HALIFAX – A man who says he can’t work because of a lingering workplace ailment is questioning the Nova Scotia government’s commitment to transparency after it refused to provide him labour investigation records, even after the freedom of information officer recommended he receive the documents.
Bradley Stevens of L’Ardoise, N.S., appealed to review officer Dulcie McCallum in December 2008 after the Labour Department redacted hundreds of pages of documents of the Crown’s decision to drop a safety case against his former employer.
The 40-year-old man says he has been unable to work due to breathing and muscle problems since working on a Cape Breton job site caked with bird droppings in 2005.
In a report on Dec. 13, 2011, McCallum said the department failed to prove portions of records should be exempt from access-to-information legislation, adding that it failed to provide an “open, accurate and complete” decision.
The department responded in a Jan. 12 letter that it withheld documents because solicitor-client privilege or advice to cabinet ministers permit exemptions — even though McCallum said it failed to meet legal tests for those and other exemptions under the law.
A spokesman for the department said Labour Minister Marilyn More won’t comment on the matter because Stevens can appeal its decision in court. But in the letter, the department’s information access manager said it is not budging from its position not to divulge the documents.
“The department stands by its decision to withhold limited and specific information under the discretionary exemptions,” Carla Heggie said.
Applicants can go to the Nova Scotia Supreme Court if a government department or agency won’t comply with the review officer’s recommendations.
But Stevens says he’s losing faith in the system as he doesn’t have money for a lawyer and feels he stands little chance on his own.
“It creates a suspicion they have something to hide,” he said in an interview.
“I would say it puts a lot of secrecy in the state. It makes me doubt the (freedom of information) policy and the Act are there for the people.”
In her decision, McCallum says there is an onus on the department to show exemptions apply and they failed to do so.
She said solicitor-client privilege exemptions don’t apply in Stevens’s application because the law case against the former employer is over.
She also said the department took too long to respond and failed to prepare a proper index on what it released.
“I find Labour continues to show a lack of respect for applicants’ fundamental right of access to information guaranteed by the Act and interpreted by the courts,” she said in her report.
In an interview, McCallum said she’s concerned that the department doesn’t understand that she plays a neutral role aimed at making fair findings of fact.
“We look at the evidence with an unbiased, clear eye and we look at the process and we expect compliance with the statute,” she said.
“If you are applying an exemption you have to say how it applies. If you’re not doing that and you’re not telling the applicant the reasons, then I think there’s a disregard for the statute.”
Conservative labour critic Keith Bain says the NDP government has developed a pattern of refusing the right of citizens to access information in favour of going to the courts — even after the review officer recommends the release of information.
“There’s no justice for Mr. Stevens in the whole thing,” Bain said.
“That’s what we’re supposed to be concerned about, the justice for the citizens. That’s why we have the Act in the first place.”
In another recent case, a citizen’s group has gone to the provincial Supreme Court in a bid to receive more information about the location of an interchange on Highway 103.
In that instance, McCallum also issued a report calling on the Transportation Department to release the requested information.
Fred Vallance-Jones, the author of the Newspapers Canada annual freedom of information audit, said Ontario, Alberta and British Columbia have better access-to-information systems than Nova Scotia because they give review officers the power to make binding orders on governments.
Those provincial governments may appeal to the courts, but only on fairly narrow legal grounds, said Vallance-Jones, a journalism professor at the University of King’s College.
He said Nova Scotia’s system is placing too much onus and expense on citizens if a department digs in its heels.
“A government department can refuse access and not comply with recommendations knowing this will then force a court case which will very likely result in the case ending right there,” he said.