Nova Scotia's access-to-information and privacy laws 'no longer up to the task'

The province's information and privacy commissioner says Nova Scotia's access and privacy laws are woefully out of date, lack teeth and don't place enough emphasis on disclosing information that's in the public interest.

Catherine Tully released her annual report on Tuesday. It shows the result of a failure by successive governments to follow recommendations from Tully and her predecessors: A system no longer in step with modern society and not doing enough to work in the interest of the public.

Tully notes the Freedom of Information and Protection of Privacy Act has not been significantly updated since it was introduced in 1993. Given the advancements in the way personal information is collected, stored and used, Tully says that's a problem.

"Nova Scotia's privacy laws lack virtually all of the essential modern privacy protections found in other Canadian jurisdictions," she writes. "Without fundamental privacy protections, databases of citizen information are not adequately protected for the 21st century."

System is meaningless without records

Tully says people should be able to receive requested information in a useable, electronic format, and there needs to be a legal obligation for government officials to create records in the first place.

"A right to access government information is meaningless if no record exists."

In September, Premier Stephen McNeil admitted he uses the phone, rather than email, to deal with staff so the business avoids being captured by freedom of information regulations. When McNeil and the Liberals were first elected in 2013, they pledged they would be the most accountable government in Canada.

The Liberals have since made it possible to make requests online and the government posts what's been disclosed two weeks after it's released, but Tully's report shows there is still a long way to go.

A need for streamlining laws

Tully's report found that Nova Scotia is the only province where it is discretionary, rather than mandatory, that information be released when it's deemed in the public interest, even if that information would otherwise be exempt by the act.

The report notes there are four separate laws governing public-sector access and privacy rights in Nova Scotia, which doesn't make sense and is not efficient. People's expectations for access and privacy protection are the same "no matter what level of government has the information," Tully writes.

To that end, she calls for a streamlining of the various laws into one that is clear and user-friendly. She also calls for the waiver of the $5 application fee and says the first five hours of a search for records should be done for free, rather than charging people a fee for every hour related to their applications.

Tully is once again renewing an ongoing call from her office: that her position be made an officer of the legislature, with order-making powers, so public-sector bodies aren't able to simply ignore recommendations they don't like.

Change comes from citizens

In an interview, Tully said it takes courage for a government to have strong access and privacy laws because it subjects them to scrutiny.

While she tries to be as thorough as possible in her reports in hopes of prompting a conversation, Tully said change will only really come if the public demands it.

"The truth is, these changes don't happen unless citizens want them to," she said. "What's really important is that if you have an opinion, if your viewers have an opinion, they need to talk to their MLAs about this as a priority, because there are lots of priorities."

Government reviewing report

The province's Justice Department did not make anyone available for an interview about the report.

A statement from a department spokesperson said officials would review Tully's report and "assess whether we need to make changes to the legislation."

"Government views all matters relating to the freedom of information and the protection of privacy very seriously. We continually review and update our processes to keep up with best practices in this area."