N.S. Premier Stephen McNeil defends right to ignore request from privacy commissioner

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Thu, Sep 20: Although the privacy commissioner can request information and interviews when completing an investigation, Premier Stephen McNeil and his government have the ultimate say in what will be provided and the provincial leader has no intention of letting that change. Jeremy Keefe reports – Sep 20, 2018

Premier Stephen McNeil has rebuffed a scathing report by the province’s information and privacy ombudsman, who said Nova Scotia’s health department failed to probe whether a minister used a private email address for government business.

The ombudsman looked into the matter after multiple freedom of information requests about the private email address had been filed by Global News.

Speaking to reporters Thursday, McNeil said that the province’s privacy commissioner has no power to compel witnesses to speak, and that much of her inquiry was unnecessary because the minister involved had stopped using the private email.

As Global News first reported on Wednesday, privacy commissioner Catherine Tully and her office (OIPC) found that the provincial government 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.

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Tully said that during her investigation she was blocked by a deputy minister from the premier’s office as she attempted to interview Glavine’s former executive assistant.

MeNeil told reporters on Thursday that no one in his office blocked Tully, though he was also quick to point out that she has no power to compel witnesses to speak to her — an issue that commissioner also raised in her report.

READ MORE: N.S. government failed to probe whether minister used private email for official business

McNeil also wondered why Tully wanted to talk to Glavine’s staffer.

“The information officer was looking at Minister Glavine using his Gmail account, which he acknowledged, and he fixed the practice,” McNeil said.

“What more was she (Tully) looking for?” he said. “What does she want? You don’t call witnesses when someone actually says, ‘You know what, you’re right, I was wrong.” He said the deputy and clerk of the executive council, Laura Lee Langley, had also examined Glavine’s use of personal emails and simply followed the rules, meaning there was no need for a witness.

“The clerk (Langley) also looked at the issue and Minister Glavine had already said it was a mistake and corrected it and the practice had changed,” McNeil asid. “So the clerk wrote the letter and made the call.”

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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.”

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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.

“This did not occur in this case. In fact, the Department made no effort to assist the applicant in any way until it made its offer to conduct a limited search [four months after the original access request was filed].”
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READ MORE: N.S. premier calls 2013 election promise a ‘mistake,’ experts say it shows lack of commitment to transparency

‘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.

McNeil, who has come under pressure from the opposition parties to give Tully more powers by making her an officer of the legislature, remained adamant that the access to information system is working fine as it is.

Tully made six recommendations, including that the Health Department provide all of the relevant records to the applicant within 60 days.

McNeil said he would review the recommendations, but then said he needed to do so “in balance.”

“I have to go through the process. Should I have the Department of Health looking for emails or should I have them look for doctors? So I always have to balance that stuff out.”

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READ MORE: Nova Scotia refuses to release details on personal email use in government

For his part, Glavine said he hasn’t used his personal email account for government business since it was first brought to his attention. He also denied the use of his Gmail account was an attempt to skirt the rules.

NDP Leader Gary Burrill said Tully’s report and the Liberal government’s handling of the issue reflect badly on the government’s attitude toward openness.

“It just doesn’t provide any kind of a sense of a government that really values being forthright, and places a high importance on its transparency and openness before the public,” Burrill said. “It provides a sense rather of a woodpile full of weasels.”

The government has 30 days to respond to the OIPC report.

— With files from Marieke Walsh and The Canadian Press

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