Finance Minister Bill Morneau’s chief of staff, one of several officials that Jody Wilson-Raybould says wanted her to let SNC-Lavalin off the hook, broke British Columbia’s freedom of information law when he mass-deleted email while working as a senior aide to Christy Clark in 2017.
In her Jan. 29 decision, Information and Privacy adjudicator Celia Francis ruled that the Office of the Premier failed to respond “openly, accurately and completely” under the law.
Ben Chin was Clark’s executive director of communications when, on April 6, 2017, the Ombudsperson released a damning report about the unjust 2012 firings of drug safety researchers in the health ministry. theBreaker.news asked for all of Chin’s email for a 12-hour period on the day that the report dominated provincial news. But, after the provincial election, Clark’s office released only three pages: an op-ed ghost-written for Clark about softwood lumber exports to the U.S.
In mid-June 2017, theBreaker.news sought Chin’s message-tracking logs. The 17-pages of metadata contained proof that a “recover deleted items” folder included email that should have been disclosed to theBreaker.news. Nobody in Clark’s office searched the folder before its contents were deleted and saved to a backup server.
On July 18, 2017, the NDP’s John Horgan succeeded Clark as premier. In an awkward twist, Horgan’s staff went to work to defend the conduct of Chin, even though Horgan constantly skewered the BC Liberals for what he called a “culture of deception, a culture of deceit, a culture of delete, delete, delete.”
Francis noted that the government’s own guide on transitory records directs employees to preserve transitory records that are relevant to an FOI request or legal discovery. In her 2015 report, then-Commissioner Elizabeth Denham wrote that “once a public body receives an access to information request, it must keep all records, including both transitory and non-transitory records, in its custody or under its control. If these records are responsive, the public body must produce them unless specific exemptions to disclosure under FIPPA apply.”
The Office of the Premier argued that Chin properly disposed of the transitory email and, she wrote, “also suggested that the emails would be ‘of little or no value’ to the journalist. However, whether the emails were transitory or valuable to the journalist is irrelevant, in my view. The journalist did not request emails pertaining to a specified subject. He requested all of the Executive Director’s emails for a 12-hour period. As such, all of the Executive Director’s emails for that period were responsive to the request, whether transitory or valuable.”
Chin’s affidavit said that he regularly deleted emails he considered transitory, but would not have searched the recovered deleted items folder because he felt those emails were transitory and properly disposed.
Though Francis found the Office of the Premier broke the law, she followed the rulings of two previous commissioners and did not order the premier’s office to find the deleted email.
“The Office of the Premier’s evidence has persuaded me that it would be a complex, onerous and costly business to restore the requested emails. In the circumstances of this case, I am satisfied that it is not reasonable to require the Office of the Premier to restore the email backups in order to respond to the journalist’s access request.”
Chin left the B.C. government with a $159,533 golden parachute after the change of government and found a new job in October 2017 as Morneau’s senior advisor. He was promoted to chief of staff in May 2018.
Ex-Attorney General Wilson-Raybould testified Feb. 27 to the House of Commons justice committee that Chin contacted officials in her office four times between Sept. 6 and 20, 2018 to talk about SNC-Lavalin’s desire to avoid a trial over the payment of $48 million in bribes to the brutal Gadhafi regime in Libya. Chin’s last contact came the day after Wilson-Raybould told Morneau to leave her alone.
“[Morneau] again stressed the need to save jobs and I told him that engagements from his office to mine on SNC had to stop, that they were inappropriate,” said Wilson-Raybould.
theBreaker.news sought comment from Chin on both his email purge and Wilson-Raybould’s testimony. Instead of answering, Chin referred the query to Morneau press secretary Pierre-Olivier Herbert, who avoided the question about Chin breaking B.C.’s FOI law.
“It is Minister Morneau’s responsibility to protect and promote the creation of jobs across Canada and he will continue to raise such important issues with all his cabinet colleagues,” Herbert wrote. “At no time did Minister Morneau nor members of his office pressure the former Minister of Justice and Attorney General into making any decision regarding the prosecution of SNC-Lavalin.”
Federal lobbying records show that SNC-Lavalin CEO Neil Bruce communicated with Chin on Sept. 18 and Nov. 19, 2018. Clark hired Chin, the former spinner for Ontario Premier Dalton McGuinty, in late 2012.
Meanwhile, British Columbians keep waiting for Horgan to fulfil a 2017 campaign promise to enact a duty to document law and impose fines for those caught deleting or destroying government records.
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