Wolfville man says freedom of information system has flaws

A Wolfville, N.S., man who has been waiting more than four years to see a set of public documents says he believes the process to hold government bodies accountable is in trouble. 

David Daniels is urging the province to increase the funding and resources for the provincial Office of the Privacy Commissioner in an effort to increase government accountability. 

In late 2016, Daniels first started trying to get documents from the Town of Wolfville about a lawsuit between the town and a property developer. He still has not seen them. 

"The wait to me is very disturbing or distressing," said Daniels, who is a practising lawyer and resident of Wolfville.

He does not represent any of the parties involved in the lawsuit. 

"I, in a way, monitor the functioning of government as a citizen," he said. "And the process breaks down if you have to wait four and a half years. It's sort of, in some level, ridiculous."

Lawsuit over apartment building

Daniels became interested in a building that was put up on Wolfville's Main Street in 2014, after he thought the building violated the accessibility section of the building code. The building also should have had a sprinkler system. 

Because of those errors, a lawsuit arose between the developer, the town and the engineering company. The parties eventually reached a settlement agreement, and Daniels wanted to see what it was. 

He used access to information laws to request the agreement.

The town was prepared to release some information, but after one of the parties objected, his request ended up being sent for review to the Office of the Privacy Commissioner. That office is facing a four-year backlog for reviews. 

"I knew at the time there was a delay or it would take some time," Daniels said. "I didn't expect four and a half years." 

Daniels points out during that time, there was a municipal election and he thinks the public could have had a better understanding of councillors' decisions before voting. 

"The explicit purpose of the act is to allow for accountability. If you have to wait four years or whatever, that purpose is really thwarted," he said.  

Daniels received the decision of the privacy commissioner's office on July 8. The commissioner recommended that he receive all the information he was looking for, minus the signatures of the parties involved. 

He's pleased with the decision and does not fault the privacy commissioner's office for the delay. He believes the office does not have sufficient funding and staff to deal with several hundred cases each year. 

In the 2019-2020 annual report submitted to the House of Assembly in July 2020, Privacy Commissioner Tricia Ralph warned of a "significant backlog" of files, and stated that her office's capacity had reached a "critical point." 

The privacy commissioner's office noted it received funding for two new positions in the 2019-2020 fiscal year, but it still had a backlog of 299 cases. 

"This office has employed every known technique to achieve greater efficiency with the allocated resources," the office's annual report warned.  

In the fall of 2020, the privacy commissioner's office requested funding from the Treasury Board for three more permanent investigator positions, but that funding was not approved. 

However, the office said it recently received word that it would get money for a "pilot project," where three investigators will be hired for a two-year term. Those staff are expected to be in place by the fall of 2021.

The new investigators will add on to the existing staff of nine. Of the existing staff, three are investigators who work on reviews and one is a senior investigator who works on privacy issues. 

The office tackles review files in the order they come in. Although the addition of three new investigators will help chip away at the backlog, the office could not say how much shorter the wait would be with new staff, as the speed that new cases arrive is also increasing.  

The three major political parties all say they're committed to the work of the privacy commissioner's office.

Liberal Premier Iain Rankin noted his mandate letter to the justice minister asked for a review of the act governing the office. 

"We want to modernize that act, and with the review may come recommendations to provide more resources," Rankin said Friday. 

The opposition leaders both called for the office's powers to be strengthened, and NDP Leader Gary Burrill called the backlog situation "ridiculous and absurd."

Burrill also said he believes the privacy commissioner should have the ability to order the release of information, not just make recommendations. 

"The freedom of information commissioner does not actually have the capacity to make that order stick," Burrill said.  

Daniels still waiting

PC Leader Tim Houston agreed.

"When the commissioner makes their ruling, then it should be binding," he said. "We have the [freedom of information] process for a reason: when Nova Scotians want access to information from their government, they have a right to ask for it."

Heather Fairbairn, a spokesperson for the Justice Department, wrote in an email that the office's budget has increased in recent years, and the recent creation of three new term positions "demonstrates our commitment to the office and their work."  

Daniels is happy the privacy commissioner affirmed he should have access to the information he's seeking. However, rulings by the commissioner are not binding, so the Town of Wolfville has yet to decide whether it will release all the information.

In the meantime, he's still waiting. 

"Being able to monitor the town, holding it accountable, transparency, preventing arbitrary decisions — all of those things sort of become more difficult to do with the passage of time, " he said. 

Daniels expects to find out the next steps in a couple of months.