Document Disposal Act a slippery slope when it comes to FOI
Under the Act, government employees are allowed to delete transitory records—but the definition of what constitutes such a record can seem ambiguous.
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Freedom of information should give the people the power to know what decisions their governments are making, as well as how and why those decisions are being made. Canada’s records access laws often curtail the public’s right to those hows and whys—a restriction that has been broadened in British Columbia, thanks to the use and alleged abuse of the province’s document destruction legislation.
The absence of that access is often difficult to appreciate amidst the volume of information routinely released to the public. For example, so far this year, the federal government has published 4,447 news releases and at least 708 other records.
But that’s usually information the government has chosen to make public—stuff it wants us to know about.
By contrast, freedom of information laws should allow access to information government doesn’t want us to know about.
Yet those laws, as they’ve been written in this country, often keep government policy advice secret—with the same privilege being afforded to cabinet and caucus meeting records. It’s these records that could best help Canadians understand the decisions made by their elected representatives.
To make British Columbia’s records access law even more impotent, provincial employees also delete information they define as “transitory” but others might not.
Consider this: on Feb. 26, cabinet minister Andrew Wilkinson appeared on a radio show to respond to criticisms that government communications officers have been frustrating media access to public servants.
A day later, I filed a freedom of information request for:
Any and all records, emails and communications materials Q&As, briefing notes, etc. connected to Andrew Wilkinson’s February 26, 2015 appearance on CBC Kelowna and preparations for that appearance…
In response, I received just nine pages of information which included media clippings, a four-page issue note and an email requesting the preparation of that document.
The note also included a list of public servants from several ministries who had spoken to the reporters in the past. So right then and there, I knew Wilkinson’s staff would had to have been in communication with those ministries to assemble that list.
As a former media-relations advisor, I also knew the briefing note would have gone through an often extensive approval process before it was finalized. All those records may have included information that wasn’t in the issue note, helping further explain the whys and hows of its making.
Rodney Porter, the communications director for Wilkinson’s ministry, assured me that’s not the case. But I can’t make that determination for myself because the approvals, as well as any communications with other ministries, were deleted.
“As you know yourself, there would have been back-and-forth like, ‘What are you looking for? Why are you looking for this?’ And then, at the end of the day, what we keep is the final. Everyone’s happy with it. Send it to the minister’s office and that’s what you got.”
Everything else was wiped because, according to Porter, there was “no need” for that back-and-forth to “be kept as permanent records.”
Indeed, under the Document Disposal Act, government employees are allowed to delete transitory records but the definition of what constitutes such a record can seem ambiguous.
On one hand, for example, employees are advised they can trash “drafts and revisions that are not needed to document decisions and associated approvals,” as well as “routine correspondence about drafts and decisions.”
On the other hand, they are advised they have to save “drafts or revisions with information about a decision or associated approvals that is unavailable elsewhere (e.g., directions to change a proposal and recommend a different course of action).”
They are also advised to save “useful information that helps explain the history of a relationship, decision or project”—as well as “any transitory records that are relevant to a FOIPPA request.”
However, the interpretation of that advice is left with the employees themselves, which is more than a little like letting a half-starved fox guard a henhouse of well-fed chickens—especially given last week’s passage of legislation that eliminates penalties for improperly destroying documents.
And, if Tim Duncan—a former executive assistant to the province’s transportation minister—is to be believed, the government’s political staff have been abusing that liberty.
Speaking with the Times Colonist last week, Duncan said the “big joke” around the legislature was, “Well, everything’s transitory for us. So, we keep nothing.”
Moreover, when Duncan expressed concern about such practices to a superior, he was allegedly told, “It’s like in the [TV show] West Wing. You do whatever it takes to win.”
But secrecy, as the late United States senator and sociologist Daniel Patrick Moynihan once wrote, is actually for losers.
It means our governments believe their decision-making is so suspect that it can’t withstand opposition, press or public scrutiny.
That’s the way our freedom of information laws were written. That’s the way they’ve been repeatedly abused.
And that’s why the public right to know continues to be more honoured in the breach than the observance.
FOI NEWS: FEDERAL
The Times Colonist’s Jack Knox asks, “How goofy has the control-freak chokehold on the flow of information become in Ottawa? So goofy that placing a simple meeting notice in a community newspaper became a months-long process requiring the stamp of approval of the prime minister’s office.”
The Globe and Mail reports, “The Canadian government is refusing to make public the assessments it conducts to determine whether Ottawa’s $15-billion arms deal with Saudi Arabia is compatible with foreign policy or poses a risk to the civilian population in a country notorious for human-rights abuses.” (hat tip: Ian Bron)
Criticism of the government’s decision to retroactively deny access to long gun registry records continues, with the Law Times calling it an “outrage” and the Chronicle-Herald describing it as an “Orwellian attempt to change history.” (hat tip: Ian Bron)
According to the Canadian Press, Treasury Board President Tony Clement has dismissed those criticisms saying, “You know, now we’re getting into angels dancing on the head of a pin, which lawyers are very good at and Ms. [Suzanne] Legault is a lawyer.” Legault is Canada’s information commissioner.
“The federal government is using students and temp workers to bolster overwhelmed access to information offices,” according to the Toronto Star.
CBC News’s Charles Rusnell tweets the University of Alberta’s upcoming access and privacy conference has “zip for FOIP/ATIP users.”
OHS Canada quotes Rob Creasser, spokesperson for the Mounted Police Professional Association of Canada, as saying, “We have RCMP members that, literally, are too afraid to tell the Canadian public about their workplace.” Creasser told the magazine criticizing the RCMP is a “career-ending move.”
Commenting on the muzzling of government scientists, the Chilliwack Progress’s Margaret Evans writes, “Without sound, peer-reviewed science, evidence-based policy decisions for the benefit of Canadians can’t be made. Canadians have a right to know what that science is.”
FOI NEWS: PROVINCIAL
Tim Duncan, a former executive assistant to British Columbia’s transportation minister Todd Stone, has alleged, “Abuse of the Freedom of Information process is widespread and most likely systemic within the [Christy Clark] government.” That allegation, which was included in a letter sent to the province’s information commissioner, has been covered by the Canadian Press, CKNW, the National Post, the Times Colonist and the Vancouver Sun, among other. It was also the subject of commentary by CBC News’s Jason Proctor, the Georgia Straight’s Charlie Smith, the Times Colonist’s Les Leyne and the Vancouver Sun’s Vaughn Palmer, as well as the North Shore News.
According to a poll conducted by Insights West Marketing Research Inc., just 15 percent of British Columbians think the province’s governing party has done a good job handling the issue of government accountability. (hat tip: Bob Mackin)
The Edmonton Journal’s Paula Simons reports the Alberta body that reviews police-involved shootings has investigated nearly a dozen deaths in five months but won’t be releasing the names of any of the victims.
Alberta Premier Rachel Notley has told reporters she is “concerned” about that policy, having “asked officials within the public service to put together a briefing for us on the issue and bring it back to us.”
The Edmonton Journal reports Notely has also “asked for a full review of rules that dictate how high-ranking government officials document their work, and how the resulting records are stored and accessed by regular Albertans…She started the most recent review after Alberta access-to-information and public interest commissioners launched a joint investigation into allegations of illegal shredding in the dying days of the Tory dynasty.”
Speaking of those allegations, the Canadian Press reports Notley believes that shredding may have been justified. The wire service quotes her as saying, “It’s important to understand that there are a lot of circumstances in which shredding is entirely appropriate and, in fact, failing to shred, in and of itself, can breach the legislation.”
The Canadian Press reports, “The Manitoba government has spent public money conducting opinion polls and focus groups on its Steady Growth, Good Jobs advertising campaign, but the results are being kept secret under the province’s freedom of information law.” (hat tip: Ian Bron)
The Winnipeg Free Press reports Manitoba Opposition Leader Brian Pallister has “accused Premier Greg Selinger of hiding behind the Freedom of Information and Protection of Privacy Act” in refusing to disclose severance payments made to former NDP staff members.
CBC News reports, “The Manitoba government appears to have financial forecasts that outline when the province might return to a fully balanced budget as required by provincial law, but it is not making them public.”
Ontario’s information commissioner is calling on the provincial government to “immediately” implement the recommendation of the Open Government Engagement Team’s Open By Default report.
FOI NEWS: LOCAL
Freelancer Bob Mackin reports the media relations department for Vancouver’s regional transportation authority told him to file freedom of information requests to get a response to “easy-to-answer” questions about its “consultants and the values of their contracts.” Mackin also discloses records showing a communications consultant telling an authority staffer not to return his messages.
The Toronto Sun’s Sue-Ann Levy writes, “I attended last Thursday evening’s [Toronto Community Housing] building investment, finance and audit committee hoping to get a copy of TCHC’s 2014 audited financial statement.” But Levy’s hopes were dashed.
The Winnipeg Free Press reports, “Winnipeg city hall is moving ahead with plans to establish a lobbyists registry. Council unanimously supported a plan to instruct the administration to prepare a report outlining the required legislative amendments that would need to be made to the City of Winnipeg Charter Act.”
The Frontenac Gazette reports Frontenac County, Ont. councillors and staff seem to have a lot of questions about the province’s new public sector accountability and transparency legislation. The newspaper quotes chief administrative officer Kelly Pender as saying, “Records management is now mandatory. I’m not sure what that means but you’ll have to keep records of emails.”
Have a news tip about about the state of democracy, openness and accountability in Canada? You can email me at this address.
Author’s note: Publication of this column was delayed due to illness. Its regular publication will resume next week.
[[{“fid”:”3109″,”view_mode”:”default”,”fields”:{“format”:”default”,”field_file_image_alt_text[und][0][value]”:””,”field_file_image_title_text[und][0][value]”:””},”type”:”media”,”attributes”:{“style”:”height: 148px; width: 100px; margin-left: 10px; margin-right: 10px; float: left;”,”class”:”media-element file-default”},”link_text”:null}]]Sean Holman writes The Unknowable Country column, which looks at politics, democracy and journalism. He is a journalism professor at Mount Royal University, in Calgary, an award-winning investigative reporter and director of the documentary Whipped: the secret world of party discipline. Have a news tip about the state of democracy, openness and accountability in Canada? You can email him at this address.
