Alberta government roadblocks blamed for delays in political interference probe

Alberta's privacy and information commissioner says her office’s investigation into possible political interference in the processing of freedom of information requests is mostly unreliable due to roadblocks created by the Alberta government.

Investigation into handling of privacy and information requests ended 'under a shadow,' commissioner says

Alberta privacy commissioner Jill Clayton is dismayed over the delays her investigator encountered during a probe into possible political interference in processing FOIP requests. (CBC)

Alberta's privacy and information commissioner says her office's investigation into possible political interference in the processing of freedom of information requests is unreliable due to roadblocks created by the former Alberta government.

"I am deeply disappointed in how this matter has unfolded," commissioner Jill Clayton said in a news release Tuesday.

"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."

After Clayton's office launched the investigation in May 2014, the process faced a number of delays.

A single government lawyer represented the 19 ministries and FOIP coordinators interviewed for the investigation. Clayton said this created a problem.

"In addition to chronic delays, this representation may have prevented FOIP coordinators from candidly sharing their experiences and assessments," she writes.

Thirty per cent of documents, or 800 pages, sent by government as part of the investigation were partially or fully redacted. About 466 pages were fully blacked out.

In some cases, information redacted in one document was disclosed in another, which led investigators to wonder why they were blocked in the first place.

'Disconcerting' direction

The investigation looked at one example of interference around the posting of documents requested by media outlets about former premier Alison Redford. 

The documents were posted online 24 hours after they were released to the applicants. 

According to the report, a deputy minister instructed the FOIP coordinator to publicly post the documents all at the same time. That means the processing of one request was speeded up and the release of another was delayed.

The FOIP coordinator was also asked to disclose documents that weren't relevant to the request.

The coordinator told the investigator those directions, given orally, were "unprecedented" and "disconcerting."

And the ways in which the requests were processed "call into question the motivations of the former government to make these records widely available on the FOIP Postings webpage," the report states. "However, we received no records related to this matter and are unable to draw any conclusions."

CBC News received an internal memo where former deputy premier Thomas Lukaszuk told press secretaries to "gather information about active FOIP requests which have the potential to generate media, session, political or other reputational issues for the government."  The memo also asked the information be forwarded to his office by noon on Fridays.

The FOIP coordinators interviewed in the investigation said they never heeded that memo, mostly because it wasn't passed on to them from their deputy ministers.

Freedom of information law needs changes

Clayton is asking the legislature to change the Freedom of Information and Privacy Act so it is clear that she has the power to compel the government to disclose documents to her even when there is a claim of solicitor-client privilege.

A Supreme Court ruling from 2016 found that the wording of the act doesn't give the commissioner those powers.

Clayton says she needs that ability so she can determine whether government departments are properly making these claims of privilege when they withhold or redact documents.

She says another option is to have the courts decide whether documents are privileged or not. However, that could increase costs and create more work for the overburdened Alberta court system.

With files from the CBC's Charles Rusnell and Jennie Russell