EUB's private eyes ruled illegal

EUB's private eyes ruled illegal
Geoffrey Scotton, Calgary Herald, 13-Sep-2007

Alberta's spy games
Editorial, Globe and Mail, 17-Sep-2007

Knight fumbles on EUB stage
Graham Thomson, The Edmonton Journal, 18-Sep-2007

See also And then there were six!
http://www.sqwalk.com/blog2007/001079.html

Frank Work
CREDIT: Herald Archive Photo

Alberta Premier Ed Stelmach would not rule out firing the Energy and Utilities Board, after a damning report was issued today finding the organization had violated provincial law when it hired private eyes to spy on them at EUB hearings.

Stelmach said he will wait until next week for the results of a judicial review of the matter - ordered by the government - before he takes any action. But the premier did not rule out firing the EUB's board.

"The minsiter will brief me on the findings. And I've instructed him once we're totally briefed a full picure of what has happened then we'll make the appropriate decision," Stelmach told reporters in Edmonton.

"We will be making decisions based on what the judge has said and also what our privacy commissioner has brought forward."

Alberta's Privacy Commissioner Frank Work Thursday ruled the Energy and Utilities Board had violated provincial law when it hired private eyes to spy on them at hearings. A citizens' group is fighting to stop a $600-million transmission project from going through their backyards,

Joe Anglin, co-chair of the Lavesta Area Group of landowners in the Rimbey, Alberta area said the report didn't go far enough to expose the EUB's actions in what he described as a "fabricated security threat" used to rationalize the hiring of undercover operatives to monitor opponents to a project at a hearing the EUB was adjudicating.

"(We) are disappointed in the report due to the amount of inaccurate information conveyed to the investigators about what Lavesta maintains is a fabricated security threat," said Anglin. "There was no security threat to any person or persons. We acknowledge that one elderly lady was emotionally distraught and at no time was she a threat in any way to EUB personnel. "

Work's report, completed by Privacy director Marilyn Mun, found the EUB had violated provincial legislation by collecting information on the landowners it was not authorized to collect, that the EUB had no policies or rules around its use of PIs and that their roles and expectations were not set by the regulator.

At the time the breach of the Freedom of Information and Protection of Privacy Act occured the EUB was holding hearings in Rimbey to determine whether a proposal by Alta Link LP to build a 500 kilovolt transmission line was appropriate and in the public interest.

The landowners have opposed the line, charging that it is ultimately designed to facilitate the export of power to the United States and represents a $1 billion gift to Alberta's generating industry on the backs of provincial taxpayers and ratepayers.

The Rimbey hearings were the second stage in a regulatory process that saw the EUB compeled to revisit its first decision on the proposal, a needs assessment that was reopened after the regulator conceded consultation with some interested parties had not been as fulsome as possible.

The EUB said it will adopt the recommendations from Work's report and defended it actions as necessary in the face of violence at some hearing locales.

"We take these recommendations very seriously and the EUB has already taken steps to ensure that similar situations never happen again," said acting EUB chairman Brad McManus.

"It is important that Albertans understand that the security measures at Rimbey were taken solely because of serious incidents where our staff were physically attacked and other threats and actions led to an atmosphere of intimidation at the hearing," McManus added.

with files from Tony Seskus

gscotton@theherald.canwest.com

© 2007 Calgary Herald

Alberta's Conservative government initially shrugged off reports that its energy regulator had illegally spied on private citizens - until its privacy commissioner launched an investigation. Then Premier Ed Stelmach belatedly ordered an independent probe of the regulator's decision to hire private detectives who gathered personal information on individuals who objected to a proposed power transmission line. Now, although Privacy Commissioner Frank Work has issued a stern report criticizing the Alberta Energy and Utilities Board's behaviour, Mr. Stelmach has delayed his response until that second inquiry also reports, perhaps as early as this week.

That delay may be justified, as long as the Premier acts quickly after its publication to discipline the offenders and prevent such zealous prying in the future. But so far, his government's response to this remarkable three-month scandal has been lackadaisical and far from reassuring. In fact, Mr. Stelmach initially claimed the utility's tactics to infiltrate the landowners were necessary to prevent violence; his energy minister essentially declared that he had settled the issue after a frank discussion with the regulator's chairman.

The trouble began when landowners at public hearings in Red Deer into a proposed 500-kilovolt line between Calgary and Edmonton disrupted the proceedings, demanding the utility broaden the scope of its examination. One 70-year-old woman took an ineffective swing at an employee. Emotions ran high. Another landowner threatened violence at future hearings.

In response, the utility moved its hearings to a provincial courthouse in Rimbey, where admittance was restricted. At the courthouse were two sheriffs, including one at the front door, and two security staffers from the utility. The landowners were restricted to a nearby community centre where they watched the proceedings on closed-circuit television. Sheriffs escorted panel members outside the courthouse. Still, the utility opted to put private investigators in the centre rather than settle for a visible security presence.

The issue emerged in mid-June when the Edmonton Journal reported that the utility board had hired detectives to spy on those landowners. As the privacy commission confirmed last week, detectives gathered the names of some individuals, their organizational affiliation, their contact information and personal descriptions. One of those detectives later participated in at least one conference call between aggrieved landowners and their Toronto lawyer. He also collected documents related to a seminar on peaceful protest and a planned press release from landowners' groups, including more personal information.

The Privacy Commissioner's report rejected the necessity for that action, concluding that this was not an occasion where private investigators were required for safety. Visible security personnel could have maintained order. The utility did not need to collect personal information in order to provide a safe environment. Finally, the commission determined that the regulator failed to meet its legal obligation to protect that personal information because there were no safeguards against such risks as unauthorized access.

Those are serious findings that required more than the government's initial apathy. The regulator, in effect, has collected information on landowners who object to an application that it is considering. That prompts questions about the impartiality of those hearings. Worse, it casts doubt on the judgment of the Premier and his energy minister. When a public body is hiring private detectives to spy on the citizens that it is supposed to serve, something is very wrong.

Knight fumbles on EUB stage

Energy Minister Mel Knight did two things exceptionally well in his news conference at the legislature on Monday afternoon: he arrived on time and he didn't fall off the stage.

He did everything else remarkably badly.

At times Knight looked like he didn't know how to answer questions or was doing his best to avoid them. Sometimes he grew so testy with reporters it looked like he wanted to kick them. I suspect the reason he didn't was because at any given time he had a least one foot stuck firmly in his mouth.

Monday was supposed to be the day the Alberta government would demonstrate leadership on the EUB spying controversy that has plagued the government since news broke in June the Alberta Energy and Utilities Board hired a private investigator who had spied on landowners.

For weeks, the government has been hinting it was about to take decisive action to recover the EUB's reputation that has sunk so low you'd need a drilling rig to find it.

Instead, we had a minister of energy doing his best to downplay the biggest scandal to hit the government since Ed Stelmach became premier.

Helping Knight were two anemic reports into the EUB's activities: one by the province's privacy commissioner's officer; the other by a retired judge.

However, even though both were hampered by mandates which limited the scope of the investigations, the commissioner's report concluded the EUB had broken privacy laws and former Justice Del Perras said "the idea of an approved EUB security personnel listening in to landowners' phone conferences is repulsive."

The opposition parties have demanded the government fire the board members, remove Knight from cabinet and launch a public inquiry.

The government has done none of that. Instead, it has appointed a new chair of the EUB, William Tilleman.

When reporters asked Knight how that would restore Albertans' confidence in the board, he sounded impatient and defensive and maybe a little scattered.

"Do you think that appointing a new chair of Alberta's very, very long-standing and illustrious board, I might say they have been over many, many years from 1938, count them, 70 years' worth, and I have gone out today and appointed a new chair," he said.

It's not as if Knight fired anyone to make way for a new chairman. Knight had to appoint a new chair because the position has been vacant since March, long before this scandal broke.

When reporters pushed the minister over who would take the blame for the EUB's activities, he seemed to say Tilleman would be taking strong steps, including launching another investigation.

"There is a process that will take place, Dr. Tilleman will investigate and will take the necessary action at the appropriate time."

Investigate? Reporters pounced on the word and asked Knight to explain. Knight immediately backtracked.

"I better not say that it says that he should investigate, but part of his job will most certainly be to be sure that the functioning of the EUB is appropriate."

Confused reporters wondered what Tilleman's mandate would be and whether he would fire anyone at the board.

[comment by jess: if reporters are confused, imagine how landowners feel!]

"There are absolutely no options forward at this point in time, nothing's out of the question, and nothing to address that particular point has been done at this time," said Knight.

In other words, after promising "definitive action" on the EUB file, we still don't know what will be done.

Confused reporters quickly became frustrated reporters as they pushed Knight to explain who would be accepting responsibility for the EUB's behaviour. Knight did acknowledge the "use of plainclothes security by the EUB was wrong and unnecessary" and said the board's reputation had been damaged -- but he refused to say who he thought was to blame. He also said because the board is a quasi-judicial body he has "no mandate to go in there and start cleaning house."

If he doesn't clean house, who will? Tilleman, presumably, but there's no guarantee anything will be done.

Opposition politicians say the government is ultimately responsible for what happened at the EUB and heads must roll.

Don't count on anyone erecting a guillotine any time soon. Knight made a point of loyally defending the EUB on Monday and there's a strong sense coming from the government that it won't cave in to pressure to take a knife to the board to silence critics.

However, by falling back on the tired refrain it is following a seemingly never ending "process" the Stelmach government is reinforcing the impression it cannot make any tough decisions or take definitive action.

Watching Mel Knight's performance it is difficult to believe the Conservatives have managed to hang on to power for so long. Today, the Tories will eclipse the old Social Credit record to become the longest serving government in Alberta history -- 36 years and eight days ... and counting.

You have to wonder if they'll be counting much longer with the kind of performance we saw on Monday.

gthomson@thejournal.canwest.com

© The Edmonton Journal 2007