P.E.I. government 'deliberately withheld' information on missing emails, commissioner rules

P.E.I.'s privacy commissioner has weighed in on another batch of missing emails which, according to the two people who asked for them through multiple freedom-of-information requests, are related to the provincial government's e-gaming affair.

In a decision to be released to the public Tuesday, Information and Privacy Commissioner Karen Rose said the province's Archives and Records Act was violated when a swath of emails went missing from the account of a senior bureaucrat with Innovation PEI.

While Rose said there was "insufficient evidence" to conclude "that records were intentionally destroyed for the purpose of evading an access request," she also said "the probability is small that the named employee's emails would accidentally go missing for precisely the period of time during which the e-gaming file was open."

She also criticized the P.E.I. government for not telling the two applicants who requested the emails that the documents were missing. She said the Department of Economic Growth and Tourism "deliberately withheld this important information," a violation of government's duties under the Freedom of Information and Protection of Privacy Act.

"I am at a loss to explain the motivation of the [department] in withholding such key information from the applicants," Rose wrote in her review.

Applicant behind government lawsuit

One of the applicants seeking the emails is Paul Maines, president of Capital Markets Technologies (CMT). That company sued the province for $150 million, alleging breach of contract in a case that related to the province's failed attempt to become a regulator for online gambling.

The emails in question belong to Brad Mix, one of 16 defendants named in the suit and senior director in charge of business attraction with Innovation PEI, a provincial Crown corporation involved in economic development. Mix was not named in the privacy commissioner's report.

According to that report, Mix told government in March 2015 he had "discovered time periods of missing emails" from his archives while searching for records in response to a freedom-of-information request.

An eventual review within government found archived emails for Mix were missing between June 2010 and April 2012, a range of dates that covers most developments within the e-gaming initiative, and which also coincides with five access-to-information requests from two different applicants for the emails in question.

According to a submission from government to the privacy commissioner, Mix "was distressed by the discovery of missing emails" and reached out to government's IT division to report the problem.

"I am at a loss to explain the motivation of the [department] in withholding such key information from the applicants.- Privacy Commissioner Karen Rose

He said he didn't delete the emails and told government he believed their loss was related to a mobile phone upgrade in early 2015.

The privacy commissioner concluded "how the disappearance of emails came to pass is not readily discernible."

CBC reached out to Mix, to the Department of Economic Growth and Tourism and to the office of Premier Dennis King but did not receive a response by publication time.

Other missing government emails

In 2016, P.E.I.'s auditor general reported that emails from accounts for three senior civil servants involved in the e-gaming affair had been improperly deleted. As in the case of Mix, the auditor generalsaid there was no evidence the records had been intentionally deleted, but failure to properly archive them was a breach of the Archives and Records Act.

The explanation at the time was those records were deleted after email accounts for those civil servants were suspended when they left government.

In this case however, as the privacy commissioner's report notes, Mix is still working in government. The report rules out the possibility the missing emails stem from a change of position or absence from work, or that the files might have been corrupted.

Maines said the fact that the emails are unable to be obtained should have been disclosed by government as part of court proceedings but was not. He said the ruling from the commissioner will help his case.

"The fact that she confirms [the emails] were destroyed is very relevant. That's what we wanted through all this," said Maines. "She can't conclude who did it, but they're gone. Destroyed."

CMT brought the issue of deleted emails before the P.E.I. Supreme Court, only to have its entire claim thrown out by Justice Gordon Campbell in a September2019 ruling. That decision has now been heard by the P.E.I. Court of Appeal, whose decision is pending.

In his decision, Campbell wrote "the failure to archive all of Mix's sent emails has not been shown to be of any relevance to the motions before the court." He also concluded the company had "no genuine issue requiring a trial" regarding its allegations against Mix.

$5 application fees refunded

Noting that her "powers are limited, even where there has been an egregious violation" of the Freedom of Information and Protection of Privacy Act, Rose ordered the province refund the $5 application fee each applicant paid for their initial freedom-of-information requests.

Kevin Arsenault was the second applicant seeking Mix's emails who asked the privacy commissioner to investigate.

Writer and researcherandformer PC leadership candidate, Arsenault has written dozens of articles on the e-gaming affair for his website.

He said the office of the attorney general should launch its own investigation to find out how the emails were destroyed.

"There's a dead body on the beach," Arsenault said. "Some one put it there, but we just don't know who yet."

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