16 December 2019

Lomond cleared by Citizen's Rep of wrongdoing in email deletion #nlpoli

In a report on his investigation, Citizen's Representative Barry Fleming said that while deputy minister Ted Lomond had directed the deletion of a single email related to Carla Foote's move from Executive Council to The Rooms, Lomond did so believing it was a transitory record that could be deleted under government records management rules. 
Fleming found that the email at The Rooms was not deleted.  He did not find there was a widespread practice of deleting emails in Lomond's department.

Ted Lomond
Citizen’s Representative Barry Fleming cleared deputy minister Ted Lomond of wrongdoing in the deletion of an email related to the transfer of Carla Foote from the position of associate secretary of cabinet for communications to the job of executive director of marketing at The Rooms.

The report into the investigation, dated 29 April 2019, said that,  while he concluded that Lomond directed that an email be deleted, Fleming could not “find that [Lomond’s] instruction or intention was to improperly delete [sic] that e-mail and letter.”
Fleming wrote that there “is enough evidence to suggest that [Lomond] considered the e-mail and letter to be a transitory record and therefore could be deleted.”  Fleming noted that “[we] found no evidence to suggest that the deletion of emails was a widespread practice.”
Under the Management of Information Act, "transitory record means a government record 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."
Section 5.4 of the MIA says that "transitory records may be disposed of when they are no longer of value, and shall only be disposed of through means which render them unreadable, including secure shredding or in the case of electronic records, secure electronic erasure."

The Office of the Chief Information Officer says that a transitory record would include the draft versions of records the signed version of which has been retained, as well as the electronic versions used to transmit the draft from one person to another."
In the report, Fleming said that the executive assistant to The Rooms CEO Dean Brinton had not deleted the email. “Indeed,  Brinton’s Executive Assistant indicated that this was the only time she had received an instruction from Mr. Lomond’s office to delete an e-mail.”
While Lomond’s EA did not recall specific details of what happened on June 15, 2018,  Fleming said she “did state that Mr. Lomond was a stickler for having all employees delete transitory records. She indicates that if she had communicated with Mr. Brinton's Executive Assistant to delete e-mails, it was a reference to ones which are transitory records. She doesn't recall Mr. Lomond ever directing her to delete substantive e-mails.”
Fleming noted that “Mr. Lomond’s evidence on this issue was quite candid. He stated that he knew the decision conveyed in the e-mail and attached letter might be controversial and subject to an access to information request. Having that in mind he wished to ensure that only proper e-mail remained. He states that he continually reminded staff to delete transitory records and that this process is in keeping with best practices for e-mail storage.”
Fleming said that the “professionalism exhibited by all public employees we encountered made the conduct of this investigation easier than it might otherwise have been.”
Fleming’s report on Christopher Mitchelmore, presented in the House of Assembly, contains a reference to another investigation into the deletion of an email without identifying Lomond as the subject of the investigation. 
Fleming investigated Lomond for the same five accusations as the ones contained in the Mitchelmore report. On the other four, Fleming accepted Lomond’s “evidence that during all relevant time he was conveying information from Executive Council and his Minister to the Chief Executive Officer and Board of Directors of the Rooms Corporation. Lt is clear that he was not the directing mind in any of the decisions that precipitated these allegations.”
“ A deputy minister who follows the instructions of his minister and central agencies of government cannot be said to have grossly mismanaged his executive responsibilities,”  Fleming wrote.
On Friday, CBC reporter Peter Cowan tweeted that after "the Mitchelmore report found that emails were deleted, I've asked the Information and Privacy Commissioner to investigate whether that broke the rules" based on an access to information request Cowan filed in October 2018.  
While Cowan's tweet incorrectly refers to emails (instead a single email) and that they had been deleted,  the CBC story on the request to Commissioner responsible for access to information appeals refers specifically to one email.  The email in the department was deleted but the one received by The Rooms was not. 

Note:  Fleming's report consistently presents the word as "e-mail" while SRBP uses "email".