Critics say duty-to-document bill lacks teeth

Finance Minister Mike de Jong responded to the “triple-delete” scandal that rocked the B.C. Liberal government in 2015 by introducing a bill Wednesday that he said will require officials to keep a paper trail of key actions and decisions.

Opposition and freedom of information groups quickly panned the legislation as “pathetic,” ineffective and lacking in independent oversight.

De Jong said B.C. will be the first province in Canada to legislate duty-to-document rules, and said the bill acts on recommendations that emerged in the wake of the document-destruction scandal two years ago.

“Public service employees are, today, very diligent about their responsibilities to create the right records,” de Jong told the legislature.

“What this amendment will do is formalize this good practice and codify the requirement to maintain records of government’s decisions.”

The NDP and the B.C. Freedom of Information and Privacy Association said the bill falls short of what was recommended by a special committee of the legislature last year.

“This is not a duty to document or a duty to do anything; it’s entirely discretionary,” Vincent Gogolek, the association’s executive director, said in an interview.

Former privacy commissioner Elizabeth Denham wanted a duty-to-document included in the Freedom of Information and Protection of Privacy Act so that her office could provide proper oversight.

Instead, the new bill includes the duty in the Information Management Act and says the government’s internal chief records officer “may” issue directives requiring the creation and retention of records.

NDP critic Doug Routley said the use of “may” instead of “must” highlights the toothless nature of the bill.

“It’s all about pretending to do something, weeks before an election, after years and years of ignoring the problem,” he said. “It doesn’t meet the test at all.”

De Jong rejected the criticism, arguing that the Information Management Act is the “appropriate place” for the changes. “I’m disappointed that that would be the reaction where we have taken purposeful steps under the legislation that is specifically focused on document management,” he said.

Acting privacy commissioner Drew McArthur called the bill “a good first step.”

But, like Denham, he had urged government to include the duty-to-document in the province’s freedom of information law so that his office could provide oversight.

“They’ve put the onus on themselves with the chief records officer,” he said.

“So I understand the concern that there may be is not independent oversight over that. Let’s see how well they proceed in terms of creating their records.”

Denham launched an investigation in 2015 after a former government official complained that records on the Highway of Tears case had been “triple-deleted” in order to expunge them from the computer system. Her inquiry concluded that political staff had abused the freedom of information law by destroying records, failing to keep proper records, and conducting negligent searches for records.

Denham’s final report repeated calls by her office for government to adopt “duty to document” legislation rather than operate an “oral” government.

“Without a duty to document,” she wrote in a 2013 report, “government can effectively avoid disclosure and public scrutiny as to the basis and reasons for its actions.

“The lack of documentation undermines the ability of citizens, journalists and the public to understand the basis for government’s actions on any particular matter.”