2 years after Muskrat Falls report, still no 'duty to document' law in N.L.

Two and a half years after the final report of the Muskrat Falls inquiry recommended the Newfoundland and Labrador government require public servants to keepwritten records of decisions,the province still lacks "duty-to-document" legislation.

The report, released in March 2020, recommended the province adopt such legislation within six months.

The province's information and privacy commissioner says he doesn't understand the delay.

"The degree of documentation of decision-making on the Muskrat Falls project was lacking and there were lots of instances where [Justice Richard LeBlanc] talked to people and they didn't have adequate memories of what was happening," commissioner Michael Harvey said in a recent interview."For proper accountability, you really need that written record to take place."

Implementing a duty to document would mean government workers would be required by law to create a permanent, retrievable record of their deliberations and decisions at work,even when those decisions are made and communicated verbally.

While duty-to-document legislation would improvegovernment accountability, Harvey said, it would also foster better public administration.

"You know, you can't be making good decisions just off the cuff or on the basis of verbal briefings. You need proper analysis," he said. "I think most Newfoundlanders and Labradorians might be surprised to find out that there is no current duty to document in law."

Recommended since the 1990s

The inquiry's final report whichlaid bare how officials failed their duty to the public by deciding the Muskrat Fallsmegaproject would proceed no matter what wasn't the first to recommend duty-to-document legislation for Newfoundland and Labrador.

Federal access-to-information commissioners have recommended the measure since the 1990s, as did former premier Clyde Wells in a statutory review of the province's access-to-information regime, released in 2015.

Last year, former justice David Orsborn reiterated those recommendations in another review of the province's access-to-information legislation, writing, "enough time has passed."

Why the wait?

CBC/Radio-Canada asked the provincial government toprovide a timeline for when duty-to-document legislation could be implemented. No timeline was provided.

"Although there is no 'duty-to-document' legislation in place, public bodies are still required to manage all documents created or received, as they are the property of the Crown. The Management of Information Act sets out the requirements for this," said Kathy Dicks-Peyton, spokesperson for the Department of Digital Government and Service N.L., in an email.

"A high degree of public trust comes with serving the people of the province, and proper documentation is integral to government decision making," she said byemail. "The Office of the Chief Information Officer (OCIO), which is responsible for the Management of Information Act, has completed consultations on 'duty to document' to help inform the drafting of such legislation in the future."

Harvey said he recognized the legislative process can take time. He also said every provincial department and agency would need to create policies on how to implement and follow the new rules.

"[But] the Office of the Chief Information Officer has done a fair amount of policy work and template work to guide public bodies on how they would develop duty to document policies for themselves. That work is available," he said. "What, really, it needs, is a legislative imperative."

Not enough without independent oversight, says commissioner

British Columbia is the only Canadian province that has enacted duty-to-document legislation. But the B.C. government did not create an independent agent or body to ensure public servants adhere to the rules.

"Without that, then the document would have no teeth and potentially, itcould be even worse. The government could then proclaim that it had a duty to document and not really have one," said Harvey.

If Newfoundland and Labrador adopts duty-to-document legislation, said Harvey, the mandate of the Office of the Information and Privacy Commissioner should be expanded to provide oversight.

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