Breaking the FOIPP ACT continues with NO CONSEQUENCES!

PREAMBLE

One would think that with the recent scathing indictment against the King Government for multiple violations of the FOIPP Act by former Privacy Commissioner Karen Rose, APSO workers and Deputy Ministers would be eager to change their ways to comply with the law that imposes a duty on them to assist FOIPP applicants and to deal with them, openly, honestly and completely.

It’s not happening.

I just sent the following letter to the new Information and Privacy Commissioner, Ms. Denise Doiron, asking for a review of my recent FOI request to Premier King’s office requesting information on the status of records belonging to Robert Ghiz.

It’s another “dog’s breakfast” of a situation that should be of concern to all Islanders. There is information about the  status of Ghiz’s records coming from government contradicting information coming from the justice system; there is also contradictory information provided to me from the same APSO worker, Ms. Kathyrn Dickson, concerning the status of Ghiz’s records. Now there’s a complete refusal to provide me with the information that I have a right to and need to complete my FOI request properly.

My letter to Ms. Dorion tells the story. I’ll let you know whether she agrees to undertake a review.

_______________________________________

July 25, 2020

 Re: Request for a Review of PO 2020-189

 Dear Ms. Doiron,

First of all, congratulations on your appointment as PEI’s Information and Privacy Commissioner –  all the best in your new position!

I am seeking an OIPC review of a recent FOI request (PO 2020-189). I believe the Premier’s Office violated section 8.1 of the Freedom of Information and Protection of Privacy (FOIPP) Act by refusing to provide me with information concerning the current status of the public records of former Premier Robert Ghiz.

The significance of the public body’s refusal to assist me in this matter is that without this information I am unable to  determine the appropriate search criteria to properly focus and narrow my FOI request for Robert Ghiz records.

I am at a loss to understand why the PEI Government is refusing to clarify this important matter of the status of Robert Ghiz’s records for me, so I am hoping you can help me to obtain that information in a review. The contents of this letter provide the rationale for my request for a review.  I’m structuring information in four sections:

1. Background: The importance of knowing the status of Ghiz’s records;
2. Judge Campbell’s declaration on the status of Ghiz’s electronic records;
3. A chronology of email communications on FOI PO-2020-189;
4. Concluding observations considering OIPC’s June 9, 202 Order #FI-20-007,

1.  Background

I have been investigating egaming and matters pertaining to the CMT civil litigation for more than two years. I have published over 1,000 pages in dozens of articles posted on my website: Ethical and Social Commentary on Life in PEI.

Despite extensive research and a significant effort, I have been unable to obtain the answer to one simple question from Government: “Were Robert Ghiz’s records deleted?”

Despite being a defendant in the CMT law suit, Robert Ghiz filed no documents with the PEI Supreme Court.  Two previous FOI requests seeking Ghiz records that should have produced many records produced no records.

CMT  filed a document in the PEI Supreme Court from a private investigator, Bruce MacDonald [a Principle in RB Mac Investigation] CMT contracted in 2014.  MacDonald had submitted a number of FOI requests to the PEI government in the course of his investigation at that time, many of which generated responses of  “no records found.” MacDonald did not challenge those findings or initiate any reviews with the Commissioner’s Office, although it’s clear from his report that he believed that records should have been produced with his FOIs but were not produced.

Mr. MacDonald had submitted a FOI request for Brad Mix records. He received a “no records found” response to that one as well. When I learned of Brad Mix’s involvement in CMT/FMT’s business relationship with the PEI Government in the course of my own investigation, I decided to file the same request that Mr. MacDonald had filed, expecting a similar response, but with an intention to seek an OIPC review to find out why records that should exist within government no longer exist.

I initiated a review with your predecessor, Ms. Karen Rose, in January, 2019 which led to her July 9th, 2020 Order. I was applicant #1 in that Order – Paul Maines, CMT’s President, was applicant #2.  That Order has served as the catalyst for a Special Standing Committee of the PEI Legislative Assembly being established as a result of Motion 86 passing in the Legislative Assembly. That committee will seek to discover who deliberately destroyed sensitive government records. and provide a permanent oversight committee for record management and retention issues.

As you are likely aware, the Auditor General’s Special Assignment into E-gaming found that at least three individuals (Rory Beck; Melissa MacEachern; and Chris LeClair) each had all their government records – in all formats, both electronic and paper – permanently destroyed without first having them copied and archived, as is required by the Archives and Records Act.

In a July 10, 2019 letter to the Privacy Commissioner from the Deputy Minister of the Department of EGTC, Erin McGrath-Gaudet, it was learned for the first time that 2 years of records for Brad Mix, a Senior Recruitment Officer with Innovation PEI, were also deliberately destroyed, and government knew that from at least as early as March, 2015. 

I was aware that the PEI Government had disclosed that Beck, MacEachern and LeClair had all their records destroyed in both affidavit of documents filed with the Court. However, there was no disclosure of Brad Mix’s 2 year’s of missing records in either the initial or Supplementary affidavit of documents, despite the fact that it was known by the PEI Government long before the filing of those two affidavits of documents.  This obviously represents a serious breach of the PEI Rules of Civil Procedure.  My hunches about Brad Mix were correct…I decided it was time to investigate Ghiz’s records as well.

With no Ghiz documents produced in Court, and new information concerning the deletion of his electronic files and emails from Government servers (ITSS Employee Removal Request Form), I started wondering whether a similar investigation as happened with Brad Mix might find a similar situation of missing records and a cover-up of that as with Mix’s records.  I decided to submit a FOI request for Ghiz documents. I received the following response to my request in late January, 2019:

I purposefully submitted this request as an unreasonably-broad request so I could then have a discussion with the APSO Coordinator about “narrowing” the search with more specific search criteria.

My assumption was there were no electronic records to search – although I submitted “keywords” to test that assumption. An ITSS Employee Removal Request Form had been authorized by Premier MacLauchlan less than a month after he was elected Premier instructing ITSS to not only disable the email and network file accounts for Ghiz, but to also “delete” those accounts and all the contents.If there were only paper records organized in folders left to search and no electronic records, then the “keywords” that I had submitted with my online request would be insufficient for the APSO search.  I expected (if my hunch was correct) that I would soon be asked by an APSO worker to change the search criteria from electronic “keywords” to paper “subject headings” for the file folder tabs.

I fully expected to hear that there were only paper records, but I wanted confirmation that they had indeed been backed up, and if so, how those files had been organized in folders.  I wanted more information about the status of Ghiz’s records before deciding what would be the best way to ask for documents so that the search criteria would produce the records I believed they should.

A short time later I received an email with a request that I “narrow my search” and change my “keywords” to “subject headings”:

After receiving this email, I called Ms. Dickson and provided her with four “subject headings” for the FOIPP search. After the call, I realized that I hadn’t specified that now that “subject headings” were being searched with just three headings, I wanted all the 18 boxes that she told me exist searched for records with those subject headings. I sent a follow-up email with this request:

Concerned that I had heard nothing back to confirm that the scope of my request would be changed from “one week” to the entire scope of Ghiz’s tenure as Premier [e.g. all 18 boxes], I sent another email to Ms. Dickson four days later:

I received this response the same day:

Ms. Dickson was then in touch with me by phone to assure me that she passed on the amendment to the FOIPP request scope to the public body.

On April 8, 2019, I received a final decision letter from the Premier’s Office on PO 2019-16. It was disappointing to see that the public body did not revise the scope of my request but searched just ONE WEEK of records:

Despite not revising my initial request as per the new search scope I provided and followed up on to ensure it would not be overlooked, the final response letter referred to my request as a “revised” request. Not surprisingly, having limited the search to just five business days, no records were found:

Not only was the search unilaterally restricted to one week, despite my revised search scope, it apparently didn’t even involve an actual search of the hard copy records, but only checked “a list documenting the former Premier’s records” to see – I assume – whether any of my search terms were on the list.

The electronic search” claimed to have been undertaken (according to Paul Ledwell) shouldn’t have taken 20 minutes. In fact, it shouldn’t have taken any time at all: Ms. Dickson told me that Ghiz’s electronic documents and emails – his e-gaming files included – had apparently already been ALL deleted back in May 2015.

I suspect that Mr. Ledwell didn’t realize that I had already been told by Ms. Dickson that no electronic records existed and available to search. With Brad Mix’s records, the line was that an “account” was searched despite the public body knowing there were no records in that account to search; with Robert Ghiz the line from the Premier’s Office (Paul Ledwell) was that the account was searched despite the account having apparently been deleted!

I wanted to determine whether those electronic records were “backed up” and stored for the Provincial Archives in accordance with the Archives and Records Act with this FOI request. Unfortunately, after this entire effort, I was no closer to knowing that, with what effectively turned out to be a non-response to my request.

I did not submit a new FOIPP with clear terms that couldn’t be misinterpreted or ignored at the time, nor did I request a review of that FOIPP request with the Information Commissioner. I may be overly suspicious, but I figured the only possible reason to take the incredibly regressive and nonsensical step of transferring electronic records to paper records to store in records when those records are of current interest was to make it easier to hide information, so I figured another FOI request would be a waste of time.

I asked myself: “What’s the chance that a subject heading on a Ghiz file folder or list of files would say anything about the egaming scandal or CMT, especially given that the government was officially denying any involvement with CMT?”  My answer: “Zero.”

I then received new information that rekindled my interest in seeking Ghiz records which led me to believe I might finally get an answer to the question whether Robert Ghiz’s government documents existed, and if so, in what formats.

2.  Judge Campbell on the Status of Ghiz’s Electronic Records

In his September 25, 2019 Ruling granting the Defendants their Motions to Dismiss the CMT law suit, Judge Gordon Campbell addressed an allegation made by CMT’s lawyer, John MacDonald, that Robert Ghiz’s electronic files and emails had been deleted.

MacDonald was relying on the same Employee Removal Request Form [as included above] as evidence. I am unaware of any evidence on record supporting the following declaration from Justice Campbell:

Paragraph 626:  Also in Maines’ 2019 affidavit he alleged that the emails and records of Ghiz were deleted on May 29, 2015, which he maintains is evidence of “bad faith” litigation and further confirming evidence of “misfeasance in public office”. In fact, Ghiz’s emails were never deleted. The email account of Ghiz was copied and preserved the day after the initial statement of claim in this matter was filed.

After reading this, the first thing I asked myself is why I was told by Ms. Dickson some months earlier that all of Ghiz’s electronic files were gone – which is what the ITSS form confirms were the instructions given to ITSS.  I decided to submit another FOI for Ghiz records to see if I could finally get some answers.

3.  Chronology of Communications with APSO re: FOI PO-2020-189

I filed an online FOI Request which was received by APSO on June 24, 2020. I received an email from APSO worker, Ms. Kathryn Dickson with an attached June 28, 2020 letter acknowledging receipt of my request:

This acknowledgement letter contained the full and exact wording that I had originally submitted online, spelling out very clearly that I was seeking assistance and information before I would be finalizing my FOI request.

All the stuff I highlighted was completely ignored by Ms Dickson.

In a response from Ms. Dickson two days later, I was told that a search was already underway based on the broad search I had included at the outset, something I was immediately regretting doing, but did only to provide a sense of the general nature and scope of the records that I would subsequently be seeking to NARROW once I had obtained the information I needed to construct a proper search request:

As you can see, my very explicit request for clarification regarding the status of Robert Ghiz’s records in light of Judge Campbell’s declaration that electronic records existed – and Ms. Dickson’s previous declaration to me that no electronic records existed – was completely ignored.

The public body decided to proceed on the basis of the broad criteria I had submitted in my online request, notwithstanding my clear indication that it was my intention to modify and focus my request to obtain more specific and targeted documents that would only be possible with electronic searches, and for that I needed information regarding the status of Robert Ghiz’s records. Frustrated with what was clearly avoidance, stonewalling and just plain unprofessional rudeness, I immediately responded to Ms. Dickson’s June 30th email:

I was uncertain what kind of response I’d get to that email, but the wait to find out was over on July 6th:

Being told that the “public body has reviewed your request and intends…to have the email account of the former Premier electronically searched” was not the answer I was looking for, nor was it the answer to my question whether electronic records for Robert Ghiz existed and were available to search.

For the public body to say that they intended to search the email account of Robert Ghiz was little comfort, when (1) I have an official form in my possession saying that account was DELETED on May 28, 2015, and (2) I was told by Ms. Dickson there were no electronic records to search. This promise to search a deleted email account only raises additional questions.

If there were electronic records to search – as Judge Campbell has indicated – I expected they would be on a separate flash drive or server. Reference to Ghiz’s “email account” in this response raised another fundamental question: “Was Ghiz’s email account deleted as indicated on the ITSS form? And if so, how is it that the public body intends to search an email account that doesn’t exist?” 

Conversely, if Ghiz’s email account does exist, how does the Public Body explain the signed ITSS form from May, 2015 indicating that Ghiz’s email account was deleted?

As Commissioner Rose confirmed in her recent Order, the PEI Government deliberately led me (applicant #1) and Paul Maines (applicant #2) to believe that there were records for the time period for all 5 of the Brad Mix FOI requests when the public body knew there were none. The public body even went so far as to document in correspondence with both applicants and the Commissioner multiple “searches” they claimed to have diligently conducted despite knowing full-well that there were no records within the time scope of the 5 FOI requests to search.

I could cite other examples of how I have been deliberately misled on other FOI requests that I’ve submitted during the course of the past 2-year investigation but hopefully what I have already provided will suffice to show grounds for my suspicions.  I believe I’m entitled to an answer to a simple question so I can properly prepare a FOI request to subsequently maximize the likelihood of being able to zero-in on the particular records I am seeking and I’m seeking your assistance to obtain that information.

Summary

Deputy Minister David Keedwell was the DM of Economic Growth, Tourism and Culture under the previous Liberal Government when I submitted my FOI request for Brad Mix records in October, 2018. The fact there were no records to search is not something the public body was willing to disclose to me, so I was kept in the dark and led to believe there were records to search.

This is what Commissioner Rose had to say about the public body “commencing” a FOI on such deceptive grounds, something that destroys all trust between (1) the public, and (2) the servants who are supposed to be serving the public:

On page 13-14 of her Order, Ms. Rose stated the following:

[33] I have found that the EGTC conducted adequate searches. However, the search for records is only part of a public body’s duty under section 8 of the FOIPP Act. Section 8 includes a duty to respond to an applicant openly, accurately, and completely. The Applicants have expressed concerns relating to this duty of the EGTC, most prominently about the EGTC’s failure to advise the Applicants, at any point during the access to information process, that emails they requested were no longer accessible by the EGTC. [My emphasis]

[47] I find that the EGTC did not fulfill their duty to be open, accurate and complete when responding to the Applicants, by failing to explain why very few responsive records were found. I further find that the EGTC deliberately withheld this important information from the Applicants. which is a violation of their section 8 duty. I would have expected the gap in the named employee’s emails to be one of the first facts to be communicated to the Applicants, following the EGTC’s realization that their search could not be properly completed. Instead, the EGTC provided the few records they had to the Applicants, and remained silent about the possibility that there could have been more, but they had not been retained.

Similarly, the status of Robert Ghiz’s records – especially given the previous information provided to me by Ms. Dickson that is contradicted by the declaration by Judge Campbell – should be the “first facts” the Premier’s Office communicates with me, especially since I am expressly and repeatedly ASKING for that information. Yet, the public body has  chosen to totally ignore my request, and have decided to proceed with a request with parameters WHICH ARE NOT MINE. The ultimatum they have implicitly presented to me is to (1) either give them the “go ahead” with what they say they intend to do, or (2) withdraw the request.

Ms. Dickson asked me if I want to revise my request…I said “yes”….then she refused to provide me with the information I need to narrow by search – INFORMATION THE PUBLIC BODY HAS AND I DON’T HAVE, which definitely puts me at a disadvantage. Luckily, I trust the law and legal precedents are in my favour on this matter.

In Order FI-11-002, Re: Department of Agriculture, 2011 CanLII 91841 (PE IPC), at
paragraph 105, the duty of a public body to communicate to assist applicants to NARROW requests was specifically addressed:

[105] The underpinnings of public bodies’ duty to engage in
discussions with applicants and to assist in narrowing requests
flow naturally from the circumstances of each access request. A
public body is the party that has the background knowledge and
familiarity, not only with the records in its possession, but also
with the FOIPP Act and its Regulations. An applicant is at a
disadvantage as a newcomer to this process, and it is up to the
public body to guide the applicant. I find that this is an integral
part of a public body’s duty to assist applicants.

I am unclear what the parameters would be for a review of this matter; however, I would like honest, unambiguous answers to the following questions if possible:

1. Are Robert Ghiz’s electronic files and emails available to search?
2. If Robert Ghiz’s electronic files and emails are available to search now, why was I informed by the same APSO worker approximately 1 1/2 years ago with another Ghiz FOI request that there were no electronic records available to search, only paper records?
3. In the first FOI request for Ghiz records, Paul Ledwell stated in a letter that the search for records involved a review of “…a list documenting the former Premier’s records…”  Who compiled this list and how was it compiled? What information is used to identify documents that may be responsive to a request if the contents aren’t searched and only information on a “compiled” list is relied upon? Is this acceptable for FOIPP requests?
4. How is it possible that Robert Ghiz’s email account still exists, and the public body plans to search his emails with this FOI, given that the ITSS form indicates his email account was deleted? The “automatic” backup allowing the restoration of those files, emails and accounts would have to have happened within 365 days, then they would have been automatically erased from the back-up tapes. Were they restored during that period of time? I was told in January 2019 by Ms. Dickson there were NO electronic files or emails for Robert Ghiz to search.

I have been engaged in professional research for many years, and I’ve never experienced such an obstinate attitude bent on “resisting” not “assisting” FOI applicants.  In this current request for a review what I received in response to a simple question was not an honest answer…my request for assistance was rudely ignored with the public body showing no willingness to provide me with assistance to identify and locate government records in an open, honest and complete way. Indeed, they won’t even provide me with the status of Ghiz’s records despite the fact that they volunteered that information with my first Ghiz FOI as GROUNDS for my having to modify my initial request!

I look forward to your response.

Sincerely,

Kevin J. Arsenault, Ph.D