Premier Horgan needs to keep his electoral promise to
create a duty to document
Stanley Tromp, The Province (Online), Vancouver: Feb 25, 2018
Last April 27, the B.C. New Democrats running for election made several pledges in a questionnaire on freedom of information problems. These include fixing the policy advice exemption, covering subsidiaries of public bodies under FOI, and scrapping the harmful open request website. To date, all these promises remain unfulfilled, with the Throne Speech incomprehensibly silent upon them.
They also pledged to initiate a "duty to document," a promise echoed by the Green Party. The goal is to curtail the ever-growing drift into "oral government," which is a disaster both for public accountability and good administration.
The B.C. Freedom of Information and Protection of Privacy Act grants the public access to "information in records." Yet this right is absolutely meaningless if documents were not created in the first place, were not preserved or cannot be located.
The problem burst onto the public consciousness three years ago when a whistleblower revealed that a political aide had breezily grabbed his keyboard and "triple deleted" key government emails that had been sought by an FOI applicant about missing women on the Highway of Tears.
This case was probed by B.C. Information Commissioner Elizabeth Denham, who found that for years under the B.C. Liberal government, millions of emails had been wiped from the public record, with officials believing this was nothing wrong, while Premier Christy Clark's staff had been using post-it sticky notes to avoid a paper trail.
Then a review by former commissioner David Loukidelis advised a new legal duty to create records of key decisions. So did the all-party legislative review of the FOI law in May 2016. Clark agreed to ban the triple-deleting practice and told ministers and political staff to retain their sent emails, yet stopped short of a duty-to-document law.
While in opposition, the B.C. NDP introduced several bills to this end, before its promise to pass such a law during the last election, including $50,000 fines for breaching it. (In a related matter, the NDP pledged to bring in a whistleblower protection law by March 2018, as advised by the Ombudsman after the Health Ministry firings.)
Perhaps the apt term for the triple-deletion scandal is "shocking, but not surprising," for the overall problem has been publicly known for at least 15 years. Ken Dobell, former deputy premier and head of the civil service, startled listeners at an FOI conference in 2003 by declaring, "I delete my e-mails all the time, as fast as I can," frankly stating his purpose for doing so was FOI avoidance.
"I don't put stuff on paper that I would have 15 years ago. The fallout is that a lot of history is not being written down. Archivists of tomorrow will look for those kinds of things, and none of it will be there. It will change our view of history." Indeed.
Former Vancouver Sun reporter Jim Beatty explained the unwritten "Briefing Rule" in Victoria: "The high level and professional people in government just don't write anything down. Bureaucrats are told that, 'When you brief the minister, put the good stuff in notes, convey the bad stuff orally."
Then the 2010 Vancouver Olympic Games Secretariat stopped recording minutes of its meetings after being annoyed by my FOI requests for them. A spokesman stated this decision was "consistent with cross-government practices and legislation." But what is the outcome? A whole provincial government of non-minute-taking departments? Conceivably, yes.
Twenty years ago, federal information commissioner John Grace sharply rebuked such cat-and-mouse games:
"As to the 'don't-write-it-down school,' any effort to run government without creating records would be humorous if it were not so dangerously juvenile. Left without written precedents and decisions, other officials are deprived of the benefit of their predecessor's wisdom or folly. The misguided effort to avoid scrutiny by not making records is driven by ignorance of the law's broad exemptive provisions." This last problem is the most crucial, and can be resolved by enlightenment.
Beyond the gap in public accountability, there is a second grievous loss for the public interest: a lack of written records leads to poor governance. When that happens, we are all in trouble. Conversely, the benefits of good record keeping are felt internally as much as externally.
There are better routes. Australia and New Zealand mandate record creation. Back in 1950, the United States enacted the Federal Records Act. It states the head of each agency shall cause to be made records on the agencies' "decisions, procedures and essential transactions" so as to protect both the government and "persons directly affected by the agency's activities."
Moreover, in 1999 B.C. passed the Local Government Act, becoming the first province to prescribe that civic councils must generate records of resolutions and decisions.
Why should we accept any less of senior government?
Stanley Tromp is a freelance journalist. His report on the B.C. FOI law, The Vanishing Record, is at his website: www3.telus.net/index100/foi