After once promising to give Nova Scotia’s Information and Privacy Commissioner the power to enforce decisions, the Houston government has blindsided the office and its supporters by announcing major changes under a new omnibus bill.
It has led some experts to question the province’s commitment to access of information.
The proposed amendment to the Freedom of Information and Protection of Privacy Act will allow public bodies to refuse applications that are “trivial, frivolous or vexatious.”
Requests that are deemed repetitive, excessively broad or not made in good faith could also be denied.
The move is to help enable a “more effective use of resources,” says the Department of Justice, which oversees the act. The department says the province manages more than 400 active information requests each week.
“We’ve heard loud and clear through our recent engagement that frivolous and vexatious requests are a significant burden for public bodies,” department spokesperson Lynette MacLeod said in a statement.
Even though the Office of the Information and Privacy Commissioner endorsed the idea of refusing frivolous, vexatious or otherwise abusive requests in a June 2017 report, it was with the caveat that authorization for such denials would come from the commissioner. The proposed legislation will instead give that authority to public bodies, including government departments.
Following last week’s announcement at a bill briefing, the commissioner was not prepared to comment.
“We were not notified at all that change was coming,” Tricia Ralph, Information and Privacy Commissioner for Nova Scotia, told CBC’s Mainstreet.
“It was disappointing for us that we were not consulted on this. We have a lot of expertise to give and so, yes, we learned at the same time as everyone else so we have to go through and do that analysis.”
Under the new legislation, public bodies would have 14 days to deny freedom of information requests. The applicant could then ask Ralph’s office to review, which according to the proposed legislation would also need to be done within 14 days.
In recent years, Ralph and her predecessors have been vocal about the extensive backlog of review files and a lack of resources to fulfil them in a timely manner.
Turn of events
The planned legislative changes are a far cry from commitments made by the Houston government in 2021, when the Minister of Justice was directed in a ministerial mandate letter to amend the Act to give “order-making ability to the Privacy Commissioner.” Two years later, an internal working group began reviewing the access and privacy legislative framework in Nova Scotia.
Houston made it clear in last fall’s election campaign he had changed his mind since making the promise in his first term.
Last week’s announcement leaves Toby Mendel, executive director of the Centre for Law and Democracy based in Halifax, questioning the direction of access to information in Nova Scotia.
“It’s a really unfortunate sign, and I’m worried about it,” he said.
Mendel said he’s concerned the Houston government’s supermajority could lead to a “slightly dangerous level of power rolling back the Act.” The Progressive Conservatives control more than two-thirds of the seats in the legislature after the party won 43 of 55 ridings in the Nov. 26 election.
“I have to ask myself what’s motivating them? When you already have that much power, you should be absolutely respectful of democratic checks and balances and not trying to hobble them or undermine them,” said Mendel.
He also questions the province’s bar for “vexatious” requests. Vexatious means annoying and frustrating.
The provincial government said approximately 16 per cent of freedom of information requests to its departments fell under that category since January 2024.
“I simply don’t believe that anywhere near 16 per cent could meet that standard,” Mendel said. “My experience over 30 years is that the number is tiny.”
He said his organization accepts that vexatious requests should be rejected, but he wants to see “guardrails around its abuse because otherwise it’s too discretionary.”
How other provinces compare
If the legislative changes are passed in the coming weeks, Nova Scotia won’t be the only province with rules against such requests.
Newfoundland and Labrador passed a similar legislation in 2012 that gave decision-making powers to public bodies. The move ignited public outrage and was later changed to give the review office authority to deny such applications.
Both New Brunswick and British Columbia also allow the commissioner to authorize public bodies to disregard a request.
Alberta has followed that same model until recently, as legislative changes in that province are also underway.
“The power to make the decision in the first instance to disregard an access request will shift from the Commissioner to the public body. The Commissioner will have the power to review the public body’s decision,” said spokesperson Elaine Schiman for the Office of the Information and Privacy Commissioner of Alberta.
In Nova Scotia, former NDP MLA Michèle Raymond said her initial reaction to the proposed changes was “grave disappointment.”
“I’ve been hoping for a very long time that Nova Scotia’s pretty lame freedom of information legislation was going to be updated and made to actually work, and this really unfortunately doesn’t do that,” said Raymond.
