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N.S. Liberal leadership candidates agree on updating FOIPOP legislation but not specific changes

(L to R) Iain Rankin, Labi Kousoulis and Randy Delorey are the three men in the race to become the next leader of the Nova Scotia Liberal party and the next premier of the province. Global News/Elizabeth McSheffrey/Andrew Vaughan/The Canadian Press

The three men competing to be the next premier of Nova Scotia agree that the province’s access to information law needs to be updated — but were hesitant to commit to specific policies.

Global News approached Labi Kousulis, Iain Rankin and Randy Delorey as they continue to hit the (virtual) campaign trail ahead of the party’s convention on Feb. 6, 2021.

The topic was Nova Scotia’s Freedom of Information and Protection of Privacy Act (FOIPOP), a piece of legislation that is more than 25 years old.

It is a useful tool for journalists that ensures the government can be held accountable but requests are made under the legislation by academics, businesses and activists to obtain government information that is normally withheld from the public.

Read more: N.S. information commissioner says office legally hamstrung, short on resources

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But it’s also a piece of legislation that governs what information can be retained by the government and what needs to be done with it.

All three prospective party leaders told Global News that it’s time to update FOIPOP.

“As we see changes to our society and how government operates, it makes sense to review such legislation to ensure it still meets its intended goals,” said Kousoulis in a statement.

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Nova Scotia granted three-quarters of all COVID-19 exemption requests between March and July – Sep 28, 2020

He said that in order to update the legislation it was important to consult with “stakeholders” and get a sense of what they believed was needed.

Delorey offered similar sentiments in a phone call with Global News, saying that he would want “broader consultation” including with experts from across Canada.

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Rankin provided the strongest commitment, saying he would direct the minister of justice to create an advisory committee to conduct a review of the FOIPOP Act and to make recommendations on how it should be modernized.

Nova Scotia Premier Stephen McNeil arrives for a press conference in Halifax on Tuesday, April 10, 2018. The Canadian Press/Darren Calabrese

A review of the act has not been conducted since 2002.

But that doesn’t mean that there haven’t been calls to modernize the legislation.

The office of the information and privacy commissioner, which functions as an obmudsman for the FOIPOP Act, has repeatedly called for the province to bring its privacy and information access laws “into the 21st Century.”

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Those calls have been repeated for years from both the former commissioner Catherine Tully and current commissioner Tricia Ralph.

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“Living in a digital age has markedly changed the way we live from over 25 years ago when Nova Scotia created the Freedom of Information and Protection of Privacy Act,” wrote Ralph in her office’s annual report published in June.

“That was a time when we lived in a world of paper records and without the ubiquitous access to the internet that we see today.”

The state of the legislation has stagnated under the man currently in charge of the provincial government — Stephen McNeil.

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N.S. government officials still use personal email accounts at work – Jan 30, 2020

But that wasn’t always going to be the case.

In 2013, McNeil, the then-Opposition leader, responded to a report by the Centre of Law and Democracy that recommended a complete overhaul of the province’s freedom-of-information policy.

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“If elected Premier, I will expand the powers and mandate of the Review Officer, particularly through granting her order-making power,” McNeil wrote.

He has since called the pledge a mistake.

Read more: N.S. premier calls 2013 election promise a ‘mistake,’ experts say it shows lack of commitment to transparency

Order making power is an important and necessary tool according to the Ralph, the current information commissioner.

Since the office does not have order-making power, government bodies are not obliged to follow her recommendations and can ignore them if they wish.

The only solution for those who still disagree with the government’s decision is to go to court in an attempt to force the government to comply, a process which the information commissioner has described “expensive and more intimidating for applicants.”

Tricia Ralph, the new freedom of information officer of Nova Scotia, poses in this undated handout photo. THE CANADIAN PRESS/HO - Nova Scotia Department of Justice

Of those who have appealed to the Nova Scotia Supreme Court, the court has sided with the OIPC’s decision 100 per cent of the time.

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One of the cases being argued in Supreme Court is the disclosure of management fees relating to the Yarmouth Ferry.

Read more: Nova Scotia judge reserves decision on Tory lawsuit seeking disclosure of ferry fee

None of the three potential successors to McNeil committed to providing Ralph’s office with order making power, instead saying they would defer to the results of a consultation or a review.

“You look at my track record, I’m not one inclined to put the cart before the horse and have those conversations with the appropriate stakeholders,” said Delorey.

Kousoulis offered a similar sentiment.

“I’d have to look at how other jurisdictions approach this issue and review the arguments for and against before making a decision on this,” he wrote.

Despite a lack of commitment to specific changes the policy statements from the three leadership candidates remain a distinct departure from McNeil’s own actions.

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FOIPOP website still down as vendor contract nears expiration – May 3, 2018

Although he may have boasted of creating the “most open and transparent province in Canada,” his actions are decidedly different.

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McNeil has repeatedly pushed the limits of the legislation, if not out right breaking it.

That includes the decision to phone staff instead of sending emails, avoiding any record of the conversation and keeping information from the public.

He’s even resisted issuing a daily schedule, something routinely published by premiers across Canada.

All three of McNeil’s potential successors sounded open to at least changing the internal policies in the premier’s office, none of which would require legislative changes.

“I believe that more information in government should be made available proactively,” said Rankin. “Ministers and government staff should be using their government email to correspond with government business.”

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Kousoulis said he’d be wiling to look at changing policies that would make the government more transparent while touting the creation of Nova Scotia’s open data portal while he was the minister of internal services.

I don’t know what the details or what the premier’s office schedule looks like or the details that would be there,” said Delorey.

“But not from a privacy perspective do I have any issue with releasing the information.”

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