By Darrell Evans
Executive Director, FIPA
At some point — soon, one hopes — we will find out who is responsible for the illegal destruction of cabinet e-mail records relating to the sale of BC Rail. Whoever gave the order to destroy the records should face serious consequences.
It doesn’t matter whether the destruction was a cynical, premeditated decision made to evade responsibility at the highest level or a poor decision by a bureaucrat or an IT services technician: The Document Disposal Act which governs the destruction of government records is crystal clear: “[a] document must not be destroyed except on the written recommendation of the Public Documents Committee.”
Regardless of the format — paper, electronic or whatever — no provincial government record may be destroyed without what’s referred to as an “approved records retention and disposal schedule.”
How this works is simple: Records management personnel classify a type of record according to the subject matter. Associated with that classification is a retention and disposal schedule that has been approved by the Public Documents Committee. That gives the record schedule the “approval” of the Document Disposal Act. There is a pre-approved classification for almost every conceivable record in government.
Some government sources have claimed there is a relatively short retention period for e-mails. That is untrue. There is no classification schedule for e-mail because all records are classified according to their subject matter, not their format.
E-mail is merely a record format; it is the content that matters.
Records experts in government talk about the “life cycle” of records — how long records are kept in active storage in ministry file cabinets and electronic servers, how long they may be kept in warehouses or on backup tapes and what happens to them when the useful period of their life is over.
Cabinet records are a “type” of government record containing “cabinet” information and as such are retained for a relatively long time (16 years in most cases). This is much longer than the lifespan of the records concerning BC Rail that have been destroyed.
So how long was government supposed to keep those e-mails? Documents that exist only as e-mail are what records management officials refer to as “unscheduled records.” Translated from bureaucratese, this means: “We can’t determine how long to keep this stuff because we haven’t got around to figuring out exactly what it is and what its value is.”
The retention requirement for “unscheduled” records is indefinite — meaning the records must not be destroyed until they are properly classified and an approved records retention and disposal schedule is attached.
Warehouses around the province are apparently bulging at the seams with unscheduled paper records and the amount of unscheduled electronic records is also skyrocketing. Rather than deal with the costs of classifying and scheduling these records, the government has for many, many years now found it cheaper and easier to store them.
In the face of all of this, we are asked to believe that this relatively small quantity of e-mail records was somehow “inadvertently” destroyed. We’re not buying it. But even if you do accept such an argument, government failed spectacularly to protect these vitally important records.
In the case of cabinet e-mails relating to the sale of BC Rail, the provincial government broke its own laws and (make no mistake) its entrenched, well-understood policies by failing in its duty to preserve important government records. Evidence was destroyed either willfully or through gross negligence.
The time has arrived for the B.C. government to enter into the modern era of information management. We are one of the few jurisdictions in Canada that doesn’t have laws that require government to document decisions, to retain and archive important records and to make information more openly and generally available.
We are told that draft legislation of this type has been kicking around the B.C. government since the mid-1980s, but no administration has found it “sexy” enough to bring forward. Nor has any government been particularly attracted to the idea of being more open and accountable, despite what they have said through their great spin machines. Actions always count more than words.
Everyone responsible for the illegal destruction of these documents should have to face either criminal charges or disciplinary proceedings.
And that should include those who gave the orders to destroy the records, not just those who carried them out.
Darrell Evans is executive director of the BC Freedom of Information and Privacy Association. This article appeared in the Vancouver Sun on July 29, 2009.
The Cabinet E-Mail Destruction Saga as Seen by the Media
Mark Hume, Globe and Mail, Jun. 24, 2009
BC Rail e-mails are likely long gone
Vaughn Palmer, Vancouver Sun, June, 2009
NDP demand investigation into missing BC Rail emails
Bill Tieleman, The Tyee, June 24, 2009
The ghost of Richard Nixon at B.C. Rail corruption trial
Raphael Alexander, National Post, June 24, 2009
Opposition calls for probe into missing cabinet e-mails
Mark Hume, Globe and Mail, Jun. 25, 2009
Delete button wipes out ‘transparency’ in government
Michael Smyth, The Province, June 25, 2009
Vanished e-mails undermine trial
Editorial, Victoria Times Colonist, JUNE 25, 2009
Press gallery dozing on missing email scandal: Oberfeld
David Beers, The Tyee, June 26, 2009
Premier’s emails erased during election
Gary Mason, Globe and Mail, Jul. 16, 2009
Cabinet e-mails ordered destroyed in May, court told
By Neal Hall And Jonathan Fowlie, Vancouver Sun, July 17, 2009
Judge orders Premier to turn over e-mails
Supreme Court Justice Elizabeth Bennett ordered Premier Gordon Campbell to turn over documents that could be linked to the 2003 sale of B.C. Rail
Mark Hume, Globe and Mail, Jul. 21, 2009
Government told to produce e-mails
Judge’s order to obtain premier’s communications about BC Rail sale ‘virtually unprecedented’
Neal Hall, Vancouver Sun, July 21, 2009
In the Terabyte Age, government has no need to press delete
Miro Cernetig, Vancouver Sun, July 21, 2009
Dobell’s flippant quip revealing
Vaughn Palmer, Vancouver Sun, July 22, 2009
All right, Campbell, time to talk about the e-mails
Government’s handling of this matter is disgraceful and shows nothing but contempt for the concerns of B.C. citizens
Gary Maso, Globe and Mail, July 23, 2009
Vaughn Palmer, Vancouver Sun, July 23, 2009
A landmark ruling puts B.C. Premier in the hot seat
Gary Mason , Globe and Mail, Jul. 24, 2009