Government back-channel communication a threat to public access to information, B.C. watchdog warns

The advent of federal and provincial freedom-of-information laws in the 1980s was supposed to herald a new era of government transparency and openness.

How naive we were.

The latest report by British Columbia's Information and Privacy Commissioner shows just how dysfunctional the system has become.

Faced with having to explain themselves after access requests from journalists, opposition parties and private citizens turn up questionable practices, politicians increasingly seem to favour keeping their actions inaccessible by leaving no official paper trail, Elizabeth Denham's report suggests.

“The report is pretty damning,” Vincent Gogolek, executive director of the Freedom of Information and Privacy Association, told the Globe and Mail.

“There is a big problem. … In fact, it’s worse than we thought, and the source of the problem is the premier’s office. Basically, every other information request to her office comes back ‘We can’t find the records. We don’t have any records.’ And that sets the tone for overall government.”

Denham's report was triggered by a complaint from the association. She found the B.C. Liberal government is sidestepping accountability by systematically purging its emails and having senior officials discuss things orally instead of putting things on paper.

[ Related: Feds dispute Canada's poor global ranking in freedom of information ]

While not technically illegal, Denham saw the practices as violating the spirit of provincial access law. She called for legislative changes to curb the growing trend of so-called "no responsive records" that come back when people make access requests.

“A citizen’s right to access government records is a fundamental element of our democracy," Denham said in a news release accompanying her report.

"The right to know promotes transparency in the public policy process, and is an essential mechanism for holding government to account,” said Denham.

“In the course of my investigation, we have seen evidence of the practice of oral government, where business is undertaken verbally and in a records-free way. There is currently no requirement to document these activities. However, without a duty to document, government can effectively avoid disclosure and public scrutiny as to the basis and reasons for its actions.

“Government should continually demonstrate its commitment to transparency, accountability and open government by creating accurate records as it carries out its duties. I believe the duty to document should be a legal requirement in the legislative framework of government.”

Denham's full report is accessible here.

“We did not find them offside … but that said, my report points out some very troubling findings,” Denham said, according to the Globe. “There’s no rule in law that prohibits government from operating on an oral basis, [but] that’s what I’m very, very concerned about.”

The Globe noted her report referred to the case of Ken Boessenkool, who resigned as the chief of staff to Premier Christy Clark last September after he admitted he'd made unwelcome advances to a political staffer at a Victoria bar.

The Vancouver Sun had put in a freedom-of-information request for documents related to the incident but was told there were none, only his subsequent letter of resignation. The government's investigation into the incident had been entirely verbal, apparently.

“Generally, staff members in the Office of the Premier do not make substantive communication relating to business matters via email,” deputy chief of staff Kim Haakstad said at the time.

When staff do write emails, the messages are typically deleted because they are considered 'transitory' and don’t have to be kept, she said, according to the Globe.

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Haakstad herself was forced to resign last week after one of her emails related to a controversial plan to shore up Liberal support among ethnic voters by using government-generated databases was leaked to the opposition New Democrats.

Clark has apologized and ordered an investigation by another official from her office. But critics point out he might have no legal right to access emails sent from private non-government accounts, which documents suggest were used.

It would be naive to think that this practice of keeping potentially embarrassing government activities off the official record is limited to British Columbia.

The Canadian Press reported in 2011 that opposition parties accused federal Treasury Board President Tony Clement of his personal email account to hide his efforts to hand out funding from the G8 summit in his riding.

Private emails obtained by the federal NDP, which are not subject to the federal Access to Information Act, suggest Clement micromanaged distribution of $50 million in funding earmarked for facilities connected to the G8 meeting but spent on dubiously connected infrastructure projects.

The Conservative government has a horrible reputation when it comes to information management. A report by federal Information and Privacy Commissioner Suzanne Legault found Ottawa is getting worse when it comes to complying with access requests in a timely way, The Canadian Press reported in January.

Clement, who is responsible for administering the access system, begged to differ.

“There has never been a time when Canadians have had as much access to government information," he said in a statement accompanying Legault's report.