Transparency in government could be in the eye of the withholder.
Premier Stephen McNeil promised as opposition leader in 2013 that he would overhaul the province’s freedom-of-information policy.
“If elected premier, I will expand the powers and mandate of the review officer, particularly through granting her order-making power,” McNeil wrote at the time.
Fast forward six years and the McNeil government is being taken to court by the Progressive Conservative caucus to force the release of details about management fees in the contract between government and Bay Ferries, a private operator that runs the Maine-to-Nova Scotia ferry service.
PC Leader Tim Houston, in filing the notice of appeal to the Nova Scotia Supreme Court earlier this week, said it was an extraordinary measure and that Nova Scotians should never have to sue their government to get information.
In May 2016, the Tory party submitted a freedom of information request asking for the Bay Ferries contract. The Liberals refused to disclose the management fee that Nova Scotia taxpayers shell out to the company. The PC party appealed that decision.
This past December, longtime lawyer Catherine Tully, appointed information and privacy commissioner for the province in 2014, ruled that the information should be made public. But the government defied Tully’s direction, refused to disclose the information and said the only way to force government transparency was to take it to court.
A hearing date has been set for March 12.
Late last year, McNeil told reporters that his 2013 commitment was a mistake.
“I think what most Nova Scotians are grateful for, I’m not stubborn in my ways and I realize I made a mistake,” he said. “I acknowledge it.”
The premier went on to say that he thinks the office of the privacy commissioner is working properly as is and it has all the power it needs.
The Freedom of Information and Privacy Act was passed in 1993, partially to ensure that public bodies are fully accountable to the public. Respective Tory and NDP governments had ample opportunity since then to change the law to give the privacy commissioner order-making power but neither party, now in opposition, did so.
Now, both parties say that is exactly what they would do if returned to government.
“An NDP government would give the information and privacy commissioner the power to order the government to release documents,” said party leader Gary Burrill. “We believe the commissioner, Ms. Tully, should be an officer of the legislature. That means she would report directly to the House of Assembly, just as we do with the auditor general.”
Burrill said democracy without transparency isn’t much of a democracy at all.
“Democracy works when an informed public, media and opposition are able to hold the government up to scrutiny. When a government puts up road blocks to dodge and hide from scrutiny, it’s telling us something troubling about its character, and its disrespect for what democracy is all about.”
Houston said the Progressive Conservatives have introduced legislation “to give the privacy commissioner order-making powers” and make them an independent officer of the legislature, to bring Nova Scotia into step with most other provinces.
Chris d’Entremont, MP for Argyle-Barrington, brought the FOIPOP Commissioner Independence Act, to the House on Sept. 11, 2018, a bill that would make the newly titled review commissioner an officer of the legislature and allow the commissioner to require any person to answer questions or produce records where necessary to resolve a dispute or ensure compliance with the act.
Sean Holman, a professor of journalism at Mount Royal University and freedom-of-information researcher, says it’s “easy to want more openness and transparency when you’re outside government. But once you get into government, the advantages of being secretive, of being opaque, are often too great for a government to resist.”
