MacLauchlan Government Refuses to Produce Records in Access Request
Yesterday, [Sunday, January 6, 2019], I submitted a letter to the Information and Privacy Commissioner, Ms. Karen Rose, requesting a review of a recent decision made by the Deputy Minister of Economic Development and Tourism – Mr. David Keedwell – regarding an Access to Information Request seeking certain e-gaming records from his department which I submitted last October, 2018.
Keedwell didn’t actually tell me he was refusing to give me e-gaming records based on legitimate legal grounds which may exist in the FOIPP Act. His response didn’t mention that he was withholding records that he had an obligation to provide to me at all: in fact, he made it sound like he was providing me with all relevant records when he said, “…we are providing access to the records.…” as if to say “…to ALL the records.”
Although I received that response from him on December 12, 2018, I only became aware that I’d been hoodwinked yet again by a senior bureaucrat in the MacLauchlan government last Friday (January 4, 2019) when I obtained a copy of new court documents filed in the PEI Supreme Court by CMT President Paul Maines.
A key Exhibit in those new court documents – Exhibit 112 – contained a number of government records which clearly fell within the scope of the request for e-gaming documents which I had submitted to Keedwell last October, every one of which were withheld from me, without mention, against the law, and without any explanation. One can only assume that Keedwell figured I’d never be any the wiser about his decision to remain “mum” about those documents, and of course, if it wasn’t for the CMT lawsuit, Paul Maine’s recent filing, and a bit of serendipity, he would have been absolutely right: I never would have been any the wiser.
This blatant refusal to provide me with government records to which I am legally entitled represents yet another in a long string of examples of how the MacLauchlan government is shamelessly continuing to dishonour its pre-election promise to be open, transparent and accountable with Islanders.
I’m providing a copy of my letter to the Information Commissioner seeking a review of this matter because I want all Islanders to know that our Access to Information System is seriously broken and needs to be fixed…something I WILL DEFINITELY DO if I’m elected the leader of the PC Party and become the next Premier of PEI.
I have already put forth a True Transparency policy outlining both the systemic “problem” with our Access to Information legislation and system, as well as a general outline of my proposed “solution” .
Although you’re probably just as sick of “reading” about this problem as I am investigating and “writing” about it – I believe it is important that I document how my repeated efforts to address and resolve these incidents are not only legally-complicated, costly and incredibly time-consuming, but fail to result in fair and satisfactory outcomes, even when they are proven to be clear violations of the FOIPP Act.
Maybe it will be different this time with this formal request for a review of this particular matter by the Information Commissioner. One can only hope. I’ll let you know whatever the outcome when it’s eventually “resolved” – but don’t hold your breath…it will likely not be anytime soon: I suspect it’ll be a few months from now at least.
Note: I have uploaded the PDF documents referenced within – and attached to – my submitted request to the Information Commissioner for a formal review of Deputy Minister David Keedwell’s decision on my 2018-287 – EDT request for Access Documents with “links” so you can also read them.
January 6, 2019
Re: Access Request 2018-287 – EDT
Dear Ms. Rose,
On October 31, 2018 I submitted an Access to Information Request to Innovation PEI [See attached] asking for:
All records, in any and all formats, electronic or otherwise, of Brad Mix either sent to – or received from – Paul Jenkins, or make mention of Paul Jenkins, from January, 2011 to July, 2011.
The department failed to respond to my request within the 30 day period as they were required to do, as per section 9 of the Act; and although section 9(2) stipulates that such refusal is to be regarded as “..a decision to refuse access to the record,” after I inquired via telephone why I had not received a response within the 30 days, as required by the Act, I was told a response was forthcoming, so I took no action at that time.
On December 12, 2018, I received a signed decision letter from the Deputy Minister of Economic Development and Tourism, David Keedwell, [See attached], stating:
I assumed from the words “…to the records” that I was being provided access to all existing records falling within the scope of my request.
Keedwell’s letter did not provide any information regarding the measures employed to search for records, nor did the response indicate that records were located that fell within the scope of my request, but I was being denied access to them as per one or more provisions of the Act.
It is my understanding that records can sometimes be located that fall within the scope of a request, and the Head of the Department can withhold information about the existence of such records, but only if the conditions outlined under section 10(2) of the Act are met, which reads:
Section 16 being “Information harmful to individual or public safety;” and section 18 being “Disclosure harmful to law enforcement.”
Aside from the issue of whether I was not informed about the existence of records falling under the parameters of my request for the reasons outlined under Section 10(2), the response letter failed to inform me of my right to submit a request to you asking for a review of the department’s decision regarding my request, as per section 10(1)(c)(iii), and may have also have failed to informed me of the reasons why access to records falling under the scope of my request were refused, as per the legal requirement to do so found under section 10(1)(c).
As you can see from the attached response letter, Mr. Keedwell failed to provide me with information concerning my right to ask for a review of the department’s handling of my request, as per section 10(1)(c)(iii). Nonetheless, I am aware of my right to ask for a review, which I am formally doing by way of this letter.
The nature of my request for a review
Section 60 of the FOIPP Act reads as follows:
Right to ask for a review: (1) A person who makes a request to the head of a public body for access to a record or for correction of personal information may ask the Commissioner to review any decision, act or failure to act of the head that relates to the request.
My request for you to review the “…decision, act or failure to act of the head that relates to the request,” is based on a concern that I was not provided with all the records that exist falling within the scope of my request, for which there are no legitimate legal grounds justifying the withholding of those records.
That “copy of the records” [See attached] which I received contained just four pages, with just one ‘calendar record’ notation that looks more like redacted meta-data from an email header than a calendar record. At any rate, each of these four ‘documents’ refer to a meeting/event which should have generated other government records; however, none were provided to me. I am therefore asking that you investigate whether other records related to these four meetings/events exist, or existed at one time but were not retained and archived as required under provisions of the FOIPP Act and/or Archives and Records Act.
On January 4, 2019 Capital Markets Technologies (“CMT”) filed a Responding Motion in the Supreme Court of Prince Edward Island (Court file #S1-GS-27636). I was able to access a copy of the affidavit of Paul Maines, President of CMT.
I have attached Exhibit 122 of this affidavit as it deals with a similar FOIP request which CMT’s private investigator, Bruce MacDonald, filed back in 2014 requesting records related to Brad Mix and Paul Jenkins, (DIAL 2014-06). Exhibit 112 reveals that CMT has records – and has recently received additional records – that I did not receive, but should have received, as part of my FOIP request (2018-287 EDT).
The records contained in Exhibit 112 clearly fall within the parameters of my FOIP request, so I am requesting that you therefore review this matter to determine (1) why I did not receive copies of these records contained in Exhibit 112; (2) whether there are additional records that neither CMT nor I have received falling within the scope of my Access Request; and (3) as noted above, whether there are (or “were”) records associated with the calendar date records that were provided to me, as well as the calendar records contained in Exhibit 112.
I look forward to hearing from you.
Kevin J Arsenault, PhD