13 June 2012

The Vanished Records #nlpoli

Under changes to the province’s access to information law, briefing notes for cabinet ministers will be kept secret for five years.

Sounds like it might make some sort of theoretical sense.  Wait five years and then you can get the briefing note a minister used.

That’s hardly too much to ask, especially if government officials are just too busy to handle all those troublesome requests for information.


Well, what if the records don’t last that long?

The Management of Information Act is a 2005 law that sets up the rules by which all government departments manage the records they create during the day-to-day running of government.

The Act requires that a designated cabinet minister is “responsible for the development and implementation of a management program for government records in the province….”.  For public agencies other than a department, the “permanent head” is responsible for managing the organization’s information.

The Act defines “records management” – that is what the minister is responsible for -  as “a program of record and information management instituted to provide an economical and efficient system for the creation, maintenance, retrieval and disposal of government records…”.

Read that last bit again.


The word appears no less than 11 times in the act.  Another word – retention - appears only five times.

There’s also a committee of senior public servants that the government can appoint under the Act to give advice.  What’s interesting is that the committee is set up so that it “may” do something and that a minister “may” follow their advice.

“May” is not “shall”, though and the Act uses words very carefully. While the minister may take advice from the committee the minister shall – as in must – manage the records.

So if the minister sets up a records management plan that includes the complete destruction of different types of records under certain conditions, then that’s really all there is to it. 
But wait, there’s more.

Under an amendment made in 2008, all cabinet records are the responsibility of the Cabinet Secretariat.  The 2008 amendments gave a pretty broad definition to what a cabinet document is. And they allowed for the easy destruction of what the Act calls “transitory records”.  Those are government records “of temporary usefulness in any format or medium having no ongoing value beyond an immediate and minor transaction or the preparation of a subsequent record.”
Temporary usefulness.

Like say a briefing note prepared for a cabinet minister who is taking  over a department or who will need it in the House of Assembly.

Back in 2008, the changes to the Management of Information Act seemed pretty innocent.  Cabinet ministers who today insist that Bill 29 is reasonable told us all back in 2008 that the amendments to the Management of Information Act were just routine, normal and innocuous.

In hindsight, though, and in light of the changes coming to the access to information law, they look a wee bit different.

You can’t get records under any access to information law if the records don’t exist.  Under the new “access law’, you won’t even be able to find out if the document ever existed in the first place.

Funny how these things come together.