Alberta information commissioner says her office at 'breaking point'

Alberta's information and privacy commissioner says her office is failing to properly serve Albertans because it is swamped with public complaints.

Jill Clayton says staff can’t keep up with volume of complaints

Information and privacy commissioner Jill Clayton says her office simply can't keep up with the volume of public complaints it receives. (CBC)

Alberta's information and privacy commissioner says her office is failing to properly serve Albertans as it struggles with resourcing issues and an ever-increasing workload.

In an interview with CBC News, Information and Privacy Commissioner Jill Clayton said her office has been strained over the past couple years due to a "constant increase" in the number of complaints related to freedom of information (FOIP), particularly involving government ministries.

"I think it's imperative that government public bodies adequately resource this function — the access-to-information, the FOIP function within their ministries. And I think that has been neglected for some time."

Clayton warned a legislature committee a year ago that her office could not keep up with the demand for its services. On Nov. 30, Clayton told the same committee the workload is now untenable.

"With more case volume increases this past year, I think we have officially reached our breaking point, and despite continuous process improvement and review and streamlining certain case types where possible, we just can't keep up with the volume," she said.

"I have been on record in a number of public forums saying that basically at this stage we're shifting the deck chairs on the Titanic," Clayton told the committee.

Sean Holman, a journalism professor at Mount Royal University in Calgary, said when the NDP were in opposition, they complained about government secrecy and the problem that created in holding the government accountable.

"And now, having won power, they have done nothing to make government less secretive. And that just shows the corruption of the system," said Holman, who is writing a book about the history of access to information in Canada.

Service Alberta Minister Brian Malkinson, whose ministry oversees FOIP, was unavailable for an interview.

Political parties, news media and advocacy groups frequently make freedom of information requests under provincial law to gain access to internal records that may serve to hold the government accountable by exposing questionable or corrupt practices.

Clayton's office adjudicates public complaints related to the processing of those FOIP requests, as well as health-information and other privacy breaches. She reports directly to the legislature and is considered politically independent.

Clayton told CBC News her office is struggling to conduct timely FOIP reviews due to the amount of information being redacted from documents, and challenges in obtaining records from ministries.

'Just not sustainable'

In the interview, Clayton said she has heard anecdotally about ministry FOIP units being understaffed and under-resourced, leaving them unable to meet legislated deadlines for processing information requests.

She noted her office took action to more efficiently address what are known as "deemed refusals," in which a ministry does not process a request in a timely way, or simply doesn't process it at all. There were 25 deemed refusals in the past year, and of those 22 were from Alberta government ministries.

Several successive annual reports from the information and privacy office have detailed its problems handling an increasing number of public complaints. Over the last year, the situation became untenable, Clayton said.

"Our new normal is to anticipate well over 2,000 cases a year, and with our current staffing levels this just is not sustainable," she told the committee as she asked for an additional $661,000 to fund five new positions.

Mount Royal University journalism professor Sean Holman says freedom of information is a critical tool to hold governments accountable. (Supplied)
Clayton said the new positions will be used to tackle office backlog and "maintain our current timelines in reviewing matters that Albertans bring before the office."

But the commissioner admitted even the office's current response timelines are unacceptable, adding it takes her office about nine months, on average, to resolve complaints and FOIP appeals.

However, it can sometimes take years for Clayton's office to resolve a FOIP request for review, by which point the currency of the requested information may be lost. If the office's response doesn't satisfy the FOIP applicant, the applicant can move on to the next stage of the appeal process: an inquiry, which often take several years to complete.

Steady erosion of access to information: expert

Holman said the situation in Alberta mirrors the situation in other provinces and federally, in that there has been a steady erosion by governments of the public's right to access information.

"As Canadians and as Albertans, we should be concerned about it," Holman said.

"Democracy is based on the idea of us making rational empathetic decisions on the basis of truthful information," he said. "That is the way it is supposed to work.

"So if we have an inability to get truthful information from the government, the system starts to break down."

Holman said the use of FOIP in Alberta is already low compared to other provinces.

Alberta's user-pay system creates significant disincentive. Holman noted Alberta's $25 application fee is the highest in Canada and the act also allows ministries and others to assess significant fees for processing the information.

The act also contains numerous loopholes that stymie access to records that are readily available in other jurisdictions, which can dissuade the public from using it.

"As a result, there are few people to advocate for fixes to what is a very broken system," Holman said.