VANCOUVER - The British Columbia government erased back-up copies of MLA emails from 2001 to 2005, including those of Premier Gordon Campbell and cabinet ministers, according to information revealed in court yesterday in the trial of three men accused of corruption in the sale of BC Rail.
In an episode reminiscent of the late Rose Mary Woods, President Richard Nixon's secretary who "accidentally" erased a crucial segment of a White House tape recording following the Watergate break-in, B.C. Supreme Court heard that the provincial government has erased back up tapes of emails from 2001 to 2005.
That means no possibility of the defence team for David Basi, Bob Virk and Aneal Basi obtaining the emails to prove their innocence of corruption charges related to the sale of BC Rail.
The Globe and Mail's Mark Hume was the only journalist present for yesterday's hearing and reports that defence lawyers were "very troubled" when B.C. government lawyer George Copley told Justice Elizabeth Bennett the tapes were erased and unrecoverable.
Regrettably I was travelling and not in attendance but a reliable observer has filled me in considerably on the events of the day and I am indebted for the following account:
The defence has served affidavits to 33 people employed or previously employed by the Campbell government - from the period of June 5, 2001 to the point where employment ended - for all electronic records (email and blackberry) specifically related to any discussion prior to the sale of BC Rail, the divestiture of Roberts Bank, or the cancellation of the Port Subdivision.
The emails sought include those of Premier Gordon Campbell and his chief of staff and former press secretary, multiple deputy ministers, and various other government employees.
The B.C. government's lawyer, George Copley, claims that government back-up tapes (of emails) for the period requested either no longer exist or are unrecoverable.
Copley stated that back-up tapes are kept for 13 months for the purpose of disaster recovery, not for archived purposes.
Defence lawyers said: "This is the first time we have been told that the emails sought are not there. This is potentially a very significant matter and major development in these proceedings."
The defence also said they have 4500 boxes with hard copies of emails and other information which was the focus of their freedom of information request. They say a huge amount of substantial and relevant emails (which they believe remain in electronic email format) have not been recovered and therefore are not part of the 4500 boxes.
Court adjourned until Tuesday morning so defence could either seek cross examination of the 33 individuals, or alternatively submit a letter through Copley, asking the witnesses to answer specific questions about whether and how their computers were searched and any reasons for why they claim the emails are no longer recoverable.
Bennett said the issue in its entirety must be resolved before Sept. 4th.
Provincial government procedure for the handling of electronic records is governed by the Document Dispersal Act and related policies. Documents must be kept for 7 years unless a disposal order is granted following the procedure outlined in the Act. This order must be approved by a designated government official.
The policy that specifically guides the treatment of electronic records notes that any information that is part of a legal process must be kept and available.
It would be hard to justify the disposal of emails touching on a matter which is the subject of a police investigation and charges.
NDP justice critic Leonard Krog called loss of government files “extremely troubling”.
“The Document Disposal Act requires that [electronic records] be kept for seven years,” Krog said. “It raises incredible suspicions and someone farther up the political chain than Mr. Copley is going to have to appear in court and explain what happened.”
Bill Tieleman is a regular Tyee contributor who writes a column on B.C. politics every Tuesday in Vancouver 24 hours. E-mail him at email@example.com or visit his blog at http://billtieleman.blogspot.com.