Access Denied

How the government of Alberta obstructs requests for public information

By Paul Haavardsrud

Don Scott is late. He’s supposed to be at a Holiday Inn off Deerfoot Trail, but he might be caught in traffic. Maybe the late spring weather got him. It’s a rainy day and Calgary drivers aren’t built for wet roads.

It might also be a metaphor. In the 2012 election, Premier Alison Redford vowed to bring the inner workings of Alberta’s government into the light. Voters around the world are well used to such campaign-trail rhetoric. Transparency! Accountability! Open government! But changing the culture of an established bureaucracy, not to mention the modus operandi of career politicians, is easier said than done. Redford came out of the blocks running. A month after winning she created a new department, the Ministry of Accountability, Transparency and Transformation. To lead the charge, she tapped Scott, a lawyer and rookie MLA from Fort McMurray-Conklin.

Scott’s start, at least on this day, is less auspicious. A handful of people are clumped together in a room full of empty tables, waiting. Scott is halfway through a 12-day provincial tour, part of a review of Alberta’s Freedom of Information and Protection of Privacy Act, or FOIP. Most of these sessions are designed for the public, but this one is specifically for journalists. The turnout isn’t promising. Four members of the media are here—a pair from Shaw Cable and two from this magazine. An interest group has sent a representative, and a few concerned citizens have come out.

Once Scott arrives, he dutifully delivers his spiel on the FOIP Act review. Other presenters do their bit, questions are fielded, there’s some milling around and then it’s back out the door and into the rain. All told, Scott’s summer barnstorm across Alberta drew about 150 people. The online portion of the FOIP consultation, which lasted roughly six weeks, garnered 400 responses and another 30 written submissions.

In theory, Alberta’s disclosure law says government is a caretaker of information that belongs to citizens. In practice, however, those that actually seek information under the FOIP Act—journalists, opposition MLAs, watchdog groups, academics and others invested in keeping tabs on our leaders—say the system also has built-in features that allow for as much obstruction as access.

That politicians can be unscrupulous is, sadly, a given. Conflicts of interest, illegal donations, influence peddling, Mike Duffy and Nigel Wright, Pamela Wallin, Mulroney–Schreiber, Shawinigate—the list goes on. A legislated right to know what takes place behind closed doors can help bring skeletons into the light. Better still, the mere presence of a strong disclosure law can deter corruption before it happens, curbing the number of skeletons hidden in the first place.

The right to know what government is up to is considered a pillar of democracy. The job of upholding democracy, it bears noting, feels out of place amidst the bad coffee and free plastic pens of a Holiday Inn. But if Redford and Scott are sincere in their pledge to openness, public consultation is just the beginning. Much needs to be done to overhaul a FOIP system that stacks the deck in favour of opaqueness.

Secrecy, Power and Transparency share a long history. The Roman historian Tacitus used the term arcana imperii to describe the clandestine approach used by emperors to maintain authority. The idea of arcana imperii was taken up by Renaissance philosophers who saw secrecy as a tool used by their own monarchs to consolidate power. The tide began to shift during the Enlightenment. In 1766 Sweden adopted the world’s first freedom of information act. Drafted by Anders Chydenius, a learned priest from a hinterlands parish, the law’s Swedish name is offentlighetsprincipen, or the “principle of publicity.” Before Chydenius, any writing about the affairs of Swedish state was banned.

The thinkers who shaped the early days of democracy understood the inherent political tension between transparency and secrecy. In 1822 James Madison, who penned the first drafts of the US Constitution and the Bill of Rights, wrote that “a popular Government, without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors must arm themselves with the power which knowledge gives.”

Access to information in a modern sense is relatively new. The US adopted the Freedom of Information Act in 1966 following years of public pressure. The groundbreaking legislation served as a model for a handful of other countries, which implemented disclosure laws over the next few decades. Canada waited until 1982 to adopt its Access to Information Act. The fall of the Iron Curtain in 1989 saw a spike in the number of freedom of information (FOI) laws on the books. Now, more than 90 countries have some form of disclosure legislation. Among Canadian provinces, Nova Scotia blazed the trail, implementing its Freedom of Information Act in 1977. New Brunswick followed a year later. Alberta didn’t adopt its FOIP Act until 1995. That still beat Prince Edward Island, which took until 2002 to proclaim legislation.

Alberta’s FOIP Act covers a lot of ground. It deals with protection of privacy: what information can be collected about citizens, who uses it, and for what, and how it can be disclosed. It also grants Albertans the right to information held by public bodies—government ministries, school boards, municipalities, police and others.

In its first General Assembly in 1946, the United Nations called freedom of information a fundamental human right. In 1995 the UN further explained: “Freedom will be bereft of all effectiveness if the people have no access to information. Access to information is basic to the democratic way of life. The tendency to withhold information from the people at large is therefore to be strongly checked.”

If governments are indeed hard-wired for secrecy, then freedom-of-information legislation can be thought of as a counterbalance. Information gives citizens the tools to scrutinize government decisions, to know what questions to ask and to make educated decisions at election time.

Alberta is one of the worst FOIP jurisdictions in the world… Loopholes provide enormous wiggle room.” —Centre for Law and Democracy

How does Alberta’s FOIP system stack up to other places? Not well. Each year, the media industry association Newspapers Canada issues report cards that compare the quality of disclosure regimes in Canadian jurisdictions. In 2012 Alberta received a B for the speed with which FOIP requests are processed, but a D for its completeness of disclosure—the third-lowest grade in the country. The Centre for Law and Democracy, a non-profit organization based in Halifax, found similar results in its 2012 study, which looks at 61 indicators of transparent regimes. Alberta scored 53 per cent, tying for last place among Canadian provinces and 55th in the world, behind Colombia and Mongolia but just ahead of Angola and Thailand.

“Certainly, I’m not very happy that Alberta’s law did as poorly in those studies as it did,” says Jill Clayton, Alberta’s Information and Privacy commissioner. “I think there’s a lot of room to improve.” Clayton became Alberta’s third privacy commissioner in early 2012. Her job deals with all things FOIP in the province. If a FOIP user feels a request was handled improperly, for instance, the appeal ends up on Clayton’s desk. Experts say an empowered official acting at arm’s length from government differentiates transparent regimes from more secretive ones.

Alberta having a FOIP Act and a privacy commissioner puts it ahead of places that don’t. Legislation, though, only goes so far. “A law is only as good as its implementation,” Clayton says. “You can have the strongest law in the world and not have the resources or the political will to implement it properly.” Alberta’s shortcomings when it comes to freedom of information, as Clayton suggests, can be split into three areas: the legislation itself, how the law is implemented and political will.

What many in government don’t understand is that they don’t own the information. It belongs to the public.”
—Charles Rusnell, CBC Edmonton

No FOI legislation allows citizens access to everything. Some information, whether personal or from a public body, must be confidential. It’s easy to understand, for instance, why a person’s medical history shouldn’t be available to just anyone. Alberta doesn’t have nuclear weapon launch codes, but if we ever do, we’d best keep them beyond the reach of a FOIP request. Information laws attempt to balance the competing interests of privacy and availability through a mechanism known as “exceptions to disclosure.” Alberta’s FOIP Act contains a long list of exceptions. Information may be withheld if it’s deemed harmful to public safety, protected by privacy laws or would hurt the business interests of a third party (e.g., terms of contracts signed with government). But exceptions can also be used to keep information hidden from public view, even if doing so violates the spirit of the law.

Alberta’s FOIP Act contains an exception, for instance, that allows cabinet ministers to keep all manner of records—briefing materials, meeting minutes, emails—away from the public. The idea is to protect the decision-making process, allowing for frank discussions among officials. What’s lacking, though, is an obligation to prove how the information, if disclosed, would harm the public interest. Without such a test, this exception can be used as a catch-all that allows officials to withhold almost any information. The Centre for Law and Democracy is unequivocal in critiquing what Alberta puts out of bounds, noting the province is “one of the worst jurisdictions in the world with regards to its treatment of exceptions. Together, these loopholes ensure that the law cannot serve as a proper tool of governmental accountability, as they provide an enormous amount of wiggle room for recalcitrant public officials who would seek to avoid disclosure of embarrassing information.”

Alberta’s FOIP Act may also be overridden by so-called paramountcy provisions contained in other legislation. Such clauses carve chunks out of the FOIP Act, putting information beyond its reach. Alberta’s law is trumped by more than 35 paramountcy provisions. The Mines and Minerals Act, for example, contains a clause that excises information about royalties from the disclosure law. The rationale behind the exclusion is to protect the competitive interests of oil and gas companies. The clause, though, also prevents Albertans from gaining insight into the billions in royalty dollars collected each year from resources they ostensibly own. Throw enough paramountcy provisions at a law and experts say even the best legislation will be effectively neutered.

In his review of the legislation, Scott says everything is on the table, including exemptions from the Act. “We’re going to be looking at each exemption,” says Scott. “We’re asking: Does it make sense for Albertans?” Scott has enlisted five experts on freedom of information to help, in part by examining policy elsewhere. Once finished, Scott says, this province’s legislation will measure up to any in the world. Not everyone is as hopeful. Laurie Blakeman, MLA for Edmonton-Centre and Liberal opposition house leader, is particularly skeptical of Scott’s promise. In 2010 she joined an all-party committee that presented 24 recommendations to the legislature following a nearly year-long review of the FOIP Act. None were acted upon. “Now we have a new minister doing a new review,” Blakeman says. “When I asked him, ‘Explain to me why you would repeat this effort all over again,’ he couldn’t.”

Scott has heard the knocks on his legislative review, as well as the criticisms about Alberta’s approach to disclosure. He disagrees with both. “I’m certainly aware that some people think there’s a culture of secrecy [in Alberta’s government],” he says. “My own experience with this government, and even with this FOIP review process, is that we’re getting information out.”

For Scott’s new legislation to become law, he’ll still need to get a bill past cabinet and his colleagues in the legislature. Even if that happens, the work still won’t be finished. Finding the political will to properly implement the law is another matter entirely.

The experience of using FOIP in Alberta is seldom described as user-friendly. “I can buy rare Belgian beers online with a credit card and have them in my house 24 hours later, yet I can’t make a FOIP request to my own provincial government without a pile of paperwork and pulling out cheques,” says Scott Hennig, a vice president at the Canadian Taxpayers Federation (CTF). “I’ll be the only guy buying stamps and cheques when I’m 80, because they don’t want to make this any easier on us. And if they could… figure out how I’d have to go hand-deliver a stone tablet, they would.”

Alberta levies a $25 charge for each FOIP request, a cost that may seem small, but one that Hennig says can deter potential filers. Some Canadian jurisdictions charge only $5 per request. Across the country, the CTF files upwards of 500 FOI requests a year. Whether governments should even charge to process FOI requests is open to debate. Hennig has discussed many of his concerns with Scott and is hopeful about the review. That said, he also wonders how a bureaucratic culture that’s taken an oppositional approach to information requests for so long might actually change. “We fill out a request, we send it and we basically plead with a public body to provide us with information, whereas we should be viewing it as no different than our right to vote,” says Hennig. “We don’t go to the polls and plead with the election worker to please allow us a ballot so we might vote, and then they have a decision to make on whether they’re going to give us one or not.”

A request for information begins by contacting the FOIP officer at a public body. The City of Red Deer has one, as does Alberta’s Ministry of Energy, Alberta Health Services and the Edmonton Police. Alberta has 903 FOIP coordinators in all. Sometimes information is sought from a big department that handles hundreds of requests a year, such as Alberta Environment. In other cases, “FOIP coordinator” is only one hat worn by a staffer in a municipal office that rarely sees a request.

Having hundreds of coordinators using individual discretion to interpret legislation, handle requests and redact documents would seem to jeopardize consistent application of the law. But regular FOIP users are generous in describing the work done by coordinators, saying most believe in the spirit of the law and do their best to get information out as quickly as resources allow. The more serious problems with FOIP often reside further up the food chain. For information to be truly free, the powers that be have to want it that way. In theory, FOIP staff are independent from the departments in which they work. In reality, political interference still happens.

Frank Work spent a decade as Alberta’s Information and Privacy Commissioner. Before leaving in 2011, Work saw FOIP requests stymied in any number of ways. “You can have a really good law, but human ingenuity being what it is, if there’s not the willingness to implement it, there are always ways to circumvent it. There are always ways to slow it down and delay it,” he says. “I defy anyone to come up with a law that will force good access to information on a public body that doesn’t want to do it.”

For a FOIP user, what happens behind the curtain is a black box. Once a request form is dropped in the mail, power shifts to the recipient. The system may well work as planned—a FOIP coordinator gets a request, finds the information and sends it out. Given higher stakes, though, Work says the flow of information can slow to a trickle, a tactic that can frustrate or even derail requests. Some deputy or assistant deputy ministers will even review requests that could be politically damaging, be it a conflict of interest or improper spending on the taxpayer’s dime. If a piece of information makes someone in charge uncomfortable, frontline staff are unlikely to pass it along anytime soon.

 

janfeb14_-access-denied_alberta-views-1

Don Scott, Associate Minister of Accountability, Transparency and Transformation: “I’m certainly aware that some people think there’s a culture of secrecy [in Alberta’s government].” (QMI Agency)

Legislation sets a 30-day window to respond to requests, following which a public body can ask for a 30-day extension. Once 60 days have passed, a department head may choose to withhold information by, for example, applying an overly broad interpretation to an exception. They must provide a reason for denying information, and the decision can be appealed to the privacy commissioner. Still, the bureaucratic back-and-forth doesn’t happen quickly. “A public body can refuse to give the time of day if it wanted to and that would force [a request] to wind up at the commissioner’s office,” says Work. “That would… add a year, two years, maybe even more to the process.” If information is time-sensitive and concerns, say, something that would be material to an election, stalling can effectively defang a request.

Delaying is only one tactic used to avoid disclosure. Cost is another. Beyond the initial $25 charge, processing fees can run into the thousands and even tens of thousands of dollars. The privacy commissioner can be asked to waive the cost on the grounds of public interest. These requests will sometimes be granted, but the experience of churning through the process is, once again, both frustrating and time-consuming.

Most Albertans will never file a FOIP request, but for those who do, the byzantine workings of government prove another hurdle to accessing information. Without an intimate knowledge of the type of information that exists, it can be hard to even know where to begin.

Pick something you’d like to know more about. Maybe you’re from Cold Lake and you’re curious about the oil that seeped out of Canadian Natural Resources Ltd.’s Primrose project last year. Maybe you want to know what CNRL told government. How do you start? Which department do you approach? What information do you want to find out? What questions do you ask? What wording do you use in your request? Have you a right to government email exchanges with CNRL executives? If the FOIP coordinator delivers a fee estimate that runs into the thousands of dollars, what then? And if you eventually get a box full of blacked-out papers, what recourse do you have?

FOIP should be no different from our right to vote. We don’t plead with election workers to allow us a ballot.” —Scott Hennig, Canadian Taxpayer Federation

Charles Rusnell has spent a career answering these types of questions. An investigative reporter with CBC Edmonton, he made his first FOI request in 1984 while still in journalism school. Since then he’s filed thousands more. (Full disclosure: Rusnell is a colleague at CBC.)

At any given time, Rusnell and his investigative partner, Jennie Russell, have several hundred requests on the go. They used FOIP to help break news that forced the dismissal of former AHS chief financial officer Allaudin Merali, whose expense report left citizens on the hook for hundreds of thousands of dollars in questionable claims. Their requests also informed the public that Premier Redford, when she was justice minister, took part in the decision to award a government tobacco-litigation contract—the largest legal action in Alberta’s history—to her ex-husband’s firm. Other conflicts of interest brought to light include those of Edmonton-Manning MLA Peter Sandhu, who lobbied ministers and government officials to change legislation that would benefit his struggling home-building company. Such success shows that Alberta’s FOIP system can work. That said, Rusnell and Russell spent years developing the institutional knowledge needed to navigate a system that can set people up to fail. “What we see every day in our work is still, within the government, a resistance and an unwillingness to be transparent,” Rusnell says. “What many of them don’t understand—or they don’t care to understand—is that they don’t own this information. It belongs to the public, we have a right to it. They’re simply the ones who keep the information for us.”

Rusnell seems alternately weary of the barriers he has to negotiate and angry that those roadblocks even exist. Part of the problem, he says, comes back to resources. “We talk to freedom of information coordinators all the time and I don’t give them a hard time about not meeting deadlines. They’re swamped,” he says. “They have so much work and they’re not properly funded.” Many departments, Rusnell says, believe in the spirit of the law and work hard to get information out. A lack of resources, though, is in itself a built-in obstruction to disclosure. A FOIP coordinator may need to dig through a patchwork of storage boxes, filing cabinets and computer systems to find answers. If Redford’s government is serious about transparency, it would commit to digitizing files and making databases easier to search. This would take resolve, but it would also lay the groundwork for more proactive disclosure and a truly open government.

As things stand, Albertans must make do with a status quo that puts the onus of keeping government honest on the shoulders of a few watchful groups. Michael Geist, a law professor at the University of Ottawa, is on the panel advising Scott’s review. Any scrutiny of access to information regimes, he notes, also puts into relief the customary role of the press as the fourth estate. “You need heavy, knowledgeable users who can use the system to bring greater transparency to the activities of governments… but we don’t need everyone using it all the time,” Geist says. “We don’t get everybody showing up to a press conference to ask the questions they have of an elected official. The media does it and then spreads the word.” The decline of traditional media in the revenue-crumbling age of online news augurs poorly for government accountability in Alberta. The CBC’s Rusnell and Russell may be doing yeoman’s work, but beyond them, few, if any, journalists in the province have the time or resources to make more than haphazard use of FOIP requests. The Calgary Herald and the Edmonton Journal, to name just two outlets, are shells of their former selves, both newsrooms gutted of copy editors, reporters and senior writers.

Thomas Jefferson is credited with saying the price of freedom is eternal vigilance. No matter how pleasant life is in Alberta—an affluent province nestled inside one of the world’s most democratic countries—it would seem unwise to become complacent about the laws that safeguard that comfort. When the virtues and pitfalls of democracy were still being mapped, thinkers such as Jefferson and Madison saw the power imbalance that arises when a select few know more than everyone else. When citizens place their faith in a democratic government, they accept this inequality; the right to information is government’s way of returning that trust. Decisions made in secret can be arbitrary or even corrupt. If no one knows, who’s to find out?

Don Scott hopes to complete his FOIP review and have new legislation in front of the house for the spring session. If not, he says, fall at the latest. A cynic could see his tardy arrival to the Holiday Inn back in the spring as a poor omen. Rather than overhauling vital legislation, the review may only be ticking the box on his boss’s campaign promise. Albertans, for their part, should hope he was just caught in traffic.#

Paul Haavardsrud is a CBC business reporter and a former reporter for Dow Jones, the Financial Post and the Calgary Herald.

 

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