Commissioner makes plea for an overhaul of Nova Scotia privacy law

Catherine Tully made an impassioned plea on the need to overhaul Nova Scotia’s privacy legislation as she appeared before the legislature’s public accounts committee Wednesday.

Tully said while people in other provinces and around the world enjoy meaningful privacy rights, Nova Scotians have been “left behind” to wonder when the next breach of sensitive government data will occur.

The commissioner said she has made recommendations to modernize Nova Scotia’s law.

“There are many good examples of modern privacy laws available to Nova Scotia,” said Tully. “Every recommendation I have made is based on the experience of other jurisdictions — these are well-travelled and proven standards.”

She said Nova Scotia’s current law is obsolete and lacks essential features such as mandatory requirements to prevent privacy breaches and to conduct risk assessments for new projects, while there is also no obligation to consult her office when personal information may be at risk.

“This law will not do, it will not protect Nova Scotians,” Tully said. “Europe is miles ahead of us, why would we want this? Why would we want less for NovaScotians than everybody else has?”

Last month, reports by Tully and auditor general Michael Pickup were scathing in their assessments of a series of breaches of the province’s Freedom-of-Information web portal in 2018.

Tully said the breaches were preventable and were caused by a “serious failure of due diligence” in the deployment of a new technology tool.

She told the committee that the province is at a “crossroads” and that change needs to happen now.

“I absolutely think it’s essential,” she said.

Under questioning from the NDP’s Susan Leblanc, Tully confirmed that her office had not been consulted about the ongoing development of the “one patient, one record” electronic health program by the Health Department, perhaps the single largest personal records project undertaken by the province.

She said her office has asked questions about the program, but has not been consulted about its potential risks, adding that the department isn’t obligated to do so.

“There should be a mandatory requirement to consult with us not on every project … but on projects that involve very sensitive personal information, or integrated programs or activities where there are multiple databases being put together,” Tully said. “Things that would have a profound effect on the privacy of Nova Scotians.”

Meanwhile, Tully’s December ruling on the contentious Yarmouth-to-Maine ferry file was also brought up by Progressive Conservative committee member Tim Halman during Wednesday’s hearing.

In her report, Tully had called on the Liberal government to release details on the management fee in the contract with private operator Bay Ferries. The province maintains the management fee is confidential commercial information.

That stance has since been challenged in a lawsuit filed by the Tories earlier this month.

“That (December) decision makes clear that the evidence did not support that there would be harm as alleged by the third party by the disclosure,” Tully told the committee.

The line of questioning was later picked up on by Education Minister Zach Churchill, who was subbing on the committee for absent Liberal Brendan Maguire. Churchill, the MLA for Yarmouth, quizzed the privacy commissioner about her office’s expertise on the economic impact of such rulings on business.

“I evaluate whatever evidence is given to me,” said Tully. “My job is to evaluate the evidence against the legal test, which is what I do.”

Outside the committee, Churchill defended his appearance as a chance to counter negative press around the ferry he said has been generated by the Tories.

He linked moves such as the court action to a recent report that a Halifax-based investor had cooled to the idea of a business in Yarmouth that would provide accommodations for community college students.

Churchill appeared unmoved by Tully’s plea for more powers for her office, and also took issue with her assertion that the government didn’t prove its point in trying to keep the ferry management fee confidential.

“As the MLA for Yarmouth I have concerns around the economic impacts, the impacts that recommendations can have on lending, investment, job creation and property values,” he said.

Halman was asked about Churchill’s accusation that the Tories had damaged Yarmouth’s economy.

“Let me be clear, we support the ferry,” he said. “What we don’t support is this government and we want to fight this government on being less and less transparent.”

— Keith Doucette

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