Access to environmental information is vital to democratic participation and government accountability, as well as key to enabling environmental protections. Yet, in Alberta, citizens have sometimes been left wanting. For example, in recent years citizens and journalists have struggled to access: records that discuss the recission or change of the 1976 Coal Policy, the results of a public survey on renewable energy development on agricultural lands, and any records created by the (now defunct) Canadian Energy Centre, to name a few.
Legislation such as the Freedom of Information and Protection of Privacy Act (FOIP) is supposed to facilitate public access to information held by government bodies.[1] Meanwhile, legislation including the federal Canadian Environmental Protection Act (CEPA) and the provincial Environmental Protection and Enhancement Act (EPEA) and Water Act are also supposed to collect, create and communicate environmental information to the public.[2] Nevertheless, a recent review by the Environmental Law Centre (ELC) found this legislation is not functioning nearly as well as it could.
In its latest publication, Access to Information: Increasing access and disclosure around environmental decision-making, the ELC reviews Alberta’s existing access to information and regulatory disclosure laws and compares them to international standards and best practices. The report found that Alberta’s access to information regime falls short of these international standards in several respects and needs law reform both to fulfill the Acts’ stated goals and to improve governmental transparency and accountability.
Why is access to information important?
Information has been called the “oxygen of democracy”.[3] This is because information is essential for people to participate meaningfully in decision-making, to scrutinize and hold governments accountable and to combat corruption and misconduct.[4] At least 140 countries across the globe, including Canada and each of the provinces and territories, recognize the importance of information and have laws that enshrine access to various types.[5] For its part, Alberta introduced FOIP in 1995 with the stated purpose of allowing “any person a right of access to the records in the custody or under the control of a public body subject to limited and specific exceptions”.[6]
Environmental information, just like other types of information, is crucial for civic participation in public affairs. For example, informed decision-making around projects such as Imperial Oil’s Kearl oilsands mine, the Vista coal mine expansion, and the proposed Pathways Alliance carbon pipeline and storage plan should all be based upon, among other things, high-quality environmental information. But in order to evaluate and hold governments accountable for these types of decisions, Albertans also need access to this information.
The importance of environmental information was recognized by the United Nations and enshrined in Principle 10 of the 1992 Rio Declaration on Environment and Development, which states, among other things, that individuals “shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes”.[7] The Rio Declaration paved the way for the adoption of various international conventions that also recognize a right to access environmental information.[8]
Challenges to access to information in Alberta
The primary piece of provincial legislation that governs access to information in Alberta is FOIP. The objective of FOIP is to, among other things, allow any person a right of access to the records in the custody or under the control of a public body subject to limited and specific exceptions as set out in theAct.[9] Unfortunately, the Act can often fall short of these stated goals and does not meet international standards on several fronts. In particular, the report identified issues with Alberta’s FOIP including a limited scope, overly broad exceptions, timeline delays, excessive fees, and weak oversight from the Office of the Information and Privacy Commissioner of Alberta (OIPC).
Moreover, in Alberta select laws such as EPEA and the Water Act as well as the federal CEPAalso incorporate the disclosure of certain types of environmental information. These acts also face challenges and could be improved. For instance, issues with EPEA include a lack of proactive environmental disclosure in a single, accessible database, barriers to disclosure such as a requirement to seek information from a proponent before making a request from the government, and the absence of a statutory appeal process for requestors. Meanwhile, the Water Act has issues with a lack of public reviews of water allocation transfer applications and decisions, transparency in water conservation objective (WCO) tracking and reporting, as well as statutory timing around participation in approvals under the Act. Challenges with respect to CEPA include issues with data quality and reliability in the National Pollutant Release Inventory, its confidentiality exceptions, and compliance and enforcement disclosure.
Case Study: Alberta Energy v Alberta (Information and Privacy Commissioner
The recent case of Alberta Energy v Alberta (Information and Privacy Commissioner),[10] helps illustrate some of the issues with Alberta’s FOIP, particularly with overly broad exceptions and timeline delays. By way of background, in July 2020 a group of individuals and ranchers made a FOIP request to Alberta Energy for records discussing the rescission of the 1976 Coal Policy. Alberta Energy sought and was granted several extensions until October 2021. That month, Alberta Energy released 30 pages of a reported 6539 responsive records. Numerous parts of the documents were withheld under statutory exceptions to disclosure. The requesting parties sought and were granted an inquiry by the OIPC and, following the inquiry, the Adjudicator disallowed the exceptions claimed by Alberta Energy and ordered production of the documents. At issue in this decision was whether Alberta Energy was entitled to judicial review of the OIPC’s decision.
Alberta Energy justified their redactions by relying upon the following exceptions for disclosure: harmful to governmental relations (s. 21), cabinet and treasury board confidences (s. 22), advice from officials (s. 24) and disclosure harmful to economic and other interest of a public body (s. 25). Nevertheless, upon review, the Court found that it was reasonable for the Adjudicator to find that Alberta Energy had not met its onus to prove its exceptions to disclosure.
The Court stated that a public body carries three discrete obligations when it refuses access:
- The Act presumes access is the norm and therefore the public body bears the onus of justifying the withholding of relevant records;
- The public body must provide evidence to ground their denial; and
- The public body must justify each denial on its merits (i.e. line by line) as the statutory exceptions do not afford any “blanket privilege”.
In this instance, Alberta Energy did not meet its obligations and instead it argued for broad interpretations of the exceptions. For instance, with respect to the exceptions based on Cabinet confidence, Alberta Energy argued that the general title and topic of a presentation to Cabinet was sufficient to invoke cabinet confidence. However, the Court found that this position “would allow the government to shield the public access to records simply by their proximity to Cabinet”. Instead, the approach should be contextual and based on actual evidence that the record would disclose Cabinet discussions.
The Court also discussed the issue of delay and the availability of judicial review. The request was originally made in July 2020 and the case was heard before the Court in October 2023. The requesting parties argued that the Court should decline judicial review based on the conduct of the public body in continually and deliberately delaying production. The Court acknowledged that “for the right of access to information to be meaningful, it must be timely”. Yet in this instance, the release of information was “so slow as to be practically non-existent” and the public body’s request for judicial review further delayed the process. The Court also recognized that most requesting parties would have had neither the stamina nor the resources to continue. In his decision, released April 12, 2024, Justice Teskey stated:
It is difficult not to look at the history of this matter and see the critical rights imbued by access to information as being largely illusory. Whether the conduct of the Public Body stems from a lack of resources or intentional conduct is largely irrelevant. The Requesting Parties have been practically denied access to the information they are entitled to at law, and this Court will not abet this conduct through the availability of judicial review.205
The Court dismissed Alberta Energy’s application for judicial review in its entirety.
Note that in May 2025 Alberta Energy successfully appealed the case to the Court of Appeal of Alberta.[11] However, the appeal was limited to the discrete issue of whether redacted information that is found to be responsive to a FOIP request should be sent back to the public body involved for review to see if any statutory exceptions apply before being released to the public. The Court found that records held to be responsive should be submitted back to Alberta Energy for review within such timelines as may be directed by the Commissioner.
In our view, this case demonstrates how easy it is for a motivated public body to avoid its disclosure obligations using the shield of FOIP exceptions. Despite ample caselaw stating the opposite, Alberta Energy took the position before the courts that exceptions should be interpreted broadly. This case also illustrates issues with delay. The applicants made a request for documents in July of 2020, and the issue of judicial review was not decided until nearly four years later in April 2024. The appeal to the Court of Appeal may have delayed some or all of the release of documents even further until May 2025 (and beyond for those that were sent back to Alberta Energy for review).
Interestingly, the Court of Queen’s Bench in Alberta Energy also touched on whether the source of the access issues in this case rest with the legislation itself or with the conduct of the public body. The Court noted that “FOIP contemplates a regime that is prompt, accessible and fair”, however, it “can only function where the public body adopts the attitude of access imposed on it by the Legislature”. This case suggests that relying on the goodwill of the public body alone is not enough. The existing legislation should be tightened up and brought up to international standards to prevent errant public bodies from perverting the “attitude of access” contemplated by the Act.
Recommendations on improving access to environmental information in Alberta
Recently, the Government of Alberta announced that it is updating FOIP and introducing new access to information legislation. However, the proposed legislation, Bill 34’s Access to Information Act, does not appear to strengthen the Act. Alberta‘s own Information and Privacy Commissioner cautioned they had “a number of concerns” and the legislation “should be re-considered and amended in order to ensure a well-functioning access to information system continues to operate in the province”.[12]
In its report, the ELC makes a number of recommendations on how Alberta’s access regime under FOIP (and other acts) could be improved. These recommendations are key to understanding how our current regime and the upcoming Access to Information Act fall short. Recommendations include enshrining access to environmental information specifically, expanding the scope of FOIP, narrowing its exceptions, improving timeline delays, reducing fees and strengthening the OIPC’s oversight powers. The report also considers how Alberta’s regulatory disclosure obligations under EPEA and the Water Act, as well as the federal government’s obligations under CEPA, could be improved.
For more information on access to environmental information in Alberta and the ELC’s law reform recommendations, please find the report here.
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[1] Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 [FOIP].
[2] Canadian Environmental Protection Act, 1999, SC 1999, c 33 [CEPA]; Environmental Protection and Enhancement Act, RSA 2000, c E-12 [EPEA]; Water Act, RSA 2000, c W-3 [Water Act].
[3] Article 19, “Public’s Right to Know” (June 1, 1999), online: Article 19 <www.article19.org/resources/publics-right-know/>.
[4] Article 19, “International standards: Right to information” (5 April 2012), online: Article 19 <www.article19.org/resources/international-standards-right-information/>.
[5] Centre for Law and Democracy & Access Info, “By Country” online: Global Right to Information Rating <www.rti-rating.org/country-data/>.
[6] FOIP, s 2(a).
[7] Rio Declaration on Environment and Development, Jun 14, 1992, UN Doc. A/Conf.151/26 (Vol. I)(1992), 31 ILM 874.
[8] See for example: the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (1998),9 the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, the Stockholm Convention on Persistent Organic Pollutant (PoPs), and the Paris Agreement.
[9] FOIP, s 2(a).
[10] 2024 ABKB 198 (Canlii) rev’d in part 2025 ABCA 163 (Canlii).
[11] Alberta Energy v Alberta (Information and Privacy Commissioner), 2025 ABCA 163.
[12] Office of the Information and Privacy Commissioner of Alberta, “Alberta Information and Privacy Commissioner calls for changes to new proposed public sector access and privacy legislation for Alberta” (20 Nov 2024), online: <oipc.ab.ca/alberta-information-and-privacy-commissioner-calls-for-changes-to-new-proposed-public-sector-access-and-privacy-legislation-for-alberta/>.