Nova Scotia’s privacy ombudsman has found that the province’s Health Department failed to “make any effort” to find if a minister had used a private email address for government business in response to multiple freedom of information requests filed by Global News.
The report issued by information and privacy commissioner Catherine Tully and her office (OIPC) on Wednesday blasted the government, finding that it failed to assist then-Global News reporter Marieke Walsh in her request for emails sent by Leo Glavine during his time as Minister of Health and Wellness, and violated the province’s own Freedom of information and Protection of Privacy (FOIPOP) Act in the process.
The OIPC’s report recommends six changes for the province; including that the health department now carry out its obligations under the FOIPOP Act and formally develop a policy prohibiting the use of personal email accounts to conduct government business.
Global News has previously reported on Glavine’s reliance on a private email account while he was minister of health.
It’s a practice, especially for government officials, that Tully described as having the potential to “subvert the right of access” under Nova Scotia’s right to information laws.
In an attempt to follow up on the report, Global News filed several access to information requests for:
- all email exchanges with Glavine over private email that were related to his government work — or mandate — 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.
The government refused all three requests, saying that the FOIPOP act applied only “to records that are in the custody or under the control of a public body. This does not include personal email accounts.”
Government failed to assist
Tully says that reasoning doesn’t hold water and that in her investigation, government officials eventually conceded that all records related to government business are under the control of the health department, “regardless of the account used.”
But Tully says she found that the government did not even attempt a search in response to the Global News request.
The government reasoned it did not understand the meaning of “mandate” in the request. Rather than seeking clarification, the government chose to simply state it did not have control of the requested records.
That was the wrong choice, according to the commissioner.
“FOIPOP places a positive duty on public bodies to actively assist applicants,” Tully writes in her report.
‘Don’t tell, don’t ask’
According to Tully there appears to be no standard practice or requirement for how the government records found in personal email accounts are transferred to the government’s control.
She says that the government appears to employ a “don’t tell, don’t ask” policy in how it keeps its records, relying instead on ignorance of strict guidelines to limit responses to access to information requests.
Glavine was reportedly never made aware of the access to information requests, leading Tully to conclude that he was never told how to properly manage his records in compliance with the FOIPOP legislation.
The person in control of Glavine’s personal email address was his then-executive assistant.
The information commissioner’s office had asked to interview him in order to find evidence of the minister’s email habits only for the premier’s office to step in.
Tully says that a deputy minister from the office of Premier Stephen McNeil responded to the request and indicated that he “would not be made available for an interview.”
Tully has issued six recommendations as part of her report.
She recommends that the government find all emails in Glavine’s personal account related to government business for the time period requested and move them to a government system, and provide a copy to the province’s information and privacy department so that they can process the FOI request..
“Glavine should then ensure that all original emails in the personal email accounts are securely deleted,” Tully writes.
The privacy commissioner recommends that Glavine give her a written confirmation that the search of his emails was conducted, while adding a message to his personal email that directs anyone with departmental business to contact him at his government email address.
The Department of Health has also been ordered to turn over all of the available records to Global News within 60 days and that it develop a policy prohibiting the use of personal email accounts to conduct government business.
The government has 30 days to respond to the OIPC report, but it may not matter.
Tully’s recommendations are non-binding as she is not an officer of the legislature and therefore has no enforcement power.
“Public bodies can simply choose to ignore the Commissioner’s recommendations,” Tully wrote in a report released last year that detailed how powerless her office is.
Despite a promise from McNeil when he was opposition leader in 2013 to expand the powers of the OIPC, it doesn’t appear to be a priority for the government now.
McNeil called the promise a “mistake” on Tuesday.
— With files from Marieke Walsh