ST. JOHN'S, N.L. — Newfoundland and Labrador privacy commissioner Michael Harvey has found the Department of Tourism, Culture, Industry and Innovation acted improperly in responding to an access to information request relating to the hiring of Carla Foote at The Rooms.
The report says an access to information request was received by the department on Oct. 29, 2018 relating to the hiring of Foote at The Rooms. The request referenced deleted emails referred to in the Mitchelmore Report, which should have been accessible under ATIPP law.
According to Harvey’s report, the department’s position is it had conducted a reasonable search for the records in question and that the specific records referred to were not captured under the request.
A second access request was filed and still did not turn up the email referenced in the Mitchelmore Report.
Harvey’s office began its own investigation of the matter.
The report suggests the department, headed at the time by Christopher Mitchelmore, had a candidate in mind well before the position was created.
“The records from The Rooms indicate that the minister may have had a candidate in mind for the position of director of marketing and development as early as March 2018. There are emails from the CEO of The Rooms to the DM of the department asking for updates on the candidate and moving forward with filling the position at The Rooms,” reads the report.
“With no written record of a response from the department, The Rooms CEO (Dean Brinton) went ahead with filling the position.”
The position was director of marketing and communications with The Rooms. On the same day Brinton forwarded his decision to fill the position with a candidate who was not Carla Foote, the department overruled him.
“This all happened on the same day, June 15, 2018, within a couple of hours of the initial email to the (deputy minister) with the contract attached,” reads the report.
“The explanation provided by the department was that the human resources form (the request for staffing action) had to be completed, therefore the contract was not valid and the offer had to be rescinded.”
Harvey says the simple answer would have been to complete the request for staffing action form and give the position to Brinton’s choice for the job.
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Instead, Brinton’s choice was rejected, and Foote was given the position, at a higher rate of pay.
The report says the commissioner’s office came into possession of the email from the deputy minister instructing Brinton to hire Foote. The department’s argument for not producing the email in the initial access to information request was that the record was “transitory,” meaning it was an inconsequential record.
Harvey disagrees with that assessment.
“There is little question that the letter itself could be interpreted to be a transitory document, particularly if there was a final signed letter retained for the file. However, this draft letter was attached to an email from the DM to the CEO that simply said, ‘As discussed,’” reads the report.
“With knowledge of the circumstances of this interaction between the DM and the CEO as described in the Mitchelmore Report and the OCR DM Report, it is clear to this office that this email was direction, whether from the DM himself or from the DM on behalf of the minister, to rescind the contract.”
The deputy minister in question also directed that the email containing the letter be deleted from both government and Rooms records.
That was an error, Harvey said.
“Therefore, while I do not believe there is sufficient evidence to determine that the DM’s direction to delete the email crosses the threshold of the commission of an offence per Subsection 115(2)(d), it is clear that the DM’s direction to do so did involve the deletion of a non-transitory record and was an error,” reads the report.
Harvey recommends the department review its practices for biases in responses to access to information requests.
“I recommend that the department revise its internal access to information process so that the ATIPP co-ordinator is not excluded from the determination of scope or the collection of records, providing a check against actual or perceived biases that executive and program officials may face in this regard,” reads the report.
