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JIM VIBERT: Top Nova Scotia court reaffirms right to information

P.E.I.'s Privacy Commissioner has concluded that the health information of patients was compromised in two instances, but Health P.E.I. took appropriate action in both cases.
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Nova Scotia’s freedom of information law should be interpreted liberally to ensure the government is “fully accountable to the public,” and to accommodate the public’s right to access all government information, with limited, specific exemptions.

That’s how the province’s highest court sees it, but even a cursory perusal of the government’s responses to freedom of information applications shows the “limited and specific” exemptions have become broad and general. They are apparently applied with reckless abandon to deny access to information, contrary to what the courts have said is the clear purpose of the law.

Not to put too fine a point on it, but the government and the senior civil servants who regularly decide to withhold information are on the wrong side of the law.

This week, a three-judge panel of the Nova Scotia Court of Appeal unanimously confirmed the broad investigative powers the legislature conferred on the provincial Ombudsman and told the province to stop withholding information he needs to do his job.

The ombudsman, Bill Smith, is investigating whether the Health Department’s adult protection services failed in its duty to protect a mentally and physically disabled man, but the department refused to provide the records Smith needed for his investigation. The court found in favour of the ombudsman and his right to the records the government is withholding.

A 33-page decision, written by Mr. Justice Jamie Saunders, dealt exhaustively with the role of ombudsmen, both under the Nova Scotia statute and more broadly.

But Saunders also went to some lengths to reiterate the court’s directions on interpretation and application of Nova Scotia’s Freedom of Information and Protection of Privacy (FOIPOP) Act.

“(W)hile FOIPOP is not central to the outcome (of the ombudsman’s case),” Saunders said the provincial FOIPOP Act needs to be considered in matters related to access to information or personal privacy.

He cited extensively from a 2001 decision of the Court of Appeal that provides “comprehensive directions” as to how the province’s FOIPOP legislation is supposed to work. That decision — or Justice Saunders’s current reference to it — should be compulsory reading for cabinet ministers, deputy ministers and every public employee involved in decisions related to freedom of information.

“Nothing has changed,” Saunders wrote. “Those findings expressing this Court’s interpretation of our provincial FOIPOP’s statutory provisions — unique to Canada and to Nova Scotia — are of the same force and effect today and should inform the attorney general’s position in this and any other case where FOIPOP is engaged.”

That seminal decision — O’Connor v. Nova Scotia, 2001 — noted that Nova Scotia’s FOIPOP Act has three objectives, which collectively are the purpose of the act.

“First, to ensure that public bodies are fully accountable to the public. Second, to provide for the disclosure of all government information, subject to certain exemptions said to be ‘limited and specific.’ Third, to protect the privacy of individuals over their own personal information.”

The court found in 2001, and reiterated this week, that with the FOIPOP Act, the legislature imposed a positive obligation on the government and other publicly funded entities to accommodate the public’s right of access and, subject to limited exemptions, to disclose all government information.

“(T)he legislation in Nova Scotia is deliberately more generous to its citizens and is intended to give the public greater access to information than might otherwise be contemplated in the other provinces and territories in Canada.

“Nova Scotia’s lawmakers clearly intended to provide for the disclosure of all government information (subject to certain limited and specific exemptions) in order to facilitate informed public participation in policy formulation; ensure fairness in government decision-making; and permit the airing and reconciliation of divergent views. No other province or territory has gone so far in expressing such objectives.”

And yet, experience teaches that access to information is limited, while the exemptions seem limitless.

The fatal flaw in Nova Scotia’s FOIPOP law is that it places the onus on the applicant to appeal the government’s refusal to disclose information to the courts. Few applicants are willing to take that step, with its inherent risk of steep legal costs.

But those who do can expect a more thoughtful and sympathetic hearing in court than they’ll get from the government.

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