CBC.ca: Canada:
Wednesday, September 28, 2016.
NB Liquor has threatened to sue the province's
access to information commissioner over a damning report that concludes the
Crown corporation "considered itself above the law" in processing a
routine right to information request from CBC News.
The liquor corporation issued an unprecedented
legal threat to commissioner Anne Bertrand on Monday, accusing the independent
officer of issuing a "slanderous" report and "acting in bad
faith."
Her report
details a "culture of secrecy" at NB Liquor, describing how the
public body treats right to information requests as "an unnecessary
inconvenience or irritant," even though the law says otherwise.
"It
became immediately obvious to us that NB Liquor at its highest management level
did not care to recognize the relevance of the [right to information] legislation
or the impact of its approach in this case, especially to the oversight office
tasked with ensuring the law is well applied and followed," Bertrand
wrote.
Brian
Harriman, the president and chief executive officer of NB Liquor, denies the
Crown corporation broke the law.
"Trying
to characterize our actions as being arrogant or disinterested or not acting in
good faith is, I think, completely unfair," Harriman said in an interview.
NB Liquor's
lawyers sent a letter to Bertrand on Monday, advising her of the "intent
to pursue legal action."
The letter,
sent by Stewart McKelvey lawyer Clarence Bennett, says the commissioner's
report contains "blatant falsehoods, conjecture, defamatory comments, and
baseless accusations."
"Such
statements have no basis in fact, are well beyond the commissioner's statutory
mandate and have been made gratuitously, solely to embarrass NB Liquor and
certain of its employees and therefore have been done in bad faith," the
letter says.
That prompted
Bertrand to cancel scheduled interviews about her report on Tuesday with CBC
News. Her office hasn't responded to further requests for comment.
The
province's Right to Information and Protection of Privacy Act protects the
commissioner from legal proceedings "unless it is shown that he or she
acted in bad faith."
When asked
what he would say to critics who may suggest he's trying to silence the
commissioner, Harriman said the Crown corporation has been "very transparent."
"I think
the truth of the matter is we have a great story to tell about everything
that's happening at NB Liquor," he said.
A
spokeswoman for Finance Minister Cathy Rogers, the minister responsible for NB
Liquor, declined comment because the issue could potentially go to court.
The saga
began more than 14 months ago, when CBC reporter Daniel McHardie filed a right
to information request, asking for records that would explain NB Liquor's
decision to continue its Growler pilot project.
NB Liquor
refused access, saying there are too many records and releasing them would harm
"third party business interests."
CBC News
appealed the decision to Bertrand's office.
During her
investigation, Bertrand asked the Crown corporation to provide a list of
relevant records to decide what can be released.
"NB
Liquor refused to do so and instead, NB Liquor instructed outside legal counsel
to send us a letter advising that processing the records would unreasonably
interfere with NB Liquor's operations," Bertrand wrote in her report.
In detailing
two meetings she had with management at NB Liquor, Bertrand wrote that
officials "boasted" about guarding confidential information from
craft beer producers, "despite any statutory obligations" under the
law.
She found the
request from CBC News was not too broad or unreasonable and questioned whether
NB Liquor ever conducted a "full search" for the records.
CBC News has
still not received these records.
Bertrand's
report, issued last week, is called, "A case about what not to do when
receiving and processing a request for access to information submitted under
the Right to Information and Protection of Privacy Act."
That title
drew the ire of NB Liquor's lawyers, who cited it as evidence of "bad
faith."
"The
statement is juvenile, with the sole intent of humiliating NB Liquor and is
unsupported by the facts actionable bad faith."
Bertrand's
report goes on to say that NB Liquor wasn't open and transparent and
"considered itself above the law."
The public
body failed to co-operate with her investigation and "failed to issue a
response that was lawful, meaningful, or made sense as required by law,"
the report says.
In an
interview on Monday, Harriman rejected the commissioner's findings, saying the
CBC request was too broad.
"We seem
to have a disagreement on what satisfies the request," he said.
He also
questioned the value of the province's right to information legislation,
describing it as a "financial burden" for public bodies to meet RTI
requests.
"The
spirit and intent is right and I think we are obligated to meet those
requests," Harriman said.
"But
when you have people in departments who are solely focused on answering [right
to information] requests, in light of the fact we have many other financial
challenges in the province, I'd question if that's a good use of money."
NB Liquor has
spent at least $6,000 so far on hiring a lawyer to challenge Bertrand.
When asked if
that is a good use of taxpayer money, Harriman said he hoped to resolve the
case in "a non-legal fashion."
"At this
point in time, I'd like to reserve an answer on that one until we know further
how we're going to proceed," he said.
The letter
from NB Liquor's lawyer doesn't mention anything specific Bertrand should do to
avoid legal action.
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