By Richard Bell
For the last two years, the former government and now the current government have refused to allow the public to see the contents of a March 2020 Public Works technical report on two possible sites for replacing Eastern Shore District High (FOIPOP requests 2020-20456-TIR and 2021-0172-DPW).
But on March 15, 2022, an Office of the Information & Privacy Commissioner investigator issued an “Investigator’s Opinion” that DPW’s decision to withhold the document “is not in compliance with the legislation.” OIPC Investigator Jason Mighton concluded that DPW should “disclose the information in full to the applicant.”
“We should not be surprised by Mighton’s recommendation,” said Karen Bradley, the applicant for this FOIPOP. “As I wrote to the Commissioner on October 31, 2021, requesting an expedited review of this FOIPOP request, the government is denying the public their right to fairly evaluate the expenditure of more than $30 million. There was every reason to expect that an OIPC reviewer would find that a ‘reasonable person’ would conclude that the information in this report was ‘background information’ that should be released to the public.
Mighton’s recommendation to “disclose the information in full” follows an earlier decision by OIPC’s Director of Investigations, Janet Burt-Gerrans, who agreed to expedite Bradley’s request on December 16, 2021, because of the urgency of the request. Burt-Gerrans, who presumably had read the technical review document, concluded, “The precise information at issue does shed light on the attributes of each of the sites considered which may assist members of the public engaging on the issue if it were to be disclosed.” (OIPC is currently processing non-expedited FOIPOPs from 2017.)
The government could have simply accepted Mighton’s recommendation and released the document.
But once again, following in the footsteps of the former provincial government, provincial officials have rejected Mighton’s recommendation. As a result, the disputed request has now gone to OIPC Commissioner Catherine Tully. The Commissioner is not bound by Mighton’s opinion. After reviewing all the materials and conducting her own research, Tully will publish a public review report laying out her findings and recommendations. However, Nova Scotia’s weak FOIPOP law does not require the government to carry out the Commissioner’s recommendations. The applicant would then have the option of going to court.
The document in question is titled “Eastern Shore District High/Campus Site Options—DTIR High Level Analysis,” dated March 2020. The very existence of this document was unknown until the release of a FOIPOP report in December 2020 (2020-20456-TIR). The previous administration admitted that the document existed but redacted every single word from the body of the six-page report. Withholding this report made it impossible for the public to know whether the administration was following the new site selection rules and if the current site of the high school had challenges that the public should know about.
During his career as an MLA, and in his campaign to become Premier, Tim Houston presented himself as a champion of openness in government. But in response to Bradley’s FOIPOP request for the same March 20, 2020, technical report, DPW presented the redacted document. (2021-01772-DPW). In email correspondence with the Cooperator, the Premier’s office confirmed that the decision to allow DPW to continue to withhold the document had been made after review of the document by the Premier’s office.
“We are disappointed that once again, elected officials have chosen not to live up to the promise of greater openness about the operations of our government,” Bradley said. “As OIPC Director of Investigations Janet Burt-Gerrans noted in agreeing to expedite this appeal, the information in this document bears directly on the legitimacy of the site selection process.”
“I have been an educator in public schools and universities for over 45 years and if there’s one thing I know, a school is not just a building you can plunk down to contain our children for 6 or 8 hours a day. We now know that the government is withholding information that they should have shared with the public during the site selection process. There is no need to wait for yet another OIPC ruling: the Premier should do the right thing and release this document now.”
[Editor’s note: Karen Bradley serves on the board of the Eastern Shore Cooperator and is married to Richard Bell.]