Annual Report: 2004-2005

The complaint arose from the responses by the Department of National Defense (ND) to requests from two individuals for access to records prepared for, or emanating from, so-called "M5" meetings. "M5" was a recurring meeting involving the then Minister of Defense Art Eggleton and five other officials (Chief of Defense Staff, Deputy Minister, Executive Assistant, Director of Operations and Director of Communications).

In response to both requests, ND denied having any records relevant to the requests. One requester complained to the Information Commissioner, the other did not. However, once the Information Commissioner learned that the same response had been given to two requesters, the commissioner investigated both responses.

During the investigation, many hundreds of records relevant to the access requests were uncovered. Some 650 records were found in the minister’s office. These included: notes taken at M5 meetings by the minister’s exempt staffers; agendas; and scheduling records. Some 750 records were found elsewhere in ND including: briefing documents, charts, maps, satellite images and reports.

During the investigation, ND processed and released (subject to exemptions) all M5 records which were located, except for the records which were located in the former minister’s office. The commissioner found that all the exemptions applied to the released records were justified. With respect to the M5 records found in the minister’s office, ND took the position that they were not subject to the right of access.

In ND’s view, although the Department of National Defense is subject to the Act, the office of the Minister of National Defense is not a component part of ND and, hence, is not subject to the Act.

1. Were the false answers intentional?

2. Were the M5 records which were held in the minister’s office under the control of ND for the purposes of the right of access set out in section 4 of the Access to Information Act?

3. If so, do any exemptions or exclusions apply to justify a refusal to disclose the requested records?

4. Was the management of M5 records appropriate?

The false answers to the access requests resulted, in the commissioner’s view, from inaccurate and misleading information about the M5 process being given to the department’s access to information professionals by the offices of the Minister, Deputy Minister and Chief of Defence Staff. As well, the commissioner attributed the false answers to the failure by the department’s access to information professionals to play an appropriate challenge function. Given the role, composition and frequency of M5 meetings, the commissioner found that there should have been a very high degree of skepticism in the access to information unit concerning the "no records" responses it received from the senior officials.

The commissioner concluded that the M5 records held in the minister’s office were under the control of ND for the purposes of the right of access. In coming to that conclusion, he took into account the factors discussed in case summary #1.

The commissioner agreed that all exemptions and exclusions put forward by ND, in respect of the records held in the minister’s office, were justifiable. For example, the commissioner agreed that the notes taken at the meeting by exempt staff members qualified for exemption under section 21, as accounts of "consultations or deliberations involving officers or employees of a government institution, a minister of the Crown or the staff of a minister of the Crown."

During this investigation, it became clear that there were serious shortcomings in the state of knowledge of M5 members about records retention and disposition rules and about the basics of good records management practices. First, information was destroyed in contravention of the National Archives Act. In particular, some agendas of M5 meetings were disposed of by M5 members immediately after the meetings on the mistaken assumption that the records were transitory and, hence, covered by the National Archivist’s blanket authorization for destruction of transitory records. In fact, agendas would only qualify as transitory if they were permanently recorded and preserved in another record such as M5 meeting minutes. Since no minutes were kept, the agendas were not "transitory" and at least one copy should have been preserved.

Second, notes taken at M5 meetings were wrongly considered "personal" and some were destroyed without authorization of the minister or the National Archivist. None of the notes were included in properly indexed and accessible records systems. This shortcoming in knowledge and practice is surprising in light of the fact that Treasury Board has issued government-wide guidance on the proper treatment of notes taken at work. The guidance is contained TBS Implementation Report No.67, September 17, 1999. In fact, Appendix B to the IR is devoted to explaining the meaning of "transitory records" and a number of examples or scenarios are included. Scenario E reads as follows:

"You keep a notebook as an ongoing record and reminder of your daily activities. The notebook contains information related to meetings and presentations you have attended as well as information; your lunch dates and dentist appointments. Any information in the notebook that contributes to the documentation of a program or activity should be copied to the departmental record in a timely manner. Once that has been done, you may dispose of the notebook at your discretion. If the notebook contains information relevant to an Access to Information request received prior to its disposal, it must be included in the records reviewed for responding to the request."

Third, records associated with M5 should have been tracked to show their connection with M5. For archival and accountability purposes, good records management practices require not only that records be kept (we know these records exist in indexed files), but that the use of the records (i.e. for discussion at M5) be tracked and recorded.

Fourth, inadequate records were kept to document the decisions, considerations and activities of M5. Government information management policy, and the very traditions of public service, require that adequate records be kept to document government decisions, considerations and actions. For example, the most recent version of the government’s Policy on the Management of Government Information (May 1, 2003) is not restricted to government institutions as described in the Access to Information Act. Rather, the policy applies to the Government of Canada as a whole as is clear from its "Policy Objective" and definition of "government information". The policy makes it clear that there is an obligation, inter alia, to create the records necessary to:

"document decisions and decision making processes to account for government operations, reconstruct the evolution of policies and programs, support the continuity of government and its decision-making, and allow for independent audit and review." (paragraph 2.2(d))

The policy also makes clear that there is an obligation on government to:

"manage information regardless of its medium or format, to ensure its authenticity, accuracy, integrity, and completeness for as long as it is required by the National Archives Act, National Library of Canada Act, Privacy Act, Access to Information Act, specific departmental statutes, and other laws and policies." (paragraph (e), p. 3)

The commissioner expressed the view that the very notions of good, accountable governance presuppose the creation and maintenance of adequate, accurate records. Certainly, the whole scheme of the Access to Information Act depends on records being created, properly indexed and filed, readily retrievable, appropriately archived and carefully assessed before destruction to ensure that valuable information is not lost. So, too, is our ability as a nation to preserve, celebrate and learn from our history. And, of course, good decision-making by government presupposes the existence of a well-documented body of precedent and expertise.

The commissioner concluded that, at a minimum, the following records should have been generated and maintained as part of the support for M5 meetings:

1. Agendas

2. Minutes

3. Records of decision

4. Records of documents used and tabled

5. Records of attendees

The evidence of General Baril, then Chief of the Defense Staff, supports the view that such record-keeping would not have interfered with the informal, ad hoc nature of M5. In this regard, General Baril testified:

Q.: "There are two things, General, I would like to ask you as we finish. The practice that seems to have developed around M5 of keeping it very informal and not having a written agenda, not having any notation of subject matters at all, what is your personal feeling about the prudence of that approach?

A.: That’s a bit of a loaded – no, interesting question. On one side, politicians are politicians. And I think if I want to keep this very open-minded exchange between me, and the Minister and the DM, I think we’ve got to be…Now, I personally understand.

On the other hand — and I think you suggested the last time that we met here for record purposes — it would be quite easy to have a system in place to make it easier to track for the population of Canada, for the history of our nation, where are we going in the decision-making process, because there are some pretty difficult decisions that will start, originate or finish in those meetings. And it would be much easier to track in five years, or two years, or 20 years from now how it happened. A fairly easy system could be put in place without creating any document, or not very many.

But I personally feel that the Minister’s office should be the lead and should tell us to do that. He runs the department. He is accountable to the Government of Canada. And if it would be his choice to have an easier access to what is going up there, according to the law of the land — I’m not a specialist in the law of the land — probably an easy system could be put in place."

In light of the foregoing, the Information Commissioner made recommendations to the Minister of National Defense, including:

1. the M5 records held in the minister’s office be disclosed, subject to applicable exemptions and exclusions;

2. ND’s access to information professionals be given direction concerning their challenge and follow-up role to ensure proper searches; and

3. ND follow the government’s information management policy for all its senior level meetings and committees, including the preparation of agendas, minutes and ensuring paper flow tracking.

The minister refused to accept the recommendations and, with the consent of the requester, the commissioner has asked the Federal Court to review the minister’s decision to refuse requested records.

Regrettably, there is no jurisdiction for the Federal Court to review the minister’s refusal to follow the government’s records management policy for the future. The refusal cries out for review by the President of Treasury Board, taking into account his obligation under paragraph 70(1)(a) of the Act to:

"cause to be kept under review the manner in which records under the control of government institutions are maintained and managed to ensure compliance with the provisions of this Act and the regulations relating to access to records."

ND’s refusal to agree to create and maintain appropriate records should also be taken up by Parliament.

A cumulative index of Annual Report Case Summaries from 1993-94 is available on request or at the Commissioner’s website: www.infocom.gc.ca.