HALIFAX — Nova Scotia's Health Department failed to make any reasonable effort to search for records related to a media freedom of information request related to the personal emails of former health minister Leo Glavine, says the province's information and privacy commissioner.
In a scathing 18-page report released Thursday, Catherine Tully also says she was blocked by a senior bureaucrat from interviewing Glavine's former executive assistant during an investigation of a request for the information made by former Global News reporter Marieke Walsh in July 2017 — a request that was denied.
On her inability to speak with Glavine's former executive assistant, Tully wrote: "The department was asked ... to produce the former executive assistant as a witness, the deputy minister to the premier responded on August 9, 2018 indicating that the executive assistant would not be made available for an interview by the office."
"It is one of the many weaknesses of Nova Scotia's outdated right to information law that this office does not have the power to summons witnesses," said Tully. "The statutory power to summons witnesses is common to numerous other information and privacy commissioners."
Premier Stephen McNeil told reporters that no one in his office blocked Tully, although he was also quick to point out that she has no power to compel witnesses to speak to her. McNeil also wondered why Tully wanted to talk to Glavine's staffer.
"The information officer was looking at Minister Glavine using his Gmail account, which he acknowledged, and he fixed the practice," said McNeil.
"What more was she (Tully) looking for?" he said. "What does she want? You don't call witnesses when someone actually says, 'You know what, you're right, I was wrong.'"
He said the deputy and clerk of the executive council, Laura Lee Langley, had also examined Glavine's use of personal emails and simply followed the rules, meaning there was no need for a witness.
"The clerk (Langley) also looked at the issue and Minister Glavine had already said it was a mistake and corrected it and the practice had changed," said McNeil. "So the clerk wrote the letter and made the call."
Tully's report said the "applicant journalist" asked for "all emails sent or received by then Health Minister Leo Glavine on his personal email account that are related to his mandate as a member of the executive council and or as health minister."
She said the department claimed it had no control over personal email accounts, although Tully found that it still could have requested all records from the minister related to his departmental mandate as a cabinet minister.
In an interview Thursday, Tully said she was "surprised and puzzled" by the government's response.
"If that is a decision that applies to all departments that is clearly a significant concern in terms of the public's right to know," she said. "Certainly the effect as I point out in the report is that use of personal email accounts is an effective way to avoid access to information if the government is not going to search for those emails."
Tully's report says the act governing freedom of information requests places a "positive duty" on public bodies to actively assist applicants.
She said that didn't happen in this case.
"In fact, the department made no effort to assist the applicant in any way until it made its offer to conduct a limited search in a communication to this office dated November 29, 2017 – four months after the original access to information requests and three months after access was denied," the report states.
Tully said the evidence established that there is no standard practice or requirement by the provincial government for how government records found in personal email accounts are transferred into the government's server system.
"There is no evidence that Minister Glavine was made aware of these access to information requests," said Tully. She said the department provided no evidence that Glavine was asked about his knowledge of the practice of filing government records with the government.
Tully said this amounted to a "don’t tell, don’t ask records management philosophy."
McNeil, who has come under pressure from the opposition parties to give Tully more powers by making her an officer of the legislature, remained adamant that the access to information system is working fine as it is.
Tully made six recommendations including that the Health Department provide all of the relevant records to the applicant within 60 days.
McNeil said he would review the recommendations, but then said he needed to do so "in balance."
"I have to go through the process. Should I have the Department of Health looking for emails or should I have them look for doctors? So I always have to balance that stuff out."
For his part, Glavine said he hasn't used his personal email account for government business since it was first brought to his attention. He also denied the use of his Gmail account was an attempt to skirt the rules.
NDP Leader Gary Burrill said Tully's report and the Liberal government's handling of the issue reflects badly on its attitude towards openness.
"It just doesn't provide any kind of a sense of a government that really values being forthright, and places a high importance on its transparency and openness before the public," said Burrill. "It provides a sense rather of a woodpile full of weasels."
Keith Doucette, The Canadian Press