What do you do when you want to make sure documents can’t be requested under freedom of information law? Well if you’re the BC Government, you need only utter one magic word: transitory.
Government policy states that a transitory record is one that relates to “temporary usefulness […] needed only for a limited period of time in order to complete a routine action or prepare an ongoing record” and such documents can be deleted.
However government officials have been taking a much more expansive interpretation of the meaning of the word, which may be one of the reasons that one in five BC FOI requests comes back with no records.
This disappearing act has been documented on the BC government’s Open Information website. In one apparently unsuccessful attempt to wipe the record, a senior bureaucrat instructs other officials (in red letters to emphasize the point) “…please delete all drafts of the materials and e?mail correspondence should be treated as transitory.”
But ‘transitory’ doesn’t mean whatever the government decides it should mean. In her 2013 report, Information and Privacy Commissioner Elizabeth Denham identified the misuse of the definition of ‘transitory’ as one cause of the disappearance of records, contributing to the scandalous rise in the number of FOI requests that came back with ‘no responsive records.’
Our experience with the Ministry of Health bears this out. A series of damning e mails about the Burnaby Hospital Consultative committee were leaked to the NDP last year, including one sent to former Health Minister Margaret MacDiarmid on her private e mail account, in violation of the law.
Expecting that the email should now have been put into the public record, we requested a copy, however the Ministry could not come up with the correspondence. The Office of the Information and Privacy Commissioner was told that the record had been deleted as because it was ‘transitory’.
Having seen a copy of the original email, we’re struggling to see what possible interpretation of ‘transitory’ could have been used to justify its deletion. The government is clearly abusing their own policies and even the English language to keep information from being released.