PC refusal to hand over documents stalls political interference investigation

The investigation by Alberta's information commissioner into alleged political interference in freedom of information is stalled because, contrary to its own law, the previous Conservative government repeatedly refused to hand over some of the documents she requested.

Commissioner Jill Clayton and her office say the government's actions have effectively neutered her powers as an independent officer of the legislature and could have profound impacts on access to information in Alberta.

• READ: Legal expert says Alberta Court of Appeal ruling sets 'dangerous' precedent for transparency, accountability

"It is appalling that (the Conservative government) would attempt to stop the commissioner's office from conducting her investigation," Wildrose MLA Jason Nixon said.

"But it really does not surprise me to hear that they might have used political influence to stop an investigation into them using political influence," said Nixon, who is the official opposition's democracy and accountability critic.

Court documents obtained by CBC News detail a protracted battle of wills between Clayton, struggling to exercise her mandate, and the government of former premier Jim Prentice, just months away from the 2015 general election.

Ottawa lawyer Michel Drapeau, an expert in freedom of information law, said the dispute is unprecedented and represents a troubling "show of force" by the former government.

"It is democracy at its worst," Drapeau said. "(The freedom of information commissioner) was acting under a clear mandate, a legislative mandate, and also a statute that tells her she has to conduct an investigation."

The dispute is now in the public realm because the Prentice government took the rare step of seeking a court judgment to dismiss Clayton's orders to produce documents.

Clayton declined to comment because the matter is before the courts.

Political interference allegations

In May 2014, Clayton announced an investigation into whether there was improper political interference in the freedom of information (FOIP) process.

A month earlier, the Wildrose had released a leaked email which showed former Conservative MLA Thomas Lukaszuk, while deputy premier, directed press secretaries to "gather information about active FOIP requests which have the potential to generate media, session, political, or other reputational issues for the government."

The court documents show Clayton's office sought records from all 19 ministries, including Executive Council, which includes the premier's office.

When Clayton received the records, however, many were redacted - some entirely. The government claimed the documents' contents were subject to solicitor-client privilege and therefore could not be disclosed. But a government lawyer gave no explanation why that was the case or what information, generally, the documents contained.

Clayton's office responded by issuing formal orders to produce documents to 13 ministries. The notice to Executive Council included a sharply worded letter to Prentice.

"I find it necessary to take this extraordinary step because most of the ministries are not providing me with complete information for this investigation," Clayton wrote.

"Instead, the ministries are treating me as if I have made an access to information request, and are redacting information from the records that they are providing to me," she continued. "Redactions of records provided as evidence in an investigation under the FOIP Act are unprecedented and unacceptable."

Government threatens court action

Now former justice minister Jonathan Denis responded to Clayton on behalf of all the ministries. Denis cited a case before the Alberta Court of Appeal involving the University of Calgary. It related to whether Clayton, as commissioner, could order a public organization - such as a government ministry - to produce records it claimed were legally privileged.

• READ: Legal expert says Alberta Court of Appeal ruling sets "dangerous" precedent for transparency, accountability

Denis asked that Clayton's orders be held "in abeyance," despite the fact provincial law required the ministries to produce the records within 10 days. He ended the letter to Clayton with a vague threat to take her to court if she refused.

Clayton refused. In a letter to Denis, she pointed out that the government had cooperated with the Office of the Information and Privacy Commissioner for 18 years.

"However, in the last 18 months or so, I have observed a disturbing trend of the government public bodies' refusing to allow either me or my staff to review records, and forcing me into the courts to get records to perform my functions," Clayton wrote.

"It now appears that it may be the government's preference and intention that I be forced into the courts in each instance of an investigation or inquiry under the FOIP Act that involves my reviewing or obtaining records for which a claim of solicitor-client privilege or some other kind of legal privilege has been made," Clayton told Denis. "I ask that the government be transparent with me about its intention and the basis for it."

Investigation stalled

The government eventually responded by filing an application seeking to strike down the commissioner's production orders, effectively stalling the investigation. The government's court application is not scheduled to be heard until February 2016.

Wildrose MLA Jason Nixon said Premier Rachel Notley should have ended the dispute by now and allowed the FOIP commissioner to complete her investigation.

"The NDP government has been in power for 100-plus days, and to me, what is appalling is that they still have not fixed this," Nixon said.

Cheryl Oates, press secretary to Premier Rachel Notley, said the premier has directed Justice Minister Kathleen Ganley to review the entire issue, including rewriting the FOIP legislation. Ganley is to report back to Notley, but there is no timeline for the review.

Former justice minister Jonathan Denis did not respond to a request for comment.

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