An investigation into the use of a secondary email address by former Minister of Sustainable Resource Development Ted Morton has determined that Mr. Morton, his staff or communications staff did not willfully conceal or destroy emails or other records with the intent to evade a request for access to those records.
An investigation into the matter finds there is no evidence that an offence had been committed under section 92(1) of the Freedom of Information and Protection of Privacy Act (FOIP Act). The Commissioner has concluded his investigation.
The investigation was prompted by a media report that alleged that Mr. Morton was using a covert email address, using his real first and middle name, Frederick Lee, to evade potential public scrutiny.
The investigator in the case conducted interviews with 16 individuals including the FOIP coordinator for Sustainable Resource Development, Mr. Morton’s former executive assistant and SRD’s former communications director, among others.
The investigator found that the use of the Frederick Lee email address by Mr. Morton was known within SRD and by outside organizations that communicated with the ministry. The investigation also found no evidence that the email address was used by Mr. Morton to circumvent the FOIP Act. It appears the Frederick Lee email address was used to manage emails, given the volume of emails sent to Mr. Morton’s public ministerial email address. The investigation found no evidence that emails or other records were destroyed or withheld with the intent to evade a request for access to the records.
On September 8, 2011, CBC News reported that:
Alberta Progressive Conservative leadership candidate Ted Morton used a covert email for his internal communications while he was a government minister to evade potential public scrutiny, documents confirm.
Emails leaked to CBC News show Morton used the name Frederick Lee – his actual first and middle names – as an official government email address while he was minister of Sustainable Resource Development (SRD).
At a July 2007 meeting, the ministry’s communications director gave SRD staff an explanation as to why Morton used the email address.
“She informed us that if you see an email with the moniker Frederick Lee, not to worry about it, it was just the minister using that email when he didn’t want people to know it was him doing the writing,” former staff member Derrick Forsythe says.
CBC News also reported that, in response to its access request made to SRD under the Freedom of Information and Protection of Privacy Act (the “FOIP Act”), Ted Morton’s former executive assistant told SRD’s FOIP Coordinator that all emails and documents had been destroyed.
In response to these reported allegations, Information and Privacy Commissioner Frank Work authorized Don Christal of Christal Consulting Inc. to investigate whether an offence had been committed under section 92(1) of the FOIP Act. The relevant parts of section 92(1) read:
92(1) A person must not wilfully
(e) alter, falsify or conceal any record, or direct another person to do so, with the intent to evade a request for access to the record;
(g) destroy any records subject to this Act, or direct another person to do so, with the intent to evade a request for access to the records.
The investigator interviewed 16 individuals, including SRD’s FOIP Coordinator, Mr. Morton’s former executive assistant and SRD’s former communications director, among others.
The investigation found that the Frederick Lee email address was not a “covert email” address as reported, but was known within SRD and by outside organizations that communicated with the ministry. The investigation found no evidence that the email address was used to circumvent the FOIP Act, but rather, was used to manage the volume of emails to and from the Minister’s office.
Evidence obtained from interviews with the individuals present at the 2007 meeting with SRD’s former communications director did not corroborate what the former communications director was alleged to have said at that meeting. The investigation found that there was a formal established record-keeping system, staff were aware of the requirements of that system and staff were charged with retaining proper records, including email records pertaining to the Minister.
The CBC had also reported that none of the Frederick Lee emails were produced in response to its access request. However, during the investigation, SRD provided the investigator with copies of emails from 2007 to 2009 that contain the name Frederick Lee. Those emails had not been provided to the CBC as they were thought not to be responsive to the access request as revised by the CBC.
The investigator obtained evidence that the Land Use Framework document referred to in the November 15, 2008 email published by the CBC is available on the Land Use Framework website at https://www.landuse.alberta.ca/Documents/LUF%20Land-use%20Framework%20Report-2008- 12.pdf, and changes that the Minister requested in the November 15, 2008 email were addressed in the Land Use Framework, raising the possibility that the November 15, 2008 email record no longer existed because it had been treated as a transitory record and disposed of accordingly.
The former executive assistant to Mr. Morton explained that records, including emails, were regularly sent to the Deputy Minister and the Action Request Tracking System. Consequently, on transition from one ministry to another, there remained only two boxes of records to send to the Deputy Minister. The remaining records were viewed as transitory records that were shredded or deleted. The ministry’s former special policy advisor confirmed the evidence of the former executive assistant.
The investigation therefore concludes that Mr. Morton, his staff in the Minister’s office and communications staff did not wilfully conceal or destroy email or other records with the intent to evade a request for access to the records. Since the evidence showed no offence had been committed under section 92(1) of the FOIP Act, the Commissioner has concluded his investigation.