Preamble

On February 6, 2020, the PEI Supreme Court will hold a Hearing on a Contempt Order Motion filed against the PEI government by Paul Maines.

Maines is claiming that the Department of Economic Growth, Tourism and Culture failed to comply with a PEI Supreme Court-enforced Order issued by the Information and Privacy Commissioner compelling the Department to release e-gaming documents.

The case concerns documents that Hon. Matthew MacKay’s Department staff – and his Deputy Minister, Erin McGrath-Gaudet – have been refusing to release to Mr. Maines, despite having no legal grounds to continue to withhold them, resulting in the Department being in breach of a Court Order. Ms. Gaudet signed the Consent Order and is the named “Defendant” in the legal action representing the PEI Government.

The PEI Government must file a defense not later than February 2, 2020, and I imagine lawyers are in the process of drafting that document at this very moment.

I also suspect Ms. Gaudet and Minister MacKay have no real idea of the legal quicksand they are currently standing in with this case.  I hope they are becoming aware of how they have been supporting a ridiculous and untenable response by the lawyers and APSO staff on this file, with illegitimate reasons being given for failing to release these records in accordance with the law, leading to the Court-enforced Order from the Information and Privacy Commissioner.

I believe what’s been happening on this file has been largely catching MacKay and Gaudet “off-guard” so I’m providing some background information for consideration with the hope that it might help to ensure that Minister MacKay’s Deputy Minister doesn’t swear to things in that Defence that may not be completely true.

Stu Neatby tweeted that he had received a response from the government on this matter, saying that he was assured that the government intends to give Maines all 1400 pages of records:

The Department is trying to sell the public the line that the only reason Maines hasn’t received the records to date is that the Department has been just too darn busy and there are too few resources. There’s no ill-intent or bad will; it’s purely an issue of too little time and too few resources.

The truth is that the lawyer drafting those letters and legal documents for the Deputy Minister’s signature has been continuously advancing bogus arguments and claims to justify withholding documents which are very deliberately being kept secret, and all indications are that if the powers that be (operating largely behind the scenes) have their way, those documents will be kept secret until at least the end of time.

Minister MacKay needs to get on top of this file immediately, and not simply trust the lawyer drafting the Defence for his Deputy Minister to sign and file on February 2nd.

Because this is now before the Supreme Court, the Judge has far greater powers than the Privacy Commissioner. There is no chance of using bogus grounds to withhold some of those 1400 pages of e-gaming documents, such as has often been used in the past. I am currently dealing with a Review of a FOIP with the Commissioner citing “client-solicitor” privilege when it impossible that such is in fact the case. I’ll explain more about that in a minute.

Because the PEI Government broke its own consent Order, I don’t see how anything else but the Judge ruling that the Government has to provide the 1400 pages immediately to Maines will be the outcome of this legal action.

Before taking a closer look at the “legal” basis upon which MacKay’s department has been arguing to withhold records on this case – and will likely continue to argue in the defense they will soon file – let’s review the history of communications between Maines and the Department on this file.

1.  A Chronology of Broken Promises to Produce Records

The chronological summary of communications below makes it clear that Paul Maines was misinformed and made to believe the Department was processing his FOIP request when they had done absolutely nothing at all. Maines was informed on December 20, 2019, that the Department had only released the documents to the APSO worker for processing on December 6, 2019! 

What that means is that EVERYTHING said about progress on processing the records since the FOIP was first filed in May was insincere.  See for yourself.

May 14, 2019: Paul Maines filed a FOIP request with the Department of Economic Growth, Tourism and Culture seeking the following:

May 23, 2019:  Paul Maines agreed to a plan presented by the Department with a projected response date of July 22, 2019.

July 30, 2019: Maines receives a letter indicating that the Department would be taking a further extension that would “...allow the Department of Economic Growth, Tourism and Culture to provide you with a complete response to your request, which will be ready no later than August 21, 2019. We will try to respond sooner, if possible.”

August 21, 2019: Paul Maines received no response or communication by the promised deadline, and filed a review with the Information Commissioner under section 9(2) of the FOIPP Act, where the public body is “deemed to have refused access to responsive records.”

September 20, 2019:  Maines receives a “proposal” from the Department requesting a further extension on this FOIP request – and three others with firm deadlines for the release of records. The Department acknowledged that they were breaking the law, and wished to sign a Consent Order that would bring them back into compliance with the FOIP Act, and allow additional time for processing. [remember – no processing had taken place because the records hadn’t been provided until December 6, 2019].

September 23, 2019: Maines agrees to a Consent Order formalizing a commitment made by the Department to provide him with responsive records in accordance with the FOIP Act, on or before January 7, 2020.

October 9, 2019: The Consent Order from the Information and Privacy Commissioner was first proposed by the Department, then agreed to by Maines, and was then executed and signed by the Commissioner, Maines and Ms. Gaudet. That Order included the following words from the Commissioner: “I require the Department of Economic Growth, Tourism, and Culture to respond to the Applicant in accordance with subsection 8(1) of the Act on or before January 7, 2020.”

October 9, 2018: Following the signing of the Consent Order, Maines filed the Order with the Supreme Court of PEI, receiving court file # S1-GS-28824.

December 18, 2019: Maines received an email from the FOIPP Coordinator handling the file for the Department asking him to contact her the following morning to discuss the Consent Order relating to this particular FOIP request.

December 19, 2018: Maines phoned the FOIPP Coordinator, as per her request the previous day, and was informed that the Department would not be meeting its January 7, 2020 deadline and needed more time to process the records. Maines requested that she email him to indicate how much additional time she was requesting.

December 20, 2019: The FOIPP Coordinator emailed Maines stating the following: “As we discussed, I received the responsive records fon December 6, 2019, after removing duplicate records, 1400+ pages remain to be processed. I confirm that third party consultations will be required. I also confirm that the public body intends to disclose any records not requiring third party consultation as soon as the records are processed, so as not to have you wait for us to complete the third party consultation requirements…..At this stage of processing, I know that I will not be able to achieve the deadline of a January 7, 2020 response…..I am not yet in a position to advise of an estimated date for response, nor an estimate of the number of records requiring third party consultations…..I will contact you on or before January 10, 2020, with this information.”

January 10, 2020: Paul Maines received an email from the FOIPP Coordinator Ms. Smith stating: “Good evening Mr. Maines…I have continued my review of the responsive records to this access request, approximately 400 pages. Based on my progress this week, I estimate a response to this request will not be possible before the end of February 2020.”   Maines did not accept the terms of any extension for the Department and filed his Contempt Order with the PEI Supreme Court.

2.  A few Comments on What You Just Read

To me, it is absolutely bizarre that the King government allowed itself to be summoned to the PEI Supreme Court on a Contempt Order for breaking its own FOIP Act, given the history of this file.

The idea that it takes months to process 1400 pages (not records) is ridiculous.  In keeping with nearly every other e-gaming FOIP request I’ve ever filed, I can only conclude there has been a very concerted effort not to release documents that should be released because of the information in those documents.

Think about it –  the Department admitted to breaking the law, and before having to face potentially far direr legal consequences from Maines, asked him to consent to a Court-enforced Order wherein they were legally obligated to provide him with the records by January 6th. He complied and consented to that arrangement voluntarily.

Then, after Christmas, they have the audacity to – in an “ah…it’s no big deal,” cavalier kinda way that feels incredibly rude to me – inform Maines that they’ve changed their mind and he might get them in another 2 months.

Any chance an attempt might be in the works here to push the release of these records past the upcoming Appeal Court Hearing in May?  That’s exactly what happened with a number of other FOIP requests for e-gaming records prior to the 4 days of Court last April that resulted in Campbell dismissing the case.

The most blatant example of that was my FOIP for Brad Mix records submitted in October 2018.  I endured months of “string-along” lies, then finally, in a review with the Information and Privacy Commissioner, learned that the Department knew the entire time there were no records, but just wouldn’t tell me that, and never mentioned that 2 entire years had gone “missing”.  The person doing the lying to me was the person that used to sit in Ms. Gaudet’s chair and is now a DM in another department, David Keedwell.

If the processing of those records was that much work – which I don’t for a minute believe, based on the time frame for processing similar or much bigger bundles of documents from past experience with FOIP requests –  the PEI Government could have easily assigned one or more workers on the file to avoid what’s fast-shaping up to be a National embarrassment.

3.  Solicitor-Client Privilege: The Government’s “Panic Room” & Escape Hatch

Apart from the upcoming Court Hearing on this FOIPP request, the Information and Privacy Commissioner is continuing with her review of Paul Maines challenge to the Department’s decision to withhold a number of records on several enforcement Orders.  The Department has been doing everything it can to keep certain information secret, and I suspect that they were intending to withhold some records when they eventually release those 1400 pages claiming “solicitor-client privilege”.

The lawyer working the file for the Deputy Minister knows that the Information Commissioner’s hands are tied when it comes to documents claimed on the basis of “client-solicitor” privilege. In fact, the Department doesn’t even have to give those documents to the Information Commissioner for review. The Department can claim solicitor-client privilege on anything they want, actually, and Ms. Rose has no choice but to accept the Deputy Minister’s word that they are solicitor-client privilege (which the DM will swear in an Affidavit presented to the Commissioner) EVEN when NONE of the three conditions in the “legal test” determining whether a legitimate case of “solicitor-client” privilege exists.  And in this case, none of those three conditions exist.

In this way, the PEI Government can get away with withholding records that contain information it doesn’t want to release, even when there are no legitimate grounds for doing so, and that’s obvious to anyone who understands the conditions that have to be met to legitimately constitute solicitor-client privilege.

I regard this as a major “loophole” in the FOIP Act that can easily be exploited by dishonest and unscrupulous lawyers. Whether MacKay and Gaudet realize that’s what’s happening in many instances, I honestly don’t know, but I suspect not.

Now that this case is before the Supreme Court, it may be that the Judge will want – or be asked – to take a look at those documents to see if any are “solicitor-client” privileged. If the claim is made, the judge might just say that they clearly don’t meet the Solosky test based on the nature of the documents and expose the scam to hide the information.  Consider the following from an article titled: Solicitor-Client Privilege and Demands for Disclosure

Solicitor-client privilege applies to communications:

1. 1. 1. between a client and a solicitor,
      2. made during the course of seeking or giving of legal advice, and
      3. which are intended to be confidential by the client and the solicitor.

Keeping in mind how ALL of these three conditions must be met, not just one or two, consider how NONE are met in this case:

1. Neither of the Parties in this Foip Request is a lawyer.  There is, therefore, no communication “between a client and a solicitor”;
2. Let’s assume the communication was “cc’d” to someone who is a lawyer. How is communication between two people who aren’t lawyers – even though it may be shared with a lawyer – capable of meeting the condition that it was during the course of seeking or giving legal advice?; simply “sharing” communication with another person who is not a lawyer is neither seeking nor receiving legal advice; and,
3. It is very likely that none of those documents were ever initially intended to be “client and the solicitor” privileged, and were never identified as such, and that fact could easily be determined upon inspection. 

I suppose from the point of view of a clever departmental lawyer claiming “solicitor-client” privilege on documents your client asks you to find a way to not disclose represents a good legal strategy, that’s if you don’t think about how “aiding and abetting” a further cover-up of such information in such a manner is unethical and illegal.

I truly suspect when that strategy is employed by the Department it is whether the documents are truly solicitor-client privileged or not, that will never be discovered by the Commissioner that, since only a Judge can make that determination, as the Solosky Ruling makes clear:

“As Mr. Justice Addy notes, privilege can only be claimed document by document, with each docu­ment being required to meet the criteria for the privilege—(i) a communication between solicitor and client; (ii) which entails the seeking or giving of legal advice; and (iii) which is intended to be confidential by the parties. To make the decision as to whether the privilege attaches, the letters must be read by the judge, which requires, at a minimum, that the documents be under the jurisdiction of a court. Finally, the privilege is aimed at improper use or disclosure, and not at merely opening.”

Is it possible that the lawyer drafting documents for Ms. Gaudet never considered that a Judge might want to see whether those documents were in fact what they were claimed to be? Most definitely…when was the last time an Islander filed a Contempt Order Motion against the PEI Government? I’m sure no one saw that coming, but here we are.

I honestly don’t know whether that issue falls within the scope of the Motion, but I know if I was Paul Maines, I’d be looking for a way to have the Judge review any records the Department might claim are “client-solicitor” privilege.

3. Do you Realize the Danger You’re In?

I honestly don’t believe either Minister MacKay or the Deputy Minister are behind (or even fully aware of) all the irregularities and shenanigans with this file. I suspect that they have both been led to believe all along that it’s not really a big deal, and that the lawyers working on the file have everything in hand. They do not.

I put this post out today hoping that this information might help to ensure that whatever ends up being filed in the PEI Supreme Court as the King Government’s Defence on this issue – that will be sworn and signed to by Minister MacKay’s Deputy Minister, Ms. Gaudet – will be truthful and just, and fully honour the passion and commitment Minister MacKay so courageously displayed as an Opposition MLA regarding the obligation government has to release e-gaming documents to the public.