Alberta cabinet minister Ted Morton did not conceal or destroy emails to evade public scrutiny of those records, an independent investigation concludes.
Provincial privacy commissioner Frank Work opened the investigation after CBC News reported Morton used a secondary email for his internal communications while he was the minister for sustainable resource development in an apparrent attempt to evade public scrutiny.
Emails leaked to CBC News show Morton, now Alberta's energy minister, used the name Frederick Lee – his actual first and middle names – as an email address.
"We found no evidence of an intent to use this email address to delay or defeat the Freedom of Information and Protection of Privacy Act," said Work.
While the secondary address, in effect, shielded the documents from information requests through the FOIP Act, the concealment was not done as part of conspiracy to evade or defeat the act, he said.
"The emails were kept," said Work. "Unfortunately they weren't … necessarily as accessible as they should have been."
A government spokesman said Morton would not be commenting on Work's report because he believes it "speaks for itself."
Ministry FOIP co-ordinator in the dark
The ministry was able to provide the investigator with emails with the name Frederick Lee from 2007 to 2009.
Morton's use of the Frederick Lee email address was known within he ministry and by outside organizations that communicated with the ministry, said Work.
However, the FOIP co-ordinator for the Morton's department did not know about the secondary address and therefore could not have searched for any email using it, he admitted.
While emails from secondary addresses are difficult to search using the FOIP Act, there is no rule preventing any minister from using them, Work said.
The investigation "has been a real eye-opening exercise," said Work. "If [the emails] can't be found, it defeats people's ability to have access to them."
The investigator accepts the secondary address was used to manage the large volume of emails sent to Morton’s public ministerial email address.
That's contrary to what former ministry employee Derek Forsythe told CBC News last month.
He told CBC News and the commission's investigator that during a staff meeting in July 2007, the minister's communications director explained that Morton was using the Frederick Lee address so the email couldn't be tracked.
Interviews with other staff members who attended the meeting did not corroborate Forsythe's account, said Work.
Morton not interviewed
While the investigator interviewed 16 people including the FOIP co-ordinator for sustainable resource development, Morton’s former executive assistant and his former communications director, Morton himself was not interviewed, said Work.
"I didn't think it was critical," said Work. "I wanted to know what went on at the meeting and why the emails weren't available.
"If I was going to do over again, yeah I would [interview Morton]," he said.
The investigation did find a number of faults with the government's email tracking system, said Work.
He pointed to one email specifically requested by the CBC as a case in point.
In the email, Morton directs his staff to make a significant change to legislation regarding Métis land rights.
Under government rules, any such email can be destroyed once the legislation itself is passed.
Rules may need to be changed
"There may be some issues there," said Work. "It could be that the definition of transitory records need to be reviewed."
The investigation found no emails were wrongfully shredded when Morton left the ministry, but raised another concern for Work.
When a minister moves from a department, all records have to be managed, either archived for posterity or judged to be transitory and disposed of, he said.
"When that transition is made …process should be handled by a trained FOIP co-ordinator as opposed to ministerial office staff," said Work.
Liberal MLA Laurie Blakeman said she understands the commissioner's ruling but disagrees with him.
"I think [Morton] did intend to make his communications more difficult to access," she said.
"Even if it was well known in the ministry that this was his secondary name, it's not well known in the public."
In his final month in office, Work said he will look at goverment management of ministerial emails.