If there are no records, there are no secrets to give up.
That appears to be the policy of the government of British Columbia, which is increasingly giving a "no records" response to freedom-of-information requests, a report by the Information and Privacy Commissioner of B.C. has found.
The report by Elizabeth Denham shows the government is largely keeping its files bare by systematically destroying e-mails and by having senior officials communicate orally rather than put anything in writing.
Ms. Denham notes the percentage of FOI requests that generated "no records" responses from government climbed from about 12 per cent in 2002-2009 to 25 per cent by 2012. And the Premier's office had the highest rate – 45 per cent.
"The report is pretty damning," said Vincent Gogolek, executive director of the Freedom of Information and Privacy Association, whose complaint prompted the investigation. "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."
Ms. Denham said the government isn't violating any regulations by communicating orally or by destroying e-mails, but she called for legislative changes to halt the practices.
"We did not find them offside … but that said, my report points out some very troubling findings," she said. "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."
Her report cited the case of Ken Boessenkool, who resigned as the chief of staff to Premier Christy Clark last September, following an alleged incident in a Victoria bar. His sudden departure was a major development involving a top staff member. But Kim Haakstad, who until last week was the Premier's deputy chief of staff, told the FOI investigators that Mr. Boessenkool's letter of resignation was the only record on file.
"Generally, staff members in the Office of the Premier do not make substantive communication relating to business matters via e-mail," she stated. And she said that when staff do write e-mails, the messages are typically deleted because they are considered "transitory" and don't have to be kept.
Ironically, Ms. Haakstad resigned Friday after an e-mail of hers about ethnic voter strategies was leaked instead of being deleted.
Ms. Denham said the government's failure to keep official records about important events is a serious concern. "I've asked the government to amend the legislation so that there is a duty to document an accurate record of government actions. Because if there's no legal duty to write things down, I think that's not just poor practice or poor governance, but it's very difficult for the public to actually trust the government and hold them to account," she said.
Kim Henderson, deputy minister of Citizens' Services and Open Government, welcomed the report in a letter to Ms. Denham and said the government will be implementing some of the recommendations. Ms. Henderson said she was "pleased" with the report because it shows the government is in compliance with FOI legislation and does a thorough job of searching files.
She said the "duty to document" recommendation made by Ms. Denham may be studied when a special legislative committee next holds a review of FOI legislation.
"I'm really concerned about that because what Ms. Henderson is saying is that the government may consider this, some time in the future," said Ms. Denham, who noted the next statutory review of the FOI Act is in 2016. She said she'd like to see changes before that.