FOIP commissioner orders investigation of Alberta Justice

Alberta's freedom of information commissioner has ordered an investigation into whether Alberta Justice wilfully attempted to mislead or obstruct the commissioner, or altered or falsified a record to evade FOIP requests.

In ordering the investigation, Jill Clayton accepted a recommendation from former Nova Scotia FOIP commissioner Dulcie McCallum, who is adjudicating an inquiry into how Alberta Justice processed FOIP requests from CBC News and lawyers for the tobacco industry.

• FOIP inquiry adjudicator calls for investigation of Alberta Justice

The requests related to the Alberta government's ongoing lawsuit against the tobacco industry and its choice of a legal consortium to conduct the litigation.

In a letter released to CBC News Thursday, Clayton said she has opened an offence file and retained Edmonton private investigator Don Christal to conduct the investigation.

Clayton said her office would usually contact special prosecutions at Alberta Justice at the outset of an investigation and arrange to meet with a designated Crown prosecutor.

But she said that in this case, "I do not see how my office can work with a designated Crown prosecutor from Alberta Justice since any potential offences may involve Alberta Justice, who would be in a conflict advising my office.

"Therefore, by separate letter, I have requested that the Minister of Justice and Solicitor General appoint an independent special prosecutor to work with my office."

CBC News has previously reported that the selection process for the tobacco-litigation contract was manipulated, allowing former Alberta premier Alison Redford the opportunity, while justice minister, to choose a legal consortium with which she shared close personal and political ties.

The consortium is led by JSS Barristers, a Calgary law firm with which Redford had close ties.

A senior partner from that firm, Glenn Solomon, represents Clayton's office in ongoing cases before the courts, which is why Claytonhad to declare a conflict of interest in the tobacco-litigation inquiry.

Although Clayton handed off the inquiry to McCallum to avoid a conflict, she said in her letter Thursday that she does not consider herself to be in a conflict "concerning this investigation, which relates solely to the conduct of Alberta Justice in responding to the access requests and its subsequent dealings with my office and Ms. McCallum. I will not be deciding any issue about access to records."

Request arbitrarily narrowed

McCallum asked for the investigation after identifying several issues with Justice's processing of the tobacco-litigation FOIP requests. CBC News and the tobacco industry also separately raised concerns in submissions to McCallum during the inquiry.

Although the tobacco-litigation inquiry began in June 2014, McCallum said Justice only disclosed in June 2016 that it had limited the time frame for the requests from both CBC News and the tobacco industry. CBC News, in its submission, stated that Justice had arbitrarily changed the time frame without its knowledge or consent, which is a breach of the FOIP Act.

"(Justice) has not provided any submissions on point, evidence or explanation with respect to the cut-off date of the records at issue despite repeated requests and opportunities to do so since its June 10, 2016 disclosure," McCallum wrote in her letter to Clayton.

McCallum also found the ministry sought and obtained permission by CBC News to exclude draft records from its request in a way that raises "potentially serious questions" about the department's purpose for doing so.

Justice offered to grant CBC News a fee waiver if CBC agreed to exclude drafts of documents, which the news organization was led to believe were voluminous. But an index of records provided by Justice in June 2016 showed just 22 pages of drafts.

Several reviews of tobacco-litigation contract

On several occasions recently, McCallum has expressed frustration with Justice for ignoring deadlines while attempting to impose its own deadlines on the inquiry, failing to provide documents when promised, and attempting to define what was, and was not, an issue in the inquiry.

An expert in freedom of information law, Ottawa lawyer Michel Drapeau, said he had never seen such disrespectful behaviour toward a provincial FOIP commissioner as had been displayed by Alberta Justice in this inquiry.

Alberta Justice Minister Kathleen Ganley has refused to comment on the conduct of her ministry in the inquiry.

With the announcement of this investigation, the awarding of the tobacco-litigation contract will have become the subject of at least four reviews.

CBC News first reported in November 2012 that Redford had personally awarded the potentially lucrative tobacco-litigation contract to a consortium with which she had close ties. In response to a complaint from the opposition Wildrose, Alberta's then-ethics commissioner Neil Wilkinson conducted an investigation in 2013 that eventually cleared Redford of conflict of interest allegations.

But in November 2015, CBC News reported the selection process for the tobacco-litigation contract had been manipulated and that Wilkinson had not been given access by Alberta Justice to all the relevant documents.

Ganley hired retired Supreme Court Justice Frank Iacobucci to review the case. Iacobucci confirmed Wilkinson had not had access to all the documents he needed to make an informed decision and recommended Alberta ethics commissioner Marguerite Trussler determine if another conflict of interest investigation was needed.

Trussler, citing a conflict, handed that task off to Paul Fraser, her counterpart in British Columbia, who said another investigation is needed, which he is to conduct. It's not known when that investigation will be completed.

The official Opposition Wildrose also filed a complaint over the handling of the tobacco litigation contract with the RCMP, who assigned an investigator to determine if a criminal investigation is warranted. The RCMP has declined to confirm or deny if an investigation is underway.

It's not known when this latest investigation will be completed.

@charlesrusnell @jennierussell_