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N.S. justice department ‘fundamentally undermining access to information legislation’: report

WATCH (Sept. 20, 2018): 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.

A new report from the province’s information and privacy commissioner has found that the Nova Scotia Department of Justice is “fundamentally undermining access to information legislation” when it arbitrarily redacts information in response to information requests.

The report, published on the Office of the Information and Privacy Commissioner’s (OIPC) website on Wednesday, is the result of a request for documents about the safety and security of the Truro Supreme Court under Nova Scotia’s Freedom of Information and Protection of Privacy Act (FOIPOP). 

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 OIPC to review complaints and offer recommendations if a request has been rejected.

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Although the requester is not named in the report, information and privacy commissioner Catherine Tully does reveal that the request was made after a court application to move a 2015 trial due to safety and security concerns.

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In response, the government provided 478 pages of documents. But nearly 73 per cent of the pages were redacted in whole or part as being “not responsive.”

Unhappy with the result of her request, the unnamed applicant challenged the decision and appealed to the commissioner.

Tully found that they made an error in judgment, interpreting the request in such a narrow fashion that they were acting “inconsistent with the wording of the request.”

“A careful review of the records that were wholly withheld by the Department reveals that only 10 of the 290 wholly withheld pages can be accurately described as non-responsive to the request as written,” the commissioner writes.

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Nine of the pages were related to the request itself and the final page seems to have been included in error.

She says the government has the ability to redact information that is “not responsive” to the request but that it must do so in a way consistent with the actual regulations laid out in the FOIPOP Act.

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Tully also found that the Nova Scotia government is not making an attempt to address issues already dealt with by her office, especially in relation to decisions to redact documents due to them being “not responsive.”

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“In this case, the [department of justice] chose to cut and paste its submission from a review heard 2.5 years ago,” writes Tully.

“Using “not responsive” to sever snippets of information out of responsive records creates an unlimited, non-specific, entirely arbitrary exemption that frees the public body from any constraints created by the law.”

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As a result, Tully has recommended that the department reprocess every single page produced in response to the request and either release the information or “only use exemptions authorized under FOIPOP.”

The province has no obligation to follow recommendations from Nova Scotia’s Office of the Information and Privacy Commissioner (OIPC) because she is not an officer of the legislature and therefore has no enforcement power.

A spokesperson from the Department of Justice said they thanked the OIPC for her report and said the department is “giving full consideration to the recommendations.”

“We anticipate we will be able to release more information to the applicant,” said Heather Fairbairn.

“We view all matters relating to the freedom of information and the protection of privacy very seriously. The department will respond to the Review Officer within 30 days.”

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