A joint investigation by Alberta’s Information and Privacy Commissioner and Public Interest Commissioner into allegations of improper destruction of records by Alberta Environment and Sustainable Resource Development in the wake of the 2015 provincial election has resulted in troubling findings concerning the overall management of records.
On May 12, 2015, the Public Interest Commissioner received a disclosure of wrongdoing under the Public Interest Disclosure (Whistleblower Protection) Act related to the possible destruction of records in the Action Request Tracking System (ARTS), a ministerial correspondence tracking application. On May 8 and 13, the Information and Privacy Commissioner received letters expressing concern about the destruction of records at ESRD, and generally within the Government of Alberta.
A joint investigation was launched. Key findings from the investigation include:
- There was no direct monitoring or review of the management or destruction of records kept at the Minister’s office. As a result, it was not possible to establish whether records were destroyed at that location, or, if so, whether any such destruction was in compliance with rules related to the destruction of records as set out in the Records Management Regulation (RM Regulation).
- The destruction of 344 boxes of ESRD executive records was not in compliance with the rules relating to the destruction of records. Disposition documentation provided little or no indication of the rationale for applying certain schedules or approving destruction. Where the rationale was clearly articulated, the subsequent action to destroy records contradicted this reasoning.
- The security arrangements made by ESRD to protect against unauthorized destruction of records in ARTS were not reasonable. Although some technical controls were in place, records in ARTS were at risk of being deleted based on the assumption they were copies of masters; master copies may be deleted based on a belief they were secondary copies.
- Records schedules were found to be confusing, overlapping and difficult to apply. ESRD officials were, at times, unable to adequately explain how and why authorities were used.
- There appeared to be a serious misunderstanding on the part of some Service Alberta officials as to the application of the Freedom of Information and Protection of Privacy Act to records in ARTS. This raised questions about the responses to past access requests.
- Program support, monitoring and accountability for the records destruction process at ESRD was inadequate and presented an unreasonable level of risk that records may be destroyed in contravention of the RM Regulation.
- There was no evidence that records were destroyed with the intent to evade an access request.
- With regard to the specific allegation made to the Public Interest Commissioner (i.e. the destruction of records in ARTS), the investigation found no evidence that records in ARTS were destroyed. However, the investigation did reveal confusion about the application of a parliamentary convention (the Westminster Convention) which may have resulted in a misunderstanding that records in ARTS were to be destroyed.
Among the 16 recommendations made:
- Identify gaps, and clarify policies, procedures and responsibilities to ensure records are identified, preserved and appropriately restricted at all times, especially during a period of government transition.
- Identify and address gaps in the monitoring of records management activities in the Minister’s office, including increasing staff members’ awareness of information management rules.
- Establish Service Alberta and the Provincial Archives of Alberta as monitors of departmental implementation with reporting requirements.
- Make all operational records schedules available for the public to view online to help establish openness, transparency and accountability in the management of government records.
- Ensure there are consequences for officials or departments found to have destroyed or handled records in contravention of the RM Regulation. Currently, no sanctions for contravening the RM Regulation exist.
“Robust and accountable records management programs are critical to ensure Albertans can exercise their access to information rights. This investigation found there was confusion about the rules guiding records management, and there were no consequences for not following rules,” said Information and Privacy Commissioner Jill Clayton. “The investigation also brings into question the government’s past responses to access requests for information in the ARTS application. It appears possible that some records may have been treated as outside the scope of the FOIP Act.”
“The allegations of wrongdoing were unfounded under the whistleblower legislation, but there seemed to be confusion about rules during the government’s transition,” said Public Interest Commissioner Peter Hourihan. “Ultimately, the opportunity to investigate the allegation provided faith in the legislation that whistleblowers are protected when they bring forward concerns to my office.”
For further details about the report, please refer to the backgrounder attached to this news release.
Backgrounder
The provincial election resulted in a change in government on May 5, 2015. Immediately following the election, concerns were expressed on social media, and relayed by the media, about the widespread destruction of government records.
On May 7, Information and Privacy Commissioner Jill Clayton issued a news release about the obligations of government under the Freedom of Information and Protection of Privacy Act (FOIP Act) in relation to the destruction of records.
Following the news release, Commissioner Clayton received letters on May 8 and 13 expressing concern about the destruction of records at Alberta Environment and Sustainable Resource Development (ESRD) and generally within the Government of Alberta.
On May 12, Public Interest Commissioner Peter Hourihan received an anonymous call alleging wrongdoing by Alberta Environment and Sustainable Resource Development (ESRD). The caller indicated that at a branch meeting ESRD staff members were instructed to move all briefing material into the Action Request Tracking System (ARTS), and that records within ARTS would be deleted. ARTS is an application used by the Government of Alberta to track ministerial correspondence and briefings.
MLA Greg Clark was then quoted on May 13 as having made “a series of freedom of information requests to all government departments asking for copies of any shredded documents and deleted electronic files” with the intent to “halt the destruction of records” (p. 4).
That same day, May 13, the two Commissioners held a news conference to announce a joint investigation into the alleged improper destruction of records within ESRD.
Shortly thereafter, Premier-elect Rachel Notley requested the Deputy Minister of Executive Council to direct all employees across all Government of Alberta departments to suspend all document shredding.
What was the purpose of the investigation?
As stated in the May 13 news release issued by the Information and Privacy Commissioner and Public Interest Commissioner, the investigation was launched to examine whether:
- ESRD destroyed records in compliance with rules relating to the destruction of records.
- ESRD made reasonable security arrangements to protect against unauthorized destruction of records in compliance with section 38 of the FOIP Act.
- Any person wilfully altered, falsified or concealed any record, or directed another person to do so, with the intent to evade a request for access to the record in contravention of section 92(1)(e) of the FOIP Act.
- Any government employee contravened rules surrounding the disposal or removal of documents during or following the current transition of government in contravention of section 3(1) of PIDA.
Issue 1: Were records in the Minister’s office destroyed in compliance with rules relating to the destruction of records?
The investigation found there was “no effective departmental control” (pp. 11 and 28) over records in the Minister’s office or those records managed by the Minister’s staff.
Senior Records Officers for ESRD “by their own admissions, had little or no direct involvement in the management of records in the Minister’s office” (p. 11), in part, to limit the “perception of interference” (p. 11).
Without any oversight over the destruction of records, the investigation was unable to conclude whether the Minister’s records were destroyed in contravention of the Records Management Regulation (RM Regulation).
Of note, the investigation found that 344 boxes of executive records were destroyed between May 1-13, which accounted for more than half of the total number of disposed records in April and May.
ESRD officials said this destruction of records was part of the routine disposal of documents. However, the investigation found “lacking and sometimes contradictory authorities and documentation attached to the destruction” (p. 15) of the 344 boxes of records, which did not “provide confidence in ESRD’s ability to manage some of the arguably most important records to support a professional and accountable public service” (p. 15).
Further, records destruction schedules were found to be “overlapping, confusing, and difficult to interpret” (p. 18). Therefore, these schedules were “inadequate” (p. 18) for the implementation of the RM Regulation.
Issue 2: Were records in ARTS destroyed in compliance with rules relating to the destruction of records?
Considering the disclosure of alleged wrongdoing made to the Public Interest Commissioner, a review of ARTS was a critical component of the investigation.
Ultimately, the specific allegations of wrongdoing provided to the Public Interest Commissioner were unfounded. There were no directives provided by ESRD leadership, Service Alberta, or from Executive Council to destroy records outside disposal schedules.
However, the security arrangements to protect against improper destruction of records in ARTS were found to be unreasonable. “The technical safeguards in place are not enough to adequately mitigate the risks created by inconsistently applied and improperly documented information management practices” (p. 23).
The investigation found there was “inconsistency” and “confusion” (p. 20) about ARTS.
Issue 3: Did any person wilfully alter, falsify or conceal any record, destroy any records subject to the FOIP Act, or direct another person to do so, with the intent to evade a request for access to the record in contravention of the FOIP Act?
There was no evidence that records were destroyed with the intent to evade an access request in contravention of the FOIP Act. However, Service Alberta officials stated on more than one occasion that only subject lines of action requests were subject to the FOIP Act.
All records and attachments in ARTS are subject to the FOIP Act with some information that may be withheld if it meets certain criteria under the legislation. This “serious misconception” (p. 25) brings into question the government’s responses to past requests for access to records in ARTS.
Observations Regarding Program Integrity and Support
Generally, the investigation found that the Government of Alberta’s records management program lacks accountability. Although Service Alberta is responsible for policy and training on records management, the department does not have an oversight function to ensure compliance with the RM Regulationacross all government departments. There is no internal oversight or control over the destruction of records in the Government of Alberta and no sanctions or consequences for contravention of the RM Regulation.
As the investigation stated, “The core mandate of records management is to ensure the records created and kept by the department provide complete, accurate, reliable, and usable evidence of the actions and decisions of their officials working on behalf of the citizens of Alberta. Without records management systems, citizens’ right of access to government information, including their own personal information, is severely compromised” (p. 25).
Limited senior leadership and financial support was mentioned by government employees as an impediment to effective records management. Upon review of the minutes of meetings between Senior Records Officers and Service Alberta, one exchange was of particular significance (p. 27):
(Senior Records Officers) can hardly make things happen, unless there is a specific issue, or something blows up. No budget. No mandate. Held responsible, yet nothing is specific. They have no contacts with others in the ministry they represent. In contrast, (Senior Financial Officers) have all these and actually have a seat at the executive table… (Assistant Deputy Ministers) don’t want to talk about records anymore; not on their list of priorities.
Finally, records schedules and the policy rationales behind the schedules are not publicly available fostering a “culture of obscurity” (p. 27) and lack of openness, transparency and accountability.
Recommendations
The investigation resulted in the following 16 recommendations (pp. 31-32):
- Develop program standards, processes and tools to ensure the capture, integrity, and continuity of digital records within the information management framework.
- Enhance the authority and resources of the Senior Records Officer role within a department to support higher quality of, and consistency in, records management. There may be opportunities to explore how this role could complement the FOIP officer role, as the two functions are closely related, to ensure optimal compliance with the FOIP Act.
- Review and rationalize all operational records schedules (ORS) to reduce complexity, inconsistency and redundancy, and better document rationale for policy.
- Consider revising, or replacing ARDA with a new schedule that addresses the challenges we identified in scheduling records appropriately.
- Conduct a full review of records schedules and their implementation for executive records across government.
- Review and revise the transitory records schedule to more clearly restrict its use to duplicate and short-term information, and reconcile the goals of this policy with the concept of “copy sets”.
- Ensure records schedules provide direction and guidance to officials as they are making decisions about creating and keeping documents as active records, not restricted to gaining approval for records they are proposing for transfer or destruction.
- Develop precise service-level standards measuring the quality of records scheduling at the department level.
- Establish Service Alberta and the Provincial Archives of Alberta as monitors of departmental implementation, with reporting requirements.
- Identify gaps, and clarify policies, procedures and responsibilities to ensure records are identified, preserved and appropriately restricted at all times, and especially during a period of government transition.
- Identify and address gaps in the monitoring of records management activities in the Minister’s office.
- Complete the review of ARTS and AR documentation already underway, to ensure full record sets are appropriately preserved for this system.
- Update the privacy impact assessment prepared for ARTS in 2003 to address changes to the system, and submit it to the Office of the Information and Privacy Commissioner for review.
- Increase awareness of, and continue to train, Government of Alberta employees and staff members in Minister’s offices, with regards to the crucial importance to adhere to information management rules.
- Make all operational records schedules available for public review online, which would promote clarity, consistency and full accountability about decision-making for assigning retention policy to government records.
- Ensure there are appropriate sanctions for officials or departments found to have destroyed or handled records in contravention of the RM Regulation, such as destroying records without authorization, applying records schedules inappropriately, or failing to create and maintain records that support business operations and evidence-based decision-making.