The BC government erased back up tapes containing MLA emails from 2001 to 2005, including those of BC Liberal Premier Gordon Campbell and cabinet ministers
"Ooops! I accidentally erased the tapes."
In an episode reminscent of the late Rose Mary Woods, President Richard Nixon's secretary who "accidentally" erased a crucial segment of a White House tape recording following the Watergate break-in period, BC Supreme Court heard that the BC government has erased back up tapes of emails from 2001 to 2005.
That means no possibility of the defence for David Basi, Bob Virk and Aneal Basi obtaining the emails to prove their innocence of corruption charges related to the sale of BC Rail.
The Globe and Mail's Mark Hume was the only journalist present for yesterday's hearing and reports that defence lawyers were "very troubled" when BC government lawyer George Copley told Justice Elizabeth Bennett the tapes were erased and urecoverable.
Regrettably I was travelling and not in attendance but a reliable observer has filled me in considerably on the events of the day and I am indebted for the following account:
The defence has served affidavits to 33 people employed or previously employed by the Campbell government - from the period of June 5, 2001 to the point where employment ended - for all electronic records (email and blackberry) specifically related to:
• Email/BB exchanges prior to the sale of BCR
• The Divestiture of Roberts Bank
• Cancellation of the Port Subdivision
Some of the individuals include:
Office of the Premier: Gordon Campbell, Chief of Staff Martyn Brown, former press secretary Mike Morton, former senior deputy minister Ken Dobell, current senior deputy minister Jessica McDonald, Yvette Wells - former Director of the Crown Agencies Secretariat, former deputy minister Brenda Eaton,Cynthia Haraldson, former deputy communications director Dave Cunningham, current deputy chief of staff Jay Schlosar, current deputy chief of staff Lara Dauphinee, along with other employees of Campbell's officeand government ministries:
Public Affairs Bureau
Ministry of Finance - specific people
Ministry of Transportation -specific people
Ministry of Attorney-General - specific people
Solicitor General - specific people
Ministry of Education - specific people
Ministry of Advanced Ed - specific person - Shirley Bond
Ministry of Energy and Mines - specific person - Richard Neufeld
The BC government's lawyer, George Copley, claims that government back-up tapes (of emails) for the period requested either no longer exist or are unrecoverable.
Copley stated that back-up tapes are kept for 13 months for the purpose of disaster recovery, not for archived purposes.
Defence lawyers said: "This is the first time we have been told that the emails sought are not there. This is potentially a very significant matter and major development in these proceedings."
The defence also said they have 4500 boxes with hard copies of emails and other info which was the focus of their FOI. They say a huge amount of substantial and relevant emails (which they believe remain in electronic email format) have not been recovered and therefore are not part of the 4500 boxes.
Court adjourned until Tuesday June 23 at 9:30 a.m., so defence can either seek cross examination of the witnesses named above or alternatively submit a letter through Copley, asking the 33 individuals to answer specific questions:
Were their computers searched?
What method was used to search their computers?
What time period did the search take place?
Who specifically searched their computer?
And reasons for why they claim the emails are no longer recoverable.
Bennett said the issue in its entirety must be resolved before Sept. 4th.
Below are a couple links that may be helpful to you around government procedure in handling electronic records:
Under the first link you will find The Document Disposal Act. Under the Act it says documents must be kept for 7 years unless a disposal order is granted following the procedure outlined in the Act.
Here's part of the Act:
(1) A document must not be destroyed except on the written recommendation of the Public Documents Committee, which consists of the chief executive officer of the museum or a person designated by the chief executive officer, a person designated by the minister responsible for the administration of this Act, the Comptroller General, and 3 other persons to be named by the Lieutenant Governor in Council.
(2) A document must not be destroyed before the expiration of 7 years from the date on which it was created unless one of the following conditions is met:
(a) 2 years have expired from the date on which the document was created and a microfilm copy of it is available to the officer who would, but for the destruction, have charge or custody of the document;
(b) a recommendation under subsection (1) has been approved by the Legislative Assembly on the recommendation of the Select Standing Committee of the Legislative Assembly on Public Accounts and Economic Affairs;
(c) the document is
(i) listed in a records schedule approved by the Select Standing Committee of the Legislative Assembly on Public Accounts and Economic Affairs, and
(ii) destroyed in accordance with the instructions in the records schedule.
The second document is the electronic records procedure:
These are divided into operational and transitional. The key bit is in the second paragraph, which says if they are part of a legal process, information must be kept and available.
It would be hard to justify that emails touching on a matter which is the subject of a police investigation and charges could be disposed of.
The rules say those should be kept and be available.
NDP justice critic Leonard Krog called loss of government files “extremely troubling”.
“The Document Disposal Act requires that [electronic records] be kept for seven years,” Krog said. “It raises incredible suspicions and someone farther up the political chain that Mr. Copley is going to have to appear in court and explain what happened.”