FOIP inquiry adjudicator calls for investigation of Alberta Justice

An adjudicator has urged the province's information commissioner to conduct an investigation into how Alberta Justice processed requests from CBC News and others related to the awarding of a controversial tobacco-litigation contract.

In an Oct. 24 letter, adjudicator Dulcie McCallum said she has asked commissioner Jill Clayton to investigate whether Justice wilfully:

• made a false statement to, misled, or attempted to mislead the commissioner;
• obstructed the commissioner in the performance of her duties, powers, and functions;
• altered, falsified, or concealed a record, or directed someone to do so, in order to evade a freedom-of-information (FOIP) request.

McCallum, the former FOIP commissioner for Nova Scotia, is conducting the inquiry on Clayton's behalf because the commissioner's office had a potential conflict of interest with the file.

The inquiry centres around documents requested by CBC News and lawyers for the tobacco industry related to the Alberta government's ongoing lawsuit against the tobacco industry and its choice of a legal consortium to conduct the litigation.

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

• Redford chose last-ranked legal consortium for Alberta's $10B tobacco litigation

Under the FOIP Act, if Clayton does decide to investigate, she will not be able to make a finding of guilt or innocence, or issue any penalties. Instead, if she determines there is enough evidence of a possible offence, she can refer the issue to special prosecutions to be heard in Alberta's provincial court.

Clayton's spokesperson, Scott Sibbald, said she is in the process of making a decision on McCallum's request. He said it is not known when she might make the decision.

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 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.

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 it 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.

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.

Wildrose says investigation needed

If Clayton accepts McCallum's advice, it will be the second FOIP investigation involving Alberta Justice in two months. In September, the commissioner launched an investigation into the department's "chronic delays" in responding to freedom-of-information requests.

After reviewing McCallum's letter, Wildrose democracy and accountability critic Jason Nixon said he supports an investigation. He questioned the NDP's commitment to transparency and accountability democratic values they campaigned on in the last election.

"They are the ones that have the ability to change this, and either they are not managing Justice appropriately or they are agreeing with the withholding of this information," Nixon said. "So they can't continue to blame this on the previous government."

CBC News sought a response from Justice Minister Kathleen Ganley. The minister's spokesperson, Veronica Jubinville, promised to respond but did not.

The inquiry continues.

@charlesrusnell @jennierussell_