MacLauchlan Government Refuses to Produce Records in Access Request

David Keedwell
David Keedwell, Deputy Minister of Economic Development and Tourism

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.

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AddressJanuary 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:

Quote from Keedwell Letter.png

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:

Foipp Quote 1Section 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).

Foipp Quote 2

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.

Sincerely,

Kevin J Arsenault, PhD

 

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5 Responses to MacLauchlan Government Refuses to Produce Records in Access Request

  1. Windmill says:

    Shame on you, Kevin, for undressing this government in public. We are down to the underwear and it’s not getting any prettier.

  2. Checker says:

    Maybe then there will be transparency. The one thing that the information being released reveals is just how manipulative and treacherous our political leaders can be. So much disrespect.

  3. Barb MacFarlane says:

    Government should be squirming by now, but it seems they still think they can pull the wool over your eyes, and the public through you. I am just amazed at your tenacity. Thank you for all this hard, and time-consuming and expensive work exposing this government”s deception.

  4. fromawaysite says:

    Kevin, Thank you for all your hard work and tenacity, especially the work that should be accomplished by a free press. Time can be a good indicator and measuring stick that allows a keen eye to evaluate a series of events, that have led to a conclusion that requires further documentation and oversight into the government elected by the people of Prince Edward Island.

    This I do know! Private business and companies that have shareholders would not last 5 minutes operating, functioning in the way that the PEI government’s fiduciary responsibility is handled.
    Having worked in a fast-paced corporation interacting with management and worker bees, everyone understood that rules that were laid out by the company were put in place for a reason. Customer satisfaction, profit, employee retention, provide a stable platform for benefits & amp; pensions.
    The fact that profit, investment, and the use of those funds on all levels had a tremendous oversight, with severe consequences for those that used business practices not within company guidelines. The common practice was resign or face criminal charges. And it did not matter who, or what your position was in the company.

    Having said that, it would appear that tax dollars from the people of PEI have been, mishandled by present and past employees . Just the fact that an employee can violate written procedures and still take a paycheck , pension and benefits warrants investigation and consequences. But after seeing the fallout of Motel Gate , PNP shutdown , lets me to see just how deep the problem has become on PEI.
    Ray Fox

  5. Anonymous says:

    Accountable and transparent…..

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