Alberta ministry ordered to disclose attachment names in Grassy Mountain records dispute

Alberta’s privacy adjudicator has ordered Environment and Protected Areas to disclose email attachment names in records concerning Benga Mining or the Grassy Mountain Coal Project, while requiring further work on the ministry’s search and withholding decisions. In Order FOIP2026-29, issued September 14, 2026, adjudicator Amanda Swanek also rejected an inadequately supported solicitor-client privilege claim but left a separate legal-services exemption unresolved.

The mixed ruling does not require public release of all the disputed records. Some information was properly treated as outside the request, consultation material qualified for a discretionary exemption, and five pages claimed to concern legal services must be produced unredacted to the adjudicator for further review—not disclosed to the applicant under this order.

Communications between the ministry and regulator

The request sought communications, and internal records related to those communications, between the ministry and the Alberta Energy Regulator concerning Benga Mining or Grassy Mountain from May 15, 2020 to January 21, 2022. It identified suggested search terms, record holders and numerous forms of communication, including emails, mobile messages and records from office messaging platforms.

The ministry initially released 62 pages with redactions in June 2022. During the review process, another search located 17 additional pages, and the ministry reprocessed 49 pages from the original package to disclose more information. The remaining inquiry concerned the adequacy of the search, consultation and legal-information exemptions, and material withheld as non-responsive. It did not determine whether the coal project should proceed or resolve its environmental merits.

Search instructions needed evidence, not assumptions

The ministry said it had conducted two comprehensive searches across relevant program areas. Designated contacts distributed the requests to staff, who searched email accounts, shared drives and electronic and paper files. The ministry argued that trained contacts understood their obligations and that, given the number of employees and elapsed time, verifying the precise keywords used by each person would be impractical.

Swanek accepted that a reasonable search need not be perfect. She also agreed that a public body which shows it gave proper search instructions can ordinarily rely on employees to follow them, absent a reason to think otherwise. But the ministry had described the locations staff were told to search without establishing what search terms they were instructed to use. Its expectation that staff used the applicant’s suggested terms was insufficient.

The applicant’s list was not exhaustive. For example, it did not include “Alberta Energy Regulator” or “AER,” even though the request expressly concerned communications with that body. The ministry, which best understood its own records and how they were organized, remained responsible for setting suitable search parameters rather than simply relying on an applicant’s keyword suggestions.

The remedy gives the ministry an alternative. It must provide the adjudicator and applicant with existing documentation showing that appropriate search terms were used, or, if it cannot do so, conduct a new search with proper instructions. A new search must be followed by a new access response for any additional records located and an explanation of the search, including its terms. Swanek retained jurisdiction to assess compliance with the duty to assist; she did not find that additional records necessarily exist.

Consultation exemption upheld, discretion sent back

The adjudicator accepted that portions of several email chains revealed consultations or deliberations protected by section 24(1)(b) of the Freedom of Information and Protection of Privacy Act. Some concerned preparation of a response to a media inquiry. The applicant argued that general descriptions did not establish the exemption and that drafts are not protected merely because they are drafts.

Swanek agreed with that general limit but found the actual withheld information was the subject of consultation. The protection concerned the substance of the decision-making process, rather than a blanket exemption for anything labelled a draft. Her review of the records supported the ministry’s characterization of the particular passages.

That did not settle whether the ministry should withhold them. Section 24 is discretionary, and the ministry had to weigh relevant considerations favouring disclosure as well as non-disclosure. It said disclosure of deliberations would cause harm and that early versions of complex media responses could contain errors or false starts that would damage its credibility and effectiveness. Swanek found that explanation inadequate and ordered the decision-maker to exercise the discretion again and explain the factors considered and how they were weighed.

A privilege assertion needed more than an assurance

A different group of records—pages 58 to 62 of the original package—raised solicitor-client privilege and the separate exemption for information prepared in relation to legal services. The ministry said the material had been prepared by AER counsel, remained privileged and had been shared confidentially through a common resource-management framework. Its affidavit relied in part on assurances received from the regulator.

The adjudicator found that evidence did not establish the elements of solicitor-client privilege: confidential lawyer-client communications involving the seeking or giving of legal advice. A public body need not give the commissioner the underlying records when properly asserting solicitor-client or litigation privilege, but must provide adequate descriptions and evidence supporting the claim. Here, the affidavit said the record appeared to have been prepared by a lawyer and that someone at the AER had described it as privileged, without establishing the necessary elements or the basis of that person’s knowledge.

The AER was invited to substantiate the claim but did not respond to the adjudicator’s letter. Swanek therefore rejected the application of section 27(1)(a). She expressly did not decide whether any privilege had been waived through sharing, because the privilege claim had not first been established. The ruling is not a general finding that sharing legal material between public bodies always defeats privilege.

The ministry also relied on section 27(2), which requires withholding privileged information relating to a person other than a public body. It argued that the provision should be read as referring to a person other than the particular public body answering the request, so that another public body’s privilege would receive mandatory protection. Swanek rejected that expansion: the AER was itself a public body, and the legislature had used different language. Section 27(1)(a) remained available for substantiated privilege claims belonging to public bodies.

The failure of those arguments did not produce an immediate disclosure order for the five pages. The ministry had also invoked section 27(1)(b), concerning information prepared by or for specified legal actors in relation to legal services. Swanek retained jurisdiction over that exemption and required unredacted copies for her own review. Its application remained undecided in this order.

Attachment names were part of responsive emails

The ministry successfully defended some non-responsiveness decisions. Distinct agenda and discussion items unrelated to Benga Mining or Grassy Mountain could be separated from the requested material, and an email outside the request’s timeframe was also non-responsive.

But the names of attachments in two pages of responsive emails were different. The ministry argued that because the attachments themselves were outside the request, their names were also non-responsive. Swanek held that the names were not separate and distinct from the emails containing them. Hiding the names did not help the applicant understand what attachments were absent from the records package.

The adjudicator considered the Alberta Court of Appeal’s general approach of returning newly responsive records to a public body to assess statutory exemptions before disclosure. She distinguished the attachment names because the ministry had already reviewed those emails line by line and applied other exemptions to discrete information. It had the opportunity to claim an exemption for the names but did not. She ordered disclosure of the names, not the attachments themselves.

The ministry must notify the adjudicator in writing within 50 days of receiving the order that it has complied. The decision leaves both the search assessment and the legal-services exemption subject to further adjudicator review. It establishes specific disclosure and reconsideration obligations, not that records have since been released, that every withholding decision failed, or that the project’s regulatory outcome has changed.