How to keep secrets from the public: Don’t write anything down

New Brunswick Premier Blaine Higgs stood alone on the podium on the afternoon of July 15 as he announced major changes in the province’s health care leadership.

In a matter of minutes, Higgs dropped three bombshells: he shuffled the provincial health minister, fired the CEO of Horizon Health Network, and fired elected board members for both health boards, replacing them with trustees.

It was a big shock and it was clear that the decision came from the Prime Minister himself.

“This isn’t meant to be permanent, but it’s meant to get results,” Higgs said of the day, referring to the two bodies of public health officials. “And now I need to see results, and I want to remove the barriers and obstacles so our healthcare professionals can achieve them.”

But when CBC News filed a request for information with the prime minister’s office, asking for records of the prime minister’s decision to make changes to the way health services are run, a search turned up no records – nothing to help the public explain how Higgs got there such a momentous decision.

This is one of several instances where the Higgs administration has failed to document its work, which New Brunswick government officials are not required by law to do.

The concept is called mandatory documentation and is something that advocates of transparency in Canada have been calling for for years.

Keeping records of a government’s decision-making is at the heart of good democracy, according to Caroline Maynard, the federal information officer.

When the public can’t get information from the government, they turn to unreliable sources, according to Federal Information Commissioner Caroline Maynard. (Government of Canada)

“What we’re seeing is if Canadians aren’t getting the information from our government or from reliable sources, then they’re going to go to unreliable sources,” Maynard said.

“If our government wants their citizens to trust them, I think they need to provide them with more and more information so that they can see for themselves what decisions and actions are being taken and what the facts and background information are based on.”

When asked about the concept of the duty to document, Higgs said he doesn’t think it’s realistic for him to write down in detail every conversation he has with people.

“Now if I go back to the office and meet with a deputy minister in a certain department, I think we could talk about anything… that would just be everyday,” he said this week.

“But I don’t write down every word they say or what they say.”

“Verbal discussions” but no notes

When asked about documentation requirements, a New Brunswick government spokesman said government employees “are required to prepare and maintain information about their organization’s business and activities in accordance with the New Brunswick Archives Act and other applicable laws.”

But New Brunswick does not have a documentation requirement by law, nor was it a major issue in the last review of the province’s Information Law and Privacy Act.

In some areas, it leaves few opportunities for the public to understand how decisions are made.

Last year, CBC received internal government emails related to a controversial letter from New Brunswick Secretary of Natural Resources and Energy Development Mike Holland.

CBC News obtained notes of the process behind a letter Mike Holland sent to Natural Resources and Energy Development’s Energy and Utilities Board, but they don’t reveal how the government became aware of the issue in the first place. (CBC)

The letter was addressed to the Energy and Utilities Board and expressed support for Irving Oil’s request for an expedited Board hearing on its request for higher oil margins.

Although the letter had Holland’s name on it, internal government records showed that the letter was written by a team of officials and sent to the prime minister, not Holland, to decide whether to send it.

But the few pages of records handed over by the government do not explain how the matter came to government attention in the first place.

CBC turned to the New Brunswick Ombudsman, the body that handles complaints about the right to information in New Brunswick. Ombudsman staff noted talks were taking place within the government, but nobody appeared to be writing anything, according to a letter sent to CBC earlier this year.

“The department has informed the investigator that there have been oral discussions on this matter, but these discussions have not been documented or recorded,” the Ombudsman’s letter said.

Since public bodies are not required to keep records of their work, the Ombudsman found that the government was not guilty of failing to document the discussions.

Few records of the decision to oust Top Mountie

Last year, CBC asked for records related to the government’s decision to evict the province’s top Mountie, Larry Tremblay.

The Department of Justice and Public Safety initially refused to provide any records to CBC, arguing that disclosure could “damage” relations between the province and the federal government, and released several pages only after CBC appealed to the Ombudsman had inserted.

But the records do not explain how the government concluded that it no longer had confidence in the commander of the New Brunswick RCMP.

Here, too, the ombudsman established that discussions were taking place and that no one was keeping records. A letter from the Ombudsman’s Office sent to CBC last month describes how senior officials involved in the matter were asked to search their own records to find relevant documents.

The New Brunswick government ousted Larry Tremblay, the province’s former top mountie, in 2021. (Ed Hunter/CBC)

“The department confirmed to this office that there were phone calls between management with the department and federal officials to discuss this matter during the time period specified in this request, but stated that it had no other records documenting those phone calls, such as: . B. e-mail requests for meetings, calendar invitations, electronic meeting requests and the like,” says the Ombudsman’s letter.

When asked if the intention was not to always write things down, Higgs said he wanted people to “be able to speak openly and freely about their ideas.”

“Because every idea that might come out, you read about it the next day, which really wasn’t a thought or a no-thought,” Higgs said.

“I think it’s fair to say that’s always in the back of your mind when you’re having discussions, but it’s not an intended process. It’s like many things we do through verbal discussion. A lot of things we do just by talking to each other in the department heads with different ministers and different people in the process.”

Pandemic exacerbated problem, Commissioner says

Proponents like Jason Woywada describe situations like this as “verbal government,” in which governments fail to keep records that might be accessible for information requests in the future.

“The fact that a prime minister or a member of cabinet or government says they made a decision based on a phone call leads us to ask: how do we know that’s the right decision?” Woywada said.

“Where is the written documentation to support this? What information was conveyed in this communication? This is important.”

Woywada is executive director of the Freedom of Information and Privacy Association in British Columbia, a province that introduced record-keeping legislation in 2017.

But Woywada does not see the changes as fulfilling the requirements of a documentation obligation. He said it might prevent someone from deleting information once a request for information has been made, but it doesn’t prevent someone from not making a record for fear someone might make a request for it.

He would like to see responsibility shifted within governments to how to properly document decisions.

Working during a pandemic has exacerbated the problem, according to the federal information officer. Whether people are working from the office or from home, Maynard said federal officials should find a way to keep records when decisions are made.

But she also thinks it’s a cultural issue, with officials deciding what the public should know.

“Unfortunately, the best legislation that you can have is not going to solve this problem if people don’t have a sense of duty to create documents for people to access,” Maynard said.

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