NDP under fire from privacy boss
Watchdog criticizes lack of action on government secrecy concerns
More than a month after the release of a report raising alarm over government secrecy, information and privacy commissioner Jill Clayton is disappointed and frustrated with the lack of action by the NDP to ensure Albertans have proper access to government information.
Clayton’s office issued a scathing report in April that outlined how an investigation into possible political interference in the access to information process that was launched under the former Progressive Conservative government had been “bottlenecked.”
She said her office faced an “unprecedented” situation that saw 800 pages of records provided by the province fully or partially redacted due to claims of “privilege” and a government lawyer representing each of the departments’ freedom of information co-ordinators, which further slowed the process.
The activities started under the PC administration but continued after the NDP took office in May of 2015, despite Clayton raising her concerns with the minister’s office.
The commissioner has also been hindered by a November 2016 Supreme Court ruling that the wording of current provincial legislation does not give her the power to compel public bodies to produce records for her office to review when solicitor-client privilege has been claimed.
In a separate report, Clayton has called on the NDP government to amend the legislation to give her office that capacity — a power that had long been recognized by the province until recent years — but the province has given no signal on how it will proceed.
The situation has left her concerned she is unable to fully perform her duties
“I am fearful that nothing’s going to happen,” Clayton said in a recent interview.
“It’s impossible to imagine how citizens can hold a government to account, how they can engage fully in a democracy, if they’re not able to get information, and a big piece of that is to have independent, objective and effective oversight.”
Clayton acknowledges she expected better from the NDP when the Notley government took office, noting the political interference probe was prompted in part by complaints from the New Democrats when they were in opposition.
“I thought that with a change of government, perhaps we would see a different approach. I think I can say that, yes, I was surprised that that did not happen,” she said.
The most recent issues raised by Clayton follow reports she issued in February warning of “unacceptable” delays in processing information requests and a “lack of respect” for access to information among some senior officials within the civil service.
The government has responded by hiring more staff to deal with information requests from the public, media and opposition parties, which have skyrocketed in recent years.
Justice Minister Kathleen Ganley said in a recent interview that there are concerns about how Clayton’s investigation into political interference was dealt with by the government.
Ganley said she didn’t believe officials were intentionally trying to impede the investigation but that may have been the effect.
She said there is nothing inherently wrong with a lawyer working with freedom of information co-ordinators, but there is an issue if those officials did not want to be represented by a government lawyer.
Ganley said she has also directed officials to be much more cautious in terms of claiming solicitorclient privilege over documents to keep them out of the commissioner’s hands.
But the minister is reluctant to waive privilege entirely and is noncommittal on whether the legislation will be amended to meet Clayton’s request.
The legislation, as well as a broader review of policy and practises around information and privacy, are in the hands of Service Alberta Minister Stephanie McLean.
Ganley said that despite Clayton’s exasperation, the NDP does respect the commissioner’s role and her concerns.
“Her function is incredibly important. Her desire to push the government and to make sure things are as open and transparent as possible is really good. I think that has a positive and beneficial effect for all Albertans,” said Ganley.
“We are taking steps. Obviously we disagree about whether the speed of those steps is sufficient.”
McLean said the government is making progress in areas such as turnaround times for access requests and she is hoping to introduce “substantial changes” this year.
“It’s easier said than done when it comes to any work,” she said of the time taken by the government to address the issue.
“There’s certainly a transition time when you’re on the inside of the walls to find out what’s actually going on … to make swift changes without having a good understanding of the issue would be irresponsible.”
The province’s opposition parties are united, however, in backing a change to legislation, as called for by Clayton.
Wildrose house leader Nathan Cooper is skeptical the government will move forward to address the ongoing issues.
“We’ve seen them talk a lot about trying to take steps to rectify the FOIP and the access to information system but … I would expect to continue to see a lack of true action on this important file,” Cooper said.
“There’s a combination of not actually wanting to be open and transparent and not being prepared enough to get these things done in an expeditious way.”
Clayton said she’s not giving up on the NDP improving the system.
She praised the government for hiring additional staff and for Ganley’s direction to officials around privilege.
But more is needed, said Clayton, and not just legislative changes, but fostering a culture of openness within government ranks.
“That’s not something that changes overnight but it has to come from the premier, from the ministers, from the senior civil servants. You can have the strongest legislation in the world … but there are endless ways to thwart the legislation no matter how it’s written.”