FOIP changes imminent, internal government emails show

Alberta Premier Jim Prentice’s spokesman and Service Alberta Minister Stephen Khan gave conflicting stories Thursday about a major change to freedom of information that critics say will weaken government accountability.

Mike Storeshaw, Prentice’s communications director, told CBC News “there is no proposed change to FOIP policy at this point in time.”

An hour later, Khan told legislature reporters a change in freedom of information (FOIP) policy is in the works, but has not yet been finalized. The scrum with Khan was recorded and posted online by The Edmonton Journal.

If journalists don’t have an incentive to file those kinds of requests ... where is that information then going to come from?-Journalism professor Sean Holman

But internal government emails obtained by CBC News show not only is there a proposed policy change, but planning for it is well underway. In fact, there was to be a ‘“dry run” today - Feb. 20 - of a plan to post documents from all general FOIP requests online every Friday.

“We have just received further information regarding the posting of FOIP request response packages on the open data portal,” Melissa Sadownik, access and privacy advisor for Service Alberta, wrote in a Feb. 12 email to all government FOIP co-ordinators.

“The direction from the (deputy ministers) is that they would like to see an internal ‘dry run’ occur on February 20, 2015.

“In this way, we can test procedures and the (deputy ministers) can review what the posting of FOIP response packages will look like before it goes live.”

As CBC News first reported Thursday, sources said FOIP co-ordinators from all government departments were told in a Feb. 3 meeting that Prentice had personally ordered the government to start publicly posting all documents requested through general freedom of information​ requests every Friday.

Storeshaw insisted there had been “no directive from the premier of Alberta to change FOIP policy.”

Disclosure opposed

Journalists, opposition parties, watchdog groups, unions and others oppose the release of documents they might seek through FOIP, because it will eliminate their ability to exclusively capitalize on the information and will eventually deter them from using FOIP.

The sources said FOIP co-ordinators were blindsided by the announcement and immediately identified several problems with the new policy, but were effectively overruled. Several issues related to potential legal problems the policy change could create.

Khan told reporters Thursday no lawyer had been involved in the process.

But a Feb. 3 email, again authored by Melissa Sadownik, specifically identifies several legal issues including, “legal risk for inadvertent release of third party business or personal information” and potential copyright violations.

“Legal is looking into this to ensure we are not exposing ourselves to potential lawsuits,” Sadownik wrote. “All records will need to be reconsidered with this in mind.”

In a Feb. 12 email, Sadownik said “a legal opinion is forthcoming” on the issue of potential copyright infringement.

Sadownik’s Feb. 3 email also noted the fact that “no consultation has been done with the (Office of the Information and Privacy Commissioner.)”

Khan refused to directly tell reporters Thursday whether there had been any consultation with Information and Privacy Commissioner Jill Clayton.

Commissioner not consulted

In an interview with CBC News, Clayton said, “I would really like to be consulted on those specifics. I have a lot of questions.”

Khan suggested it was Clayton who recommended the public disclosure of documents requested through FOIP. Clayton said she supports disclosure but only when implemented in a way that respects the interests of various stakeholders.

“If this scheme is going forward, what I would want to see is that the government would be doing a privacy impact assessment,” she said. “I would like to see them doing an access impact assessment also.

“I would be concerned about potentially the impact of a program like this on those users of the FOIP act, like media, or members of the opposition.

“I have certainly heard that a simultaneous disclosure practice might be seen to be a disincentive to media from making FOIP requests.”

Khan referred to the fact that the British Columbia government now publicly releases documents requested through FOIP.

B.C. discloses documents

However, there was public consultation before that policy was implemented and the Canadian Association of Journalists opposed the disclosure of documents sought by journalists through FOIP.

Mount Royal University journalism professor Sean Holman was a journalist working in B.C. at  that time.

Holman said public disclosure of FOIP requests undermines a journalist’s ability to do original work and long-term investigations based on government documents.

He said the B.C. government’s policy ultimately deterred journalists from seeking documents through FOIP, and that such a policy would have a similar, chilling effect on reporters in Alberta.

“The reason why this is important for the public is that if journalists don’t have an incentive to file those kinds of requests, if they don’t have an incentive to actually do that kind of digging, where is that information then going to come from?” Holman said.