When public officials withhold or destroy records in Canada, they rarely face consequences

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Variations of the same three words haunt many of Paul Maines’s freedom of information requests to the government of Prince Edward Island: No records found.

Mr. Maines – a business owner hired by PEI to help build an online gambling hub, a governmental effort that later grew into a scandal – has sought documents that would bolster his multimillion-dollar breach of contract lawsuit against the province. Over the years, he has grown increasingly skeptical of these null responses. In 2020, the island’s information watchdog confirmed he was right to be suspicious. In an official report, Karen Rose, then PEI’s information and privacy commissioner, ruled that the government had “deliberately withheld” the fact that certain records he was seeking had, inexplicably, gone missing.

Mr. Maines expected repercussions, both for the people responsible for the missing documents and for the public servants handling his access requests, but he is still waiting three years later. “There absolutely should be consequences,” he said. “What stops them? There’s not even a slap on the wrist.”

A Globe and Mail investigation has found that Mr. Maines’s case is overwhelmingly typical. There is no evidence of a single person, anywhere in Canada, having faced legal consequences for a core violation of freedom of information law. Across all of Canada’s 14 federal, provincial and territorial jurisdictions, information commissioners – the watchdogs responsible for overseeing freedom of information compliance – told The Globe they knew of nobody who had been penalized under these laws for intentionally destroying records or impeding an individual’s access rights.

Freedom of information laws, also known as access laws, are supposed to promote government transparency by allowing anyone to request documents from public institutions, even if those documents would not otherwise be released publicly. Institutions are required to fulfill those requests, with limited exceptions.

The Globe’s Secret Canada project, a continuing investigation into the state of Canada’s freedom of information systems, has found that public institutions across the country are routinely breaking these laws by overusing redactions, violating statutory time limits and claiming “no records” exist when they do.

And these organizations face few – if any – consequences for ignoring the precedents set by courts and information commissioners.

Access laws lay out sanctions governments can use to deter bad behaviour – including, in some cases, jail time. Although known incidents of deliberate document destruction are rare, experts warn that if these penalties are never used and there are effectively no consequences for knowingly violating freedom of information statutes, public servants and political staff may be emboldened to disregard them, further straining Canada’s broken access systems.

As Mr. Maines has grown increasingly frustrated with PEI’s responses, he has taken to petitioning the information commissioner directly, asking for fines to be levied against public servants responsible for handling his requests.

“It’s a slippery slope if there are no consequences,” he said. “There have to be consequences. There has to be a change. The system’s broken now.”

While there is no evidence anyone in Canada has ever been charged with a violation of freedom of information law for destroying documents or impeding access rights, that absence of legal action isn’t for lack of trying.

The Office of the Information Commissioner of Canada, responsible for mediating federal access disputes, has made a criminal referral or recommended an investigation in seven separate cases, according to records previously released in response to an access request and information from spokespeople for the commissioner’s office.

In 2010, for instance, Suzanne Legault, who was information commissioner at the time, found “as a fact” that records held by the National Gallery of Canada had been destroyed during the processing of a request, and that certain employees had deleted e-mail records. “In this case, we did find evidence of the possible commission of an offence,” her letter to then-justice minister Rob Nicholson reads.

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Another referral came about after Shared Services Canada alerted the Office of the Information Commissioner that hundreds of pages of e-mails that should have been released in response to an access request had been omitted and, later, deleted. That request, from 2016, sought e-mails sent, received or deleted by one of the agency’s employees that mentioned federal or provincial Liberal parties. The employee provided the access office with 12 pages of records, but Shared Services’ president’s office conducted its own search and discovered 398 pages of deleted e-mail records.

Other referrals have involved the RCMP’s destruction of the long gun registry and allegations that the Department of National Defence attempted to conceal records “with the intent to deny a right of access” when it was processing access requests related to former vice-admiral Mark Norman.

Despite these referrals, no charges have ever been laid.

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To determine what happened to the Office of the Information Commissioner’s criminal referrals and recommendations, The Globe first reached out to the Attorney-General’s office, which receives criminal referrals from the watchdog.

The Attorney-General’s office redirected The Globe’s questions to the Public Prosecution Service of Canada, which redirected questions to the RCMP.

RCMP spokesperson Robin Percival did not directly answer questions about why none of the criminal referrals had resulted in charges. In an e-mailed statement, she said the police service lays charges “when there is sufficient supporting evidence, and when it is deemed in the public interest to proceed.”

Several of the cases sent to the RCMP were passed along one final time, to the Ontario Provincial Police. Bill Dickson, an OPP spokesperson, said in an e-mail that the service reviews any allegations brought forward, conducts investigations when warranted and lays criminal charges “if there is evidence that a criminal act has been committed.”

The Globe also conducted its own search of federal access violations, since the Office of the Information Commissioner plays no role in criminal matters and a person could have been charged without the office’s knowledge.

The Public Prosecution Service of Canada, the agency that prosecutes offences on behalf of the federal government, said it had located a single access-related charge, in the Îles-de-la-Madeleine, a remote Quebec archipelago in the Gulf of St. Lawrence. That document turned out to be a mislabelled mackerel fishing licence violation.

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In at least two jurisdictions, pursuing access violations seems to be functionally impossible.

Nova Scotia’s laws aren’t clear about who is responsible for investigating or laying charges for freedom of information offences, according to Information Commissioner Tricia Ralph’s 2021-22 annual report, published last year.

Ms. Ralph writes that when her office inquired into “how offences in Nova Scotia could be brought forward for prosecution,” it became obvious that “no one is clearly responsible for the investigation and enforcement” of freedom of information violations in the province.

The story is similar in Nunavut. The territory, with a population of roughly 40,000 people, has a single police force, the RCMP, and a single prosecution service, the federal Public Prosecution Service of Canada. Both have contracts with the territory spelling out what their responsibilities are – and access violations are not among them, according to Information and Privacy Commissioner Graham Steele’s most recent annual report.

“You end up in this loop where there’s really nobody to investigate or prosecute,” Mr. Steele said in an interview. “It struck me quite forcefully that, at least in Nunavut, prosecutions are basically impossible – not just difficult, not just rare, but impossible – because there is nobody who acknowledges that it’s their job to investigate a violation.”

Another complication: There is a natural tension in asking a government to investigate itself, which makes pursuing access-related charges even more difficult.

Even if an investigation and prosecution were to occur, the maximum penalty, according to Nunavut’s law, is a $5,000 fine – and the territory isn’t alone.

In Ontario, the maximum fine is also $5,000. In Nova Scotia, it’s $2,000, though that comes with the possibility of jail time. While every access law in the country has fines for access violations, only six of Canada’s 14 freedom of information jurisdictions provide for the possibility of imprisonment.

To Mr. Steele, the fact that these offence provisions have apparently never been used – or, in his case, are unusable – means they are an “empty threat.”

“My belief was always that the presence of a penalty does not typically deter people. What deters them is the likelihood of being caught,” he said. “But the threat kind of fades to nothing once people realize that, as a practical matter, prosecution is impossible.”

“Access law only works if people know there are consequences for non-compliance,” he added.

Freedom of information violations are also incredibly hard to prove, according to Jill Clayton, Alberta’s former information and privacy commissioner.

Ms. Clayton, who retired in 2022, oversaw a series of investigations that led to successful prosecutions under Alberta’s Health Information Act, and has first-hand experience bringing information-related charges to bear. But even with her experience, and her office’s team of former police investigators and connections to prosecutors, charges related to freedom of information were a bridge too far.

“It was frustration with that that led me to focus on offence investigations in the health system,” she told The Globe. “I could use that tool because the way the legislation is written allowed me to get to investigations where I could prove the offence and get it to prosecutors.”

To bring an access charge, her office would have had to prove that someone had intended to circumvent the law – an extremely high bar.

By contrast, health information systems often generate extensive audit trails – electronic logs of every action taken by a system’s users – that provide ample evidence to be used in an investigation, Ms. Clayton said. The general-purpose information systems used by public bodies, which are probed in response to freedom of information requests, were nowhere near as detailed when she was commissioner.

“It’s really frustrating under FOI. You see things, but you need to be able to prove it,” she said. “Because of the way the legislation is written and the nature of the offences, it’s proven in Alberta – and I suspect for the same reasons in other jurisdictions – to be basically impossible to bring and to get to a successful offence prosecution.”

If no one has ever been charged, Ms. Clayton said, “I don’t think that’s because the system is running along tickety-boo.”

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British Columbia has come the closest of any Canadian jurisdiction to prosecuting an offence directly related to access.

In 2015, the province’s information commissioner’s office received a tip that a ministerial aide had intentionally destroyed records that should have been captured by a freedom of information request from the provincial New Democratic Party. The party had requested records related to women who had gone missing along Highway 16, which has come to be known as the Highway of Tears.

According to a whistle-blower who had been tasked with collecting the documents, the aide, a man named George Gretes, had ordered that certain e-mails be deleted. When the tipster hesitated at his computer, Mr. Gretes allegedly took control and destroyed the e-mails by first deleting them, then removing them from a deleted items folder and then purging those deleted e-mails from the server. The affair came to be known as the “triple-delete” scandal.

The Globe reached out to Mr. Gretes for comment several times, but he did not respond.

While Mr. Gretes was eventually charged and fined under access law, it wasn’t for destroying records – which he maintained he hadn’t done – or impeding someone’s right of access. At the time, willfully destroying records and impeding access weren’t offences under B.C.’s freedom of information law. (The law has since been amended.)

Instead, Mr. Gretes pleaded guilty to one of the few offences in B.C.’s access law at the time: lying under oath to the Information and Privacy Commissioner’s investigators. He was fined $2,500, half the maximum allowed by law at the time. (The maximum has since been increased by a factor of 10, to $50,000.)

Sometimes the violations laid out in access laws aren’t enough to capture the egregiousness of an offence, or are otherwise a poor fit. In those cases, investigators have turned to sanctions in the Criminal Code.

In Ontario, David Livingston, the former chief of staff to premier Dalton McGuinty, was sentenced in 2018 to four months jail time for his role in the destruction of records that detailed the high cost of a government decision to cancel two natural-gas plants. Despite the Crown’s assertion that he had wiped government hard drives to prevent records from being captured by future freedom of information requests, he was charged with crimes outside of the province’s access law: “attempt to commit mischief to data” and “unauthorized use of a computer.”

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While charges related to freedom of information are rare worldwide – including in the United States, where public records laws have existed for decades longer than they have in Canada – there is one jurisdiction where access violators are regularly sanctioned: India.

Unlike in Canada, where freedom of information sanctions must involve the police, prosecutors and the courts, Indian information commissioners have the power to levy administrative penalties on public officials directly, or compensate requesters with funds from the offending public body.

According to Anjali Bhardwaj, an activist and co-founder of Satark Nagrik Sangathan, an Indian civil society group focused on government transparency, commissioners can impose these penalties if information is delayed, denied or destroyed without reasonable cause, or if false information is provided.

Penalties are issued in roughly 5 per cent of completed complaints and appeals, she said. Fines for delays, for instance, amount to 250 rupees (roughly $4) a day, to a maximum of 25,000 rupees ($400).

While Ms. Bhardwaj said these penalties are not applied often enough, she believes they’re an essential aspect of the Indian access regime.

“What we have been seeing is that the penalties clause is really what gives the law its teeth,” she said. “In fact, when the law got passed 18 years ago, in 2005, there was a great deal of apprehension amongst public information officers that if they didn’t share information, penalties would be levied on them.”

Without sanctions, India’s access system would be toothless, Ms. Bhardwaj said.

“Unless they penalize, and unless they give compensation properly in keeping with the law, the right to information law becomes ineffective.”

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A political scandal in Newfoundland gave rise to the country’s most transparent FOI system

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