PREAMBLE

Last Wednesday (February 12, 2020) I received an email from the APSO Coordinator with the Department of Economic Growth, Tourism and Culture, with three attached letters, one for each of the Access to Information requests with the Department, all of which were coming up to their “final release” dates soon. It wasn’t good news.

The final release dates for those three requests were: March 4, 2020, for one request; and February 20th for the other two.  The three virtually-identical letters each informed me that the Department would be taking a further 3-month extension on each request, making the new dates: June 2nd for one; and May 20th for the others.

All three were kicked through the CMT Appeal Court May 19, 2020 Motion Hearing Date Goal Posts – two of them just barely, landing the very next day

I didn’t think the Department had the legal right to take more time extensions on these three requests, but as you’ll see if you keep reading, I was wrong.

I thought I had covered all my bases to ensure I would get the few documents from these last requests precisely because there were only a few documents, and it would not take a lot of time to process. I could see no reasonable grounds upon which the Commissioner would feel compelled to grant an extension. Like I said, I was wrong.

The King Government is clearly now “all-in” with the Liberal secret e-gaming denial and coverup strategy playbook.  The Response filed with the Appeal Court by the King Government signified the “point of no return” for me. Once the King Government filed the very same Liberal legal arguments and positions advanced by Stewart McKelvey lawyer, Jonathan Coady, Q.C., under MacLauchlan….well, everything was certain to go down-hill for the PC Minority Government from that point on, and it has, and it will continue to go in the same downward direction. Why?

Because, both sadly and ironically, when you’re heading in the wrong direction and you’re either unwilling or unable to change direction, instinct says “go faster” in a bid to escape entirely. But given certain circumstances, it’s sometimes impossible to go fast enough to escape the inevitable.  Consider the following analogy.

Imagine a daredevil on a motorcycle racing down the departure ramp en route to jump an impressively wide and deep canyon. Half-way down the launch ramp he glances down and sees a 130 km per hr reading on the speedometer. He’s not smiling: he realizes that the needle needed to be up to at least 180 km per hr by that point if he was to have any chance of landing safely on the other side of the gorge. What does he do? He guns it. What does that accomplish?  Absolutely nothing, other than making the trailing sound of his out-of-control racing engine plummeting to the Canyon floor below all the more dramatic in the evening news footage.

It would seem reasonable to expect that with everything that’s been going on with Court Orders, and upcoming Contempt Motions, there would have been new directives issued to public employees, APSO workers, legal counsel, etc. to start “doing the right thing” immediately. At an absolute minimum, not to further compound the problem with more FOIPP delays, deemed refusals, or the clever use of loopholes to block the release of documents in blatant violations of both the spirit and intent of the FOIPP Act. 

In other words, that our elected MLAs and/or Premier would have issued orders to government employees to abide strictly to the “duty” expressed in section 8 in the FOIPP Act charging the pubic body with the obligation to assist applicants “openly, accurately and completely”. 

But when you’re all in, I guess you’re all-in.  And the King Government is clearly now all in. The more of the coverup that gets exposed, the deeper the PEI Government seems to dig, doubling-down on its coverup strategy.

This last ploy using a loophole in the FOIPP Act is nothing short of a bully tactic, revealing that the Government is now willing to employ any and all means at its disposal to prevent the release of those key government records…at least before the upcoming Court Appeal, which the PEI Government obviously hopes will put an end to the CMT legal case against the province once and for all.

I honestly didn’t know there was a “loophole” in the FOIPP Act that the Government could exploit, kicking these three FOIPP-balls through the CMT May 19th Appeal Court Hearing Goal Posts.

But even if I had known about that loophole, given all the details and particulars of my three FOIPPs, I still would never have believed the King Government would have the audacity to stoop to using such a loophole for those tiny requests.  It reeks of desperation to me.

I can’t exactly “prove” the Government didn’t need this extension of 3 months,  but I’m nonetheless certain they didn’t need that extra time, and I want to explain a bit about how I know that by contrasting my past experience with the FOIPP process under the MacLauchlan Liberals with my more recent experiences with the King Government today; explaining in the process how things have worsened under the King Government when they should have improved.  But then again, I do believe I’m getting closer to the motherlode, so there may only be a few documents now, but it’s likely the motivation to keep them secret is much greater now as a result.

I also want to say a few things about each of the three targeted FOIPPs, and my Letter to the Information Commissioner seeking clarification on the permission she gave the Department to take a 3-month extension on each of those FOIPPs.

Finally, I’ll provide a few summary comments.

Oh yeah, and there’s a video clip of our Premier at the very end talking about transparency and the need for Government to trust Islanders with knowledge about what Government is doing, so Islanders get the power that comes from such knowledge making us able to act responsibly as informed and engaged citizens. Be sure to watch it. Very inspiring!

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 1. Government: “Tell Islanders the Truth: You Don’t Need More Time!

When I first made a dedicated effort to uncover the truth about the e-gaming scandal a little over two years ago, I knew then that I was looking at a 2-3 year information-gathering strategy.  It takes a long time to “zero in” on the truly relevant documents in a case this complicated, stretching over several years.  You start with big sweeps, sift through the reams of documents to find clues, submit more targeted requests based on those hunches and clues, and then repeat the process until you either come to a dead-end or hit the motherlode. 

But here’s the thing. When I began that process under the MacLauchlan Government,  “fishing with a dragnet” so to speak, submitting FOIPP requests that generated hundreds of responsive records, requiring a significant number of “hours” of search and processing time which, in some cases, I was asked to pay for…but still, the deadlines were always met.

Now, under the King Government, with these last three VERY NARROW requests [one has just a single document; one has just “three” documents, and the other is asking to search communications between two people over a few-month period that can be easily searched electronically using a few key words], yet the King Government tells me another 3 months PAST the date I was supposed to receive those documents is now required?

Government: Tell Islanders the truth! You don’t need more time, you’re violating section 8 of the FOIP Act and blocking access to government records.

I was very confident my FOIP strategy was working. I was sure I hadn’t misread the timelines and deadlines I’d have to meet to get those final documents, so it was really disappointing (maddening even) to get those letters last Wednesday kicking all those FOIPPs past the upcoming Appeal Court Motion date.

In retrospect, I see that I, unfortunately, made two mistakes: (1) I underestimated the lengths the King Government is apparently now willing to go to prevent the release of those key documents to protect secrets and maintain the coverup; and (2) I failed to fully educate myself about the existence of that clause in the FOIPP Act allowing the public body (in this case, the Department of Economic Growth, Tourism, and Culture) to take additional time – a considerable amount of additional time – whenever there are “concurrent” requests from the same applicant, no matter how little work and time responding to those concurrent requests might entail.

 2.  FOIPP #015: Was the MOU Factored into Innovation PEI’s Plans?

That’s the main question I was trying to answer with this targeted request. I only wanted one record, the presentation the CEO of Innovation PEI at the time, Cheryl Paynter, made to the Board of Directors on August 13, 2012:Here’s just a bit of the context out of which this FOIPP request came. I had already discovered that neither MOU, nor CMT, nor Trinity Bay had ever been mentioned in the Board minutes. This seemed really strange, since, in the April 4, 2012 Throne Speech, the Ghiz Government announced it was adding “Financial Services” as a targeted sector for recruitment efforts:

“Biosciences and Information Technology will remain important sectors for Prince Edward Island. As well, my Government will expand its strategic focus on the growing Financial Services sector…” [Hansard, April 4, 2012, p. 6]

With the FMT Project formally “on the books” with Innovation PEI, and the plan to make FMT the “hub” for the transaction platform, what was contained in that presentation would tell a lot about what the Board was being informed of and what the Board members were being kept in the dark about.

There were significant recruiting efforts with gaming and financial services companies already underway, so they were likely considerably intensified.

Paynter’s presentation to the Innovation PEI Board Members was in mid-August, 2012 – when the MOU was in effect – but that wasn’t the first document produced by Innovation PEI that undoubtedly contained important information about the reorganization underway at Innovation PEI, but more importantly, the recruitment work with the newly-targeted financial services sector; which leads me to my next FOIPP-ball the PEI Government successfully kicked past the May 19th Appeal Hearing Field Goal Posts.

3.  FOIPP #031: What Was Mix’s “Prospecting Work Plan” for 2012?

That’s the question I was trying to answer with this second targeted FOIPP request. I learned of three work plan presentations prepared by the Directors of three Divisions within Innovation PEI in early June, 2012 – a month before the MOU was signed – so I asked for the three of them, but I really wanted the one from Brad Mix:

I’ve learned my lessons the hard way with FOIPP request wording. Now I  submit very precise wording, with as much detail as I can to eliminate all ambiguity or any possible confusion about what I’m asking for so it can’t be misinterpreted. This detail and precision also make the search easier for APSO and the public body by pointing out the exact event, dates, individuals, and documents. It’s actually not uncommon to receive a request for further clarification with FOIPP requests, which only delays things further, so it’s always best to cover all the bases from the get-go.

There would undoubtedly be critically-important information in Brad Mix’s work plan: (1) what would it say about the FMT Project, if anything? (2) what would it say, if anything, about his registration for the SWIFT Conference in SIBOS Japan? His boss, Cheryl Paynter only heard about it for the first time in August 2012, when Mix requested travel budget and permission from her to go to the conference in October 2012, and (3)  given the pending MOU. there was a need to put any recruitment plans that were already underway on hold or cancel plans altogether if necessary since the focus at that time was on moving forward with the FMT Simplex Global Transaction Platform Project.

That’s the kind of information I expected to find in Mix’s “Recruitment Plan” for 2012.  If you recall from the second-last blog article, it was the 2011 “Project Chart” from brad Mix that confirmed the existence and official Government Project status of the Virgin Gaming and FMT Projects with Innovation PEI.

Well, the King Government sent this FOIPP-Ball through the May 19th goalposts as well.

4.  FOIPP #2020-016: Did Innovation PEI Recruiters know about the MOU?

The question my 3rd FOIPP request attempted to answer involved a straightforward search of communications between the Innovation PEI authorities and the recruiters during a 5 month period.

What this would involve would be a review of the recruitment staff (there are only a few people in that division) emails and paper records for a 5 month period using two keywords or phrases to search: Memorandum of Understanding (MOU) and Trinity Bay Technologies.

If the “FMT Project” had evolved to the point where there was apparently such confidence in the project that to keep CMT from establishing elsewhere it was decided to put legally-binding “exclusivity” and “confidentiality” clauses in the MOU Agreement, then there should have been lots to say about FMT and the transaction platform project: was it discussed? 

I had already discovered in another FOIPP request that there was no mention of the MOU Agreement in the official board minutes, or in official communications between Paynter (the person who signed the MOU agreement on behalf of Innovation PEI) and the recruitment staff. But that doesn’t really prove a lot – it was a “secret” file, after all, there could have been an agreement not to mention anything about the plans with FMT and Virgin Gaming as they worked secretly toward a big announcement in the Fall.

That presentation is a different kettle of fish.  Did Paynter talk about the reorganization of Innovation PEI to accommodate the new focus on recruiting financial services companies? Did she discuss the dilemma created by effectively “shutting down all discussions and recruitment efforts” with financial services companies as a legal requirement of the MOU signed with FMT?”

Did  Paynter discuss how those quite extensive recruitment efforts with financial services companies (like RBC Financial) had to be ended or put on hold until after the expiration of the MOU?  You can see why that document is a key document – secret file or not, Ms. Paynter either hid the reality of what was taking place within Innovation PEI in that presentation to the Board, or she addressed some of those core questions I just presented.

I was supposed to receive a “final response”  to this FOIP request on February 20, 2020 – which should have meant a copy of that single presentation in some format – but was informed in another letter received last Wednesday that the King Government had scored another field goal and the new date was the day after the Appeal, May 20, 2020.

5. My Letter to the Information Commissioner

Each of the three letters – one for each FOIPP request –  had the following sentence:

“We have consulted with the Information and Privacy Commissioner who has given permission to extend the time for responding to your request.”

For a number of reasons, I decided to write to the Information Commission, and those reasons are explained in my letter:

I figured there must be something I was missing, and there was. I received a response from the Information Commissioner the following day explaining that section 12.2 in the FOIPP Act provided legal grounds for the public body to take a further extension, based on the claim that the heavy workload resulting from multiple concurrent requests requires such an extension:

I suspect that this is a long-standing precedent and that whenever the public body makes such a request to the Information and Privacy commissioner it’s assumed legitimate, and approved, presuming it meets the “multiple concurrent requests” requirement.

I also suspect the Commissioner only receives information about the number of multiple concurrent requests, not the expected time/work associated with those requests.  Like I said in my letter to the Commissioner, the time it took the Department to request that extension kicking three field goals to block access likely exceeds the time it would have taken for the Department to have located, processed and provided me access to the records. Clearly, there is no evident willingness or intention with the Government to provide me with those records.

The Auditor General was aware that Innovation PEI had a mandate that made it “…responsible for growing the strategic sectors of…..financial services…” yet was suddenly legally obligated to cease all financial services recruitment efforts underway and not undertake any further activity in this sector when the MOU was signed, and [unamed] senior officials of Innovation PEI had concerns, but the time period when those concerns were raised is not provided:

Section 5.11: Further, clarification on the terms and conditions in the agreement was not obtained. This was particularly important for Innovation PEI because the wording of the exclusivity section was very broad. Financial service was a key sector identified by Innovation PE for economic development in the province. Innovation PEI senior officials advised that they were concerned about the exclusivity clause and how it would impact their work.

It’s not like there isn’t already more than ample evidence to prove a breach of the MOU; however, the documents I’m here being denied would likely have provided official confirmation that the necessary measures required to prevent violations of the exclusivity and confidentiality clauses in the MOU were not taken, making a “breach” of those legal requirements unavoidable, given the heightened focus on recruiting financial services companies within Innovation PEI.

Summary

This whole e-gaming and FOIPP mess the King Government now finds itself in only confirms what informed Islanders already know: (1) Senior bureaucrats under former Premier Wade MacLauchlan, who Premier King kept in their positions; (2) along with the same external legal counsel representing the former Liberal government (Stewart McKelvey) together remain in complete control of this file,  and apparently, the FOIPP processes within Government as well.

Unless there is a complete “about-face” with the direction the PEI Government is going (as well as an honest ‘confession’ of some kind) there really isn’t much else the King Government can do to address this extremely embarrassing, legally-troubling, public-optics nightmare that won’t make it worse.

Here’s a video clip from the Premier speaking about transparency, how Government information is power, and how the citizenry has a right to that information. He said he understood all that very well as a former Journalist – it’s time our Premier puts those words into action in honour of both the people of PEI and, of course, his own words that helped to make him Premier. Like he correctly says, “Islanders are demanding transparency.”