Alberta chooses secrecy ... again
Published on October 17, 2023
The Alberta government has blocked the release of e-mail correspondence that could help explain why the province has twice denied a series of Globe and Mail freedom of information requests.
The province claims these e-mails are protected from public release under exemptions contained in Alberta’s Freedom of Information and Protection of Privacy Act. Many of the documents have been denied under section 24, “advice from officials.” This exemption exists because there is a recognition that it’s in the public interest for government decision-makers to be able to freely debate policy issues without fear of embarrassment or political repercussions. It does not exist to shield every conversation between public servants under the cloak of “advice.” And it’s worth noting that this exemption is not mandatory. The act says the information “may” be refused. In fact, all five of the exemptions that are cited are discretionary.
Some background: This summer, The Globe filed what we call a “meta-request” with the Alberta government. A meta-request is an FOI about a previous FOI or media request. Journalists file a lot of these. We use them to understand what may be happening behind the scenes of a particular event. In this case, we wanted to understand what was happening within the province around the time that we launched SecretCanada.com.
If you’ve been following the Secret Canada series, you’ll know that Tom Cardoso and I filed hundreds of FOIs with every department and ministry in the country — provincial, territorial and federal — as part of a national audit designed to assess each jurisdiction’s approach to access and transparency. We wanted to know how often institutions were hitting their statutory time limits (typically, government is required to make a decision on an FOI within 30 days) and how many requests were accepted or denied, so we asked ministries and departments for data contained in their internal FOI tracking systems. We asked for: the date each request was received, the date each request was closed and the disposition (whether access granted in full, in part or denied).
Of more than 250 ministries and departments across the country that received the request, only those in Alberta refused.
Officials claimed that “no records” existed — even though the province uses an FOI tracking system. And even though the software company that makes that system has said that the requested information can be downloaded.
Four days before the results of the audit were published, I reached out to Alberta officials one last time to seek comment on the fact that they were the only jurisdiction in Canada to make such a claim. Media spokesperson Andrew Hanon requested a meeting with me and Tom and two assistant deputy ministers in the province.
That meeting was confusing. (You can read the full details here.) The officials reiterated the legal department’s position: because the documents don’t exist in the exact format that we requested, technically, “no records exist.” However, they also offered to provide the records through channels outside the freedom of information process. If you’re scratching your head, so were we. That’s why we filed an FOI request for all records generated as a result of my request for comment about the initial FOI refusal, the assistant deputy minister meeting and the aftermath of that meeting. These are the documents that the government is now (mostly) refusing to release.
The province’s Executive Council ministry rejected The Globe’s request entirely. Service Alberta, another department, identified 100 pages of records. Of those, 49 pages were withheld in their entirety under one or more of the following exemptions:
advice, proposals, recommendations, analyses or policy options
legal privilege, including solicitor-client privilege or parliamentary privilege
consultations or deliberations involving officials
harm the security of any property or system
financial, commercial, scientific, technical or other information
Of the files that were released, almost all of the substantive back-and-forth communications have been removed. (Officials did leave some discussion about how they were working on responding to The Globe through the media process, as well as some passages about how they planned to handle communications around the Secret Canada stories. (You can read the response package here.)
We’ve written extensively about the dangers associated with Alberta’s position, how the province is testing the limits of its FOI legislation and the precedent it may be trying to set. Our reporting has prompted Alberta’s Office of the Information and Privacy Commissioner to launch a systemic investigation into potential non-compliance with two sections of Alberta’s Freedom of Information and Protection of Privacy Act. Both two sections deal with the extent to which public officials are required to help the public locate and obtain public records.
Given all that’s transpired, and all the confusing positions being taken, I had hoped that our latest FOI would shed some light on what’s happening here. But once again, Alberta has chosen secrecy.
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