N.S. information commissioner says government bill threatens right to access records

HALIFAX — Nova Scotia’s freedom of information commissioner is calling on the governing party to withdraw legislation that she says weakens the public’s right to access government records and documents.

Tricia Ralph, who ends her term of office this week, said Tuesday that measures in an omnibus bill tabled by the Progressive Conservatives threaten the rights of citizens to access information, and could diminish government accountability.

Ralph took issue with amendments that allow departments to refuse access requests on the basis they’re “trivial, frivolous or vexatious,” saying the measures are too broad and inconsistent with legislation elsewhere in the country.

She also criticized an amendment that would allow departments to demand that applicants include in their requests “sufficient particulars” — details such as precise times or locations in connection with the documents or records being sought. Such demands, Ralph said, will add excessive burdens on people.

“The commissioner requests (the bill) … be withdrawn to allow for meaningful consultation with our office and with all stakeholders,” Ralph wrote in a letter to the government.

“Moving forward now … poses risk to access rights to Nova Scotians.”

To ensure that “public bodies are fully accountable to the public,” Nova Scotia’s freedom of information act permits people to formally request specific documents and records held by the provincial government, such as internal emails, financial reports, and contracts.

Only a “tiny minority” of information requests are made in an attempt to harass government, Toby Mendel, director of the Halifax-based Centre for Law and Democracy, said in an interview Tuesday. He said that leaving the interpretation of the phrase “vexatious” to civil servants — rather than the information commissioner — will lead to legitimate requests being rejected.

The legislation’s use of the terms “frivolous” and “trivial” as reasons for rejecting applications is paternalistic and open to wide interpretation, he added.

“As a resident of Nova Scotia, I don’t need a government official to be second guessing me as to whether the work that I’ve done to make an information request is about something that’s trivial or frivolous,” Mendel said.

Requiring applicants to include such details as the time and location of an event or record may often create barriers to their efforts to obtain information, as they may not be familiar with exact details, he said. “It’s simply not necessary. It’s an effort to put an additional barrier in front of requesters, and make it more difficult.”

Premier Tim Houston on Monday withdrew other amendments in the omnibus bill that would have allowed his government to fire the auditor general without cause, amid rising public criticisms of the legislation. The reversal came after auditor general Kim Adair called for the government to drop the provisions, which would have also allowed government ministers to veto the release of her reports if they deemed that doing so was in the “public interest.”

However, during a news conference Tuesday, Houston said he doesn’t intend to withdraw the proposed amendments to the freedom of information act. He noted that if citizens don’t agree with a department’s determination that their request is vexatious, they can still appeal to the commissioner. “I think what’s proposed is reasonable and fair to Nova Scotians,” he said.

Earlier in the day, NDP Opposition Leader Claudia Chender had also called for the withdrawal of the amendments to the freedom of information law, along with other measures she said are part of an anti-democratic move by the Tories.

She said the proposed amendments to the access law would allow government departments to arbitrarily decide when a request is “vexatious.” That determination should be left to the information commissioner, Chender said.

Chender also said she disagrees with other recent measures taken by the Tories, such the government’s decision to scrap the requirement that regular reports on emergency room closures be produced, and to no longer require provincial elections to be held on a fixed date. She also criticized a fundraising campaign by the Tories that asks Nova Scotians to donate to the party to help it “bypass the media when we need to.”

Chender said, “Taking impartial information away from Nova Scotians or imposing policies without consultation is wrong and it’s undemocratic.”

Meanwhile, the Canadian Association of Journalists took aim Tuesday at Houston’s recent decision to prevent journalists from gathering outside the legislative chamber to informally question government members when the House of Assembly is sitting — a long-standing practice that is common in most of Canada’s legislatures, including Parliament Hill.

“This is a bald-faced frontal assault on press freedom in a province where secrecy has long trumped transparency,” association president Brent Jolly said in a statement.

Last week, the government instructed journalists covering the legislature that they must gather in a media room across the street if they wanted to question government members. Several news organizations have been boycotting those formal news conferences.

The government says the change is being made to improve access for journalists who can’t make it to the legislature.

“By hosting press conferences away from the legislature, this plan is lose-lose for the public’s right to know,” Jolly said. “It is deliberately designed to force journalists … into deciding: should they cover the affairs of the legislature or trek off-site to hear a minister regurgitate sanitized talking points.”

This report by The Canadian Press was first published Feb. 25, 2025.

Michael Tutton, The Canadian Press