OTTAWA – Nothing to see here, move along.
That was gist of the response Canada’s information commissioner received when, during the course of a recent investigation, she asked the Department of Public Works for a series of emails sent by political staff.
The same thing happened when deputy Liberal leader Ralph Goodale asked for documents on the Senate expenses scandal from the Privy Council Office. He too was looking for emails involving a political staff member.
The basic argument was the same: the department doesn’t have any control over records in the minister’s office, and political staff aren’t covered by the Access to Information Act anyway.
But that’s not the whole picture.
A 2011 Supreme Court decision on ministerial records and access to information said it is the content of the documents — not where they are located — which determines whether they fall under the Act.
“What the court said was that ministers’ offices were not meant to be black holes,” Information Commissioner Suzanne Legault said in an interview.
“If they have departmental records, those records can in some circumstances be under the control of the department.”
In Legault’s case, she eventually received the records after issuing a production order. And she found records that were in fact under her purview. The emails she obtained led to her conclusion last week that three Conservative staffers had interfered in the access to information system.
Another of her findings centred squarely on her difficulty in getting the documents, which were not being properly stored inside the minister’s office as departmental material.
The test for determining whether a document in a minister’s office is under the control of a department involves two main questions: does the record deal with a departmental matter, and could a senior bureaucrat reasonably get a copy of that record if he or she asked for it?
The case is raising questions about just how forthcoming government departments are about the records they hold, and whether ministers’ offices are properly storing and categorizing their documents.
“I think the government here is pretty fast and loose with the (access) rules, and it’s an area that their credibility is pretty much in tatters,” said Goodale.
“It’s an area where the information commissioner should be asked to offer some fresh advice in the light of all of this.”
Another issue raised by Legault — one that became a central issue in the Senate spending affair — is how long records created by political staffers are preserved.
In the case of emails sent by the prime minister’s lawyer Benjamin Perrin, who had knowledge of a $90,000 secret payment to Sen. Mike Duffy, the PCO originally told Goodale a search of records under the department’s “control” turned up nothing.
They also told the RCMP they had been deleted.
It later turned out they had actually been preserved for an unrelated legal matter, but the fact was they could have easily gone in the trash. They were subsequently provided to the Mounties.
The Canadian Press was recently told by the PCO, in relation to an access to information request, that backup copies of emails are only kept for 30 days. It is the person who writes the email who makes the decision on whether they should be preserved.
Legault raised this issue of preservation with the Treasury Board Secretariat last year, noting that instant messages between officials were not being properly stored, meaning the process behind government decisions was going undocumented.
The Treasury Board eventually put out a new set of guidelines on dealing with records inside a minister’s office, reminding employees that information doesn’t have to physically reside outside of that office to be considered under the control of the department.
“Unless a government official makes a conscious effort to record that information elsewhere, it is lost to the public,” Legault wrote. “This duty to record is one of the casualties of the instant messaging environment.”