almost two years ago, when Tully first provided the province with that context, she also handed the government a blueprint to modernize the province’s access and privacy law.

After the government was thoroughly and appropriately embarrassed last year by a breach of private information that was entirely preventable had standard cyber-security measures been applied, a 21st-century privacy protection law started making some sense to Premier Stephen McNeil’s Liberals.

Political embarrassment may have helped the Liberal government see the wisdom in providing better protection of private information, but embarrassment isn’t helpful in convincing the government to bring the freedom of information provisions of the law into the new millennium as well.

In fact, the government likes the freedom of information law the way it is precisely because it offers a shield against political embarrassment. Under the existing law, the government can withhold information based on a vague claim that some economic or other harm may be done by its release. If you don’t like their answer, feel free to sue them. They have a whole building full of lawyers.

Maybe an appeal to the premier’s fairly well-honed sense of history, and his own legacy, might rekindle that old flame Stephen McNeil had when he promised to run the most open and transparent government in Canada.

This year marks the 200th anniversary of Province House, Nova Scotia’s working monument to the progress of democracy. Premier McNeil has the opportunity to make a tangible contribution to that progress, by fixing the fatal flaw in the province’s freedom of information law.

The premier agrees with the principle that information held by the government is, by definition, public information, with certain clear and obvious exceptions, most notably health and other personal information.

If information held by the government is by definition public information, it follows that the burden of proof lies with the government to show why information should not be publicly released.

Those principles are engendered in the current FOIPOP law. The fatal flaw is in its dispute resolution provisions.

Currently, if the province refuses to release information, the applicant has a right of appeal to the information and privacy commissioner. The commissioner’s job is to determine whether the government’s reasons for denying access are valid under the law.

But when the commissioner finds the government’s reasons aren’t valid, she can only recommend the release of the information. The government has a well-practised propensity for ignoring such recommendations.

If the burden of proof was effectively on the government, the commissioner would have authority to order the release of information, and the onus would be on the province to appeal that decision to the courts if it disagreed. As it now stands, it’s the other way around. If the commissioner rules against the government, it says “tough,” and it’s on the applicant’s dime and time to take the thing to court and try to pry the information loose. A court challenge is rare given the costs to the applicant.

Access to information is essential to hold the government to account and as a defence against the abuse of power. But in Nova Scotia, the government-of-the-day can dictate by whim or will what information sees the light of day, leaving Nova Scotians defenceless.

Stephen McNeil should fix that.

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