Government secrets or hi-tech headache?
ACCESS TO INFORMATION Debate rages over vanishing emails BlackBerrys can circumvent system
OTTAWA— Politicians and bureaucrats have access to a secretive form of BlackBerry email message that “ circumvents” access to information rules, newly released documents say.
In the brave new world of instant communications, technology seems to have gotten ahead of the federal government’s capacity to keep records. Hundreds of the popular handheld BlackBerry communications devices are used by cabinet ministers, staff members and government officials to check email and exchange messages on the go.
Copies of standard email messages sent from the devices are archived automatically by government and in theory, can be obtained through the Access to Information Act. But the BlackBerry has a back channel message system as well, allowing people to send messages directly to each other’s machines, using individual Personal Information Numbers, or PINs, which are encoded on each device. And government officials have realized these PIN- to- PIN messages are not automatically retained. In fact, they are more likely to be deleted, completely sidestepping access rules. The government has no protocol or software in place to systematically retain copies of these messages. While communications between politicians and their political staff are privileged and cannot be obtained under access laws, any messages exchanged with public servants by politicians or political staff are fair game. And in an era of public inquiries, police probes and increased vigilance against corruption, investigators often have the right to obtain records not normally released under access laws. But if no records of such communications are kept, there won’t be anything for investigators to obtain.
Internal debate this year over the electronic loophole generated a number of memos, emails and media talking points within the Treasury Board, the ministry that oversees the workings of government. Copies of the documents — typed out and printed on paper the old- fashioned way — were released after an access to information request. A Jan. 20 memo to Treasury Board President Reg Alcock from his deputy minister, Wayne Wouters, points out that “ when messages are sent PIN to PIN, these scrambled messages bypass our corporate messaging environment. In our case, these messages are only stored on the BlackBerry devices themselves and not on our corporate network email servers.” The memo points out that software does exist that would allow government to routinely capture and retain all of the PIN- to- PIN traffic, but it is not in use. “The Access to Information Act assumes retention of all government records and, as we all know, that includes email, including BlackBerry messages. Use of PIN- to- PIN circumvents the requirement to keep records, unless a third- party archiving and logging solution is applied,” a March 2 email message from Treasury Board official Alice Sturgeon states. Adocument on the use of PINtotechnology says given concerns about the issue, the Treasury Board is trying to establish a government- wide policy “ as it pertains to the information management.” Some officials think PIN-toPIN messages should be treated like phone calls, which only enter government records when a public servant decides to make a note about them. In a message sent March 3, Treasury Board official Mary Anne Stevens said there is no legal obligation under access rules to keep all records. And Stevens wrote that in her view, PIN- to- PIN messages are like phone calls.
In an interview, a Treasury Board spokesperson downplayed the issue. Robert Makichuk stressed public servants are expected to maintain proper records and even if there isn’t software in place to make it easy to retain PIN- to- PIN messages, public servants could save them in another format.
Information Commissioner John Reid has been complaining for years about shoddy record keeping in government and outright attempts to subvert access to information.
“ The right of access is being rendered meaningless by a growing oral culture in government,” he told a parliamentary committee last month.
Reid wants to change the law to make it an offence not to keep proper records.