Information and Privacy Commissioner Acts Swiftly on “Missing” E-gaming Management Letter

This morning, I received a copy of a letter dated February 3, 2020, that the Information and Privacy Commissioner, Karen Rose, sent to Paul Ledwell in the Premier’s Office to inform him that she is conducting a review of my FOIP request (PO-2019-298) seeking the E-gaming Management Letter that the Auditor General sent to Premier Wade MacLauchlan. She requested that a complete copy of the file be sent to her office by February 19, 2020.

By way of background, I received a letter from Mr. Ledwell on January 30th on this file at exactly 4:30pm, the last minute before the Government was about to enter the illegal and dreaded “deemed refusal” zone.

I was all prepared to inform Islanders that the PEI Government had a 7th deemed refusal FOIP to add to the pile – wherein the Premier’s Office would have been breaking the FOIPP Act by refusing to respond to me by the deadline prescribed in the Act – then an email arrived with an attached letter.

But Mr. Ledwell’s response wasn’t really a response at all. I didn’t get any documents, just a letter stating that there are no documents to provide to me:  “I am writing to inform you that a search of the Premier’s Office has failed to retrieve any records relating to the subject of your request.  A staff member of the Premier’s Office conducted a 135-minute search of contents of many file folders that included correspondence and reports dated between October 2016 and April 2017.”

I immediately filed a request for a review with the Information Commissioner, a copy of which I included in my article What Happened to the AG’s E-gaming Management Letter.

Below is the letter Ms. Rose sent to Paul Ledwell yesterday, in response to my request for a review:

Notice that Ms. Rose mentions an “addendum,” something I added to my original January 30th letter requesting a review.

A person doesn’t always notice things upon first or even second reading, especially when those things are not expected to be found. I pointed out in my initial request for records that because the Premier was wearing several hats at the time, it might be necessary to search three different possible locations.  I initially didn’t notice that only ONE location was searched. Here is the text of the “addendum” added to my review:

It is important to know that Section 8, the provision of the FOIPP Act upon which the Commissioner is basing her review, requires that the PEI Government provide an explanation for any missing Government records.

I’m still baffled why the Premier’s office hasn’t simply called the Auditor General’s office requesting copies; that is, I’m baffled whenever I tell myself the Government truly wants to give me the documents to which I’m entitled under the law and just can’t find them, after all, the Act makes it a duty to assist me to get the records I’m requesting and a phone call to the AG doesn’t seem too onerous a task.

But it’s not really baffling at all when I consider everything else that’s happening: no matter how unbelievable or bizarre, I can’t help but think that the information I’m looking for is never likely to be voluntarily shared with Islanders by government.

Think about it: I filed a request for the Management Letter on December 3, 2019.  Two months later, I’m told nothing was found after a 135-minute search in just one of the three locations in which it might have been filed.  This accomplishes two things for the department (1) avoided falling into another deemed refusal, thereby breaking the FOIP ACT, and (2) being able to kick the can down the road for at least a month or maybe much longer, with absolutely no consequences.

A couple of people have suggested that I file a FOIP with the Auditor General’s office to get a copy of the Management Letter directly from her.   The AG doesn’t fall under Government but is an Office of the Legislative Assembly, so the FOIPP Act doesn’t apply to the Auditor General’s Office.

The Legislative Assembly could, however, request copies in a minute; that is if the Opposition Parties thought it is something that should be made public, but (1) with the e-gaming monster having been birthed by the Liberals in the first place, you’re not likely to hear anything from Liberal MLAs, and (2) with all the hugs and kisses going on between the PCs and Greens lately, I’d be surprised (pleasantly, though) if Peter Bevan-Baker was to lead the charge on having the Legislative Assembly request the letter from the Auditor General.  She may say it was confidential and require the permission of the Premier for her to release it, and that would be fine, we’d just ask the Premier to give it, and the Management Letter would then be a public document.

No, I think it’s pretty clear that – at least when it comes to fulfilling the promise to ensure transparency and accountability  – unless there’s a “three-times larger” Grinch-like change of heart with Government,  it could be a very loooooong (and ultimately unsuccessful) effort to obtain a copy of the E-gaming Management Letter.