Investigation finds Calgary Remand Centre mishandled requests for public information
Records deleted due to lack of oversight, training, says privacy commissioner
Alberta's Information and Privacy Commissioner says she had immediate concerns about how freedom of information requests were being handled by the Calgary Remand Centre, after she was asked to deny the requests of an inmate.
"It all started in June 2018 when there was a request to my office asking for permission to disregard some access to information requests made by an inmate who was in the Calgary Remand Centre at that time," said Jill Clayton, Alberta's Information and Privacy Commissioner.
The requests were for video captured by the centre's internal camera system. Public agencies can ask that records be withheld from an applicant for a variety of reasons, but the commissioner's office has the sole discretion in Alberta when it comes to the denial of a request.
"The public body (Alberta Justice) had said, 'Look, these records are for video, and if you want us to preserve them, then let us know as soon as possible, otherwise they are all written over within 30 days,' and I was immediately concerned," said Clayton.
Concerned because, according to Alberta's legislation, that's backward.
The act says when an applicant makes an access request, there is an immediate duty by the public body to preserve any records that could be related to the request.
That duty remains regardless of whether the agency on the receiving end — in this case, Alberta Justice and the remand centre — plans to request a dismissal from the privacy commissioner.
'Those records had been destroyed'
Since the inmate's video requests were submitted through proper channels before the 30-day window for overwriting, they should have been saved ahead of the delete cycle.
Commissioner Clayton wrote to Alberta Justice and the Solicitor General to ensure the video portions requested were being preserved.
In an email sent on June 29, 2018, she wrote, "I should not have to tell Alberta Justice and Solicitor General that it is required to preserve and not destroy any and all records while these matters are before me."
"And I received a response from the deputy minister that, in fact, those records had been destroyed," Clayton said.
She initiated an investigation in response.
Investigators found gaps in the system with Alberta Justice, which is the ministry responsible, and the Calgary Remand Centre.
The investigation led Clayton to determine that, while sections of the FOIP Act were violated, this wasn't a willful flouting of the law. Rather, it resulted from a lack of understanding about individual roles and responsibilities and ineffective communication between the ministry and the remand centre.
"There's a lack of oversight, I think. Definitely some issues around training, in particular that records must be preserved," Clayton said.
6 months to improve
Edmonton lawyer Tom Engel says he doesn't know why the inmate who made the request asked for access to the videos.
However, he says generally clients make freedom of information requests if they are making a complaint about violence from a staff member or another inmate, or to try to prove they weren't involved in a particular incident.
For an accused person, that could mean the difference between being granted bail or staying behind bars.
"So these videos are very important because it's all they have. If [inmates] make a complaint, someone will take a statement … but there is no audio recording or anything."
The investigation also found there was a perceived frivolousness of these types of requests on the part of the remand centre's deputy director.
The commissioner's report says there was concern about an "avalanche" of similar ones if inmates knew the remand centre would automatically "pull" videos.
"If it related to a complaint that was frivolous, why would the prisoner request the video?" asked Engel, who is a defence attorney.
Clayton's report is clear that requests for publicly accessible information are not discretionary. She has directed the remand centre and Alberta Justice to take steps to ensure records are preserved in the future.
"Individuals don't get to make that call that, 'These records don't seem important, so I'm not going to take the steps to preserve these records,'" said Clayton.
Breaches of Alberta's FOIP Act can result in a $10,000 fine. However, no punitive action will be taken in this case.
The commissioner has given Alberta Justice and the Calgary Remand Centre a list of areas for improvement, and says she will follow up in six months to determine if they are being followed.