06.07.2013 07:39 AM

The new Gomery: Ann Cavoukian

This week, Ontario’s “Information and Privacy Commissioner” – her oxymoronic title neatly lays out the point I am about to make – excoriate some of the folks I know pretty well from the Dalton McGuinty government.  She ripped those folks from stem to stern, for deleting – or even apparently thinking about deleting – emails.

You can read her report for yourself, here.  Personally, I found her approach and tone to closely resemble that of former Justice John Gomery, the Westmount hobby farmer who seemed to be far more interested in publicity than the public good.

Here’s some of the problems I have with Cavoukian’s report:

  • She did not even bother to contact some of the people being smeared (even Gomery gave people a chance to tell their side of the story);
  • She did not give a moment’s thought to Ontario law, which “prohibits employees from disclosing confidential information” even after someone leaves government;
  • She pays no heed to the fact that records of emails concerning government business were kept by officials, and/or the government server, for many months and ultimately deleted only by them;
  • She ignored the fact – the fact – that the rules permit the deletion of transitory records, records that have no historical value, and records that exist in duplication (I know from my time on the Hill that most records would fall into those categories);
  • She gives no credit to the important points raised in the Globe and Mail editorial below.  Which I quote:

While officials should certainly create written records of actual decisions, cabinet ministers and their closest advisers should be free to talk about the reasons for a decision without making a paper or electronic memorandum. Their motives and purposes are best scrutinized in parliamentary debate, question periods and legislative committees…Ministers and their staffs should be able to deliberate informally, without having to disclose their every passing thought.”

That’s what I think, too, and it was what I was attempting to say on Sun News the other day (when I could get a word in edgewise, that is).  As Cavoukian’s title makes clear, there is a glaring contradiction at the centre of this false controversy: political staff are told – indeed, threatened with prosecution if they don’t – that they must keep confidential information confidential.  They are also told by publicity-seekers like Cavoukian they must simultaneously do the polar opposite.

That’s dumb; that’s idiotic.  Politicians, and policy-makers, need to choose.  Total openness, nothing held back – or some degree of confidentiality, to ensure that government (and citizens, and business, and unions, and associations) can continue to do its work.

Which is it?  I know what I pick.


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    Jon Powers says:

    A couple of typos in here, dude. Not pointing it out to be a dick, just so you can correct before other actual dicks point it out. See, not all conservatives are douchebags.

    She pay(s) no heed to the fact that records…
    She ignore(s) the fact…

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    MS says:

    There should be a records retention schedule covering these email records. They should be retained according to the schedule. Clicking delete in someone’s email program should have nothing to do with the retention of emails on the archival server. Were they retained according to the schedule? Why or why not?

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    Darwin O'Connor says:

    “Their motives and purposes are best scrutinized in parliamentary debate, question periods and legislative committees”

    Unfortunately that process has proven to be ineffective as they seem to have no hesitation hide, evade and lie about their motives and purposes, even through everyone knows what it is: to get reelected.

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    Tyrone says:

    You make some great points, Warren. Here are a few more:

    Context is important: political staff are constantly having Freedom of Information (FOI) requests come in from opposition parties on “fishing expeditions”. These FOI requests are for things like “all email and electronic records containing the word ‘energy'”, or for your Outlook calendar, so they can see every meeting you’ve had, and with whom. There’s nothing wrong with that – FOI legislation is there for transparency, but here’s how it plays out in practice:

    You get contacted by a Ministry’s FOI coordinator, wanting to know how many “responsive records” you have for a give search; you then have to search all of your documents (electronic and/or hard-copy, depending on the FOI request) and get back to them with an estimate of how many documents/pages are “responsive”. This is a very time-consuming task, and when you’re done, you give the info to the FOI coordinator who then provides the requestor (the person, organization, or Party who filed the FOI request) an estimate of what it will cost to obtain all of the responsive documents. The more documents, the more the cost (for photocopying, etc.) goes up – but that has nothing to do with political staff: it has to do with how specific the request was. If you file an FOI asking the Ministry of Health for all documents containing the word “health”, the cost would be in the billions, I’d imagine.

    Anyway, after getting the estimate, the requestor decides whether they want to pay or not. If they do, we do the search again, and turn over all of the relevant documents, after going through each of them to see if any information needs to be redacted (because it contains cabinet-confidential information, business information subject to non-disclosure agreements, or personal information). Again, this is a very time-consuming process, and there are strict timelines that need to be adhered to.

    Given that all draft legislation, Cabinet decks, Minister’s speaking notes, press releases, etc., are kept by the Ministry as well as the Minister’s Office, many political staffers choose to regularly purge their email inboxes (weekly, monthly) to avoid it. Remember, they aren’t deleting the only copies of important information, they’re mostly deleting emails that went to lots of people within government, including Ministry staff, who hold onto documents (electronic and otherwise) forever. So rather than a conspiracy to deny the public access to important information, most deleting of emails in an Minister’s office is about not having to spend dozens of hours a month dealing with FOI requests: if you have a clean inbox, with only a couple of weeks worth of emails in it, when the estimate request comes in, you can honestly say “I don’t have any responsive documents”, or “I only have three” or whatever. And, of course, if you do find anything responsive on that initial search, you’re careful to save them, because if the requestor does pay for the FOI, you’ll need to have had the original ones you found (as well as anything else that may have been captured in the meantime), lest you fall afoul of the IPC.

    People have been jumping on Livingston’s statement about wanting to permanently delete emails, and I’m not going to defend that, but I will defend Craig MacLennan’s statement that he regularly deleted his emails because the auto-archive feature was such a pain: after thirty days, the Outlook default setting was to auto-archive items, making them almost impossible to search, tedious to open, and difficult to delete – difficult as in “deleting six auto-archived items can make your computer freeze for half an hour”. So rather than getting to that situation where you had a bunch of frozen items in your archive that were nearly useless, you’d delete your email before it got to that point.

    There are many points to be made about what the balance should be between transparency and the protection of information, as Warren points out; but there are also practical points to be made about the rules play out in the context of a functioning Minister’s office. I never felt bad when I was deleting my copies of emails, because I knew that the important ones were on a dozen other servers and inboxes across the public service. Suggesting that anyone who routinely cleaned out their inbox was part of a conspiracy to deny information to the public is irresponsible and wrong. Like Andre Marin, Cavoukian loves to sensationalize things to get the spotlight and this is the most recent example.

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      Jamie says:

      Thanks for this. This is an attack that is almost impossible to defend against because so few people are privy to what you just shared, but react viscerally to the idea of “deleted emails”. Personally, I feel the balance is all wrong and that Warren has it right. What matters? The minutiae behind a government policy/decision or the decision/policy itself? I think its the later.

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    Chris says:

    Come on Warren. Everybody knows that McGuinty and company ran the most crooked game in town for quite some time and did it quite well I might add. Government by lawyers is what brings this sunny style to town and the people don’t really mind the flavour too much so why defend the indefensible which isn’t really all that unexpected. Dalton deletes emails like Ford smokes crack.

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    Cobain's Ghost says:

    Carleton history professor MARK BOURRIE uses false names on the Internet. Does the university know?

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    Hal Davita says:

    If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.
    Cardinal Richelieu

    Or in this case, six lines unwritten. This is one of the major reasons Government is becoming unworkable. The mandarins hold great power within government – as this case shows, you’re damned if you do, damned if you don’t, the classic catch 22. They know this, schemed hard to create a system that has largely become an end in itself rather than serve and support the elected officials who in turn are theoretically supposed to support the people. It is also sadly why top notch women and men decide to stay in the private sector – that odd place where one can, you know, delete emails, have private conversations, behave like a free adult, rather than be treated like a recalcitrant mule-in-harness.

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    Cath says:

    The parallel you used hasn’t escaped me WK.

    Gomery is to the LPOC what Cavourkian will be to the Ontario Liberals sure as shooting.

    Your points are well taken but is it too late? Depends on how well the media and opposition can keep this ball in the air.

    With summer coming (really, really soon) I’m betting it can’t come too soon for Premier WynneWath

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    Ottawa Civil Servant says:

    This has absolutely nothing to do with the case. I can ask for the most specific item I want and pay the bill for the Access to Info request, and the ministry MUST turn the info over.

    But not to me. It gets turned over to the government ATIP staff to evaluate it for harm to the Crown or third parties. Ministerial staff CANNOT withold the info from the ATIP types, only recommend it be redacted. You guys remember that word, right, from when the Tories provided Defence documents that the ATIP people heavily redacted, in keeping with the law.

    If nobody at DND deleted arbitraily, there is absolutely NO reason for the energy ministry to shred files (electronically or otherwise.) It is the LAW.

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    headmaster says:

    Warren, You are a seasoned lawyer…
    Mc Guinty affair is a monumental malfeasance.
    Why you are defending indefensible?
    Just to prove that you are smarter than current investigators?

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      Warren says:

      Breaking the Archives Act? Seriously?

      If we start criminally investigating every politico who deletes emails, there’ll be no one left to run anything. Believe it.

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