BACKGROUND
On December 23,
1998, a person applied to Manitoba Natural Resources under The
Freedom of Information and Protection of Privacy Act (FIPPA) for
access to "... written transcripts of all public presentations to
the 1997 Manitoba Water Commission." The departmental Access Officer
responded on January 15, 1999, to the effect that Natural Resources
did not have the records requested, and that copies of the written
presentations were being forwarded to the Legislative Library for
the public to view without the need for an application for access
under FIPPA.
On being informed
that transcripts of the public presentations did not exist, the applicant
made inquiries with Manitoba Natural Resources and with the Manitoba
Water Commission about the audio tapes which were known to have been
made. The
applicant was told that no transcripts had been made and the audio
tapes had been destroyed.
The applicant
had wished to review the information further to concerns regarding
the actions taken during and after the 1997 Red River flood and about
flood compensation. The applicant also expressed profound concern
with the alleged loss of the material as an historical record for
the people of Manitoba and as an act of "witnessing" for the people
who were directly affected by the "Flood of the Century".
As a result of
a complaint from the applicant about the denial of access to transcripts,
it was confirmed that the audio records had indeed been destroyed.
As it appeared that the destruction was not authorized, the Ombudsman
initiated an investigation under Part 4 of The Freedom of Information
and Protection of Privacy Act (FIPPA), which states:
General powers
and duties
49 In addition to the Ombudsman's powers and duties under Part
5 respecting complaints, the Ombudsman may
- conduct investigations and audits and make recommendations to
monitor and ensure compliance
- with requirements respecting the security and destruction
of records set out in any other enactment or in a by-law or
other legal instrument by which a local public body acts;
- make recommendations to the head of a public body or the responsible
minister about the administration of this Act;
EXCERPTS FROM THE OMBUDSMAN'S REPORT AND RECOMMENDATIONS
Several Acts of
the Manitoba Legislature needed to be considered in the investigation
of the alleged unauthorized destruction of these audio records including:
The Water Commission Act, The Legislative Library Act and
Regulation, and The Freedom of Information and Protection of
Privacy Act.
THE MANITOBA
WATER COMMISSION
The Water Commission
Act provides for the appointment of members to the Manitoba Water
Commission, a body which appears to be re-constituted from time-to-time
as required. The members and chair of the 1997 Commission were appointed
by Order in Council in August, 1997. The Commission is responsible
to the Crown through the Minister of Natural Resources according to
the organization chart located in the 1998 Access and Privacy Directory,
Provincial Government and Government Agencies (the Directory)
prepared and distributed by the Government Records Office of the Provincial
Archives, Manitoba Culture, Heritage and Citizenship.
The Manitoba Water
Commission is an agency of the government under The Legislative Library
Act, which provides the following definition:
"agency" and
"agency of the government" means any board, commission, association,
or other body, whether incorporated or unincorporated, that is established
under an Act of the Legislature and all members of which, or all the
members of the board of management or board of directors of which,
- are appointed by an Act of the Legislature or the Lieutenant
Governor in Council, and
- in the discharge of their duties are public officers or servants
of the Crown, or for the proper discharge of their duties are,
directly or indirectly, responsible to the Crown;
The Commission
also falls under FIPPA, which includes a similar but somewhat broader
definition of a "government agency".
MANITOBA NATURAL
RESOURCES
Manitoba Natural
Resources is one of the most "historic" departments of the government.
Established in 1928 as the Manitoba Department of Mines and Natural
Resources, it was the provincial heir to various responsibilities
and records of the federal Department of the Interior. The federal
government retained jurisdiction from 1870 to 1930 over the lands
and natural resources of what are now the three prairie provinces.
The Interior Department was established following passage of the Canada
Dominion Lands Act of 1872, and created and accumulated some
of the earliest records relating to the Province of Manitoba. In 1930,
responsibility for natural resources was transferred to the provinces
along with significant records fulfilling a landmark decision for
the prairie provinces.
The current role
of the Department is laid out in its entry in the Directory:
The Department
protects, conserves, manages, and develops the province's forest,
fisheries, wildlife, water, Crown land and park resources…. Natural
Resources also protects people and property from the adverse effects
of natural elements such as floods and wildfires.
PUBLIC RECORDS
AND ARCHIVES
Part II, "Public
Records and Archives", of The Legislative Library Act (LLA)
prescribes processes for the retention and disposition of government
records, and is the basis of a comprehensive records management program
which has been implemented for the Government of Manitoba. The principles
of this Act, supported by numerous policies, guidelines, and practices,
recognize the recordkeeping trusteeship of government departments
and agencies in safeguarding public records for legal, financial/fiscal,
audit, operational, and administrative purposes as well as for their
historical and cultural values to the people of Manitoba.
THE PROVINCIAL
DOCUMENTS COMMITTEE
The Act establishes
a documents committee (section 11[1]), generally known as the Provincial
Documents Committee (PDC), to consider the retention and disposition
of all records, regardless of physical form or characteristics, which
fall under the authority of the legislation. This committee consists
of the Deputy Minister of Justice, the Provincial Auditor, the Deputy
Minister of Finance, the Deputy Minister of Public Works [now Government
Services], and the Provincial Archivist, or their appointees. The
Archivist acts as the Chair of the Committee.
The composition
of this committee clearly reflects the purposes and values of public
records, and each representative is responsible for the broad corporate
and public interest in the disposition of government records rather
than the narrower interests of their originating department or agency.
Needless to say, information is fundamental to effective, efficient,
and economical public or private enterprises and to the democratic
institutions of our society.
The Annual Report
1997-1998 for Manitoba Culture, Heritage and Citizenship elaborates
on the purposes and values of sound recordkeeping practices:
The Provincial
Archives serves Manitobans and their institutions by protecting
information of fundamental significance to community identities,
well-being, individual and collective self-knowledge, and which
documents the mutual rights and obligations entered into by society
and those whom the people choose to govern. The Archives provides
unique services in managing and acquiring government records, preserving
them as long as is required, and making them accessible to government
and public clients.
PROCESS FOR
AUTHORIZED DESTRUCTION OF RECORDS
In accordance
with The Legislative Library Act, records shall not be destroyed
except as authorized under the Act. The Act states:
Prohibition
of destruction or removal of records
12(1) Except as provided herein, or as authorized in the
regulations, and notwithstanding any other Act, except The Financial
Administration Act, but subject to The Financial Administration
Act, no person shall destroy any public records or remove them from
the files or offices of a department or agency of the government
or from the possession of a department or agency.
The Act sets out
the procedure for authorizing the retention and destruction of records.
In practice, it is a consultative process between the PDC and the
submitting department or agency which is always invited to attend
the Committee meeting at which the matter is to be considered.
Meetings
12(4) The documents committee shall meet on the call of the
chairman and shall
- consider any matters referred to it by a department or agency;
- classify the public records of a department or agency to which
the notice relates;
- prepare a schedule showing the various classifications of those
public records, and recommending
- which should be retained indefinitely by the department
or the agency,
- which should be authorized to be destroyed after the public
records have been photographed,
- which should be authorized to be destroyed without photographing,
and
- which should be transferred to the branch [the Provincial
Archives].
A department or
agency prepares a Records Authority Schedule for submission
to the PDC. These Schedules describe the records series concerned
and recommend retention periods for the Committee's consideration.
Either by delegated authority or by recommendation to the Minister
of Culture, Heritage and Citizenship, the Committee identifies retention
and disposal orders for the records including the minimum period of
time a record must be retained before destruction is permitted if
it is not to be kept indefinitely.
The Regulation
Respecting the Preservation of Public Records under The Legislative
Library Act states:
6(1)
Where the destruction of any public records is authorized under
this regulation, destruction shall be by fire or obliteration under
the supervision of a senior official of the department or agency
concerned.
6(2) In each case, the supervising official shall complete
a certificate setting out the nature of the public records, and
the date and manner of their destruction.
6(3) All such certificates shall be retained on file in
the department or agency as a permanent record.
The Ombudsman
noted that, while The Legislative Library Act prohibits the
unlawful alienation or destruction of records under section 12, there
is no penalty prescribed under the Act. It is of interest that the
federal Government's experience with inappropriate or unauthorized
destruction of records led to the unanimous passage of a private member's
bill in late 1998 that prescribes substantial punishments where there
is an intent to deny a right of access to information by the destruction,
mutilation, alteration, falsification, creation of a false record,
or concealment of a record, or by directing, proposing, counseling
or causing any person to do so.
THE LINK BETWEEN
ACCESS AND PRIVACY RIGHTS AND RECORDS MANAGEMENT PRACTICES
Access and privacy
legislation is all about openness, transparency, and the accountability
of public bodies. The ability to exercise one's access and privacy
rights is dependent on the judicious retention and disposition of
information. Part of these rights is to know what information a public
body holds, and what is to be done or is being done with this information.
These principles are recognized in FIPPA:
Directory
75(1) The responsible minister shall
- prepare a directory to assist in identifying and locating records
in the custody or under the control of public bodies;
- make every reasonable effort to ensure that the directory is
kept up to date;
- ensure that copies of the directory are made available to public
bodies; and ensure that copies of the directory are available
to the public through libraries and electronic information networks.
Contents of
directory
75(2) The directory must include
- a description of the mandates, functions and organization of
each public body;
- a description of records, including personal information banks,
in the custody or under the control of each public body;
The Ombudsman
noted that the Minister of Culture, Heritage and Citizenship is the
Minister responsible for FIPPA and is also responsible for The
Legislative Library Act, under which authority the Provincial
Documents Committee operates and whose work is supported by the Government's
corporate records management program. The Directory required
by FIPPA reflects the disposition of records through the documents
committee process indicating what records exist or have existed, how
long they are to be kept, and the retention or destruction authorization.
In short, the Directory is the cornerstone for the public's
right to know.
THE WORK OF
THE MANITOBA WATER COMMISSION
The Commission
submitted a report dated June, 1998 entitled "An Independent Review
of Actions Taken During the 1997 Red River Flood: A Report to the
Hon. J. Glen Cummings, Minister of Natural Resources."
As outlined in
the report, the "…Commission gathered an immense amount of information
in a relatively short period of time. [It] turned to two primary sources
[of information] -- the governments, organizations, agencies and local
interest groups involved in flood preparation, flood fighting and
recovery efforts, and the communities and individuals directly impacted
by the Flood of the Century."
During the course
of its review, the Commission operated out of a Natural Resources
Office in Niverville. The consultation process involved a series of
public meetings held in communities in the Red River Valley. As stated
in the report of the Commission, the "purpose of these meetings was
to consult with, and receive input from, the residents of the Valley
as well as others who had been directly affected by the flood." The
public meetings were advertised and people wishing to make an oral
presentation before the Commission were asked to register in advance
through the Commission's office.
The Commission
prepared "A Guide to Public Meetings" to assist presenters in the
preparation of their oral and written submissions. The Guide states
that "[a]lthough the Commission intends to audio record the public
meetings, written transcripts will not be made available."
There were ten
public meetings held between November 13 and December 16, 1997. The
oral presentations made at these public meetings were audio taped.
The destruction of these audio tapes has been the subject of the investigation
by the Ombudsman's Office.
THE INVESTIGATION
BY THE OMBUDSMAN'S OFFICE
The report of
the Manitoba Water Commission makes reference to receiving more than
130 presentations during 45 hours of public sessions. During a meeting
with the Chair of the Commission, the Ombudsman's Office was advised
that the Commission made audio tape recordings of these public presentations
and that the purpose of recording the presentations on audio tapes
was to assist the Commission in the preparation of its report.
The Commission
requested that presenters provide a written copy of their presentation
in advance of the public meetings. Evidently, most presenters did
submit a written copy of their presentation to the Commission. Copies
of these written submissions have been provided to the Legislative
Library and the originals should form part of the Commission's records
submitted to the PDC.
In addition,
noted the Ombudsman, the Commission's consultations with government
bodies involved meetings during which these bodies provided, in total,
eleven written submissions. It appears that the Commission made copies
of these written submissions available to the public at its Niverville
office and that these written submissions were provided to the Department,
along with other records of the Commission. The Ombudsman's Office
review confirmed that these meetings were not recorded on audio tape.
Concerning the
issue of other audio recordings made by the Commission, the Chair
advised Ombudsman compliance investigators that the Commission had
taped its internal Commission meetings. The Ombudsman's Office was
informed that the purpose for making these tapes was to assist in
the preparation of the minutes of these meetings. As written minutes
of these meetings were prepared, it was felt that there was no other
purpose for keeping these tapes. These minutes were provided to the
Department along with other records of the Commission.
The investigation
confirmed that the audio tapes of the presentations made to the Commission
at the public meetings were destroyed in July, 1998 in Niverville.
The Chair advised that he had asked an employee to destroy the audio
tapes of the Commission's meetings, meaning the audio tapes of the
internal Commission meetings, which had been transcribed into minutes
of these meetings. Apparently, the employee was not aware that, included
among the tapes of the internal Commission meetings, there were tapes
of the presentations made at the public meetings. All of the Commission's
tapes were destroyed. The Chair advised investigators that he was
not aware that all of the Commission's tapes had been destroyed until
inquiries were made in February, 1999 concerning the tapes of the
public presentations.
The Chair of the
Commission also advised investigators that he was not aware of the
recordkeeping requirements under The Legislative Library Act
at the time of the destruction of these records. He indicated that
he did not become aware that the destruction of the audio tapes breached
this Act until it was reported in the media. During the investigation,
the Chair commented that, in retrospect, he would suggest that Commissions
of the government be provided with a written statement or guidelines
of obligations and requirements under The Legislative Library Act.
In March of 1999,
the destruction of the records became the subject of media attention.
The Chair of the Commission was quoted as taking responsibility for
the destruction. He affirmed this statement during the investigation
by the Ombudsman's Office.
The remainder
of Commission's records were placed in boxes and turned over to the
Department in August of 1998. Apparently the Department reviewed these
boxes and began preparing a schedule for these records. The Records
Authority Schedule (NR 402) pertaining to the Commission's records
was submitted by the Department to the Government Records Office in
January, 1999 for the consideration of the Documents Committee. The
Ombudsman noted that that the Schedule does not make reference to
the audio tapes. The Department stated that it was not aware that
audio tapes had existed when the Schedule was being prepared.
Documentary evidence
indicates that a first draft of the Schedule was received for comment
by the Secretariat to the PDC on August 24, 1998. The records officer
for Natural Resources signed a Records Authority Schedule (NR 402)
for the Manitoba Water Commission's "Red River Flood Review Files
- 1997" on December 14, 1998. This document was signed-off by the
Department's delegated authority on January 18, 1999. The records
series were described as being textual and for the purpose of recording
"the operation of the commission during the Red River Flood Review".
The recommendation
from the Department to the PDC was "Transfer to Archives" after five
years in the Government Records Centre managed by the Provincial Archives
of Manitoba. A retention period in the Records Centre recognizes that
certain records may need to be accessed by a public body with some
frequency and may even require the temporary return of some of the
records to the agency for legal, financial, administrative, or operational
purposes. As a rule, once records have been put in the vaults of the
Archives, they cannot be removed for off-site viewing except under
the most extraordinary circumstances in order to protect the integrity
of the records and to ensure their preservation for future use.
The Provincial
Documents Committee considered the records schedule on April 27, 1999,
and determined that the records of the Water Commission should be
transferred in their entirety to the Archives for long-term preservation,
including administrative records, because of the significance of the
natural and human events involved.
These records
fall clearly under various provisions of The Legislative Library
Act, Part II, and under section 2 of the Regulation, which provides:
1 All
documents relating to the history of the province, or otherwise
of a historic value, shall be deemed to be of archival value; and,
without restricting the meaning generally to be given to the words
"archival value", public records…shall be considered to be of archival
value and subject to permanent preservation.
In view of the
"archival disposition" of the records, noted the Ombudsman, "not only
has the applicant been deprived of access to the records for his immediate
purposes, but also Manitobans and students of Manitoba's experience
over time have been deprived of an historical record of unquestionable
importance. That the event concerned has been called 'The Flood of
the Century' says it all."
FINDINGS AND
OBSERVATIONS
The Ombudsman
found that the investigation confirmed that the audio tapes of the
public meetings and the internal Commission meetings were destroyed
in contravention of The Legislative Library Act, as this destruction
was not authorized under the Act.
"Our investigation
did not disclose any evidence to support a finding that these records
were wilfully destroyed," said the Ombudsman. "Rather, the Water Commission
was not aware of the recordkeeping requirements under The Legislative
Library Act, as sufficient guidance was not provided to the Commission
by Manitoba Natural Resources."
When a governing
entity or information trustee undertakes a public inquiry into a matter,
this alone would seem to be a good signal that there may be both short
and long-term interest in the information obtained. Yet, it is probably
in the nature of most public bodies to focus on the immediate tasks
that are seen as central to their mandate rather than on maintaining
good information systems. For such a reason, laws and policies are
in place to protect and safeguard information, but these are of little
value if they are not properly communicated to people in charge.
"Failure to comply
with legislative requirements and sound recordkeeping requirements
is not an exception under FIPPA," said the Ombudsman. "While I appreciate
that the demands of public service and the conduct of public business
may be onerous, information is held as a public trust. This trust
is reinforced and supported by numerous Acts of the Manitoba Legislature
in one form or another. Openness, transparency, and public body accountability
depend on exemplary recordkeeping practices."
The Ombudsman's
report continued:
"In the course
of the investigation, our office considered the records management
practices of the Department and, in particular, of the Water Resources
Branch, which would be the component of the Department most closely
associated with the records of the Water Commission. This included
a review of entries for Natural Resources in the Directory,
which suggested that, while some attention has been given to the scheduling
of administrative and housekeeping records, the scheduling of operating
divisions' records requires attention. The records of the operational
components of Natural Resources are, of course, at the very core of
the reasons why the Department exists. While we did not conduct an
exhaustive inquiry into this matter, the information we obtained from
the records of the Secretariat to the PDC leaves me with little doubt
that Natural Resources should undertake an early review of its records
scheduling process, submit schedules to the Provincial Documents Committee,
and implement the schedules without delay.
"Notwithstanding
the daily rush of work, the principles that underpin our democratic
institutions must not be obscured. In a Supreme Court of Canada decision
in 1997 (Dagg v. Minister of Finance et al. File No. 24786),
Mr. Justice LaForest observed:
As society
has become more complex, governments have developed increasingly
elaborate bureaucratic structures to deal with social problems.
The more governmental power becomes diffused through administrative
agencies, however, the less traditional forms of political accountability,
such as elections and the principle of ministerial responsibility,
are able to ensure that citizens retain effective control over those
who govern them.
The overarching
purpose of access to information legislation, then, is to facilitate
democracy.
"Because the issue
is so fundamental, I emphasize again that the public's right to know
includes the right to know what information the government holds.
The Directory is a primary and legislated vehicle for fulfilling
this right. I also point out that determination of a person's rights
and what is the "right thing to do" in a given circumstance may depend
on the accumulation of evidence over time. In short, an archival record
may be as important to the public's right to know as a more contemporary
record. Further, the finality of the destruction of a record from
an access-to-information perspective clearly requires the kind of
rational and independent review contemplated under The Legislative
Library Act through the PDC.
"While this investigation
has focussed on the Manitoba Water Commission and Manitoba Natural
Resources, I have a concern that the lack of adherence to legislated
recordkeeping requirements and related policies is not restricted
to these particular entities in the Provincial Government. Undertaking
a broad review of provincial departments and agencies in this respect
is simply beyond the resources of my office, but I hope that the message
of this investigation and of my recommendations is received broadly
through the Government and its entities."
OMBUDSMAN'S
RECOMMENDATIONS
Our review indicated
that the Manitoba Water Commission destroyed the audio tapes of the
public presentations in contravention of The Legislative Library
Act. It was also apparent from our review that the Commission
was not aware of the recordkeeping requirements under this Act and
the exclusive responsibilities of the Provincial Documents Committee.
It is the duty of this high-level and expert Committee to take into
account in its deliberations all laws, policies, and practices in
the government as a corporate entity, including The Freedom of
Information and Protection of Privacy Act and The Personal
Health Information Act, when considering the long and short-term
disposition of records, regardless of physical form or characteristics.
Our review also
indicated that the Department's entries in the Directory need to be
updated to more accurately reflect the records held by the public
body, particularly with respect to records of the operational divisions
and branches of Manitoba Natural Resources. This would require that
Manitoba Natural Resources undertake a systematic review, on a priority
basis, of its records scheduling process, and proceed with obtaining
the necessary disposition approvals through the Provincial Documents
Committee. This would then enable the Department to ensure that its
entries in the Directory reflect what records exist or have existed,
how long they are to be kept, and the retention or destruction authorization.
Based on our review,
I make the following recommendations:
- That Manitoba Natural Resources take steps forthwith to ensure
that all boards and commissions operating in association with the
Department are specifically and routinely informed, in writing,
about recordkeeping requirements under Part II, "Public Records
and Archives" of The Legislative Library Act and applicable
regulations, policies and guidelines.
- That Manitoba Natural Resources take steps to ensure that the
link between access and privacy rights under The Freedom of Information
and Protection of Privacy Act and The Personal Health Information
Act and lawful recordkeeping practices is clearly understood
within the department and its associated boards, commissions, associations,
and agencies as defined in The Freedom of Information and Protection
of Privacy Act.
- That Manitoba Natural Resources bring its entries in the Access
and Privacy Directory into more ample compliance with the requirements
of Section 75 of The Freedom of Information and Protection of
Privacy Act.
MANITOBA NATURAL
RESOURCES' RESPONSE
In the Ombudsman's
Report and Recommendations to Natural Resources dated June 11, a written
response was requested within 15 days indicating either:
- that the head accepts the recommendations and any action the head
has taken or proposes to take to implement them, or
- the reason(s) why the head refuses to take action to implement
the recommendations.
The written response
from Manitoba Natural Resources indicated that these recommendations
have been accepted by the Department. Specifically, the Department's
response stated that it will undertake the following steps to implement
the recommendations:
- Develop specific policy and procedures that will inform and monitor
the recordkeeping practice of boards and commissions that come under
its umbrella and which are subject to The Legislative Library
Act and The Freedom of Information and Protection of Privacy
Act.
- Re-embark on a program of information dissemination regarding
recordkeeping practices and its relationship to the legislation.
- Conduct a review of the records scheduling program in light of
records that still require scheduling and a review of current schedules
that may require changes to bring the scheduling process up to date
to comply with Section 75 of The Freedom of Information and Protection
of Privacy Act.
FOLLOW-UP
TO INVESTIGATION
The Ombudsman's
Office will follow-up with Manitoba Natural Resources on the implementation
of the recommendations to review the Department's progress.
The Ombudsman's
report will also be provided to the Minister of Manitoba Culture,
Heritage and Citizenship, who has responsibilities for authorizing
the disposition of records through the documents committee process
under The Legislative Library Act; for the Directory
under The Freedom of Information and Protection of Privacy Act;
and for reporting on the general administration of these Acts.
