By Rob Wipond, October 2013
When our governments are going rogue, who or what is going to hold them to account?
Lately I’ve been running into so much lack of legal accountability at the most fundamental operating levels of our public agencies, I don’t know where to turn to demand accountability.
After investigating the BC Premier’s Office and its suspicious dearth of documents about major decisions, for example, the BC Information and Privacy Commissioner this year suggested that public employees should have a “duty to document.” But the Commissioner also mentioned that she did not have jurisdiction over the BC Document Disposal Act (DDA). That caught my attention even more. Who, I wondered, ensures that governments and public employees obey the law when they decide what records to permanently delete or shred?
I found out that some training of public employees in rules for document filing and deleting is done, but no one actively monitors compliance. “There are no provisions under the DDA for central monitoring of records disposal,” read a statement from the ministry in charge of information services. I also discovered I’m not the only watchdog worrying. Scanning BC’s Open Information website (where many results of freedom of information requests are posted), I saw that a media outlet recently seemed to be researching a controversial provincial government trade mission to Asia, and then requested copies of emails from people ordering other people to delete those very records. What’s then laid bare in the released documents is that the word “transitory” has become common parlance at government’s highest levels.
“Transitory” is the official label for records that are “unnecessary duplicates” or “rough research notes” or “preliminary drafts.” Most bureaucrats would put in this category things like personal emails to friends, scribbled notes that they later typed up, the un-spellchecked version of their report, and nine of the ten auto-generated email invites to a meeting they received. The DDA authorizes disposal of these types of “valueless” records that are irrelevant to documenting government activities. However, in the eyes of the Asia trade mission’s leaders, most of the planning, budgeting and expense tracking for this major BC Liberals’ economic investment initiative were transitory records—ones so particularly “valueless” that they often needed deleting with marked urgency.
“[P]lease delete all drafts of the materials and email correspondence should be treated as transitory,” wrote a senior director helping organize the mission, Christine Little. In another email Little wrote, “[W]hen you’re done the budget can you send me a copy please? Transitory information only.”
Assistant Deputy Minister Shom Sen, apparently the most senior bureaucrat involved in the mission, essentially made the word a fixture of his salutations and signatures. “Pls delete… Please treat the prior note as transitory,” wrote Sen again and again, even when referring to important documents going back and forth from cabinet, and to discussions about responding to freedom of information requests. “Transitory, including all preceding emails…Please treat all of these emails and follow-ups as transitory…Pls treat this last email and all associated as transitory…Would appreciate if you would pls delete other document sent earlier and shred the hard copy.”
Evidently, some recipients, along with the government’s own information experts, decided these were not in fact “transitory” records, and further determined they required release under BC’s freedom of information laws. But how many other records were illegally purged? And how many more bureaucrats similarly situated in the highest echelons close to the BC Liberals have been issuing such directives? Yet who do we complain to if these patterns of behaviour are already openly posted on the government’s own website, and no sharp reprimands or lost jobs have resulted after years of it?
Can we complain to police about law-breaking politicians or bureaucrats? Police agencies, too, are routinely breaking laws designed to ensure they’re accountable. The latest example I’ve run into: I previously reported on the Victoria Police Board going in private to debate and ultimately dismiss Mayor Dean Fortin’s suggestion that VicPD’s automatic licence plate surveillance should be brought into compliance with privacy law. Under the Police Act, police boards are legally allowed to go in camera only if they’re discussing personal/personnel issues or matters that, if publicly disclosed, could “seriously impair effective policing.” So as they ordered the public away, I wondered, who’s ensuring police boards themselves are complying with the Police Act?
Most BC police boards meet in secret every month. Typically, like VicPD’s board, they just summarily cite the Police Act in their public explanations. But according to the law, all police boards that meet in camera must submit to the Justice Ministry the minutes and “the reasons for holding a portion of the meeting or hearing in private.” I didn’t expect to obtain the secret minutes through freedom of information requests, but I soon learned that it’s also impossible for the public to find out anything about the actual reasons their police boards give to legally justify operating in secret.
The Justice Ministry assured me in a statement that “Police Services Division reviews the minutes of all of the board meetings which includes the in-camera meetings.” But then I asked for the name of the person who does those reviews, and for an interview with him or her either for quotation or just for my background knowledge. Are police boards actually even giving reasons? How does this person evaluate the legitimacy of the uses of secrecy by police boards? Has this person ever even once determined that a police board went into secret improperly? The Justice Ministry flatly refused to answer these questions. “There is no formal report of compliance,” stated the Ministry.
Alternatively, then, what if we haul our public representatives into court?
In 2011, a judge concluded that the BC Liberal government had breached Canadian constitutionally-protected rights when, in 2002, they’d ripped up collectively-bargained agreements and passed legislation to force new rules on teachers and school boards. How did the Liberals respond to this accountability imposed upon them by our justice system? They repealed the legislation, gave it a new name, and then passed virtually the exact same legislation again.
So this September the BC Teachers’ Federation launched essentially the same lawsuit they’d already won back in 2011, explaining in a news release, “The BCTF will argue… The purported repeal of the legislation, followed by the enactment of identical legislation, simply continued the unconstitutional violations.” Indeed, if you read the legislation, it doesn’t take a law degree to see the patently obvious. And in the meantime? We’ve had 11 years and counting of illegal, unconstitutional laws governing the BC school system.
Weren’t these once the kinds of issues our elected representatives held each other accountable for through confronting each other publicly in our legislature? But the BC Liberals in September cancelled all of this season’s legislature sittings—how many times have they done that now?
Ultimately, in the old days, we held governments accountable at the polling booths, right? Today, online voting is spreading. I recently learned from security experts how last year’s regional elections in Nova Scotia could have relatively easily, undetected, been hacked and manipulated. The government ignored my pointed queries until I explained the details in Halifax news media. A representative for the “duly” elected government then surfaced and reassured everyone that no such undetectable hacking of their election had been detected. Is that modern government accountability at its finest, or what?
Rob Wipond never thought he’d become sentimental about the days of the rule of law. rob(at)robwipond.com