The yawning black hole that can be P.E.I.'s access to information system

In October of 2020, CBC News filed a freedom of information request with the P.E.I. government seeking an investigation report from the Island Regulatory and Appeals Commission on the transfer of land between Brendel Farms and Red Fox Acres Ltd., a company controlled by members of the Irving family.

At issue: Had a Prince Edward Island law meant to prevent any one corporation or person from acquiring too much land been bypassed?

The minister of land at the time, Bloyce Thompson, took the unusual step of seeking an official opinion from P.E.I.'s privacy commissioner on whether the Brendel lands report could be made public.

The official verdict: It could, if a freedom of information request were made.

But on March 12, 2021, the province told CBC News a third party had requested a review from the privacy commissioner on the release of the information the public broadcaster had requested.

More than 22 months later, that review has not been completed, and the information has not been released to the public.

This is just one in a growing list of access requests that have been held up awaiting reviews — in this case and others, for years — with most of those reviews coming at the request of third parties.

Contractors often involved

While applicants aren't told who's behind a request for review when the information they ask for is delayed, in some of these cases it's possible — or even likely — the third party seeking a review is the group or corporation contracted by the government to provide a specific service.

In April 2022, CBC News requested copies of documents submitted by Island EMS to the Department of Health regarding the ambulance service. That request has been sent for a third-party review.

In June, CBC News asked for records sent to the Department of Education from the non-profit group operating the province's school lunch program. This was after the lunch program's website was taken down with little explanation in May. Thousands of Island families had been paying up to $5 per meal for their kids through the website.

The release of that information has also been delayed by a request for review by a third party.

'Information is squirreled away'

Ken Rubin is a researcher and freedom of information advocate who's filed thousands of requests all across the country, including in P.E.I.

He said P.E.I.'s Freedom of Information and Protection of Privacy Act needs to be updated so that groups that provide publicly funded services are included – rather than being considered outside parties with the ability to delay or even prevent information from being released.

"Information is squirreled away in places that is really public data… and it's no longer publicly available," said Rubin.

He said that creates "huge gaps" in terms of the information that's available, and causes unnecessary delays. And the advocate, who's watched the freedom of information system develop in Canada from its infancy, said that's the way it  was set up to operate.

"Governments have a way of not really wanting to be as open as they could be," he said.

Tool remains broken

Freedom of information requests aren't just tools for the media or political parties to use. They are crucial to maintaining an effective, functioning democracy.

They are also a critical tool the general public can use to hold a government accountable in its use of power and how it spends taxpayer dollars.

But the longer it takes to receive information, the less valuable that information will be when it comes to enhancing transparency and accountability.

More than a year ago, CBC P.E.I. published a story describing an access to information system in P.E.I. that was broken, based on a number of examples where it was taking too long for information to be released.

CBC News is still waiting for all the documents mentioned in that story 15 months later, including:

• The Brendel Farms report, requested 825 days ago;
• Information on the role former Charlottetown mayor Clifford Lee played when he was briefly employed as P.E.I.'s "housing czar," with a request for that information filed just after he left the post in the fall of 2019;
• From a request filed 1,570 days ago, any documents concerning an inmate who died while in custody at the Provincial Correctional Centre in 2018.

Not enough staff to review

It seems clear that one of the reasons for the delays is a privacy commissioner's office which is unable to keep up with the growing demand for reviews.

In her 2020 annual report – the most recent on record – Privacy Commissioner Denise Doiron described an increasing workload without a matching increase in human resources for her office.

The workload has continued to grow since then.

In 2018, the office launched 63 investigations under the FOIPP Act and the Health Information Act. In 2022, the number was 101.

The increase in the backlog of files is more alarming. The privacy commissioner's office started 2018 with 35 ongoing investigations underway. For 2023, the number was 136 – a fourfold increase.

In the 2022 provincial budget, staffing for the privacy commissioner's office received a $130,000 boost. The office advertised for two new positions earlier this month.

The cost of inaction

Access to information is important.

In 2010, a woman killed herself while an involuntary patient at Hillsborough Hospital. But that information only became public because someone (we do not know who) filed an access request.

And while a coroner's inquest was mandatory under P.E.I. law to look into the circumstances of her death and how future deaths might be avoided, no inquest was held for eight years, until 2018 — after CBC News reported on the matter.

In the meantime, in 2013, another person died by suicide at Hillsborough. The daughter of that woman was left to wonder if her mother might still be around had a timely inquest into the first suicide led to changes at the facility.

That is the power of freedom of information. It can bring to light not only the misuse of public funds in the form of boozy steak dinners — an important matter of accountability — but also in matters that could mean life or death.