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JIM VIBERT: Government insiders say “FOIPOP proofing” a required skill-set for some public service employees

Nova Scotia flag
Nova Scotia flag - SaltWire File Photo

The Nova Scotia government is proud of its deficit-slaying record, but the achievement requires qualification because, while it has dispatched the budgetary deficit, it has only added to the democratic deficit.

Advocates for poor Nova Scotians and other disadvantaged groups argue convincingly that the social deficit has also widened under the current government. The province’s halting efforts to answer the desperation that comes with abject poverty have been chronicled here before, and will be again, no doubt.

But the McNeil government’s palpable disdain for the institutions, laws and processes that are specifically designed to support a robust and healthy democracy also demands Nova Scotians’ attention.

From its thinly disguised contempt for the province’s Freedom of Information law, to the limitations it imposed on legislative committees’ ability to hold it accountable, the Liberal regime has lowered or removed the safety rails that guard our democracy against autocratic, unaccountable government.

And now, from the annual report of Nova Scotia’s Information and Privacy Commission, come signs that the government itself is growing tired of the pretense of openness it’s been struggling to maintain these past six years.

Initially, it pretended to be more open and accountable than other governments, but the sheer weight of contradictory evidence eventually rendered that talking point absurd.

Then, Premier Stephen McNeil boasted about his government’s 80 per cent response rate to applications for access to information. Hold the applause. When the government manages to comply with provincial law four times out of five there is no cause for celebration.

Nor does responding to an access to information application mean the information is forthcoming. Often, the response is a clerical exercise — a note from the government saying we’ve got your application and we’ll let you know if you’re getting any info.

As commissioner Catherine Tully noted in her annual report, 80 per cent is a mediocre response rate relative to other provinces, but the province is now struggling to clear even that low bar. She’s seen a 50 per cent increase in applications that are “deemed rejected,” which is what happens when the government can’t muster the common decency to even respond to a request for information.

Tully, who completes her five-year term as commissioner at the end of August, has been a steadfast advocate for a new, modern law to replace the 25-year-old Freedom of Information and Protection of Privacy (FOIPOP) Act.

“With each passing day, Nova Scotia falls farther behind other provinces and other democracies,” Tully wrote of Nova Scotia’s current FOIPOP law.

It is old and fatally flawed, but the law is rooted in the principle that government information is by definition public information, with certain specific and limited exceptions. Over time, those exceptions have become broadly interpreted by government to the point where today it seems like the government can find an exception to justify denying almost any inconvenient request.

Government insiders say that “FOIPOP proofing” documents and other stuff the government wants to keep secret has become a required skill-set at a certain level of the public service. If that’s the case, the “public” moniker is misleading, and should be swapped out for “government” service.

When the government refuses an information request, the first appeal is to the commissioner. However, her findings are not binding on the government, so when Tully finds the government is not justified under the law to withhold information, six times out of 10, the government simply ignores her.

A second appeal — to the courts — is also provided for in the law. But the onus is on the applicant to bring the appeal, with attendant legal fees, so that route is pretty much closed off to most Nova Scotians. Opposition and Tory leader Tim Houston is using that provision of the Act to challenge the government’s refusal to disclose the profits paid to the Yarmouth-Maine ferry operator.

The most obvious fix to the broken Freedom of Information law is to make the commissioner an independent servant of the legislature, like the auditor general, and make decisions of the commissioner binding on the government. The onus would then be on the province to appeal the commissioner’s decision in the courts, rather than on the applicant.

However, the premier has said that “fix” isn’t going to happen while his government calls the shots. They like the ineffective Freedom of Information law just the way it is.

Democratic deficits take many forms but are often expressed as the difference between how democratic institutions and processes are intended to work, and how governments permit — or prevent — them from working.

Nova Scotia’s FOIPOP law and certainly the legislature are intended as a check on the power of the government. When the government devalues those democratic safeguards, it is effectively assuming for itself powers that are properly vested in the people or their elected representatives.

That’s not just lousy government, it’s anti-democratic. 

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