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A Dome of Secrecy Protects Smith’s Alberta Pension Push

I sought government documents on citizens’ views. I got further proof info access is broken.

Charles Rusnell 5 Mar 2024The Tyee

Charles Rusnell is an independent investigative reporter based in Edmonton.

The lengths to which Premier Danielle Smith’s United Conservative Party government has gone to manipulate public information and opinion about a proposed Alberta pension plan have been well documented.

Lesser known is that this misinformation campaign has been aided by unlikely allies: the provincial Freedom of Information and Protection of Privacy Act, or FOIP, and Alberta’s Office of the Information and Privacy Commissioner.

Attempts by some Alberta journalists to use FOIP to gain full access to internal government information about how citizens feel about the proposed pension plan and how the government chose to respond to that input have largely failed.

This failure is illustrative of just how useless Alberta’s FOIP act and the information commissioner’s office are when confronted by an anti-democratic government that withholds information to which the public has a legal right.

“This case reinforces the fact that freedom of information systems across the country and in particular in Alberta were never meant to serve the public interest,” said Sean Holman, a University of Victoria journalism professor and former investigative journalist.

“They were meant to protect the government. And what we now see is the use of the [FOIP] act as a shield against accountability, as opposed to an instrument of accountability.”

Let’s put the information being sought in perspective. The UCP proposal to establish an Alberta pension plan, or APP, would affect not only every Albertan, but every Canadian. According to every credible expert, the pensions of tens of millions of Canadians will be reduced if Alberta somehow succeeds in pulling out of the Canada Pension Plan, or CPP.

If you were going to rank government policy in terms of importance to the public, this proposed pension plan would almost certainly be in the top two or three in Alberta over the past 50 years.

The pension plan policy was obviously so contentious, so risky in terms of swinging votes, that Danielle Smith lied about the party’s intentions during the last provincial election. She categorically told voters that no one would touch the CPP and refused to discuss it as part of her party’s election platform.

But it was always the UCP’s intention to market an Alberta pension plan to the public. How else to explain that within months of the election, the government had issued a specious pension economic report, and launched a major communications campaign and survey in conjunction with an “engagement panel,” stacked with transparently biased members who behaved more like prickly salespeople than disinterested listeners.

And so within this context of government subterfuge, I filed several FOIP requests in November to the premier’s office in an attempt to find out what Albertans thought about the provincial pension plan before, during and after the election, and during the publicly funded marketing and so-called engagement campaign.

I also asked for all government responses to individual emails and letters of complaint about the APP, and leaving the CPP. I wanted to see if the government, even in its private correspondence with individual Albertans, would be truthful with them or if it would continue the political spin.

Obviously, if an overwhelming number of private citizens took the time to tell the premier they opposed an APP, then the public would know the UCP government clearly wasn’t responding to public demand for an APP. Instead, the public would know their government is pursuing a political agenda that ignores both sound pension economics and what the public views as its own best interest.

Delays and thousands of dollars in fees

Under the act, any public body, including government ministries, may charge both an application fee — at $25, Alberta’s is the highest in Canada — and fees for processing the request. The fees are supposedly intended to offset the cost and support the effective provision of FOIP services. Many jurisdictions charge nothing. They view access to information as a democratic cost.

While the Alberta government insists users should pay to access information that belongs to the public, it is spending hundreds of millions of public dollars to clean up wells abandoned by for-profit oil and gas companies.

The act also provides for processing fees to be waived if the information contained in the records being sought is deemed to be in the public interest. As a matter of practice, journalists ask for and are routinely granted full or partial fee waivers because the information they’re after will be used to inform the public.

In this case, it would be difficult to imagine information that would be more in the public interest. In fact, the FOIP co-ordinator for my main request told me that we both knew the information I was seeking was in the public interest. Nevertheless, she told me I was required to file a formal fee waiver request to satisfy her deputy minister, who would make the final decision.

The election was called on May 1 and the government ramped up its public engagement campaign in September. I had asked for all emails and letters to the premier from Jan. 1, 2023, to Nov. 14, 2023, which is when I filed the request.

That time frame would allow me to determine if the public opposed, or supported, the pension plan before, during and after the election, and whether the engagement campaign changed any minds.

Most importantly, I could report exactly what people were telling the premier in their own words.

In a separate request, I had also asked the premier’s office for records related to phone calls from the public about the pension plan. That should have generated at least some emails between staff or possibly a report. Instead, I received a six-page printout of calls with date stamps and a category that indicated if the caller was for or against an Alberta pension plan.

Of the more than 275 calls listed, only 17 were labelled as supportive of a provincial plan.

A lot of Albertans offered their opinion to the premier’s office through emails and letters. Communications and Public Engagement within Treasury Board and Finance assessed a $3,611 processing fee for more than 11,700 pages of documents.

Having been told by the FOIP co-ordinator that the records were obviously in the public interest, I expected a fee waiver to be granted.

And one was. But only for records from Jan. 1, 2023, to April 30, 2023, the day before the election started. The four months preceding the election likely would have generated few emails or letters since the pension plan was not yet fully on the public’s radar.

The government refused to provide an explanation for why it had arbitrarily chosen and imposed this time frame without any consultation.

The only plausible explanation was that it didn’t wish to provide the bulk of the records that would reveal the extent of the public’s opposition to the pension plan, even after the government’s publicly funded marketing campaign and panel town halls.

Had there been overwhelming support, I am certain the records would have been provided and free of charge.

The government would know that no media outlet these days, or independent journalist, has the financial resources to pay a fee of that amount. As the ministry was required to under the act, it told me that I could file a request for review of its decision to the information commissioner.

Which effectively stonewalls the request. Right now, the information commissioner office’s website states that it will take at least three to six months before the office even decides whether to conduct a review. And then, at least a year to investigate.

In reality, it takes much longer. I filed a request for review on April 22, 2022, in another case that involves a single document.

On Jan. 22, 2024, I received an email from the information commissioner’s office telling me a review was underway. But attached to the email was a letter in which the commissioner had approved an extension to complete the review by Feb. 29, 2024.

The office missed that deadline and I have yet to receive anything nearly two years after requesting the review — for a single document.

Even if the commissioner issues a recommendation that the fees should be waived, the ministry is not legally obliged to do so. The next step is an inquiry, which, in my experience, takes years.

So by assessing a large fee and refusing to waive it except for a period that will yield mostly irrelevant documents, the ministry has effectively ensured critical information on a major policy will never be made public.

Large redactions and snippets over substance

In a Hail Mary attempt to force the government to waive the fee and release the information within a few months, as opposed to a few years, I wrote to the information commissioner, Diane McLeod, and asked for an expedited review. In response, I was given a brief primer on how to file a review, which I have done dozens of times before, and an acknowledgment that the office is aware of its backlog of cases.

As I pointed out in my letter to McLeod, it makes no sense to request a review because by the time I get the information, the pension plan policy may already be law.

The ministry has released snippets of the same information I was seeking to others.

In December, Edmonton Journal reporter Matthew Black published a story based on a single day of emails to the premier’s office he obtained through FOIP. Black narrowed his request to a single day in order to avoid the application of a fee.

The single day was Sept. 22, 2023, the day after Smith’s government released a report it commissioned that claimed, incredibly, that Alberta was entitled to $344 billion from the Canada Pension Plan, more than half the CPP’s assets.

Of the 150 emails received that day, 138 expressed opposition to the Alberta pension plan and many doubted the credibility of the $344-billion figure.

Black’s story referenced emails to the premier’s office obtained through another FOIP request by political strategist Corey Hogan. Between Sept. 18 and Sept. 24, almost all of the 2,850 emails opposed an APP and many cited the strong performance for the CPP.

When Black sought comment from Finance Minister Nate Horner’s office, he received an emailed statement that claimed 76,285 people had attended the engagement panel’s town halls and another more than 93,000 people had completed its online survey — a survey, by the way, that didn’t provide an option to outright reject a provincial pension plan.

So Black filed a FOIP for the survey results. In mid-February, Horner’s Finance Ministry provided Black with hundreds of pages that were entirely redacted under Section 24(1) of the act. That section broadly allows information to be excluded if it constitutes advice, proposals, recommendations, analyses or policy options.

The ministry claimed the survey results couldn’t be released because they will be used for the panel’s final report.

A hobbled public info service

In late February, the Alberta Federation of Labour released a commissioned poll by Environics, a reputable pollster. It found that if a referendum were held on leaving the CPP to form a provincial pension plan, only 17 per cent of Albertans would vote in favour while 55 per cent would vote against. Another 25 per cent were undecided.

Tellingly, 52 per cent believed the Smith government was misleading them about the benefits of leaving the CPP. Twenty-seven per cent believed the government was being truthful.

Last week, I filed yet another request to the premier’s office for the emails and letters related to an APP from May 1, 2023, to the current date. I’m curious to see if the ministry will relent and provide the information that is clearly in the public interest or if it will again politically interfere in the release of information that the public has a legal right to.

But I won’t be filing a request for review because I don’t wish to participate in what journalism professor Sean Holman calls the “charade” perpetuated by the office of the information commissioner.

In 2018, former information commissioner Jill Clayton candidly admitted her office was at a “breaking point” and could no longer keep up with the “constant increase” in the number of complaints, particularly against government ministries. She said ministries grossly underfunded their FOIP units and her office was underfunded.

The situation has worsened since then. The Narwhal reported in October 2023 that the information commissioner had launched an investigation into the government’s systemic refusal to release records of its meetings with the Canadian Association of Petroleum Producers and other oil and gas lobbyists.

Also in October, the Globe and Mail reported the information commissioner’s office was investigating its complaint that the Alberta government had rejected 22 requests to 22 ministries. The requests were filed in 2022 for the Globe’s Secret Canada project as part of a national audit designed to measure each province’s performance on access and transparency. Only Alberta refused to respond.

“Freedom of information has always been a charade in Alberta and in Canada,” Holman said. “It has always existed to provide the appearance of accountability and transparency as opposed to actual accountability and actual transparency.

“Has it gotten worse in Alberta? Absolutely.

“The public should have a right to know. Otherwise, they can’t make good decisions in a democracy. And right now, it is in the best interest of the UCP to ensure the public doesn’t have information so they can’t make the best possible decisions. Because the best possible decisions might result in them being ousted from power.”

If you have any information for this story, or information for another story, please contact Charles Rusnell in confidence via email.  [Tyee]

Read more: Politics, Alberta, Media

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