National Gallery officials could face charges over deleted e-mails
Information commissioner refers 2008 incident to attorney general.
An investigation by the federal information commissioner has concluded there is evidence National Gallery officials broke the law in 2008 by destroying e-mails sought in an Access to Information request. And in a precedent-setting move, interim commissioner Suzanne Legault has referred the matter to the attorney general to determine if charges should be laid.
Penalties include fines of up to $10,000 and two years in jail.
"In this case, we did find evidence of an offence having been committed under 67.1 (of the Access to Information Act)," Legault's report states. "As a result, we have referred this matter to the Attorney General of Canada."
Section 67.1 forbids destruction of documents with the intent to thwart an access to information request.
While Legault determined there was evidence of document destruction, she did not rule on the question of intent.
The commissioner's mandate, the ruling said, is to investigate federal institutions' compliance with the access act. "We cannot conduct criminal investigations nor can we assign civil or criminal liability." The attorney general and the courts must make those findings.
In an interview, Legault said she was not trying to make a particular statement with this first-ever reference made by the commissioner's office to the attorney general concerning the 11-year-old section 67.1.
"The only statement I am making is we will not hesitate to refer matters to the attorney general if I uncover evidence of a commission of an offence," Legault said.
The investigation at the National Gallery follows sometimes lurid revelations in Federal Court in the summer of 2008 that the gallery had, albeit briefly, fired its deputy director and chief curator, David Franklin, for deleting e-mails exchanged with colleagues about another gallery employee, Erika Dolphin.
Dolphin's curatorial assistant's job was being eliminated. Her union, the Professional Institute of the Public Service, was grieving that action. Applications under both the access and privacy acts were made to the gallery to obtain documentation about her case.
Some e-mails exchanged between Franklin, European curator Graham Larkin and human resources director Lise Labine about Dolphin contained information that, in Labine's words, could "embarrass the gallery or Ms. Dolphin," Franklin stated in an affidavit filed in the court case he initiated to win back his job.
The e-mails were deleted, at least on Franklin's computer. Franklin was subsequently fired, but later reinstated. Labine was suspended and left the gallery. Larkin remains on staff.
Pierre Théberge was the gallery director at the time and about to retire. Franklin claimed in Federal Court that Théberge was just using the e-mail controversy to damage his reputation and to hurt his chances of becoming the new director. Franklin also claimed Théberge was medically unfit to do his job because of his worsening Parkinson's disease.
Before the court case, Franklin was perceived as a leading candidate to replace Théberge. But the job went to Marc Mayer, the current director and former director of the Musée d'art contemporain de Montreal.
The Federal Court initially ruled that all documents about the Franklin case were to be kept confidential. But the Citizen challenged that ruling, won and then published stories about the previously secret feud between the director and deputy director.
Franklin continues to hold the titles of deputy director and chief curator and, on various occasions, has been given a public vote of confidence by Mayer.
In an interview, Mayer said he was pleased Legault's report notes that the National Gallery co-operated fully in the two-year investigation and has changed procedures to prevent a repetition of events.
"But as for the personal issues, I really have nothing to say."
Mayer declined to speculate as to whether any disciplinary measures would be taken against gallery staff caught up in the scandal.
"We have no idea what any of this means."
Original article on Ottawa Citizen website
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National Gallery Access to Information case is a landmark
It is enormously significant that interim commissioner Suzanne Legault has referred this case to the attorney general. Although there have been numerous allegations of tampering with Access to Information documents and the ATI process has largely fallen into disrepute, remarkably, no-one has ever been charged with an offence.
This follows a pattern that is common in Canada, where seemingly strong laws are often gutted by weak or non-existent enforcement. Bringing charges against offenders might be a first step in restoring respect for ATI, which is a vital tool in holding governments to account. Kudos to Legault for taking this step.
However, the National Gallery is a relatively insignificant part of the bureaucracy. To have a real impact, Legault should also examine more closely the activities of larger and more influential departments which set the tone for the rest of the bureaucracy, and which are all too often the worst offenders.
David Hutton