Fighting for Access to Information

Sean Kirby wants to know why a major road is being built next to his house. He has been waiting 19 months for the government to release records.

By: Alex Faubert

Sean Kirby wants to know why a major road is being built next to his house. He has been waiting 19 months for the government to release records under the Freedom of Information and Protection of Privacy Act.
By Alex Faubert

Sean Kirby stands on the gravel road that will soon become a roundabout and connector road. (Photo: Alex Faubert)
Sean Kirby lays down a sheaf of papers on his living room table. They’re documents that he obtained through freedom-of- information requests. The first page features a bold header: Page Removed. The ‘page removed’ is actually 98 pages, all chalked up as confidential third-party information by the Department of Transportation and Infrastructure Renewal. 
Kirby flips to another page, an internal e-mail sent to two engineers involved in planning a road that would connect Trunk Highway 3 to a new interchange on Highway 103, slicing through the tiny St. Margaret’s Bay community of Ingramport on its way. The page is a mass of white space sprinkled with some text. The sender of the e-mail has been “whited-out.” So has the content of the entire e-mail.

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Kirby laughs under his breath as he examines the severed sheet, pointing to the top of the message: “Hi Phil,” he reads aloud, an incredulous smile on his face. He runs his finger down the blank page, concluding at “Cheers.” His wife, Sarah, standing in the kitchen several feet behind, can’t help but also let a laugh slip.
“We’ve acknowledged that there may be information there that could be legitimately removed – but it just seems highly unlikely to us that everything between ‘Hi Phil’ and ‘Cheers’ had to be taken out. It’s just not how the act is intended to work,” Kirby explains.
Kirby is part of a community group in Ingramport called Protect the Bay that has fought to reroute the proposed connector. He turned to the Freedom of Information Act when informal attempts to obtain more information about the road-planning process failed.  Kirby learned what many journalists already knew, that freedom-of-information legislation often works far better in theory than in real life.

Kirby’s home, across the street from where the connector road is set to be built. (Photo: Alex Faubert)
A Canadian Supreme Court ruling in the 1997 case Dagg v. Canada outlines the purpose of access to information legislation: to facilitate democracy by allowing citizens the ability to access information and by holding politicians and bureaucrats accountable to the public.
After a year and a half of filing requests, Kirby feels the Nova Scotia act—one of 16 such acts across Canada —fails to live up to that purpose. He’s going to Nova Scotia Supreme Court to fight for more disclosure in his case.
Many journalists with experience filing requests share Kirby’s concerns with Nova Scotia’s act. They stand to be among the biggest beneficiaries of any legal precedent he sets, because journalists are often making requests the government might view as contentious. It’s not often that freedom of information cases go to court, and Kirby hopes he encourages a gradual change towards openness.
His own road to frustration began when he filed his first FOI request in February 2010 to find out the impact a proposed connector road would have on his community. While not a long road, the connector will bring traffic to what used to be quiet backyards. Eight months of requests yielded little information, and Kirby took the case to the FOI Review Officer, Dulcie McCallum, the first formal appeal step in the legislation.
McCallum released a report in June 2011, strongly criticizing the Transportation Department’s use of exemptions, as well as unnecessary delays. She recommended the Department release the rest of the severed information – with a few specific exceptions – because the matter was clearly in the public interest. She wrote that Transportation can’t remove information “simply because the public body does not want to release it.”
[pullquote]“This is something that people in other countries are taking to the streets to fight for.”
—Sean Kirby, member of Protect The Bay [/pullquote]
The Transportation Department disregarded her recommendation, as it is permitted to do under Nova Scotia’s ombudsman-style appeal system. It was hardly alone in doing so. According to the FOIPOP Review Office’s annual report, 66 per cent of the review officer’s recommendations were rejected in 2010.
Refusing to drop the case, Kirby’s only option was to appeal the case to Supreme Court, which has the power to issue a binding decision, either ordering disclosure of some or all of the records or upholding the department’s decision.
“While we obviously want to uncover the information about this specific connector road, we also feel it’s a civic duty, frankly, to defend the principle, to make clear to government that it’s not acceptable for it to break its own freedom of information law on the assumption that we as citizens are not going to challenge it,” he says. “We’re challenging it.”
Looking out from Kirby’s home, one can look down a long arm of St. Margaret’s Bay toward the open Atlantic. But walk to the front door, and from Kirby’s front stoop you can see where a traffic roundabout will be built, just over the hedges lining his front yard and across the two-lane street beyond them.
One of the documents Kirby received. (Supplied photo: Sean Kirby.)
“People live out here because they like how it is,” he says.”They like living in a beautiful, rural, scenic area…[The road] just doesn’t make sense to an awful lot of us out here.”
Even worse than the connector decision are Transportation’s choices about disclosure, says Kirby. He feels the misuse of exemptions led to hundreds of pages of excessive severing.
“The default is to disclose unless you really need to censor something, and that’s how the act is supposed to work,” he says. “The default [government] position was to hide information unless you absolutely had to give it out – and that’s just a fundamental difference in perspective.”
Kirby also felt that Transportation made attempts to deter further requests by demanding processing fees of $1,017 on his first request and taking excessively long to respond. The high fees were waived after they were raised in question period in the legislature, but the delays were a constant.
Under most Canadian access legislation, including Nova Scotia’s, officials have 30 days to respond to a request for information once it arrives in the mail. They can extend the deadline in certain limited circumstances.
“In almost every single one of our applications, the government waited until the 30th day, and then claimed a 30-day extension – then didn’t disclose the documents to us until the 60th day,” he says. “What that suggests is not that the government needed the full 60 days to process our applications, but it was just standard operating procedure to delay and delay and delay as long as you can, literally until the last day.”

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Leslie MacLeod is Nova Scotia’s Chief Information Access and Privacy Officer and oversees the application of the FOIPOP Act across all departments. MacLeod did agree to respond to questions by e-mail, but when the answers arrived they came from Justice Department communications official Tara Walsh.
Although Walsh wouldn’t comment on Kirby’s case, she wrote there are several reasons why requests can be delayed beyond the 30-day legislated period for responses. The number of government branches administrators must contact to find records,the types of records, and the difficulty tracking down differently-stored records can all contribute to delays. Walsh pointed out that, overall, Nova Scotia does well. “In fact, we know from our own data that the majority of our requests are responded to within the 30-day legislated time period.”  Official statistics put that number at 79 per cent for 2010. Of those, 21 per cent were disclosed in full, 45 per cent yielded partial information, and six per cent were denied outright.
Michael Tutton, a Canadian Press journalist and a frequent filer of FOI requests, believes Nova Scotia’s act works better than many, but he has also felt stonewalled at times. Last year, he requested a gambling report conducted by the defeated Conservative government. The report made a link between gambling, suicides and the high number of VLTs in Nova Scotia – but the Department of Labour and Advanced Education refused to release the report.It said there were flaws in research methods.
The review office condemned the Department’s handling of the FOI request and called for disclosure in the public interest. Although Labour officials said they disagreed with McCallum’s recommendation, they did eventually disclose the document – over a year after Tutton made his initial request and only after they had prepared detailed annotations explaining the alleged flaws.Tutton notes the delay “coincidentally” lasted until after the government had publicly released a new gambling strategy.
Michael Larsen is co-editor of the upcoming book Brokering Access: Politics, Power and Freedom of Information in Canada. He agrees that government often errs on the side of privacy, but he doesn’t blame public servants. “The real problem: the barrier access exists at a political level, where there’s a political culture of secrecy.”
But Nova Scotia government officials who consented be interviewed for this story were quick to disagree. Doug Keefe led the team that drafted Nova Scotia’s act in 1993. He says he’s frustrated with the public perception that requesters struggle with obsessively secretive governments to open a tiny tap of information. 
“My style has always been to release as much as I can release. Very rarely will I withhold a document in full,” said Carla Heggie, an Information Access and Privacy professional .  “A lot of people have the misconception that the administrator… gathers up the files, looks at them and says, ‘No, they can’t have that,’ without even reading it, or thinks, ‘That’s a report we don’t want to release.’”
Kirby’s not so sure. He sees an inherent conflict of interest built into the FOI system because FOI administrators are supposed to uphold the act, but must also try to please their bureaucratic and political masters. There is, he believes, an understandable tendency to want to protect the department from harsh scrutiny. He thinks the act should be rewritten to establish an independent, centralized FOI office to make access decisions. He wants a “culture of transparency where the emphasis is placed on freedom of information, and not on protecting government information or protecting government departments from potentially embarrassing information from being released.”
But Heggie, who has administered thousands of requests, says she doesn’t think there’s pressure to cover up for colleagues. “I truly believe that the public bodies hold the act with respect, and they respect the administrators that are advising them on the disclosure decisions.”
Kirby would also like to see the review officer’s powers strengthened, so she has the ability to make binding orders, as commissioners are already able to do in some other provinces, including PEI and Ontario. He feels if departments are able to ignore the Review Officer, it limits the public’s ability to get information to which it is entitled. 
“The Review Officer had no ability to force disclosure and so that left us with no choice but to go to Supreme Court,” he says. “But very few people and organizations can do that, so it really guts the intent of the FOIPOP Act if the Review Officer can’t actually force the government to disclose information.”
When he helped to draft the act,Doug Keefe says he was responsible for the decision to make the Review Officer’s decisions non-binding , and he stands by his choice. “The problem is that when someone makes binding decisions, then the full burden of administrative law come to bear and the commissioner starts to operate in court,” he says.
As an administrator, Heggie believes “it becomes more of a legal process than an open, accountable, transparence process” when the Review Officer has order power. For the most part, she finds the latter system more prescriptive in its application of FOI laws, whereas “there tends to be more give-and-take… more interpretive application of discretion when you have an ombudsman-style oversight body.”
Larsen, who teaches at Kwantlen Polytechnic University in B.C., has filed many access requests himself and thinks order-making power is “a step in the right direction. I’d like to see other provinces have those as well. That’s an important power to give some teeth to the access law.”
In Ontario, when an applicant appeals a disclosure decision, a mediator attempts to broker a decision between the two parties. Only if that process fails, does it go to a formal adjudication process during which an adjudicator seeks written representation from the requester and government ministry.
The 2010 annual report of Ontario’s Information and Privacy Commissioner showed only 24 per cent of complete 2010 FOI appeals proceeded to the formal order stage.  Most of the others were settled in mediation, while a smaller number were abandoned, withdrawn or otherwise closed.

The view of St. Margaret’s Bay from Kirby’s backyard. He says the construction of a connector road contradicts community members’ wish to live in a rural, scenic area. (Photo: Alex Faubert)
 
Robert Cribb, an investigative journalist for the Toronto Star, believes the acts with order-making commissioners are a better model. He says an appeal system should provide the opportunity for citizens who are inappropriately denied information to have an advocate who can require disclosure.
“In situations like that, you need a formal legislative process, you need a legal process to protect rights. That’s the bottom line,” he says. “The alternative is that as a citizen or journalist, if you seek records that are clearly in the public interest and should be released, and are wrongfully denied those records – you can take it to the review process and win, but the ruling is that bureaucrats have the right to those records. The government body can say, ‘No, we still prefer not to [release].’ And that’s outrageous.”

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For now, Kirby and other Nova Scotia users have no choice but to go to court if they seek a binding decision. But though Kirby may not be able to singlehandedly produce changes to the FOI legislation, he’s adamant about holding the government accountable for what he sees as defiance of the act.
“It’s just an absolute pillar of democracy that citizens have a right to access government information,” he says. “This is something that people in other countries are taking to the streets to fight for, and in a lot of cases risking their lives to fight for. It’s a right we have that we can’t take for granted.”
His voice conveys disbelief and frustration, but there remains a spirited optimism he can show government what it has done is unacceptable. He stands on the gravel road across from his yard, which cuts through the vast fields of his neighbors’ properties. Once the connector road is built in 2014, this will be a highway intersection, no longer a tranquil and rustic landscape. If Kirby’s Supreme Court case can show him why and how that came to be, he’ll at least be happy to know that he won the battle, even if he lost the war.