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Info commissioner worries cabinet ministers avoiding public scrutiny

OTTAWA – The federal information watchdog is worried that cabinet ministers could be avoiding public scrutiny by using personal email to conduct government business.

Suzanne Legault refused Thursday to comment directly on the case of Treasury Board President Tony Clement. He’s been accused by opposition parties of using his personal email account to hide his role in doling out federal G8 largesse in his riding.

But the information commissioner said she’s concerned in general that there’s little she can do to ensure ministers don’t intermingle government files, which are covered by the Access to Information Act, with personal files, which are not.

She said her powers to verify that ministers are acting properly have been “definitely hampered” by a Supreme Court ruling handed down last May.

“We will see how it unfolds. But yes, I am worried,” Legault said in an interview.

“Certainly, if somebody wanted to avoid being subject to Access to Information, they probably could, given the state of technology.”

The issue arose earlier this week when the NDP disclosed a treasure trove of emails between Clement and municipal officials in his Parry Sound-Muskoka riding about the controversial G8 legacy fund. The NDP obtained the records by using provincial freedom of information legislation to access municipal records.

The embarrassing email trail suggests Clement micromanaged the distribution of a $50-million fund, set up ostensibly to help his riding host last year’s G8 summit and beautify the area.

It shows Clement scripted the public comments of municipal officials about the fund. He also personally intervened to ensure the flow of federal cheques wouldn’t be delayed by a bureaucratic spending review and to ensure an upgraded Huntsville recreation centre would serve as the media centre for the summit, despite police concerns about security.

Both New Democrats and Liberals have charged that Clement tried to “cover his tracks” by using his personal email account to conduct much of the legacy fund business.

Legault said the only rules she’s aware of governing ministers’ use of personal email accounts are contained in the government’s policy document, Accountable Government, a Guide for Ministers and Ministers of State.

That document requires ministers to keep personal and political records _ that is, “constituency business, party political matters, private and personal life” _ separate from departmental or ministerial records. The guide notes that personal records “are normally excluded from the application of the Access to Information Act, provided that they are maintained separately from institutional (that is, departmental) records.”

“We live in a world of technology so everybody has BlackBerries and personal accounts,” noted Legault. “What we hope for, all of us, is that people act with integrity and that they abide by this (guide).”

She acknowledged, however, that the recent Supreme Court judgment has impaired her ability to ensure ministers do abide by the rules.

The top court said the public doesn’t have an automatic right to access all documents in ministerial offices and set out a test that must be met before a document would have to be released.

The court said a document could be accessed, depending on the content and the circumstances in which it was created and provided it was related to a departmental matter and that a senior bureaucrat would typically be able to obtain a copy.

Should she receive a complaint about a minister’s personal records being improperly withheld, Legault said, she has the power to compel production of all documents. She could then apply the Supreme Court’s test to determine what, if anything, should be released.

But, unlike other government offices, Legault said the court has ruled she may not search a minister’s office to ensure all records have actually been produced. As a result, she has “limited ability to verify” that the rules are being followed.

“Ultimately, what (the government) guide says is that ministers and ministers of state are accountable to Parliament in this regard,” she said.

“And people will have to judge whether emails that are being found on personal accounts are institutional records … or whether they are personal or political.”

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