New Brunswick

Integrity commissioner forces province's hand with historic use of appeal power

Alexandre Deschênes filed an appeal in October after the government refused to heed his recommendation to give a New Brunswick woman a copy of an investigator’s report into her own social assistance case.

Appeal filed two months before Alexandre Deschênes retired from post on Dec. 31

Retired integrity commissioner Alexandre Deschênes appealed after the Department of Social Development refused to give a woman a copy of an investigator’s report into her own social assistance case. (Jacques Poitras/CBC)

For the first time, New Brunswick's independent information watchdog has used his legal power to force the province to release documents it wanted to keep secret.

Alexandre Deschênes filed the appeal in October after the government refused to heed his recommendation to give a New Brunswick woman a copy of an investigator's report into her own social assistance case.

Deschênes told CBC News that the Department of Social Development relented and agreed to give the woman the report, shortly before he retired from his position Dec. 31.

"That shows you that in some cases, it's very important that the commissioner exercise that right of appeal to force disclosure where the commissioner is of the view that the document ought to be revealed," he said.

The integrity commissioner monitors the province's compliance with the Right to Information and Protection of Privacy Act. The act gives the commissioner the power to appeal a government refusal to release information if the person requesting it chooses not to.

Alexandre Deschênes was the first integrity commissioner to use the power to file an appeal. (Jacques Poitras/CBC)

The woman seeking the document wrote in a July 18, 2018, email to Deschênes's office that "I am a person living in poverty" and if she were forced to spend non-existent funds, it would amount to her being deemed "unworthy" of having her rights protected.

'Sometimes it's a question of intimidation'

Deschênes said it's important the commissioner have the power to appeal rejections in such cases.

"Sometimes it's a question of intimidation," he said. "Despite the fact that this is supposed to be a user-friendly type of process, some people just don't want to appear before a judge for their own reasons. Sometimes they don't see the importance of the case being brought on appeal."

His decision diverges from the approach of the previous information commissioner, Anne Bertrand, who tried to avoid confrontations with the province by negotiating with officials or persuading them to release documents.

Because the province gave in and Deschênes's appeal was never heard, there was no ruling in the case and no precedent established.

Nonetheless, it marks the first time a New Brunswick information commissioner has used the power to file an appeal. Deschênes said his office "felt very strongly" that the province's refusal had to be challenged.

CBC News tried to contact the woman through an email address in the court file but did not receive a reply.

Province won't change approach

Social Development Minister Dorothy Shephard said in an emailed statement that her department would not change its general approach to such requests as a result of the case.

"Each case will continue to be judged on its own particular set of circumstances," she said, adding the department's "default position" will be to release all information that is not protected by privacy legislation.

Shephard's statement cited privacy issues even though that was not the reason the department gave for refusing to release the report.

Liberal government refused to release report

The woman filed a right to information request in 2017 for the report. She wanted to see it because it led the department to cut off her benefits under the Family Income Security Act.

Then-Liberal minister Stephen Horsman refused to turn it over, citing a section of the right to information law that says the province doesn't need to release information that would "harm the effectiveness of investigative techniques."

Former families and children minister Stephen Horsman said the department would not hand over the report because its release would harm the effectiveness of investigation techniques. (Alex Vietinghoff/CBC)

The woman complained to Deschênes, who investigated the decision. His five-page report said departmental officials told him that people receiving benefits would use information in the investigation to "scam" the government and collect benefits to which they weren't entitled.

The government pointed to a recent ruling that the Saint John city police was allowed to reject a right-to-information request for evidence in a still-open criminal investigation.

But Deschênes concluded that the woman's case was different because her investigation was over and because she was asking for personal information about herself.

He also said that social-assistance clients are already "generally aware" that the department may check on whether they lived where they claimed to live, since that is a requirement.

The province cross-references a client's name with other government databases to check their addresses, and Deschênes concluded it was "highly unlikely" clients would be able to change their addresses "in all of these databases" to defraud the system.

Despite those conclusions, Horsman again refused to give the woman the report in June 2018, telling her the department was "unable to comply."

Deschênes filed his appeal in October 2018. He notified the court that the case had been resolved on Dec. 21.

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