Ombudsman sides with NDP in complaint over premier's mobile-phone records

Manitoba's ombusdman has decided in favour of an NDP complaint against the Progressive Conservative government's initial refusal to release Premier Brian Pallister's personal cellphone and text-message records.

In January, the provincial NDP used freedom-of-information legislation to request records of Pallister's local, national and international mobile phone calls and text messages dating back to May 3, 2016. 

The executive council — essentially, the Tory cabinet office — refused, claiming personal records are exempt from freedom-of-information legislation. The NDP then complained to the ombudsman, whose subsequent conversations with the executive council led to the release of mobile-phone records in July. 

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In a decision issued Thursday, the ombudsman supported the NDP's complaint, noting that records related to government business are subject to freedom-of-information legislation "regardless of where or how created" and are under government control for the purposes of the legislation "even when they are housed on a personal device."

The ombudsman noted the provincial freedom-of-information manual makes it clear that records to the premier or cabinet ministers "include all records made or received in the course of carrying out portfolio responsibilities."​

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The NDP initially sought Pallister's personal mobile-phone records in an effort to shed light on how the premier communicates while he visits a vacation property in Costa Rica.

The records obtained by the NDP in July revealed that during the six weeks Pallister spent in Costa Rica in 2016, he only spoke twice to a government employee. Both conversations occurred on Dec.19, during the height of negotiations between the provinces and Ottawa over a new health accord.

The ombudsman noted the executive council released the records as a result of its investigation, which is now concluded as a result.

Chisholm Pothier, Pallister's communications director, said he's pleased the ombudsman took note his government released the records before the final report into the complaint was issued.

"The original request was denied, but we revised that. This was before the ombudsman's report," Pothier said in an interview Thursday.

Pothier also noted that Pallister requested the formulation of a policy governing the use of personal mobile phones and email accounts.

'It wasn't his wife's usual phone'

NDP justice critic Andrew Swan said that policy is mere common sense asserted the only reason the Pallister government changed course on the release of the phone records is it became aware the ombudsman was going to rule against it.

"It's a clear rebuke from the ombudsman to the premier. The ombudsman has clearly found the premier was wrong to try and hide his communication and it's clear the government knew this was coming," Swan said in an interview Thursday.

Swan also asserted the mobile phone registered to Esther Pallister, the premier's wife, was used almost entirely for government business, in Manitoba and Costa Rica, based on the fact only eight out of 82 calls made on that phone were deemed by the ombudsman to fall outside the scope of freedom-of-information legislation.

"It wasn't his wife's usual phone for calling friends, doing her own business. It's pretty clear the cellphone was being used in an attempt to obscure the premier's activity and circumvent Manitoba's freedom-of-information laws,"  Swan said.