More than a year after Nova Scotia’s privacy commissioner warned against the practice, Global News has found evidence that some cabinet ministers and senior government staff are still using personal email accounts at work.
Among documents released under access to information, there are emails to and from the personal accounts of Transportation Minister Lloyd Hines, Labour and Advanced Education Minister Labi Kousoulis, his executive assistant Troy Yeo, and the premier’s chief of staff Laurie Graham.
Privacy lawyer David Fraser has spoken against the practice in the past, saying it undermines government data security and freedom of information laws.
“We’ve seen in the past and in other jurisdictions where government employees and government officials have intentionally used personal devices and personal accounts in order to avoid public accountability,” Fraser said.
Avoiding public accountability
Laurie Graham’s Gmail account appears in documents related to the CAT Ferry and U.S. Customs and Border Protection.
A staffer in intergovernmental affairs sent Graham a document about a meeting with David Wilkins, the former U.S. ambassador to Canada, who was hired to help speed up the process of getting U.S. approvals on the ferry terminal in Bar Harbor.
That document has been heavily redacted before being released to the public.
“They’ve redacted out a whole bunch of information that they think is so sensitive that it can’t be released to a journalist,” Fraser said. “Should that be handed over to a third party who’s not under the control, who’s not contractually obligated to keep it confidential with respect to government standards?”
Premier Stephen McNeil says that to his knowledge, cabinet ministers and senior staff are not using personal emails to conduct government business.
Graham didn’t answer questions about the practice but the premier’s director of communications, David Jackson, said in an email to Global News that she does not conduct government business with that email address and that it must have been sent in error.
In documents related to the closure of the Cobequid Pass during a snowfall in November, Transportation Minister Lloyd Hines uses two email accounts.
The email chain appears to begin with a note sent to his firstname.lastname@example.org account, which is listed online as the contact for his MLA office. But as the conversation continues between Hines and the department’s chief engineer Peter Hackett, the minister switches to a Gmail account.
Hackett and Hines communicated several times about the situation on the pass using that personal account, which has been redacted under a section of the Freedom of Information and Protection of Privacy Act that protects against an “unreasonable invasion of a third party’s personal privacy.”
Hines says he has several Gmail accounts, “and they’re discrete.”
“It may be that inadvertently something was communicated across a Gmail account, possibly,” he said.
Actions may break provincial law
The practice of using a Gmail account, like Graham and Hines have, may break provincial law.
The Personal Information International Disclosure Protection Act, passed in 2006, stipulates that personal information in the custody of the government cannot be allowed to be stored or accessed outside of Canada. There is personal information redacted from the document sent to Graham’s Gmail account.
“There’s a requirement that Nova Scotia public bodies keep all that personal information within Canada and so as I said if they’re using an American provider it’s probably a violation of that,” Fraser said.
Privacy lawyer David Fraser explains why he thinks it's a problem when government officials use personal email accounts. First, he says it is often a way to try and dodge #FOI. But he's also concerned about security - and it may break provincial law. #nspoli pic.twitter.com/YlAs4AjFAO— Sarah Ritchie (@SarahRitchieTV) January 30, 2020
Minister Kousoulis’s personal email appears in a September conversation about the tower crane collapse during Hurricane Dorian. An email was addressed to “Minister Labi” at both his MLA address “email@example.com” and his ministerial address “firstname.lastname@example.org.”
The minister forwarded that letter, not from either of those accounts, but from an Eastlink account to his executive assistant Troy Yeo at an account with a “jptatlantic.ca” address. Yeo then sent the letter to his government-issued account and forwarded it on to staff in the minister’s department. (Kousoulis’s Eastlink address is also redacted, citing his personal privacy.)
Kousoulis says he does forward constituency emails to a personal account on his phone, but not his ministerial account. As a rule, he says, he doesn’t use email for what he calls “government business.”
“I do no decision-making over emails as a policy across the board, so I tend to stay away from email and emailing,” he said.
Personal email use ‘must be avoided’
The government does have a guideline in place that says personal email use “must be avoided in all but exceptional circumstances,” which the document does not define.
It does say if a personal account is used, the user must transfer the record to an appropriate government record storage location as soon as possible and the email should be deleted from the personal account.
The Opposition leader says it’s time for the practice to end.
“There’s not a reasonable explanation because they know that this is against the rules. They know they’re not supposed to be doing it, the privacy commissioner has told them not to do it, Communications Nova Scotia has told them not to do it,” said PC Leader Tim Houston.
In interviews, several cabinet ministers cited the Freedom of Information and Protection of Privacy Act as the reason they don’t use a personal email account.
Justice Minister Mark Furey recalled being told about the proper use of email when he first came into government and then again more recently.
Communities, Culture and Heritage Minister Leo Glavine, whose use of personal email accounts led to a September 2018 privacy commissioner’s report and the creation of that guideline document, said he learned his lesson.
“I have of course several accounts, when you run a constituency office, but work of (the department) is in my government account,” Glavine said.
Hines, too, said he is aware of the rules.