Province withholding records about proposed Fredericton jail from ombud
Department of Justice and Public Safety claims information is protected under cabinet confidentiality rules
The New Brunswick government has doubled down on withholding records about a new jail in Fredericton, refusing to provide the ombud with copies of records that could help explain its decision to build the jail, which is expected to cost more than $30 million.
It's the latest example of the Higgs government withholding information or not creating records that could help the public understand significant government decisions.
Last year, CBC News asked the province for all records that detail the need for a new jail, such as records that discuss the business case for the jail or capacity issues within existing correctional centres.
The Department of Justice and Public Safety refused to provide any records in response to that request, saying all the records are exempted under sections of the right to information law that protect confidential cabinet documents and advice to a cabinet minister.
Now, the department has also refused to provide copies to the provincial ombud, Marie-France Pelletier, whose office handles complaints about right to information.
The province claims all of the records are protected under cabinet confidences, one of only two reasons the law allows the department to not produce records to the ombud for review. The department could still hand over the records to the ombud if it wishes, but the ombud can't force the department to do so.
It means the ombud has to try to determine whether the records were properly withheld from CBC without actually being able to look at them, and relying only on a description of what is in those records.
"Having reviewed all records and explanations from the department, I was of the view that the department may not have properly withheld access to all relevant records, and invited them to reconsider its position," Pelletier's office told CBC in an update last month.
"Unfortunately, the department was not amenable to changing its minds, and maintained its original position that you are not entitled to access to any records."
'A witch hunt'
Public Safety Minister Kris Austin said he would look into why the department won't turn over the records to the ombud for review.
"I'll go back to the department to make sure the proper process has been followed and if it hasn't, then we will release those documents if required," Austin told CBC on March 31.
"We have nothing to hide. There's no secret here. Again, the data's clear, the facts are clear. A new jail is needed and a new jail will be built."
Austin said the government has released "all the information" related to capacity issues and the need for a new jail.
He couldn't explain why the government is withholding records about capacity issues within the correctional system as confidential cabinet documents.
"As far as the data, the business case around building the jail, the data is there," Austin said.
"I've given that to you numerous times. We've had this discussion. So if you want to go on a witch hunt on this building a jail, that's up to you. But I think the data is pretty clear."
During a legislative committee on Wednesday, Premier Blaine Higgs said he's asked the deputy minister and clerk to look into the department's refusal to hand over the records.
"I would add that, given that a decision has already been made, that in the interest of transparency and maintaining confidence in our institutions, that it would be hard to justify not releasing that information," Liberal MLA Robert McKee said before asking the premier if he agrees.
"Yes, I think I do agree," Higgs replied. "We have a situation in the province that goes deeper than simply incarceration."
Jail not mentioned in 2018 or 2020 platforms
Plans to build a new jail were announced in December 2021. Ted Flemming, who was public safety minister at the time, said crime was trending up, and the system was "stretched" to capacity.
The expenditure didn't appear in the Progressive Conservative platform from the 2020 provincial election or in the party's 2018 platform.
Speaking to reporters about the jail last year, Austin suggested anecdotes he's hearing about crime and the need for a new jail carry more weight than data.
"The problem we're having with the data is the data is not accurately relaying what we're seeing on the ground, and what we know," Austin said in November. "What we're hearing from municipal police forces, from RCMP, from mayors, from councillors, from residents."
Pressed for data, the department cited figures that show the male correctional system had an average of 512 people in it as of Dec. 31, which would be more than 40 people over the capacity of 470.
But in reality, provincial jails were only over capacity by eight people on average during that timeframe, a CBC analysis found.
- Austin leans on top cops, crime data to make case for more police spending
- Change in the way N.B. counts people in jail makes the correctional system seem more crowded
The stark difference stems from a change the province made to the way it calculates the number of people in provincial jails, capturing people who the department says it is still responsible for but who aren't actually physically present inside a correctional centre.
'It's perfectly defensible to build this jail'
As of March 31, Austin said there were 450 men inside provincial jails, which is under the capacity number of 470. Another 18 men were being monitored by ankle bracelets on this date, the minister said.
Criminologists who have previously spoken to CBC have argued that building a new jail won't reduce crime or make the public any safer, and the money could be better spent on things like mental health care, addiction and housing.
Austin has defended the government's decision.
"We know that these capacity issues continue in our correctional facilities in New Brunswick and as a result, we have to build more capacity," the minister said on March 31.
"Our population is growing in New Brunswick, which inevitably is going to play a part in that. So look, it's perfectly defensible to build this jail. I stand by that, and I think the data clearly shows the need for it."
No order-making power
Since the department wouldn't reconsider its position, CBC's complaint has been sent to ombud Pelletier to determine whether a formal investigation is needed.
But even if the ombud disagrees with the decision to withhold the records from CBC, Pelletier doesn't have the power to order the government to release them.
Information commissioners across Canada, including the previous New Brunswick ombud, issued a statement calling for this power as recently as 2019. The commissioners also called for the power to impose penalties, fines or sanctions when the law is broken.
Some provinces, including Prince Edward Island, Quebec, Ontario, British Columbia and Alberta, have already given their information commissioners the power to issue orders.
New Brunswick launched a review of its right to information and privacy law last fall, but order-making power doesn't appear in the review report or its list of recommendations. Nor does the power to issue penalties, fines or sanctions.
As part of that review, the government called for people to submit feedback on the law and how it's applied. There were 53 submissions in total, including 34 from members of the public, according to the government's report.
CBC New Brunswick submitted feedback as part of the government's review. That submission called for order-making power, among other changes.
Ottawa-based public interest researcher Ken Rubin has spent decades navigating access to information laws across Canada.
He questions how all the information about the new jail could be protected as confidential cabinet documents when the government has already publicized its decision to build the jail.
"It's one thing if the cabinet hadn't or the government hadn't announced it, then you would think that a certain amount of planning is underway, some of it might be advice," he said.
"A lot of it's just cost figures and construction figures like cost estimates … even if a contract hasn't been signed, there's a certain degree of information that has nothing to do, basically, with cabinet anymore. Just get on with it and release what your department records are."
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With files from Jacques Poitras
