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File Reference: SM001973-141

September 26, 2016

Clarence L. Bennett
Direct Dial: 506.444.8978
Direct Fax: 506.444.8974
cbennett@stewartmckelvey.com

Via Registered Mail and Email <access.info.privacy@gnb.ca>


Office of the Access to Information and Privacy Commissioner
65 Regent Street, Suite 230
Fredericton, NB
E3B 7H8
Attention:

Anne E. Bertrand, Q.C.

Dear Ms. Bertrand:


Re:

Complaint Matter: 2015-2726-AP-1506


Public Body: New Brunswick Liquor Corporation ("NB Liquor")
Applicant: Canada Broadcasting Corporation (the Applciant)
Your Recommendation dated September 22, 2016

INTRODUCTION
The following is further to your offices Recommendation dated September 26, 2016 (your
Recommendation).
Our client takes this opportunity to address a number of assertions in your Recommendation.
At the outset, we must say that our client was extremely surprised given the numerous, blatant
falsehoods, conjecture, defamatory comments, and baseless accusations in your
Recommendation.
Such statements have no basis in fact, are well beyond the Commissioners statutory mandate
and have been made gratuitously, solely to embarrass NB Liquor and certain of its employees
and therefore have been done in bad faith. We must put you and your office on notice that our
client intends to commence legal action against you for bad faith.
In this regard please consider this as notice, which our client will rely upon in Court, to preserve
any and all relevant documentation, including correspondence with Mr. Mchardie. We also
require all electronic information regarding the particulars of when each report of your findings
was posted to your offices website and any other correspondence, including notations with
respect to same.
THE REQUEST FOR INFORMATION AND NB LIQUORS ATTEMPTS TO ASSIST
NB Liquor would like to clarify how this request for information was processed by NB Liquor,
which is fundamentally at odds with the allegations set out in your Recommendation.

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Anne E. Bertrand, Q.C.


September 26, 2016
Page 2
At the outset, and contrary to your Recommendation, the Applicant has never specified, to NB
Liquor, that he was only looking for information regarding how the project was working and on
what basis the decision regarding the Growler program was made.
The first time that NB Liquor received such specifics was in your Recommendation.
Similarly, at paragraph 31 of your Recommendation, you state that the Applicant informed your
office that he wanted access to a report that explained how the decision had been made to
continue with the Growler Program. Again, your Recommendation was the first NB Liquor was
informed that this was what the Applicant sought.
It is unfair to state that the Applicant complied with the RTIPPA by providing a certain level of
specificity as to the documents requested, thereby making the request manageable, when the
Applicant never provided such specifics to NB Liquor despite NB Liquors several attempts to
obtain such specifics.
In light of these specifics, NB Liquor is now reviewing any such documentation and will provide
such documents to the Applicant in conformity with the RTIPPA as soon as possible. It goes
without saying that this could have easily been completed at the informal settlement stage and
NB Liquor is at a loss to see why your office chose instead to proceed in this manner.
Having said that, our client wishes to set out the facts behind how this matter request for
information was processed.
NB Liquor received a request for information from the Applicant dated July 21, 2015. Contrary
to what is asserted in your Recommendation, the request is not specific as required by the
Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 (the RTIPPA).
The request states:
This is a request under the Right to Information and Protection of
Privacy Act. I request any and all information regarding the
growler program operated by NB Liquor between June 1,
2014 and present. This information should include, but not
be limited to, any reviews of the program conducted by the
corporation, any internal communication about the growler
program, any external communication between the corporation
and customers, producers or industry groups about the growler
program (or access to the growler program), any financial
analyses, economic impact analyses, budget information,
communication with any other provincial departments, minutes of
meetings, sales figures, inventory purchases and stock remaining.
In any communication, please include all attachments.
The Applicants request was overly broad. Therefore, NB Liquors head, Mr. Mark Barbour,
immediately contacted the Applicant to seek clarification on what the Applicant was looking for.
During this discussion the Applicant refused to narrow the scope of his request.
However, there was an upcoming press release which Mr. Barbour thought may address the
Applicants request.

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Anne E. Bertrand, Q.C.


September 26, 2016
Page 3
By email dated August 5, 2015, Mr. Barbour indicated to the Applicant that after the press
release (which Mr. Barbour would provide to the Applicant prior to it being released to the
media) the Applicant could decide whether or not he wanted to continue the processing of his
request for information. Mr. Barbour asked if the Applicant was okay with proceeding in this
fashion. The Applicant agreed that after the draft press release was provided to him he would
follow up with any questions he had of NB Liquor.
As agreed between Mr. Barbour and the Applicant, the draft media release was provided to the
Applicant on August 6, 2015 which indicated, inter alia, the following information:

How many litres of beer was sold through the program;

Status of the program as a whole;

The dollar amount of craft beer sold; and

The amount of growler bottles sold.

Mr. Barbour and the Applicant spoke by phone and by email subsequent to the providing of the
draft media release where Mr. Barbour answered specific requests with specific answers.
These discussions included such items as the amount of growlers sold to date and the number
of growlers in NB Liquors warehouse.
As a result of the verbal and written correspondence between the Applicant and Mr. Barbour,
the Applicant published a news article on August 6, 2015 which outlined several details about
the growler program to date including:

Dollar figures of craft beer sold;

Dollar figures of growler bottles sold;

Percentage increases in comparison to previous year for craft beer sales;

Dollar figure associates with the expenditure of NB Liquor to purchase 40,000 growlers;

The amount of refillable bottles sold as of December;

The number of growlers sold;

The number of growlers remaining.

Having received no confirmation as to whether the Applicant still wished NB Liquor to process
the Applicants request for information, NB Liquor wrote to the Applicant on August 12, 2015,
(well within the timelines to extend the deadline under the RTIPPA) indicating that it was
extending the timeline to respond to September 21, 2015.
On September 21, 2015, NB Liquor wrote to the Applicant indicating the following:

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Anne E. Bertrand, Q.C.


September 26, 2016
Page 4
1. That the information provided to the Applicant by Mr. Barbour, as detailed above,
captured the information that the Applicant had requested and which NB Liquor was able
to provide under the RTIPPA;
2. NB Liquor refused to provide any external communications between NB Liquor,
customers, producers or industry groups about the growler program (or access to the
growler program) pursuant to s.22(1)(b) of the RTIPPA which provides:
22(1)The head of a public body shall refuse to disclose to an
applicant information that would reveal
(b) commercial, financial, labour relations, scientific or
technical information supplied to the public body by a third
party, explicitly or implicitly, on a confidential basis and
treated consistently as confidential information by the third
party, or
On September 23, 2015, the Applicant emailed NB Liquor indicating that he intended to
appeal.
On September 24, 2015, in an effort to assist the Applicant, NB Liquor wrote to the Applicant in
order to seek clarification on what exactly the Applicant was looking for. In that email, Mr.
Barbour wrote:
In the spirit of cooperation, I can/will try to help you further. As I
asked you previously during our last 2 3 telephone
conversations, can you be a little more specific as to what
you are looking for exactly? When I previously asked you this
question, you said you did not know exactly what you were
looking for, and that you wanted to read things to be able to
determine what your viewers/readers at the CBC would be
interested in. As you are aware, an RTI is there to provide you
with specific information, and not just a generally requesting
everything and anything in hopes finding trivial information.
That being said, lets break down your request a little further in
hopes that I can provided you with the specific information you
feel ANBL omitted. [...]
Mr. Barbour goes on to breakdown, in detail, the request for information and Mr. Barbour
provides specific answers to those requests. The Applicant did not respond to this
communication.
Shortly thereafter your office commenced an investigation into a complaint submitted by the
Applicant.
As a result of this investigation, your office requested that NB Liquor provide an itemized list of
all documents that fall under the request. As you know, this included over 2500 emails alone
which were provided to your office.

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Anne E. Bertrand, Q.C.


September 26, 2016
Page 5
Despite the fact that the RTIPPA does not require public bodies to create such a list, NB Liquor
provided your office with the emails retrieved from each employee with a list of those various
emails.
On March 24, 2016, your office wrote to Mr. Barbour stating:
That you for providing us with the list of relevant records, it is very
helpful. I do however have a couple of questions for you. [...].
The email goes on to request that NB Liquor go through each document retrieved, including the
2500 emails, and identify which section(s) of the RTIPPA are being relied upon where
disclosure is refused.
Mr. Barbour responded, in part, on April 1, 2016 attaching emails between him and other
employees of NB Liquor with respect to applications for listings on the growler program.
In considering the demands of your office to review all documents, including the 2500 emails, it
became obvious that processing the electronic information under the request would
unreasonably interfere with NB Liquors operations. Therefore, on April 20, 2016, we wrote to
your office indicating that, among other objections, NB Liquor invoked s.10(1)(b) of the RTIPPA
which provides:
10(1) If requested information is in the custody or control of a
public body in electronic form, the head of the public body shall
produce a record for the applicant if
(a) it can be produced using the normal computer
hardware and software and technical expertise of the
public body, and
(b) producing it would not interfere unreasonably with
the operations of the public body.
We would submit that s.10(1)(b) of the RTIPPA was properly invoked by NB Liquor in this case
given that the request, as framed, captured 2500 emails alone. To go through each email and
determine which aspects may have to be redacted under the RTIPPA would, our client submits,
unreasonably interfere with its operations under s.10(1)(b) of the RTIPPA.
Inexplicably, your Recommendations says nothing about s.10(1)(b) of the RTIPPA but rather
makes unfair generalizations as to how NB Liquor failed to comply with the RTIPPA.
We further pointed out, in our April 20, 2016 letter, that the request does not comply with
section 8 of the RTIPPA as it does not specify the record requested nor does it provide
sufficient particulars for NB Liquor to identify the relevant records. Further, we indicated that,
and as confirmed by the Applicant himself in telephone conversations with Mr. Barbour, the
request was in the form of a fishing expedition, a purpose specifically denounced by Justice
Clendening in Murray v. New Brunswick Police Commission, 2012 NBQB 154.
NB Liquor put much time and expense into conversing with the Applicant and your office in
order to fulfill its duties under the RTIPPA.

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Anne E. Bertrand, Q.C.


September 26, 2016
Page 6
Relying on particular provisions of the RTIPPA which, we would submit, were appropriately
relied upon in this case, cannot and does not amount to an attempt by NB Liquor to avoid the
provisions of the RTIPPA. A recommendation from your office that NB Liquor process the
request despite s.8 or s.10(1)(b) of the RTIPPA would be one thing. A recommendation from
your office that NB Liquor acted deliberately contrary to the RTIPPA is quite another.
BAD FAITH
NB Liquor specifically disputes the following comments contained in your Recommendation and
submit that they were made in bad faith:

The cover page provides: A case about what not to do when receiving and processing a
request.... NB Liquor submits that such a statement goes far beyond what is necessary
in the Commissioners role of recommending whether or not a request for information
ought to be processed. The statement is juvenile, with the sole intent of humiliating NB
Liquor and is unsupported by the facts actionable bad faith.

Paragraph 23 alleges that NB Liquor boasted that it would guard that information fully,
despite any statutory obligations regarding the publics access rights. Similarly, at
paragraph 44 you state that It became immediately obvious to us that NB Liquor at its
highest management level did not care to recognize the relevant of the legislation....
This is untrue. While individual employees of NB Liquor may have expressed frustration
to the effect that it had tried to work with the Applicant to provide all information the
Applicant needed and to work with the Applicant in an effort to reduce his request to a
manageable form, it is unfair and untrue to state that NB Liquor boasted that it would
protect all such information despite its statutory obligations.

Paragraph 45 refers to an alleged culture of secrecy that provided less information to


the public rather than more.... Similarly, at paragraph 46, there is an allegation that
NB Liquor was returning to its former incorrect practices. Similar aspersions and
defamatory comments are made at paragraphs 47, 50, and 52, including an alleged
culture of protectionism at NB Liquor and that NB Liquor considered itself above the
law.

Such comments were made gratuitously, are defamatory and lack any factual foundation. As
noted above, our client reserves all legal remedies available to it to remedy what it views as bad
faith on your part and on the part of your office, conduct that is not protected by the general
immunity under s. 64(1) of the Act.
Yours truly,
Stewart McKelvey

Clarence L. Bennett
Partner
CLB/cms

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