Canada's information commissioner, Suzanne Legault, recommends in a special report to Parliament that specific controls be placed on instant messaging to preserve government records and respect the access to information law.

The report says access to instant (text) messages sent and received by ministers’ office staff is at particular risk.

“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 in a statement.

Her report investigated the use of wireless devices and instant messaging in 11 federal institutions. It found there were approximately 98,000 BlackBerrys issued and that the instant messages, commonly called "PINs," that are sent and received on those devices are automatically deleted, usually after 30 days.

"After investigating the use of wireless devices and instant messaging ... 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.

And the report says the risk of lost information is even greater now that Treasury Board secretariat has proposed new policies that would allow instant messages to be deleted after only three days.

Disable instant messaging

Canada's Information Commissioner is calling for instant messaging to be disabled on most government mobile devices and for more stringent rules around archiving of text messages. (Graeme Roy/Canadian Press) Legault recommends a government-wide policy that would see instant messaging disabled on all government-issued wireless devices, with few exceptions. As well, she argues government departments should set up a way to automatically back up all messages.

And she says the Access to Information Act should be amended to require government officials create records documenting their decisions.

The impetus for her investigation was a complaint to her office about an email received in which one government official asked another to use a "pin" instead of email to communicate.

But, in an interview with CBC News, Legault said it is impossible to determine if government officials are using instant messaging on purpose, to get around access laws.

"I am very concerned because whether people were to do it deliberately or not, the fact is we will not be able to investigate it and we will not be able to find out," she said. "As it stands, there is a significant risk that requesters' rights will not be respected under the act."

NDP MP and ethics critic Charlie Angus said the government likes the use of instant messages precisely because they are not stored or easily tracked.

"The only reason for ministerial staff or government employees to be using instant messenger instead of email is because they know what they are doing is wrong and they don't want it recorded," he said.

Government response disappointing

The president of the Treasury Board, Tony Clement, does not agree with the recommendations and has declined to implement them.

"I really think that's a nonsensical recommendation by the information commissioner, with all due respect," said Clement on Parliament Hill. "The solution to an issue is not to ban the use of instant messaging."

Clement said there are clear rules that if the instant message is to do with government business, it must be archived. If not, it can be deleted.

But Legault says in her report the government shouldn't be relying on individual employees to take the initiative to back up and store messages, especially as several departments conceded that staff are not just using instant messaging to have informal conversations, but rather to conduct government business.

"I am extremely disappointed by the government's response. I am totally for the use of new technology, but we really have to do that in the context where we respect the laws of Canada," she said.

Most expenses outside of scrutiny

Legault said a “gaping loophole” in federal legislation allows Senate and House of Commons administration to elude proper scrutiny.

Speaking about the Senate scandal on CBC News Network’s Power and Politics, Legault said most expenses from parliamentarians fall outside the scope of the Access to Information Act.

"If the House of Commons and the Senate administration was covered by the Access to Information Act, at least Canadians could have made requests for all of the emails and all of the text messages and all of the PIN-to-PIN messages related to any kind of expenses within the House and the Senate," she told Power and Politics host Evan Solomon. “The way things stand now with the Access Act, that’s not covered by the Act.”

Legault would not comment directly on the case of Benjamin Perrin, the former counsel for the Prime Minister’s Office who is named in RCMP documents released last week related to the deal between Nigel Wright and Senator Mike Duffy. Those documents suggest that Perrin’s emails were deleted or destroyed after he left the PMO.

But Legault flagged another problem with records that are deemed to be “transitory” and therefore aren't kept. Right now, the government is functioning on an “honour system” in terms of what is preserved and what is purged, she said.

“I never comment on specific cases just in case we have complaints in our office,” Legault said. “That being said, the obligations in the government, and that includes ministers’ offices and the prime minister’s office, is any record of business value must be preserved.”