After nearly a year and a half investigation, former Information and Privacy Commissioner, Ms. Karen Rose, released her Brad Mix Order on June 22, 2020. That report identified multiple occasions where the King Government broke the Freedom of Information and Protection of Privacy (FOIPP) Act and systematically and continuously misled the two applicants who had submitted those 5 Brad Mix FOIPPs that were under review and produced that Order – me and Paul Maines.
Most Islanders – I suspect most MLAs as well – are probably not aware that the Privacy Commissioner’s Order was not about events that took place years ago. That’s what Premier King stated when he spoke to why he was going to vote against Motion 86 on Tuesday evening, June 30, 2020 in the Legislature, saying that although the events happened years ago, “unanswered questions” remained. That was false and a total deflection from the facts.
The Privacy Commissioner’s scathing comments were directed squarely at Hon. Matthew MacKay and Deputy Minister Erin McGrath Gaudet for how they responded to both me and Paul Maines throughout the course of the Brad Mix FOIPP requests and Privacy Commissioner review:
“ I find that the head of the EGTC [Hon. Matthew MacKay & DM Erin MacGrath-Gaudet] did not respond to the Applicants openly, accurately and completely, violating section 8 of the FOIPP Act, when they failed to advise the Applicants that responsive records to their access requests had been destroyed, and were no longer accessible.”
The Privacy Commissioner Report then served as the catalyst for the introduction of Motion 86 – a “tipping point” of sorts – which has set an historic process in place… a watershed moment for Islanders and provincial politics, the implications of which few yet fully grasp, especially those privileged members of the trans-partisan back room insider club – the stallions – who are about to get “de-stable-ized”.
When the Privacy Commissioner’s report was first made public, the King Government came out of the gate fast – like all previous governments had before them when scandals raised their head in public – announcing a “third-party” investigation. That investigation would both be set up and overseen by the Head of the Public Body who the Privacy Commissioner had just found to have broken the FOIPP Act and deliberately misled me and Maines by covering up and keeping secret knowledge that 2 years of Brad Mix’s egaming records were deliberately destroyed. That’s just not right.
It was PC MLA Sidney MacEwan who teed up that Government announcement in the first Question Period after the Privacy Commissioner’s Order was made public. I was waiting eagerly for someone from the Greens to speak to the Privacy Commissioner’s Report and ask some tough questions, but nothing.
Then MacEwan popped up to ask Minister MacKay what he was going to do about the concerning findings in the Privacy Commissioner’s Order. Here’s what CBC said about the announcement:
“The government of P.E.I. says it will be hiring an external party to review how
another batch of government emails went missing and to review government’s
Actually, the Privacy Commissioner’s conclusion wasn’t that emails “went missing”, but that they had been deliberately and illegally destroyed.
Minister MacKay’s Department kept knowledge of that document destruction from both me and Maines, until it was finally uncovered by the Privacy Commissioner in the course of her investigation, disclosed in a July 10, 2019 letter to the Commissioner from Deputy Minister McGrath-Gaudet.
Why didn’t Minister MacKay announce an investigation a year ago when this was first admitted to the Commissioner and then made public by me, after I received a copy of that letter from Commissioner Rose? Absolutely nothing was said publicly until something had to be said. Absolutely nothing was done or announced until something had to be done and announced.
What was done was the bare minimum, worse really – a quick move to take full control of the situation with an empty promise to “get to the bottom” of what….the actions identified by the Privacy Commissioner? Not at all! Rather, problems with the “record management system,” so these things won’t happen again.
The same tired, old song from the same old “mismanaged” record player! What the Minister announced in the publicly announced scope of the third-party investigation totally ignored what the Information Commissioner had identified as the most grievous offences: premeditated acts by individuals to “destroy” records deliberately, and “mislead” FOIPP applicants with lies.
Not only would Minister McKay be selecting and hiring that investigator, he would have complete and exclusive control of both how the process unfolded (including the scope of the investigation) as well as what happened with the findings or final report – all under the blanket protection of Cabinet Confidence.
Why would Islanders trust there would be anything close to full and complete disclosure from the PC Government after all the lies, deception and cover-up on this file since being elected?
Premier King’s government knew that the defense advanced by the previous Liberal Government was all based on lies and a failure to disclose materially-relevant documents – or he should have known – but stayed the course by filing those same lies in response to CMT’s Appeal.
There is ABSOLUTELY NO WAY those same PC Cabinet Ministers would accept such a second-rate investigation controlled by Cabinet with no powers to compel responses from anyone if they were the Opposition! They would INSIST ON a Special Standing Committee with a specified report-back deadline for a report and recommendations to the Legislative Assembly, exactly as the Green’s put forward, and the PC Government shamelessly voted to defeat.
1. FULL ACCESS: The Motivation Behind The Green’s Motion 86
Peter Bevan-Baker hadn’t initially said anything in Question Period about the Privacy Commissioner’s report. As noted above, it was Hon. Sidney MacEwan who raised questions and concerns about the Privacy Commissioner’s report, to which Minister MacKay responded with the announcement of the third-party investigation.
Hon. Bevan-Baker was no doubt troubled as I was to see the Government move quickly to take control of the reins of the situation, and obviously decided that “same ole – same ole” just wasn’t good enough, and introduced Motion 86. Here’s what he said about why the Motion was put forward:
2. Better Get off the Tracks Backroom Stallions!
I did an entire 25-part series titled: “All the King’s Horses: Then and Now,” where I tried to draw attention to how the legal case which the lawyers and King Government were advancing in the response to CMT’s Appeal represented a complete betrayal of what the PC MLAs knew to be true and advanced as such when they were the Opposition.
Below is a part of explanation I provided for the graphic clarifying the key distinction between all the King’s “horses” and all the King’s “men“.
“The four unhappy and pretty worried-looking men in the picture are NOW four prominent Cabinet Ministers in the King government. THEN they were PC Party Opposition MLAs – and three of them held interim and/or permanent roles as PC Party leaders (Aylward, Myers, and Fox). These four individuals were the principal spokespersons on the e-gaming issues for the PC Party.
The two main lawyers working on e-gaming – Billy Dow (who helped to create the whole e-gaming mess) and Jonathan Coady (the “fixer” called in from Stewart McKelvey to make the mess disappear) – are, of course, the horses. Why? Because people (politicians) ride horses (lawyers) in this analogy to giddy-up to where they want to get (in power) not the other way around.
When the peasants (Islanders) revolt (have an election) and Humpty goes Dumpty, all the King’s men are suddenly left standing around powerless and confused, able to do nothing but gaze upon their shattered dreams of a life in Cabinet for years to come, trying to understand how all their good intentions could have gone off the rails so badly so soon after having just achieved their long-sought dream of becoming government.
But guess what? When the peasants remove the King and his men (and women) from the castle, and new people take up residence, they’ll saddle up the very same horses as the previous tenants because they don’t live in the palace where people come and go, they live in the stable. The moral of the story is that whenever politicians promise a stable government, we need to ask what kind of “stable” they’re talking about.”
The three upcoming PEI Supreme Court Contempt Motions – and the Special Committee to be established from Motion 86 – will all shine more light on the shadowy FOIPP process and back room shenanigans happening under the King Government. This will hopefully finally bring PEI out of the dark ages and make Freedom of Information more than a nuisance for government, but a effective system that serves both transparency and Islanders.
3. Are the PC MLAs in the Dark About the King Gov’t Wearing This?
I’m increasingly convinced that most opposition and PC MLAs have – until very recently at least – been completely unaware of the illegal activity and cover-up strategy meticulously and painstakingly employed by the Premier and various backroom players since the PC Government was first elected.
I’m a little perplexed as to why Minister MacKay didn’t take the information I presented in an January 27, 2020 article titled “Do They Not Realize the Danger They’re In…” a lot more seriously. I saw the workings of backroom forces within his department that I suspected he had no idea about, and gave him a detailed head’s up about the illegal activity and cover-up going on. That article was not the first time a head’s up was provided by any means.
This is what I wrote then about how I thought what was going on was originating with the shadow government in the back rooms:
“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 Defense 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.”
I wonder if the PC MLAs – not to mention Green and Liberal opposition MLAs – ever read Government’s CMT’s Appeal Response? It contradicts everything they know to be true about egaming.
I wonder if the PC MLAs realize that new documents obtained in FOIPPs by Paul Maines and me now reveal that sworn testimony from several Government Defendants – including Brad Mix who is still employed with Hon. MacKay – were false statements designed to hide materially-relevant facts from disclosure in the CMT lawsuit?
The more I ponder the current situation, the more I’m now convinced that MLAs – especially Cabinet Ministers – likely have little idea about what is really going on behind the scenes, especially all the illegal document withholding and cover-up acts by their own Government over the past year and a half in the most blatant denial of access I’ve personally ever witnessed by a government.
MLAs – especially Cabinet Ministers – were given heavy mandates when elected, which didn’t include meddling in the egaming lawsuit, or speaking publicly about the egaming scandal. They have all likely been persuaded by the oft-stated lie – as Premier King restated about the subject matter of Motion 86, “although these events happened years ago, unanswered questions remain. “ Absolutely not true and all MLAs better realize that soon.
I suspect it is only now starting to sink in with most MLAs that the Privacy Commissioner wasn’t talking about the previous Liberals, but singled out Minister MacKay and his Deputy Minister Erin McGrath-Gaudet as the Government officials ultimately responsible for the illegal and egregiously deceptive handling of the five Brad Mix FOIPPs.
But herein lies the problem. Since taking over power, the King Government and its MLA’s have been completely silent on e-gaming and deleted emails. Worse … they defended the very actions they fought as the Official Opposition filing documents in the PEI Courts defending Ghiz, Sheridan, LeClair et al.
This is not what Islanders voted for nor were promised. We are travelling into uncharted territory now, and it will be fascinating to see whether the members chosen by the three Parties to sit on the Special Committee will do what has never been possible with any previous Standing Committee of the Legislative Assembly: bring an investigation to its logical conclusion by relentlessly pursuing the truth.
Any steps from King’s Cabinet taken to delay and/or somehow thwart the work of the committee will reveal just how powerful the Back Room really is.
4. This Time It Might Just be Different
Back in the PC Leadership race I put forward a bunch of “anti-corruption” policies, and #2 on that list [#2 – Balanced Representation on Legislative Standing Committees] aimed to make representation on Standing Committees balanced so Government couldn’t just vote down Motions from Opposition members to bring certain witnesses before the Committee, which had been the long-standing practice.
To his credit, King supported this policy during the debates when I announced it, and proceeded to change the way standing committees work when he was elected Premier. That change takes the power from Government to block witnesses or defeat other Motions whenever it chooses with a majority of members on the committees.
If that had not happened it would not now be possible to summon the stallions from the stables to hear their “yeahs” and “neighs” to some tough questions they’ve never been asked before…the answers to which I suspect will be mostly “neighs”.
As I keep stating, Motion 86 is historic. I doubt that Hon. Bevan-Baker yet grasps that this recent Order is but the tip of the iceberg in what is coming by way of the exposing of the King Government’s Freedom of Information scandal that is unraveling fast. It will be heard in the Supreme Court on August 11 & 12, with Maines being represented by a high-powered lawyer from Toronto. It will likely send massive shock waves through both government and the back room. A bit of background about one of those three Motions alleging the PEI Government is in contempt of court-enforced Orders may help to give some sense of the gravity of the situation.
5. What Does it Mean to Be in Contempt of a Court Order?
To be in contempt of a Court Order means pretty much what you’d expect: it means to be in breach of an Order issued by the Court either compelling you to do or forbidding you to do something. With Paul Maines’ upcoming three Motions that will be heard together via Zoom on August 10 and 11, 2020, the PEI Government – the Department of Economic Growth, Tourism and Culture (EGTC) to be precise – breached three Court Orders to release documents to Paul Maines on dates specified in those Orders.
To be in contempt of a Court Order the Government must have done a number of things and taken a few steps:
- First it broke its own FOIPP Act by refusing to release documents;
- Then the Government asked the Applicant (Maines) to consent to an Order so the Public Body could get back in good stead with the law,
- Then the Government asked the Privacy Commissioner to prepare an Order with an agreed-upon deadline for provision of records to Maines, and officiate it’s signing, signing the order herself, as well giving clear instructions on what she was ordering, and
- Then they would have to have to break that Order.
This has never happened before in PEI so lets take a look at the steps Maines took (or perhaps I should say “endured”) in his effort to obtain these key Government records from the PC Government over the last year, and ponder how the King Government (Erin McGrath-Gaudet) will explain these actions when she takes the witness stand in Court.
Refusing Access To Records
The FOIPP Act allows the Government Department to take a 30 day extension in addition to the initial 30 day period, and additional extensions can be requested from the Information and Privacy Commissioner. If there are “third parties” mentioned in the records, additional time is taken to obtain 3rd party permission to release private information.
Once the Public Body has exhausted all extensions available under the FOIPP Act, the Department must then produce the responsive records. If the Government simply refuses to produce them, the public body or Department is deemed to be in violation of Section 9.2, referred to as a “deemed refusal” because the Government simply refuses to release records yet has no legitimate legal grounds to withhold them.
Failure to Respond: Section 9(2) of the FOIPP Act
The failure of the head to respond to a request within the 30 day period or any extended period is to be treated as a decision to refuse access to the record.
The King Government did this on 5 occasions with Maines. I have had a bunch of deemed refusals as well, including the now infamous Brad Mix review that led to the recent Order that, in turn, led to Motion 86 and the soon-to-be established Special Committee.
Once the King Government asked Maines to enter into a Consent Order to delay disclosures they also entered into a new world. A Consent Order can be filed with the Supreme Court, and Maines did just that on the very same day the Order was signed – by him, by Deputy Minister Erin McGrath-Gaudet and by the Privacy Commissioner.
When the Deputy Minister failed to comply with the Consent Order, Maines filed a Motion in the PEI Supreme Court. This has never happened in PEI before.
This move paralyzes the people I believe were operating behind the scenes with these FOIPPs to cover-up information. They likely never imagined it would end up in the Supreme Court, but as the Information Commissioner told a Guardian reporter, it’s now out of her hands:
Information and Privacy Commissioner Karen Rose confirmed this was the first time her office, which opened in 2002, has ever signed a consent order related to a FOIPP request. “All of our orders may be filed with the court. It’s just that, to my knowledge, nobody ever has,” Rose said. Rose added that the matter is beyond the jurisdiction of her office and is “out of our hands.”
It’s likely tempting (and all-too-easy) to hide sensitive documents from release with a false claim that it is “solicitor-client” privileged, knowing that the Privacy Commissioner isn’t able to see the documents to verify if they are actually privileged.
It’s surprisingly difficult to meet the legal “test” establishing client-solicitor privilege. Were those documents withheld on that basis legitimately client-solicitor privileged? We’ll find out in August.
The Information Commissioner can’t look at the documents, but a Supreme Court Order Judge can, and I suspect that with that scenario never happening in PEI before, those making those decisions to withhold documents on the basis of Section 25(1) – Solicitor-Client Privilege – likely never dreamed a judge would be looking at them to see if they actually meet the muster.
Also, on August 11 and 12th, Deputy Minister Erin McGrath-Gaudet will be cross-examined about how she had first-hand knowledge about the privileged nature of those documents despite them being from years previous, information enough to swear an affidavit that they were in fact client-solicitor privileged.
The three August 11 and 12 Contempt Motions against the King Government will shine another bright light on further interference and manipulation of additional egaming FOIPPs by the King Government.
MLA’s may not yet have must sense of these behind-the-scenes antics; however, they should review the facts and MANY instances of illegal activities and cover-up by the King government in various FOIPP-related articles I’ve already published as preparation for these upcoming Motions – it’s going to be interesting.
Why would a horse – granted, an incredibly powerful horse for sure – gallop full-steam into a train going full-steam toward the horse? Who knows? Maybe the horse has blinders on or is arrogant and so set in its ways it can’t realize it doesn’t stand a chance against the train. Maybe it’d rather die than abandon the track that’s sustained him for years, without which no other life seems possible or worthwhile? Regardless, it’s not going to end well for the stallions.
All MLAs would be wise to unhitch from any horse they may have inadvertently become attached to and get onboard the “truly” transparency train, that crazy loco-Motion 86.
I fully expect many more contemptuous acts by the King government operatives working on FOIPP requests will be revealed by the PEI Supreme Court Judge in mid-August when these three Contempt Motion are heard.
There are also a number – about a dozen or so – more “Orders” to be issued in coming weeks/months that will also most certainly confirm further, multiple illegal activities by the King Government stretching back months right up to the present day.
I also expect a whole lot more will be revealed once members of the Standing Committee put a few of those stallions in front of the real Loco-Motion 86. I will be happy to provide background documentation to better formulate the right questions!
In my last article, I inadvertently uploaded the wrong video clip of Peter Bevan-Baker. It was a good one too, but I want to end with his succinct summary of the “loco” introduced by the PC Government to his Motion 86.
To anyone watching, the hypocrisy of the PC Government on Motion 86 was on full display, and Hon. Bevan-Baker captured that nicely.