Leave no paper trail?

CBC article

“Family minister’s foster care review instructions leave no paper trail” Katie Nicholson, Joanne Levasseur · CBC News · 

The article above appeared on the CBC website just this morning.  I think it offers an important lesson to institutions who may be tempted to avoid keeping appropriate written records as a way of limiting their exposure under Freedom Of Information legislation.

After a CBC investigation revealed that a for-profit foster care agency had left children in the same home as their abuser, Manitoba Families Minister Heather Stefanson ordered a probe into the agency to investigate the safety of and well-being of children in the agency’s foster homes.  However, as revealed by an FOI request, instructions for the review were never written down.  Instead, review instructions were “were clearly communicated in face-to-face meetings”.

One common fear in government is that an FOI request will reveal damaging communications or other records that harm the reputation of an institution or cast doubt on the judgment of its decision-makers.  But the story above shows how embarrassing it can be when an institution isn’t able to produce records that the public reasonably expects should exist.

Can an institution really claim to be conducting a careful review if there are no written records of any instructions for such review?  Of course, documents revealed in an FOI request may be damaging to the institution’s reputation, but it can be just as damaging and revealing when an institution is shown to not be keeping the kinds of records that it should be.  When responsive documents do exist, they may be covered by an applicable exception or exemption — but when an institution has simply created no relevant documentation, generally, there’s no cover when an FOI request arrives.

Returning to the story, part of the review process included interviewing each of the 409 children placed in the homes run by the private agency.  Curiously, the records relating to these interviews were left in the possession of the foster homes themselves, rather than being held by the province.

Why would the records relating to a provincial institution’s investigation be kept in the hands of a private agency, with no copy retained by the province itself?  The result is an added a layer of complexity for anyone attempting to access those records through an FOI request.  In isolation, the decision not to keep these records in the possession of the province might not attract much criticism.  However, in this case, where the province also failed to produce written instructions for the review, the lack of a paper trail is unfortunately suggestive of a poor pattern of conduct by the province.

For institutions operating under an FOI regime, the key takeaway here is that using in-person meetings and phone calls to avoid creating a paper trail isn’t an effective way to avoid the scrutiny of the press and the public, nor is keeping sensitive documents in the hands of third parties rather than within the institution itself.  When it comes time to respond to an FOI request, a lack of responsive documentation can be more embarrassing than the documents that the institution would have otherwise been creating.

I encourage you to refer this article to a colleague, and to subscribe to the FOI Assist blog.  To subscribe, simply enter your email address at the bottom of the page then click the follow button.

Published by Justin Petrillo

I have created the FOI Assist™ software to help Ontario’s provincial and municipal government institutions of all sizes track and respond to Freedom of Information (FOI) requests. For most of my career I have been a lawyer, advising clients on commercial, intellectual property and FOI/privacy issues. From 2013 to 2015, I managed the FOI program for the Toronto 2015 Pan/Parapan Am Games Organizing Committee while serving as Legal Counsel to the Games. Prior to becoming a lawyer, I obtained a computer science degree and worked as a software developer at several well-known technology companies.

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