Backgrounder: The dismal state of New Brunswick’s right to info law

The Town of Sackville’s refusal to release a consultant’s report on the troubled Sackville Fire Department points to serious shortcomings in New Brunswick’s Right to Information and Protection of Privacy Act (RTIPPA), according to experts.

They add that New Brunswick officials have too much leeway under RTIPPA to deny access to information that they want to keep secret.

It took the town a month, for example, to deny a Warktimes request for a copy of the Montana workplace assessment of Sackville Fire & Rescue and it then took five months for the provincial Ombud to uphold the town’s refusal to release it.

Such long delays coupled with sweeping restrictions on the release of information and a lack of effective oversight have made New Brunswick one of the hardest places to get government information, according to two experts who have studied RTIPPA.

“Despite the early promise of New Brunswick’s groundbreaking right to information legislation, successive governments have undermined its purpose and value,” writes Mount Allison University librarian Anita Cannon in the conclusion to her study published in the latest issue of the Journal of New Brunswick Studies.

“Amendments made over the years have failed to address some of its most serious weaknesses and have instead introduced restrictions that have limited access further,” her study adds.

“The act now compares poorly with other provincial and territorial acts in Canada and is far from meeting international standards.”

During a telephone interview this week, Cannon explained that, as the university’s government information librarian, she is very familiar with RTIPPA, but conducting in-depth research for her academic paper was still a bit surprising.

“I was slightly surprised at how bad it (the law) was,” she says. “The more I learned, the worse it looked.”

NB’s dismal record

Cannon’s comments were echoed by Toby Mendel, executive director of the Centre for Law and Democracy in Halifax.

During an interview this week with CHMA reporter Erica Butler, Mendel said that Canada ranks 52nd out of 136 countries on the Centre’s detailed right to information (RTI) rating scale.

And within Canada itself, New Brunswick and Alberta are tied for 13th and last place when compared with the federal government, other provinces and the three territories.

“The fundamentals are wrong, fundamentally wrong in New Brunswick, worse than anywhere in Canada, and that’s within a framework of fairly poor performance as compared to the rest of the world,” Mendel says.

Gaps in RTIPPA

Anita Cannon and Toby Mendel say the unsuccessful Warktimes request for the Montana report illustrates several key weaknesses in New Brunswick’s Right to Information law. Here’s a summary:

(A) Exceptions

RTIPPA contains too many exceptions allowing officials to withhold broad classes of information without having to show that releasing it would cause significant harm. Two of those exceptions were cited to deny access to the Montana report.

(1) In justifying the town’s refusal to provide the report or any of its recommendations, Sackville Town Clerk Donna Beal cited Section 20 of RTIPPA, the section that bans the release of information: that would reveal (a) the substance of records made by an investigator providing advice or recommendations of the investigator in relation to a harassment investigation or a personnel investigation, (b) the substance of other records relating to the harassment investigation or the personnel investigation.”

Cannon points out that aside from vague wording, the term “substance of records” isn’t defined anywhere in the Act. Mendel says that weak laws like RTIPPA have “overbroad, vague exceptions” like this allowing officials who want to keep information secret to use them to refuse access. “It sounds a little bit like that might be what’s going on in this case,” he adds.

(2) In reviewing the town’s refusal as a public body to release the report, the Ombud’s office not only supported the town’s reliance on Section 20, but added another one of its own, Section 26, which states that any information can be withheld if disclosure could reasonably be expected to reveal (a) advice, opinions, proposals or recommendations developed by or for the public body…(c) plans relating to the management of personnel or the administration of the public body that have not yet been implemented…(e) information, including the proposed plans, policies or projects of a public body, the disclosure of which could reasonably be expected to result in disclosure of a pending policy or budgetary decision.

Both Cannon and Mendel say Section 26 is so broad, it could be used to deny access to almost any information. Mendel also said he found it peculiar that an investigator in the Ombud’s office would go out of her way to justify the town’s refusal using arguments that the town itself did not use. “I thought that was peculiar and it doesn’t give me a great sense that this person wishes to strongly promote access to information,” he added.

The two experts also cited international legal standards requiring officials to show that disclosing information would cause harm to a legitimate interest. RTIPPA does not require officials to show harm, but allows them instead to exclude broad categories of information.  Cannon and Mendel said it’s common in other provinces to release documents with information redacted or blanked out if its release would cause harm rather than withholding the whole document as Sackville has done with the Montana report.

(B) Public interest override

Cannon and Mendel say that international standards require a public interest override allowing information to be released even if it falls within an exception. “This story, which is sparked by complaints of bullying and harassment, obviously has very, very important…public interest benefits to it, so even if some private information was included, that would have to be very, very sensitive information to outweigh this public interest,” Mendel said.

(C) Oversight and appeals

Cannon and Mendel point out that New Brunswick had a dedicated Information and Privacy Commissioner from 2010 to 2017, but when Anne Bertrand retired, her office was folded into ones that handle a wide range of other matters. Since 2019, complaints about lack of access to information have been handled by the Ombud’s office.

“Despite the multiple mandates and heavy workload, the level of funding for the Office of the Ombud has been consistently low in New Brunswick,” Cannon writes.

“For a current picture that takes into consideration the combined mandates, per capita funding for the New Brunswick and Manitoba Offices of the Ombud was compared with the other eight provincial Offices of the Ombud and Information Commissioner combined, using each province’s 2020-21 Budget Estimates and Statistics Canada’s 2020 population estimates. Funding was highest in Saskatchewan at $5.51 per capita, well over double New Brunswick’s funding of $1.90, the lowest in Canada. Funding amounts were as follows: Saskatchewan $5.51, Newfoundland & Labrador $4.61, Ontario $3.33, BC $3.17, Quebec $3.13, Manitoba $2.93, Nova Scotia $2.88, Alberta $2.53, PEI $2.30, New Brunswick $1.90.”

Both Cannon and Mendel also say the NB Ombud should have the legal power to order the release of withheld information rather than just making recommendations.

Mendel says what he calls “binding order-making powers” would light a fire under recalcitrant officials bent on maintaining undue secrecy. He adds the Centre for Law and Democracy favours giving the Ombud the power to impose small fines on officials who obstruct access to information.

“Small fines…would be very visible and very embarrassing and I think (they) would also change behaviour quite a bit.”

To read Anita Cannon’s academic study of RTIPPA, click here.

To read Erica Butler’s story and listen to her interview with Toby Mendel, click here.