Access delayed, access denied: Here's why P.E.I's information system is broken

This month will mark one year since CBC Prince Edward Island submitted a freedom of information request for a report the Island Regulatory and Appeals Commission supplied the provincial minister of agriculture in October 2020 on an investigation into Brendel Farms.

That 900-plus-page report, presumably, details how a member of the well-known New Brunswick-based Irving family was able to acquire 890 hectares of land without the sale going to cabinet for approval, as required under the province's Lands Protection Act. A previous application to purchase the land had seemingly been scuttled when the cabinet of the day said no.

Besides Agriculture Minister Bloyce Thompson, MLAs on two standing committees have seen the contents of the report, but the MLAs are sworn to secrecy and Islanders remain in the dark. 

In January, the province's privacy commissioner told the government it should release the report in response to CBC's request.

But in March, the government told CBC News that one of the businesses involved in the investigation had requested another review from the privacy commissioner, as is its right. Now there is no indication when the report will be released. 

"Access delayed is access denied," provincial Privacy Commissioner Maria MacDonald wrote in one of her decisions in 2012. She works as an adjudicator in the office of current commissioner Denise Doiron.

The waiting game

A year is a long time to wait for information, but some of CBC P.E.I.'s requests have been in the hopper much longer. 

CBC is still awaiting information on a death that occurred at the Provincial Correctional Centre on Sleepy Hollow Road in 2018, when the Liberals were in power. First the government refused to acknowledge any records existed. Then, when the privacy commissioner ruled in CBC's favour, the government responded by providing documents where almost every bit of information was redacted. 

The John Howard Society says in cases like this, information should be available to the public so citizens can judge for themselves whether everything possible was done to prevent or ease the passing of someone in custody. CBC has appealed to the privacy commissioner a second time on this file and is awaiting her decision.

In other cases, files have been delayed simply because the government failed to respond with the requested records in the time required under the Freedom of Information and Protection of Privacy Act. 

Lost requests

On more than one occasion, reporters have been told that, for one reason or another, their request somehow got lost in the system.

That's what happened with a CBC request filed in 2019 seeking files from the Department of Housing on former Charlottetown mayor Clifford Lee's brief stint as the province's housing czar. CBC is still waiting for that information.

That's also what happened with a CBC request from IRAC for information about corporate land holdings — made a few months after the request for the Brendel Farms investigation report. IRAC simply stopped processing the request until prompted by CBC months after the deadline. Now it's withholding information filed by 17 corporations because one of them asked for a review, even though the privacy commissioner said she could find no precedent for withholding information on the 16 others in this way.

'Deemed refusal'

Another request for briefing materials from the premier's office filed in February 2020 led to a request from the province to extend the deadline to respond until April 4. But no information was provided by that date, and there was no further communication on the file.

In August, CBC News asked for an update from the government office that processes most information requests, Access and Privacy Services. For weeks, APSO didn't respond to emails or phone messages. Then in late September, the briefing notes were finally provided.

A second request into the handling of the first provided no insight as to why the CBC was required to ask for the information a second time.

But that second request showed APSO had clearly indicated to officials in the premier's office they had been required to provide the documents by April 4, and failing to do so put the access request in the "deemed refusal" category, just as if the government had simply refused to provide the information.

Extensive redactions

No doubt there was some initial confusion one could blame on COVID-19 in the early days of the pandemic. Challenges with staff working from home perhaps led to the mishandling of some files.

But a pattern of failing to provide information continues. 

After many delays, a request for information on the February 2020 ransomware attack on P.E.I. government servers resulted in hundreds of pages of documents — with most of the information redacted.

Among the information severed from the files was the volume of data accessed by the hackers and the raw number of recommendations put forward by the government's IT service in response to the attack. The recommendations themselves were also redacted, but the government decided it could not even disclose how many recommendations were made under a section of the FOIPP Act that gives government the option of withholding information that "could reasonably be expected to harm the security of any property or system."

CBC News has requested a review by the privacy commissioner, which will delay any potential release of further information, as well as increase the workload and the potential backlog of files for the commissioner and her staff.

What seems to be missing from this back and forth is an understanding this information belongs to Prince Edward Islanders. Their personal information was obtained in the breach and they deserve to know as much as can possibly be shared about how the government is protecting their data from future attacks.

Promise of renewal

The volume of information requests filed by Islanders has been rising, as has the relative numbers of people who then appeal to the privacy commissioner, unhappy with how government has handled their request.

In 2017, one in 12 requests ended up being appealed to the commissioner. In 2019, that number was one in five.

In its latest throne speech in February, the Dennis King government promised to "embark on renewing the Freedom of Information and Protection of Privacy Act to provide greater public confidence and more accountability for government."

Past government reviews of FOIPP have provided a mixed bag of results. On the plus side, a recent review brought municipalities and post-secondary institutions under the legislation, providing avenues for Islanders to obtain information about important institutions.

On the other hand, the results of a 2013 review of the act were made public only after the Green Party requested them five years later under freedom of information. 

"You just have to let the irony of that sink in a little bit," said the leader of the Green Party at the time.

The first stated purpose of the FOIPP Act is "to allow any person a right of access to the records in the custody or under the control of a public body subject to limited and specific exceptions." But too often, the Prince Edward Island government is failing to meet the requirements of the Act, or using those "limited and specific exceptions" to hold information back. 

Changing the Freedom of Information and Protection of Privacy Act won't necessarily make it function better.

The decision on what to release or not to release resides with the deputy minister in each government department. Those deputy ministers in turn are directly answerable to the premier.

Improving how freedom of information works on P.E.I. ultimately would have to start at the top.