The Alberta government is testing the limits of its freedom of information law by refusing to respond to nearly two dozen Globe and Mail access requests, a decision that the province’s Information and Privacy Commissioner called “very unfortunate.”
The Globe sent 253 freedom of information (FOI) requests to every department and ministry in Canada – provincial, territorial and federal – as part of a national audit designed to measure each jurisdiction’s performance on access and transparency.
The requests asked for multiple data fields from each ministry’s FOI tracking system, such as when requests were received and completed and whether any information was provided. Unlike every other jurisdiction in Canada, all 22 ministries in Alberta denied The Globe’s requests, claiming “no records” existed – even though the province uses a tracking system.
When pressed to explain this apparent contradiction, officials within the province clarified that while the information does exist, producing it would require them to “create a record,” which they argue is outside the scope of their obligations.
This is despite the fact that the province’s Freedom of Information and Protection of Privacy Act states that public institutions “must create a record,” provided it’s easily done and that the original exists in electronic format. (The government isn’t required to manually compile paper records into a digital spreadsheet.)
Alberta’s position on The Globe’s audit FOI requests is a striking example of the lengths that institutions will go to to avoid releasing public records and it underscores their willingness to challenge settled law.
Last week, The Globe published Secret Canada, an investigation into the country’s broken freedom of information regime. The project, which included the results of the national audit, revealed that public institutions from coast to coast to coast are routinely breaking FOI laws, through the overuse of redactions, the failure to meet their statutory timelines and the routine practice of searching for loopholes to deny Canadians access to their own information.
Four days before publication, The Globe reached out to Alberta officials with one last request for comment about their failure to produce data. The government requested a meeting between reporters and several high-ranking public servants.
Michael Hocken, assistant deputy minister of Service Alberta, said it would be possible to provide some statistics in Excel format for the story because they do use an electronic system for tracking FOIs. The Globe said it would accept any information, but it was too late to be included in the audit, which had taken more than a year to produce. At this apparent turnaround, The Globe asked about the “no records” claim.
“From our legal team’s perspective … it doesn’t exist exactly in the format that you requested. So therefore, it equalled a new record, according to our legal team,” said Maureen Towle, assistant deputy minister of Data, Privacy and Innovation.
In Alberta, the issue of what it means to create a record is dealt with in section 10(2) of the legislation under the “duty to assist.” This requirement comes into play with government data sets, where a requester may be interested in some fields but not others, because technically, downloading only select columns or rows in a spreadsheet produces a new document. Under the legislation, a public institution “must create a record” if the original is in electronic format, if the manipulation can be done “using its normal computer hardware and software and technical expertise” and if creating the record would not “unreasonably interfere with the operations” of the institution.
The bar to argue that producing a record would be an undue burden is very high, said Alberta’s Information and Privacy Commissioner, Diane McLeod, who oversees the office that handles FOI appeals.
Although she said she could not comment on the specifics of Alberta’s decision to deny The Globe’s requests, as she has not seen all the information, Ms. McLeod said the province’s position was disappointing.
“I felt it was very unfortunate,” she said. “I can’t speak to why they didn’t provide that information, but I think it is a poor representation for Alberta.”
Alberta’s appeals commission has dealt with the question of what it means to “create a record” many times, establishing precedents that are supposed to be binding for the province’s public sector.
One influential decision was released in 2011 and concerned the University of Alberta. In that case, the adjudicator listed examples of what it meant to create a record, including “electronically manipulating existing data to create a record consisting of only the data the applicant wants or that is organized in a manner the applicant wants.”
Ms. McLeod said that even if an institution has an issue with a requested format, they can’t just deny the request and close the file. The “duty to assist” in Alberta’s law – similar to other access laws across Canada – also states that institutions must “make every reasonable effort to assist” FOI requesters. She said if there was a concern about format, an FOI co-ordinator should have contacted the requesting reporter to talk about possible solutions and what could be made available.
After The Globe’s Wednesday meeting with Alberta officials, Andrew Hanon, the communications director for Service Alberta and Red Tape Reduction, elaborated further on the discussion in an e-mail: “Existing records can be provided under FOIP. … Your request was to provide a list in the form of an Excel spreadsheet or delimited text. As this is not a record that currently exists there were no responsive records to your request. As previously mentioned, we are working to see if we can provide some of the information you have requested as soon as possible.”
Some ministries and departments in Canada that received The Globe’s FOI request did refuse to supply the data in a machine-readable format. However, they still provided the information, either as a PDF or on paper delivered through the mail. No ministry or department took the position that they were not obligated to release the records in some form.
In May, 2022, when Alberta began declining The Globe’s requests, a reporter had many conversations with several FOI co-ordinators about the “no records” explanation and potential workarounds – up to and including a physical printout of the tracking system – but no ministry would budge.
One FOI co-ordinator, who The Globe is not identifying because it could threaten their job, said the decision to deny the Globe’s requests wasn’t made at the co-ordinator level. It was this person’s understanding that the administration was “testing new ways of interpreting section 10,” which is the duty to assist.
Last week, The Globe published the first large investigation of its Secret Canada series and also launched the website SecretCanada.com, a first-of-its-kind national database of FOI request summaries. That story, which included the audit results, determined that 24 per cent of FOI requests generated a “no records” response.
“Alberta sticks out like a sore thumb in your reporting,” said Jill Clayton, who served as Alberta’s information and privacy commissioner for 10 years, until 2022. “It’s really disappointing.”
While Ms. Clayton said she couldn’t comment on the province’s denials of The Globe’s FOI requests without knowing more about its reasoning, she was able to speak generally about Alberta’s claims that it wasn’t required to produce a record.
“Obviously, they have metadata about requests,” she said.
Ms. Clayton said that instead of digging in, the province should see this as an opportunity to improve its processes and become more transparent.
“The legislation is the minimum standard of what you must do. It doesn’t stop you from releasing information,” she said. “You’re supposed to try to help people, not just think, ‘Okay, well, I don’t want to release this. How can I get to that position?’”
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