Clerk's stamp FORM 49 13.19] COURT FILE NUMBER 1503?03342 COURT OF BENCH OF ALBERTA JUDICIAL CENTRE EDMONTON APPLICANT (RESPONDENT) THE INFORMATION AND PRIVACY COMMISSIONER OF ALBERTA RESPONDENT (APPLICANT) HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA DOCUMENT AFFIDAVIT ADDRESS FOR SERVICE AND CONTACT JENSEN SHAWA SOLOMON DUGUID HAWKES LLP INFORMATION OF PARTY FILING THIS Barristers DOCUMENT 800, 304 - 8 Avenue SW Calgary, Alberta T2P 1C2 Glenn Solomon, QC. Phone: 403 571 1507 Fax: 403 571 1528 File: 10765-024 AFFIDAVIT OF LEANNE SALEL SWORN ON MARCH 30, 2015 I, LEANNE SALEL, of Calgary, Alberta, SWEAR AND SAY THAT: 1. I am a Senior Information and Privacy Manager for the Office of the Information and Privacy Commissioner of Alberta. I hold two law degrees and am a member of the British Columbia and Ontario bars. I am one of the Investigators in this matter, and as such I have first hand knowledge of the matters set out in this affidavit, except where stated to be based on information and belief, and in which case I believe them to be true. Background 2. Alberta?s Information and Privacy Commissioner (?Commissioner?) is appointed by the Lieutenant Governor in Council on the recommendation of the Legislative Assembly of {00983835 v4} -2- Alberta pursuant to part 4 of the Aiberta Freedom of Information and Protection of Privacy Act or the The Commissioner is an Officer of the Legislature, is part of the Legislative Branch of Government, and therefore is independent of the Executive Branch of Government. The Commissioner reports to the Legislative Assembly of Alberta. The Commissioner?s role is multi?faceted. The Commissioner, or her delegate, performs adjudicative functions under Part 5 of the Personal information Protection Act, Part 5 of FOIPP and Part 7 of the Health Information Act. Additionally, the Commissioner sets, administers and promotes the public policy objectives under the acts that fall under the Commissioner?s jurisdiction. Section 53 of FOIPP speaks to the wide variety of responsibilities conferred on the Commissioner. Ultimately, the Commissioner is responsible for ensuring that the objectives of FOIPP are achieved. The Legislature has granted the Commissioner a set of powers to enable her and her office to ensure that the objectives of FOIPP are achieved. For example, under FOIPP the Commissioner may conduct investigations to ensure that public bodies are acting in compliance with the Act. Additionally, in the course of an investigation or inquiry, or in giving advice and recommendations, the Commissioner can require public bodies to produce records to the Commissioner. The Investigation 6. Pursuant to FOIPP, on May 30, 2014, the Commissioner announced the investigation into the Government of Alberta?s handling of access requests (the "lnvestigation?), and published a News Release. The News Release is attached as Exhibit to my Affidavit. In the News Release, the Commissioner said: I have been reviewing the recent media coverage and discussions at the Legislature alleging political interference in the processing of access requests. After careful consideration, have decided to initiate an investigation on my own motion, As part of my legislated mandate, i want to assure myself that access requests are processed in accordance with the FOIP Act. The objectives of my investigation are to conduct a review of: the steps taken to respond to an access request, including identifying who reviews access request responses before records are released and determining how such reviews impact response times; 0 the response times by provincial government departments to access requests and the reasons for any time extensions and/or delays in responding/processing; and the evidence to determine whether or not political interference has caused delays in responding to access requests. [emphasis added] {00983835 v4} 10. 11. 12. 13. -3- The Commissioner opened the Investigation pursuant to her powers under section 53(1)(a) of FOIPP. This was not a case where an "applicant" had made a request under the Act. The investigation was initially directed at Service Alberta (Case File F8094), which is a Government Ministry, a public body under FOIPP, and the Ministry responsible for FOIPP ("Service Alberta?). The Commissioner authorized Brian Hamilton, Director of Compliance and Special Investigations, and Veronica Chodak, Senior Information and Privacy Manager, to investigate. The Commissioner subsequently extended the investigation to include Executive Council (Case File F8194), which is another Government Ministry and public body under FOIPP (?Executive Council?). The letters to Service Alberta and Executive Council are attached as Exhibit to my Affidavit. Service Alberta, Executive Council and the other Government Ministries (collectively referred to herein as "the Government?) are represented in the subject Investigation by Doreen Mueller. On June 30, 2014 and July 2, 2014, Veronica Chodak requested information from Service Alberta and Executive Council, respectively, as part of the Investigation. The letters to Service Alberta and Executive Council, addressed to Doreen Mueller, are attached as Exhibit to my Affidavit. Service Alberta requested from the Commissioner?s Office, and received, an extension of the deadline to provide responses, from July 30, 2014 to mid-August 2014, for certain responses and to mid-September 2014, for other responses. A copy of that email request and reply is attached as Exhibit to my Affidavit. On August 1, 2014 and August 19, 2014, Veronica Chodak received responses to her information requests. However, the information provided was redacted, sometimes quite heavily redacted. For example, pages 1 through 108 of one set of reSponse documents were withheld as advice from officials and privileged information, as is shown in Exhibit to my Affidavit. The Investigation continued thereafter. I was authorized by the Commissioner as an investigator for Case Files F8094 and F8194, as is shown in Exhibit to my Affidavit. On November 27, 2014, the Commissioner extended the Investigation to include all Government Ministries, which was another 17 Government Ministries (Case Files F8667- F8683) (?Government Ministries?). The Commissioner?s letters that are relevant to this judicial review are attached as Exhibit to my Affidavit. On December 3, 2014, Brian Hamilton sent letters to those other 17 Government Ministries, requesting information as part of the Investigation into determining how the Government of Alberta handles FOIPP access to information requests and whether there was political interference in the processing of access requests. Brian Hamilton?s request letters that are relevant to this judicial review are attached as Exhibit to my Affidavit. {00983835 v4} 14December 18, 2014, the Government Ministries requested from the Commissioner?s Office, and received, an extension of the deadline to provide responses, from January 17, 2015 to February 13, 2015. A copy of that email request and reply is attached as Exhibit to my Affidavit. Between February 6, 2015 and February 11, 2015, the Government Ministries requested further extensions of the deadline to provide responses, from February 13, 2015 to February 20, 2015, for certain Ministries, and to March 30, 2015, for other Ministries. A copy of that email request is attached as Exhibit to my Affidavit. On February 12, 2015, the Commissioner?s Office granted extensions to February 20, 2015, for certain Ministries, and to February 27, 2015, for the other Ministries. A copy ofthat email reply is attached as Exhibit to my Affidavit. On February 13, 2015, the Government Ministries sent a response to Brian Hamilton?s request on behalf of several Ministries. A copy of that response letter is attached as Exhibit to my Affidavit. Although there is no reference to redactions in the Government Ministries? letter of February 13, 2015, the records provided to the Commissioner?s Office were redacted, in some cases almost entirely redacted. Examples of some redactions are attached as Exhibit to my Affidavit. On February 18, 2015, Brian Hamilton sent an email to the Government?s lawyer, Doreen Mueller, questioning why records were redacted. Doreen Mueller responded by email that the records were redacted for ?privilege?. Copies of those emails are attached as Exhibit to my Affidavit. On February 20, 2015, the Government sent a further response to Brian Hamilton?s request, on behalf of several Ministries. The cover letter accompanying the responses advised that "we have redacted the documents for privilege.? That letter is attached as Exhibit to my Affidavit. The documents provided were redacted, in some cases heavily redacted. Examples of some redactions are attached as Exhibit to my Affidavit. On February 27, 2015, the Government provided further responses on behalf of other Ministries. The letter accompanying the responses advised that ?we have redacted the documents for privilege.? The letter is attached as Exhibit to my Affidavit. Examples of some redactions are attached as Exhibit to my Affidavit. Other than the reference in some ofthe cover letters to the documents being "redacted for privilege?, no further information was provided to explain the redactions. {00983835 v4} -5- Notices to Produce in the face of the Government?s Providing Redacted Records 23. 24. 25. 26. 27. 28. 29. The Commissioner?s Office had given several extensions to provide records for the Investigation, and then received redacted records. On March 9, 2015, the Commissioner issued a series of Notices to Produce on Service Alberta, Executive Council and 11 of the Government Ministries that had provided the redacted records outlined above (the "Notices"). The Notices and cover letters were all in the same general form: examples are the Notices to the Minister of Aboriginal Relations and to the Minister of Service Alberta, which are attached as Exhibit to my Affidavit. On March 11, 2015, the Minister of Justice and Solicitor General, Jonathan Denis, QC ("Minister Denis?), wrote to the Commissioner, on behalf of all of the heads of public bodies that had received the Notices, requesting that the Notices be held in abeyance until the Alberta Court of Appeal issues its decision in University of Calgary (2013 ABQB 652). That letter is attached as Exhibit to my Affidavit. On March 13, 2015, the Commissioner responded to Minister Denis, with a detailed explanation as to why she could not hold the Notices in abeyance. That letter is attached as Exhibit to my Affidavit. The letter attached a letter from then-Minister of Justice Alison Redford, QC, stating that the Commissioner had the power to compel records that were subject to privilege. In the Commissioner?s March 13, 2015, letter, she referenced the ?Solicitor-Client Privilege Adjudication Protocol", which is in effect, but applies to adjudications, not to investigations. On March 18, 2015, Minister Denis wrote to the Commissioner, again refusing to provide the records and again stating that the Commissioner should wait until the Court of Appeal has ruled in the University of Calgary case. That letter is attached as Exhibit to my Affidavit. In this letter, Minister Denis also asserted that the Commissioner?s office has "changed its previous practice relating to inquiries of accepting written statements explaining the basis for claiming privilege? and stated that our practice violates privilege. I understand that Minister Denis is referring to the application of the Solicitor?Client Privilege Adjudication Protocol in a FOIPP inquiry in which an Adjudicator decides all issues of fact and law as between the parties and issues a binding order. This Investigation is not an inquiry. It is an investigation that will make findings and recommendations only. The Solicitor-Client Privilege Adjudication Protocol does not apply. As the Commissioner had previously informed Minister Denis in her letter of March 13, 2015 (Exhibit to my Affidavit referred to above), for the first 18 years FOIPP has been in operation, there was a noted level of cooperation from public bodies with the Commissioner?s office. However, in the past 18 months that has changed dramatically, {00983835 v4} 30. 31. 32. -5- and government public bodies are now refusing to provide records, which interferes with the Commissioner?s, and her office?s, ability to do their work. The Commissioner, in her letter of March 13, 2015, expressed that she was also greatly concerned that the attitude of the Government and of government public bodies was to now force her into Court every time a bare claim of privilege has been made by a public body, which would have a significant, and negative, impact on access to information, privacy, access to justice, use of Court resources and costs for all involved, most importantly the general public. She said, in her letter of March 13, 2015, that this would seriously hinder her ability to discharge her mandate, and in this case in particular, it would be very difficult, if not impossible, to determine if government public bodies are properly handling access to information requests under the FOIPP and whether there is political interference in processing access requests, since the Government is refusing to provide the Commissioner with hundreds of pages of evidence, alleging ?privilege?. In response, on March 19, 2015, the Commissioner again wrote to Minister Denis. That letter is attached as Exhibit to my Affidavit. In it she again stated her position that she required the documents to fulfill her statutory mandate, and would not accede to the Government?s request to ?park? her investigation. On March 19, 2015, the Government of Alberta launched this Originating Application. The reply letter accompanying the Application is attached as Exhibit to my Affidavit. Effect on the Investigation of the Government?s Refusal to Provide Records 33. 34. 35. 36. The scheme of FOIPP is that the Commissioner?s mandate includes holding the Government to account. To put it another way, the Government has established the Commissioner to provide oversight of the Government, including in respect of requests for access to information. The then?Justice Minister [see Exhibit to my Affidavit] and the Court in University of Calgary have stated the law: the Commissioner has the power to compel records alleged to be subject to legal privilege, including solicitor?client privilege. The Govern ment?s current stance has at least two important effects. The first is that the purposes of FOIPP cannot be achieved. Refusing to provide evidence and forcing the Commissioner into Court interferes with the Commissioner?s power to ensure compliance with FOIPP and her ability to conduct a timely compliance investigation. The second is that the Executive Branch of Government can thwart the Legislative Branch of Government (the Commissioner as an Officer of the Legislature). Deciding what evidence to give and not to give the Officer of the Legislature takes away the Officer?s power and gives it the Executive Branch. These points were known to the Government when it brought this application, and were recognized by Minister Stephen Khan (the Minister of Service Alberta who is responsible {00983835 v4} 37. 38. 39. 40. 41. -7- for FOIPP) when, speaking in the Legislature on March 18 and 19, 2015, about another ofthe Commissioner?s investigations, he said (attached as Exhibit to my Affidavit): remind the hon. Member that the office of the Information and Privacy Commissioner is an independent office. I believe it would be inappropriate for me to influence the investigation. We?ll cooperate, as I said, with the investigation, but the timeline is in her hands. is an independent investigation led by the office of the Information and Privacy Commissioner. It would be inappropriate for us to try to interfere or to rush the report The Commissioner has advised me, and I believe, that she estimates that, prior to 2012? 2013, no Ministries of the Government refused to provide the Commissioner with records, whether or not the records were alleged to be subject to privilege, including solicitor~client privilege. Since 2013?2014, many Ministries of the Government are refusing to provide the Commissioner with such records. It appears that the Ministries of the Government are acting in concert. The Commissioner?s statutory mandate, function, and public duty is to understand why this is occurring, and whether it is offside the law that the Government enacted. If so, the Commissioner has a statutory mandate and function within her investigative function to make findings and recommendations to the Government. The Investigation is in the public interest. It deals with access to information legislation. The Government has not explained why it has recently decided not to give the Commissioner records of the type that it previously gave her. Only the Commissioner can stand up to the Government on this issue; there is no one else. The Commissioner must, and is entrusted by the Legislature to, represent the public interest in respect of compliance by the Government with access to information legislation enacted by the Province of Alberta. The Commissioner must be in a position to assure Albertans that the access to information system is working well, which she cannot do if she cannot assure herself because the Government will not give her records. This application for judicial review interferes with, and further delays the Investigation, which is not yet concluded. I am advised by Glenn Solomon, QC, counsel to the Commissioner in this Action, that the Government?s judicial review Application is now scheduled to be heard on February 19, 2016, that being the first available date of the Court and counsel for the Government. Attached as Exhibit to my Affidavit is the March 25, 2015 confirmation to the Court ofthe hearing date. The Commissioner?s investigation is continuing, but will not be completed in the absence of the Commissioner being able to consider all of the factors touching on whether FOIPP is being complied with by the Government. The Commissioner?s office includes 13 people who have at least one law degree each, which is approximately one third of the staff members. Seven of those with law degrees {00983835 v4} -3- are active members of the Law Society of Alberta, three of whom directly provide legal advice to the Commissioner as requested by her. The Commissioner also routinely retains outside legal counsel for advice and representation. SWORN BEFORE ME at the City of Calgary, in the Province of Alberta, this 30th day of March, 2015. A Commissioner for Oaths in LEANNE SALEL Province of Alberta ANDREW Barrister and Solicitor {00983835 v4}