B.C. tables new 'duty to document law' in wake of triple delete scandal

British Columbia will be the first province in Canada to adopt legislation requiring public servants to document key government decisions, following two damning reports into the so-called triple delete scandal.

Finance Minister Mike de Jong said the "duty to document" law introduced Wednesday will provide strong oversight and consistent practice across government.

"These amendments will ensure the Information Management Act remains the strongest legislation of its kind in Canada," he said in a statement.

An all-party government committee called for duty to document provisions last year in a review of the province's Freedom of Information and Protection of Privacy Act.

The new rules follow high-profile cases where potentially sensitive government documents were "tripled deleted", or where decisions delivered orally were never recorded.

Triple deleting investigations

B.C.'s former information and privacy commissioner, Elizabeth Denham, launched a probe in 2015 after a whistleblower said his former supervisor in the Transportation Ministry deleted documents requesting information about an investigation into missing and murdered women along the Highway of Tears in northern B.C.

Denham wrote a highly critical report highlighting the government's failure to keep adequate email records or document searches and the wilful destruction of records in response to a freedom-of-information request.

Denham's report, Access Denied, revealed the practice of "triple deleting", in which an email is moved to the computer system's "deleted" folder, expunged from the folder itself and then manually erased from a 14-day backup system.

Following the report, former information and privacy commissioner David Loukidelis was tasked with reviewing the government's record-keeping practices.

He recommended a complete overhaul of the transitory records policy, which allowed politicians and officials to delete documents, especially emails, they consider inconsequential.

Loukidelis recommended public service employees who destroy records or help others destroy records in order to evade requests for access to information should be disciplined or fired. Loukidelis says they also should face charges under FOI legislation.

Still discretionary, says critic

De Jong said the proposed legislation, called Bill 6, Information and Management (Documenting Government Decisions) Amendment Act 2017, addresses the recommendations made by Loukidelis.

But Vincent Gogolek, executive director of B.C.'s Freedom of Information and Privacy Association, said the proposed law does not come close to meeting the recommendations.

"It's not even half measures," Gogolek said.

"What the minister is proposing is a pathetic excuse for a response to massive pressure for action on this issue," said Gogolek in a statement. "A legal duty uses the words 'must' or 'shall', not the word 'may'."

"The bill introduced today does not such thing, merely giving the Chief Information Officer to discretion to bring in 'directives and guidelines' on the creation of adequate records. Furthermore, the Information Commissioner will not be able to review any of these decisions, contrary to the recommendations of the Special Legislative Committee," he said.

De Jong said he disagrees with Gogolek.

"It's the first time any jurisdiction in this country, I'm aware of, has endeavoured to codify the obligation to keep these records," he said.