Premier Christy Clark's ex-deputy chief of staff may have destroyed records about the resignation of Ken Boessenkool, but did not violate the Freedom of Information and Protection of Privacy Act because the records were considered "transitory."
Published today, Information Commissioner Elizabeth Denham's investigation into the B.C. government's Increase in No Responsive Records to General Access to Information Requests focused on the lack of records released by the Office of the Premier about the Sept. 7, 2012 Metchosin golf tournament and party at the Bard and Banker Pub in Victoria and the investigation into the so-called "incident of concern" that led to chief of staff Boessenkool's Sept. 23, 2012 resignation.
Global TV reported Boessenkool inappropriately touched a female government employee.
Denham met Feb. 6, 2013 with Kim Haakstad, who was deputy chief of staff until quitting March 1, 2013 over the "Quick Wins" memo controversy. Haakstad used her private email address on Jan. 10, 2012 to send the Multicultural Outreach Strategy to other Clark aides and set-up meetings on government time to discuss the BC Liberals' plan to use government resources to win ethnic votes in the 2013 election.
"Ms. Haakstad believes that there would have been email communications between her and the former Chief of Staff during the relevant period, but these emails would have been transitory in nature and were deleted before the access request was received," Denham wrote.
According to the Office of the Chief Information Officer, transitory records are items "of temporary usefulness" needed for a limited time to finish a routine action or prepare an ongoing record. Denham concluded the disposal of transitory records is beyond her jurisdiction and is instead within the scope of the Document Disposal Act.
"The general practice within the Office of the Premier is to communicate verbally in person. Email communications usually consist of requests to make telephone calls or meet in person," Denham wrote. "Generally, staff members in the Office of the Premier do not make substantive communication relating to business matters via email."
Office of the Information and Privacy Commissioner spokeswoman Cara McGregor confirmed that Haakstad was not under oath when she spoke with Denham.
"She cooperated fully with our investigation," McGregor told The Tyee.
The OIPC, however, has been collecting information about the Multicultural Outreach Strategy email sent by Haakstad from a private email account and will determine "in the coming days" whether further action is needed.
"Specifically, whether Ms. Haakstad's email and its contents raise compliance issues with B.C.'s access and privacy law," McGregor said.*
'No responsive records' replies by gov't doubled
Denham also wrote that Public Service Agency head Lynda Tarras told Office of the Information and Privacy Commissioner investigators that she was not the government employee who spoke with Boessenkool as part of the investigation.
"Ms. Tarras said she did not communicate in writing with the former Chief of Staff during this time period," Denham wrote.
Boessenkool's agenda, which was released under Freedom of Information, corroborates Tarras. It does, however, include an hour-long Sept. 18, 2012 meeting at 2:30 p.m. with Clark's Deputy Minister John Dyble, who oversees the public service. Clark and Boessenkool spoke for 45 minutes on Sept. 20, 2012. Boessenkool also had a 30-minute phone call with Haakstad on Sept. 20, what appeared to be his last full-day on the job. Last month, federal Conservative Boessenkool joined with NDP strategist Brian Topp and Liberal Don Guy to create the Kool, Topp and Guy Public Affairs agency.
Denham said that over the past four years, "no responsive records" replies by government to FOI requesters nearly doubled from 13 per cent in 2008-2009 to 25 per cent in 2011-2012. She said contributing factors include the centralization of FOI processing and the high percentage of no records claims by the Office of the Premier.
"Although the Office of the Premier has been above the government average in no responsive records in each of the last three years, its percentage increased dramatically last year from 30 per cent to 45 per cent. The effect that this increase had on government's overall percentage is significant.
"My investigators did not discern any overt cause for the sudden increase in the Office of the Premier's percentage of no records responses. However, the Office of the Premier's admitted practice of communicating verbally and in person rather than using email and other communication that produces records may help to explain some aspect of this increase."
Denham found 49 per cent of the 149 media requests to the Office of the Premier in 2011-2012 resulted in a no records response, up from 37 per cent a year earlier.
Key among Denham's six recommendations is for government to enact a "duty to document" law, for the sake of good governance, historical legacy of government decisions and protection of privacy and access to information rights.
"Without a legislated duty to document, government can effectively avoid public scrutiny of the rationale for its actions," Denham wrote.
"I recommend that government create a legislative duty within FIPPA to document key decisions as a clear indication that it does not endorse 'oral government' and that it is committed to be accountable to citizens by creating an accurate record of its actions."
Denham found government to be generally in compliance with the duty to assist requirement of the Act, but still has room to improve.
"Government should not interpret its duty to assist narrowly. Government can and should do a better job of its internal documentation of files and its communication with applicants. This would assist in explaining to an applicant why a particular request generated no responsive records."
The genesis of the report was a complaint by the B.C. Freedom of Information and Privacy Association's Sept. 12, 2012 complaint about the no records trend. The investigation was conducted by policy analysts Troy Taillefer and Tlell Raffard and included investigation of complaints by journalists.
*Story updated March 4 at 6:15 p.m.