Efficiency doesn’t mean good government
After six years in the job, Nova Scotia’s Premier Stephen Mcneil still seems to struggle with the difference between administrative efficiency and good government.
Last week in the legislature, when asked about his government’s unseemly fondness for secrecy, by way of defence the premier cited the government’s efficiency in responding to freedom of information (FOI) requests.
It turns out that the Nova Scotia government spits back responses to FOI requests within the 30 days prescribed by law in something like 82 per cent of cases. What it doesn’t spit back is the information that was requested.
In 2018-19, the government says it “completed” 1,993 FOI requests. A little deeper in the province’s annual report on access to information, we learn that only 147 of those requests – a miserable and miserly seven per cent – resulted in full disclosure of the requested information.
As opposition leader Tim Houston said, when all they’re doing is saying “no,” the government should be able to turn the responses around in 30 minutes not 30 days.
The Progressive Conservative leader asked the premier specifically about a request for information the PC caucus filed seeking the legal fees the province is paying to a top-flight, high-priced Toronto law firm.
The Justice Department’s response came back on a single page with every word redacted.
The department claims legal fees are protected by solicitorclient privilege. Leaving aside that dubious claim, privilege rests with the client, in this case the government. So, the government is free to tell Nova Scotians at any time what they’re paying for outside legal counsel. They choose not to.
The case in question is Alex Cameron’s suit against the Mcneil government for, among other things, defamation and constructive dismissal. Cameron was the government lawyer who filed the controversial “conquered peoples” brief in court, claiming the province has no responsibility to consult with the Mi’kmaq because they submitted to the Crown more than 200 years ago.
The premier and others in his government claimed they had no prior knowledge of the brief, which is extremely offensive to the Mi’kmaq people.
The government, in effect, contends that its lawyer – Cameron – took an argument to court without the knowledge or approval of his client, the provincial government. Halifax lawyers who know Cameron do not believe he would do that.
The government is trying to suppress documents that could shed some light on what it knew. Those documents are critical to Cameron’s case, and both the Nova Scotia Supreme Court and the province’s Court of Appeal have ruled they must be available to Cameron and therefore made public.
We can only speculate what those documents show, but the provincial government has taken the extraordinary step of seeking leave to appeal the Nova Scotia courts’ decision to the Supreme Court of Canada. Until that court decides what it will do, the documents remain sealed.
When asked earlier this year what possible benefit derives to Nova Scotians from the Supreme Court reference, the Justice Department was unable to come up with an answer.
Surely, the good government test here is how, or whether, this appeal benefits Nova Scotians. Put another way, it is anathema to good government to appeal a case, when the appeal does not benefit the governed.
If this costly reference to the Supreme Court of Canada doesn’t benefit Nova Scotians, who does it benefit? Again, we can only speculate, but since the Liberal government is taking the action, it seems likely that the Liberal government stands to benefit.
Last week was Right to Know week, when the people’s right to information held by governments is promoted worldwide and recognized as essential to democracy and good government.
But in Nova Scotia, you have a right to know what the government decides you have a right to know.
The exemptions in the province’s freedom of information law have been stretched to the point where politicians and bureaucrats can, and do, hide anything they choose. And, should an applicant appeal the government’s decision to withhold information, the province’s freedom of information commission, who hears the appeal, has no power to order the information’s release.
In cases where the commissioner agrees with the applicant, the government can, and does, ignore both. The only recourse at that point is an appeal to the courts at the applicants’ expense.
If that’s not bad enough, the FOI commissioner’s office is so swamped with appeals and understaffed that it is about two-and-ahalf-years behind in dealing with appeals. The government has no intention of staffing up the office to clear that backlog.
The Nova Scotia government bureaucracy has gotten really good at responding to FOI requests on time. That’s administrative efficiency. But they’re withholding information the public has a right to know. That’s lousy government.
Jim Vibert, a journalist and writer for longer than he cares to admit, consulted or worked for ve Nova Scotia governments. He now keeps a close and critical eye on those in power.