PEI Privacy Commissioner refuses to release information on the notorious Provincial Nominee Program

CBC, The Charlottetown Guardian and two other private organizations has applied for the names of companies who applied for PNP grants. They also wanted to know how much each organization was given.

The Acting Privacy Commissioner ruled that no business could be identified unless they had specifically given the government permission to release the information.
 

Haldemann is set to be replaced on June 7th, 2009 by Maria MacDonald, a Charlottetown real estate lawyer. This order closes the file for Haldemann who goes back to her job in the PEI Department of Attorney General.

“1. I order the Public Body to provide to the Applicant that requested the names of persons paying application fees paid in respect of PNP, the aggregate amounts of application fees paid to it for each month in the calendar years 2007 and 2008, without the name or other information regarding these persons who applied under the PNP.”

The government agency was ordered to provide the aggregate amount of fees paid for PNP applications without naming the applicants. That information is already available and has little value for the media and the public.
 

The Privacy Commissioner applied Section 14 to limit the actual release of information. The Commissioner found that subsection 14(1) of the FOIPP Act applies to the access requests on the grounds that “(a) disclosure would reveal financial information of a third party; (b) the information was supplied in confidence; and (c) disclosure could reasonably be expected to harm significantly the competitive position of a third party or result in undue financial loss to a third party.”

This ruling contradicts the previous orders the Privacy Commissioner had issued that business information related to the amount of a grant or loan did not meet the three tests in Section 14 of the Privacy Act.

Some of the applications were too broad. They asked for more than just the name of the company and the amount of the PNP grant. This may have influenced the Commissioner’s decision to not order the information released.

She also ordered “I order the Public Body to review the submissions of the Third Parties in respect of consents that may have been given to disclosure of some information as specified.
Such disclosure must be carefully limited after checking with the Third Parties involved.”

More analysis is need to understand why the Commissioner made the ruling. She was obviously deeply concerned about the notoriety of the PNP program. As Acting Commissioner and a life-long civil servant, it was probably not in the nature of her position to act against the wishes of the Government, which an open release of PNP information would have been.

Some of the applicants may have given consent to the release of the information and the Commissioner found that limited release, but only where explicitly allowed, would be permissible.

It is standard practice for PEI Lending Agency, PEI Development and other government departments to get a release of funding details for publicity. Information releases allow the government to issue press releases on grants and major projects. It may be some PNP files have those publicity agreements in place, negating the Provinces’ claim that the information is confidential.
 

The immigrants paid $200,000 per unit to become eligible for Canadian citizenship. Through a complicated series of transactions, the businesses only netted approximately $40,000 of that investment. This made PEI’s business share the lowest in Canada. The media had been trying to determine who else received money under the program.

The PNP scandal has been brewing since 2008 when the new Ghiz government pushed through more than 1,800 immigrant applications mainly from Chinese immigrants. Rumors were rife in the media and public that the $540 million PNP fund was a slush fund for the Liberal Party of PEI.

As the Auditor General reported in 2009, 20% of the PNP files had irregularities. Cabinet ministers and MLAs had applied for grants. Senior civil servants and their partners received grants. Businesses were given grants before they were incorporated. While the limit was 4 units per business, several businesses were able to accumulate millions of dollars in grants.

The Government of Premier Robert Ghiz had refused to supply the information to the Conservative Opposition, the Legislature Public Accounts Committee. The request by CBC and the Guardian under the PEI Freedom of Information and Privacy Act was an attempt to get around the government secrecy.