On February 22, 2019, I posted an article titled The Incredible E-gaming Disappearing Act concerning a request I had submitted to the Information Commissioner, Karen Rose, for a review of an Access to Information request I had earlier filed seeking e-gaming records associated with Brad Mix which  I had submitted to the Department of Economic Development and Tourism last Fall.

I promised an update so here it is.

To recap: The Commissioner sent a letter to the Head of the Department of Economic Development and Tourism the very same day she received my request, January 7, 2019.  It asked a number of questions, and set a February 4, 2019 deadline for the Department to respond.  After unilaterally extending that deadline by a week – three times – the Department delivered a response on February 22. 

I received a copy shortly thereafter, which you can read HERE in its entirety,.  But here’s the cut-to-the-chase-jist-of-it as far as the government clearly not taking this matter seriously by pretending it doesn’t exist:

Keedwell took an extra three weeks to NOT answer the most important question,  saying absolutely nothing about the Brad Mix records that I produced from the CMT lawsuit, which should have been given to me by the government in response to my Access request.   

Why weren’t the records provided to me? Does the Department still have copies of these records? If not, why not? Were they destroyed? If so, by whom, and for what reason? Those are the kind of questions I imagine the Commissioner would like answered. But she’s going to have to wait.

Keedwell offered no explanation, excuse or even comment about this key issue, and the Commissioner noted her awareness of this in a  letter she wrote to me with a copy of Keedwel’s response to her:

The Commissioner invited me to respond to Keedwel’s letter, which I’ve taken the liberty of doing – I’ve pasted a copy below.

There will most certainly be some further back and forth on this file; however, the Commissioner expects to have a ruling and report on this case sometime in May. I’ll be looking forward to reading that one.

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Thank you for your letter dated February 25 regarding your file No: FI-2019-271, and also for a copy of the February 21, 2019 letter the Public Body sent to you related to this review.

This letter represents my counter-response to the responses you received from the Public Body to the series of questions you asked the Public Body in your January 7, 2019 letter.

Delay

As you noted in your letter, the Public Body has acknowledged it failed to exercise the discretion found under section 12(1), which allows a Public Body an extension of up to 30 days to respond to an Access to Information Request. You ask if I wish to pursue the issue of delay further; however, I’m unclear what avenues of pursuit are open to me under the Act and within this process. It doesn’t seem there is any possibly remedy available, so that leaves only the possibility of some kind of punitive measure or consequence. If some kind of penalty or constructive consequence exists, then I wish to have the matter pursued, and if you can inform me of what that might entail subsequently I would be grateful.

Responsive Records

You note that “…it is our understanding that your primary concern is whether the Public Body conducted an adequate search for responsive records.” This is correct.

I have provided you with some (a) background information and (b) records that I believe should have been provided to me – obtained from the current civil litigation court case – either not located, or if located, deemed to be non-responsive for reasons that I believe would be illegitimate. If they weren’t located, the most likely and logical reason is that there was not an adequate search undertaken to locate them.

Equally importantly, however, is my concern that there should be many more records responsive to my request than the few I have provided – records that would normally have been generated by (or received by) Brad Mix, that, at a minimum, “mentioned” Paul Jenkins; given the central role of both Mix and Jenkins on the e-gaming file during the time period indicated in my request. Before commenting on this further, I’ll first offer a few comments on the reasons why the Public Body believes specific appendices which I provided are not responsive to my request:

(1) APPENDICES A, B, C & D: Although it is true that appendices A,B,C and D of Exhibit 112 are not “records of Brad Mix” there is, nonetheless, important information in these records relevant to my request to you for a review. For example, in appendix “D,” Paul Jenkins wrote to Patrick Mason to inform him that he was having a key meeting with Brad Mix on January 31, 2011. From the context, it is clear that this was a pivotal meeting happening at a critical juncture in the e-gaming file, involving discussions on a number of core issues, including the possible involvement of several companies in the initiative. It is not reasonable to believe that no documents, emails, notes-to-file, etc., were produced during this time period mentioning “Paul Jenkins,” a time period when both Brad Mix and Paul Jenkins were both heavily involved in discussions happening with these matters.

(2) APPENDICES E, H, AND I: You made note in your letter that the public body did not comment on Appendices E, H, and I. These emails discuss additional strategic meetings, documents, financing and presentations. It’s worth noting that these appendices correspond with the dates of Mix’s calendar notes that the Public Body did consider responsive.

(a) Appendix E: November 2017 Maines Affidavit Tab #5 dated March 4, 2011.

This email discusses Brad Mix adding information to the recruiting package that Patrick Mason was creating for Innovation PEI. “Hi Paul and Patrick…Please find enclosed details of a co-investment fund that I discussed with Paul this morning. Patrick, you may want to include this in your presentation.”

(b) Appendix H: Schedule A of Maines Affidavit of documents, Tab 29 dated April 18, 2011.

This email is from Paul Jenkins to Brad Mix, Chris LeClair, Frank Zhou and Paul Maines.

“…I would like to thank you all for your time today going over the Zanagen/PEI opportunity.”

Being an email from Paul Jenkins to Brad Mix, this is clearly a responsive record.

(c) Appendix I: Email dated April 20, 2011 from Paul Jenkins to Brad Mix. Jenkins wrote…

“Hi Brad…Thanks for the meeting on Monday. Zanagen is coming for a site visit

Monday/Tuesday. Another piece of news, the hedge fund is very interested in basalt.

They want to meet Basalt. My suggestion is that they don’t meet in Toronto as we

don’t want them to get any ideas that PEI isn’t necessary….”

(3) Appendices F, G and J – Not Brad Mix Records

The Public Body states that Appendices F, G and J “…do not appear to be records of Brad Mix.”

On what basis does the Public Body make such a claim? These documents were filed by the PEI Government in the e-gaming lawsuit initiated by Capital Markets Technology (CMT). The Identification number on the bottom right of each of these three appendices indicates they were government-issued documents, and make explicit mention of – and connection to – Brad Mix such as to make them responsive to my request as follows:

(a) Appendix F: Government affidavit of documents Tab PEI 000600 dated Feb. 1, 2011.

This is an email from Brad Mix to a Redacted Recipient with the Subject: Paul Jenkins

(b) Appendix G: Government affidavit of documents Tab PEI 000626 dated Feb. 3, 2011.

This email from Brad Mix to a Redacted Recipient with the Subject: Paul Jenkins

(c) Appendix J: Government affidavit of documents Tab PEI 000915 dated July 4, 2011.

This email from Brad Mix to a redacted recipient with the subject: Call with Paul Jenkins and Pat Mason.

As is clear from the precise wording of my request, a record does not have to have been sent to Brad Mix from Paul Jenkins – or sent to Paul Jenkins from Brad Mix – to be a “responsive” record; but only that it was a record either (a) sent by or (b) received by (either directly or as a “cc”) Brad Mix which “makes mention of Paul Jenkins.”

Additional Considerations

(a) The person doing the search: According to the Public Body, the same person whose records I have requested undertook the search, with assistance from his Administrative Assistant (Pam Gorveatt). Given this fact, Mr. Mix has first-hand knowledge of the records at issue, which increases concern over the failure of the Public Body to produce all records that fall within the scope of my request.

(b) Possible Locations for records: I’m wondering if the Public Body may have overlooked possible “locations” for records falling within the scope of my request. For example:

• The Public Body states that Mr. Mix’s “directory” for this computer was searched; however, unless the name “Jenkins” or “Paul Jenkins” was present in the file name, responsive records may have been missed in the search. A proper and comprehensive search for all documents that “make mention” of Paul Jenkins would require a search of document content as well as file directories, which is a simple and automated search option/feature on all computers. Was such a comprehensive search of “content” undertaken?

• It is the sole responsibility of the Records Management Liaison Officer (RMLO) within each department to manage records, and that management involves the classification, storage and ultimate “archiving” of government records (in conjunction with the Public Archives and Records Office) undertaken primarily through the creation of retention schedules and other forms created by the PARO. Did Mr. Mix (and/or his assistant) consult with the RMLO for the Department concerning the management of records that may fall within the scope of my initial Access Request? Normally, the classification system used by departments in the record management system designates that records are classified as either active, semi-active, or archived, with each having different physical storage locations. Was a thorough review of the status of the records undertaken in conjunction with PARO (and the Departmental RMLO) to ensure that no locations – where responsive records might possibly exist – were perhaps inadvertently overlooked. 

It is my sincere belief that additional records that fall within the scope of my Access Request exist (or existed at one time). If these records were not destroyed, they obviously must exist somewhere, which warrants a more extensive and comprehensive search for the records. If such additional measures produce no additional records, the onus is clearly on the Public Body to explain the missing records.

Sincerely,

Kevin J Arsenault, Ph.D.

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