Highways rebuked for failing to properly search for GTH emails of Sask. Premier's cousin

Saskatchewan's Information and Privacy Commissioner says the Ministry of Highways failed to adequately search for emails to and from the minister's chief of staff Jason Wall, in response to CBC access requests for his correspondence related to the Global Transportation Hub land deal.

In late 2016, CBC filed requests for all of Wall's emails during two periods of time when he served as chief of staff to the highways minister; September 2011 to July 2012 and December 2015 to June 2016.

Wall is also Premier Brad Wall's cousin. He's been a campaign manager for Saskatchewan Party candidates and is currently running Scott Moe's campaign for leader of the party.

CBC also requested the GTH-related emails of Clay Reich from 2013. He's also a former chief of staff to the minister of highways and former president of the Saskatchewan Party. 

During the periods of time covered by the Wall and Reich requests, the ministry was involved in discussions related to GTH land transactions.

Highways denied the requests, claiming that because both men worked in a minister's office, their emails don't belong to the Ministry of Highways, and therefore aren't subject to access requests.

CBC appealed the decisions to Saskatchewan's Information and Privacy Commissioner Ron Kruzeniski. After reviewing the appeal, he concluded the ministry failed to adequately search for the records and failed to handle the files properly.

He also chastised the ministry for failing to hang on to emails from some previous employees —  emails which appear to have gone missing.

Commissioner says emails should be publicly accessible

Typically, when an access request comes in to a ministry, the access officer figures out where the responsive documents might be and then asks the appropriate people to provide them.

Once received, the official reviews the documents to see what must be made public and what can be blacked out — or redacted — based on the province's Freedom of Information and Privacy Act.

In these cases, the minister's office failed to turn over any documents to the ministry's access officer, so the official had nothing to examine.

The minister's office initially withheld the documents by claiming the act doesn't apply to emails written by its staff.

Citing a Supreme Court ruling, the commissioner disagreed. He said that if documents in the minister's office relate to government business, they may be publicly released.

"I can conclude the applicant is requesting access to emails that would be related to government business as the emails, if they exist, would relate to the government acquiring land with public funds," Kruzeniski wrote.

But do any GTH-related emails, belonging to Wall or Reich, actually exist? That is another, more puzzling question.

'Confusing' on question of the existence of GTH emails

Commissioner Kruzeniski found the government's explanation of how it handled these requests was "confusing" and he said the ministry "seemed to change its initial position" midway through the reviews.

Initially, officials said the records don't belong to the ministry. Later they asserted the emails don't exist at all.

Highways indicated that it made [Jason Wall] aware of the request, however it is unclear if he searched for responsive records.- Ron Kruzeniski, Saskatchewan's Information and Privacy Commissioner

However, the commissioner wasn't convinced the ministry conducted an adequate search.

CBC filed two requests for Wall's emails. In one case, "Highways indicated that [Wall] conducted a self search for the records and none were found." However, with the second request "Highways indicated that it made [Wall] aware of the request, however it is unclear if he searched for responsive records."

Further the ministry said, it also requested a self-search of other senior ministry officials. However in some cases the ministry "has not detailed which senior staff searched for records or even what Highways considers to be senior staff positions."

The commissioner said the ministry failed to provide evidence of a reasonable search effort.

"Therefore, I find that Highways did not conduct an adequate search for records," said Kruzeniski.

Some documents appear to be missing

One issue hampering a search for Clay Reich's emails is it seems they have disappeared.

Reich is no longer with the Ministry of Highways.

"Therefore Highways contacted [Reich] to ask if he had retained any of his emails from when he was a [chief of staff] with highways. He informed highways he had not," said the commissioner.

And it wasn't just Reich's emails that appeared to be inaccessible.

The commissioner said that according to Highways, two other senior officials are no longer with the ministry and "Highways is concerned that it may not have taken measures to retain their email records," the report says.

The commissioner pointed out the ministry has a legal obligation to hang on to government records. He says he's been forced to remind highways of that obligation in other recent reports too.

"It is very important for staff to be made aware that emails he or she sends in the conduct of government business are not the property of the employee who sends or receives the emails. The emails are the property of the public body that they work for," Kruzeniski wrote.

The commissioner has asked the ministry to conduct a proper search for these emails and provide them to CBC at no cost.

The ministry hasn't yet responded to that recommendation, which is not binding.