An Information Commissioner in the harshest verdict to date has cited a public agency for wholesale violations of Access To Information law. Nova Scotia Commissioner Catherine Tully faulted the province’s Department of Energy for overcharging fees, hiding records and stalling disclosure of documents for years at a time.
“It has been unbelievable,” said Paul Einarsson, chair of Geophysical Service Inc. of Calgary, the complainant in the case. “These people were only out to protect the government. The Commissioner’s language is descriptive of what was going on here. It is outrageous.”
Commissioner Tully in her Review Report 19-06 ruled the Department’s misconduct was so egregious it must repay the fees it charged, and reprocess the entire search for records it started five years ago. It was not for the Department to “make the applicant jump through further administrative hoops”, wrote Tully.
Geophysical Service had asked the Department for records regarding use of the company’s copyright underwater seismic maps sold to oil and gas companies. Einarsson said the firm discovered numerous federal and provincial agencies in Alberta, Ontario, Nova Scotia and Newfoundland & Labrador resold or gave away its data without payment or permission.
Geophysical’s request under the Nova Scotia Freedom Of Information And Protection Of Privacy Act was filed in 2015. Commissioner Cullen found the Department of Energy responded by overcharging the company 32 percent on search fees. “The Department’s math doesn’t add up,” she wrote.
The Commissioner also cited staff for concealing data as personal information when it was “clearly not”; improperly withholding 832 pages of records it deemed “no longer relevant” though most were “clearly relevant”; hiding documents “for no apparent reason under the law”; and delaying the release of files four-and-a-half years.
“In one case it simply restarted the clock for itself,” wrote the Commissioner: “This is without question a case where the Department has made so many errors and was so late in response to this applicant that one obvious remedy is that the Department refund any fees paid.”
“The Department took a number of steps that convinced the applicant the Department was actively hiding information and using the access to information process to thwart the applicant’s right to know,” said the report.
Geophysical’s Einarsson was charged $990 for his initial request for documents. Under the Act fees must reflect actual costs of retrieving records. “The Department did not keep track of the actual cost,” said the report.
Einarsson said he doubted the refund would serve as any deterrent to public agencies that flout Access To Information laws. “Money is not an issue for these people,” said Einarsson. “They are out to withhold information. That is the value they get out of it.”
“The Access To Information system is basically broken,” said Einarsson. “It is a joke.”
The Department of Energy has thirty days to file any appeal of the ruling with the Nova Scotia Supreme Court.