Today was a big day at the Standing Committee on Records Retention. There were three key players who came before the committee in two separate meetings: (1) Melissa James (formerly Melissa MacEachern) at 10 am; (2) Chris LeClair, former Chief of Staff to Robert Ghiz at 11 am; and, (3) Erin McGrath-Gaudet, Deputy Minister of the Department of Economic Growth, Tourism and Culture appearing at 1:30pm.
I’ll eventually do a separate post on Erin McGrath-Gaudet’s appearance and testimony. In this short article I want to reveal how our justice system has acted against our own provincial laws to provide exoneration for Robert Ghiz and Neil Stewart for destroying, respectively, all the documents of Chris LeClair and Melissa James.
I expected that Chris LeClair and Melissa James would simply point out that they left their records completely in tact when they left Government, and that they had no involvement with what happened to them after that. And that’s pretty much what happened.
I personally would have brought Robert Ghiz and Neil Stewart before the Committee to explain why they did what they did – they are the individuals who ordered the deletion of those records (both electronic AND PAPER HARDCOPIES) without first backing them up in accordance with the provincial laws and policies in place at the time.
There were, nonetheless, some interesting admissions from both LeClair and James – such as a confirmation that they both had paper records in filing cabinets when they left their employment with government, in addition to their emails and electronic files.
Funny how no one ever wants to talk about how and why (and by who exactly) the paper records disappeared….there’s no access to a phoney “standard practice” argument with the deletion of those paper records, as was used by the Defendants (and accepted by the Judges at both the Supreme Court and Court of Appeal) justifying the deletion of electronic records.
Chris LeClair impressed upon members of the committee (a number of times) that our justice system has just ruled that it is ok to delete email accounts – and the records they contain – without first backing them up, arguing in defence of his former boss Robert Ghiz, that what happened to his records is what happens in the normal course of business following “standard practice”. He’s apparently not wrong, given the Appeal Court ruling.
In what I see as a completely offside and immoral attempt to protect the defendants, Judge Campbell ruled that the deletion of Chris LeClair’s and Melissa MacEachern’s records happened in accordance with standard record management practice. The Court of Appeal supported Judge Campbell on this key point.
There are really only two possibilities as to how to make sense out of this legal decision: (1) either both the PEI Supreme Court and and PEI Court of Appeal got it wrong by ignoring the law stipulating that all government records must first be archived before Employee Removal Forms are sent to ITSS with directions to delete electronic records and emails; or, (2) PEI’s judicial system has apparently just established a legal precedent that overrides the legislative requirement to back up government records before deleting them.
PEI’S CONTRIBUTION TO CANADIAN JURISPRUDENCE – A NEW LEGAL PRECEDENT PERMITTING THE DELETION OF GOVERNMENT RECORDS WITHOUT BEING COPIED AND ARCHIVED?
Is it really true – as Chris LeClair said today – that the Justice System in PEI at the highest level in PEI – the Court of Appeal – ruled that to delete all the records of an employee who leaves government without first copying them for the provincial archives is o.k.? That there’s nothing illegal or unethical about such a practice? That it’s “standard practice” within government? LeClair certainly believed so – he suggested the Committee get a briefing on this new legal precedent:
The Appeal Court supported Campbell’s ruling regarding Ghiz and Stewart deleting all those records without backing them up as just normal practice. Here are a few quotes to that effect from Campbell’s ruling:
 I note that the Auditor General concluded in her report that, “When an employee leaves government, normal practice is to have the email account removed.”
 In this case, while the destruction of information was intentional in that it occurred as a result of a deliberate act and not an accident, it occurred in the regular course of business, or as “a matter of standard practice“. It was not an isolated action or one that occurred out of the ordinary course.
 The matter of records management was also addressed. The Auditor General found that not all government records were being managed and safeguarded as required by legislation and policy. She noted that the Archives and Records Act, R.S.P.E.I. 1988, c. A-19.1, requires every public body having custody or control over government records to “prepare a schedule for the retention and disposition of those records”. However she also found that, “When an employee leaves government, normal practice is to have the e-mail account removed. We were advised by ITSS that after a period of one year, an account that has been removed cannot be recovered.”
The Auditor General did say that stuff in blue font, but that particular sentence Campbell picked with his legal tweezers to use in his ruling was sandwiched between two other pretty important statements the AG made which Judge Campbell decided to leave behind. As you can see, there was apparently a very deliberate attempt to avoid drawing any attention to the true contextual and intended meaning of the AG’s statement below concerning the legal requirement to retain records before destroying them…nothing “normal practice” about that:
That’s actually what’s referred to in the legal profession as “sharp practice” and Judges really frown upon lawyers resorting to such unethical practices – we lay folk call it “cherry-picking” for crooked and biased reasons.
It appears that the crooked and biased reason in this instance was to ignore, circumvent, transcend…whatever way you want to look at it….. the law in PEI, and by so doing, establish a new legal precedent as the Court of Appeal has determined it is now considered “standard practice” to delete all the records of anyone who leaves government without actually “printing and storing” those records first, “…in accordance with policy.”
This attempt by our Justice System to excuse the deliberate destruction of scads of important government records by former Premier Ghiz and Neil Stewart in a massive coverup of corruption as “standard operating procedure” is truly despicable.
I wrote a 60 page brief in 2018 filed with Judge Nancy Orr which meticulously details the legislation governing government records, treasury board directives on record information management and the operating policies in place at the time, departmental record management policies, etc. and they all strongly, clearly and consistently FORBID anyone but the Provincial Archivist to destroy government records.
The PEI Court of Appeal has now rendered a ruling that essentially renders all that law, directive and policy that existed and was in force at the time moot.
Let’s be clear – Scot Cudmore, the head of ITSS, told Public Accounts in early 2017 that ITTS had ASSUMED that the Premier and Neil Stewart had copied the documents in compliance with the law when he sent that form to ITSS asking that all the records and accounts be deleted.
Cudmore stressed to Committee members that ITSS would not have deleted the electronic government records in the GroupWise accounts and network drives of those three senior bureaucrats if the technician had realized that they had not been copied for archiving. As Scott Cudmore told members of the Public Accounts Committee on February 1, 2017:
“.…the assumption on the part of IT Shared Services at the time was that records had been retained according to records management policy” [Public Accounts Committee, February 1, 2017, p 106].
Is anyone else as disgusted as I am with this blatant corruption within our political and judicial systems? We can’t stop trying to expose and eliminate it if we are to have a functioning democracy in the future free from corruption.
ADDITIONAL CLARIFICATION FROM THE AUDITOR GENERAL ON HOW THE DELETION OF CHRIS LECLAIR’S AND MELISSA MACEACHERN’S EMAILS BROKE THE LAW
Jane MacAdam: The issue – it’s normal – we say in the report it’s normal practice when an employee leaves government that their email account be removed.
Mr. Palmer: Okay.
Jane MacAdam: That’s normal. In these cases, the authorization to remove those accounts was made by management and that’s in accordance with the policy.
The issue is not so much that the accounts were removed. The issue is that when the accounts were removed there were records – government records – that were not retained. If employees are managing their records properly they would be saving those records – either printing them off and saving the hard copy of what was in the email account or they would be saving them in some other manner. But for these individuals we did not receive any electronic records or any hard copy records.
Mr. Palmer: Chair, can I get clarification on what’s a record to an email?
Jane MacAdam: Well, an email is a record.
Mr. Palmer: Okay.
Jane MacAdam: Not all emails are government records, so there could be transitory records that would just be: See you at the Old Triangle at 5:00 p.m. If it was a personal matter that’s not a government record.
Mr. Palmer: Okay.
Jane MacAdam: We determined that these were, in fact, government records that were not maintained.
Jane MacAdam: What we’re saying in the report is that there were government records that were not retained in accordance with legislation.
Mr. J. Brown: Okay.
Jane MacAdam: We know that to be a fact, because we received emails to and from those individuals that I named that we received from a separate public body. They should have been maintained within that office or within that department because that’s what the legislation requires.
Jane MacAdam: The normal procedure when an employee leaves is that their email account be removed, so that’s standard procedure. The authorization to remove the account is supposed to come from management, so that’s just normal practice.
In these three cases the accounts were removed, we didn’t receive any records for these individuals, and we would have expected to receive records based on our knowledge of the file. I mean, there could be other accounts removed and we didn’t get records, but we weren’t concerned because we couldn’t say that there should or shouldn’t be records. We were just looking for relevant records, and based on our knowledge of the file it didn’t seem reasonable that there would be no records for these individuals. In fact, we determined that there were records. They just weren’t retained by government because we got them from other sources.
Jane MacAdam: It might be. But again, there was more than one person that didn’t have any records, and based on the other issues that we raised in the report about the management of government records, we’re not confident that we received all records.
This issue is one issue with regards to records management, but in the report there are other issues related to records management, like the retention and disposition schedules not being available for all public bodies. There were issues around the Public Archives and Records Office not monitoring compliance with the policies and procedures. They did an assessment in 2009 and only 93% of the public bodies that they received responses from indicated that they even addressed electronic records management. Issues around electronic records management are throughout government.
Jane MacAdam: After a year if an email account is deleted it cannot be recovered.
Mr. Dumville: Okay. You know these emails did exist or these government records which could have been emails, you got them – there’s a sender and there’s a receiver, so possibly you found them in receivers’ and you could re-establish them. Did you receive enough to get the whole picture? Do you feel confident that you know exactly what happened from the information that you did glean?
Jane MacAdam: No, I’m not confident that I received all relevant government records.
Jane MacAdam: Each individual is responsible for maintaining their own records. But
ultimately, each public body in accordance with the Archives and Records Act, I mean, each public body is responsible to maintain records within their own entity with respect to their own affairs.