New Brunswick's information commissioner has slammed a haphazard and casual approach to record-keeping at Parlee Beach Provincial Park and says even a new system of water-quality advisories for 2017 may fall short of what's required.
Anne Bertrand writes in a May 18 letter that the Department of Tourism, Culture and Heritage had no set rules for holding on to lifeguard checklists and rainfall records.
'It doesn't have to be complicated, it just has to be clearly written.' - Anne Bertrand, information commissioner
She says she believes that contributed to confusion about water-testing results last summer.
"There's been a lot of media reports about why it fell off the page, why did the process not happen?" Bertrand said in an interview. "It wasn't documented. The process was not made clear. And I believe that's the nub of this issue.
"When there's a process — it doesn't have to be complicated, it just has to be clearly written — then people know what is expected of them and what they're supposed to do. That's where I think it fell short."
She also says the new protocol to notify the public of poor water quality "lacks specificity."
The province announced last month it will adopt a new water-testing protocol starting this summer.
More visible warning signs
It will be based on federal guidelines and will use large no-swimming advisory signs when the water gets a poor rating.
That came in the wake of what the government calls "mistakes" in 2016, which led to people using the beach on 10 days when the water was poor and there was no advisory.
Water will be sampled more often and from more locations at the beach, and results will also be posted online.
But given the department failed in the past to inform the public about poor water quality at the beach, Bertrand writes, "we are not certain the new Protocol will correct this issue to be compliant with the Applicant's (and the public's) right to know this information."
Public health takes over
April's announcement also said the Tourism Department will no longer be involved in water sampling. The public health office will now be responsible.
Tourism Minister John Ames said Friday that his department would keep working to make sure the department's internal processes are clearly defined.
"I don't disagree with her stance on making sure that we need to do as good a job as possible, and I'm going to continue to work with my colleagues … to ensure that that happens."
Bertrand's 11-page letter is to Pointe-du-Chêne cottage owner Brenda Ryan, who complained last year about how the department handled her request for water-sampling information under the Right to Information and Protection of Privacy Act.
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Bertrand points out in the letter that the law requires the department to tell her and Ryan whether it will comply with her recommendations.
Bertrand writes that she "impresses upon" the Tourism Department that it's responsible for ensuring the public's right to know is respected.
No documentation protocol
Besides questioning the new rating protocol, Bertrand also describes "a lack of set practice or policy regarding the documenting of decisions" on water quality at the beach in recent years.
Ryan asked last July for the water-testing procedure, the lifeguard daily checklists going back to 2011, and daily rainfall records.
The department gave her lifeguard checklists for 2011, 2014, 2015, and 2016, and rainfall records for 2015 and 2016 but didn't give her an explanation of the testing procedure.
Bertrand's investigation into Ryan's complaint revealed that "a procedure to determine water quality exists but the procedure itself is not documented," Bertrand's report says. There was no written document that explained the process staff should follow.
Suggests conflict with safety goal
She wrote that this is "of concern" and is "particularly surprising" given the recreation water-quality index created for Parlee Beach in 2001 was intended to "better inform the public" about water quality "so that the public can make informed decisions" about going in the water.
The department also could not provide records of its water-rating decisions and could not explain why it didn't.
Bertrand writes that the lifeguard daily checklists, which include weather and water-quality information, were saved each day but "thrown out" at the end of each summer. The report said that "somehow" the department found checklists for 2011 and 2014 through 2016.
Park staff also threw away rainfall records "at random" at the end of the season, Bertrand said.
But "it just happened" that rainfall records were kept for 2015 and 2016.
Onus on department
"No explanations for why this is the case were provided to us."
"The Department remains ultimately responsible to the public and access rights," Bertrand writes. "As such, the Department must ensure that the records at the Park are generated, kept and destroyed as per a set practice."
'Just because this is a hot political issue, or a difficult public issue, shouldn't matter.' - Anne Bertrand, information commissioner
Bertrand said in an interview that part of the problem is that the park was physically distant from the departmental offices in Fredericton.
"We see these seasonal locations as less formal and less institutionalized, but does that excuse it? No," she said. "It wasn't incumbent upon park officials to look after that. It was incumbent upon the department to ensure the record-keeping was done."
Bertrand also criticized the department for the way it responded to Ryan's right-to-information request.
She said it didn't tell Ryan she had the right to appeal its response and didn't explain why Ryan was getting some records and not others.
In March, the department tried to block a right-to-information request from CBC News for emails from the Parlee Beach park manager. Ames asked Bertrand to declare the request "frivolous and vexatious," which would allow him to ignore it.
Within hours of CBC reporting on the move, Ames reversed himself and said he would release the documents.
Environment Minister Serge Rousselle had earlier credited CBC's reporting and residents' use of right-to-information requests for helping the province discover mistakes in the testing process.
Reminiscent of old ways
Bertrand said the Tourism Department has improved its handling of right-to-information requests during her seven years as information commissioner, but "I'm getting concerned that we're falling back."
She said that's why she issued formal recommendations in this case.
"I shouldn't be doing that after seven years," she said.
Bertrand said the department was probably embarrassed by the intense scrutiny of its water-testing system, but it shouldn't treat requests for that information any differently.
"Just because this is a hot political issue, or a difficult public issue, shouldn't matter," she said.