September 2019

The “duty to document” may sound like boring bureaucratese, but it’s crucial to a functioning democracy.

SOMETIMES A MEDIA STORY TAKES SO LONG TO UNFOLD that readers might well wonder why it’s still being told. I imagine that’s the case with the story of former Chief of Police Frank Elsner’s fall from grace. Court battles kept most players—including the Office of Police Complaint Commissioner (OPCC)—quiet for years.

But policy-wise, we can lay a lot of the blame for dragging out such stories to highly imperfect access-to-information laws. Information that government relies on to make critical decisions is often just not available to journalists or citizens. Unless the public, often via journalists, has access to all the records behind such decisions, it’s impossible to shine a light on how and where costly mistakes were made, or poor judgement was exercised, and thereby hold public officials accountable—essential ingredients for a healthy democracy.

The Elsner case implicates both the City of Victoria and Mayor Helps, as well as the provincial government, for denying the public’s right to know. That denial was made possible, in particular, through a lack of legislation around what’s called “duty to document.”

In October 2018, Focus’ David Broadland filed an FOI request with the City (shortly after the OPCC issued its investigation report) for communications between Mayor Helps and Mayor Desjardins during their three-month internal investigation of Elsner. The City transferred that request to the Victoria and Esquimalt Police Board. In the Board’s response, there were virtually no communications between Helps and Desjardins about the drama unfolding around them during September, October and November 2015. When Broadland asked about this, he was told Mayor Help’s emails had been deleted due to “email retention schedules.” But when he asked to see those schedules, the Police Board admitted there were none. Moreover, the Police Board did not have custody and control of Mayor Helps’ emails. The City of Victoria did.

In January, Broadland submitted a formal complaint to BC’s Office of the Information and Privacy Commissioner (OIPC) that the City of Victoria had failed to provide complete records. As he pointed out in his January/February Focus report, the City of Victoria has a policy requiring that both electronic and paper records created to “document the operations of the mayor” must be “retained for 10 years overall, and then transferred to Archives for selective retention.” The email record in question was only three years in the past.

Finally, in July, we received a response from OIPC Senior Investigator Trevor Presley. He wrote, “Subsequent to your complaint, Rob Gordon [the City’s Information Access and Privacy Analyst] did a second search with a relatively new eDiscovery tool, which did a much more thorough and comprehensive search, including searching for deleted emails. After doing this, he found an additional 271 emails plus 152 pages of attachments which he believed were responsive.”

Those emails were released to Focus and, though highly redacted, they did allow some details to be filled in, including around both mayors’ knowledge of sexual harassment and bullying charges against Chief Elsner in the fall of 2015. This is all covered in Broadland’s July/August feature report.

Broadland then asked OIPC for an inquiry because he questions some of the redactions. The inquiry has been granted and a date set for October 2020.

But right now I want to draw your attention to the way Investigator Presley summed things up: “The main problem here seems to be the deleted emails. I would note there is nothing in FIPPA [Freedom of Information and Protection of Privacy Act] which would require either the City of Victoria or the VEPB [Victoria and Esquimalt Police Board] to retain these emails, nor can the OIPC enforce record retention schedules set by public bodies.”

Therein lies a big problem for a functioning democracy.

The BC Freedom of Information and Privacy Association (FIPA) and other like-minded groups have been advocating for years that FIPPA legislation must include the duty to document, which “would compel government to document their decision making process so that citizens can exercise their information rights.”

As the non-profit organization notes on its website: “The original lawmakers who drafted the FIPPA did not anticipate that government would hold meetings in person and over the phone without writing anything down (a phenomenon known as ‘oral government’), use personal email addresses to conduct government business, and maliciously delete records in order to circumnavigate freedom of information laws (a practice known as ‘triple-delete’). But unfortunately that is now the reality in which we are living.”

The NDP promised two years ago to amend the almost-30-year-old FIPPA to include a duty to document. When the Liberal government was caught in 2015 purposely “triple deleting” communications about the Highway of Tears, the NDP had a lot to say. And well they should. It involved willful destruction of publicly owned, government records—records essential for transparency and accountability. (In the end, one government employee got fined $2,500—not for destroying the records, as there are no rules or penalties for that, but for lying about it under oath during Information and Privacy Commissioner Elizabeth Denham’s investigation.)

Current and former Information and Privacy Commissioners have urged the provincial government to amend FIPPA to include a duty to document. Denham’s cogent and strongly worded Access Denied report describes it as necessary to restore public confidence and make clear that the government does not endorse an “oral culture” devised to avoid accountability.

BC’s current Attorney General David Eby, as part of an all-party special legislative committee on the subject in 2016, made a specific recommendation to include a duty to document within FIPPA. Among the many risks of poor record retention cited in that all-party report was this one from David Loukidelis, QC (a former Information and Privacy Commissioner): “Loss of public confidence in government over time due to the perception that the absence of documentation reflects a deliberate tactic to hide, among other things, wrongdoing (including corruption or favouritism).”

During the 2017 election campaign, the NDP unequivocally committed to updating FIPPA and including a duty to document. Unfortunately, since they’ve been in power, nothing has been done. In fact, they muddied the waters last spring when they passed changes to another act, the Information Management Act, bragging about them as a Canadian first. Vincent Gogolek, FIPA’s executive director, called the changes “a pathetic excuse for a response to massive pressure for action on this issue. A legal duty uses the words ‘must’ or ‘shall,’ not the word ‘may.’” BC’s current Information and Privacy Commissioner Michael McEvoy condemned the NDP’s legislation as ineffective and cynical: “As it now stands, the Information Management Act designates the Minister herself as primarily responsible for ensuring her Ministry’s compliance with the duty to document decisions. Citizens would find it very surprising that, on its face, the current law makes a Minister responsible for investigating her own conduct.”

And it gets worse: guess who, within a couple of months of the bill passing, was found to be using her personal email address to conduct government business in order to circumvent Freedom of Information laws—laws which she oversees? Minister of Citizens’ Services Jinny Sims—who had a year earlier already been caught doing the same thing. Seriously.

Perhaps the capper is that the Information Management Act applies to only 41 public bodies, not the 2,900 that come under FIPPA legislation, where duty to document really needs to be enshrined—as mandatory (the City’s non-mandatory records retention policy illustrating why). And it has to have significant penalties to be meaningful. Finally, implementation and enforcement of proper documentation must come under the jurisdiction of the independent Information and Privacy Commissioner.

Unfortunately, it seems once a party is in power, at any level of government, the public’s right to know how decisions have been made sinks way down the priority list.

Looking at the federal situation, a duty to document was never part of Bill C-58, the long-overdue federal attempt to update information access legislation dating back to 1983. In 2016, federal, provincial and territorial commissioners issued a joint resolution calling for—the third time, they noted—a legislated duty to document accompanied by effective oversight and enforcement provisions. Passed in June 2019, the new federal regulations were largely panned by those on the side of transparency for, among other things, excluding prime ministers’ and cabinet ministers’ records from access coverage, and for not including a duty to document.

In my research, I was surprised to come across an example used by the federal Information Commissioner to illustrate the importance of duty to document. It related to Transport Canada’s behaviour in relation to the Victoria harbour airport, the focus of my feature report last month. The investigation of Transport Canada, the commissioner’s report stated, “revealed that the institution had taken no notes or minutes at some of the regular meetings officials had held with the City of Victoria, especially meetings related to the expansion of the harbour in 2010.” At the commissioner’s urging, Transport Canada eventually came up with 10 pages.

I could give more examples of how journalists and citizens alike have been frustrated—perhaps disgusted is a more apt description—at the seeming disregard of public officials, all paid by taxpayers, to maintain proper records of how they arrived at their decisions. Given the paucity of records, it sometimes seems decisions are made in a cavalier fashion. A recent Victoria example of this, shown through a citizen’s FOI, was the removal of the Innovation Tree at Humboldt and Government Streets. And there’s always the worry that some sort of corruption or influence from improper quarters is being applied. How can we know—unless it’s all fully documented and accessible under the law?

Did you know September 28 is Right to Know Day? Editor Leslie Campbell recommends the BC Freedom of Information and Privacy Association’s website fipa.bc.ca. Empower yourself through one of their free FOI workshops.