November 27, 2023

Department of Justice
FOIPOP Modernization
PO Box 7
Halifax, NS B3J 2L6
foipop.modernization@novascotia.ca

RE: Review of Nova Scotia Freedom of Information and Protection of Privacy Act (FOIPOP)

Dear Working Group members,

Thank you for the opportunity to provide you with our association’s feedback on Nova Scotia’s review of the Freedom of Information and Protection of Privacy (FOIPOP Act) and related legislation and regulations. We hope this submission provides you with some insightful guidance into the challenges that working journalists face when attempting to access documents subject to the Act when producing quality public service journalism.

I am writing to your working group as the president of the Canadian Association of Journalists (CAJ). The CAJ is Canada’s largest national professional organization for journalists from all media, representing members from across the country. The CAJ’s primary roles are to provide our members with high-quality professional development and to engage in public-interest advocacy. Since the CAJ’s founding in 1978, then as the Centre for Investigative Journalism (CIJ), our association has been at the forefront of advocating for both federal and provincial access to information regimes that are more robust, transparent, and accountable.

We are pleased that the Nova Scotia government is engaging in this process. As you are no doubt aware, it has been nearly a quarter century since the province’s last substantive update to the FOIPOP Act. We understand this reality presents your working group with a considerable series of challenges. At the risk of stating the obvious, the digital public sphere has grown exponentially and at a breakneck pace since Nova Scotia’s last substantial update of the FOIPOP in 1999. This rapid growth has empowered citizens to demand their elected officials, and public agencies, be more transparent and accountable for their actions.

The CAJ is of the view that a good access-to-information law serves the public’s right to know and allows journalists to do their jobs. We know that excellent journalism has the power to reshape public policy and improve the lives of Canadians. That’s why we believe getting this modernization effort ‘right’ is exceptionally important.

Past efforts by the government to institute processes and procedures to modernize the province’s access regime have been mixed. On one hand, we acknowledge the Nova Scotia government has made efforts to develop a central portal for filing FOI requests. While this is a positive development, it is only the ‘bare bones’ of a modern system.

The CAJ was alarmed by recent public comments made by Tricia Ralph, Nova Scotia’s Information and Privacy Commissioner. In speaking to the Globe and Mail, Ralph described how the province’s system was “barely” functioning; including three to four-year backlogs for appeals and complaints. It is the view of the CAJ that any modernization efforts must begin with giving the commissioner’s office order-making powers. This is a mandatory first-step in giving their office the legal teeth needed to undertake their work in a substantial and meaningful way.

Another critical component of the modernization of the province’s access regime is the continued problems in human resources. In addition to Ralph’s comments in the hyperlinked article above, this issue was cited by former commissioner Catherine Tully, who made public pleas for more staff to resolve the exponential increase in appeal files.

Simply put, we are of the view that the working group should begin their work by reviewing the entirety of Tully’s 2017 reportAccountability for the Digital Age: Modernizing Nova Scotia’s Access and Privacy Laws.’ While this report is more than six years old, it contains a ‘ready made’ roadmap to ensure that public bodies are fully accountable to the public. This report provides substantial guidance on creating a statutory duty to document; modernizing exemptions (and subjecting them to a final public interest test); strengthening open government obligations; and lowering fees. Rather than being forced to begin from scratch, this report provides the working group with a solid foundation to update and further build upon.

It is no secret that the CAJ has spoken out about Nova Scotia’s poor FOI history. In 2003, for example, the CAJ recognized the Nova Scotia government as the most secretive provincial government in Canada. We have noted, furthermore, the province’s middling results over many years of News Media Canada’s Freedom of Information Audit. We have also recognized the province’s lack of considerable action to the Halifax-based Centre for Law and Democracy’s 2013 review of the FOIPOP Act. For too long the province’s resistance to implementing straight-forward tools to allow the flow of information to the public has been plagued by inaction.

In the face of this analysis, the CAJ strongly believes this review process could serve as a decisive opportunity to guide the Nova Scotia government to take bold – and necessary – actions that would enshrine the FOIPOP regime as the envy of progressive democracies worldwide. As one of the founding provinces in Canada’s Confederation, we believe that likening Nova Scotia’s levels of transparency to jurisdictions such as Honduras or Belize must be remedied immediately. We implore you to act swiftly and decisively, not only for the practice of responsible journalism, but in the interest of pursuing full accountability of all of the province’s public institutions.

We recognize this is a considerable endeavour. Should you have any questions arising from this submission, please do not hesitate to contact me at: brent@caj.ca. I would be happy to oblige your request for further information.

Many thanks for your time and careful consideration of our recommendations.

Respectfully,

Brent Jolly

President, Canadian Association of Journalists (CAJ)

The CAJ is Canada’s largest national professional organization for journalists from all media, representing members across the country. The CAJ’s primary roles are to provide high-quality professional development for its members and public-interest advocacy.

For further information: Brent Jolly, president, Canadian Association of Journalists, brent@caj.ca

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