Nova Scotia has rejected several access to information requests related to private email use in government — an apparent contradiction to directions from the province’s information and privacy commissioner.
Following a Global News report that then-health minister Leo Glavine used a private Gmail account for his ministerial work, Global made an access to information request for documents in order to identify the extent of the private email use and whether other members of cabinet or staff in the premier’s office were also relying on private email.
READ MORE: Nova Scotia minister used private email for government work: documents
Global requested all email exchanges with Glavine over private email that were related to his government work over the period of one year, the subject lines for all emails sent over private email related to his government work over the period of his term as health minister, and all emails exchanged over his personal email account over a three-month period in 2016.
In all three cases, the health department rejected the requests with the same response.
“The Freedom of Information and Protection of Privacy Act applies to records that are in the custody or under the control of a public body. This does not include personal email accounts,” read the letter.
“As such, we cannot respond to your request.”
The interpretation appears to contradict directions from the information and privacy commissioner.
READ MORE: Premier Stephen McNeil says he avoids email to avoid access to information requests
In her September 2016 report, Catherine Tully said emails exchanged with a personal account can still be subject to the act.
“The criteria that are used to decide if a record is in the custody or control of a public body or municipality go beyond the physical location of a record and involve factors such as the purpose of the record, who created it, and whether or not it relates to the public body’s or municipality’s mandate or functions,” her report reads.
In a July interview, Tully said if a personal email is “used to conduct government business, it needs to be accessible to an access request.”
“If the record is used to make a decision, if it’s relied upon by the public body, it doesn’t matter what tool you’ve used to record that, it’s in the control of the public body,” she said. “It has to be produced in response to an access request.”
Asked why the information was not released, spokesperson Tracy Barron said the government “can only search content sent using a private/outside email address if the emails were sent to and received by someone within novascotia.ca domain, or sent to them from a novascotia.ca address and include a subject.”
“The departments do not have custody or control over the content in non-government accounts,” Barron said in an email.
She also maintained that Glavine’s personal email use was for his constituency work. The government has previously avoided disclosing the extent to which Glavine used his private email for ministerial work, which is what prompted the access to information requests.
Similarly, requests for a list of private email accounts used for government work by cabinet and premier’s office staff during the Liberals’ first term was also rejected. The reasoning was again that the records aren’t “in the custody or under the control of a public body.”
WATCH: Documents show Nova Scotia minister used private email for government work
Private email account used by communications staff
An access to information request for emails exchanged with another private email account was complied with, however. The separate request from Global News was for the subject lines of emails sent to cns.mediamonitoring@hotmail.com over two days in July.
Spokesperson Andrew Preeper said in July that the account was “set up many years ago for business continuity purposes.”
“The Hotmail account was used to ensure media monitoring services are received from the vendor if there was a power outage or government email was not available. This account was used strictly for media monitoring, which are non-confidential records of public media reports,” said Preeper.
He said the Hotmail account was no longer being used because the internal email system has a backup.
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