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Nova Scotia accepts some of ombudsman’s recommendations over minister’s use of private email

A full computer e-mail program inbox is shown in Toronto, Wednesday, Jan.29, 2014.
A full computer e-mail program inbox is shown in Toronto, Wednesday, Jan.29, 2014. File/ The Canadian Press

Nova Scotia’s Health Department has partially accepted recommendations made by the province’s information and privacy commissioner in a report that slammed the department for failing to “make any effort” to discover if a minister had used a private email address for government business.

The response, filed with the Office of the Information and Privacy Commissioner (OIPC) by the health department and the Department of Internal Services on Thursday, accepts five of the six recommendations made by commissioner Catherine Tully.

“The Departments appreciate the opportunity to clarify the efforts taken in this case and, through the response to the recommendations, demonstrate its continued commitment to transparency,” the response reads.

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

The original report was released in September and blasted the government for violating its own Freedom of Information and Protection of Privacy (FOIPOP) Act after it failed to assist then-Global News reporter Marieke Walsh in her multiple FOIPOP requests for emails sent by Leo Glavine during his time as Minister of Health and Wellness.

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When governments choose not to share information openly; businesses, politicians, journalists, businesses and academics can request information through the province’s FOIPOP Act or access-to-information legislation.

The report had also criticized the office of Premier Stephen McNeil for appearing to interfere in Tully’s attempts to interview Glavine’s former executive assistant.

The government’s response makes no mention of the premier’s office but does address the recommendations made by Tully.

The province says they agree with the recommendation that emails sent to or from personal email accounts that reside on government servers are within the custody of the province but dispute that it means staff should be able to request a minister search his personal email for records relating to government business.

“Searching external systems for government records as a matter of practice is not a position the Departments can support,” the response reads.

“Absent some evidentiary basis for such a search, a request to simply search a private email system is neither legally nor practically prudent.”

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Despite its official position, the government says it will ask Glavine to conduct a search.

“We understand that Minister Glavine has publicly acknowledged that there is some evidence to show that personal email was used,” the government response reads.

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“While efforts taken to date have addressed the substance of the initial requests, we will support a search related to Minister Glavine’s emails.”

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The government also disagrees with Tully’s findings that it failed to meet its agreements under its freedom of information legislation, saying that they spent months attempting to find a solution that would work for the province while also fulfilling the request.

This is despite Tully acknowledging that time period in report, saying it was spent “denying it had custody or control of the requested records.”

The government also rejects a recommendation from Tully that would have seen Glavine add a message to his personal email accounts directing anyone contacting him about departmental business to send it to his government email account.

“This recommendation is not tenable,” the government said.

They argued that because the minister receives emails on his personal email account from constituents and members of the public, it would be hard for them to know whether it was departmental business.

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

Instead, it said “proper record-keeping of government business” will be employed instead.

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The government does say that it will provide Walsh with any documents found to be related to government business in Glavine’s search of his personal email within the next 60 days.

It has also released a copy of its guidebook that will be used to help train employees about the use of personal email for government business.

The guidebook is dated Oct. 17, 2018, and the department says it will “implement it immediately.”

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, McNeil has since called the promise a “mistake.”