Committee flexes subpoena power, prepares to probe missing P.E.I. government emails

A special committee of the P.E.I. legislature struck to probe the issue of missing emails is sending a shot across government's bow, warning senior bureaucrats they'll face a subpoena if they don't promptly respond to requests for documents.

But at its first meeting Tuesday — which lasted two-and-a-half hours — the all-party Special Committee on Government Records Retention was divided on the issue of whether it should hire an outside investigator to assist in its review.

Records management and retention "is a very specialized field," argued Green Leader Peter Bevan-Baker.

"It think it's important that we know this committee is asking all the right questions."

The new committee, created in response to a motion from the Green Party that passed during the recent legislative sitting, is the latest attempt to delve into the issue of missing government emails, believed to be linked to the province's failed e-gaming affair, some of them dating back almost a decade.

Government contravened its own laws

In a report issued in June, P.E.I.'s former privacy commissioner Karen Rose concluded government contravened its own Freedom of Information and Protection of Privacy Act by not telling two people who applied for documents that a swath of emails from the account of a senior bureaucrat with Innovation PEI had disappeared.

She said the failure to properly archive those emails was a contravention of the Archives and Records Act.

And while she said there was "insufficient evidence" to conclude the records "were intentionally destroyed for the purpose of evading an access request," she also said "the probability is small" that the emails in question "would accidentally go missing for precisely the period of time during which the e-gaming file was open."

Rose, now the province's acting prothonotary, is among the witnesses the new committee has decided to call.

Previous report led to changes

The committee is also calling the province's former auditor general Jane MacAdam, whose 2016 e-gaming investigation found other government email accounts which should have been preserved had been deleted, contravening the Archives and Records Act.

In response to that report the government of the day launched a three-year program, ending in 2019, to modernize its records management system.

Part of the job of the special committee is to determine whether the new system is working and being adhered to, and meets current best practices.

Power to issue subpoenas

The committee was given six months to complete its mandate, prompting Bevan-Baker to introduce a motion directing the committee to warn bureaucrats if requested documents haven't been provided within three weeks they'll receive a subpoena. The motion passed.

Under the Legislative Assembly Act, committees have the power to issue subpoenas to compel people to appear.

But a second motion to hire an investigator with expertise in records management was questioned by other members of the committee and eventually set aside to be voted on at a future meeting.

"If the privacy commissioner, the RCMP and the [auditor general] all looked at this, who are we to try to find anything that they didn't find already?" said Liberal MLA Hal Perry.

In 2018 the RCMP said they had conducted more than 50 interviews as part of an "extensive investigation" into e-gaming and found no grounds for criminal charges.

But in response to Perry, Bevan-Baker said the auditor general and the privacy commissioner were both "frustrated" as a result of information that was unavailable to them, something he said the committee could rectify.

"Did any person wilfully alter, falsify or conceal any record or destroy any record … or direct another person to do so?" said Bevan-Baker, calling those "seminal questions" that previous investigations had not been able to answer.

Department defers to committee

Concerns were also raised that the committee's investigation might occur concurrently with one announced in June by the Minister of Economic Growth Matthew MacKay.

But on Wednesday the department said it had advised committee members it wanted to avoid a concurrent, possibly competing investigation and the minister was awaiting direction from the committee on how to proceed.

Bevan-Baker said "absolutely" the best choice is for the committee to conduct the investigation through a series of public meetings, rather than have government conduct its own investigation "behind closed doors, out of the sight of public scrutiny."

Deputy in court over records request

On the same day the committee held its inaugural meeting, the province's deputy minister of economic growth — the department responsible for the emails in question — was in court briefly over the issue of documents.

Paul Maines has applied to have the P.E.I. Supreme Court find Erin McGrath-Gaudet and the department in contempt because the department failed to meet deadlines set out in court orders to provide documents in response to a freedom of information request.

That court hearing was adjourned to a later date.

Maines is the president of Capital Markets Technologies, a company embroiled in a $150M lawsuit with the province stemming from e-gaming, the province's failed attempt to become a regulator for online gambling.

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