Why Stephen McNeil won't fix FOIPOP rules

Catherine Tully sounds like a nice person, but does she know what she’s getting herself into?

Nova Scotia’s new freedom of information and protection of privacy (FOIPOP) review officer starts work on Sept. 8. She assumes an important role in a system that’s badly broken, and which is beyond her power to fix.

Why should anybody care?

Simply this: Everybody in government is paid by us. Everything they do is supposed to be for our benefit. So we have every right to know, in detail, what they’re up to.

But let’s face it: we’re all busy. Regular folks don’t have time to dig around inside the bowels of government for information.

For that, we have specialists. We call them reporters. Or the opposition. Or academics. Or just a private citizen on a mission. 

They’re keeping an eye on our government for us, and they need the tools to pry information loose. 

Nova Scotia had the first FOIPOP law in Canada, in 1977. It was weak. A serious FOIPOP law wasn’t passed until 1993. Ever since, the provincial government has been trying, and failing, to live up to the law’s promise.

It takes too long to get information.

Too much information is withheld.

The review office is badly backlogged.

And nobody can afford to go to court.

And yet the premier said last week that, as far as he’s concerned, the system is working well.

No, Mr. Premier, the FOIPOP system is not working well.

Worse than in a developing country

The Halifax-based Centre for Law and Democracy, a world leader on information and media laws, last September said the Nova Scotia law has “major problems” and that it is “significantly weaker than transparency legislation found in many developing countries.”  Ouch.

An environmental law group interviewed on Information Morning last week called the FOIPOP process “cumbersome.” 

A local investigative journalist calls the FOIPOP system “archaic and moribund.”

At this point, the discerning reader may say, “Hey, Steele, you were in Cabinet once: if the system’s so broken, why didn’t you fix it?”

Good question. I want to confront it head-on, because the factors that held back the Dexter government from meaningful FOIPOP reform are the same factors that will hold back the McNeil government.

When you’re in the opposition, it’s so easy to criticize the government for not being open enough. There’s always something that, for one reason or another, they’re holding back. You say things like, “If you elect us, we will run the most open and transparent government in Canada,” because it sounds good, and you believe it.

Then you get into government, and suddenly opening up government is a lot harder than it looked from the outside.

First off, it’s a question of priorities. Nobody realizes, until they’re sitting around the Cabinet table, what a sprawling behemoth the provincial government really is. It’s a $10 billion monster with its fingers in a thousand pies. When you get there, the fish that need frying are many and large. You tell yourself you’ll get to the FOIPOP stuff eventually, but you don’t.

Closed culture

It’s also a question of complexity. The real problem in FOIPOP isn’t the law, it’s the way it’s applied. The promise of openness in the FOIPOP law runs smack into a bureaucratic culture that values, above all, the avoidance of error. Culture, by definition, is almost impervious to change. It takes years, and plenty of resources, even to attempt it.

And yes, there’s the question of political culture. Our politicians say that they believe in freedom of information, but they don’t. What they really believe is that information is politically safer when it’s tamed and caged.

So our politicians make only superficial changes, and cry, “Fixed it!”

For the Dexter government, the superficial change was lowering the access fee.

For the McNeil government, the superficial change is appointing a new review officer.

But the last two review officers, Darce Fardy and Dulcie McCallum, were fine and capable people too.

It’s going to take a lot more than appointing a new review officer, no matter how well-meaning she is, to fix a system whose problems run so deep. Especially when our politicians, deep down, don’t want it fixed.