Alberta information commissioner finds public interest in information often not considered

Alberta public bodies, such as government ministries, school boards, and municipalities, need to more often consider releasing information that is clearly in the public interest, the province's information and privacy commissioner says.

In an investigation report released Wednesday, commissioner Jill Clayton said more than half of the 87 public bodies her office surveyed said they do not have a policy or procedure for disclosing information under section 32 of the province's freedom of information act.

That section details types of information public bodies must disclose, regardless of whether someone has made a formal freedom-of-information (FOIP) request for the records.

Political parties, news media, and advocacy groups frequently make FOIP requests under provincial law to gain access to internal records that may serve to hold public institutions, including the police, accountable by exposing questionable or corrupt practices.

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Clayton's investigation found that generally, public bodies take seriously their duty to release information that relates to a significant risk of harm to the environment or public health and safety. But she said they often fail to consider whether other records meet the definition under section 32 of information that is "clearly in the public interest."

"Alberta's public bodies do not regularly turn their minds to disclosing information proactively when it is 'clearly in the public interest,'" Clayton said in her report.

"Public bodies cited several reasons for this, namely that it is difficult to discern between what information is 'of interest to the public' and what information is 'clearly in the public interest.'"

Clayton said she began her investigation in July 2018 to assess public bodies' compliance with their duties under section 32. She cited the ongoing public debate surrounding police forces' decisions to not publicly release the names of homicide victims.

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In her report, Clayton noted that the section 32 threshold for what is "clearly in the public interest" is a high one, and more stringent than other public-interest criteria under which public bodies waive fees for the processing ofFOIP requests.

But Sean Holman, a Mount Royal University journalism professor, said Clayton's report does not acknowledge that many public bodies specifically use FOIP legislation to restrict the release of information that is clearly in the public interest.

"I think overall what is most interesting about this report is that it shows public agencies across the province are cherry picking in terms of how they use the freedom of information law," said Holman, who is writing a book about the history of access to information in Canada.

"They are using to the fullest extent the censorship provisions in that law but they are not using their obligation and not respecting their obligations to actually release information in the public interest."

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Clayton said the failure of public bodies to recognize their obligations to release information may be due to limited guidance on what constitutes a compelling public interest.

"I don't think that this is an issue of limited guidance whatsoever," Holman said. "I think that this is an issue of the law being misused and abused by public agencies to serve their own personal and political interests.

"So the law which is supposed to be about openness is once again being used as a shield against accountability, and in really anti-democratic great ways that frustrates the public's right to know."