Wildrose alleges 'coverup' by Alberta Justice in tobacco-litigation FOIP inquiry

The Opposition Wildrose is accusing the NDP of perpetuating a “coverup” in the ongoing freedom-of-information inquiry involving the awarding of a potentially lucrative tobacco-litigation contract.

Access-to-information expert says Justice department acting like 'rogue' organization

Access-to-information expert Vincent Gogolek says he has never seen behaviour in a freedom of information inquiry like that of Alberta Justice. (CBC)

The Opposition Wildrose is accusing the NDP of perpetuating a "coverup" in the ongoing freedom-of-information inquiry involving the awarding of a potentially lucrative tobacco-litigation contract.

"Clearly, the more and more that we see this stuff come forward, it appears there was a coverup that started under the previous (Progressive Conservative) government that is continuing underneath the current NDP government," Wildrose democracy and accountability critic Jason Nixon said Friday.

Nixon was responding to news that Alberta's information commissioner, Jill Clayton, had ordered an investigation into whether Alberta Justice committed an offence under the freedom of information (FOIP) act when it processed FOIP requests from CBC News and lawyers for the tobacco industry about how the potentially lucrative contract came to be awarded.
Wildrose accountability critic Jason Nixon says he has no faith an investigation into Alberta Justice's handling of a freedom-of-information request will get at the truth. (CBC)

In a letter released to CBC News Thursday, Clayton said her office had hired a private investigator to investigate whether Justice wilfully tried to mislead or obstruct the commissioner, or altered or falsified a record to evade freedom of information requests.

The commissioner has also asked Justice to appoint an independent prosecutor so as to avoid a potential conflict.

Clayton ordered the investigation based on the recommendation of former Nova Scotia FOIP commissioner Dulcie McCallum, who is adjudicating a long-running inquiry under the FOIP act into how Alberta Justice processed the requests from CBC News and the tobacco industry.

Ministry hasn't produced records yet

Earlier this week, McCallum recommended Clayton order an investigation after identifying several issues with the ministry's behaviour, including the fact it arbitrarily narrowed the time frame of the requests. Justice only disclosed that fact to the inquiry in June, two years after the inquiry had begun.

McCallum had also been sharply critical of the fact that Justice has yet to produce a proper record of all the documents for her to review, four years after CBC News first requested the documents.

Justice has ignored several opportunities provided by McCallum to explain why the ministry has yet to produce a proper record for the inquiry.

Experts in access-to-information law say they have never seen behaviour in an inquiry like that displayed by Alberta Justice in this case.

"It is quite astounding," said Vincent Gogolek, executive director of the British Columbia Freedom of Information and Privacy Association.

"If the commissioner or delegate can't get an actual copy of what is involved, that undermines the entire system," he said.

McCallum sought the investigation, and Clayton granted it, under a little-used section of Alberta's FOIP act: Section 92, which allows for a "quasi-criminal" investigation to be conducted by the FOIP commissioner. The evidence gathered is then taken to a prosecutor to determine if it would support a criminal prosecution in provincial court.

"This is very serious," Gogolek said. "This is not an administrative thing, this is not, 'You didn't fill out the forms correctly.' The act provides a quasi-criminal offence and I am concerned that this is what is happening in this case."

Ottawa lawyer Michel Drapeau also called this an extraordinary case. He found it troubling that Justice appears to have wilfully attempted to thwart an inquiry by the commissioner, who is an independent officer of the legislature.
Ottawa lawyer Michel Drapeau says Justice is acting like a 'rogue' organization. (CBC)

"Justice — just as the name implies — has a duty not only to respect the law, they write the law," Drapeau said. "They have a constitutional mandate not only to respect it, but to make sure it is respected.

"And at the moment, they are acting almost as a rogue organization," he said. "It doesn't make sense."

This is the second investigation of Alberta Justice related to its handling of FOIP requests in less than two months. In September, Clayton announced an investigation into chronic delays by Justice in the processing of FOIP requests

Minister won't explain Alberta Justice's behaviour

CBC News has repeatedly asked Justice Minister Kathleen Ganley to explain her ministry's behaviour at the inquiry, specifically why it has not produced a proper record of documents for the adjudicator to review.

On Friday, CBC News posed a series of questions to Ganley through her press secretary. Specifically, Ganley was asked whether Justice is co-operating with separate reviews by British Columbia's conflict of interest commissioner and the RCMP into the awarding of the tobacco-litigation contract.
Justice Minister Kathleen Ganley insists her ministry is co-operating with all authorities. (CBC)

Press secretary Veronica Jubinville provided a one-sentence response.  

"In our view, we're co-operating with all authorities, while protecting the legal interests of Albertans," Jubinville wrote on behalf of the minister.

Nixon, the Wildrose accountability critic, said either Justice is involved in a "coverup" or Ganley and the NDP government have no idea what is going on within the ministry.

"Both of those are extremely disturbing," he said.

Nixon supports an investigation but said he doesn't hold out a lot of hope for it.

"At this point, I have a complete lack of trust in the justice department for this situation," he said. "And while I hope we do get to the bottom of it, we haven't had a lot of luck so far."