Archive for November, 2018

Caring for children with severe disabilities financially devastates families

November 29, 2018

Caring for children with severe disabilities financially devastates Tennessee families

https://www.tennessean.com/story/news/2018/11/26/children-disabilities-costs-medicaid-tennessee-tenncare-katie-beckett-tefra/1924986002/

JESSICA BLISS  |  NASHVILLE TENNESSEAN Updated 8:41 a.m. MST Nov. 27, 2018

Middle Tennessee family raising daughter with severe disabilities struggles to afford care

The Kauffmann family talks about caring for their daughter

First, Rondi Kauffmann heard her baby cough in the back seat.

Then she heard the little girl start to choke.

That’s when she started to panic. Kauffmann sped into a gas station parking lot and grabbed 6-month-old Adelaide out of the car.

The baby’s eyes were glassy and unresponsive. She was not breathing.

Without another adult there to help, Kauffmann shoved her cellphone into her 7-year-old’s hands with the instruction to call 911. Then she yanked a terrified college kid out his white Altima at the gas pump and told him to talk to the emergency operator.

She administered rescue breaths on her baby until the paramedics arrived.

When they did, she was forced to put Adelaide in the ambulance alone with the paramedic and follow behind in her car.

It never should have unfolded that way, Kauffmann says. If the family had a private-duty nurse, then Adelaide — who was born with debilitating spinal muscular atrophy — would never be without a dedicated adult to respond to her medical emergencies.

But, despite Adelaide’s extraordinary needs, the little girl can’t qualify for TennCare support. The Kauffmanns are a middle-class family. Their household income is too high.

In Tennessee, nearly all children with severe disabilities who come from middle- and high-income families do not qualify for the state’s Medicaid program.

As a result, many parents shoulder the burden of thousands of dollars in medical bills for the therapies and vital equipment that private insurance does not cover. Others simply cannot provide their children the care they need because the cost is too much and the state will not help.

A pathway to a solution

Many states across the country have a solution for these families.

It comes in the form of a broad program created in honor of a young girl named Katie Beckett, who contracted a brain infection at 5 months old and suffered paralysis that left her unable to breathe or swallow without the assistance of a ventilator.

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Beckett spent three years in the hospital, but when she was finally ready to return home to the care of her parents, her family had reached its $1 million private insurance cap and the little girl faced the reality of losing the Medicaid coverage that supported her medical needs only if she lived in an institution or nursing home.

In 1981, President Ronald Reagan’s administration took interest in Beckett’s story and implemented a program in her name that allowed the girl to go home to her family’s care and retain her Medicaid coverage so her medical expenses would not bankrupt her parents.

Beckett lived to be 34 years old, and in her obituary in 2012, The New York Times called Beckett “the inspiration for regulations that have allowed more than 500,000 disabled children to live at home since 1981.”

In the years since then, nearly every state in the country has adopted some version of the Katie Beckett program or a similar eligibility option known as TEFRA, according to the Kaiser Family Foundation.

Tennessee has not.

“I can say with confidence there is no program in Tennessee designed as a pathway to the Medicaid program for children with long-term disabilities or complex medical needs,” said Sarah Sampson, deputy director of the Tennessee Disability Coalition.

‘It’s not safe to leave her side’

The Kauffmanns’ Dickson County farm home looks like a modified intensive care unit, with machines whirring and monitoring their daughter’s every vital sign.

Little Adelaide, a girl with silky tufts of red hair and big eyes, lies on her stomach in the middle of their living room reaching for a row of beads on a stick in front of her.

It’s therapy time for the 1-year-old, whose rare genetic disorder caused her muscles to begin atrophying just weeks after she was born, making it difficult for her to move or swallow.

With her parents smiling and cheering beside her, Adelaide practices a new trick, lifting her hips off the ground ever so slightly. Her dad, Adam, puts on a music playlist featuring Michael Jackson to get her in the mood.

Every once in a while, one of the flashing monitors attached by wires to Adelaide’s body will beep, indicating her heart rate is dropping. Adam Kauffmann will calmly pick up his little girl, clear her airways with a suction tube, and then lie her back down.

It seems nerve wracking, but this is nothing compared to when Adelaide is really sick, her parents say.

When she got a cold at just 6 months old, what would have been a few sniffles for most people was enough to put her in the ICU for days. When she was discharged, one of her parents had to be awake and at her bedside 24 hours a day to keep her alive.

At the height of their fear, Rondi and Adam Kauffmann worried every second that their daughter would stop breathing.

Without a home nurse to help, the Kauffmanns shared overnight shifts, staying up three hours at a time, suctioning mucus from her nose and throat and using a machine to help her cough and keep her airways clear.

In the mornings, when Rondi Kauffmann would go to work as a surgeon at Vanderbilt University Medical Center, Adam would be home all day facing that same level of intensity while caring for his daughter alone.

Always afraid to leave her side.

“There were days when she was sick that I was literally praying ‘Dear Lord, don’t let my child stop breathing while I’m using the bathroom,’ ” says Adam Kauffmann, a former Army helicopter pilot who now serves as Adelaide’s primary caregiver.

“It’s constant. There’s no break at all. And it’s not safe to leave her side.

“That shouldn’t be that way.”

What should happen, the Kauffmanns say, is that an in-home nurse should assist. Someone who can make sure Adelaide doesn’t stop breathing while her parents sleep at night and who can sit next to her in the back seat of the car monitoring her heart rate when they drive to her many doctors’ appointments.

The Kauffmanns’ private insurance won’t cover an in-home nurse, and — with three kids at home and only one working parent — the family can’t afford one on their own. Hiring someone to work even just five nights a week would cost $150,000 a year, they say.

A road map and state resources

Medicaid is the primary source of coverage for people of all ages with severe disabilities — in Tennessee, that coverage is known as TennCare.

In 2016, TennCare closed enrollment to three Home and Community-Based Services waivers offering programs for those with disabilities. It shifted focus instead to a new long-term services program for people with intellectual and developmental disabilities called Employment and Community First CHOICES.

Within that program there is one benefit group, Essential Family Supports (sometimes called CHOICES Group 4), that was created specifically for families caring at home for a child under the age of 21 who has an intellectual or developmental disability.

It was meant to serve as Tennessee’s version of the Katie Beckett option.

“The 1915-c Home and Community-based waivers for a long time allowed children to qualify without counting parents’ income,” said Patti Killingsworth, assistant commissioner and chief of long-term services and supports for TennCare.

“In the ECF CHOICES program, we do the exact same thing … when a child needs a certain level of care.”

Disability advocates, however, say the limitations of the CHOICES program are many — and it does not offer the same inclusionary coverage that a Katie Beckett option would.

To begin with, Sampson said, the intent of the CHOICES program as laid out by the TennCare Bureau is “to create a road map that will help individuals with intellectual and other developmental disabilities achieve their employment goals.”

Enrollment priority is given to those people with disabilities who need support to keep a job, who are about to finish school and need help to get a job, or who want to get a new job.

“That is very different than a program that would be designed to help children with complex medical needs access health care,” Sampson said.

Additionally, state funding is enough to support only 3,000 children within the Essential Family Supports benefit group.

The program is currently full, Killingsworth said, except for spots reserved for families who are struggling to meet a child’s care requirements at home and are concerned about the sustainability of that living arrangement.

“Not every child who has medical needs would meet that criteria,” she said.

“Not to underplay the demands on families, but many families are able to meet that burden. They have private insurance, they may have income and family to help them. They have lots of resources that come to bear.”

Those resources penalize thousands of children across the state, disability advocates say, because their parents make enough money to put a roof over their heads but often not enough to support the costs of their severe, sometimes life-threatening, developmental disabilities.

Small blessings but still no help

The Kauffmanns do have many reasons to count their blessings.

As a surgeon specializing in breast cancer at Vanderbilt, Rondi Kauffmann has emergency training most parents do not, though she certainly was not taught how to handle the full-time needs of her daughter in medical school.

Adelaide also has a new medicine, which is helping her muscles get stronger. Before it came on the market, Adam Kauffmann says most babies with Adelaide’s condition weren’t expected to live past their first birthday.

And Rondi Kauffmann’s primary insurance has been very good about covering all of her daughter’s hospitalizations, treatments and necessary equipment.

But it does have a specific exclusion in the policy — it will not provide home, private-duty nursing care.

The Kauffmanns say they have tried every venue they can: federal Supplemental Security Income (SSI), the state’s Employment and Community First CHOICES program, appeals to their insurance company and going directly to TennCare.

No one will help.

“And the reason is,” Adam says, “Rondi has a job.”

The only program that covers private-duty nursing for children is Medicaid, or TennCare in Tennessee, and that’s what they cannot get because they don’t meet the household income requirements, which much be less than $2,250 per month.

“That is actually a very modest income level,” Rondi Kauffmann says. “So it’s not just us that’s excluded. It’s basically anyone who had a professional full-time job.”

Across the state, other families raising children with severe disabilities can commiserate.

In West Tennessee, Jennifer Austin and her husband incurred $4 million in medical expenses during the first year of their daughter’s life because they were told not to apply for TennCare to support their now 19-month-old child with Trisomy 18.

On the east side of the state, Sean and Jessica Fox — both full-time working parents with employer-based health insurance — spend hundreds of dollars a month on feeding tube supplies and copays for the more than 19 health care providers their 4-year-old daughter, Claire, sees.

Claire Fox was born with Cri du chat, a chromosomal deficiency that caused multiple dangerous heart deformities and has required continuous care from the day she was born.

She received TennCare coverage until just before her second birthday, when, her mom says, the family was notified the coverage would be terminated “because we were ‘over the maximum income allowance.’ ”

“This is a path these kids didn’t choose,” Jessica Fox says. “My family didn’t choose this. We did everything right.

“There has to be a workable solution for working families.

“We have nowhere to go. We are out of options.”

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Taking off a ‘tremendous burden’

Ascertaining exactly how many of the approximately 1.5 million children in Tennessee may be eligible for a Katie Beckett or TEFRA program is difficult.

Advocates and state agencies struggle to determine even how many children with intellectual and developmental disabilities there are in the state. The best estimate comes from data collected through the federal Individuals with Disabilities Education Act (IDEA), which ensures services for children with disabilities throughout the country.

That program served 128,936 children ages 3 to 21 in Tennessee during the 2016-2017 school year.

But only a small percentage of those children would meet the Katie Beckett standards.

To be eligible they would currently not be covered by TennCare and they would have developmental disabilities severe enough to necessitate the high level of specialized care typically provided in a hospital, skilled nursing facility or intermediate care facility.

The Tennessee Disability Coalition estimates that between 1,200 and 3,900 children in the state may be eligible for a Katie Beckett-type program under those stipulations.

“We want kids who need care to get the care they need regardless of parent income,” Sampson said, “and if they can, that takes a tremendous burden off the whole family and the entire family can benefit.”

3 extreme options

Without a Katie Beckett-type program in Tennessee, the Kauffmanns have been told they have three options to get coverage for the nursing care their daughter needs.

First, they could get a divorce. Adam Kauffmann could remain Adelaide’s primary stay-at-home caregiver. He could rent an apartment and move with Adelaide down the road. Without income, they would qualify for TennCare.

Or, Rondi Kauffmann could quit her job. The family could give up their sole source of income and the insurance coverage they do have, empty their savings accounts and live destitute. They also would qualify for TennCare that way.

Or, they could move to another state.

They haven’t ruled out that last option, but they love their land in Tennessee where Adam Kauffman hopes one day to have a small sustainable farm to sell homegrown healthy food to the neighbors and to feed his own children.

A place where his kids, especially his little Adelaide, can play — maybe with a home nurse by her side.

Reach Jessica Bliss at jbliss@tennessean.com or 615-259-8253 and on Twitter @jlbliss.

What is Katie Beckett or TEFRA option?

It is an eligibility pathway for the Medicaid program given to certain children who have long-term disabilities or complex medical needs and live at home. It allows children to receive Medicaid coverage for services like therapies and nursing care without being excluded because a family’s household income is too high.

Why it is needed?

The specialized and intensive services needed by children with long-term disabilities often are not available through private insurance. That results in high out-of-pocket expenses that can deplete a family’s resources — or result in lack of important medical interventions and care.

What would it mean for Tennessee?

It would provide families currently excluded from TennCare coverage because of income a pathway to coverage for therapies and nursing support that could help their children with severe disabilities survive and thrive.

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Will both of you Ministers be proud of what you have accomplished? Will your cabinet be proud? How many people do you plan to hurt? How much treatment to you plan to deny? How many lives to you plan to ruin? Is there a point where it is all worth it? Are tax cuts worth my son’s life? His future? Your “new era” means that I actually have to ask these questions. Your “new era” is nothing short of immoral. If you allow it to continue unchecked, so too are both of you. Rachel Notley

November 6, 2018

https://featbc.org/discussions-board/reply/2659/


Lou Arab

Member

Dear FEAT Members,

My wife wrote an excellent letter to Gordon Hogg and Christy Clark, with copies to all the MLAs and the media. I want to share it here. In another posting, I will post the unbelieveable response from one Liberal MLA.

Lou Arab (Ethan’s Dad)

—————-

I am the mother of a beautiful blonde three year old boy. I want you to imagine yourself , going through what I have gone through in the last two and a half years.

You wake up every morning and hug your six month old baby. You marvel at his beauty. You make plans for his future. You bask in his smile. You take your baby to a place with one or two other children the same age. You stand back and smile as they crawl around and over eachother, exploring, playing. He looks back at you with a smile, just to check that you’re still there. You’re so proud. A few months later, it’s his first birthday party. Your baby’s beauty has increased tenfold. You didn’t think it was possible. Two of the other babies there are walking. They laugh and look at eachother. A third one, not quite walking, declares “mama!” and crawls toward her mother. Your baby stares into space, lost in thought. The birthday cake arrives. Your baby desolves into frightened tears. The cake is taken away. You try to interest your baby in the other children. The tears increase. A bad day you think to yourself. You feel your throat tighten. Six months later. Still no words from your child. He’s just started to walk. You’ve been to see your family doctor. “Everyone develops at their own pace” you’re told. You demand an appointment with another doctor. An eyebrow is raised. You’re told to come back in another six months. A speech therapist tells you that your baby is “a little behind”. You go back to your doctor. You demand a referral, and then another. You are desperate. Finally after six months of telling you that “there’s nothing to worry about”, suddenly the collective opinion changes. You are told that you child is “probably autistic”. You’re forced to wait another six months to get the “formal” diagnosis. You need that so that you can get help for your child. You grieve. You cry. You don’t sleep. Your beautiful child continues on, unsuspecting, in his world. You cry some more…alot more. Then you “get busy”. Something must be done. You read everything you can find. You discover that something CAN be done. You hear that the new government promised treatment. The deputy premier, a new mother herself, personally made a public promise during the campaign. You thank God for your timing. You feel bad for those parents that came before you whose children were not able to get the treatment you’ve been promised. You wait. Two months, four months…the treatment gets put off again, and again. It will be coming soon you’re told. Then you are told that “a 30% cut will be made to the budget”. Tax breaks were more important. You look over at your beautiful child, just turned 3 years old. He looks up, he smiles. He returns to his odd little routine. He has no treatment.

Tax breaks are not more important. Anyone who says they are is immoral. They deserve to go through what we have gone through.

They probably won’t. Only 1 in 160 are autistic. The odds are on your side Christy. Do you deserve to enjoy the benefits of those odds? If it were just you, I would not be so sure. But your child has done nothing wrong. So your baby deserves to be healthy.

Will both of you Ministers be proud of what you have accomplished? Will your cabinet be proud? How many people do you plan to hurt? How much treatment to you plan to deny? How many lives to you plan to ruin? Is there a point where it is all worth it? Are tax cuts worth my son’s life? His future?

Your “new era” means that I actually have to ask these questions. Your “new era” is nothing short of immoral. If you allow it to continue unchecked, so too are both of you.

Rachel Notley

 

Let’s Talk About Access to Information in Alberta: Part One

November 5, 2018

https://ablawg.ca/2018/11/05/lets-talk-about-access-to-information-in-alberta-part-one/

Let’s Talk About Access to Information in Alberta: Part One

Posted on November 5, 2018 by Drew Yewchuk

By: Shaun Fluker and Drew Yewchuk

PDF Version: Let’s Talk About Access to Information in Alberta: Part One

Legislation Commented On: Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25

The Faculty’s Public Interest Law Clinic handles a lot of inquiries from the community that engage with Alberta’s access to information legislation: the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 (FOIP Act). Simply put, there is a high demand for the disclosure of information collected, produced and otherwise held by state officials. The Information and Privacy Commissioner, who serves as an officer of the Legislature (FOIP Act, s 45), is responsible for overseeing the administration of the FOIP Act with the assistance of the Office of the Information and Privacy Commissioner (OIPC). In its 2015-2016 and 2016-2017 reports to the Legislative Assembly the OIPC indicated the access to information process in Alberta is approaching a crisis. Since commencing operations in 2015, the Public Interest Law Clinic has developed some expertise on working within the FOIP Act, and we would agree the system needs some critical attention. This post summarizes our current observations in this regard and, as the title to this post suggests, we see this as the beginning of a longer conversation. In order to illustrate the process and some of the problems within it, we refer to a request for information filed by the Clinic in July 2017, which is still ongoing, with respect to a creative environmental sentence imposed on CN Rail (see here for details on the offence and the creative sentence).

Access to information legislation provides an interested person with a right to the disclosure of records in the control of government departments (FOIP Act, s 6(1)). This is a right in the Hohfeldian sense in that the legislation imposes a correlative duty on the part of a government department to disclose records to the interested person. However, this right to the disclosure of records is qualified by many provisions in the FOIP Act which limit the scope of the disclosure requirement. Generally speaking, these limiting provisions are directed at preventing the disclosure of records which may be harmful to a government body or have an adverse effect on the privacy interests of others noted in the records. In cases where there is a dispute over the extent of a right to disclosure, the OIPC serves as the initial dispute resolution mechanism.

The access to information process starts with a request for disclosure by an interested person to the targeted government department along with the prescribed $25 fee (Freedom of Information and Protection of Privacy Regulation, Alta Reg 186/2008, s 11 (FOIP Regulation)). The exact wording of a request is very important: Ask for too many records over a long period of time and your request will be expensive and delayed; ask for too little and you risk not getting the records you are seeking. In the CN Rail case we are looking for records pertaining to the development of the creative sentence, and thus our request for records was as follows:

I am requesting records pertaining to guidelines, policies (formal or informal), directives, instructions, notices, or internal communication (including emails) which address the use, format, structure and decision-making framework related to orders issued under section 234 of the Environmental Protection and Enhancement Act, RSA 2000 c E-12 (otherwise known as the creative environmental sentences). These records would have informed the actions of the Crown Prosecutor in the matter of R v Canadian National Railway Company which saw the sentence order signed on June 2, 2017 (For the time period of January 1, 2017 to July 12, 2017).

In the interest of promoting transparent government, one obvious structural problem with the access to information process under the FOIP Act is that the subject government department plays the dominant role in a response to the information request. These departments have developed several techniques to frustrate information requests: delay, excessive fees, and redactions.

Delay

The most common technique appears to be simple delay – not replying, or seeking multiple time extensions from the OIPC. Section 11 of the FOIP Act contemplates most requests being completed within 30 days:

11(1) The head of a public body must make every reasonable effort to respond to a request not later than 30 days after receiving it unless

(a) that time limit is extended under section 14, or

(b) the request has been transferred under section 15 to another public body.

Extensions can be taken under section 14 if there is a large number of records (section 14(1)(b)), time is needed to consult with another public body (section 14(1)(c)), or the record contains documents with third party information which that party opposes the release of 14(1)(d)). The OIPC 2016/2017 annual report illustrates the problem: the OIPC received 253 extension requests from public bodies in 2016-2017 and had 57 cases where an applicant made an access request and received no response within the legislated timelines (what the OIPC calls a ‘deemed refusal’). Of these 57 cases, 44 were requests to Alberta Justice or Alberta Environment and Parks (see the 2016/2017 annual report at pages 6-7).

None of the access to information requests filed by the Clinic have produced records within the 30-day time frame set out in section 11 of the FOIP Act. The three requests where the Clinic has received records have taken 125, 89, and 84 days respectively to be completed. Five of our requests which are still outstanding have been open for more than 100 days. The Clinic filed the CN rail request for information with Alberta Justice on July 12, 2017. We received partial disclosure on November 14, 2017 but for reasons set out below, to date we have only received 35 out of the 857 pages of material we were told are responsive to our request.

Excessive fees

The second technique used by government departments to frustrate the process is fees. The applicable legislative provisions governing fees are sections 11, 13, 14, and schedule 2 of the FOIP Regulation. A department can only charge fees where it estimates the cost of processing the request will exceed $150. Fees are estimated by valuing employee time at up to $6.75 per 1/4 hr (27$ an hour) to handle the record. The amount of time needed to handle a record will vary depending on the size and complexity of the request. Once a total fee estimate is tallied, the department requires the applicant to pay 50% of the estimate before proceeding to prepare the record. An applicant must accept the fee or modify the request within 20 days of receiving the fee estimate (FOIP Regulation, section 13(4)).  What this means in real terms is that where a request for information is estimated to take more than 5 ½ hours to process there will be a fee payment required of the requesting person before the request is processed by the department (The $150 fee threshold divided by the $27 per hour expense for time to prepare the record = 5.5 hours). This fee threshold is easily passed for requests that produce a large number of documents (counted in number of pages), and thus it is typical for a person seeking access to information to be presented with a bill in the hundreds or even thousands of dollars which must be accepted within a short time frame in order for their request to be processed. Keep in mind, this monetary amount must be paid in the absence of any knowledge on what the content of the responsive records will be and what redactions will be applied by the department (more on that below).

We have noticed that a significant portion of the fee estimate will be for ‘preparing and handling’ the record. A breakdown of the required fee for requests made by the Clinic which have exceeded the $150 threshold is set out below. Alberta Justice estimated the total fee at $1270.25 to process the Clinic’s request for information on the creative sentence in the CN Rail case (listed as FOIP D in the table below). In a letter dated July 28, 2017 Alberta Justice requested $635.13 to paid within 20 days in order to proceed with the request for records in the CN Rail case.

Locating the record Preparing and handling the record Printing, USB sticks, or postage Total estimated cost per FOIP

FOIP A $162.00 $48.60 – $210.60

FOIP B $162.00 $459.00 $36.00 $657.00

FOIP C $391.50 $720.00 – $1,111.50

FOIP D $189.00 $864.00 $215.25 $1,270.25

FOIP E $1,215.00 $1,311.75 – $2,526.75

FOIP F $72.00 $3,240.00 – $3,312.00

FOIP G $432.00 $3,240.00 – $3,672.00

Totals $2,623.5 $9.883.35 $251.25 $12,760.10

 

This table shows the extent to which preparing and handling the record dominates the basis for a fee requirement. At this juncture, it is important to keep in mind that so long as the request for information is in relation to a recent timeframe (i.e. not searching for archival materials) much of these records will be in an electronic format. There is a separate category for locating the records. So what sort of work is encompassed by ‘preparing and handling’ these electronic records?

Our observations from working within the FOIP Act suggest to us that the work involved in preparing and handling the record amounts primarily to the department redacting information from the records, in accordance with how the department reads the application of sections 16 to 29 of the FOIP Act. What this means for a person seeking access to information is that the legislation requires them to pay for the work it takes for department employees to remove information from the records sought. In other words, you pay the department to conceal the information you are seeking. In the CN Rail case, the Clinic was asked to pay $864 in order for Alberta Justice to fully redact 822 pages out of a complete record of 857 pages.

One option available to someone who would like to reduce or eliminate the fee requirement is to seek a fee waiver where the person can establish (1) they cannot afford the payment or for any other reason it is fair to excuse payment; or (2) the information sought relates to a matter of public interest, including the environment or public health or safety” (FOIP Act, section 93(4)). The interpretation given to these criteria for a fee waiver by government departments appears to vary. Some departments focus on whether the public would be ‘interested’ in a literal sense in the information sought, and how the applicant will provide that information to the public. Alberta Energy, for example, asks whether the disclosure will add to public research on the operations of government and whether the information will be useful in clarifying public understanding of issues.

More typically, a government department offers no guidance on how it will interpret the fee waiver criteria and thus a person seeking to obtain a fee waiver should look to OIPC decisions for guidance on what to submit in their waiver application. A helpful decision to look in relation to interpreting section 93(4) of the FOIP Act is Order F2014-11 (Re), 2014 CanLII 8570 (AB OIPC) at paragraphs 22-23:

Will the records contribute to the public understanding of, or to debate on or resolution of, a matter or issue that is of concern to the public or a sector of the public, or that would be, if the public knew about it? The following may be relevant:

Have others besides the applicant sought or expressed an interest in the records?

Are there other indicators that the public has or would have an interest in the records?

Is the applicant motivated by commercial or other private interests or purposes, or by a concern on behalf of the public, or a sector of the public? The following may be relevant:

Do the records relate to a conflict between the applicant and government?

What is the likelihood the applicant will disseminate the contents of the records?

If the records are about the process or functioning of government, will they contribute to open, transparent and accountable government? The following may be relevant:

Do the records contain information that will show how the Government of Alberta or a public body reached or will reach a decision?

Are the records desirable for the purpose of subjecting the activities of the Government of Alberta or a public body to scrutiny?

Will the records shed light on an activity of the Government of Alberta or a public body that have been called into question?

In the CN Rail request for information, the Clinic requested a fee waiver by making submissions based on the guidance set out in this OIPC decision. Alberta Justice granted the request, and waived the stated fee of $1270.25. However, Alberta Justice did so without reasons. The explanation we received for our successful fee waiver application was as follows: “After reviewing your request for a fee waiver and Section 93(4) of the FOIP Act; in this instance Alberta Justice decided to commence processing your request and the fee for processing your request has been waived.” Of course, without reasons it is not possible to know which of our submissions on the waiver request was persuasive and thus difficult to gain any institutional knowledge for future applications.

Redactions and More Delay

The third, and clearly most effective, method used by government departments to frustrate the access to information process is to redact as much information from the disclosed record as is allowable under the exceptions to disclosure under sections 16 to 29 of the FOIP Act. As we mentioned above, in the CN Rail case Alberta Justice fully redacted 822 of the 857 pages in the pages responsive to the Clinic’s request. Of the 35 pages which were not fully redacted, 13 pages were simply copies of email correspondence that had been sent by Clinic staff to obtain information from the Crown on the creative sentence without resorting to an access to information request under the FOIP Act. In other words, much of the records we received were simply copies of our own emails. In light of this result, we were glad to have been granted a fee waiver. Otherwise, we would have paid hundreds of dollars to receive copies of our own emails!

Section 65 of the FOIP Act provides that an applicant can request a review by the OIPC of the department’s redactions from the record. A review introduces an incredible amount of delay: the OIPC expects the delay to be 6 to 8 weeks for the Office to decide if it will investigate the matter and another 9 months to investigate or mediate the complaint. If the process leads to an adjudicative inquiry by the Commissioner, you should expect the entire process to take 18 months or more. This is remarkable given that section 69(6) of the FOIP Act suggests an intention by the Legislature that a review will take 90 days or less. These timeframes for a review by the OIPC are in addition to whatever amount of time has elapsed before making the request for a review. In the CN Rail case, 14 months passed since the initial FOIP request before we were invited to seek a review by the OIPC. That process is ongoing.

These issues are real barriers to realizing access to information under the FOIP Act. What is truly disappointing is that they are widely acknowledged and known to be problematic, as set out by the Centre for Law and Democracy in its 2012 release of an Analysis of Access to Information Legislation in Canadian Jurisdictions. None of what we have set out in this post will be news to anyone who regularly uses the access to information process under the FOIP Act. The purpose of the FOIP Act, to grant a right of access to government records (section 2(a)) and facilitate transparency as a means for Albertans to hold their government accountable, seems completely frustrated by delay, excessive fees, and redactions.

This post may be cited as: Shaun Fluker and Drew Yewchuk, “Let’s Talk About Access to Information in Alberta: Part One” (November 6, 2018), online: ABlawg, http://ablawg.ca/wp-content/uploads/2018/11/Blog_SF_DY_Lets_talk_about_FOIP_Nov2018.pdf

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