On May 5, 2015, the NDP won a majority government in Alberta. In light of last week's Alberta election results, what follows is a short primer on some regulatory requirements to be mindful of when communicating with Alberta's new government.
Always ensure that you comply with lobbying legislation even when communicating through a government relations firm or lawyer and always keep in mind how public sector freedom of information regimes could affect information shared with public office holders.
Communications with public office holders in Alberta are governed by Alberta's Lobbyists Act (Act). For the most part, the Act does not prohibit communications with public office holders. It does, however, require that the fact that communications took place be publicly disclosed and that those engaged in such communications be registered with the Alberta Lobbyist Registry.
This regime applies both to consultant lobbyists (such as a government relations firm, accountant or lawyer who is paid to communicate with public office holders) and to in-house lobbyists (such as senior executives who, together with their colleagues, spend a significant portion of time communicating with public office holders).
The Act also imposes limits on former public office holders' communications with government officials, restricts the use of tax dollars to lobby government, and prevents a person from being paid to give advice to the government and being paid to lobby the government.
WHO IS A PUBLIC OFFICE HOLDER?
The term "public office holder" is not limited to elected officials and their staff. The term also includes a wide variety of civil servants, such as employees of a department (regardless of seniority); individuals appointed to a board, committee or council established under section 7 of the Government Organization Act; and members of a large list of prescribed provincial entities from the broader public sector, including various universities and colleges, the Alberta Energy and Utilities Board, and Alberta Health Services, among others.
WHAT IS LOBBYING?
Lobbying includes any communication with a public office holder in an attempt to influence decisions regarding the following, which are typically broadly interpreted:
- The development of a legislative proposal
- The progress of a bill or resolution
- The development or enactment of a regulation or order-in-council
- The development, establishment, amendment or termination of a government program, policy, directive or guideline
- The awarding of a grant or financial benefit
- The transfer of an interest in a business that provides goods or services to the government or the public
- Privatization of the provision of goods or services to the government
For consultant lobbyists, two additional activities qualify as lobbying: arranging a meeting with a public office holder and communicating with a public office holder with respect to the awarding of a contract.
Note that it is not considered lobbying for an in-house employee to communicate with an Alberta public office holder about the awarding of a contract.
The Act applies both to direct communications and organizations that communicate by way of organized grassroots lobbying activities.
ARE THERE ANY EXEMPTIONS?
Certain exceptions are available from the registration requirement.
The Act does not apply to public proceedings such as committee
appearances; communications regarding the enforcement,
interpretation or application of a law or how the government
administers a current program or policy; and communications as a
constituent on a matter of personal interest, unless relating to a
private bill. It is not considered lobbying to respond to a request
from a public office holder for advice or comment.
Members of an organization "not constituted to serve management, union or professional interests nor having a majority of members that are profit-seeking enterprises" are exempt from the Act's application when acting in their official capacity. Thus, non-profit interest groups can engage in lobbying activities without having to register under the Act.
Before relying on the exemptions, however, we would note that regulators of lobbying regimes typically take a broad view of whether a communication is lobbying and these exceptions are applied quite narrowly.
WHEN IS REGISTRATION REQUIRED?
Unless an exception is available, communications to public office holders that are lobbying must always be registered and disclosed when the communication comes from a consultant lobbyist. The return must be filed within 10 days of the consultant lobbyist undertaking to lobby.
When in-house lobbyists communicate with public office holders on behalf of their employers, registration and disclosure is only required when a certain threshold is met. The applicable threshold is met if the relevant entity employs one or more individuals who, alone or collectively, spend 100 hours in any year lobbying one or more Alberta public office holder(s) on any matter. Once an organization has reached 100 hours in the aggregate, the obligation to register arises—the calculation is not 100 hours per individual or 100 hours per subject matter. Preparatory activities are not included in the calculation of 100 hours.
For an in-house lobbyist, the registration return must be filed by the most senior officer of the entity who receives payment for performing his or her functions. If no return has been filed previously, the return must be filed within two months of the date the entity first meets the 100-hour threshold. If a return has been filed previously, the return must be filed within 30 days of the end of each six-month period after the date of filing the previous return.
WILL MY COMMUNICATIONS BECOME PUBLIC?
Organizations making submissions to government entities in Alberta should be aware that any such information may be accessible by members of the public upon request under Alberta's Freedom of Information and Protection of Privacy Act (FOIP Act). The starting premise of the FOIP Act is that every person has a right of access to records in the custody or control of a public body, subject to limited and specific exceptions set out in the legislation.
To the extent possible, organizations should therefore carefully prepare communications with public bodies to minimize the sharing of sensitive information.
Where appropriate, an organization may wish to explicitly reference section 16 of the FOIP Act when providing information to a public body. This section provides for an exception to the right of access under the FOIP Act where disclosure of information would be harmful to the business interests of a third party. Under section 16, a public body must refuse to disclose information to an applicant where the following criteria are met:
- The information would reveal trade secrets of the third party or commercial, financial, labour relations, scientific or technical information of the third party
- The information is supplied, explicitly or implicitly, in confidence
- The disclosure of the information could reasonably be expected
to result in certain harm, including:
a) Significant harm to the competitive position or significant interference with the negotiating position of the third party
b) Resulting in similar information no longer being supplied to the public body when it is in the public interest that similar information continue to be supplied
c) Undue financial loss or gain to any person or organization
The question of whether information is protected by section 16 is highly fact-specific and will depend on the unique circumstances of each case. In general, the bar for refusing disclosure based on section 16 is quite high and can ultimately be difficult to meet.
The prudent course of action remains proactive management of disclosure to public bodies to limit the sharing of sensitive information. However, appropriate references to section 16 of the FOIP Act and the inclusion of express conditions of confidentiality in submissions to government entities may help reinforce any future argument that a request for access to the information should be refused.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.