Nova Scotia’s Information and Privacy Commissioner has offered a scathing rebuke in her annual report of the province’s premier, who has touted his government as creating the “most open and transparent province in Canada.”
The commissioner, Catherine Tully, released her annual report on Wednesday and took the province to task for its failure to update the Freedom of Information and Protection of Privacy Act (FOIPOP), legislation that has not been substantially changed since it was created 25 years ago.
The FOIPOP Act serves a number of purposes. It governs how Nova Scotians’ private information is recorded and shared; it allows businesses, politicians, journalists, academics and citizens to request information when governments choose not to share it openly; and it allows the Office of the Information and Privacy Commissioner (OIPC) to review complaints and offer recommendations if a request has been rejected.
But Tully writes that Nova Scotia’s access to information laws “are not always up to the task” of defending citizens’ democratic rights, separating fact from fiction and providing cold hard facts such as government documents that can not be obtained otherwise.
This is despite a repeated boast from Premier Stephen McNeil that his government’s approach to information legislation has created the “most open and transparent province in Canada.”
“Citizens want their information protected and they want the government to use that data for their benefit and we can’t have that if the law is simply not up to the task,” said Tully in an interview on Wednesday, calling for the legislation to be modernized to reflect changes made in new European privacy laws.
“Let’s raise our game, let’s bring it into the 21st century and have these kind of protections so we can use the data to our benefit but it is properly protected.”
WATCH: McNeil defends right to ignore request from privacy commissioner
Tully says the OIPC dealt with 2,600 matters from 2017 to 2018 and identified a pair of “concerning trends” in the actions of government departments.
The report says that among all public bodies in the province, provincial government departments were the least likely to accept recommendations made in OIPC reports. It also says that provincial government departments resolved the fewest reviews through informal means when compared to other public bodies.
Public bodies are not mandated to follow Tully’s recommendations, as she is not an officer of the legislature and therefore has no enforcement power. But Tully says rejecting her recommendations seems to fly in the face of what is intended to be achieved by the act.
“I believe that it illustrates — in an objective way — based on our experience that recommendation power is just not good enough. It’s not giving citizens a meaningful right for review of public body decisions,” she said.
“The next step would be to increase the power of the office so that there is a much more meaningful review.”
McNeil has said that he believes Tully has enough power and doesn’t need order-making power, despite a 2013 campaign promise
He has since called that commitment a “mistake” and defended the government’s right to ignore requests from the privacy commissioner
However, the premier’s office has also pointed to its work on an open data portal, posting eligible FOIPOP requests and responses online and posting senior officials’ expenses online as some of their accomplishments in making the government more transparent.
Of specific concern to Tully is the growing number of databases containing personal information that can be accessed by multiple people with little oversight.
She references one of her investigations from earlier this year, which found that a Sobeys pharmacist in Greenwood, N.S., snooped through health information — including prescription history and medical conditions — of 46 people, many of whom were not customers of the pharmacy she worked at.
Tully says the failure by the government to monitor its healthcare databases allowed an intrusion into the private lives of patients to become a “real and present danger” in the province.
Despite her findings and the recommendations she made to fix the issues, Tully eventually said the response by the province’s Health Minister to her report was disappointing, saying that she feels the department was not taking the issue seriously.
In response to the report, the Nova Scotia Department of Internal Services, which administers the FOIPOP Act, says that it is working to ensure that Nova Scotians know their government is committed to transparency and accountability.
“Access to information is fundamental to good democracy and allows citizens to be informed participants in dialogue about public policy,” wrote Brian Taylor, a spokesperson for the department.
“We will continue to look for better ways to serve the information and privacy needs of Nova Scotians because we all benefit from open and accountable government.”
Global News has previously reported on multiple examples of ministers failing to follow guidelines set out by the OIPC regarding the use of private email for government projects, while McNeil has attempted to skirt privacy laws by phoning staff instead of sending emails.
There have also been high profile instances of data breaches on the Nova Scotia government’s FOIPOP website.
Tim Houston, Nova Scotia PC Leader, echoed Tully’s report in an emailed statement.
“Every breach, every report that suggests failure to protect private information, damages the already crumbling trust that Nova Scotians have in their government,” Houston says.
Houston says the Liberal government has been offered multiple suggestions and solutions to address gaps in privacy.
“This isn’t about any one person’s damaged pride. This is a serious culture of sloppiness that must be addressed,” Houston says.
“That will take real leadership from the McNeil Liberals. We didn’t see that leadership on the well-publicized FOIPOP breach earlier this year, but I hope we will see it following this report.”