New Brunswick

Ombud says Health Department should reveal sites tested during Moncton legionnaires outbreak

New Brunswick’s ombud says the provincial Health Department incorrectly withheld information about locations tested during a legionnaires disease outbreak in Moncton that sent 15 people to hospital last year.

Province claimed information couldn’t be released as it would financially harm third party

Cooling towers on Organigram's marijuana production plant in the Moncton industrial park. (Pierre Fournier/CBC)

New Brunswick's ombud says the provincial Health Department incorrectly withheld information about locations tested during a legionnaires disease outbreak in Moncton last year.

The department blacked out a list of locations tested in a document released to CBC News last October in response to a right to information request citing potential financial harm to the locations tested. CBC argued the province incorrectly applied the law to withhold the information. 

Ombud Charles Murray agreed in an 11-page decision released Friday and recommended it be released. Murray's ruling says the province's concerns about a financial impact was "speculative at best."

"The Department's primary concern was about revealing the identified source of the outbreak," Murray wrote, noting his review only looked at the list of locations tested.

The specific sites are not mentioned in Murray's report. 

An Aug. 13 email to Organigram employees says testing found 'elevated bacteria counts' in its new cooling tower system and that they were cleaned. (Shane Magee/CBC)

The outbreak was declared in August 2019 and officially ended a month later after 16 people became ill with the severe form of pneumonia, with 15 spending time in hospital.

The province traced the outbreak to cooling towers on the roof of a section of Organigram's cannabis production facility under construction in the Moncton industrial park, CBC has previously reported.

Organigram neither confirmed or denied it was the source, and told employees last year its product wasn't affected.

Some of those who became ill expressed frustration they were kept in the dark about what sent them to hospital.

Since the province wouldn't say where the outbreak began, CBC filed right to information requests about the outbreak.

The right to information law allows people to request records held by public bodies like provincial departments.

They must respond within 30 business days and disclose the information or provide specific reasons why it can't be released based on exemptions in the law. 

The provincial government blacked out the locations of sites tested for legionella bacteria last summer, citing a section of the Right to Information law that allows it to withhold information that may financially harm third parties.

The law allows those unsatisfied with a public body's response to file a complaint that's investigated by the ombud's office.

In the department's response analyzed by the ombud, the department had used a section of the law that requires it not to release a third party's financial, technical or scientific information.

The province argued disclosure could result in financial harm to the unnamed third parties.

CBC filed a complaint arguing the information couldn't possibly contain technical, financial or scientific information. 

Murray agreed in the ruling delayed months by the COVID-19 pandemic.

He wrote that the main concern raised by the health department was that the information could "lead the public to have a negative impression that would impact commercial operations, resulting in significant financial loss." 

However, he said "little evidence" was presented on whether the information blacked was commercial, financial, scientific, or technical information. 

Murray also rejected an argument by the department that disclosing locations tested could reduce cooperation in future public health investigations. He pointed out it is illegal to hinder or obstruct a health inspector.

The right to information law doesn't grant Murray power to order release of the information, so the province can ignore the ruling and keep the information secret. The province has 20 business days to decide what to do.

Bruce Macfarlane, a spokesperson for the health department, said Thursday the department is "looking into" the ombud's ruling and will make a decision in the coming days. 

Ombud Charles Murray ruled in his report released last Friday that the province incorrectly used a section of the Right to Information Act to withhold information about sites tested during the outbreak. (Nicolas Steinbach/Radio-Canada)

The outbreak led to the department preparing a report examining what happened and its response. That report had not been completed as of August. 

Macfarlane said in August that the report will include a recommendation the province implement a cooling tower registry. A registry would help public health officials know where cooling towers are located when trying to find the source of an outbreak. 

Mist from the cooling towers that contains the bacteria can be carried into the surrounding environment, where people breathe it in. The illness is contracted by breathing in the mist.

Read Ombud Charles Murray's decision:

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ABOUT THE AUTHOR

Shane Magee

Reporter

Shane Magee is a Moncton-based reporter for CBC.

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