HOW OFFICIALS AVOID A PAPER TRAIL
Reliable, reckless tricks used by political staff
Five years ago, as the Ontario Provincial Police were investigating the gas plants scandal, the former top public servant in the province gave a quote that would become legendary.
“The only organizations that did not maintain records were criminal organizations,” Peter Wallace, secretary to the cabinet during Premier Dalton McGuinty’s tenure, told his police interviewer.
Wallace was describing his conversations with McGuinty’s chief of staff, David Livingston. Wallace was horrified by claims from senior political staff that important meetings and deliberations were only being conducted verbally, leaving scant written records.
The gas plants scandal was kicked off by the curious fact that when a legislature committee sought records about the decision to cancel the contracts, political staff reported they had little to no records to submit. Police got involved, charges were laid, and Livingston was eventually sentenced to four months in jail for his role in wiping computer hard drives in the premier’s office.
Yet the practice of leaving no paper trail is a wellknown strategy among political staff and bureaucrats. The gas plants scandal was an extreme case in that it led to criminal charges, but the underlying idea of avoiding the creation of written records is deeply embedded in governments across Canada — and it has been exposed time and time again. Not all cases are illegal, but the practice violates the principle that governments are supposed to be accountable to the people who elect them.
The issue has surfaced in the criminal trial of Vice Admiral Mark Norman, as his defence team wages battle to collect subpoenaed documents across seven government departments and agencies.
The past week saw Chief of the Defence Staff Gen. Jonathan Vance in the witness box being grilled by Norman’s lawyers on his own record-keeping habits. Vance is a key witness in the case, as he made the unprecedented decision in January 2017 to suspend Norman; at the time, Norman was Vance’s second-incommand of the Canadian Forces.
Vance met with RCMP investigators four times in the lead-up to Norman being charged in March 2018. He also briefed top officials from the Prime Minister’s Office, spoke with Prime Minister Justin Trudeau himself, and informed Defence Minister Harjit Sajjan about the investigation and his decision to suspend Norman. Yet Vance has no notes or records from any of those meetings, he told Norman’s lawyer, Marie Henein.
“So there isn’t a single document or a single note of what transpires … There is not a single document that, from your end, tells us what occurred during those conversations?” asked Henein.
“I have no records,” Vance responded. He later told reporters he felt his role in the meetings was straightforward enough that he needed no notes of his own. (The court has not yet heard evidence of whether other participants took their own notes.)
Over the years, a few common themes have emerged over how government officials, bureaucrats and political staff avoid leaving a paper trail — or, when the trail does exist, attempt to block its disclosure. Here are a few of the best-known tactics.
DON’T WRITE IT DOWN
Vance is hardly the first official to say that important discussions took place entirely verbally, leaving no written trace. This is a tried-and-true tactic with a long history of use within government, including at the Department of National Defence.
“I know from first-hand experience that all senior managers at National Defence are acutely aware of the fact that anything they write, whether it’s formally or informally in notebooks, is accessible,” Col. Geoff Haswell, former director of public affairs operations at National Defence Headquarters, testified at the 1996 Somalia inquiry. “Some of them have experienced that, and therefore they do practise a policy of not writing down anything they don’t wish anyone to have access to.”
McGuinty, speaking to police in 2014, said communications in his office were “overwhelmingly verbal in nature,” and that was why so few records existed of how decisions were made when he was Ontario premier.
Ontario’s Information and Privacy Commissioner at the time, Ann Cavoukian, told a legislature committee that of course staff should have verbal discussions, but not at the total expense of keeping a written record.
“If you had no records — I mean, it’s preposterous — then you couldn’t have the kind of accountability that is predicated on the existence of such records to enable the public to have access to this much-needed information,” she said. “It’s simply untenable that we could have a verbal culture permeate to the exclusion of written records.”
CODE WORDS AND PSEUDONYMS
A Canadian Forces witness called by Norman’s lawyers to testify alleged that his superior, a brigadier-general, told him Norman’s name was deliberately not used in internal files — meaning any search for records about Norman would come up empty. The witness, whose name is covered by a publication ban, said he was processing an access-to-information request in 2017 that returned no results. When he sought clarification, the witness testified the general smiled and told him: “Don’t worry, this isn’t our first rodeo. We made sure we never used his name. Send back the nil return.”
When Vance testified, he pushed back on the notion that anything sinister was going on. He argued it may be a case of common military jargon (such as “MN3” for Mark Norman 3-star, or “C34” for 34th commander of the navy) making it difficult to search for Norman’s name.
Yet Norman’s lawyer also demanded to know whether Sajjan’s top political aide was referring to Norman as “the certain naval officer” in messages, which suggests Henein has cause to believe it happened.
It is common for political staff to use code words for certain subjects. “Project Vapour,” for example, was what McGuinty’s staff used in emails when managing the controversy over the gas plants cancellation. Later, when Trillium Power sued the Ontario government over the cancellation of an offshore wind project, it alleged that offshore wind records were “assigned a code name to render their retrieval impossible.”
The Ottawa Citizen uncovered in 1999 that officials at the Department of National Defence and in the office of then Liberal defence minister Art Eggleton were tracking the access requests of certain journalists and researchers. In documents, Defence officials referred to those people as the “usual suspects” and not by their names; that allowed for the DND to circumvent the access law in its searches.
STICKY NOTES
One of the DND tactics that emerged during the Somalia inquiry was the use of sticky notes (such as Post-its) to avoid having information being released to the public. A top public affairs officer testified that his boss tended not to write any of her views on an actual document but instead made comments on a yellow sticky note that would be attached to the record. That way the sticky note could be removed as needed and the boss’s directions wouldn’t be made public. Some DND staff, however, started taping or stapling the yellow notes to the original record as they saw them as being important for their record keeping.
Whether sticky notes need to be kept depends on how a government defines a “transitory record.” Transitory records are generally those with no long-term importance, meaning they can be discarded after a decision is reached.
Yet most government rules make it clear that sticky notes can’t just be automatically discarded. “Records could appear to meet the criteria of being transitory, but the roles of the employees and the use of the information could make them official,” says the Alberta government’s guide. “For example, a Post-it note that documents an approval or a recommendation that could help guide future financial or legal decisions may appear to be transitory because of its format, but it is an official document that must be kept.”
DELETE, DESTROY OR RENAME
A 2015 investigation by B.C.’s Information and Privacy Commissioner demonstrated just how far political staffers would go to ensure their emails were never disclosed. Staffers called it the “triple-delete” system: First you delete the email from your inbox, then you delete it from the trash folder, then you override the backup system. “Triple deleting an email completely expunges it from the government system, unless it was captured by a daily or monthly backup,” the report said.
The investigation was prompted by a whistleblower who said B.C. provincial political staff were deleting emails relating to missing and murdered Indigenous women; it resulted in one staffer resigning and being fined $2,500.
The Ontario gas plants scandal saw similar allegations, as it emerged that political staff were given explicit instructions to regularly purge their emails. In both provinces, new record-retention rules were brought in after the scandals.
In 2000, then federal Information Commissioner John Reid found that the DND broke the law when it destroyed documents requested under the access law by the Ottawa Citizen. The investigation also determined that the department’s top leadership was informed documents requested under the law by the Citizen were destroyed, but they failed to tell either the newspaper or Reid’s office. Those bureaucrats who destroyed the records did not face any consequences.
Another DND strategy to prevent records from being released was to rename those documents and then claim the requested file couldn’t be found. This tactic was uncovered during the Somalia inquiry.
PERSONAL PHONES FOR GOVERNMENT BUSINESS
Some bureaucrats and political staff use their personal phones to conduct sensitive business with the view that such devices do not fall under access-to-information laws, and messages or texts do not have to be produced when requested.
That tactic does not work when it comes to subpoenas, however. In the court hearing that wrapped up this week, Norman’s lawyer showed that multiple officials had not searched their personal phones for records — including Vance and Sajjan’s chief of staff.
Some of the subpoenas issued by Norman’s defence team ask for “all communications,” meaning it encompasses both official and non-official messages. Henein has made it clear that personal phones must be part of the search.
CLAIM DOCUMENTS DON’T EXIST — EVEN WHEN THEY DO
In January Postmedia revealed that in 2017 the military’s top legal officers circumvented the Access to Information Act by claiming that a report, requested under the law, didn’t exist, even though it did. At least three officers inside National Defence headquarters raised concerns that the law was being broken. Vance’s office was informed about the alleged illegal scheme. Still, the military claimed the report did not exist.
The plan was eventually discovered but the senior officers who claimed the documents didn’t exist faced no consequences. Instead, the DND blamed a clerk, saying the individual should have challenged the senior officers who claimed the report didn’t exist.