Nova Scotia's information and privacy commissioner is recommending the province's Health Department release — in full — documents it has withheld from CBC News for almost five years in a landmark lawsuit launched by a Halifax cardiologist.
On Sept. 16, 2016, CBC News submitted an access to information request for "all records, including but not limited to letters or emails, briefing notes, held by the Department of Health related to the cost of the court case involving Gabrielle Horne".
The CBC requested the information just months after the Halifax cardiologist and researcher won a $1.4 million lawsuit against the former Capital District Health Authority for loss of reputation and career.
The Nova Scotia Court of Appeal later reduced that jury award to $800,000.
The dispute centred on Horne's hospital privileges being reduced following a dispute with colleagues over research papers.
Horne claimed they wanted to have their names added to her research papers and when she refused, the QEII Health Sciences Centre modified what she could and couldn't do at the hospital. She said that effectively ended her ability to conduct her research.
Parts of disclosure 'non-responsive'
The Heath Department provided CBC News with two pages in December 2016, both almost entirely redacted. The first page was an email chain and page two was an attachment.
At the time, the department justified withholding the information based on two exemptions to the law that governs access requests, including that the disclosure could "harm the financial or economic interests" of the provincial government or its ability to "manage the economy and result in undue financial loss or gain to a third party."
It also argued parts of the disclosure were "non-responsive" to the request, meaning the information did not concern the topic of the request.
In September 2020, following mediation by the Office of the Information and Privacy Commissioner, the Department of Health appeared to agree to releasing the information, but requested two months more to do it. CBC News reluctantly agreed.
The department was notified by the office that it should release the two pages on or before Nov. 1, 2020. The department never complied and CBC News appealed to the commissioner for a formal review.
In her Aug. 18 review report, Information and Privacy Commissioner Tricia Ralph found that the Department of Health "did not meet it's burden to prove the information was exempt from disclosure."
"The commissioner also finds the other information was removed without authority," Ralph wrote.
She recommended the department disclose the record in full.
The provincial government has 30 days to comply but, unlike other provinces, the law in Nova Scotia does not give Ralph order-making powers, and so the department could simply refuse to comply.
The CBC would then have to go to court to try to convince a Nova Scotia Supreme Court justice to order the documents released.
During this provincial election, Premier-designate Tim Houston promised to change the law to give the commissioner the power to order departments to comply with her decisions.
Commissioner rejects 'non-responsive' claim
Ralph's decision dismissed both of the province's arguments for withholding the court costs from the public. When it comes to the suggestion those amounts could cost the province in future settlements, the commissioner said there was no evidence to support that claim.
"The public body provided no explanation of how figures that were 8.5 years old at the time the access to information request was made could be relevant to other ongoing settlement negotiations," said Ralph's report.
The commissioner also found that the department was not authorized to withhold information on the basis that it was "non-responsive."
Ralph suggested this is an often used excuse for keeping information secret and that her office and others across Canada have rejected this blanket attempt to use the non-responsive exemption.
"I suggest that this practice end once and for all," she wrote.
In a statement to CBC, the Health Department said it is reviewing the report.
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