Saturday, December 26, 2009

Unavailable documents déja vu

Excerpt from: The Report of the Somalia Inquiry, Volume 5

Unavailable Documents

We were also often frustrated in our attempts to get documents known to have existed but that were unavailable to us. Examples include the National Defence Act Review, the Chief Review Services (CRS) studies, and the Kipling Reports.

In September 1995, Inquiry staff requested a copy of the National Defence Act Review.72 Other documents in our possession describe this work as a review of the military justice system conducted internally by the Department and presented to the Defence Management Committee (DMC) in January 1994. A month later SILT replied, stating that the document was under consideration by the Judge Advocate General (JAG) and that it was "not possible to give an exact date when the request will be answered".73

In February 1996, SILT forwarded to us a letter from the JAG stating that the Department had established a process to review the National Defence Act and brief the DMC, and ultimately the Minister, on recommended changes to that act. Although the consultation phase had ended in the summer of 1994, the report was not yet finalized, and the draft would not be released to us.74

Over a year after the original request, in November 1996, we sent a further letter to see what progress had been made. SILT's response, a month and a half later, was "[a]lthough the current rationale for withholding this documentation remains unchanged, the Office of the Counsel for the Government of Canada remains willing to discuss the process. For these reasons, SILT's perspective is that this request will be considered closed".75

After nearly a year and a half, we were no further ahead in obtaining the desired information. We wanted to study the review to understand the areas identified for change by the Department and the nature of those changes. Instead, well over a year after the creation of a draft report, the Department continued to deny us a copy, giving no indication when the report would be available. SILT's final comment on the matter was that it considered the request closed.

In November 1995, we asked for a complete list of the studies prepared by the Chief Review Services in DND since 1991.76 The CRS is responsible for the internal investigation of issues, often at the request of senior departmental officials. Its studies were of interest because the Department's own views of issues being investigated could prove quite revealing and helpful to our work. In December, we amended that request, asking for a list of all studies and reports by the CRS since the position was established.77 This list was provided in March 1996. In April, we asked for a number of documents of interest from that list.78 This request remained outstanding as of August, and we sent a reminder to SILT, increasing the priority of that request.79 In December, SILT forwarded the majority of the requested documents. In January 1997, additional documents were forwarded. A number of documents were not included, however, because they had been "destroyed" in June 1994.80 No other information was provided about these documents, which included an evaluation entitled "Departmental Evaluation and Accountability Reporting" and an assessment entitled "Public Information", presumably covering the dissemination of information to the public.

In December 1995, we made a high­priority request asking SILT for information about documents known as the Kipling Reports and asking for copies of such reports produced in the years 1993 and 1994.81 In February 1996 SILT replied that the Kipling Reports are bi­weekly reports compiled by the NDHQ Secretariat to inform senior staff of current DND issues and are based on information supplied by NDHQ directorates. SILT reported that, based on telephone conversations with the NDHQ Secretariat, "all KIPLING Reports from 1993 have been destroyed and copies are not being kept any more".82 However, no mention was made of the Kipling Reports from 1994, which we had also requested.

After receiving nothing more on this matter, we wrote back to SILT in December 1996, asking for a more thorough search.83 SILT's response was that a broadened search revealed that all recipients of the report had destroyed the 1993 and 1994 copies according to records disposal guidelines and that the documents were not available in the Department or the government.84 Once again, documents that were of interest to us were ultimately unavailable after many months of waiting. Even more disappointing was the fact that a comprehensive search was conducted by the Department only upon a specific request from us and that SILT did not take this step on its own initiative.

The CRS studies and the Kipling Reports are just two examples of the destruction of high­level documents with no apparent regard for the loss to corporate memory. It is understandable that copies distributed to individuals have become unavailable, but we have more difficulty accepting that the individuals or offices responsible for producing such documents would not retain any records.

The Need to Hold Hearings on Document-Related Issues

Because SILT had failed to deliver all the relevant documents on time, we had no choice but to begin hearings before we had received all the documents. Evidentiary hearings began in October 1995, and as they proceeded through the fall of 1995 and continued through the winter of 1996, we continued to receive, process, and review new documents, including documents of direct relevance to the hearings already under way.

Because of the serious difficulties that we had encountered in obtaining disclosure from SILT, we were obliged to hold public hearings to determine why we were not receiving documents necessary for us to fulfil our mandate and whether this deficiency was deliberate.

Pursuant to our terms of reference, we began hearings in April 1996 related to the integrity of the documents delivered to us, The main issues explored were non­compliance with our orders for production of documents; the alleged destruction and alteration of Somalia­related documents; discrepancies in the NDHQ logs; and missing in­theatre logs.

Alteration and Attempted Destruction of Somalia Related Documents

Later in this chapter, we detail the complexities surrounding the alteration and subsequent attempted destruction of Somalia­related documents. This issue resurfaced within the DGPA as a result of our order for the production of all relevant documents. While other areas of the Department submitted Somalia­related materials pursuant to SILT's instructions, the DGPA had not complied, although it knew of the requirement. On the contrary, arrangements were made by supervisors in DGPA to destroy documents requested by us to cover up their previous deceptions. This plan was unsuccessful, however, because the arrangements were discovered before they were carried out.

During the hearings, many details of the affair were examined, and witnesses for the most part denied responsibility. It was clear, however, that the Department had failed blatantly to comply with our order for production. The actions of the Department were, we concluded, dishonest and deliberate. To cover the original deception, the severity of misdeeds had escalated from artifice to lies to non­compliance with an order for production and finally to the attempted destruction of evidence.