'Not for now,' says N.S. Tory leader regarding order-making power for info commissioner

The leader of Nova Scotia's Progressive Conservatives made clear last week that if he's re-elected, a key change that he once supported to increase the power of the province's information commissioner is on the back burner, if not dead.

"No, not for now," said Tim Houston, when asked by a reporter on the second day of the election campaign whether he would allow the commissioner to order government departments to release information, rather than merely recommend it.

He also said that the province is carrying out a "scan" of other jurisdictions' legislation and "will look at what's possible."

Houston told reporters that after promising during the 2021 campaign that brought his party to power to give commissioner Tricia Ralph more clout, he changed his mind because several of Ralph's reports called for a wider release of information than he agreed with.

In other provinces, including British Columbia, Prince Edward Island, Alberta and Ontario, a version of an "order-making" power for information commissioners puts the onus to appeal on the province if it disagrees with a review's findings. In Newfoundland and Labrador, there is a "reverse-onus" system where the province must argue in court to reverse the findings of the commissioner.

But in Nova Scotia, the person seeking the information needs to go to court if they want to overturn a government refusal to follow the commissioner's recommendations.

Chender, Churchill promise order-making power

Both the NDP and Liberals in Nova Scotia who have accused the Tory government of lacking accountability are promising to grant the province's information commissioner order-making power if elected on Nov. 26.

"Freedom-of-information requests are being held back from the people," Liberal Leader Zach Churchill said in an interview.

NDP Leader Claudia Chender said in an email Tuesday that, "the NDP would give the privacy commissioner order-making powers. We've been fighting for this for years."

In a Jan. 31 submission to an ongoing review of the Nova Scotia's Freedom of Information Act, Ralph said chronic underfunding has sapped her office's ability to do timely reviews. She also cited "cultural" hostility in government departments to releasing information as a key problem.

As long as civil servants know her findings are optional, she wrote, they can "simply choose to reject" them, while "few applicants can afford to challenge their decisions in the Supreme Court of Nova Scotia."

Statistics in the commissioner's annual report show rejections of the commissioner's recommendations fluctuate. In 2023-24, the province accepted about three quarters of recommendations in 20 review reports; but in 2022-23, less than half of recommendations were accepted from 11 reports. The report also said there is a "four-year backlog" in reviews.

While it may appear governments reap short-term gains from weak freedom-of-information laws, there are political risks as well, says Jeff MacLeod, a political scientist at Mount Saint Vincent University.

"It can contribute to an overall narrative of the Houston government as being unwilling and uninterested in having a public dialogue," he said in a telephone interview.

Houston, while in opposition, was an active user of the legislation. In one high-profile case, his party fought in Nova Scotia Supreme Court to have documents related to a Liberal government contract given to a ferry service made public.

Waterville incident

But he now argues the commissioner's recent reviews have given him "pause for thought." In particular, he has repeatedly cited a February 2022 review favouring the release of information to The Canadian Press about a violent incident at the youth detention centre in Waterville, N.S.

The case extends back to the evening of Sept. 4, 2016, when a melee erupted at the facility after a young person asked to leave his cell. Seconds after permission was granted, a control system unlocked his cell along with several others in the unit. In attacks that came minutes later, four staff were injured.

"There are certain things that just shouldn't be in the public," Houston said last Monday. "We're not talking about somebody asking why their neighbour got a culvert, we're talking about security schematics for a youth detention centre."

The Canadian Press did not ask for security schematics for the detention centre. Rather, it sought records about safety concerns raised by youth detention staff, along with a review of potential risks and management responses.

There was a five-year wait for the review's recommendations, due to backlogs at the commissioner's office.

When The Canadian Press went to the Nova Scotia Supreme Court to enforce Ralph's recommendations, the Justice Department finally released a large portion of the redacted material in its response documents, about seven years after the original review started.

For example, one document released includes a section on "unit dynamics" between youths in the facility at the time and says there was a risk of a "criminal subculture" causing violence to spread. It called for a system to be created to review the suitability of mixing specific individuals "prior to placement or transfer to a unit."

Released documents also showed that furniture was picked up and thrown at staff during the melee. The youth workers identified loose furniture in the facility as a hazard, and called for it to be secured to walls and the floor.

The appeal by The Canadian Press to obtain information that is still being withheld continues before Nova Scotia Supreme Court.

'Very reasonable media request'

MacLeod questioned the premier's use of the case as justification for his opposition to order-making powers.

"It seems to be overreaching," he said. "To say that what seems to be a very reasonable media request for information was asking for information that it wouldn't be appropriate to release, that doesn't seem to be the case here."

Houston's government launched a review process of the freedom-of-information legislation this year led by the Justice Department. The working group overseeing the review is composed of provincial civil servants, who are allowing submissions to remain undisclosed and for meetings to take place behind closed doors.

In her June 19 submission to the review, which Ralph posted on her office's website, she called for a modernization of the law to give her the same powers as are "commonplace in more modern Canadian legislative schemes."