Alberta’s culture of secrecy lives on
Clayton expresses frustration with FOIP culture under four different premiers
It’s black irony.
Journalists know the frustration of filing a freedom of information or FOIP request, waiting months for an answer, then receiving only blacked-out pages.
I never imagined Jill Clayton, the province’s information and privacy commissioner, could experience the same sort of stonewalling.
But as a new report tabled in the legislature earlier this week notes, when Clayton’s office set out to investigate allegations the Redford government had interfered politically with access to information requests, onethird of the documents they had ordered turned over to them — nearly 800 pages — were either fully or partially redacted, including 466 pages completely blacked out. (The report cheekily includes two blacked-out pages in an appendix so we can drink in their inky blackness.)
“I’m sort of speechless,” says Clayton. “I’m angry. I’m frustrated.
“It strikes to the very core of my ability to do my job and hold ministries accountable.”
In May 2014, Clayton’s office launched an investigation into why it was taking so long for provincial departments to process FOIP requests, and whether there was political hanky-panky afoot. This was just two months after Alison Redford’s ouster as Tory premier.
Over the next of three years, while Dave Hancock, Jim Prentice and Rachel Notley were in power, the entrenched senior bureaucrats delayed and denied the information commissioner’s requests.
According to Clayton, the government provided no coherent explanation for why so many records were blacked out. Indeed, some of the redacted pages had already been released to other people. In some cases, the government claimed legal privilege, without context — leaving Clayton unable to judge whether such a claim had validity.
The Hancock government appointed precisely one Alberta Justice staff lawyer to represent the 19 different departments under investigation — and all their staff. Any mid-level employee who was questioned by the FOIP investigators was represented by the same lawyer who represented their bosses. By the time the questioning began in earnest, the NDP was in power. But nobody stepped in to change Alberta Justice policy.
Transcript excerpts read like a Law & Order scene, where a criminal is about to make a deal to testify against a drug kingpin, only to find out that his “boss” has sent in a lawyer to “represent” him. When the ministries’ FOIP co-ordinators tried to answer questions, volunteer information or discuss political interference, they were repeatedly shut down by “their” lawyer, who asserted “legal privilege.”
In some cases, that claim seems tenuous — as if the mere fact a lawyer had been consulted about a document made it retroactively privileged.
“A part of me thought it would change when the government changed,” says Clayton. “It didn’t. There was no change of direction on this file. The ministers are all gone. But the deputies are still there.”
Clayton’s team discovered some basic facts. In 2013-14, the last year they studied, just six per cent of all FOIP requests to provincial government bodies were handled within the legislated 30-day deadline. But while there were anecdotal reports of inappropriate political and bureaucratic interference, without the documents, and without being able to question FOIP staff freely, Clayton’s investigators couldn’t draw definitive conclusions.
So Clayton tabled this report in the legislature — to ensure no MLA could ignore it.
“I’m their officer. I report to all of them. What power do they want me to have?”
Wednesday afternoon, Stephanie McLean, the minister of Service Alberta, which co-ordinates government response to FOIP requests, told reporters she’d not read the whole report.
“I’ll have to reserve judgment and say I don’t know much about it,” she said, when asked whether the government lawyer intimidated FOIP staff into silence. “Being a first-term appointee in government, I don’t know what’s usual or not.”
Justice Minister Kathleen Ganley had more to say.
“That process was set up before we came into government,” she told me. “I wasn’t aware of what the details had been or that employees had concerns about it. Obviously, I know that now. It may not have been the right procedure.”
Ganley said she’ll now be giving written direction to Alberta Justice staff to only assert privilege when strictly, legally, necessary, when handling FOIP requests.
“We’re committed to shifting this culture. And I can say with certainty that this particular government doesn’t have any particular interest in covering up for the previous government.”
But tectonic cultural shifts don’t come easy, not when you’re up against a 44-year-old bureaucratic machine.
We’ll have to see if this government has the courage and integrity to lift the blackness, and bring us into the light.