Toby Mendel, executive director, Centre for Law and Democracy. Photo: CLD
An international expert on right to information (RTI) is welcoming New Brunswick’s goal of making its Right to Information and Protection of Privacy Act (RTIPPA) one of the strongest laws of its kind in Canada.
“We almost never see government officials making that kind of commitment,” Toby Mendel said last week during a telephone interview with Warktimes.
Mendel, who is executive director of the Centre for Law and Democracy (CLD) in Halifax, was referring to last month’s news release saying the Holt government would like to strengthen RTIPPA next year so that it reaches 100 points on the CLD rating scale.
“To me, that was a really exceptional statement,” Mendel said. “I don’t know whether they will live up to that, but they said it, so they should live up to it.”
At the moment, RTIPPA ranks last among Canadian provinces, territories and the federal government with only 75 points out of a possible 150 partly because the government doesn’t publicize it enough and partly because the law has too many vague exceptions allowing officials to withhold broad classes of information without having to show that releasing the information would cause significant harm.
| Province / Territory | Rating | Province / Territory | Rating |
|---|---|---|---|
| Newfoundland and Labrador | 112 | Quebec | 84 |
| Manitoba | 96 | Nova Scotia | 83 |
| British Columbia | 95 | Northwest Territories | 83 |
| Canada (national law) | 95 | Nunavut | 82 |
| Prince Edward Island | 94 | Saskatchewan | 82 |
| Yukon | 93 | Alberta | 78 |
| Ontario | 90 | New Brunswick | 75 |
| Source: Centre for Law and Democracy | |||
Provincial review
The Centre for Law and Democracy and 44 other professionals and groups, including Warktimes, made oral or written submissions to provincial officials who conducted a review of RTIPPA last year.
Their report with 48 recommendations to strengthen the law by next spring was released on June 18.
Although the report does mention narrowing certain exceptions that allow officials to withhold information, it does not specifically refer to one that prohibits the release of records from a harassment or personnel investigation.
In 2021, former Sackville CAO Jamie Burke classified the Montana Consulting Group’s workplace assessment of the Sackville fire department as a personnel investigation.
His refusal to release its recommendations under that RTIPPA exception was upheld first by the New Brunswick Ombud and then by the Court of King’s Bench.
Now, the town of Tantramar is citing the same RTIPPA exception to justify its refusal to release any information from the latest investigation into Sackville Fire & Rescue conducted by the Saint John firm VanBuskirk Law.
Public interest override
“I don’t support those kinds of exceptions,” says Toby Mendel.
“It’s not clear to me what this exception is trying to protect. Every exception should identify an interest and protect that interest against harm.”
He adds that RTIPPA already has provisions to protect privacy and any identifying information could be redacted or blacked out to protect privacy.
“The whole idea here is to get as much information out as possible,” he says, adding that CLD advocates overriding exceptions when an important public interest is at stake.
“Access to information is a human right, even in Canada, and certainly under international law, it’s been recognized as a human right,” he says.
Town’s legal & HR costs re Sackville Fire & Rescue
| Year | Cost item | Amount |
|---|---|---|
| 2021 | Montana Consulting Group workplace assessment | $27,548.90 |
| 2024 | Town’s legal costs in fighting Coun. Bruce Phinney’s court case seeking release of Montana recommendations | $13,572.30 |
| 2026 | VanBuskirk Law workplace investigation | $23,053.85 |
| Total | $64,175.05 | |
Note: In March, Court of King’s Bench Justice Kathryn Gregory ruled that Saint John police officers’ complaints against Chief Robert Bruce should be made public under the open court principle. “Police complaints, even if in the context of employment related issues, are of concern and interest to the public,” she ruled.
To read a CBC report on her ruling, click here. For the full text, click here.
To read the report on the provincial review of RTIPPA, click here.
To read the CLD submission to the RTIPPA review committee, click here.
To read the town’s denial of my access to information request for the VanBuskirk report, click here.
For previous Warktimes coverage on the dismal state of New Brunswick’s right to info law, click here.
Hmmm … this Canadian RTI Ratings chart is really interesting. I wonder why
New Brunswick is at the very bottom? Are there historical reasons for this? Does some kind of “paternalism” reign in this province because Irving has been in control economically, politically and socially for so long? Can we change this?
It’s not that complicated. If information in these reports was gathered with assurances of confidentiality, then it cannot be shared with the public. That is the law. I see that PEI, with a whopping CLD score of 94 states the following:
“Council, council committee members and staff may be provided with:
-personal information;
-confidential information about a third party; or
-confidential information relating to municipal operations, such as labour relations, contract negotiations, legal or enforcement actions.
This information is confidential and must not be:
-shared or disclosed, orally, by email or social media, in writing or by copying documents;
-or used for individual benefit or the benefit of a family member or a close associate.
In addition, Council members must not disclose information acquired at a closed meeting. Specifically, Council members must not disclose any information:
-subject to solicitor-client privilege;
-about legal proceedings;
-about an investigation or enforcement of a bylaw or Act;
-about human resource matters;
-about commercial matters which, if disclosed, may be prejudicial to your municipality or involved parties;
-received in confidence which, if disclosed, may be prejudicial to your municipality or the parties involved;
-about a matter under consideration, where Council has not announced a decision, and discussion in public may jeopardize the municipality’s ability to negotiate;
-that may prejudice security and the maintenance of law;
-containing personal details that are protected under the Municipal Government Act.
Developing a Confidentiality Policy is one way that a municipality can safeguard confidential information and records. This policy outlines your municipality’s expectations around confidentiality including the requirement that Council members, council committee members and staff (including volunteers) sign an agreement to abide by the Confidentiality Policy. The Confidentiality Policy also identifies requirements about keeping records, information and devices secure.”
The fact that the current Tantramar Council arrived at the exact same conclusion regarding confidentiality as the last Council (with one notable blabbermouth exception) should signal that our elected officials take seriously their responsibility to uphold the law. What the author labels as secrecy; the law calls confidentiality. Indeed, confidentiality should not be a foreign concept to journalists. Imagine if a journalist was asked to provide the name of a confidential source because disclosure was in the public interest. Would they?
Actually, it is a little bit complicated. Sometimes the law gets it wrong and, unfortunately, Canadian laws make a lot of mistakes when it comes to the right to access information held by public authorities or right to information. And PEI does not have a “whopping CLD score”. It sits 18 points behind 1st place Newfoundland and is in 5th place in Canada. More importantly, it would be in a rather miserable 50th place among the 142 countries globally which have right to information laws if it were a country (see CLD’s Global Rating at https://www.rti-rating.org/country-data/). By contrast, going into the World Cup, our men’s soccer team was ranked 30th globally and our women sit in 9th position. So Canada is generally a laggard in this space.
The right to information is a human right under international law and a quasi-constitutional right in Canada. This means that rules on secrecy, or confidentiality if you prefer, whether they are found in the primary legislation or in implementing rules, such as a Confidentiality Policy, need to align with human rights standards, not the other way around, as the comment above seems to suggest.
Likely, respective Tantramar Councils did apply Section 20(1) of New Brunswick’s Right to Information and Protection of Privacy Act (RTIPPA) properly. However, that provision does not conform to international standards on the right to information. Those standards require exceptions to be limited to protecting legitimate interests against harm. Section 20(1) does not do that. Rather, it throws a blanket cloak of secrecy over all “records relating to” a harassment or personnel investigation. These processes do involve legitimate interests which need protection against harm, such as privacy and the willingness of individuals to testify. But section 20(1) is in no way limited to protecting those interests and, as such, is not legitimate according to international law.
CLD very much welcomes the fact that the Government of New Brunswick has committed to significantly improving its RTIPPA, including to bring it up to 100 points on our RTI Rating. Although section 20 was not among the provisions referenced in the Government’s Review Report on the RTIPPA, hopefully reform of that section will be considered as the review moves forward. Regardless, if New Brunswick does achieve that score on the RTI Rating, public bodies in New Brunswick, including Tantramar Council, will be able to provide New Brunswickers with a more appropriate balance between transparency and legitimate secrecy interests.
Toby Mendel, Executive Director, Centre for Law and Democracy (CLD)