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Freedom of information now covers municipalities, colleges

Justice Minister Jordan Brown enters the P.E.I. legislature before question period on Thursday.
Education Minister Jordan Brown. - Mitch MacDonald

The legislature of P.E.I. passed amendments to its Freedom of Information and Protection of Privacy legislation on Tuesday night, which will allow public information requests to be made of Island municipalities and post-secondary institutions.

But some MLAs questioned whether the legislation might still allow government officials to skirt accountability.

The amendments would apply to the municipalities of Charlottetown, Summerside, Stratford and Cornwall, as well as Holland College, the Collège de l’Île, and the University of Prince Edward Island. The amendments were passed unanimously, prior to the closing of the spring session of the legislature.

Members of the public will be able to submit requests for records of municipalities and post-secondary institutions as of April 2019, although records from before this time can not be requested.

Some MLAs raised a concern that the amended legislation might not adequately cover government records that were shared using either personal e-mail accounts or mobile messaging apps.

"We're all familiar with the case in the United States where Hillary Clinton was using a separate e-mail server. I believe the allegations were along the lines of trying to avoid things like Freedom of Information requests," said Rustico-Emerald MLA Brad Trivers.

Education Minister Jordan Brown, whose office oversees the Archives and Records Act, responded that any record that dealt with government business would be covered FOIPP.

"Whether you do use your business on a Gmail account or whether you do it on a government account does not matter. A government record is a government record. You have obligations to produce them."

In response to a question from Charlottetown-Parkdale MLA Hannah Bell about recording government records exchanged through mobile or Blackberry messaging apps, Brown said provincial, municipal or post-secondary officials would be expected to record these messages in the proper record system.

"If I'm using Gmail, if I get an e-mail on a work-related purpose, what I'm supposed to do is forward that e-mail, for instance, to my work e-mail account so that I can print it off and file it in a record system,” Brown said.

Bell referred to a principle of a ‘duty to document’ which is a requirement to record government deliberations and decisions. Bell said this provision was lacking in the Archives and Records Act, which covers archiving of documents and defines what is considered a government record.

The subject of ‘duty to document’ received significant attention in British Columbia in 2015 after a government employee revealed that political staff of the B.C. government had “triple deleted” documents that had been sought under a freedom of information request.

"If we don't have the matching legislation and recommendations in place, then there is a large gap in our accountability and transparency from senior officials in their decisions," Bell said, referring to duty to document provisions.

Brown said the Archives and Records Act has recently been reviewed and amended.

"A great deal of work has been done since in terms of an increase in the budget to that office. A lot of training is just beginning,” Brown said of the act.

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