Nova Scotia
Name of law: Freedom of Information and Protection of Privacy (FOIPOP) Act
First adopted: 1993
First adopted: 1993
Introduction
Nova Scotia's access law has several weaknesses, including overly broad exceptions and a threadbare promotional system. The inability of the Information Commissioner to make binding orders is an additional deficiency.
Colaborators
| id | Section | Points | Max score |
|---|---|---|---|
| 1 | Right of Access | 4 | 6 |
| 2 | Scope | 23 | 30 |
| 3 | Requesting Procedures | 17 | 30 |
| 4 | Exceptions & Refusal | 14 | 30 |
| 5 | Appeals | 21 | 30 |
| 6 | Sanctions & Protections | 5 | 8 |
| 7 | Promotional Measures | 4 | 16 |
| ∑ = 88 | ∑ = 150 |
| Section | I | Description | Scoring instructions | Max score | Findings | Points | Article | Comments |
|---|---|---|---|---|---|---|---|---|
1. Right of Access |
1 | The legal framework (including jurisprudence) recognises a fundamental right of access to information. | Score 0 for no constitutional right to information, 1 point for a limited constitutional right, 2 points for full constitutional recognition of a public right of access to information. | 2 | Partially | 1 | Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815 . However, the right to information is only recognized as a limited and derivative right. | |
1. Right of Access |
2 | The legal framework creates a specific presumption in favour of access to all information held by public authorities, subject only to limited exceptions. | No=0, Partially=1, Yes=2 | 2 | YES | 2 | 2 The purpose of this Act is to...(b) to provide for the disclosure of all government information with necessary exemptions, that are limited and specific, in order to (i) facilitate informed public participation in policy formulation, (ii) ensure fairness in government decision-making, (iii) permit the airing and reconciliation of divergent views; | |
1. Right of Access |
3 | The legal framework contains a specific statement of principles calling for a broad interpretation of the RTI law. The legal framework emphasises the benefits of the right to information. | One point for each characteristic. | 2 | Partially | 1 | 2. The purpose of this Act is (a) to ensure that public bodies are fully accountable to the public by (i) giving the public a right of access to records, (ii) giving individuals a right of access to, and a right to correction of, personal information about themselves, (iii) specifying limited exceptions to the rights of access,(iv) preventing the unauthorized collection, use or disclosure of personal information by public bodies, and (v) providing for an independent review of decisions made pursuant to this Act; and (b) to provide for the disclosure of all government information with necessary exemptions, that are limited and specific, in order to (i) facilitate informed public participation in policy formulation, (ii) ensure fairness in government decision-making, (iii) permit the airing and reconciliation of divergent views; (c) to protect the privacy of individuals with respect to personal information about themselves held by public bodies and to provide individuals with a right of access to that information. 1993, c. 5, s. 2. | |
2. Scope |
4 | Everyone (including non-citizens and legal entities) has the right to file requests for information. | Score 0 point if only residents/citizens; 1 point for all natural persons; 1 point for legal persons. | 2 | YES | 2 | 5(1) A person has a right of access to any record in the custody or under the control of a public body upon complying with Section 6. | |
2. Scope |
5 | The right of access applies to all material held by or on behalf of public authorities which is recorded in any format, regardless of who produced it. | Score 1-3 points if limited definition of information information such as not "internal documents" or databases excluded, 4 points for all information with no exceptions. | 4 | YES | 4 | 3(1)(k) “record” includes books, documents, maps, drawings, photographs, letters, vouchers, papers and any other thing on which information is recorded or stored by graphic, electronic, mechanical or other means, but does not include a computer program or any other mechanism that produces records; 4(1) This Act applies to all records in the custody or under the control of a public body, including court administration records... | |
2. Scope |
6 | Requesters have a right to access both information and records/documents (i.e. a right both to ask for information and to apply for specific documents). | Score 1 point for only documents, 1 point for information. | 2 | YES | 2 | 3(1)(k) (k) “record” includes books, documents, maps, drawings, photographs, letters, vouchers, papers and any other thing on which information is recorded or stored by graphic, electronic, mechanical or other means, but does not include a computer program or any other mechanism that produces records; 8(3)The head of a public body shall create a record for an applicant if (a) the record can be created from a machine-readable record in the custody or under the control of the public body using its normal computer hardware and software and technical expertise; and (b) creating the record would not unreasonably interfere with the operations of the public body. | |
2. Scope |
7 | The right of access applies to the executive branch with no bodies or classes of information excluded.This includes executive (cabinet) and administration including all ministries, departments, local government, public schools, public health care bodies, the police, the armed forces, security services, and bodies owned or controlled by the above. | Score 4 points for central government agencies covered: 1 for the head of state, 1 for ministries, 1 for other non-statutory agencies created by the ministries, 1 for state and local government if the government is unitary. If it´s a federalist system, 2 points for the non-statutory agencies. This can be determined by examining the length and thoroughness of the list, if such a schedule exists. Score 1 point for the archives. Add three points and deduct 1 for each exempted central agency (such as the armed forces, police, etc). | 8 | Partially | 6 | 3(1)(j) “public body” means (i) a Government department or a board, commission, foundation, agency, tribunal, association or other body of persons, whether incorporated or unincorporated, all the members of which or all the members of the board of management or board of directors of which (A) are appointed by order of the Governor in Council, or (B) if not so appointed, in the discharge of their duties are public officers or servants of the Crown, and includes, for greater certainty, each body referred to in the Schedule to this Act but does not include the Office of the Legislative Counsel, (ii) the Public Archives of Nova Scotia, (iii) a body designated as a public body pursuant to clause (f) of subsection (1) of Section 49, or (iv) a local public body; | Applies to all government bodies including the archives but excluding the office of the legislative council and the Conflict of Interest Commissioner |
2. Scope |
8 | The right of access applies to the legislature, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all legislative branch at all levels of government | 4 | YES | 4 | Yes. | |
2. Scope |
9 | The right of access applies to the judicial branch, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all judicial branch at all levels of government | 4 | Partially | 1 | 4 (2) Notwithstanding subsection (1), this Act does not apply to...(c) a record in a court file, a record of a judge of the Court of Appeal, Supreme Court, Family Court or Provincial Court, a judicial administration record or a record relating to support services provided to the judges of those courts; | Does not apply to judicial administrative records or records of judges, or records of judges support services. |
2. Scope |
10 | The right of access applies to State-owned enterprises (commercial entities that are owned or controlled by the State). | Score 1 point if some, 2 points if all | 2 | YES | 2 | 3(1)(j) “public body” means (i) a Government department or a board, commission, foundation, agency, tribunal, association or other body of persons, whether incorporated or unincorporated, all the members of which or all the members of the board of management or board of directors of which (A) are appointed by order of the Governor in Council, or (B) if not so appointed, in the discharge of their duties are public officers or servants of the Crown, and includes, for greater certainty, each body referred to in the Schedule to this Act but does not include the Office of the Legislative Counsel, (ii) the Public Archives of Nova Scotia, (iii) a body designated as a public body pursuant to clause (f) of subsection (1) of Section 49, or (iv) a local public body; | |
2. Scope |
11 | The right of access applies to other public authorities, including constitutional, statutory and oversight bodies (such as an election commission or information commission/er). | Score 1 point if some bodies, 2 points if all | 2 | YES | 2 | 3(1)(j) “public body” means (i) a Government department or a board, commission, foundation, agency, tribunal, association or other body of persons, whether incorporated or unincorporated, all the members of which or all the members of the board of management or board of directors of which (A) are appointed by order of the Governor in Council, or (B) if not so appointed, in the discharge of their duties are public officers or servants of the Crown, and includes, for greater certainty, each body referred to in the Schedule to this Act but does not include the Office of the Legislative Counsel, (ii) the Public Archives of Nova Scotia, (iii) a body designated as a public body pursuant to clause (f) of subsection (1) of Section 49, or (iv) a local public body; | |
2. Scope |
12 | The right of access applies to a) private bodies that perform a public function and b) private bodies that receive significant public funding. | 1 point for public functions, 1 point for public funding | 2 | NO | 0 | N/A | |
3. Requesting Procedures |
13 | Requesters are not required to provide reasons for their requests. | Y/N answer 0 or 2 points | 2 | YES | 2 | 6(1)A person may obtain access to a record by (a) making a request in writing to the public body that has the custody or control of the record; (b) specifying the subject-matter of the record requested with sufficient particulars to enable an individual familiar with the subject-matter to identify the record; and (c) paying any fees required pursuant to Section 11. | |
3. Requesting Procedures |
14 | Requesters are only required to provide the details necessary for identifying and delivering the information (i.e. some form of address for delivery). | Score Max 2 points and deduct if requesters are required to give any of the following: ID number, telephone number, residential address, etc. | 2 | YES | 2 | 6(1)A person may obtain access to a record by (a) making a request in writing to the public body that has the custody or control of the record; (b) specifying the subject-matter of the record requested with sufficient particulars to enable an individual familiar with the subject-matter to identify the record; and (c) paying any fees required pursuant to Section 11.). | form has slot for only basic contact information: name, address and phone number. |
3. Requesting Procedures |
15 | There are clear and relatively simple procedures for making requests. Requests may be submitted by any means of communication, with no requirement to use official forms or to state that the information is being requested under the access to information law. | Max 2 points. Considerations include that there is no requirement to state that the request is under the RTI law, nor to use an official form, nor to identify the document being sought. | 2 | Partially | 1 | Requirement to use an official form (provided in regs) | |
3. Requesting Procedures |
16 | Public officials are required to provide assistance to help requesters formulate their requests, or to contact and assist requesters where requests that have been made are vague, unduly broad or otherwise need clarification. | Score 1 point for help in formulation and 1 point for clarification procedures | 2 | YES | 2 | (1) Where a request is made pursuant to this Act for access to a record, the head of the public body to which the request is made shall (a) make every reasonable effort to assist the applicant and to respond without delay to the applicant openly, accurately and completely...9 (1) The head of a public body may extend the time provided for in Sections 7 or 23 for responding to a request for up to thirty days or, with the Review Officer’s permission, for a longer period if (a) the applicant does not give enough detail to enable the public body to identify a requested record; (b) a large number of records is requested or must be searched and meeting the time limit would unreasonably interfere with the operations of the public body; or (c) more time is needed to consult with a third party or other public body before the head of the public body can decide whether or not to give the applicant access to a requested record. (2) Where the time is extended pursuant to subsection (1), the head of the public body shall tell the applicant (a) the reason; (b) when a response can be expected; and (c) that the applicant may complain about the extension to the Review Officer | 7(1) - requirement for assistance, 9(1)(a) implies clarification procedures. |
3. Requesting Procedures |
17 | Public officials are required to provide assistance to requesters who require it because of special needs, for example because they are illiterate or disabled. | Score Yes=2 point, No=0 | 2 | YES | 2 | N/A | This is inherent to Canadian law. |
3. Requesting Procedures |
18 | Requesters are provided with a receipt or acknowledgement upon lodging a request within a reasonable timeframe, which should not exceed 5 working days. | Score 1 point for receipt, 1 point for max 5 working days | 2 | NO | 0 | N/A | Not in the law |
3. Requesting Procedures |
19 | Clear and appropriate procedures are in place for situations where the authority to which a request is directed does not have the requested information. This includes an obligation to inform the requester that the information is not held and to refer the requester to another institution or to transfer the request where the public authority knows where the information is held. | Score: 1 point for information not held, 1 for referrals or 2 for transfers | 2 | Partially | 1 | 10 (1) Within ten days after a request for access to a record is received by a public body, or such longer period as the Review Officer may determine, the head of the public body may transfer the request and, if necessary, the record to another public body if (a) the record was produced by or for the other public body; (b) the other public body was the first to obtain the record; or (c) the record is in the custody or under the control of the other public body. (2) Where a request is transferred pursuant to subsection (1), (a) the head of the public body who transferred the request shall notify the applicant of the transfer; and (b) the head of the public body to which the request is transferred shall respond to the applicant in accordance with this Act not later than thirty days after the request is received by that public body unless this time limit is extended pursuant to Section 9. | 10 allows for direct transfers, but for overly broad reasons (other body created record, was first to obtain record, etc) |
3. Requesting Procedures |
20 | Public authorities are required to comply with requesters’ preferences regarding how they access information, subject only to clear and limited overrides (e.g. to protect a record). | Score: 2 points for Yes, only 1 point if some limitations | 2 | NO | 0 | N/A | No - the law gives authorities a range of options for their response - seems to be up to them. |
3. Requesting Procedures |
21 | Public authorities are required to respond to requests as soon as possible. | Score: No=0, Yes=2 points | 2 | NO | 0 | N/A | |
3. Requesting Procedures |
22 | There are clear and reasonable maximum timelines (20 working days or less) for responding to requests, regardless of the manner of satisfying the request (including through publication). | Score: 1 point for timeframes of 20 working days (or 1 month, 30 days or 4 weeks). Score 2 points for 10 working days (or 15 days, or two weeks) or less. | 2 | Partially | 1 | 7(2) - (2) The head of the public body shall respond in writing to the applicant within thirty days after the application is received... | |
3. Requesting Procedures |
23 | There are clear limits on timeline extensions (20 working days or less), including a requirement that requesters be notified and provided with the reasons for the extension. | - | 2 | Partially | 1 | 9 (1) The head of a public body may extend the time provided for in Sections 7 or 23 for responding to a request for up to thirty days or, with the Review Officer’s permission, for a longer period if (a) the applicant does not give enough detail to enable the public body to identify a requested record; (b) a large number of records is requested or must be searched and meeting the time limit would unreasonably interfere with the operations of the public body; or (c) more time is needed to consult with a third party or other public body before the head of the public body can decide whether or not to give the applicant access to a requested record. 8 (1) Where an applicant is informed pursuant to subsection (2) of Section 7 that access will be given, the head of the public body concerned shall...(a) where the applicant has asked for a copy pursuant to subsection (2) of Section 6 and the record can reasonably be reproduced (i) provide a copy of the record or part of the record with the response, or (ii) give the applicant reasons for delay in providing the record...7(6) Where the information is not published or released within thirty days after the applicant’s request is received, the head of the public body shall reconsider the request as if it were a new request received on the last day of that period, but the information shall not be refused pursuant to clause (b) of subsection (4) | 9(1) provides relatively clear rules, but 8(1)(a)(ii) and 7(6) both seems to allow authorities to play around with the deadlines. |
3. Requesting Procedures |
24 | It is free to file requests. | Score: No=0, Yes=2 points | 2 | NO | 0 | 11 (1) An applicant who makes a request pursuant to Section 6 shall pay to the public body the application fee prescribed by the regulations. (2) The head of a public body may require an applicant who makes a request pursuant to Section 6 to pay to the public body fees for the following services: (a) locating, retrieving and producing the record; (b) preparing the record for disclosure; (c) shipping and handling the record; (d) providing a copy of the record. (3) An applicant is not required pursuant to subsection (2) to pay a fee for the first two hours spent locating and retrieving a record. | |
3. Requesting Procedures |
25 | There are clear rules relating to access fees, which are set centrally, rather than being determined by individual public authorities. These include a requirement that fees be limited to the cost of reproducing and sending the information (so that inspection of documents and electronic copies are free) and that a certain initial number of pages (at least 20) are provided for free. | Score 1 point for fees being limited to reproduction and delivery costs and set centrally, 1 point for at least 20 pages free of charge or for fees being optional | 2 | Partially | 1 | (2) The head of a public body may require an applicant who makes a request pursuant to Section 6 to pay to the public body fees for the following services: (a) locating, retrieving and producing the record; (b) preparing the record for disclosure; (c) shipping and handling the record; (d) providing a copy of the record. 11(8)The fees that applicants are required to pay for services pursuant to subsection (2) shall not exceed the actual costs of the services. | 11(2) allows charges for searching for and preparing the record, but 11(8) limits that to the actual cost. |
3. Requesting Procedures |
26 | There are fee waivers for impecunious requesters. | - | 2 | YES | 2 | 11(7) On request of the applicant, the head of a public body may excuse an applicant from paying all or part of a fee referred to in subsection (2) if, in the head’s opinion, | |
3. Requesting Procedures |
27 | There are no limitations on or charges for reuse of information received from public bodies, except where a third party (which is not a public authority) holds a legally-protected copyright over the information. | Score: No=0, Yes=2 points | 2 | YES | 2 | N/A | |
4. Exceptions & Refusal |
28 | The standards in the RTI Law trump restrictions on information disclosure (secrecy provisions) in other legislation to the extent of any conflict. | Score 4 points for a resounding "yes" and 1/2/3 points if only for some classes of information or for some exceptions. If the state secrets law is not trumped by the RTI law max score is 2 points. | 4 | NO | 0 | 4A (1) Where there is a conflict between a provision of this Act and a provision of any other enactment and the provision of the other enactment restricts or prohibits access by any person to a record, the provision of this Act prevails over the provision of the other enactment unless subsection (2) or the other enactment states that the provision of the other enactment prevails over the provision of this Act. 4(2) The following enactments that restrict or prohibit access by any person to a record prevail over this Act... | No - even though 4A(1) suggests this is the case, the long list of cases in 4(2) undermines this. |
4. Exceptions & Refusal |
29 | The exceptions to the right of access are consistent with international standards. Permissible exceptions are: national security; international relations; public health and safety; the prevention, investigation and prosecution of legal wrongs; privacy; legitimate commercial and other economic interests; management of the economy; fair administration of justice and legal advice privilege; conservation of the environment; and legitimate policy making and other operations of public authorities. | Score 10 points and then deduct 1 point for each exception which either (a) falls outside of this list and/or (b) is more broadly framed | 10 | Partially | 5 | 12 (1) The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to (a) harm the conduct by the Government of Nova Scotia of relations between the Government and any of the following or their agencies: (i) the Government of Canada or a province of Canada, (ii) a municipal unit or the Conseil scolaire acadien provincial, (iii) an aboriginal government, (iv) the government of a foreign state, or (v) an international organization of states; (b) reveal information received in confidence from a government, body or organization listed in clause (a) or their agencies unless the government, body, organization or its agency consents to the disclosure or makes the information public. 15(2) The head of a public body may refuse to disclose information to an applicant if the information...(b) is in a law-enforcement record and the disclosure could reasonably be expected to expose to civil liability the author of the record or a person who has been quoted or paraphrased in the record. 17 (1) The head of a public body may refuse to disclose to an applicant information the disclosure of which could reasonably be expected to harm the financial or economic interests of a public body or the Government of Nova Scotia or the ability of the Government to manage the economy and, without restricting the generality of the foregoing, may refuse to disclose the following information...(b) financial, commercial, scientific or technical information that belongs to a public body or to the Government of Nova Scotia and that has, or is reasonably likely to have, monetary value..(e) information about negotiations carried on by or for a public body or the Government of Nova Scotia. 19E The head of a public body may refuse to disclose (a) any information of any kind obtained by a conciliation board, conciliation officer or mediator appointed pursuant to the Civil Service Collective Bargaining Act, the Corrections Act, the Highway Workers Collective Bargaining Act, the Teachers’ Collective Bargaining Act or the Trade Union Act or by an employee of the Department of Labour or an employee, appointee or member of the Civil Service Employee Relations Board, the Correctional Facilities Employee Relations Board, the Highway Workers Employee Relations Board or the Labour Relations Board for the purpose of any of those Acts or in the course of carrying out duties under any of those Acts; (b) any report of a conciliation board or conciliation officer appointed pursuant to any of those Acts; (c) any testimony or proceedings before a conciliation board appointed pursuant to any of those Acts. 21 (2) The head of a public body shall refuse to disclose to an applicant information that was obtained on a tax return or gathered for the purpose of determining tax liability or collecting a tax. | 12(1) - harm relations between government and other public bodies. 15(2)(b) - info that would expose officers to civil liability. 17 is overly broad with regards to information that has monetary value or is involved in negotiations, 19(e) - blanket exemption for labour conciliation boards. 21(2) - blanket exemption for tax information |
4. Exceptions & Refusal |
30 | A harm test applies to all exceptions, so that it is only where disclosure poses a risk of actual harm to a protected interest that it may be refused. | Score 4 points and then deduct 1 point for each exception which is not subject to the harm test | 4 | Partially | 2 | 14 (1) The head of a public body may refuse to disclose to an applicant information that would reveal advice, recommendations or draft regulations developed by or for a public body or a minister.15 (1) The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to (a) harm law enforcement; (b) prejudice the defence of Canada or of any foreign state allied to or associated with Canada or harm the detection, prevention or suppression of espionage, sabotage or terrorism; (c) harm the effectiveness of investigative techniques or procedures currently used, or likely to be used, in law enforcement; (d) reveal the identity of a confidential source of law enforcement information; (e) endanger the life or physical safety of a law-enforcement officer or any other person; (f) reveal any information relating to or used in the exercise of prosecutorial discretion; (g) deprive a person of the right to a fair trial or impartial adjudication; (h) reveal a record that has been confiscated from a person by a peace officer in accordance with an enactment; (i) be detrimental to the proper custody, control or supervision of a person under lawful detention; (j) facilitate the commission of an offence contrary to an enactment; or (k) harm the security of any property or system, including a building, a vehicle, a computer system or a communications system. (2) The head of a public body may refuse to disclose information to an applicant if the information (a) is in a law-enforcement record and the disclosure would be an offence pursuant to an enactment; (b) is in a law-enforcement record and the disclosure could reasonably be expected to expose to civil liability the author of the record or a person who has been quoted or paraphrased in the record; or (c) is about the history, supervision or release of a person who is in custody or under supervision and the disclosure could reasonably be expected to harm the proper custody or supervision of that person. | 14(1) - advice to a minister - this is also overly broad. 15 - law enforcement is not harm tested in all places |
4. Exceptions & Refusal |
31 | There is a mandatory public interest override so that information must be disclosed where this is in the overall public interest, even if this may harm a protected interest. There are ‘hard’ overrides (which apply absolutely), for example for information about human rights, corruption or crimes against humanity. | Consider whether the override is subject to overarching limitations, whether it applies to only some exceptions, and whether it is mandatory. | 4 | NO | 0 | N/A | |
4. Exceptions & Refusal |
32 | Information must be released as soon as an exception ceases to apply (for example, after a contract tender process decision has been taken). The law contains a clause stating that exceptions to protect public interests do not apply to information which is over 20 years old. | Score 1 point for each | 2 | Partially | 1 | N/A | Sunset clauses apply to some sections, but not all. |
4. Exceptions & Refusal |
33 | Clear and appropriate procedures are in place for consulting with third parties who provided information which is the subject of a request on a confidential basis. Public authorities shall take into account any objections by third parties when considering requests for information, but third parties do not have veto power over the release of information. | Score: 1 point for consultation, 1 further point if original time frames must be respected and the law allows for expedited appeals. | 2 | YES | 2 | 22 (1) On receiving a request for access to a record that the head of a public body has reason to believe contains information the disclosure of which must be refused pursuant to Section 20 or 21, the head of the public body shall, where practicable, promptly give the third party a notice (a) stating that a request has been made by an applicant for access to a record containing information the disclosure of which may affect the interests or invade the personal privacy of the third party; (b) describing the contents of the record; and (c) stating that, within fourteen days after the notice is given, the third party may, in writing, consent to the disclosure or may make written representations to the public body explaining why the information should not be disclosed. 22(3) For greater certainty, the time limited by subsection (2) of Section 7 for responding to a request for access to a record is not extended by reason only that a notice is given to an applicant pursuant to subsection (2) of this Section, but that time may be extended pursuant to Section 9. | 22 - and 22(3) keeps the original timelines in place. |
4. Exceptions & Refusal |
34 | There is a severability clause so that where only part of a record is covered by an exception the remainder must be disclosed. | Score 1 point if yes but sometimes can be refused (eg: if deletions render meaningless the document) and 2 points if partial access must always be granted | 2 | YES | 2 | 5(2) The right of access to a record does not extend to information exempted from disclosure pursuant to this Act, but if that information can reasonably be severed from the record an applicant has the right of access to the remainder of the record. | |
4. Exceptions & Refusal |
35 | When refusing to provide access to information, public authorities must a) state the exact legal grounds and reason(s) for the refusal and b) inform the applicant of the relevant appeals procedures. | Score Y/N: 1 point for a and 1 point for b | 2 | YES | 2 | 7 (2) The head of the public body shall respond in writing to the applicant within thirty days after the application is received and the applicant has met the requirements of clauses (b) and (c) of subsection (1) of Section 6, stating (a) whether the applicant is entitled to the record or part of the record and (i) where the applicant is entitled to access, stating that access will be given on payment of the prescribed fee and setting out where, when and how, or the manner in which, access will be given, or..(e) that the applicant may ask for a review by the Review Officer within sixty days after the applicant is notified of the decision. | 7(2)(a)(ii) - reasons. 7(2)(e) for appeal options. |
5. Appeals |
36 | The law offers an internal appeal which is simple, free of charge and completed within clear timelines (20 working days or less). | Score 2 points if the internal appeal fulfills these criteria, 1 point if an appeal is offered that does not fulfill this criteria, 0 for no internal appeals. | 2 | NO | 0 | N/A | No such listed procedure. |
5. Appeals |
37 | Requesters have the right to lodge an (external) appeal with an independent administrative oversight body (e.g. an information commission or ombudsman). | 1 for partial, 2 for yes | 2 | YES | 2 | 32 (1) A person who makes any request pursuant to this Act for access to a record or for correction of personal information may ask for a review of any decision, act or failure to act of the head of the public body that relates to the request. 33 (1) The Governor in Council shall appoint a person to serve fulltime as Review Officer | With Review Officer. |
5. Appeals |
38 | The member(s) of the oversight body are appointed in a manner that is protected against political interference and have security of tenure so that they are protected against arbitrary dismissal (procedurally/substantively) once appointed. | Score: 1 point for appointment procedure, 1 point for security of tenure | 2 | YES | 2 | 33 (1) The Governor in Council shall appoint a person to serve fulltime as Review Officer. | Appointed by the Governor in Council, removed by a resolution of the House of Assembly. |
5. Appeals |
39 | The oversight body reports to and has its budget approved by the parliament, or other effective mechanisms are in place to protect its financial independence. | Score 1 point for reports to parliament, 1 point for budget approved by parliament | 2 | YES | 2 | 33(4)The Review Officer shall be paid out of the Consolidated Fund of the Province such salary as the Governor in Council determines. | paid by the Governor in Council. |
5. Appeals |
40 | There are prohibitions on individuals with strong political connections from being appointed to this body and requirements of professional expertise. | Score 1 point for not politically connected, 1 point for professional expertise | 2 | NO | 0 | N/A | Not mentioned. |
5. Appeals |
41 | The independent oversight body has the necessary mandate and power to perform its functions, including to review classified documents and inspect the premises of public bodies. | Score 1 point for reviewing classified documents, 1 point for inspection powers | 2 | YES | 2 | 38 (1) Notwithstanding any other Act or any privilege that is available at law, the Review Officer may, in a review, (a) require to be produced and examine any record that is in the custody or under the control of the public body named in the request made pursuant to subsection (1) of Section 6; and (b) enter and inspect any premises occupied by the public body. (2) A public body shall comply with a requirement imposed by the Review Officer pursuant to clause (a) of subsection (1) within such time as is prescribed by the regulations. (3) Where a public body does not comply with a requirement imposed by the Review Officer pursuant to clause (a) of subsection (1) within the time limited for so doing by subsection (2), a judge of the Supreme Court of Nova Scotia may, on the application of the Review Officer, order the public body to do so. | |
5. Appeals |
42 | The decisions of the independent oversight body are binding. | Score N=0, Y=2 points | 2 | NO | 0 | 40 (1) Within thirty days after receiving a report of the Review Officer pursuant to subsection (1) of Section 39, the head of the public body shall (a) make a decision to follow the recommendation of the Review Officer or any other decision that the head of the public body considers appropriate; and (b) give written notice of the decision to the Review Officer and the persons who were sent a copy of the report. | It's up to the head of the body whether to implement it. |
5. Appeals |
43 | In deciding an appeal, the independent oversight body has the power to order appropriate remedies for the requester, including the declassification of information. | 1 for partial, 2 for fully | 2 | YES | 2 | 39 (1) On completing a review, the Review Officer shall (a) prepare a written report setting out the Review Officer’s recommendations with respect to the matter and the reasons for those recommendations; and (b) send a copy of the report to the head of the public body and (i) where the matter was referred to the Review Officer by an applicant, to the applicant and to any third party notified pursuant to this Act, or (ii) where the matter was referred to the Review Officer by a third party, to the third party and to the applicant. (2) In the report, the Review Officer may make any recommendations with respect to the matter under review that the Review Officer considers appropriate. | 39 allows for recommendations on broad grounds. |
5. Appeals |
44 | Requesters have the right to lodge a judicial appeal. | 1 for partially, 2 for fully. | 2 | YES | 2 | 41 (1) Within thirty days after receiving a decision of the head of a public body pursuant to Section 40, an applicant or a third party may appeal that decision to the Supreme Court in such form and manner as may be prescribed by the Nova Scotia Civil Procedure Rules or by the regulations. | |
5. Appeals |
45 | Appeals to the oversight body (where applicable, or to the judiciary if no such body exists) are free of charge and do not require legal assistance. | 1 for free, 1 for no lawyer required. | 2 | YES | 2 | N/A | Form is in the regs - no mention of fees and, as an admin procedure, applicant should not need a lawyer. |
5. Appeals |
46 | The grounds for an external appeal are broad (including not only refusals to provide information but also refusals to provide information in the form requested, administrative silence and other breach of timelines, charging excessive fees, etc.). | Score 1 point for appealing refusals, additional points for appealing other violations. | 4 | YES | 4 | 32 (1) A person who makes any request pursuant to this Act for access to a record or for correction of personal information may ask for a review of any decision, act or failure to act of the head of the public body that relates to the request. | |
5. Appeals |
47 | Clear procedures, including timelines, are in place for dealing with external appeals. | Score 1 point for clear procedures, 1 point for timelines. | 2 | Partially | 1 | 35 The Review Officer may try to settle a matter under review through mediation. 36 Where the Review Officer is unable to settle a matter within thirty days through mediation, the Review Officer shall conduct a review in accordance with Section 37 (1) The Review Officer may conduct a review in private. (2) The following persons are entitled to make representations to the Review Officer in the course of a review: (a) the person who applies for the review; (b) a third party or applicant who is entitled to notice pursuant to this Act; (c) the head of the public body whose decision is the subject of the review; and (d) any other person the Review Officer considers appropriate. (2A) Where, pursuant to clause (d) of subsection (2), the Review Officer considers that a person is an appropriate person to make representations in the course of a review of a decision of the head of a public body, then, notwithstanding any other provision of this Act, that person (a) is entitled to (i) a copy of the report of the Review Officer pursuant to Section 39, (ii) appeal the decision of the head pursuant to Section 41, and (iii) written notice of an appeal under subsection (2) of Section 41; and (b) is a party to the appeal to which the notice of appeal referred to in subclause (iii) of clause (a) relates. (3) The Review Officer may decide (a) whether the representations are to be made orally or in writing; (b) whether a person is entitled to be present during a review or to have access to or comment on representations made to the Review Officer by any other person. | Reasonably clear procedure in 35-37, but no timeline. |
5. Appeals |
48 | In the appeal process, the government bears the burden of demonstrating that it did not operate in breach of the rules. | Score Y/N and award 2 points for yes. | 2 | YES | 2 | 45 (1) At a review or appeal into a decision to refuse an applicant access to all or part of a record, the burden is on the head of a public body to prove that the applicant has no right of access to the record or part | |
5. Appeals |
49 | The external appellate body has the power to impose appropriate structural measures on the public authority (e.g. to conduct more training or to engage in better records management) | 1 for partial, 2 for fully. | 2 | NO | 0 | N/A | Not mentioned. |
6. Sanctions & Protections |
50 | Sanctions may be imposed on those who wilfully act to undermine the right to information, including through the unauthorised destruction of information. | Score 1 point for sanctions for underming right, 1 point for destruction of documents | 2 | Partially | 1 | 47(1a) - (1A) Every person who knowingly alters a record that is subject to a request in order to mislead the person who made the request is guilty of an offence and liable on summary conviction to a fine of not more than two thousand dollars or to imprisonment for six months, or both. | |
6. Sanctions & Protections |
51 | There is a system for redressing the problem of public authorities which systematically fail to disclose information or underperform (either through imposing sanctions on them or requiring remedial actions of them). | Score 1 point for either remedial action or sanctions, 2 points for both | 2 | NO | 0 | N/A | |
6. Sanctions & Protections |
52 | The independent oversight body and its staff are granted legal immunity for acts undertaken in good faith in the exercise or performance of any power, duty or function under the RTI Law. Others are granted similar immunity for the good faith release of information pursuant to the RTI Law. | Score 1 for oversight body, 1 for immunity for others | 2 | YES | 2 | 46 (1) No action or other proceeding lies against the head of a public body or any person acting on behalf of or under the direction of the head of the public body for damages resulting from (a) the disclosure in good faith of all or part of a record pursuant to this Act or any consequences of that disclosure; or (b) the failure to give any notice required pursuant to this Act if reasonable care is taken to give the required notice. (2) Subsection (1) does not absolve Her Majesty in right of the Province or a public body from vicarious liability for an act or omission for which it would be vicariously liable if this Section were not in force | 46 offers broad protections. |
6. Sanctions & Protections |
53 | There are legal protections against imposing sanctions on those who, in good faith, release information which discloses wrongdoing (i.e. whistleblowers). | Score 2 for strong protections, 1 for moderate protections | 2 | YES | 2 | This is found in the Public Interest Disclosure of Wrongdoing Act | |
7. Promotional Measures |
54 | Public authorities are required to appoint officials (information officers) or units with dedicated responsibilities for ensuring that they comply with their information disclosure obligations. | Score Y/N, Y=2 points | 2 | NO | 0 | 49A A local public body shall, by by-law or other legal instrument by which the local public body acts, designate a person or group of persons as the head of the local public body for the purpose of this Act. 1 | 49A has a duty to delegate a "head - but this is not the same. |
7. Promotional Measures |
55 | A central body, such as an information commission(er) or government department, is given overall responsibility for promoting the right to information. | Score Y/N, Y=2 points | 2 | NO | 0 | N/A | No - it falls under the purview of the justice minister, who doesn't seem to do much of a promotional role. |
7. Promotional Measures |
56 | Public awareness-raising efforts (e.g. producing a guide for the public or introducing RTI awareness into schools) are required to be undertaken by law. | Score Y/N, Y=2 points | 2 | NO | 0 | N/A | Not found in the law. |
7. Promotional Measures |
57 | A system is in place whereby minimum standards regarding the management of records are set and applied. | Score Y/N, Y=2 points | 2 | NO | 0 | N/A | Not found in the law. |
7. Promotional Measures |
58 | Public authorities are required to create and update lists or registers of the documents in their possession, and to make these public. | Score Y/N, Y=2 points | 2 | YES | 2 | 48 (1) The Minister shall publish a directory to assist in identifying and locating records of public bodies. (2) The directory shall include (a) a description of the mandate and functions of each public body and its components; (b) a description and list of the records in the custody or under the control of each public body; (c) a subject index; and (d) the name, title, business address and business telephone number of the head of the public body. (3) The directory shall include for each personal-information bank maintained by a public body (a) its title and location; (b) a description of the kind of personal information and the categories of individuals whose personal information is included; (c) the authority for collecting the personal information; (d) the purposes for which the personal information was obtained or compiled and the purposes for which it is used or disclosed; (e) the categories of persons who use the personal information or to whom it is disclosed. (4) Where personal information is used or disclosed by a public body for a purpose that is not included in the directory published pursuant to subsection (1), the head of the public body shall (a) keep a record of the purpose and either attach or link the record to the personal information; (b) promptly notify the Minister of the purpose; and (c) ensure that the purpose is included in the next publication of the directory. (5) The Minister shall (a) provide copies of the directory to public bodies and to public libraries and other prescribed libraries in the Province; and (b) publish and distribute, at intervals of two years or less, supplements or replacements to keep the directory up to date. (6) The head of a public body shall ensure that copies provided pursuant to subsection (5) are available to the public at an office of the public body. (7) This Section applies to such public bodies as are prescribed by the regulations | |
7. Promotional Measures |
59 | Training programs for officials are required to be put in place. | Score Y/N, Y=2 points | 2 | NO | 0 | N/A | Not found in the law. |
7. Promotional Measures |
60 | Public authorities are required to report annually on the actions they have taken to implement their disclosure obligations. This includes statistics on requests received and how they were dealt with. | Score Y/N, Y=2 points | 2 | NO | 0 | N/A | Not found in the law. |
7. Promotional Measures |
61 | A central body, such as an information commission(er) or government department, has an obligation to present a consolidated report to the legislature on implementation of the law. | Score Y/N, Y=2 points | 2 | YES | 2 | 33(7)The Review Officer shall issue an annual report on the exercise of the functions of the Review Officer under this Act and shall lay the report before the House of Assembly |
