Reports Highlight Obstacles to Independent and Effective Oversight by the Information and Privacy Commissioner

April 11, 2017

The Information and Privacy Commissioner tabled two reports in the legislature today related to the Commissioner’s functions under the Freedom of Information and Protection of Privacy Act (FOIP Act).

Investigation into Allegations of Delays and Possible Interference

Investigation Report F2017-IR-03 concerns allegations of delays and possible interference in the Government of Alberta’s (GoA) handling of access requests. The report identifies a number of factors that contribute to delays, including a significant increase in the number of access requests, the complexity of requests and applicant expectations. However, the investigation faced a number of challenges that made it impossible to make meaningful and reliable findings with respect to other potential issues in the access request response process.

Among these challenges, nearly 800 pages of records provided by the GoA for the investigation were either fully or partially redacted, including 466 pages of records that were entirely blacked out. In addition, all witnesses for the investigation were represented by a lawyer from Alberta Justice and Solicitor General, who also represented the respondent ministries. This is unprecedented in the history of the office’s investigations, and, in addition to significantly delaying the investigation, may have prevented witnesses from candidly sharing their experiences and assessments.

“I am deeply disappointed in how this matter has unfolded. What should have been a relatively straightforward investigation has concluded under a shadow that brings the very notion of independent oversight of the executive branch of government into question and has the potential to erode public confidence in an open and accountable government,” said Commissioner Jill Clayton.

The investigation was opened in 2014. The objectives were to review the access request response process and determine whether political interference had caused delays in responding to access requests. The findings within the report are qualified due to the myriad challenges faced.

Special Report on Producing Records to the Commissioner

During the investigation, the question of whether the Commissioner has the power to require public bodies to produce records over which solicitor-client privilege has been claimed made its way through the court system.

In November 2016, the Supreme Court of Canada (SCC) decided that the Alberta Legislature did not use the right words in the FOIP Act to give the Commissioner this power.

Following the SCC’s decision, the Commissioner issued a statement saying that she would write to government with options for how to proceed on this issue. However, as an independent Officer of the Legislature who reports to the Legislative Assembly and not to government, and whose ability to perform core functions as an Officer of the Legislature has been compromised (as evidenced, in part, by the investigation referenced above), the Commissioner decided to table a Special Report and Request for Legislative Amendment in the legislature on producing records to the Commissioner.

The Special Report requests that the FOIP Act be amended to give the Commissioner the power to require public bodies to produce records over which solicitor-client privilege and other similar privileges are claimed, when necessary. This amendment is proposed to ensure there is an accessible, affordable and timely way for Albertans to seek review of government and other public bodies’ responses to access requests. The requested amendment will also enhance Albertans’ participation in the democratic process to hold their government to account through an effective access to information regime.

In the Special Report, the Commissioner outlines a number of disadvantages if the power to make decisions on records subject to claims of solicitor-client privilege or other similar privileges is transferred to the courts. These include overburdening the courts when resources are already stretched to the limit, delays in access, and increasing the cost for Albertans, public bodies and the OIPC when reviewing responses to access requests.

Background

Investigation into Allegations of Delays and Possible Interference

In May 2014, the Commissioner opened the investigation into allegations of delays and possible interference in the GoA’s handling of access requests. The following factors contributed to the Commissioner’s decision to the open the investigation, as quoted from the news release:

  • For some time, I have been concerned about the timeliness of responses to access requests. In my 2012-2013 Annual Report, I reported the number of requests for time extensions submitted to my Office increased by 89% from the previous fiscal year. The recent allegations raise questions about the reasons for the time extension requests.
  • Statistics on the operations of the FOIP Act for the 2011-2012, 2012-2013 and 2013-2014 fiscal years are not available. While I have heard anecdotally that government departments have seen increasing numbers of access requests, I have no statistics on these numbers or on the response times over the past three fiscal years.
  • A number of applicants have informed my Office that public bodies do not respond to access requests within the timelines set out in the FOIP Act.
  • The Alberta’s NDP Opposition and the Canadian Taxpayers Federation have publicly stated they have written to me asking for an investigation into delays in the release of records and raising concerns about political interference in the processing of access requests. I have received their written requests.
  • I have heard anecdotally of concerns and allegations regarding the disclosure of applicant identities during the processing of access requests. This raises questions as to whether the identity of an applicant (e.g. political, media) is a factor in the time taken to respond to a request.

The objectives were to review the access request response process and determine whether political interference had caused delays in responding to access requests.

The report is presented in two parts.

Part One provides analysis and findings for each of the investigation’s objectives.

There were 15 findings in total, including but not limited to:

  • The steps followed by GoA departments to respond to applicants within time limits set out in the FOIP Act are appropriate, and that the steps do not by themselves cause or exacerbate delays in the time GoA departments take to respond to requests.
  • For the five-year period considered in the investigation, the time taken by GoA departments as a whole to respond to access requests had increased. Over the same period, the volume of access requests made to GoA departments had increased significantly, which affected the ability of GoA FOIP offices to respond within time limits.
  • The most remarkable finding for response time statistics for general access requests is that only 6% of access requests were responded to within 30 days while 49% of requests were responded to in more than 60 days in 2013-14.
  • Among other factors that contributed to delays were the increasing complexity of requests and the heightened expectations by applicants when submitting access requests.
  • Changes to access request reporting throughout the GoA could suggest that Deputy Ministers were becoming more closely involved in the access request response process, especially for cross-government access requests.
  • While no evidence was received to suggest that Deputy Ministers becoming more involved resulted in attempts to interfere in processing access requests, it nevertheless created a perception issue.
  • The increased attention given to the processing of some of the access requests related to former Premier Alison Redford’s expenses, and the additional circumstances around their public release, call into question the motivations of the former government to make these records widely available on the FOIP Postings webpage, which continues to be available on the GoA’s website.

The findings in Part One, however, were unreliable due to the various challenges experienced during the investigation, which, in part, is why there were no recommendations made to the GoA in the investigation.

The challenges were outlined in Part Two, and include:

  • Chronic delays: A single Alberta Justice and Solicitor General lawyer coordinated the participation and represented all 19 respondent ministries, resulting in a bottleneck that significantly delayed the investigation.
  • Representation issues for interviewees: The lawyer who represented respondent ministries also represented all GoA FOIP Coordinators during interviews, despite concerns from a number of FOIP Coordinators. This was unprecedented, and the legal representation may have prevented FOIP Coordinators from candidly sharing their experiences and assessments.
  • Refusal to provide unredacted records: Nearly 800 pages (30%) of records requested from FOIP Coordinators were reviewed and redacted by the lawyer, including 466 pages that were entirely blacked out (Appendices E and F). Initially, the purpose of these redactions was not mentioned, let alone explained.
  • Inconsistent redactions: Content in records that had previously been provided to the office, or that, in one case, was provided to an applicant who requested the information under the FOIP Act, was redacted when provided for the investigation (Appendix G).
  • Inability to determine completeness of records: There were no records documenting exchanges between the Deputy Minister of Service Alberta and other Deputy Ministers, the Premier and the Minister of Service Alberta, or the Minister of Service Alberta and other Ministers, even with respect to issues that would reasonably require exchanges of information. This suggests that either information was not provided by GoA departments to the lawyer, information was provided but redacted, or no records were created. Each of these possibilities raised concerns.

In March 2015, in response to these challenges, Notices to Produce Records were issued to 13 ministries. This was done, in part, based on a 2008 letter from the then-Minister of Justice and Attorney General to the former Commissioner, which stated, “You currently have the power to compel production of all records subject to review, even where such records are subject to privilege” (Appendix H). In addition, the Court of Queen’s Bench of Alberta had decided in November 2013 that the FOIP Act granted the Commissioner the power to require records to verify claims of privilege.

As the Court of Queen’s Bench decision was under appeal, the GoA requested that compliance with the Notices to Produce Records be put in abeyance. The Commissioner responded by indicating that the records were required to conduct the investigation. The GoA then sought a judicial review of the Notices to Produce Records.

In April 2015, Alberta’s Court of Appeal overturned the Court of Queen’s Bench decision, which was subsequently upheld by the Supreme Court of Canada in November 2016.

In the meantime, the investigation was one of the approximately 80 to 90 cases in the office affected by the Supreme Court of Canada’s decision. In the interests of avoiding further delays, the Commissioner decided to conclude the investigation.

Special Report on Producing Records to the Commissioner

After the Supreme Court of Canada issued its decision in November 2016, the Commissioner said she would write to government with options for proceeding on this issue. However, as an independent Officer of the Legislature, the Commissioner decided to submit the Special Report and Request for Legislative Amendment to the Legislative Assembly, the body to which the Commissioner reports.

The report provides background information for the issue of producing records to the Commissioner and provides a request for amendment to the FOIP Act, as well as a brief explanation of access to information and the role of the OIPC.

The Commissioner requests that the legislature amend the FOIP Act to state:

  • That the Commissioner has the power to require public bodies to produce to the Commissioner records over which solicitor-client privilege and other similar privileges (e.g., litigation privilege, informer privilege) are claimed.
  • That the Commissioner may require those records when, in the Commissioner’s opinion, it is necessary to perform legislative functions (such as when a public body does not provide enough evidence to satisfy the Commissioner that the records are privileged).
  • That solicitor-client privilege or other legal privilege is not waived when the privileged records are provided to the Commissioner.
  • That the Commissioner may not disclose to the Minister of Justice and Solicitor General, as evidence of an offence, records to which solicitor-client privilege applies.

The amendments are meant to achieve a fundamental purpose of the FOIP Act: to ensure citizens who wish to participate in the democratic process and hold their government to account have the means to obtain information from public bodies in an accessible, affordable and timely way.

The alternative is to transfer the power of the Commissioner under the FOIP Act to the courts, and have the courts decide whether a public body properly applied solicitor-client privilege to records when responding to an access request.

The Commissioner outlined seven disadvantages to transferring the power to the courts.