Lack of paper trail a puzzler for some Province says politicians wrote nothing down amid ‘freedom convoy’ talks with police
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Governments and law enforcement across Canada were on high alert as the so-called “freedom convoy” rolled into Ottawa, blocked U.S.-Canada border crossings and landed on legislature doorsteps one year ago.
However, inside the Manitoba Legislative Building, whatever discussions were happening between politicians and police remain unknown; the politicians wrote nothing down.
Duty to document laws
Manitoba politicians and civil servants have no legislated obligation to document their work.
Manitoba politicians and civil servants have no legislated obligation to document their work.
British Columbia is the only province with duty to document law — and even that law is weak, said Jason Woywada, executive director of the B.C. Freedom of Information and Privacy Association.
Woywada said B.C.’s 2017 law came in the wake of the province’s “triple-delete” scandal, in which government officials were caught wiping emails after receiving freedom of information requests and where decisions made orally were not recorded.
However, the law is limited, he said.
While it requires the provincial government to create certain records, it only applies to a small number of public bodies, has no independent oversight and has no enforcement or penalty mechanism, Woywada said.
“The issue becomes that there are no penalties for failing to create a document or deleting a document prior to filing an FOI,” he added.
“If a minister expects the public to trust the decision that they’re making… the ability to access that same information, look at the same information the minister had and make the same decision, is part of that.”
The calls for more — and better — duty to document laws are not new.
In 2016, Canada’s information commissioners called on their respective governments to “create a legislated duty requiring public entities to document matters related to their deliberations, actions and decisions.”
Caroline Maynard, the federal information commissioner, continues that call today: “This is ultimately to hold governments to account — and that’s the basis of our democracy.”
She said without legislation, it’s difficult to monitor or assess public bodies’ compliance with duty-to-document principles. Maynard also has concerns about how the COVID-19 pandemic has affected government’s record-keeping practices. A Zoom meeting should be treated comparably to an in-person meeting, she said, with notes and meeting minutes.
“If we are to be able to give Canadians right of access to information, that information has to somehow be available somewhere,” Maynard said. “And if you don’t have decisions or policy discussions or meetings written down, then we are taking away Canadians’ right of access, because when you’re going to ask for the information, it’s not going to be available.”
Meanwhile, Manitoba does have policies and “guidance” on duty to document.
“It is expected that ministers’ offices will create full and accurate records of all actions, decisions, communications and other activities related to the official business of the office,” reads a record-keeping guidance document from the Government Records Office, Archives of Manitoba.
However, policies aren’t laws, says one access to information expert.
Kevin Walby, director of the Centre for Access to Information and Justice at the University of Winnipeg, said to ensure the duty to document is taken seriously, the principle should be enshrined in the province’s existing FIPPA legislation.
There, it should apply to all public bodies, not just ministers’ offices, and detail which records should be created and for how long they must be preserved. The penalties for failing to do so should also be outlined, Walby said.
While Manitoba’s ombudsman was part of the 2016 call from Canada’s information commissioners, current ombudsman Jill Perron was unavailable for comment. Manitoba’s FIPPA legislation was last updated a year ago.
The Stefanson government would not say if it has a position on creating duty to document law.
A provincial spokesperson said the province “takes the responsibility of openness and transparency very seriously” and public servants are subject to the Public Service Act, requiring them to “be transparent to enable public scrutiny.”
— Katrina Clarke
“For sure there should be records,” said Kevin Walby, director of the Centre for Access to Information and Justice at the University of Winnipeg. “If there are no records, to me it suggests these officials are not doing their jobs.”
It’s an issue access to information experts say highlights larger themes of transparency, accountability and the concept of “duty to document.” Too often, they say, governments find ways to shirk obligations to the public — to show their work and how they came to decisions — by not documenting government business.
Last fall, the Free Press filed two freedom of information requests seeking correspondence between Manitoba Justice Minister Kelvin Goertzen and Premier Heather Stefanson, respectively, and the Winnipeg Police Service, RCMP and Canada Border Services Agency that included mention of the convoy protests, traffic or border disruption.
The request included any communication from Jan. 1 to Feb. 28, 2022, the time period during which the protests took place.
Both requests were refused; response letters stated no records were found.
A spokesperson for Goertzen said communication did happen — verbally.
“Verbal briefings were provided to the minister on an as-needed basis regarding negotiations by law enforcement agencies,” the spokesperson said in a statement.
“At no time were operational decisions made by the justice minister or the Manitoba government. Those operational decisions were made by police agencies, independent of the provincial government.”
The spokesperson said in this case, the “duty to document” falls to the law enforcement agencies who were “solely responsible for all planning and operational decisions.”
Walby said that explanation strikes him as “odd.”
“Each party has a responsibility to document decisions and correspondence,” he said. “And no good government would leave the responsibility for record taking and record keeping to police alone, given the police penchant for secrecy.”
Walby and other access to information experts worry governments are relying too frequently on phone conversations or using back channels, such as personal devices, auto-delete messaging apps or private emails, to communicate.
Doing so avoids creating a paper trail for members of the public, journalists or others to access through the province’s Freedom of Information and Protection of Privacy Act (FIPPA), he said.
“Something as simple as jotting down some notes from a meeting, what time something happened, who it was sent to — it seems simple, but it could have huge implications for holding government to account, for scandals, for any kind of sliver of accountability,” Walby said.
This matter recently came to light at the federal level. Canada’s Comptroller-General was caught advising government officials involved in the review of contracts to consulting firm McKinsey & Company: “Be careful what you write down. It will find its way out through an ATIP (Access to Information and Privacy Act).”
Comptroller-General Roch Huppé said he was trying to suggest public servants should be factual in communications, not putting personal opinions in emails.
As for Manitoba’s handling of “freedom convoy” communications, one politics professor says it is reasonable to protect sensitive information — though it should still be documented.
“Cabinet and ministerial decision-making are meant to be secretive in order to promote frank exchanges and to protect sensitive information like police tactics in the midst of an active protest/occupancy,” said Paul Thomas, professor emeritus of political studies at the University of Manitoba.
Still, Thomas said proper record keeping is “essential.”
“It allows for the retrospective examination of events,” he said. “It enables lesson-drawing about what transpired. It helps in any attempt to assign responsibility and accountability for decisions, actions and outcomes.”
Asked for its position on duty to document, an unnamed provincial spokesperson said: “The province takes the responsibility of openness and transparency very seriously.”
The province “follows well-established guidelines when responding to FIPPA requests” and the Public Service Act requires public servants to “be transparent to enable public scrutiny,” the spokesperson said.
Elsewhere during the “freedom convoy” protests, officials were creating reams of records.
Thousands of pages of internal documents, emails and even text messages between politicians, government officials and law enforcement were revealed during the inquiry into the federal government’s 2022 use of the Emergencies Act. The texts in particular were frank — and some frosty, revealing the tensions between law enforcement and political leaders as they tried to get a handle on the protests.
As for what was happening in Manitoba, documents submitted to the inquiry show Stefanson was receiving “advice” from the RCMP.
“Based on the advice of the Manitoba RCMP, which, of course, liaises with the national RCMP, we are unaware of any Manitoba activity involving espionage or sabotage, clandestine foreign-influenced activities or any serious threats of violence directed towards the violent destruction or overthrow of the Canadian government,” Stefanson wrote in a Feb. 17 letter sent to Prime Minister Justin Trudeau.
The letter expressed Stefanson’s opposition to invoking the Emergencies Act in Manitoba, saying the legal threshold had not been met, and provincial law enforcement had the Emerson Canada-U.S. border blockade under control.
However, in a letter stamped Feb. 11 — six days earlier — Stefanson called on Trudeau to take “immediate and effective federal action” on the border situation.
In this letter, she referenced the CBSA — one of the groups the Free Press sought her correspondence with — saying she looked forward to learning how the government and the agency would respond.
Letter on Canada-US Border Blockade at Emerson
An inquiry witness interview shed light on what Stefanson was specifically asking for.
Michael Richards, deputy cabinet secretary for strategic operations and deputy minister of intergovernmental affairs, told the inquiry Stefanson wanted the federal government to relax pandemic measures, not invoke the Emergencies Act.
“He stated that this was not a request for federal assistance to law enforcement in Manitoba — quite the opposite, the WPS and RCMP had the two situations under control,” reads an interview summary sheet.
Although it’s clear conversations between politicians and law enforcement were ongoing throughout the convoy protests, Walby remains “concerned” about why the premier and justice minister wrote nothing down.
Whether real or perceived, such situations raise questions about whether the province strives to avoid documenting its work, evading potential FIPPA requests, Walby said.
“It just doesn’t wash well, either way.”
Katrina Clarke is an investigative reporter with the Winnipeg Free Press.
Updated on Monday, February 13, 2023 9:11 AM CST: Adds fact box
Updated on Monday, February 13, 2023 9:17 AM CST: Removes duplicate faxt box
Updated on Monday, February 13, 2023 10:55 AM CST: Changes format, reorders photos