Committee calls for legal requirement for public servants to preserve records

A special committee struck after almost two years' worth of emails from a government account went missing is recommending the province make individual public servants responsible by law for preserving their own records.

Probe into one gap in province's email archives led to discovery of 5 more

A special committee of the P.E.I. legislature is recommending the province follow B.C.'s lead by adding a duty to document clause to the Archives and Records Act. (Getty Images)

A special committee struck after almost two years' worth of emails from a government account went missing is recommending the province make individual public servants responsible by law for preserving their own records.

The province's Special Committee on Government Records Retention is calling on the province to implement a "duty to document" clause in the Archives & Records Act, the legislation that sets out government's responsibilities when it comes to the preservation of documents.

"A duty to document establishes a positive duty for public servants and officials to create a full, accurate and complete record of important business activities," the committee wrote in its final report to the legislature.

Information and privacy commissioners across Canada have been pushing for duty to document legislation in the country for years, as a way to strengthen public access to government documents.

In 2017, B.C. became the first province in Canada to implement such a measure.

Committee chair Michele Beaton said implementing a similar measure in P.E.I. would "catapult us to being a leader in being transparent regarding government decisions."

The committee is also recommending government make more records public via routine disclosure — without requiring they be requested through freedom of information legislation.

Committee struck to probe missing emails

It was as a result of freedom of information requests that the committee came into being.

P.E.I.'s former privacy commissioner Karen Rose issued a scathing report in June, after learning that almost two years worth of emails belonging to Brad Mix, a senior bureaucrat with Innovation PEI, had gone missing.

The emails had been subject to multiple freedom of information requests. The province didn't tell those requesting the emails — and initially did not tell the privacy commissioner — that the records no longer existed.

Failing to disclose that, the commissioner concluded, put government in breach of the Freedom of Information and Protection of Privacy Act. She said failure to properly archive the emails was a breach of the Archives and Records Act.

More 'gaps' in government email archives

As part of its review, the committee was advised by the province's Treasury Board of five more email archives  belonging to former bureaucrats and elected officials that contain one or more "gaps."

Among those are two former cabinet ministers: Wes Sheridan, former minister of finance; and Allan Campbell, a cabinet minister who became Robert Ghiz's chief of staff in 2011.

Information and Privacy Commissioner Denise Doiron (right) has asked government for details around one or more gaps in the email archive belonging to the province's former finance minister, as part of an ongoing review initiated by her predecessor Karen Rose (left). (Wayne Thibodeau/CBC)

Both archives were among a list of email accounts P.E.I.'s auditor general asked for in 2015 as part of her investigation of e-gaming, the province's failed attempt to become a regulator for online gambling.

The five archives with gaps are in addition to three email accounts the auditor general said in her 2016 report had been improperly deleted. She cited that as a contravention of the Archives and Records Act.

A spokesperson for the province's Treasury Board told CBC News that a "preliminary search" of 26 email accounts was conducted in 2015, at the request of the auditor general, and the five in question "appeared to have a gap or gaps in time."

However, the spokesperson said that, according to the province's IT department, "a gap does not mean a missing email or emails. A gap may be a variety of things such as a day of inactivity or a time period of inactivity."

According to the information provided to the committee, the dates of those gaps were not recorded when they were first discovered in 2015. 

Commissioner asking for details

Members of the committee, when they were advised of the email gaps, decided to take no further action on the matter.

But P.E.I.'s new privacy commissioner Denise Doiron has written to the province's deputy minister of finance asking about one of the gap accounts — that belonging to Sheridan.

P.E.I.'s Information and Privacy Commissioner concluded government was in breach of provincial law for failing to disclose some of Brad Mix's emails were missing to two applicants who requested them through freedom of information. Mix (pictured) told a committee he didn't delete the emails. (Nicole Williams/CBC)

Doiron has asked for the dates of Sheridan's gaps, and noted that when her predecessor asked the department about the possibility of any further missing records while investigating Mix's emails, there was no mention of Sheridan's account.

"You did not mention the possibility of any gaps in Wes Sheridan's records in your response," Doiron noted in her letter.

Didn't delete emails, said Mix

When called to appear before the committee in October, Mix said he "did not do anything to destroy any of my email archives. I did not do anything knowingly to cause the gap that exists in my email archive." 

P.E.I. is the last province in the country to use the Groupwise email system, which debuted in 1994. The province is in the process of upgrading to Microsoft 365, which is expected to make records management and retention easier.

CBC News reached out to Sheridan and Campbell for reaction to the report.

Campbell did not respond and Sheridan declined to comment.

More from CBC P.E.I.