Canadian Commissioner Says Controls Needed for IM

6 December 2013

Controls should be placed on instant messaging “to preserve government records and respect the federal access to information law,” according to a report by Suzanne Legault, Information Commissioner of Canada, issued Nov. 28.

The recommendations already have been rejected by the government.

“After investigating the use of wireless devices and instant messaging in 11 federal institutions, I have concluded that there is a real risk that information that should be accessible by Canadians is being irremediably deleted or lost,” Legault said in a press release about the report.

The report says government institutions issued approximately 98,000 BlackBerry and that instant messages sent and received on these devices are automatically deleted—usually after 30 days—“making them generally unavailable for access to information purposes” and not recoverable.

“While technology is a powerful tool for innovation, its use must not infringe on the right of Canadians to know what government is doing and to hold it accountable for its decisions,” Legault said.

According to the press release: “The President of the Treasury Board does not agree with the recommendations and has declined to implement them.” In fact, “policies currently proposed by the Treasury Board Secretariat would put the right of access at further risk by allowing instant messages to be auto-deleted after only three days, instead of the current 30 days,” according to the report.

Five Conclusions

The report lays out five conclusions:

  1. The current use of instant messaging, without any technical safeguard, presents an unacceptable risk that government information in an institution or ministerial office will be permanently deleted with no means of being recovered or retrieved.
  2. Proposed or existing TBS policies, and training in institutions and ministerial offices do not adequately protect the right of access to information sent or received by instant message.
  3. The enabling of instant messaging in the absence of any technical safeguard undermines the right to an effective, independent review of complaints about institutions’ handling of access to information requests by our office.
  4. TBS’s Implementation Report No. 115: Access to Records in a Minister’s Office—Prime Minister’s Agenda case is inconsistent with the right of access and the decision of the Supreme Court of Canada in the Prime Minister’s agenda case, to the extent that itinstructs institutions to satisfy unnecessary criteria prior to tasking ministerial offices for records that could fall within the scope of an access request.
  5. The quasi-constitutional right of access to information outweighs the supposed operational requirements for enabling instant messaging identified in the course of our investigation.

Three Recommendations

Legault recommended that Parliament “amend the Access to Information Act to add a comprehensive legal duty to document decisions made by federal government institutions, with appropriate sanctions for non-compliance.”

She further suggested that the Treasury Board Secretariat (TBS) “develop and implement a government-wide policy that instructs government institutions to disable instant messaging on all government-issued wireless devices, save for when all of the following conditions are met:

  1. There is a bona fide operational need that cannot be satisfied by other means that warrants enabling instant messaging on an individual user’s wireless device.
  2. An adequate technical safeguard mechanism is both available and implemented to ensure that instant messages (whether or not of business value) are archived on a government server for a reasonable period of time.
  3. Individual wireless users, to whom the instant messaging function is enabled, based on a demonstrated bona fide operational need, do the following:
    1. undertake mandatory information management training focused on the information management risks associated with instant messaging, as well as the obligations and responsibilities imposed by the Access to Information Act; and
    2. sign a terms of use agreement, under which they agree to ensure that any instant message of business value and/or that falls within the scope of an access to information request is properly identified and retrieved.

As a third recommendation, the commissioner said TBS should “issue guidance requiring that ministerial offices be tasked without delay when records of potential relevance to an access request might exist in a ministerial office or on a wireless device used by a member of the ministerial office’s staff.”

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