Whether it’s omitting details from board meeting minutes, or having government ministers refusing written briefing notes, a lack of written documentation at the highest levels is not an insignificant thing, according to Donovan Molloy.
“Intentionally or not, you’re communicating to people below you that keeping records is bad,” he said, testifying at the Muskrat Falls Inquiry on Monday.
A former information and privacy commissioner for Newfoundland and Labrador, Molloy testified by video conference (and, after some technical difficulties part way through, by telephone) from the Northwest Territories, where he now works as a judge.
He is a former director of public prosecutions and assistant deputy minister, and spoke to his personal experiences generally with record keeping in the public service in Newfoundland and Labrador.
He said there has been apprehension in the civil service when it comes to creating written records. The feeling is enforced, he suggested, when ministers don’t look for written record, or outright indicate they don’t want certain information in writing, over concern it might be subject to release under an access to information request from the public.
Molloy said it’s a problem for governance, apart from any public right to know. After all, if someone has the relevant information only in their head and in private messages, what does their departure mean?
The inquiry has previously heard evidence on superficial meeting minutes — records not including details for fear of public access (despite the fact commercially sensitive information could be redacted under the Access to Information and Protection of Privacy Act; ATIPPA).
Molloy said he doesn’t recall any explicit messaging in government not to record details. There was no order for civil servants not to put their thoughts in an email or in a letter to a minister.
However, he recalled being asked at one time not to communicate by email on a particular topic and use private messages instead.
“It was often felt sometimes there was indirect pressure to put things in IM (instant messaging) or similar formats,” he said, saying the other formats like social media messaging or text messaging were considered “easily disposable.”
In 2016, it was reiterated to civil servants that the format of a message does not affect its status under the law — a text message can be a government record as much as any email.
On that one occasion Molloy was asked to keep to private messages, he said he didn’t stick to them. “I simply said yes, but didn’t change anything. I kept doing what I was doing all along,” he said.
He said he’s known public servants to be nervous about creating documents out of fear they could become the cornerstone of a future debate, or scandal, and the public servant associated with the record would be met with prejudice later in the workplace – blame, consequences, a lack of promotion or pressure to leave. It’s a real fear that’s exists, he testified.
Messaging from the top, against having things in writing, can encourage that view.
In British Columbia, a scandal involving deleted government emails resulted in the introduction of a “duty to document” in provincial legislation. There has been debate since around the details and enforcement.
In Newfoundland and Labrador, following the review of access to information legislation in 2014 (the report went to government in 2015), the province accepted a recommendation on establishing a duty to document. Molloy said he acknowledges work on the details around the recommendation has been ongoing.
Cost has been an issue when it comes to information management. A July 2019 update on the duty to document notes the introduction of such a requirement would be expected to cost more than $4 million in the first year, plus over $2 million-a-year thereafter.
Molloy said he could not say with certainty a duty to document would have helped in the case of the Muskrat Falls Project.
On the destruction of employee notes (including the notes of former clerk of the executive council Julia Mullaley, with notes believed to have been deemed transitory) he said each case of record management is unique and requires individual consideration.