WASHINGTON – The bad news for any Canadian politician inspired by Hillary Clinton to set up a do-it-yourself email system is that it could potentially involve the Mounties, handcuffs, and a two-year sojourn in the slammer.
That’s because Canada’s Access to Information Act sets the maximum penalty for intentionally concealing, destroying or altering federal records at two years’ imprisonment or a $10,000 fine.
A university professor of public management laughed when asked whether those rules would be enforced in the case of someone using email as described in reports about Clinton.
The presumptive 2016 presidential front-runner has not denied reports that instead of using her department’s state.gov email server during her four years as Secretary of State, she had a system set up at home shielded from federal records searches and connected to the address firstname.lastname@example.org.
“That would just be so blatant that the RCMP and (federal) information commissioner would have no choice,” said Robert Shepherd, a professor at Carleton University.
“There could actually be jail time.”
Shepherd said a big difference between the two countries’ access-to-information systems is that Canada’s is based on general principles, and the American one on specific rules where everything is allowed unless explicitly restricted.
The U.S. Code does set out a maximum three-year prison sentence for someone who conceals federal records. But it wasn’t until 2014 that the U.S. Federal Records Act required personal emails be preserved as federal records. Clinton has since turned over 55,000 pages of emails to the State Department, and she says she wants them made available to the public.
The cabinet minister in charge of Canada’s public service declined to discuss Clinton — but Tony Clement said the story highlights an important question about personal email.
“Look, here’s a lesson in life: You shouldn’t be able to do indirectly what you can’t do directly,” said Clement, president of the Treasury Board.
“We have laws that say that if the email is of business value it has to be archived and retained. So that’s the law. It applies to (BlackBerry messages), it applies to texts… If you are talking about something that is government business, it has to be retained. I do it. I am assuming that everyone is doing that.”
In fact, there are easy ways to skirt the system. Blackberry PIN (personal identification number) messages, cellphone texts, and messages on Facebook and Twitter would never turn up in the archives or access-to-information requests, unless someone stored them.
Just this week the NDP asked Canada’s information watchdog to investigate the systematic deletion of emails by a former ministerial staffer who worked for Jason Kenney.
Even Parliament Hill reporters will occasionally get an invite to off-the-grid communications by government employees asking: “What’s your PIN?”
The information commissioner, Suzanne Legault, has called for a move away from the honour system and requested that use of Blackberry PINs be banned for government communications.
Clement has rejected that request.
As for the U.S., Clinton’s email antics are being scrutinized for their legality. On one end, some critics have called it illegal and suggested it could be criminal. On the other end, defenders have said there’s nothing to it.
But analysis this week from a pair of experts at the National Security Archive at George Washington University suggests the truth could be somewhere in the middle.
They said long-standing guidance from the U.S. National Archives and Records Administration is that emails that discuss government business are to be considered records.
They also said that the 65-year-old Federal Records Act put heads of departments — like Clinton, at the time — in charge of maintaining records on “current (government) business.”
“The secretary of state was responsible for all of the department’s records. Yet she failed to preserve even her own,” said the analysis by Nate Jones and Lauren Harper.
So why should anybody care about the emails? Shepherd said people have a right to know who politicians are talking to, and how that effects decisions and things like the awarding of contracts.
“The public expectation of transparency is much higher now,” he said. “We want to know who is influencing government decision-making.”
— With files from Stephanie Levitz in Ottawa