The Frustrations of a FOIPP applicant- the case of the APP (Part 2)

Updated 8 April 2023

Key Takeaways

By January 2023 all the technical work had been completed for a launch of the APP plan four months before the UCP campaign made no mention of reviving this policy recommendation of the “Fair Deal” Panel.

The public service relied on the expertise of outside parties due to lack of in house actuarial expertise. This FOIPP disclosure did not reveal how much the government ultimately paid even though Smith provided the $1.8-million figure to her 630 CHED Saturday call-in radio show.

Existing administrative structures aren’t conducive for sharing information as the onus is on the deputy head to decide what to disclose making it very difficult for senior officials to offer advice contrary to the preference of their political masters.

The “Fair Deal” Panel recommendation was acted on with alacrity. By June 2021, the Morneau Shepell report was completed but “patio-gate”was the beginning of Kenney’s demise as premier.

In Part 1, I examined FOIPP material related to the Alberta government’s appointment of an “engagement panel” to “consult with Albertans“ on the merits of an Alberta Pension Plan (APP). Part 2 examines over 278 pages arising from my November 2023 request for information on an Alberta Pension Plan – a more expansive request than the previous one. See Box A below for the text of the request.

Box A

All records, including notes, emails, memoranda reports, letters, graphs, tables, briefings, presentations, whether written, photographed, recorded or stored in any manner pertaining to the establishment of an engagement panel for the Alberta Pension Plan.

1. Office of the Deputy Minister,

2. Ministerial Correspondence Unit;

3. Financial Sector Regulation Division;

Time period April 1, 2020-November 3, 2023

Overview

The 278-page response constitutes a total FOIPP ministry review of over 700 pages of emails, speaking notes, embargoed news releases, action requests, and PowerPoint presentations. Since many of the pages redacted were multiple pages, the table below shows the total number of pages which were unredacted, partially redacted or completely redacted.

I am left with the sad conclusion that freedom of information is not “freedom” at all. For students of public policy, FOIPP represents a fruitless and helpless toil to gain any understanding of how public servants provide objective, non-partisan advice to their elected bosses.

Diane McLeod is Alberta’s current Information and Privacy Commissioner Source: Office of the Information and Privacy Commissioner

The APP is a special case because the elements of the Smith government and the Free Alberta Strategy ‘s sovereigntist aspirations are on full display; also on display is the particularly cynical consultation plan for Albertans.

TF000-2023-G-42 Records Package

The APP is a special case because elements of the Smith government and the Free Alberta Strategy ‘s sovereigntist aspirations are on full display, also on display is the particularly cynical consultation plan for Albertans.

In all of the 703 pages reviewed by the Ministry, 451 pages were fully redacted, 63 pages were partially redacted and 189 were unredacted. Most of the partially redacted pieces except for the names of officials were redacted leaving little meaningful insight in the government’s push to “free” Albertans’ pension money from the clutches of Ottawa and bay Street.

Of the 451 pages which were redacted were “redactions” because they these records are in the public domain which means the ministry is not required to reproduce the documents. Most of these documents were identified in the “closure” letter (see PDF) and include.:

TF000-2023-G-42 Closure Letter

(The latter two letters are in the public domain via X (formerly Twitter).

Jill Clayton is the former Information and Privacy Commissioner Source: 20th Annual Information and Security Conference

In Box B are listed exemptions used by Treasury Board and Finance to support redactions as well as the number of times these exemptions were applied in the request.

Box B
Section No.	Exemption	Number of times used *
4(1)(q)(i);	a record created by or for (i) a member of the Executive Council	2
4(1)(q)(ii)	a record created by or for (i) a Member of the Legislative Assembly	2
17(1)	Disclosure harmful to personal privacy 17(1) The head of a public body must refuse to disclose personal information to an applicant if the disclosure would be an unreasonable invasion of a third party’s personal privacy.	10
18(1)	Disclosure harmful to individual or public safety 18(1) The head of a public body may refuse to disclose to an applicant information, including personal information about the applicant, if the disclosure could reasonably be expected to (a) threaten anyone else’s safety or mental or physical health, or (b) interfere with public safety.	4
20(1)	Disclosure harmful to law enforcement 20(1) The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to (m) harm the security of any property or system, including a building, a vehicle, a computer system or a communications system	3
21(1)	Disclosure harmful to intergovernmental relations 21(1) The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to (a) harm relations between the Government of Alberta or its agencies and any of the following or their agencies: (i) the Government of Canada or a province or territory of Canada; (ii) a local government body,	10
22(1)	Cabinet and Treasury Board confidences 22(1) The head of a public body must refuse to disclose to an applicant information that would reveal the substance of deliberations of the Executive Council or any of its committees or of the Treasury Board or any of its committees, including any advice, recommendations, policy considerations or draft legislation or regulations submitted or prepared for submission to the Executive Council or any of its committees or to the Treasury Board or any of its committees.	27
24(1)(a)	24(1) The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to reveal (a) advice, proposals, recommendations, analyses or policy options developed by or for a public body or a member of the Executive Council,	55
24(1)(b)	The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to reveal (b) consultations or deliberations involving (i) officers or employees of a public body, (ii) a member of the Executive Council, or (iii) the staff of a member of the Executive Council,	18
24(1)(g)	(g) is a substantive rule or statement of policy that has been adopted by a public body for the purpose of interpreting an Act or regulation or administering a program or activity of the public body.	1
25(1) (b)	Disclosure harmful to economic and other interests of a public body 25(1) The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to harm the economic interest of a public body or the Government of Alberta or the ability of the Government to manage the economy, financial, commercial, scientific, technical or other information in which a public body or the Government of Alberta has a proprietary interest or a right of use and that has, or is reasonably likely to have, monetary value;	9
27(1)	Privileged information 27(1) The head of a public body may refuse to disclose to an applicant (a) information that is subject to any type of legal privilege, including solicitor-client privilege or parliamentary privilege,	4
29(1)	Information that is or will be available to the public 29(1) The head of a public body may refuse to disclose to an applicant information (a) that is readily available to the public, (a.1) that is available for purchase by the public, or (b) that is to be published or released to the public within 60 days after the applicant’s request is received.	8
*	Numbers do not include situation where exemption section is cited several times on one page. This is particularly true for section 24(1)(a)

Analysis

Section 24(1)

The most frequent exemption used was section 24(1) (a) used at least 55 times. This number underestimates by a factor of two times since this section was often cited up to five times on one page and multiple times on many partially redacted records. As the excerpt below illustrates, exemption for section 24(1)(a) – “(a) advice, proposals, recommendations, analyses or policy options developed by or for a public body or a member of the Executive Council,” is used five times on one page. An associated exemption 24(1)(b)- “consultations or deliberations involving (i) officers or employees of a public body, (ii) a member of the Executive Council, or (iii) the staff of a member of the Executive Council,” is utilized twice. Strangely the subject matter is redacted although it seems obvious that the subject matter must relate directly or indirectly to the APP proposals. It would be interesting to find out what other matters the APP was related to, if any. This email came after the procurement process was completed and Morneau Shepell was selected as the winning bidder. It also followed the delivery of the Morneau Shepell report in April of 2021.

TBF REcords FOIPP APP p. 79_20240406_0001

The date of June 2021 is approximately one year after the release of the Fair Deal Panel report and two months after the Morneau Shepell (Lifeworks) initial report. This alacrity by the government Fair Deal report in May 2021 to a full blown analysis of the APP concept in less than a year underlines how seriously the Kenney government and Toews’ ministry took this “Fair Deal” recommendation.

Premier Smith and Finance Minister Toews Source: The Toronto StarToeews was Finance minister under Kenney before and after he ran for the YCP leadership ultimately losing in a close race to Smith. Smith subsequently reappointed Toews to his previous ministry..

We do not know what the attachment “For interest” sent to both staff in Pensions Policy and the assistant deputy minister (ADM) for economics and fiscal policy at the same time contained. David Mulyk, who is the department’s point man and pension expert, provides some comments to another ADM- and his two-line email is redacted. We won’t know what relevant document may have come across Mulyk’s desk to pass on. As such, we do not know the type of considerations (political or otherwise) that may have been factored into policy advice given to the Finance minister, Treasury Board or Executive Council.

This page is but one example of limiting information that would be helpful for outside researchers to better understand how government decisions are being made, decisions which will have an out sized impact on Alberta citizens.

Section 22(1)

Section 22(1)– “reveal the substance of deliberations of the Executive Council or any of its committees or of the Treasury Board or any of its committees, including any advice, recommendations, policy considerations or draft legislation or regulations submitted or prepared for submission to the Executive Council or any of its committees or to the Treasury Board or any of its committees,” is cited 27 times.

This sub-section is pivotal to protecting general and more “political” discussion at the cabinet table. “Cabinet confidences” are traditional shields used to preserve the confidentiality of cabinet and treasury board decisions. The rationale frequently given is to allow “candid discussion” among ministers and their senior officials, if present. This obstacle to full transparency- like closed-door City Council meetings- is regarded as necessary and almost sacred to the operation of our system of responsible government. This form of democracy has been adversarial and is increasingly polarized. Our pan-Canadian freedom of information superstructure gives cabinet and cabinet ministers a shield of confidentiality whether a policy issue is considered for partisan advantage or not.

This section is used to redact formal advice to the Minister where under the heading “policy options” the section is fully redacted. This is highly troublesome because the outlining of public policy options is a central responsibility of senior public servants. Without the text, the analyst is unable to know how the public service has performed this fundamental canon of modern public policy-making. Another problematic treatment are redactions concerning “stakeholder reaction” for example the following disclosure on 15 March 2021 advice to Toews (pp. 76-78) states

STAKEHOLDER REACTION
•
Public reaction to this topic has been mixed.
•
The Fair Deal Panel Report indicates that 42 per cent of 1,000 Albertans polled by

Stakeholder reaction is a pivotal concern for political scientists and journalists who want to know how popular this policy choice is. Why the results of the Fair Deal Panel report is suppressed is unfortunate. Surely taxpayers have a right to know what publicly funded, as opposed to tax-subsidized political party polling says.

In this context the frustration of policy analysts and media with the whole “freedom of information” system contributes to a broader public cynicism about both the honesty and the functionality of governments. This in turn leads to a widespread and, particularly in Alberta, deep-seated antipathy to taxes and government in general. “Open government” in effect becomes an Orwellian term for de facto closed government.

The page above also provides a glimpse into the decision-making and the effort that goes into determining what to release and what to redact. I truly empathize with the position of officials who must decide whether to disclose information and advice that may contradict the narrative given to the public by their political masters. This dilemma is especially difficult since politicians ultimately control a senior official’s destiny for up to four years. Deputy ministers appointed by Orders in Council serve “at the pleasure” of the government. Under the FOIPP legislation, it is the deputy head of a ministry or public agency who ultimately must decide what is released and what is held in confidence. The deputy will be held accountable on how they use their discretion by their ministers.

Ultimately accountability is to the public because it is the public that Alberta’s public service serves, not the government of the day. Politicians may not fully weigh information in an unbiased manner and may not fully weigh the public interest in an unbiased manner. A government which does not want to hear contradictory evidence and expertise is a threat to democracy.

Sections 17(1) and 18(1)

As the chart above shows, other mechanisms to cloak government decision-making include situations which may “threaten anyone else’s safety or mental or physical health dangers.” This one occurs four times while the related section 17(1) – privacy of personal information- which is used at least ten times.

Section 18(1) is used in relation to correspondence with Morneau Shepell to keep private the names of persons working on the project. This is confirmed by the withholding of the author’s or authors’ names from the Lifeworks Report. “[Redacted to protect privacy – Original signed]”

Perhaps the thinking is that the individual(s) who signed off the report might be the object of physical or other threats. In any case, Lifeworks involvement in explaining and defending the report’s findings- assumptions, methodology has been intentionally left to ministers and public servants.

Section 21(1)

Under sub-section 21(1) governments may refuse to disclose information which “could reasonably be expected” to harm relations between the Government of Alberta or its agencies and any of the following or their agencies and the Government of Canada or a province or territory of Canada, or a local government body, This provision was used 10 times mainly after the release of the Lifeworks report and the hard roll-out of an expensive media advertising campaign to persuade Albertans how good an APP would be. Soon after the splashy 20 September release of the Lifeworks’ report, and with an upcoming meeting of finance ministers, the other eight provincial and federal ministers wanted to talk to Nate Horner about the impact of an APP on their respective provinces.

This conversation heated up in October 2023 with exchange of letters between Trudeau and Smith and Ontario’s Finance minister also raising concerns about the Alberta plan. At the end of October as the meeting drew near there were a series of emails containing dates and names of officials but not the body of these short emails.

Section 25(1)

Section 25(1) relates to the disclosure harmful to economic and other interests of a public body and is used 9 times. In the first instance – an email dated 16 December 2020, (p. 67) refers to a working session dealing with model inputs. iI is difficult to know what specific redaction the page refers to. An unnamed public body had an interest in not disclosing its role in providing input into a model. AIMCo may be the public body involved but the public does not know what involvement AIMCo has had with respect to the Alberta Pension Plan bid, if any. AIMCo would be the logical candidate to manage investments for an APP and, given its acquisition of the Alberta Teachers Retirement Fund assets and the Workers’ Compensation Board, it would likely be interested in “growing its book.”

TF000-2023-G-42 p. 67_20240407_0001

This sub-section is also cited in a July 2021 Action Request relies heavily on protecting information of the public body which might lead to providing trade secrets, other proprietary information which may lead to a financial loss. Another public body, besides AIMCo with an interest in pensions would be the Alberta Pensions Services Corporation which provides administrative support to various provincial government pension plans. APS would be a resource, like AIMCo, to give input to TBF with respect to the costs to administer pensions and investment management arrangements.

Finally, it is passing strange that there was not one instance that I could detect that involved the ministerial correspondence unit. One would surmise that there would have been correspondence to the Finance Minister on the APP concept between April 2020 and November 2023. Indeed, one would think an email and action request scan would have picked up letters from the public and drafted replies from the minister or even the premier on this subject, Perhaps not. Perhaps Albertans are so jaded about the handling of this file that they have given up worrying about the prospects of an APP. But I doubt that.

Conclusions

This FOIPP request shows that the public service relied on the expertise of outside parties due to lack of in house actuarial expertise, but we do not know how much the government ultimately paid through this FOIPP disclosure process. Estimates were given in the document ($800,000) and the final amount of $1.8-million was eventually reported by the media.

Secondly, the process was protracted. Although, the work had been completed by July 2021 and a technical briefing prepared on the Economic Impact of a Reduction of Pension Contribution Rate in Alberta, there was no formal announcement. At the time the government was preoccupied with COVID and patio-gate had led to the demise of Kenney and a leadership review. By January 2023, four months before the provincial general election, a departmental technical briefing had been prepared which showed savings of up to #1250 per year or $2500 per year for self-employed individuals. It also projected an asset transfer of $334-billion as of 1 January 2027. Thus it was evident to Premier Smith, Toews and Smith’s inner circle that the bureaucracy had readied a deck giving a very positive view about the econoic benefits – lower contribution rates. However, the deck went nowhere. Intervening was a provincial election where Smith, knowing opinion was strongly against this idea, did not raise the issue as a platform and said she wouldn’t touch ALbertans’ pension while accusing Notley’s NDP of “fearmongering.”

Danielle Smith promised not to touch pensions during the 2023 election. Source PressProgress

Thirdly, administrative structures aren’t conducive for sharing information as the onus is on the deputy head to decide what to disclose which it makes it very difficult for senior officials to offer advice which is contrary to the preference of their political masters. I don’t know of any easy solution short of significantly rethinking cabinet confidences and legal privilege- a subject few politicians or officials would take on.

Lastly, the Alberta Pension plan dossier illustrates the number of resources which are brought to bear on major public policy issues. Box C lists the players from three departments, TBF, Executive Council, and Justice who touched this issue. Several groups within TBF were involved, primarily the Pensions Policy area but also economics and fiscal policy, the deputy minister, her office, and the communications group closely coordinated with the communications office under the Premier.

Box C Dramatis Personae

Office of the President of Treasury Board & Minister of Finance

Jess Robertson, Chief of Staff

Bryce Selzler, Senior Policy Advisor

Treasury Board and Finance

Deputy Minister’s Office

Athana Mentzelopolos, Deputy Minister, prior to 24 October 2023

Kate White, Deputy Minister after 24 October 2023

Sharon Lopatka, Chief of Staff, Deputy Minister’s Office

Dodi Zuczek, Executive Scheduler, Office of the Deputy Minister,

Samson Swan, Manager, Strategic Policy and Legislation, Office of the Deputy Minister, Treasury Board and Finance

Pensions

Mark Brisson, ADM- Financial Sector Regulation and Policy

David Mulyk, Executive Director. Pension Policy, Financial Sector Regulation and Policy

Lois Stewart- Director, Pension Policy, Pension Policy

Tara Dahl, Director Pension Policy, Pension Policy

Haripaul Pannu, Deputy Superintendent of Pensions, Employment Pensions,

John Karagoulis, Manager, Pension Policy, Pension Policy, Treasury Board and Finance

Vanessa Sands, Pension Policy Advisor, Pension Policy, Treasury Board and Finance

Economics and Fiscal Policy

Mark Parsons ADM, Fiscal Policy and Economics prior to 8 June 2021

Paul Lebane, Assistant Deputy Minister, Economics and Fiscal Policy, Economics and Fiscal Policy Division, after 8 Ju e 2021

Catherine Rothrock- Executive Director- Economics

Chris McLeod- Currently Director, Economic Analysis and Modelling Unit. Jobs, Economy and Trade

Timothy Jobs, currently Director. Strategic Program and Operations, Technology and Innovation

Kathleen Macaspac Director, Economic Forecasting and Analysis, Economic Forecasting and Analysis

Jason Waywood, Executive Director, Policy, Statistics and Analytics

Kerstin Bzdel, Senior Manager, Federal-Provincial Fiscal Relations, Policy, Statistics and Analytics

Aimee Charest, Issues Manager, Economics and Fiscal Policy Division

Communications

Lauren Walsh, Assistant Communications Director, Treasury Board and Finance, Communications and Public Engagement, Government of Alberta

Kathy Morin, Communications Director, Communications

Stuart Fullarton, Communications Advisor, Treasury Board and Finance, Communications and Public Engagement, Government of Alberta

Other Treasury Board and Finance

Dana Hogemann, Assistant Deputy Minister and Senior Financial Officer

Justice

Margaret Mansell, Barrister and Solicitor, Central Services

Scott Chen, Barrister and Solicitor, Central Services

Executive Council

Taryn Cronk, Director, Planning and Coordination, Office of the Deputy Minister

Christopher Ewert, Chief of Staff, Office of the Deputy Minister