Information commissioner slams Alberta government for poor state of freedom of information

Alberta's information and privacy commissioner says the government of Premier Rachel Notley needs a top-down culture change to address a "lack of respect" for freedom of information.

In the preface to one of two scathing investigation reports issued Thursday, Commissioner Jill Clayton said the investigations uncovered a troubling attitude toward freedom of information (FOIP).

"Among the most concerning of the findings from this investigation are the comments relayed to the investigator about the lack of respect for access to information across the Government of Alberta," Clayton said.

"It is easy to regard access to information as a nuisance, particularly when workloads are increasing and staff levels are not; however, access to information is also a cornerstone of democracy and, as has been said, 'democracy dies behind closed doors.' "

• FOIP commissioner orders investigation of Alberta Justice
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Political parties, the media, advocacy groups and individual citizens use freedom of information requests as a tool to hold the government accountable and expose questionable or corrupt practices by politicians, bureaucrats or within departments.

But for years, delays in processing these requests have grown steadily worse. Last year, Clayton ordered investigations into delays in processing FOIP requests from the Wildrose Party by Alberta Justice and Solicitor General, the Public Affairs Bureau, and Executive Council, which includes the premier's office.

The investigations by senior information and privacy manager Catherine Taylor found serious staffing shortages were a main contributor to the delays at Justice.

The investigation looked at FOIP requests received by Justice between April 1, 2013, and October 18, 2016. One hundred and eighty seven - or 12 per cent - were still outstanding and had been for more than 30 days, which is the deadline set by legislation for responding to requests. The oldest was overdue by nearly three years.

Senior managers slowing down process

Another main factor in the delays was simply the unwillingness of program areas to respond to requests for records from FOIP staff within the legislated timeframes. Taylor said she heard from FOIP staff that one contributing factor to the delays was "a lack of respect for the FOIP Act itself across pockets of the (Government of Alberta)."  

Taylor found Justice FOIP staff were doing their jobs diligently; it was senior managers who were slowing the processing of requests. In one case, FOIP staff made a request for records on Jan. 27, 2016, to the minister's office, the deputy minister's office and the deputy attorney general's office. The report said staff had to make seven more requests for the records.

"In my view, this is not acceptable," Taylor stated.  

Alberta Party Leader Greg Clark said although the government's delays in processing requests started under the Progressive Conservatives, the NDP now bear the blame.

"It looks like the NDP are just as bad and may be even worse," Clark said. "This is not a bureaucratic problem; it's a leadership problem.

"This happened on the NDP's watch," he said. "I think they want to withhold information from Albertans and I think the privacy commission's report says as much."

Taylor's report into delays at Justice also raised the issue of whether FOIP requests from certain applicants are treated as objectively as they should be.

She said she was told that during a May 2016 meeting, a government employee made a comment about gathering statistics on FOIP requests that span several ministries.

"The comment, made by a senior member of a (Government of Alberta) FOIP office, was that the information gathered 'may be used to publicly shame the Wildrose Party.'

Taylor spoke with the person who made the comment, who said it was meant mockingly and did not reflect their actual opinion.

Nathan Cooper, the Wildrose's democracy and accountability critic, said it was outrageous that a civil servant would be so political that they would want to shame the Wildrose Party. 

Cooper said the one thing that Albertans probably hoped for when the NDP were elected was that they would run a more open and transparent government.

"But what they have gotten is a government is less open, less transparent and has less of a desire to provide information not just to the opposition, but to Albertans," he said. "We shouldn't be fighting the government to get the information that is rightfully ours."

Government accepts reports' recommendations

The commissioner's report into delays in both Executive Council and the Public Affairs Bureau found the public bodies had established a practice in which new FOIP requests were first sent to the senior financial officer rather than to a FOIP co-ordinator for processing.

"I have concerns with this practice," Taylor said, adding that the senior financial officer "has not been delegated any duty, power or function under section 85 of the Act, and does not have the authority to review or approve decisions about access, nor to be involved in the access response process."

Despite this, Taylor found the senior financial officer was one of three individuals who approved FOIP requests before they were released. The approval processes for the FOIP requests Taylor examined also took weeks when they should have taken a matter of days.

Deputy premier Sarah Hoffman said she was "disheartened" to read Clayton's criticism. She said the government accepted the reports' recommendations and was already implementing some of the main ones, specifically by hiring more staff in Justice and Executive Council.

"I think a big part of it is putting your money where your mouth is, and make sure you have the staff there to support the work that needs to be done to fulfil the requirements under the law and [our government's] commitment to transparency," she said.

A Justice spokesperson said the ministry now has 14 FOIP staff, up from 10 in 2015, and it plans to hire four more.