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4 mai 2005
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Wednesday, May 4, 2005


Freedom of Information and Protection of Privacy (FOIPOP)

Printed and Published by Nova Scotia Hansard Reporting Services


Mr. Graham Steele (Chairman)

Mr. James DeWolfe (Vice-Chairman)

Mr. Mark Parent

Mr. Gary Hines

Ms. Maureen MacDonald

Mr. David Wilson (Sackville-Cobequid)

Mr. Daniel Graham

Mr. David Wilson (Glace Bay)

Ms. Diana Whalen

In Attendance:

Ms. Mora Stevens

Legislative Committee Coordinator

Mr. Roy Salmon

Auditor General


Freedom of Information and Protection of Privacy (FOIPOP) Office

Mr. Darce Fardy

Review Officer

Ms. Wendy Johnson

Case Review Analyst

[Page 1]



9:00 A.M.


Mr. Graham Steele


Mr. James DeWolfe

MR. CHAIRMAN (Mr. James DeWolfe): Ladies and gentlemen, I would like to call the meeting of the Public Accounts Committee to order on this Wednesday, May 4, 2005, a beautiful morning in beautiful Nova Scotia. With us today is Mr. Darce Fardy and his Case Review Analyst, Wendy Johnson. Good morning, Wendy and Mr. Fardy. Also with us today we have Mr. Roy Salmon, our Auditor General, as usual, and we appreciate his indulgence, and Mora Stevens, clerk of the committee.

As Mr. Fardy doesn't know everyone here - I had the pleasure of meeting you for the first time earlier this morning - I would like to introduce members of the committee.

[The committee members introduced themselves.]

MR. CHAIRMAN: Mr. Fardy, I would like to give you an opportunity for some opening remarks to give us an overview of the work that you do.

MR. DARCE FARDY: As some of you may know, I've been asking for this opportunity to appear before a committee of the House to talk about our small agency, and to tell you what we're up to and give you an opportunity to ask any kind of questions you want to put to us. Two-thirds of our staff is here and the other one is off gallivanting in Ireland today. Why she would do that and not do this is beyond us. (Laughter)


[Page 2]

So I want to thank you for inviting me to appear. I've been in this job now 10 years, and I just accepted a one-year extension, so that will be 11 years. As you may know, I retired in 1991 from the CBC, but was always in different jobs with them, so this is the longest time I've ever been in the same job, in my long years. What I wanted to speak about is accountability and independence, and part of that is behind my reasoning for my requests and recommendations that this agency be brought in as an office of the Legislature.

A little background might help, because perhaps none of you were around when this happened, although Graham was around somewhere. The Review Office was set up. When I was appointed Review Officer, there was, in fact, no Review Office established. My Order in Council appointment said I would serve a one-year term as a part-time member of the Utility and Review Board. At that time there were several other part-time members, but I was specifically named a Review Officer pursuant to the FOIPOP Act, unlike the other part-time board members.

I worked alone, with some part-time assistance from employees of the board for the first three or four years - I think it was about three years. In the beginning the Act described me as a part-time Review Officer, but the first year there I received more than 50 requests for review and there was no way that could be processed efficiently on a part-time basis. As I became familiar with the job, I realized I was in conflict. My job was to review decisions of public bodies and I was a member of a public body. So, in effect, I could be asked to review board decisions to applications under FOIPOP while enjoying its hospitality.

I also found some difficulty with the one-year term. No independent oversight officer could operate satisfactorily in such a short-term appointment. One would expect applicants to suspect my conclusions might be influenced by the approaching end of my appointment every year. All of my colleagues' appointments have been for five to seven years, across the country, except in Newfoundland and Labrador, and Prince Edward Island, where they have appointed commissioners but only agreed to a two-year term. I think a two-year term is inadequate. As well, it became obvious very quickly that I was not working part-time, as I said.

Those issues were resolved when the Legislature passed amendments to the Act in 1999. I'm now ending a five-year appointment. Even with the amendments passed after the new administration took office, the Nova Scotia Review Officer remains the only full-time Access and Privacy Commissioner or Review Officer paid on a per diem basis. Though I was not and am not unduly concerned about compensation - I am after all on a pension from the public broadcaster - I did begin to wonder if all this reflected the Legislature's view of the importance of the Review Office. I expect the next Review Officer will expect that to change.

In 1999, I was provided with a budget for the first time. Before that, I assume the URB picked up my expenses. The chairman at the time, now Justice Robertson, agreed with

[Page 3]

me that it was inappropriate for the Review Officer under the FOIPOP Act to be a member of a board that was subject to the Act. So I left the board and the premises. I suspect the chairman ushered me out with some alacrity, although the board was very welcoming and supportive while I was there.

My budget covers the salaries of two staff, a mediator and a case review analyst, the Review Officer's remuneration, rent, supplies and some travel. We have no secretary or receptionist. We answer our own telephones, the books are handled by the Director of Finance for the Justice Department, a man of uncommon common sense. Although this made sense, why hire an administrator, I was wary of this at first, given my independent position. My concerns have been allayed, and it works very well in fact.

The workload of the Review Office increased, of course, when municipalities and later universities, colleges, school boards and hospitals were made subject to the FOIPOP Act. While the inclusion of municipalities was expected, I was delighted on behalf of all our citizens to have universities, colleges, school boards and hospitals brought under the Act. I saw this as a bold and proper move by the government and the Legislature.

I think we've been pretty frugal in my operation of the office and decided early on that I would make requests for additional resources when I felt it was absolutely necessary. That time may be approaching. I think it is approaching, because the protection of personal privacy is becoming more and more a concern of Nova Scotians, and although there's no mandated responsibility for me to handle privacy complaints, I do it in the absence of any other, and in line with my position as the Review Officer of the entire Freedom of Information and Protection of Privacy Act.

Until three or four years ago, privacy protection was concerned with this office only as it related to the mandatory exemption in Section 20. I found little need to interpret Sections 24-30, which deal with the collection, use and disclosure of personal information. Now post-PIPEDA, the federal and private sector Act, and through some of our own modest proselytizing, the Review Office is dealing with privacy complaints or queries on a daily basis as Nova Scotians awaken to their privacy rights.

There are now commissioners, Freedom of Information and Protection of Privacy Commissions, particularly in B.C., Alberta and Ontario, who spend the bulk of their time on privacy matters. That activity is creeping into the Atlantic Provinces. You may know I decided to investigate privacy complaints against public bodies without a legislative mandate to do so and to speak out publicly on contentious issues, such as video surveillance as a crime prevention tool and requests for SIN numbers by landlords and others who use them to confirm financial reliability. SIN numbers, as you know, can be used for identity thefts and both the federal government and the federal privacy commissioner have advised Canadians not to provide their SINs except when required - to employers, for instance.

[Page 4]

I called the landlords, those that I did call, they said they didn't know it was improper and said they wouldn't ask anymore. I'm not sure if they have or not, but I haven't had any more complaints. But we have would-be school volunteers balking at the requirement to provide their SINs on forms they must fill out as required by the Department of Community Services and consequently have not been accepted by the schools because they refuse to provide their SIN numbers. I've raised this matter with Community Services.

It's worth noting that the purposes of the FOIPOP Act, found in Section 2 include, "(iv) preventing the unauthorized collection, use or disclosure of personal information . . ." and to protect the privacy of individuals. It was never made clear to me why no mechanism was provided for an independent overview by the Review Officer of Sections 24 to 30. To add to the confusion, Section 32(1) which is outside the collection and use of personal information category, reads that persons may seek reviews of decisions on request for correcting personal information which is covered in Section 25(1).

If a public body chooses not to co-operate in a privacy complaint investigation - and there are some, though not in government - I must tell the complainant I'm unable to follow up on the complaint. Through it all, this office has no process for accountability and I think its independence is questionable. I believe this can only be fulfilled when the Review Officer reports to the Speaker of the Legislature. It may be seen as ironic for an office that urges accountability and openness from all public bodies. The Speaker's Office provides the only avenue for accountability and independence for an independent public office. Not only does the office not report to the Legislature, it's also not subject to the FOIPOP Act.

Our annual report and our Web site provide information about the Review Office, but annual reports tend to lie there and more often, they die there because our elected representatives have no opportunity to raise questions about them.

With respect to independence, a Review Office, in looking for additional resources - human or financial - sends its request to the Department of Justice, not to the Legislature, for its budget. For real independence, it's the Speaker who should be asked. The resources of the Review Office are then set, as they should be, by the people through their elected representatives. I should add that I have never felt any pressure on my independence from a Minister or Deputy Minister of the Department of Justice. I've seen seven or eight Ministers of Justice and three Deputy Ministers in two different administrations since I took the job.

Perception, you'll agree - I hope - is important. I knew from my first day on the job that the first and most important goal I had was to establish this office's integrity and in all modesty, I think we achieved that important goal. I'm proud of the work we do and the quality of our staff. We have a mediator in Susan Woolway, admired by her peers across the country and I know by many of the FOIPOP administrators. Our case review analyst, Wendy

[Page 5]

here, has taken the FOIPOP on-line course at the University of Alberta and is qualified to advise on both access and privacy matters.

I believe the public is getting a bargain. We spent $218,000 in the last fiscal year. Over the 10 years that I've been in this job, I've reviewed 1,500 or so decisions of public bodies at the request of applicants - early statistics are hard to find. I've written some 1,000 public reports containing my findings and recommendations. I think we have established a good reputation nationally and perhaps even below the border.

Susan Woolway and I have spoken at national conferences and over the past six months I have accepted invitations to speak at the 3rd annual meeting of the International Information Commissioners in Cancun, Mexico - some 40 countries represented - and recently to appear on a panel at the annual meeting of the American Freedom of Information Coalition in Santa Fe this month. In both cases, expenses were picked up by the hosts. I thought going to Cancun in February might be a little difficult to explain, so I begged off. However, one of the advantages of having an undernourished budget is that when I plead I have money problems, they believe me.

[9:15 a.m.]

At the invitation of Elaine Gibson of Dalhousie Law School, I've been serving on a committee financially supported by the Canadian Institute of Health Research which has been looking into the best ways to reconcile health research with the protection of patient privacy. Every year I go to Dalhousie Law School and spend half a day talking about the FOIPOP Act. I also spend time with Kings College journalism students to promote the Act.

Susan Woolway has served on conference panels that talk specifically about the mediation process and more generally about the Act. The three of us have been involved in training FOIPOP administrators around the province and we recently met with the senior faculty of Cape Breton University. We've also been involved in developing and commenting on the government's routine access policy and Susan Woolway has worked with the Department of Health on a proposed privacy impact assessment policy.

In 2003 we made several lengthy submissions to the review committee set up to review the FOIPOP Act. The submissions include the 15 recommendations for amendments - our submission - including making the office an office of the Legislature and giving the Review Officer the power to investigate privacy complaints. None of them involved any appreciable increase in budget, or perhaps any increase in budget. The Review Office expressed its disappointment in the results of the review committee, particularly one recommendation that seemed to propose that personal privacy protection be split off from access with a second Review Office. My reaction to this recommendation can be found in my response to the review committee's recommendations - and I see it's in the folder that was provided by us. I hope you'll read it if you haven't already. The committee did not

[Page 6]

indicate why it was proposing the review committee, why it was proposing such an expensive - not to mention - unusual approach. It would be unlike the approach in any other province or territory.

We've set up our own Web site on which can be found helpful hints. The Review Officer's reviews, public statements by the Review Officer and links to the sites of the federal information privacy commissioners, provincial and territorial commissioners. The site is continually updated and we top it off with an annual report.

It's fair to say my fellow commissioners across the country are somewhat in wonder how much we're able to do with the resources we have. It's left us kind of winded and we're finding it difficult to cope with the growing privacy file and with reviews that become more complex as citizens become more familiar with the Act and public bodies put more effort into their submissions to the Review Office in support of their decisions.

The Review Office needs some attention, some tender loving care because it's lonely at the bottom too. Speaking of lack of attention, I want to give you an anecdote. On two occasions, I worked without a renewal appointment - in 1997 I worked for six months without an appointment. During that period and wanting the job, a government advertisement looking for a FOIPOP Review Officer appeared in the newspaper. It was, I was told, a mistake, but that didn't do much to promote a cosy feeling of security in the Review Office. I point that out only because I think it's part and parcel of the way the department was set up and some of the oversights that I think resulted in the setting up of that. It could have been set up with the same budget as is required and none of these problems, I think, would have arisen.

On the outside, we suffer from the singular lack of public attention and support and I'm disappointed journalists use us so rarely. The Act really has not had a champion in the media since Dean Jobb left the Herald and Dean Beeby left for the Canadian Press in Ottawa. That's what they asked me to speak about in Cancun, try to explain why journalists don't use the Act.

But, as John Bryden, the former Liberal Member of Parliament put it when introducing his own improved access to information Act, which went nowhere, I understand, the impetus for legislating transparency and accountability and for improving the legislation has always come from backbenchers.

Let me conclude by saying this is a good Act. It marries access rules with limits on the collection, use and disclosure of personal information. Although there are some who believe the Review Office is toothless without order powers, I believe the Review Office works well and I'm not one of those who thinks it's necessary for the Review Office to have order powers.

[Page 7]

The courts have consistently interpreted the FOIPOP Act broadly with the Nova Scotia Court of Appeal in O'Connor pointing out that our Act is unique because it requires

public bodies to be fully accountable.

Although the Review Office is not a party in court cases, we're proud to have our conclusions often supported by our courts. The Supreme Court of Canada and the Federal Court have also provided a comfort for those of us who promote open and accountable government, but legislation is not static, it requires updating and improvements. It needs a little more attention particularly in the oversight area. With respect, I urge our legislators to consider my recommendations for changes and additions. Thank you.

MR. CHAIRMAN: Thank you, Mr. Fardy. It's our normal procedure to begin with 20 minute rounds and we'll begin with the NDP at 9:21 a.m.

Mr. Steele.

MR. GRAHAM STEELE: Mr. Chairman, Nova Scotia's current freedom of information law came into force 10 years ago and over that 10 years I have been a freedom of information administrator within government. I've been a requestor as a private citizen. Then I was a requestor as a staff member of the NDP caucus and I have most recently been involved with it as a lawyer on several freedom of information cases including the O'Connor case, which has established the broad principles by which the law should be interpreted. Over those 10 years I have known you, Mr. Fardy, for most of that and I'm very safe in saying that no one single individual has done more to protect and promote the freedom of information regime we have in Nova Scotia, than you have. You have brought integrity and professionalism to the office and you've done it with a very small budget. In the beginning only very short appointments. You were told at the beginning that it was a part-time job. It's a wonder that you have accomplished what you have done with your staff, with the resources available to you. I am just very afraid of what's going to happen at the time when you choose to move on and do something else. It's difficult to see how we could get a better person in the job.

What I would like to do with the time that I have available to me this morning is draw out from you things that are in your annual report, which is very readable, very clear, but there are some things that I think need to be on the record here and which I would like to ask you for some information about. The first thing I'd like to ask you about is if you could just say, for the record, what in your opinion has been the effect of this government's choice to increase application and other fees under the regime to being either the highest, in some cases, or tied for the highest in the country? What has been the effect that you've seen on the FOI system?

MR. FARDY: Well, in our annual report last year, Mr. Steele, we did indicate the substantial drop in the number of applications that came into government bodies and to the

[Page 8]

number of reviews. This year, I think, I report there's a small increase in that, which was encouraging, but there's no question in my mind that the $50 - $25 for an application and $25 for a review - is a lot of money, and it is the highest in the country.

MR. STEELE: Do you think the application fee should be cut?

MR. FARDY: I think the application fee should be reduced to $5, which is where it was, and I think there should be no fee for review. The kind of money that's collected anyway, the records show, is not going to pay the costs of the Freedom of Information and Protection of Privacy Act and its oversight, and neither should it cost money to enforce this kind of legislation and that, I think, is something Nova Scotians have to expect to pay.

MR. STEELE: Now you mentioned the fact that journalists don't use it. In the informal discussions that I have had with some of the journalists, they've indicated to me that the reason they don't use it more, the main reason, is the cost. Most media outlets these days are working on very tight budgets and it is very difficult to convince the powers that be back at head office to spend even a few hundred dollars on a significant access request, never mind the thousands of dollars that can come with sort of a major kind of investigatory application. Not only that but they find it's not as fast as it used to be, in fact, one journalist said to me recently that if they're looking for information on a federal-provincial matter, it's cheaper and faster to go through the federal Access to Information Act, to get the same information, and that's why they don't even bother filing a provincial application. Anyway, the journalists can speak for themselves, but that's my impression about why they don't use it more.

The reason why I think it's so important that you're here today is I think the Freedom of Information and Protection of Privacy office needs to have a forum to speak to legislators and it's too bad that you haven't had the opportunity to appear before a legislative committee before. So I see the opportunity we have today to talk about accountability which is really at the core of this committee's mandate, it's almost like a State of the Union Address on Freedom of Information Nova Scotia today. One of the things that is very interesting in your report is you refer on Page 2, to pro-access departments. These are departments that you've praised for taking an enlightened, progressive attitude toward the Act. I was wondering if you could identify for us which departments those are?

MR. FARDY: I did in my report, and then I was talked out of putting it in because they thought I might leave somebody out. Most particularly, I think the Department of Health has had a tradition of supporting openness. I think the Department of Community Services, which is a very difficult department to deal with because they're dealing with so much personal information with people. The Department of Environment and Labour. Am I missing some? They are about the busiest anyway so I guess that would certainly draw our attention, but they certainly are proactive and others are Department of Education. We don't get many reviews on the Department of Education application, their FOIPOP administrator

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is pro-access, talks a lot to applicants. Some of them are wary to talk to applicants and certainly were wary to talk to journalists but I think they are over that now. I think that's kind of a highlight of the 10 years that I've been in the job, going from where it was a nuisance for FOIPOP administrators, they all had other jobs to do and they weren't excited about doing this and they weren't pumped up about access and accountability. So the change in that is notable and I think very satisfying for us.

MR. STEELE: Which units of government need the most work?

MR. FARDY: Well, the Department of Justice because, with all due respect, it's full of lawyers (Laughter) and they are more likely than not to put up arguments. At the start, I think, they weren't impressed to have a crusty old journalist there telling them what they should be doing. I think that's probably true in every jurisdiction that the lawyers are probably the most difficult.

MR. STEELE: In order for this committee to zero in on its accountability work, we tend to skate by the units of government that are operating well and we tend to zero in on the ones where there are problems so I would like to ask you again and draw out from you any other units of government that just don't seem to get it on freedom of information.

MR. FARDY: Yes, the Public Prosecution Service, we're not always sure that they're dealing with applicants in an appropriate fashion, and that has had some difficulties for some years. We did have a major problem with them some years ago and, in fact, it was somebody within PPS who suggested that there were records when we were led to believe that there weren't records, but that's about 10 years ago now and there's a new regime in there.

MR. STEELE: Are there any others that come to mind as sort of consistently or regularly posing problems to applicants or to your office?

MR. FARDY: No. In one of my annual reports about three years ago I think I listed

the culprits and I think there has been a noticeable change. They're not always as quick to respond as I think they should be. I don't think it will ever be quick enough for daily journalists, they're sent out to do their minute and a half of the suppertime show, it's the other people who do long-form journalism and the current affairs television people who are the ones who could be using this most effectively.

[9:30 a.m.]

MR. STEELE: I'd like to turn to the question of amendments. There has been a review committee report, you've commented on that report, in your annual report you talk about a number of amendments to the Statute that you think could be made, but what I'd like to ask you to do today is focus on the top one or two amendments. If this Legislature does

[Page 10]

nothing but pass one or two amendments, which are the most important ones, what are the problems with the Act that need to be fixed now?

MR. FARDY: I think we have to look at the oversight and give the Review Officer the mandate to investigate privacy complaints. I think the fee structure should be changed - and what was the other major one that I . . .

MS. WENDY JOHNSON: You discussed records management in Subsection 47.

MR. FARDY: I've put these down so often over the years now that even I can't remember them. Yes, improved records management would be important. Some of the problems that are faced by the departments from within and for applicants without, is that they often can't find the records, they're not even sure the records exist. We're doing a case like that now where they don't seem to be able to find them.

MR. STEELE: That's fine for now, I'm aware of what your long list is of needed amendments, but the Legislature tends to focus better on sort of the priorities and that's why I asked you to identify what the top one or two are, but I think you've done that.

In your annual report you do spend a considerable amount of time talking about the privacy aspect of your mandate which doesn't get nearly as much attention as the freedom of information part of the mandate, the release of records. You make it clear that you think that more work needs to be done on privacy and, in fact, that you don't have any mandate to enforce the privacy protections that are in the Act; in fact, nobody has the power to enforce them. Your only power is to persuade until you run up against units of government who just say no, you have no mandate, we don't want to deal with you.

In your report you refer, in particular, to the Halifax Regional Police and Dalhousie University, but this is even before the incident about them sharing information about off-campus students creating noise and other complaints. You said that even before that they had refused to deal with your office. What was the nature of the incidents that brought to your attention the fact that Halifax Regional Police and Dalhousie University simply won't play ball on the privacy sections of the Act?

MR. FARDY: I approached the police about video surveillance and tried to persuade them that they should adopt some of the principles of surveillance that had been adopted by other police forces, both overseas in Europe and in Canada. Not in writing - Dalhousie said it in writing - but the police just said no, they don't intend to co-operate on privacy complaints. I think that may change.

The police, I'm sure, and universities and hospitals found it very difficult to find themselves subject to the Freedom of Information and Protection of Privacy Act.

[Page 11]

MR. STEELE: You said that the Act has only applied recently to the municipal sector, school boards, hospitals. Are you encountering problems in those sectors? Have they jumped on board and are they obeying the law or are you experiencing problems in those sectors?

MR. FARDY: Yes, I think there are particular problems with hospitals, but I think they're coming along. Just recently with Capital Health, they had turned down an application for information and I received the request for review and I recommended that they put it out and they did. The first hospital to do that was the IWK where somebody had asked why a particular doctor was fired so soon after he was hired and they wanted to know why he was hired. That was difficult for them to deal with, but I, without invading the personal privacy of the physician, recommended that they at least recognize that it was an anomaly, or at least it was a mistake to hire that physician and they put out, as I had recommended, a small explanation of what happened.

MR. STEELE: Let me go back to privacy. You've said in your report that Nova Scotians aren't very much aware of their privacy rights, they're becoming increasingly aware, but neither you nor anyone else has the power to enforce the privacy provisions of the Act. What would you identify today as the top one or two risks that Nova Scotians are facing with respect to their privacy, what are the biggest threats to our privacy?

MR. FARDY: I think video surveillance is, and particularly in the schools and that, that's a serious invasion of privacy. I think that the disclosure of records, the requests for SIN numbers, people being asked for SIN numbers, being turned down as volunteers for a school because they wouldn't provide their SIN numbers. There's just nobody that they can get any kind of formal attention from with their privacy complaints.

MR. STEELE: Your office has a very small budget. For the full-time work you do, you, personally, are paid an incredibly low amount of money, I'm sure you'll agree. The amount of money that you're paid started out as being based on a part-time job and it hasn't grown very much despite the fact it has been proven for many years to be more than a full-time job. How can your office take on a privacy mandate plus pursue everything that it needs to do under the freedom of information provisions on the existing budget? How much of a budget do you need to do the job that you think needs to be done?

MR. FARDY: We haven't been asked to identify that and I think it would grow incrementally as people became more aware, as they have in other provinces, certainly the ones out West, but as it stands now, if we had one person assigned to help in privacy complaints, I think we could probably manage what we're handling now.

MR. STEELE: How much of the budget do you think your office should have in order to fulfill all parts of the mandate that you're given under the Act?

[Page 12]

MR. FARDY: I've never looked at it in that way. For what we're doing now, and we're not saying there's stuff we can't do because we don't have the money to do it, we can't assign somebody to deal with privacy and that could be looked after by a position, but the rest of it, and I've said from the start, I wasn't interested in building up another little empire. Some of the privacy information commissioners' offices are huge, and different people are assigned, but going at it slowly and incrementally, I think if our modest requests for budget increases were accepted from time to time, we could probably keep up. There wouldn't be a sudden influx of privacy complaints if I had the mandate to handle privacy complaints.

MR. STEELE: Did anybody in your office get a bonus last year?

MR. FARDY: No. I put my own name in, but I got rejected. (Laughter)

MR. STEELE: What is your view of the government's position that it is up to each individual recipient of a bonus as to whether that information is released to the public or not?

MR. FARDY: I think I've dealt with that in some other reviews.

MR. STEELE: Maybe for the record you could just say what that view is.

MR. FARDY: The view is that it's covered under Section 20(4)(e) that it's remuneration of public servants and that the information should be disclosed.

MR. STEELE: Just yesterday in this Legislature, in the very seat you're sitting in, the Minister of Justice said that to release bonus information is equivalent to releasing a performance evaluation and that performance evaluations are not subject to disclosure. What

is your view of that position?

MR. FARDY: It certainly does reflect a performance evaluation, but it's not a performance evaluation in my view, and that section of the Act as it stands now, there doesn't seem to be any question. The earlier one was with Community Services and they came up with something called at-risk pay and at-risk pay is not remuneration - I think they were just trying me on - but it's remuneration and the definition of remuneration is not defined in the Act, but it is by Black's Law Dictionary. I can't believe I'm going to law dictionaries now.

MR. CHAIRMAN: Perhaps we can come back to that. The time has expired for the NDP. I will turn to the Liberal caucus.

Mr. Graham.

MR. DANIEL GRAHAM: Thank you, Mr. Chairman, and thank you both for coming here today and sharing with us your wisdom and experience over the last several years in the

[Page 13]

position that you've held. It is a timely appearance for you to come before the committee. I'm not sure if you've appeared before the Public Accounts Committee in the past.


MR. GRAHAM: You're quite welcome and I think as a matter of course on a periodic basis - I don't know what that periodic timetable would be - the Review Officer and staff should return to the Public Accounts Committee, or some related committee of the Legislature, to provide the kind of information that you have.

There has been much comment and criticism over the last several years about the fees in particular, with respect to the Act that you work under. It's well known in Nova Scotia that the fees increased, particularly the initial application fee, by 400 per cent. The Canadian Association of Journalists gave the Government of Nova Scotia the dubious distinction - I think in 2002 or maybe 2003 - of the Code of Silence Award which they give to a government that is the most secretive and that, I understand, was fairly directly related to the increase in fees.

You've commented today about your preference for the fees to be rolled back and I think you've been fairly specific about what those fees should be - first for an application and also for a review. My understanding - and correct me if I'm wrong - is that the fees as they were originally set are more appropriate. Now I would make one comment and ask whether or not I'm accurate in that understanding and that is that in the year after the increased fees were imposed that applications declined in the range of 20 per cent to 27 per cent. So I'm asking whether or not that is indeed correct and, secondly, just a more general question - it was said at the time that this was intended to reduce frivolous claims, and I'm wondering whether or not you could comment on whether or not this indeed reduced so-called frivolous claims or whether or not you feel that it reduced claims in general?

MR. FARDY: It reduced claims in general, because there aren't that many frivolous applications. One frivolous applicant can tie up the system, and is at the moment tying up the system, which supports my recommendation that there be some legislation to handle that kind of frivolous applicant. I think the Department of Justice was looking at some language and I think it might have appeared in the review committee's report. The only comment I have is if there is legislation brought in to deal with frivolous applications, the Review Officer be the one to finally approve or not the designation of frivolous.

MR. GRAHAM: I'm interested in whether or not there is language in other jurisdictions that attends to this because the fee increase, I think, if I'm gleaning from what you have said accurately, has been a crude tool that has not worked in eliminating frivolous claims. The stated intention of government was to reduce frivolous claims and you've indicated there are very few frivolous claims, in your opinion. Even if there were a larger

[Page 14]

number, even if it was a significant nuisance, is there some other way other than fees that the government could have approached this problem?

[Page 15]

[9:45 a.m.]

MR. FARDY: Not under the present legislation. My recommendation was that they do put a clause in there to deal with frivolous applications and that they do it in the fashion I'm suggesting, and that the Review Officer would be the one to decide that. Most frivolous applicants, if there are any, they're asking for personal information and there's no fee for personal information.

MR. GRAHAM: Do you hold out any hope of your repeated calls for the fees to be reduced being heard?

MR. FARDY: Some hope.

MR. GRAHAM: We'll take any advice that you might have on how we can continue to apply the same kind of pressure or at least provide some insight into how that might ultimately work out.

MR. FARDY: In one speech that I gave, there can be occasions when somebody pays $25 for an application, $25 for a review and ends up not getting anything and on top of that $50 is paying some processing costs, and they end up with nothing. When you look at it in those terms, I think that raising the fees - and I did appear before the Law Amendments Committee at that time to predict what I thought might happen.

MR. GRAHAM: And indeed it did happen. Let me go to a frustration that I have had. I certainly don't have the experience that Mr. Steele does in this area, but on the occasions when I've been around the application for freedom of information, I'm always struck by how slowly the process seems to work, that it's more often the rule that there are delays rather than the exception. I'm wondering whether or not that is your experience? I'd like to work through some of the potential resolutions to those delays and I have some specific questions around that.

MR. FARDY: Yes, I think it's taking too long. In fact, I think the requests for review are too long in our office and we have some discussions about that on a regular basis. I'm a little bit of an impatient kind of person and I think if we don't get them out quickly people are going to lose interest in using the Act. I think there are times that departments don't gear themselves to handle applications if, in fact, the FOIPOP administrator is on vacation; some do but some don't. They often find that by the time they got to it they haven't read it carefully and now they have to go to third parties under the Act, notify the third parties and that takes time. You have to give the third parties a certain amount of time to get back, it can be a long, drawn-out process. It's not the language in the Act, I don't think it's significantly different than other legislation across the country, at least I haven't heard that being said, that they're any different in other provinces.

[Page 16]

MR. GRAHAM: Are there specific things that you would recommend to speed up the process?

MR. FARDY: I think some of them now have full-time freedom of information and some don't need it, but they should look at them as soon as they come in, at least open them - now, maybe some do - and read them to determine whether or not third parties have to be notified or maybe this is in the wrong place, sometimes it's transferred to another department 30 days after the application was received because they haven't read it carefully enough to be able to determine that this shouldn't be here, this should be over there in that other department.

MR. GRAHAM: We presently have guidelines for the timeliness of responses. It strikes me that there are very few consequences for not complying with those guidelines. Could you comment on that and whether or not that could be changed?

MR. FARDY: Well, it does say in the Act that they have 30 days. They can extend another 30 days with good reason, I explain the reason to the applicant, and they don't always do that, perhaps they don't often do that. After 60 days, they need the approval of the Review Officer. I say, no, you can't, and they say, well, it's not ready anyway. That's a bit of a waste of time to be dealing with that over 60 days when you can't do anything about it anyway.

MR. GRAHAM: It really gets to the heart of my question. It relates to the teeth that your office has and whether or not you are in fact able to compel them to stay within the time frame that is required. Not to sound too skeptical about the motivations of government departments - and you've been candid about your assessment of various departments and organizations within government today, but from my seat I'm often skeptical when we're seeking particularly sensitive information - but the foot-dragging seems to be quite obvious.

Without you having some kind of a stick or some way of enforcing a penalty or making public comment or doing something to raise this issue, we will continue to have freedom of information applications that go on for several months. In some respects, I understand, some have been in the hopper for periods extending beyond a year - I'm not sure, you could comment on this - perhaps more than two years.

MR. FARDY: I wouldn't know unless I got a request for review. I don't remember any that were hanging around that long in the department. I don't know whether you can legislate that sense of urgency that I think should be applied to applications for access, and that departments and deputy ministers should ensure that the people who they've assigned to the FOIPOP administrators' jobs, first of all, are interested in doing the job and that they're keen enough to do it with dispatch.

[Page 17]

MR. GRAHAM: Currently your power is to make recommendations, and I'm wondering whether or not that power should be enhanced to give you the strength to compel government to disclose information.

MR. FARDY: Order powers you're speaking of?


[9:53 a.m. Mr. Graham Steele resumed the Chair.]

MR. FARDY: Then we would certainly have to look at our budget again. My view of that is - I hate to be picking on lawyers, but why not? (Laughter) If you have order powers, then you have formal hearings. I adopted a very informal approach, I think it appalls professional ombudsmen that I might be using this kind of approach. I talk to applicants. The public body, of course, would have the resources to bring in legal advice. The applicant would certainly feel he was behind the eight ball if he or she came in without legal advice, and it's a major structure that you would require to handle that. Even then, those commissioners with order powers end up in court just as often, or more often, than the decisions of public bodies here in Nova Scotia.

MR. GRAHAM: There's obviously a balance to be struck, and you don't want to over-bureaucratize this, but at the same time when information is particularly slow, sometimes this information is highly relevant to a public discussion, and it's clear that there is, or certainly it would be clear to me, an organized attempt to delay on the part of certain officials. It's frustrating when you really can't do anything other than sit passively and watch where that happens. We're told, from time to time, by government about the routine access policy, and that often seems neither routine nor accessible. I'm wondering if you've heard complaints, and whether or not you have any recommendations with respect to the routine access policy?

MR. FARDY: Yes, I think it should be routine access and not require an application. As I understand the policy now, it does require it. But I haven't had anybody call to complain. (Interruption) We did have a call. Proper records-keeping is also essential to routine access. I'm not sure that's been accomplished in every department.

MS. JOHNSON: There is a recommendation from that call, and I believe one department, the Department of Health, has even proactively added to their routine access policy by previous applications that were filed under FOIPOP. It was a report, so it contained no Section 20, which is the mandatory exemption, or Section 21. It was a basic report that they decided to disclose. So instead of the next applicant requesting this report - it was a statistical report, I believe - the Department of Health decided to place it on its routine access policy so there wouldn't be a double billing for the information.

[Page 18]

But we have had complaints about one party requesting something under FOIPOP, and then a second party, instead of it being routinely accessed, it was decided that they would close it, and the second party would have to go through the same process of paying the fees in order to receive the similar or same information. I don't know how accurate that is. We don't receive many calls on it, but it was just an interesting anecdote that maybe they should expand the routine access policy to include such types of reports and statistical-type information that doesn't contain personal or confidential information and place it on it. I think it's more on the department, and some have been acting proactively, but I can't speak for them all because we did get that complaint.

MR. GRAHAM: I'd like to switch gears slightly and get a better sense of what the parameters of what should or could be released sorted out with you. If an outside party contracts with a government agency, as a general rule, is that contract subject to the disclosure under freedom of information?


MR. GRAHAM: Under what circumstances could that ever be held back?

MR. FARDY: I don't think it can be. I don't think there are any circumstances that would exist in a contract. There may be in a proposal that precedes the contract, there may be information in there that one might argue would be damaging to the competitive interests and whatever. I'm not even sold on that. I think if you're doing business with government, that's the price you pay.

MR. GRAHAM: So if, for example, the Gaming Corporation contracted with First Nations with respect to the use of VLTs, that would be something that would come under the freedom of information disclosure provisions. Is that fair to say?

MR. FARDY: It would be subject to it, yes.

MR. GRAHAM: It would be subject to it and disclose it. I'd like to touch on the subject that Mr. Steele left you with, and that's the privacy performance provisions. I really would like to develop a better understanding of Section 20(4) and your interpretation of it. The matter as it arose, and raised by the New Democrats yesterday, related to the bonus of the former Deputy Minister of Tourism and Culture and the line that was provided by government was that her privacy interests allowed her to seek protection from this having been disclosed. What do you see in that, and what is the implication of Section 20(4) to this argument? I apologize, I just want you to shed some more specific light on Section 20(4).

MR. FARDY: I don't agree with that information, because I think that Section 20(4)(e), or whatever it is, I think overrides, in a sense, the privacy of the individual, if that individual is a public servant. The Supreme Court of Canada, I think it was in Dagg perhaps

[Page 19]

that the courts said that public servants can't expect the same privacy rights as ordinary individuals.

[10:00 a.m.]

MR. GRAHAM: I noted in preparing for today's discussion that Dale Dunlop appeared before the committee that was struck to speak on behalf of you having essentially more power than you do, perhaps compelling government to disclose documents, and I'm linking that in part to your comments this morning about the Department of Justice and the Public Prosecution Service having dragged their feet on occasion with respect to freedom of information, are those two subjects connected - Mr. Dunlop's concerns and the concerns that you've expressed today?

MR. FARDY: They may be. I remember Mr. Dunlop's presentation to that review committee, but I think in a sense it does reflect the Justice Department's and the Public Service Commission's view of kind of trying to parse it more than needs to be, trying to - instead of approaching requests and asking ourselves why don't we put it out, a lot of them seem to ask, do we have to put it out or should it go out? I think that their first approach should be okay, we can put this out, is there anything there that says we can't? I think that that approach would be more helpful.

MR. CHAIRMAN: That concludes the time available to the Liberal caucus in this round; we'll move on to the Progressive Conservative caucus.

The honourable member for Pictou East.

MR. JAMES DEWOLFE: Thank you, Mr. Chairman, and Mr. Fardy, you'll notice we're playing musical chairs here today. I certainly appreciate having you here today and both members of your office and at some point we should meet the others. I noticed Mr. Steele brought up the fact that you're poorly paid and I saw where $200,000-odd is the figure you run your office on, which isn't a great deal for the work that you do, but I am wondering what is your salary, Mr. Fardy?

MR. FARDY: It's $150 a day, for days worked.

MR. DEWOLFE: Do you normally work just five days a week or do you work Saturdays?

MR. FARDY: I work just about every Saturday.

MR. DEWOLFE: You're almost like an MLA then, you work weekends and . . .

[Page 20]

MR. FARDY: Yes, I'm loath to bring up busyness or compensation in front of Nova Scotian MLAs.

MR. DEWOLFE: I was curious about how you're remunerated. I certainly compliment you on running your office the way you do with the salary.

I have to admit that I haven't a vast amount of knowledge about the work that you do. I've never called your office; I've never utilized your services. Having said that, I wonder if you could walk me through the process so that I have a better feeling - from the point of arriving and picking up an application form, where do I go from there?

MR. FARDY: If you are an applicant you apply, you don't have to use a form or anything. I don't insist on forms, but you have to apply to that public body and if they give it to you, Bob's your uncle. If they don't, you may not be satisfied with their decision or their reasoning, then you come to the Review Office and it would come in to Wendy and she would review the case and talk to the applicant, whether or not it's acceptable, and then Susan Woolway would try to mediate it, and if she's unsuccessful it comes to me and I talk to the applicant and I talk to the public body and we ask for submissions from both the applicant and the public body. We don't always get them from applicants because the Act is new to them and they're in no position to argue the merits of some of the exemptions, but we do expect full submissions from . . .

MR. DEWOLFE: Let's go back to the mediation process now like, what does the mediator do?

MR. FARDY: I'm not involved in that and that's part of the mediation magic that when it comes to me I don't know what went on in mediation. First of all I go back to the public body and say are you sure you know what the applicant wants or go to the applicant and say, it seems to me what you're asking for, if you had asked for this wouldn't you be just as satisfied with the result? I think that's the whole process and hopefully get it off the table. It still will cost $25.

MR. DEWOLFE: Right. Now, maybe they'll say, I'll go to the Review Officer. Do you have some set guidelines or is every case different?

MR. FARDY: Every case is different. Every applicant is different and I deal with them in a different way. I interpret the Act my way and if it agrees with the interpretation that the public body put on then I agree with the public body's decision. If it doesn't, then I would say so and give my reasons and recommend that they give it out. And sometimes they do; more often than not, in fact.

[Page 21]

MR. DEWOLFE: Ms. Johnson, as the Case Review Analyst, where do you fit into the scheme of things? I've already gone through the first approval step, the case is valid, so do you take it at that point?

MS. JOHNSON: What we do is once we indicate that the case is valid, I contact the public body and I contact the applicant and I tell them that we are going to process the application. I send a letter to the public body and based on the issue is the type of letter I'll send. If it's a search issue, we have some guidelines that Mr. Fardy developed in one of his reviews to indicate if they did conduct a valid search. There are also records requests, the public body has 15 days to send us the records relevant to the review, and once the records are received, I look over the records to make sure they are what the applicant is looking for because they're in severed and unsevered form.

In severed form the public body usually highlights what they omitted from the applicant and next to it indicate which section they're basing their argument on. Sometimes there is an obvious exemption that does not fit the exemption cited, so I usually try to contact the public body. For example, Section 20 is personal information, sometimes they would discuss something internally by the department then put Section 20 next to it, even though the person is acting as their position in the department so I'll speak to them and say, this is not a Section 20 clause, did you mean Section 14, or is that just an oversight? If it's an oversight, the public body will usually agree to disclose that. So it's probably preliminary mediation of the obvious issues.

Once I review the records I do up a report which kind of tells the history of the application, so people know the timelines involved and the issues involved and I do preliminary research on case law and also other Ombudsman's and commissioner's reports to show how the courts and these individuals have interpreted those specific exemptions, and then it goes on to the mediator.

Our process is a good process, but it's not like, one minute you'll be talking to me, the next minute you're talking to Susan and the next minute your talking to Darce, but especially between me and Susan, there's a lot of back and forth as more issues come to light. We try to have it as concrete and flushed out as possible before going on to the Review Officer.

MR. DEWOLFE: How long does a typical access request take? What would be the average, are we talking weeks or are we talking days, months?

MR. FARDY: We would be talking weeks for sure. I'm not sure, if I don't get a review, I don't know how long applications have been in a certain department or something. From the time of an application and if you then go to review and by the time a review is completed, it's too long, it could be three months. My target was to put out 70 per cent of

[Page 22]

them within 80 days and we don't always reach that target. It's not immediate satisfaction, unless you just get the information.

MR. DEWOLFE: Are there times when you don't receive a response at all from a public body?

MR. FARDY: Well, the Act covers that. If you don't get a response then the public body is presumed to have said no, and the person can come to me and then we can start that process.

MR. DEWOLFE: Okay, most interesting. Thank you for that.

MR. FARDY: Thank you.

MR. DEWOLFE: I really had no idea of the process involved so thank you. I'll pass my time now to the member for Kings North.

MR. CHAIRMAN: The member for Kings North.

MR. MARK PARENT: Mr. Chairman, thank you for appearing before us and I too want to log what you've been able to do in the office and the importance of the office. I had the opportunity, I don't know if you read The Parliamentarian, it's in the latest issue of The Parliamentarian, but at the Commonwealth Parliamentary Association up in Ottawa and Toronto, the recent one, I had the opportunity to sit in on one of the sessions where the topic of information was freedom of information and protection of privacy and the emphasis was basically on freedom of information and two things became clear to me. One is the importance of openness and transparency and accountability in a democratic government. Many governments in two-thirds of the world struggle with this sort of openness. We just saw on the news yesterday, we had a little chuckle in the members' lounge of a clip where the president's wife from Kenya stormed into the journalist office demanding . . .

[10:12 a.m. Mr. James DeWolfe took the Chair.]

MR. FARDY: And punched him out.

MR. PARENT: Yes. I guess we take for granted sometimes the importance of what you do. So it's, I think, key that we have opportunities like this to wave the flag as it were, if nothing else.

The other thing that became important was not only the importance of freedom of information but how far ahead Nova Scotia is. I was reading a section of the O'Connor versus Nova Scotia, the judgment there, and in that judgment the judge lauded Nova Scotia for being far ahead of other provinces. I think that that needs to be stated. I'm not saying it's

[Page 23]

perfect, but I do think that that needs to be stated. Much of it attributed to yourself and to your people in your office, but I read that with some degree of satisfaction and of course was able to report on that in the meeting I attended.

I want to ask this question about frivolous requests because as Mr. Graham stated, the fee increase was in part to cut down on such requests, but there's a better way of doing it, you say, through a small statement that would allow you to differentiate between a legitimate and a frivolous request. Is that the method that you want to get at?

MR. FARDY: Well, you're right that we would want to keep it simple. I think if a department decided that a certain applicant was really snagging the gears, then they might, under that amendment, come to me and say, look, here's the problem, we'd like to have this person declared as frivolous and be able to ignore their applications. I haven't tried to word the legislation, but the approval would certainly have to be up to . . .

MR. PARENT: There would have to be some sort of review though of that decision, some appeal?

MR. FARDY: Yes, there would. More than a review. I think in that case, it should be an order of power for the Review Officer to say yea or nay.

MR. PARENT: Okay. I just wanted to clarify. I thought that's what you were getting at and I just wanted to clarify it. The other problem that I find and this is really more with the federal government. My office has handled a few and helped out. We've not submitted any ourselves basically. We may have sent one or two to the federal government, I can't remember, but we have helped people out who have come to the office and said, listen, I want to find out information. One person, for example, we helped out four different times and it was from the school board he was trying to get information, and the case appeared in one of your annual reports. I read it with interest, of course.

[10:15 a.m.]

But with the federal government, the problem I found is that they want you to be so specific and their request is so complicated that you almost have to know the information before you ask for the information. I guess they do that to help streamline it, but in a sense it becomes a block. Do you see that as a problem and how does one overcome that? A lot of times the applicant senses something's wrong, but they're not sure exactly what question to ask and if they're not helped along in directing that, then it can become a block rather than an avenue for information.

MR. FARDY: I think it's the responsibility of a public body to talk to the applicant and make sure they know what the applicant is asking for in an informal way. I must say, if you read the federal information commissioner's annual report, he has problems we've never

[Page 24]

dreamt of and trying to persuade those governments in Ottawa to be open and accountable is not an easy task.

MR. PARENT: No, I was surprised to hear in this Commonwealth session that MLAs are subject to FOIPOP here provincially, but MPs aren't with federal legislation. Am I right on that?

MR. FARDY: No, you're not subject to that.

MR. PARENT: We're not subject to it either. Okay.

MR. FARDY: Nor the Speaker.

MR. PARENT: But the case I had, we couldn't get the information because it was almost as though we had to know the information before we asked for the information for the person.

Lack of use by media - I'm interested in this. Anecdotally one of the members said why he thought the reason was. Is there - and I'll play the devil's advocate here on the government side - some possibility the media isn't using it because this government has been more open?

MR. FARDY: It could be. I wouldn't know, I wouldn't have the evidence of that, but that certainly could be a consequence of fewer applications.

MR. PARENT: Or to further that, the use of the Internet, for example, has increased people's ability to get information and one individual in Canning, Ivan Smith, uses the Internet and the information he can get on the Internet is just incredible.

MR. FARDY: It's true. I don't particularly blame that on the fees. Some of these news organizations are quite profitable and if they don't want to pay $25 for what they're looking for, which is a good story of human interest or whatever, I think it's the way journalism runs today. I think the television and radio people - particularly the television people - they have a minute and a half spot to do. I've had journalists come to interview me about a review that I've done without having read the review because it's just an ad tear to fill that spot at six o'clock. To go through this process and to ask for records and then find you're getting a lot of records and then you have to read through those, that doesn't fit in with the operation of a daily newsroom anymore, I don't think.

MR. PARENT: In terms of the breakdown, municipal and provincial, most of the requests fall under the provincial jurisdiction. Do the municipal bodies pay for that or is your office totally funded provincially?

[Page 25]

MR. FARDY: I guess it's totally funded provincially. In fact it is.

MR. PARENT: There's no sort of . . .

MR. FARDY: No, no there isn't. Do they chip in? No, I don't know what they do with the $25 application fee either. The money that comes in to us for our reviews, the cheques go off to the Department of Finance, as do all the application fees that come in. But I don't know what municipalities do with their fees.

MR. PARENT: I was interested in whether they were billed back for the use of your office or not.

I was looking at the requests and they seem to be concentrated - well, the top two bodies are Community Services at 122 and Environment and Labour with 125. Environment and Labour I could see because of the regulatory function. With Community Services, is it individuals asking basically about why they were turned down or why . . .

MR. FARDY: I think. That would be my understanding that they would be after that kind of personal information, either on behalf of themselves or on behalf of a relative or whatever.

MR. PARENT: That personal information is exempt from fees.

MR. FARDY: Yes. I should add, if I may, that our experience as Information and Privacy Commissioners and Review Officers is, there's no great change in government's attitude towards the Act when governments change. I mean governments of all stripes are wary about putting out information that might create problems or they might think is premature on that. So there aren't a lot of governments across the country that are really enthusiastic about the freedom of information Act or really fund it properly. B.C.'s was cut drastically a little while ago. Alberta apparently seems to be the best funded and the best resourced commissioners office in the country and they've also brought in different legislation. They've brought in health privacy legislation in Alberta, as they have in Manitoba and Saskatchewan too, but out there there seems to be at least that kind of interest in improving the legislation.

MR. PARENT: That's what my next question was going to be, in comparison with the other jurisdictions, how we fare in terms of funding and staffing. We're certainly not at the top of the pack. Are we at the bottom of the pack?

MR. FARDY: No, there's always P.E.I.

MR. PARENT: Good old P.E.I.

[Page 26]

MR. FARDY: P.E.I. just has a single commissioner part-time, but they're not getting very much. Newfoundland just proclaimed an Act and appointed a part-time commissioner who has in his office three people - a full-time executive director, a full-time mediator, and a full-time investigator or something. So even Newfoundland is doing a little better than Nova Scotia.

MR. PARENT: In terms of your reporting on the accountability directly back to the Speaker rather than to the Department of Justice . . .

MR. CHAIRMAN: Sorry, I was asleep at the wheel, we're just a few seconds past the time allotment.

MR. PARENT: Okay, I'll come back to that question.

MR. CHAIRMAN: I'll move on to Mr. Steele of the NDP.

MR. STEELE: Mr. Chairman, really it's only somebody on the government side who has never used the Act who could suggest for a second that maybe the reason why journalists and others don't use the Act is because this government is so open. It's astonishing to me that anybody could even suggest that, even as a devil's advocate. I will tell you why people don't use it and there are several reasons.

The NDP caucus office, of course, is one of the frequent users of the Act. We have a number of people who know their way around the Act very well and use it frequently and the frustrations that they have expressed to me are principally the following. First of all, this whole issue of records management sounds dull, but it's fundamentally important, and that is that we ask departments for records and they have no idea whether they have them or not. Then they charge us the time to go looking for the records that they should have known in the first place whether they had or not. So as you said, Mr. Fardy, you can end up paying a good deal of money for a department to come back to you and say they haven't been able to find anything; whereas if they managed their records properly, they would know immediately whether they did or they didn't.

MR. FARDY: I have dealt with that in several of my reviews and recommended that the department give the money back. If they're searching without knowing if the documents even exist, then the cost of that search shouldn't be charged to the applicant.

MR. STEELE: The second frustration that our staff has, particularly with the larger departments, is that they ignore the section of the Act saying that it is their responsibility to figure out which unit of government holds the records and it's not the applicant's responsibility, it's their responsibility. So what happens, for example, is we'll send in a request to the Department of Health and their answer is, well, we don't have it, maybe the district health authorities have it, go ask them, and they simply overlook the fact that under

[Page 27]

the legislation it is their responsibility to refer the request to the appropriate authority. So a good deal of time can be lost with a department that simply says, oh, we don't have it and we're not going to bother to find out who does. That's the second thing.

The third frustration that we have with the Act, is that some units of government seem to be routinely asking for extensions of time. It's almost automatic. Under the Act the initial period for a reply is 30 days, but we can put in a request and the day after we get it, they immediately, almost as if it's an automated response, ask for the automatic extension to 60 days and that can even go out to 90 days but, of course, theoretically, they have to ask for your permission to do that. So it's like with no reason at all they'll extend it out to two months.

MR. FARDY: But that's appealable, that's reviewable, that decision to extend by another 30 days.

MR. STEELE: From 60 days to 90 days, but not from 30 days to 60 days?

MR. FARDY: Yes, it's reviewable from 30 days to 60 days. In fact, the letter I think will say if you're not satisfied with this, you can ask for a review with the Review Officer.

MR. STEELE: Okay, it's my impression that the 30 days to 60 days can be done for no reason; the 60 days to 90 days, they need to have your authority to do that?

MR. FARDY: That's true, they need my permission, but before that it's appealable.

MR. STEELE: And then the fourth frustration is that the fee estimates just seem to be inflated, they're too high. So it's almost like they're designed to discourage people from going forward because they say, all right, if you want this information, it's going to cost you x number of hundreds of dollars, do you still want it and, of course, like any office, you know, we have a limited budget and sometimes we get the feeling that they're deliberately inflated. Then we have to go through the review process just to get a reasonable estimate.

Now, you lay out all of those things, we're a professional office, we're used to dealing with the Act, we're used to dealing with the administrators, we can eventually work our way through all those things, but it takes time and some effort and some knowledge. So you take all of those frustrations and then you say, well, how is the media going to react to this, how is the individual citizen going to react to this, and it's very predictable. They get discouraged very easily because they don't have the time or the money, or the knowledge, to deal with it the way that we do. So that's what's really happening, just so the member for Kings North knows, that's why the Act isn't used more than it is, not because this government is open and people don't see the need to use the freedom of information Act.

[Page 28]

Mr. Fardy, have you heard the rumours that we've heard that the government is waiting for you to leave your position before your office is folded into another unit of government?

MR. FARDY: I've heard the rumour.

MR. STEELE: And what have you heard, what do you know about it, and have you checked on it?

MR. FARDY: I haven't checked on it. I'm going to meet with the Deputy Minister of Justice soon. When I was called to ask would I accept a one-year extension, I think I was led to believe that I would be consulted on this, but I have a meeting set up with the Deputy Minister of Justice next week.

MR. STEELE: Now, of course, the government has already demonstrated a particularly short-sighted manoeuver where two of the other oversight offices, the Ombudsman and the Human Rights Commission, were rolled together and it took several years for the government to realize what they were warned about from the start, which is it would never work, and then they were separated out again, apparently in an effort to save some money, but what it did was decrease the ability of those offices to function effectively. What is your view on the impact on the freedom of information system if after your departure, your office is similarly rolled into some other office; in other words if the independence is compromised, what would be the effect of that?

MR. FARDY: I would recommend against that. I think that the Act would lose some of its prominence. There are three provinces where the access to information and privacy Act is rolled in with the Ombudsman: in Manitoba the commissioner, who recently retired, had some problems with that, he felt that was too much on the plate of the Ombudsman; the Ombudsman in Yukon, you know, there would be little activity; and in New Brunswick where at the moment they don't get that many access requests or appeals, there's not a lot of action in New Brunswick I understand.

MR. STEELE: In fact, you're on the record as saying a number of times over a number of years it's far from having your independence removed, that your office should be an officer of the Legislature and having the equivalent formal legal status, for example, as the Auditor General. Why should we do that, for the record, why should your office be an officer of the Legislature?

MR. FARDY: To strengthen its independence and to provide it with accountability.

MR. STEELE: And what are we losing if we don't do that?

[Page 29]

MR. FARDY: I think the Legislature is losing opportunities to call in the Review Officer or Information or Privacy Commissioner, which I hope is what they would do, change the title, to call in and question that person and hold that person accountable.

[10:30 a.m.]

MR. STEELE: What are the risks that we're running by not giving your office an adequate budget? What do we lose? What are we not getting by not giving you an adequate budget?

MR. FARDY: It's hard to measure. We're not giving Nova Scotians the kinds of privacy rights that people in other provinces have to be able to seek recourse to their privacy complaints, and I think that's a serious deficiency for Nova Scotia, that that opportunity is not there for citizens.

MR. STEELE: Have you discussed with government why they are not moving to enhance the independence of your office and the ability of your office to discharge its statutory function?

MR. FARDY: I've never been given an explanation, on why it was set up the way it was and is not an office of the Legislature, as it is in every other jurisdiction.

MR. STEELE: Have you had discussions with the government on that point, about the need to enhance the independence of the office?

MR. FARDY: Not formally. In my meeting with the Deputy Minister of Justice - because of the way this office was set up, unlike other commissioners, I really had no contact with government. I was just sitting there, pounding out stuff on my computer. Not being an officer of the Legislature, you have no opportunity, really, to mix with the members of the Legislature, to explain what you're doing and to get their support. I think it just kind of gets overlooked.

MR. STEELE: I have 30 seconds left, so I'm going to ask you to state, as briefly and concisely as you can, if there is one thing that you want the MLAs in this Legislature to go away from this meeting with, what is the thought you want to leave them with?

MR. FARDY: To pay some attention to the Act. It needs some nourishment, it needs to be looked at. I know there are a lot of things on the plates of the legislators, but this Act has to be kept healthy. They should find the time and be in the position to know the Act and be able to promote it.

MR. CHAIRMAN: We'll now move on to the Liberal caucus.

[Page 30]

The honourable member for Glace Bay.

MR. DAVID WILSON (Glace Bay): Mr. Chairman, after an hour and a half of questioning, there's really not much left to ask, is there? That's one of the problems I have. You've raised some tremendously interesting facts. As a former journalist, I don't know if there could be anything more important than a freedom of information Act. You're absolutely right, Mr. Fardy, that daily journalists don't have time to use freedom of information. It's simply not there. It's something more - as a journalist, as you would well know - someone along the lines of a current affairs producer or reporter, whatever the case may be, would file on a regular basis. Some people make careers out of filing freedom of information requests. I wasn't indicating anyone in particular. It's not to diminish the fact that they are extremely important.

What you've delivered here, in my summation, is a rather disturbing picture of a somewhat - am I fair in saying - strained relationship that you have ongoing right now with the provincial government, over the fact of whether or not your office is being used properly, whether or not you are being used properly, whether or not you should be an officer of the Legislature, whether or not your office is funded properly? You've raised a lot of points which would lead me to believe that all is not happy in the office of the Freedom of Information Review Officer. Am I correct in saying that?

MR. FARDY: In the sense that I think there's a benign neglect for the Review Office, and that has disturbed me from day one. I bring attention to it in my annual reports and that. I see how it operates in many of the other provinces and territories. Yes, I did feel, for the first few years, that there wasn't a lot of demonstrated respect for the Review Office or for the reports that I put out.

MR. DAVID WILSON (Glace Bay): The phrase benign neglect is really not a happy phrase, Mr. Fardy. So that would lead me again or give me more indication, that things are not and you've said that as MLAs we don't pay enough attention to this Act. You've also used the words, you were overlooked. Are people starting to lose interest in the Act, in terms of us as MLAs, whatever the case may be, or is it a case, and as with all legislation, especially legislation that was once considered to be leading-edge legislation, there comes a time when you have to step back and review that and look at it?

In some instances, we have. There have been bills that have been put forward as private members' bills to improve the freedom of information Act and change it, and various changes have been recommended by us as Opposition Parties, but the government, I think, if we're going to zero in on a target, you should be - not you, personally, but the office - saying, it's the government that's overlooking us. It's the government that's neglecting us, because those recommendations, those suggestions have been made to government. Is that not a fair statement?

[Page 31]

MR. FARDY: Those suggestions have been made to two administrations, and mostly without much satisfaction.

MR. DAVID WILSON (Glace Bay): So what we have, and I don't mean to belittle, we've touched on every topic here from fee increases, and fee increases are, as you said, fine, if you upped the fee increase to $25, there will be certain individuals or certain organizations who that will affect, whether or not they file more or less freedom of information requests, but there are also other organizations and individuals and that's not going to stop them from filing the number of requests that they have filed in the past. The fee increases are not making your office rich, they're not giving you any additional funding in terms of how much you pay for a freedom of information request.

So what we've ended up with here, and what I'm worried about right now is, are we ending up with a Review Office, a freedom of information office, with a Review Officer who has less teeth than you've ever had before, less power than you've ever had before, and a public that's becoming disinterested in even using it or paying attention to that office, and, on top of all of that, an office that is going to say if, indeed, privacy complaints pick up the way they have across the rest of the province, you're never going to be able to handle the amount of privacy complaints that would come in, if they catch up with the rest of the country. Just your comments on some of the statement that I've made.

MR. FARDY: The difference between my job as Review Officer and other independent officers is - and I'm not including the Auditor General's - I'm always in the face of government. I'm always in their face. The Ombudsman isn't. So that kind of, after a while - I think the administration, in fact I know that the administration that appointed me was shocked - because it was just the Review Office and there'll be somebody there who they can talk to - when they saw the first story in the paper about Fardy disagrees with whatever. A former Cabinet Minister said to me, who is he? That kind of reflects the approach. It's a difficult one. It's difficult for us. We're not loveable.

[10:39 a.m. Mr. Graham Steele resumed the Chair.]

MR. DAVID WILSON (Glace Bay): Well, maybe you're not, Mr. Fardy, I don't know. You seem to be a pretty nice guy.

MR. FARDY: I am, that's what's surprising.

MR. DAVID WILSON (Glace Bay): I have that same problem myself. People don't understand me either. Let me comment on the fact that your agency, your office should be considered, basically, as an agency of this Legislature.


[Page 32]

MR. DAVID WILSON (Glace Bay): That, in your opinion, would change everything, would it not?


MR. DAVID WILSON (Glace Bay): That's your first step, that's your number one

thing. If anything came out of your whole report, would that not be the one thing that you would like to see done right away?


MR. DAVID WILSON (Glace Bay): That would be as simple as this Legislature enacting a bill, legislation, that would say, the Freedom of Information Office becomes more independent, let us say, in its nature. It's that simple, is it not? There's nothing complicated here.

MR. FARDY: No. The language is in every other Act, that the office is an office of the Legislature. It doesn't cost anything. I really honestly don't know why there was a reluctance on behalf of the administration that introduced this new Act, or the present administration which has made some great improvements to the Act by increasing the number of public bodies subject to the Act and all that. I don't know what the reason is. I just don't know.

MR. DAVID WILSON (Glace Bay): Well, we could speculate but the fact of the matter is, is that it could be very easily done by this Legislature. As you said, it would cost absolutely nothing. It would take no time, no effort, basically, to make you an officer of this Legislature and in fact strengthen the Freedom of Information Office and the work of the Review Officer in this province, and I would see that as only a positive thing, if we're talking about openness and transparency and so on, as every politician will use those phrases like they flow water off a mountain, and here we are arguing and yourself, year after year, telling government that we need to make you an officer of the Legislature. If we do that, then we in effect give credence to the fact that we believe in openness and transparency by doing exactly that. Agreed?


MR. DAVID WILSON (Glace Bay): If it's that simple then I don't know why we just don't - can we do that before the Public Accounts Committee here today, Mr. Chairman? I'm not sure. Anyway, it would be my suggestion that you keep up the battle, Mr. Fardy. Let's put it that way.

MR. FARDY: Oh, I'm fading.

[Page 33]

MR. DAVID WILSON (Glace Bay): Well, it's a shame that in this province - the other comment you've made that most disturbs me is that people may be losing interest in this Act, and I think that's probably the most disturbing comment that you've made here today.

MR. FARDY: Yes, and a lot of the Acts give a mandate to the commissioner, the Review Officer to get out there and educate, and we try to do that but we're not resourced to do it. That's an obligation that is laid by other Information and Privacy Commissioners by their Acts.

MR. DAVID WILSON (Glace Bay): I know my time has run out, so I want to thank both of you for your appearance here today, thank you.

MR. CHAIRMAN: Thank you. We'll move for the next 10 minutes to the Progressive Conservative caucus.

The member for Kings North.

MR. PARENT: Thank you very much, Mr. Fardy, and I was picking up on this officer of the Legislature when I left off and some of that ground has already been tilled and I can sense some of your frustration and it must be a disappointment that the public is not using the office or is as educated about the office as they should be, and perhaps the attendance of this meeting today is an indication of some of that as well. There must be some disappointment with the attendance that you're facing when you have an opportunity to report to the Standing Committee of the Legislature and I do apologize for that.

In practical terms, you have an annual report which you publish and that's given to the Speaker, but it's a lack of perhaps, accountability to a specific committee that there's no Standing Committee of the Legislature that you directly report to on an annual basis. Would that be the practical?

MR. FARDY: It's more than that. I think, as I mentioned independent agencies are funded through the Speaker and that's where the request for resources would go. Now, the request goes to the Department of Justice and that's the department that administers the Act. The perception is, of course, if the Department of Justice was not satisfied with the work of the Review Office, then that budget increase would not come about. In fact, it's the current administration that provided the first budget that I had, but it hasn't grown appreciably.

MR. PARENT: We could make a motion, but we wouldn't have enough people to do it in that regard, but anyway, I think your comments are noted and well noted.

In terms of privacy concerns and the need to put in legislation that would protect the privacy of various people, I agree with you and I think that we need to do that; however,

[Page 34]

conversely, a lot of times privacy legislation creates walls in helping people. I continually have people come to me and they want me to help them and I have to go through such hoops on the federal side to make sure I can help them. How do you see protecting privacy and yet allowing exchange of information that would help the person?

[10:45 a.m.]

MR. FARDY: Hopefully, common sense would prevail. It explains why there's not a lot of support in the media for the privacy because they see it as another way for public bodies to refuse to disclose information. But privacy protection is here, and now there's a federal Act so Nova Scotians can appeal to the federal privacy commissioner if the private sector abuses their privacy or they feel an abuse of privacy. So that's there and it's growing and I don't think it interferes with access in that way. I don't know what your experience is in Ottawa, but normally, here, if a record contains personal information, we suggest - and now we don't need to suggest - the public body will just take that out, or any other identifying information, and disclose the record.

For the most part the applicant will say, no, I don't want the name, I'm not looking for people's names.

MR. PARENT: Two very specific questions before I turn it back to the Chairman to turn it over to my colleague. One is in terms of requests from political bodies, you broke down nine reviews in 2004. Can you break that down by Party for me, or do you keep track of that?

MR. FARDY: I'm not sure I understood the question, Mr. Parent.

MR. PARENT: The request, Reviews Opened by Applicant Group, in 2004, you list nine under the heading, Political. Is there any way of breaking that down by Party or do you keep track of that?

MR. FARDY: Oh, I see. No, we don't keep track of that.

MR. PARENT: Okay. Then, finally - I should know this, but I can't remember - since I have you before me, one of your cases involved the Gaming Corporation and the matter was settled before trial, according to your report. Can you tell me how it was settled? It's FY-04-02 (Harm to a third party) on Pages 12 and 13.

MR. FARDY: Okay, thank you. I recommended the Gaming Corporation disclose the individual revenues. Did they do it, you're wondering?

MR. PARENT: They appealed that to the Supreme Court, but you have that the applicant appealed to the Supreme Court but the matter was settled before trial.

[Page 35]

MR. FARDY: That wouldn't have been settled by us.

MR. PARENT: But do you know the results of how that was settled?

MR. FARDY: No, I don't. Once I put out my recommendations and complete the report, I'm really out of the picture, I'm not brought back in under the legislation for any reason. Oftentimes, in fact, I forget whether or not public bodies accept my recommendations. I just do the best I can and try to persuade them, and I'm not upset when the public body doesn't.

MR. PARENT: Just in closing, keep up the fight. I know that it's difficult. As you state, it doesn't matter what government is in office, governments are going to want privacy to make their decisions and the public wants accountability, so it's an important office and I just encourage you in that.

MR. FARDY: It's been our experience, yes.

MR. PARENT: I'll turn it back to the Chair.

MR. CHAIRMAN: Thank you. I recognize the member for Waverley-Fall River-Beaver Bank with just over three minutes remaining.

MR. GARY HINES: Mr. Fardy, you're definitely a candid, forthright individual. That doesn't take away from you being a good person because I'm somewhat like that and I'm a good person.

That being said, I would like to echo the sentiments of my colleague here that you are not sitting before a full committee because I know you had made a request to talk to caucuses and to talk to representation and that hasn't happened today to the degree I would like to see it happen.

I'm going to move on to a statement you made that the Review Office needs attention, but it doesn't necessarily need more power. Can you elaborate on that?

MR. FARDY: Some of my colleagues have order powers, they can tell a public body to disclose. Those using the ombudsman model, and I think they are still in the majority in the country, make recommendations. As I tried to point out a little earlier, I'm not opposed to order powers for the commissioner, but this system works as far as I'm concerned. Another structure would be required if we got into giving orders. We would, for instance, have to have legal advice on staff, and we would have to have formal hearings, and applicants would have to hire legal advice if they wanted to have a feeling they were at the table.

[Page 36]

The journalists will say it's toothless, but it isn't toothless. Many of our recommendations are accepted in whole or in part. I think it works fairly well under the circumstances.

MR. HINES: I may be a little premature in this suggestion, but I hate to see us lose an individual of your calibre, just as I hate to see our Auditor General going. We are losing two significant individuals in terms of governance in this province. One of the things that I'm going to ask you is that in the year ahead, are you going to pursue some of the challenges, and what would those challenges be in the year ahead that gives you a chance to prepare for leaving your office?

MR. FARDY: I'm hoping that in my meetings with Justice Department officials that I'll have an opportunity to put forward my views on how I think things should operate and how I think it should continue. I'm not the only person who can do this job, and as long as that person is an advocate of open and accountable government, then I think the office can continue. I hope it gets the resources it needs.

MR. HINES: In the short time we have left, can you give me some of your significant accomplishments over the years that you've been with us?

MR. FARDY: Oh my gosh. Lasting, surviving. I think we've changed the tone of it. I think when this started they were somewhat surprised that my reports were going public, and I don't think that the government was expecting that at the time. Generally speaking, I think the staff, the government staff that we deal with have respect for us, and we work well with them. So that was the accomplishment, because we started with nothing. I think we've given it some stature.

MR. HINES: Mr. Chairman, that concludes my questions.

MR. CHAIRMAN: That's a good thing, because your time is up.

Mr. Fardy, you now have up to five minutes to make a closing statement, if you choose.

MR. FARDY: I just want to say thank you. I have, in the past, felt that deputy ministers themselves should get more involved in this. It was interesting that the Deputy Minister of Justice appeared at three or four training sessions that we had, pointing out that you can't have good government, successful government without openness and accountability. I think we've all said that the sponsorship scandal would not have happened if that government had been open and accountable. I'm pleased with the questions. I hope I answered them in a way that was at least understandable. Thank you.

[Page 37]

MR. CHAIRMAN: Thank you very much. As I said, from my other chair, I do think it's important that this committee recognizes the Freedom of Information and Protection of Privacy Act and Review Officer as fundamental parts of the accountability framework within which our government operates, and we're very pleased to see you and Ms. Johnson here today to talk about this important topic.

For the information of the members, two short business items. This committee's annual report has been returned from the printer and will be tabled this afternoon in the Legislature, and a copy distributed to all members. There is correspondence, also, from CCAF, an organization with which we met at the beginning of the year. This is the organization that does the research that produces standards for such important things as public performance reporting and they have requested the opportunity to meet with this committee again. There's no need for us to decide on that today, but I would just ask members to review the correspondence. The suggested date for another informal meeting with them so that we can share our experience and insights with them is May 18th.

The next meeting of this committee is Wednesday, May 11th, 9:00 a.m., here in the Legislative Chamber, and our guests will be witnesses from the Nova Scotia Gaming Corporation. Are there any other items of business requiring the attention of the full committee? If not, a motion to adjourn.

Would all those in favour of the motion please say Aye. Contrary minded, Nay.

The motion is carried.

This meeting of the Public Accounts Committee is adjourned.

[The committee adjourned at 10:56 a.m.]