The duty to document government decisions, deliberation in private and quality decision-making

8 Jun

In this week’s Information and Privacy Commissioner/Ontario report on the deletion of e-mails by the Ontario government, the IPC decries a “verbal culture” in government and recommends a government “duty to document.” What might this duty entail? Is deliberating about difficult decisions through verbal dialogue really objectionable?

This is not the first time this duty to document has been proposed. In March of this year the British Columbia Office of the Information & Privacy Commissioner also endorsed a duty to document. The BC report includes a good history of efforts made to advance the duty in Canada, efforts that date back to 1994 in the BC Commissioner’s account. The BC Commissioner also notes a federal private member’s bill – Bill C-301 – that features a duty to document.

There are two variants of the duty that we should distinguish from each other – one that requires documentation of “actions, decision and reasons” and another that extends to “advice” and “deliberations.”

The BC Commissioner endorses the narrower version. In 2009, former BC Commissioner DavidLoukidelis argued for a duty to document “actions and decisions and reasons therefor” in a submission to the federal Standing Committee on Access to Information, Privacy and Ethics. The March report from BC contains the same recommendation:

I would reiterate that this requirement need not be an onerous one. The duty to record actions, decisions and reasons are not merely a question of creating records for the purposes of openness and accountability, but also go to good governance, the state of information management and information holdings of government.

Bill C-301 features the broader version. Here’s the language:

2.1 Every officer and employee of a government institution shall create such records as are reasonably necessary to document their decisions, actions, advice, recommendations and deliberations under this Act.

The recent IPC report is ambiguous, and unfortunately, suggests that the BC Commissioner has embraced a duty to document deliberations:

Commissioner Denham notes [in her March report] that a number of Information Commissioners have called for the creation of a legislated duty for institutions to document matters related to deliberations, actions and decisions. Commissioner Denham stated:

Among the reasons for instituting a legislated duty to document include good governance, historical legacy of government decisions, and the protection of privacy and access to information rights. Without a legislated duty to document, government can effectively avoid public scrutiny of the rationale for its actions.

She goes on to note that the legislated duty to document is a critical element of the open government movement and an important element of proactive disclosure.

The underlined statement above is correct but misleading; the BC Commissioner did note that others have endorsed a duty to record deliberations but did not do so herself.

The distinction between the broader and narrower versions of the duty to document is one that should become part of the public dialogue, especially because a duty to record deliberations runs against advice that counsel (including this counsel) regularly give public sector institutions; do not think aloud over e-mail.

Deliberating via e-mail (or text message) is a terrible decision-making practice that has only been invited recently by changes in communication technology. The dialogue invited by such a practice will either be too stilted to be effective or too dangerous because every creative, bona fide and ultimately un-pursued idea will be available in the end to undermine a final decision.

Yes, meetings represent a more private decision-making venue, but that is why they support good decision making. Public sector officials should record the actions flowing from meetings along with all decisions made and their rationale. This is, agreed, a matter of good governance. They should also be given the continued ability to discuss matters in confidence.

Whether a duty to document should encompass “advice” also deserves debate. It may not be objectionable if it is decipherable from a duty to document deliberations. Notably, the degree to which the exemption for “advice and recommendations” under our freedom of information legislation protects the deliberative aspects of decision-making will be addressed in an important Supreme Court of Canada case to be heard this November. The Ontario Commissioner will be joined by four other commissioners in arguing for a narrow interpretation of the exemption so that recorded deliberations will be more accessible to the public. If they succeed, public officials will face greater pressure to engage in verbal dialogue. They should not be castigated for craving a zone of privacy.

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