Want to know a secret? Records retention schedules don’t really matter to our elected leaders.
In the fall of 2017, a series of articles by Karen Howlett appeared in the Globe and Mail detailing the trial of two former high-level staff members in the Ontario Premier’s office. David Livingston, the Chief of Staff for former Premier Dalton McGuinty, and Laura Miller, his Deputy, were charged with criminal breach of trust, mischief, and unauthorized use of a computer. The case concerned the alleged destruction of e-mails and other government records in 2013, relating to the cancellation of two gas-fired power plant projects in 2011.
While the case was based on circumstantial evidence – and one of the charges against the pair was dismissed early in November 2017 – it nevertheless raises big questions about how the Ontario government views records management, the differences between public servants and politicians, and whether records retention schedules really lead to accountable and transparent governments.
Records management professionals hold that records retention schedules are a key piece of any information governance program, including electronic records, and that they need to be updated regularly to meet the changing needs of a business or governmental organization. The website of the Archives of Ontario – the organization responsible for overseeing recordkeeping in the Ontario government – shows that the current records retention schedules for cabinet members’ offices, including the Premier’s Office, were developed in 2015. Appendix B of the Ministerial Office Schedule suggests that there were some kind of rules for records disposition as far back as 2002, but that there was a complete revision of the schedule in 2015.
However, there’s no indication that there was a similar schedule for the Premier’s Office before 2015, which leads to the possibility that there were no recordkeeping rules for that office until two years after the alleged deletions. Could this be a case of closing the barn door after the horse has run away?
Even in the current schedules, there are surprising omissions and huge loopholes. Correspondence – which, in most people’s view, would include e-mail – is explicitly dealt with in one section of each schedule. However, that’s only correspondence which is handled by a “correspondence services unit” on behalf of a minster or the Premier (see p. 21 of the Ministerial Office Schedule, and p. 20 of the Premier’s Office Schedule). There are mentions of correspondence in the section on ministers’ public records, including records in “any form made or received by the minister in response to legislative, policy, program and stakeholder files” (see p. 19). But there’s really nothing further about correspondence in the Premier’s Office schedule, except for correspondence that might relate to preparing Throne Speeches or budgets.
I specifically mentioned “correspondence” in the preceding paragraph because there’s no specific mention of e-mails in either of those records retention schedules. None. Zero. Not as a section on their own, nor in the descriptions of records organized under various functions. And finally, no mention of emails regarding the records of high-level government officials in the schedules created in 2015.
Let that sink in for a moment.
Now, contrast that with how e-mail is dealt with in the records management training given to members of the Ontario Public Service. In the Records Management 101(available as a document here) and 102 training sessions, public servants – the people who actually make government work – are repeatedly told that the e-mails they send or receive as part of the government-related activities they undertake are both public records and business records, and must be saved and stored in commonly accessible electronic repositories.
But the Premier, the Cabinet Ministers, and their staff members, like Livingston and Miller, aren’t members of the Ontario Public Service. So this, presumably, doesn’t apply to them. Again, let that sink in: the people who carry out the work have to save their e-mails, but the people who make the decisions that lead to that work being done don’t.
And look again at the charges against Livingston and Miller: breach of trust, mischief, and unauthorized use of a computer. There are no charges related to the actual destruction of records.
Ontario’s 2006 Archives and Recordkeeping Act mandates that public records “shall not be, (a) destroyed or damaged; (b) altered so as to delete information from [them]; (c) made illegible; (d) removed from the custody or control of a public body or the Archives of Ontario; or (e) concealed from a public body or the Archivist.” (section 15, subsection 1). However, there are no teeth to this prohibition: the Act doesn’t stipulate any consequences for destroying records. And in the very next subsection (section 15, subsection 2), exceptions are made for anything done “in accordance with an approved records schedule”.
So if an approved records schedule is in place that doesn’t mention e-mail, and e-mails which are public records are destroyed, but there are no direct consequences for destroying public records anyway…well, why should a ministerial staffer care?
And if there wasn’t an approved records schedule in place? Well, then nobody would mind, unless there happened to be a public outcry that someone felt compelled to investigate.
The system has been built in such a way that keeping e-mail records – arguably one of the most important ways in which most of us communicate nowadays – is not seen as something politicians and political insiders need to be concerned with. And the records retention schedules now in place could be argued to be little more than a retroactive band-aid designed to lull the public into thinking the government believes that records matter.
As long as there are loopholes for people to exploit, they will be exploited. And the records retention schedule for the Ontario Premier’s Office is just one big loophole.