Monday, June 22, 2009
Basi-Virk: Four years of B.C. cabinet e-mails erased (or, "The Dog Ate My Homework")
Electronic records requested by defence aren't recoverable, lawyer representing Premier in BC Rail case tells court
The Globe and Mail — Monday, Jun. 22, 2009
Vancouver - The provincial government may have destroyed all cabinet e-mails between 2001 and 2005, opening a huge gap in the official record despite a law that electronic files must be kept for at least seven years, the Supreme Court of British Columbia has learned.
Michael Bolton, who is defending one of three former government employees in a political corruption case stemming from the sale of BC Rail, said outside court Monday he was stunned to hear the e-mails aren't available.
“This is troubling…this potentially is a very serious matter. We never expected this,” said Mr. Bolton, who is defending Dave Basi, who was a ministerial aid in 2003 when the government sold BC Rail to CN Rail for $1-billion. The controversial deal, which was the first big privatization undertaken by the B.C. Liberals, closed in 2004.
In an application filed two weeks ago defence lawyers sought the disclosure of the e-mail records of several members of cabinet, key executives, and of Premier Gordon Campbell, from June, 2001 to 2005.
But George Copley, a lawyer representing the Executive Council, which includes both the Premier's office and cabinet, told court the electronic records aren't recoverable.
Mr. Copley said officials who oversaw a search reported the material couldn't be found, implying it had all been purged from the data system.
“There are backup tapes. They are kept for a certain period of time…[but] in the normal course of operation they don't keep more than 13 months backup,” he told Justice Elizabeth Bennett.
Kevin McCullough, who is defending co-accused Bob Virk, a former aid to the transportation minister, told court he couldn't believe what he was hearing.
“It's vanishing point,” he said. “Everything is gone. The records are irrecoverable.”
Mr. McCullough said government officials should be called to explain why the material isn't available.
But Justice Bennett said she was reluctant to do that, because the defence has yet to establish that the material is relevant.
“I'm not keen on having these individuals [responsible for managing government records] cross-examined…If the documents are not recoverable it doesn't mean anything unless you [first] establish likely relevance,” she said.
Justice Bennett told the defence to argue the relevance issue Tuesday, while submitting a set of written questions to Mr. Copley to get more details on what exactly was done to search the government records.
Leonard Krog, NDP justice critic, said it is “extremely troubling” that important government files may have been destroyed.
“The Document Disposal Act requires that [electronic records] be kept for seven years,” he said. “It raises incredible suspicions and someone farther up the political chain that Mr. Copley is going to have to appear in court and explain what happened.”
The government of B.C. has a detailed protocol covering both the preservation and destruction of its records.
Formal records can be destroyed, but only after the action has been approved by a public documents committee, the legislative assembly or the attorney general.
The Corporate Information Management Branch, which provides guidelines for government employees, states that e-mails must be copied to a central document management directory before individuals delete them from their personal files.
The guidelines say only “transitory” e-mails, which are clearly trivial in nature, can be deleted by individuals.
“Examples of this type of e-mail would be ‘Is this morning's meeting still on?' ”
Mark Hume's full report is here.
"But Justice Bennett said she was reluctant to do that, because the defence has yet to establish that the material is relevant."
That sseems utterly disingenuous, although I've come to NOT expect wheedling from Justice Bennett. We have the bullets, we have the smoking gun - now we're being asked to provide the magazine, the casings and the box they came in.
The premise that these can't be determined as relevant to the case as they've been destroyed seems like something only Kafka or Orwell could come up with. Presumably the allegedly-destroyed emails include the one ordering their destruction; how tidy huh?
And what are the penalties for the person(s) who ordered their destruction, contrary to legislation? If it's the Attorney-General who ordered "make it so", then Wally's new line is going to be:
"I can't comment because I ordered deletion of evidence concerning the matter, to keep it from coming before the courts"
I wonder if the Liberals will find a way to blame the NDP for this one?
Deletion of these materials would have required cooperation from lower-level techs, middle management, and the politician/deputy minister or other political operative who arranged for them to be wiped. "I was only following orders" we'll here from the Corporate Information Management drones and BC Systems sysops, "even though we knew we were breaking the law", the refrain will continue....and in response to who it was that ordered them to do so, how many fingers will be pointing "everywhichway". And how is it that these email files weren't part of what the RCMP seized when they raided the Legislature? Isn't that a strange oversight (one among many)??
It's been said that nothing happens in this government that the Premier doesn't know about. It's also been claimed that he doesn't know what all his many right arms are doing. And if indeed he sent out an order to locate all emails that might concern the case, for what purpose did he want them all found? To have them destroyed?
It seems to me that there's not just obstruction of justice as a potential charge, or group of charges here, and not just whatever charge goes with destruction of information that's required by law to be kept, but also collusion towards this end.
Well at least, perhaps, we might hope that any emails between RCMP staff and the Attorney-General and/or Solicitor-General in the wake of the raids would still be backed up on RCMP servers/backup disks.
Leah, dear friend, there's nothing unreasonable in my view, about your comment.
You're correct: Gordo's insult is in the secrecy.
Now it's up to the citizens to demand: SHOW US THE DEAL.
If more gifts and privileges do flow (as rumoured) from the people of BC into the private pockets of CN's largely foreign shareholders, British Columbians have a duty to perform here:
We gotta look at that deal, study the clauses, and decide if those promises are realistic given the evidence that (also rumoured) CN has failed in at least one promise, i.e., to buy 600 new railcars. That's a deal-breaker, as I understand things. And that's NOT in the least OK to let that date - July 14, 2009 - slip by with Campbell hoping nobody notices.
So please Leah (and all others), let that passion for British Columbia drive your deeds in the next while. You'll think of other things, but my own first thoughts were:
* write to the premier and demand that he SHOW US THE DEAL. His address: email@example.com
* write to Leonard Krog and demand that he apply to the Court immediately for an injunction to stop any further action on the BC Rail deal until it is proven that there was nothing illegal about the way the deal was done. His address is: firstname.lastname@example.org
In other words:
SHOW US THE DEAL
SHOW US IT WAS LEGAL.
Doesn't seem like a whole lot to ask, does it?
"Desperate people do desperate things."
Of course, this latest revelation of deleting the emails speaks for itself.
I'm not a computer geek, but from a highly reliable source, I understand that hard drive deletions are most always "recoverable" . . . that deleting material on a computer CAN be retrieved with the use of technical assistance. Material deleted is not really erased but merely in layers.
If in fact, there was a wholesale deletion of this material the Defense lawyers must understand this and demand more appropriate action be taken.
SHOW US THE SECRET DEAL ON THE PEOPLE'S ASSET: BC RAIL.
WE OWNED IT - THE DEAL MUST HAVE FULL DISCLOSURE WITHOUT DELAY.
Thank you ... and I think you'll find agreement among most other readers here.
What we need right now, imo, is a lawyerly friend who will seek an injunction to stop further loss on the BCR deal until it is proven that no corruption shaped the deal itself.
It is also interesting to note the widespread level of corruption and loss of democracy in BC at present , more corrupt in fact, in comparison to what was considered one of the United States greatest political scandals. At least in the Watergate scandal the Special Prosecutor demanded Nixon turn over the missing tapes. Here in BC the Special Prosecutor has decided to represent "special" interests instead of the interests of the public - shirking his duty....and his special role in a democracy as well.
Great and encouraging comments by all.
Thanks again, BC Mary....will send off an e-mail to Leonard Krog pronto.
What Crown Land bureaucrats and crown AG lawyer(s) employed presently or in the past now in the private sector . . . was involved with this backroom BC Rail deal?
I'll say it again, this is absolutely appalling and there is no way this should happen with government (public) documents and I say there is a coverup going on.
Is there NO ONE with INTEGRITY in Gordon's world?
Count me in.... and a great idea, Secondlook...and yes, it would be interesting to see who was present in that backroom BC Rail/Land deal.
So why the outrage?
I see nothing untoward about all of the emails being lost: I would have been surprised the other way round. In anyevent, Basi and company would have, would have copies of emails on THEIR own home computers. And if not, then how can a stone be thrown at others?
i suspect there is no telling emails floating out there in cyberspace, otherwise the defence would have requested the same much earlier.
Methinks this is yet just another desperate attempt by the defence to muddy the waters in the final hours even where no mud ought to exists.
Special thanks to you, Curt, and to everyone who has written to Leonard Krog.
I wrote, too.
From Gordo, I expected nothing in reply and received nothing in reply - not even the auto-response.
From Krog, however, I do expect a response and will write again on Monday June 29 if need be, because the time is SO short for meaningful action.
I have also written to others, explaining the hopes and fears.
We can do this, if we keep pressing forward.
There are a few former crown lawyers I'e heard who seem to have kept their tight ties to government largesse and land interests.
Those emails often contain treasure troves of info because the writers forget that one day they may be in the public domain & get rather candid with their comments - don't you think?
Funny thing, Anonymous 5:22pm . . . seems everyone but you see the waters becoming crystal clear - thanks to the Defense probings as they follow the strings and material they already hold - such as the fact that the RCMP were offered emails and refused to obtain them.
Talk about muddy waters . . . software can always be updated and new versions of Microsoft can be installed without ditching ones computer to my knowledge, on the same hard drive.
Your comment would seems to be somewhat defensive . . . . or are you a quasi government employee perhaps (aka Media Monitor) who happens to know that the government got rid of the computers with all those emails on all those hard drives. BTW, those computers can be traced as well, probably stored in the leg dungeons like the recycled furniture.
Email Leaves A Trail Behind
As computer security person, let me say without hesitation that all the emails can be recovered if the hard drives have not been damaged (sabotaged) or wiped with an expensive program (very expensive). If they have, then there has been a complete coverup envolving many people from the top on down.
this is complete and utter bullshit:
"hard drive deletions are not recoverable when computers and lap top leases are renewed for more current and up to date technology. Often the user keeps NO historic emails and just copies over his files. My understanding is computer equipment and software is constantly updated; newer versions of Microsoft comes in every few years that can only be run on new equipment. So good bye hard drive."
Hogwash. Data forensics is far progressed beyond the comprehension of this muddle-brained and no doubt well-paid propagandist. Updating an OS, even partitioning a drive, doesn't stop the FBI, CIA or NSA (or CSIS) from recovering files needed in all kinds of cases, even through progressive upgrades and reformattings/repartitionings. Claiming, essentially, that Microsoft or Apple would create OS upgrades that deliberately wipe data, or are even able to completely wipe a drive, is a completely spurious claim. Only a paid liar, or a propagandist for the Iranian mullahs, could concoct such a silly fictino.
Maybe Mr. McCullough should seek the help of the American agencies who can do this, if the Canadian enforcement agencies are not even going to bother to try. An American company, after all, is involved in the scandal....
maybe the "American officer" question stems from the fact that CN's privatized shareholders are mostly U.S. citizens??
My head is hurting again.
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