Premier Houston's office violated access law twice: commissioner

Premier Tim Houston, who has often criticized the preceding Liberal government of being secretive and unwilling to release documents, has now been found in violation of the province's access to information law — not once, but twice.

Nova Scotia's information and privacy commissioner, Tricia Ralph, released two reports last Friday. In each, she found the premier's office violated Section 7 of the Freedom of Information and Protection of Privacy Act, which requires the office to "make every reasonable effort to assist the applicant and to respond without delay to the applicant openly, accurately and completely." 

The law also sets out a 30-day time frame for getting the job done, unless there's an authorized extension.

The first request was made in August 2021 asking for "records that relate to the province of Nova Scotia's proof-of-vaccination initiative." The second was filed in October 2021 looking for "records that relate to vaccine exemptions issued and provided by the province of Nova Scotia." In both cases, the premier's office failed to respond within the time frame spelled out in the law.

That makes them both a "deemed refusal," according to the commissioner's office.

In her reports, Ralph said in both instances the premier's office blew past the initial 30-day time limit and informed each applicant it would need substantially more time to comply. Ralph said Houston's office responded it would require at least 189 days to gather the necessary documents for the August request and at least 144 days to do the same for the October inquiry.

Missing details

"This is much too long," Ralph said in both reports. "While the political party leading the government did change around the time this access request was made, government as a whole is continuous."

In both cases, the premier's office told the office of the privacy commissioner it would likely need even more time to "conduct consultations" and review the records "for any possible severing prior to release," said Ralph.

"It did not say who may need to be consulted or why," she wrote in her reports.

The premier's office argued the documents being requested in each case were created primarily by the previous government and as a new government, its staff "were not experts in the records created by the former government."

The office also blamed part of the delay on the COVID-19 pandemic.

Ralph has recommended the premier's office complete both requests by the first week in March.

She has also used the occasion to, once again, request the provincial government "create a legislated duty to document, accompanied by strong records management practices and standards, because existing records management policies that are not subject to independent oversight and do not contain sanctions for non-compliance are not sufficient."

Working to complete requests

Ralph's predecessor, Catherine Tully, made similar pleas to the previous Liberal government to no avail.

Because the commissioner only has the power to make recommendations, the government is free to ignore her advice, although in an email to CBC News, Justice Department communications director Peter McLaughlin suggested that would soon change.

"Government will consider any advice and recommendations the review officer offers on changes to the legislation," he wrote. "Nova Scotians want a government that is open, transparent and accountable."

"The government of Nova Scotia has also committed to amending the Freedom of Information and Protection of Privacy Act to give order-making ability to the commissioner."

He said the specific timeline for this amendment remained unclear.

Catherine Klimek, Houston's press secretary, said the timing of the original requests — one right before the change of government and the other soon afterward — made tracking down the information harder because previous government staffers were not available to help.

"Given that the previous two governments, Rankin and [Stephen] McNeil, chose not to disclose and records were not provided, there was a delay," she wrote. "A large part of the delay was because executive council office needed to retrieve them."

Now that the search for documents has been completed, Houston's office has promised to meet the commissioner's 30-day deadline.

"We respect the role of the information and privacy commissioner," she said.