New Brunswick·CBC Investigates

NB Liquor threatens to sue information commissioner over report

NB Liquor has threatened to sue the province’s access to information commissioner over a damning report that concludes the Crown corporation “considered itself above the law.”

Legal threat comes after Anne Bertrand issued a scathing report, accusing NB Liquor of acting 'above the law'

NB Liquor says the province's information commissioner has acted in bad faith in slamming them over secrecy. The issue stems from CBC's request for information about the corporation's growler program. 2:01

NB Liquor has threatened to sue the province's access to information commissioner over a damning report that concludes the Crown corporation "considered itself above the law" in processing a routine right to information request from CBC News.

The liquor corporation issued an unprecedented legal threat to commissioner Anne Bertrand on Monday, accusing the independent officer of issuing a "slanderous" report and "acting in bad faith."

Her report details a "culture of secrecy" at NB Liquor, describing how the public body treats right to information requests as "an unnecessary inconvenience or irritant," even though the law says otherwise.

"It became immediately obvious to us that NB Liquor at its highest management level did not care to recognize the relevance of the [right to information] legislation or the impact of its approach in this case, especially to the oversight office tasked with ensuring the law is well applied and followed," Bertrand wrote.

Brian Harriman, the president and chief executive officer of NB Liquor, denies the Crown corporation broke the law.

"Trying to characterize our actions as being arrogant or disinterested or not acting in good faith is, I think, completely unfair," Harriman said in an interview.

At NB Liquor, requests received under the Act are not considered a priority; they are seen as an unnecessary inconvenience or irritant.- Commissioner's report

NB Liquor's lawyers sent a letter to Bertrand on Monday, advising her of the "intent to pursue legal action."

The letter, sent by Stewart McKelvey lawyer Clarence Bennett, says the commissioner's report contains "blatant falsehoods, conjecture, defamatory comments, and baseless accusations." 

"Such statements have no basis in fact, are well beyond the commissioner's statutory mandate and have been made gratuitously, solely to embarrass NB Liquor and certain of its employees and therefore have been done in bad faith," the letter says.

That prompted Bertrand to cancel scheduled interviews about her report on Tuesday with CBC News. Her office hasn't responded to further requests for comment.

The province's Right to Information and Protection of Privacy Act protects the commissioner from legal proceedings "unless it is shown that he or she acted in bad faith."

When asked what he would say to critics who may suggest he's trying to silence the commissioner, Harriman said the Crown corporation has been "very transparent."

"I think the truth of the matter is we have a great story to tell about everything that's happening at NB Liquor," he said.

​A spokeswoman for Finance Minister Cathy Rogers, the minister responsible for NB Liquor, declined comment because the issue could potentially go to court.

A 14-month fight

CBC News has spent 14 months fighting for information on how NB Liquor decided to keep its Growler pilot project. (CBC)
The saga began more than 14 months ago, when CBC reporter Daniel McHardie filed a right to information request, asking for records that would explain NB Liquor's decision to continue its Growler pilot project.

NB Liquor refused access, saying there are too many records and releasing them would harm "third party business interests."

CBC News appealed the decision to Bertrand's office.

During her investigation, Bertrand asked the Crown corporation to provide a list of relevant records to decide what can be released.

"NB Liquor refused to do so and instead, NB Liquor instructed outside legal counsel to send us a letter advising that processing the records would unreasonably interfere with NB Liquor's operations," Bertrand wrote in her report.

In detailing two meetings she had with management at NB Liquor, Bertrand wrote that officials "boasted" about guarding confidential information from craft beer producers, "despite any statutory obligations" under the law.

She found the request from CBC News was not too broad or unreasonable and questioned whether NB Liquor ever conducted a "full search" for the records.

CBC News has still not received these records.

A 'financial burden'

Bertrand's report raised questions about NB Liquor's openness in her report. (CBC)
Bertrand's report, issued last week, is called, "A case about what not to do when receiving and processing a request for access to information submitted under the Right to Information and Protection of Privacy Act." 

That title drew the ire of NB Liquor's lawyers, who cited it as evidence of "bad faith." 

"The statement is juvenile, with the sole intent of humiliating NB Liquor and is unsupported by the facts — actionable bad faith."

Bertrand's report goes on to say that NB Liquor wasn't open and transparent and "considered itself above the law."

The public body failed to co-operate with her investigation and "failed to issue a response that was lawful, meaningful, or made sense as required by law," the report says.

In an interview on Monday, Harriman rejected the commissioner's findings, saying the CBC request was too broad.

"We seem to have a disagreement on what satisfies the request," he said.

He also questioned the value of the province's right to information legislation, describing it as a "financial burden" for public bodies to meet RTI requests.

"The spirit and intent is right and I think we are obligated to meet those requests," Harriman said.

"But when you have people in departments who are solely focused on answering [right to information] requests, in light of the fact we have many other financial challenges in the province, I'd question if that's a good use of money."

Thousands spent on lawyers

NB Liquor has recorded losses of more than $26,000 due to stolen liquor since 2014. (CBC)
NB Liquor has spent at least $6,000 so far on hiring a lawyer to challenge Bertrand.

When asked if that is a good use of taxpayer money, Harriman said he hoped to resolve the case in "a non-legal fashion."

"At this point in time, I'd like to reserve an answer on that one until we know further how we're going to proceed," he said.

The letter from NB Liquor's lawyer doesn't mention anything specific Bertrand should do to avoid legal action. 

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Read the commissioner's full report and the letter from NB Liquor's lawyer below:

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