Privacy commissioner says government should not have deleted email related to Carla Foote hiring

CBC News filed a complaint with the privacy commissioner after the results of an initial access-to-information request didn't include an email at the heart of the Carla Foote hiring controversy.

CBC News filed a complaint to the privacy commissioner

The hiring of Carla Foote for a top job at The Rooms dominated the political landscape for months. (Left: Lt.-Gov. Judy M. Foote/Facebook; Right: CBC)

In a new report, Newfoundland and Labrador's privacy commissioner says the provincial Tourism Department deleted an email related to the Carla Foote hiring scandal at The Rooms, in addition to not being upfront about other information sought by CBC News. 

The Department of Tourism, Culture, Industry and Innovation failed in its duty "by failing to advise the complainant that the records likely to be of most interest would be in the custody of to The Rooms; narrowly interpreting the scope of the request; and by deleting a potentially responsive non-transitory record," writes Michael Harvey in a report released Monday. 

The issue began when CBC filed an access-to-information request in October 2018, requesting all records relating to the hiring of Foote at The Rooms, which dominated the political landscape in Newfoundland and Labrador for months.

The commissioner of legislative standards found that Christopher Mitchelmore was guilty of gross mismanagement for how he moved the longtime Liberal staffer, and daughter of the lieutenant-governor, into a position at The Rooms. Foote was hired for the executive-level position of director of marketing, with an annual salary of $132,000, without any competition. 

Any person can ask Information and Privacy Commissioner Michael Harvey to investigate if they are not satisfied with the information they have received as the result of an access-to-Information request. (Peter Cowan/CBC)

Mitchelmore ultimately apologized and was suspended without pay for two weeks. 

The only records supplied by the Tourism and Culture Department were emails from the public raising concerns about the appointment, and the paperwork required to hire Foote — which left several key sections blank. 

But as more information about the controversy came out in the following days and weeks, so, too, did an allegation that Ted Lomond, a deputy minister under Christopher Mitchelmore, allegedly ordered a staff member at The Rooms to delete an email that was significant to the Foote hiring. 

Specifically, the email contained a letter to the person who was employed under contract at The Rooms — "A.B.," as they are identified in the report — whom the minister wanted removed from the position in order to hire Foote.

Lomond insisted he was just asking the department to delete transitory records. The provincial government defines a transitory record as something that has "no ongoing value beyond an immediate and minor transaction or the preparation of a subsequent record." (Lomond is now a deputy minister in the Department of Natural Resources.)

Ted Lomond is now the deputy minister of natural affairs and environment. He worked under Chris Mitchelmore in the Department of Tourism, Culture, Industry and Innovation before that. (Terry Roberts/CBC)

So when the results of CBC News's access-to-information request on Foote's hiring did not include that email, reporter Peter Cowan filed a complaint with the information and privacy commissioner.  Any member of the public, including the media, who files an access-to-information request and is dissatisfied with the documentation government provides related to it can appeal it. 

Other concerns raised by privacy commissioner

Harvey also raised the issue of proper record-keeping.

"There is no other record, whether in the custody or control of the Department or of The Rooms, of the minister's direction to the CEO to rescind the contract [of A.B.]," he noted in the report.

"The lack of responsive records means that no official records of these decisions were created. This is not a reasonable approach to good governance." 

He noted that while there is not a legislated duty to document, "principles of sound public administration dictate that records of significant decisions be created and retained, otherwise the right of access to information is devalued."

CBC News asked Harvey for an interview, but the office's director of policy declined on his behalf and said the report speaks for itself.

Privacy commissioner recommendations

In his report, Harvey said officials in the Department of Tourism, Culture, Innovation and Industry have 10 days to provide a written response as to whether they agree with Harvey's recommendations

Those include letting people who file access-to-information requests know if another public body or department could more fully respond to the request, and revising the department's internal process so the access-to-information co-ordinator is not excluded from the collection of records.

Foote resigned from her position at The Rooms in February 2020, months after her hiring dominated the political landscape in Newfoundland and Labrador for much of the fall. She has taken a job as the assistant deputy minister for the office of public engagement. 

Read more from CBC Newfoundland and Labrador

With files from Stephanie Kinsella, Peter Cowan and Ryan Cooke