Agriculture and Land Minister Bloyce Thompson was prepared to release the report prepared by the Island Regulatory and Appeals Commission on the sale of 2,200 acres of farmland to Red Fox Acres Limited last November until he was cautioned by Information and Privacy Commissioner Denise Doiron.
An "advise and recommendation report" published on the commissioner's website indicates the plan was to post the commission report on the department's website. The commissioner notes in her report the department maintained "there is no limit on the authority of Government to proactively release information which is in its custody and control, save limited and specific exceptions set out in the Freedom of Information and Protection of Privacy Act (FOIPP)."
After seeing the report, the minister declared there are "reasonable and probable grounds" two individuals and Red Fox Acres Limited have violated the holding limits of 1,000 acres for individuals and 3,000 acres for corporations laid out in the Lands Protection Act. Red Fox Acres is owned by Rebecca Irving, who is the daughter of Mary Jean Irving (the president of Master Packaging) and the niece of Cavendish Farms president Robert Irving. Both Irving and Red Fox Acres have asked for a judicial review of the divestiture order.
It is latest twist in a long and involved story that began in early 2019 when three companies with ties to the Irving family applied to the Island Regulatory and Appeals Commission (IRAC) to purchase the land from Brendel Farms. The commission recommended the sales be turned down and the former Liberal government of Wade MacLauchlan agreed.
Just months after the Dennis King government came to office, Thompson found the file on his desk. Brendel Farms incorporated another company known as Haslemere Farms Limited on July 17 of 2019. Ownership of the land in question was transferred from Brendel to Haslemere Farms. Rebecca Irving then purchased Haslemere Farms and changed the company name to Red Fox Acres Limited.
The commissioner disagreed with the minister's contention, writing "Respectfully, I disagree with the statement that there is no limit on the authority of Government to proactively release information which is in its custody and control. While the FOIPP Act provides for a right of access to information under the custody and control of a public body, this is not an absolute right, nor is it absolute authority given to public bodies. The FOIPP Act puts parameters around what information public bodies are authorized to collect, and what public bodies are authorized to do with that information, including placing limits on what can be disclosed and when. These legal parameters indicate that the authority of Government to proactively release information is limited."
The commissioner indicates releasing the report through the Freedom of Information process means any third party would have to be notified and would then have an opportunity to make submissions regarding the release of that information.
" More importantly, the processing of the access to information request will permit any affected third party, or applicant, the opportunity to seek to have the decision reviewed by the Information and Privacy Commissioner, to ensure that any exceptions to disclosure were properly applied," the commissioner noted. "If the Public Body (the Department of Agriculture and Land) were to proactively release the Record outside of an access request under the FOIPP Act, this removes the right of any affected individual, whether a third party or an applicant, to have the decision reviewed by the Information and Privacy Commissioner, as an independent oversight of the Public Body’s decisions in relation to the access to information."
The commissioner noted the report contains 43 attachments prepared by the commission regarding the investigation. That include six documents associated with the investigative panel report, two business documents relating to a company named in the report, 16 documents relating to private individuals, seven documents detailing correspondence between IRAC and lawyers for third parties, two disclosure statements under the Lands Protection Act, five documents relating to property acquisition and holdings relating to several individuals named in the reportand six documents under the category of "legal authorities."
Doiron explained the minister first sought her permission to release the report in its entirety but she explained that is not within her authority to provide. The minister then asked for her advice on "the release of the personal information, including names of third parties, and of third party business information contained in the report.”
The commissioner noted the Department of Agriculture and Land recognizes the report contains information on individuals and companies that is not publically available. Doiron writes "The Public Body acknowledges there is also personal information in the Record about several individuals. The Public Body states lawyers for the individuals supplied the information to IRAC for the purposes of the investigation and the Public Body is not aware of the accuracy or reliability of the information, or whether it was supplied to IRAC in confidence."
Since a request for the information has already been filed, the commissioner recommends the department process the request as required under the FOIPP Act. Processing the access to information request will subject the Record to the scrutiny and critical analysis that is required, such as considering what information, if any, is subject to the mandatory exceptions to disclosure. It will also require the Public Body to make a determination of whether any information is subject to a discretionary authority regarding disclosure, and allow the Public Body to decide whether to exercise discretion in favour of, or against, disclosure of such information."
The commissioner also told Thompson his public statements that he wanted the report released "could be perceived as an appearance of bias."Doiron suggested Deputy Minister Brian Matheson make any decisions relating to this access to information request.