Energy Department 'violated almost every provision' of access law, says privacy commissioner

Nova Scotia's outgoing privacy commissioner says a recent review that shows the Energy Department took almost five years to complete a freedom of information request and even then withheld too much information is "extraordinary."

"They violated almost every provision of [the Freedom of Information and Protection of Privacy Act]," Catherine Tully said in an interview.

"In my 20 years, this would be certainly on the extreme end of failure to comply with the law."

In late 2014, a member of the public made a request to the department for records related to the companies RPS Canada and RPS Group PLC. RPS Canada was contracted to create the Play Fairway Analysis for the government, a $15-million mapping and analysis project identifying potential offshore oil and gas resources around the province.

In her report, released Monday, Tully notes a strained relationship between the applicant and the department almost from the start, with the applicant's initial request noting it was in relation to an "investigation of crimes" and the department having concerns with the size of the request.

'Not in compliance with the law'

Still, Tully found that throughout the process the department charged too much in processing fees, repeatedly exercised time delays that violated the act, applied exemptions in ways that were inconsistent and too broad and failed to notify the applicant of a variety of things.

Most notably, it was almost five years after the original application for information — and only after Tully's office got involved — that the department discovered it withheld an additional 832 pages it deemed "no longer relevant" from a package of about 6,200 pages.

"This may have been a failure to conduct an adequate search or it may have been a failure to respond openly, accurately and completely," Tully writes in her report.

"In either case, it was not in compliance with the law."

That failure extended to 78 email attachments the department has not turned over to the applicant and did not even give Tully during her investigation.

'Quite unbelievable'

"In this case, the department knows there are missing records, knows where they are, has been repeatedly asked to produce those records and has failed to do so," says the report.

In the interview, Tully called it "quite unbelievable" that her office couldn't get the attachments.

"We would get assurances that they would produce them, but they were never produced in the end."

Governments ignore calls for teeth

Tully's report included 11 findings and eight recommendations, including that all fees be refunded to the applicant and his application be reprocessed, with few — if any — exemptions on what information is released.

The fact it took her office's involvement before the department really got serious about the application illustrates flaws with the system, said Tully, including a lack of sufficient resources — there is a multi-year wait for appeals to be processed — and an act and office that lack teeth because there is no requirement for governments and other agencies to follow recommendations.

"We need a law that requires public bodies to comply with the law," said Tully.

As her predecessors have done, throughout her tenure Tully has called for order-making power. And as has been the case with previous governments, the McNeil Liberals have ignored those calls.

Update on new commissioner next week

McNeil, who during the 2013 election campaign signed a pledge to give the commissioner order-making power, broke that promise and last year called the pledge a mistake and questioned if it was a real promise.

Tully said democracy requires transparency and accountability from government and a strong access law is a way to ensure that happens.

"Citizens should be able to see the documents that governments are relying on to make decisions that affect our lives, that affect our health care, that affect our taxation, that affect our economy," she said.

It makes no sense for legislation here to lack the enforcement ability that exists in other provinces, said Tully.

"Why should Nova Scotians have less? Why should our democracy be weaker than the rest of Canada? This is an essential part of our rights as citizens."

Tully is retiring at the end of the month after a five-year term. A spokesperson for the Justice Department said there would be no interruption in service provided by the commissioner's office and an update would be provided next week.

A spokesperson for the Energy Department said they are reviewing the report.

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