That didn’t come in the manual ...
Why, there was no formal training for David Livingston and Laura Miller on their record- keeping obligations as political staffers in the office of former Ontario Premier Dalton McGuinty! None!
There was nothing in all the public service instructions on document retention that explained what a “substantive” contribution to decision- making might be! How was a person to know?
And t here was nothi ng, anywhere, that suggested that having an outsider come in to wipe clean computer hard drives was wrong, and that the security- cleared Queen’s Park Information Technology folks could nicely do the job!
This, in cross- examinations by lawyers for Livingston and Miller over the past week or so, appears to be if not the pair’s defence then at least one line of it: We surely didn’t do anything wrong ( they are, after all, pleading not guilty) but if we did, how were we to know it was wrong?
The two, respectively the one- two power in McGuinty’s office, are charged with three counts each, all related to their alleged destruction of documents relating to the former government’s billion- dollar decision to cancel and relocate two gas- fired power plants in Mississauga and Oakville.
As my former colleague and frequent National Post contributor KellyMcP arland wrote me ina note the other day, “This trial is amazing … the defence seems to be ‘ Yes, I’m intelligent and talented enough to be the top operative in the office of the Premier of Ontario … but I’m not bright enough to understand … when the province’s top bureaucrat emphasizes” the need to preserve relevant records.
The former top bureauc rat, Peter Wallace, of course, did just that in a Jan. 31, 2013, memo he had sent to Livingston, who was hoping to get an administrative password purportedly to erase his personal information.
Wallace reluctant ly agreed to give him the special password, but wanted Livingston alerted to his record-keeping obligations.
Wallace had him warned that with a Freedom of Information appeal underway involving McGuinty’s office and an outstanding order for documents from a legislative committee, it would be best to search out and preserve any records related to the gas plants.
According to what prosecutor Sarah Egan alleged in her opening statement to Ontario Court Judge Tim Lipson weeks ago, Livingston and Miller intentionally destroyed documents “for the purpose of thwarting the public’s right to accountability and transparency” — and, just days after Wallace warned Livingston to keep records, Miller’s “life partner” Peter Faist was hired to wipe hard drives off 20 computers in McGuinty’s office.
Lawyers have taken some of the province’s most senior public servants through arcane government instruct i ons on record- keeping and, more germane to this trial, record-deleting.
Prosecution witnesses Wallace, lawyers William Bromm and Don Fawcett and before them retired chief administrative officer Linda Jackson have all been questioned at length about the nuances of the government’s obligation to document its decision-making.
For the record, they have all been magnificent, the antithesis of the cynical and manipulative forces at work in McGuinty’s office, as revealed in their own emails, recovered by the OPP and now an exhibit at trial.
They all worked for or with in high- level capacit i es POCO, t he acronym widely used to describe the Premier’s Office/Cabinet Office. Most if not all had dual roles — to advise and support the premier of the day, while also ensuring that the machinery of government served the best interests of the actual public who pay the bills.
The i nherent conflict in this dual role was best exemplified by Wallace, who was in an agony of indecision about granting Livingston the special administrative password: His instinct was to refuse, but he was bound by convention and precedence, so he yielded, but with the proviso that Livingston have his responsibilities spelled out.
But it may have been Will i am Bromm, the l awyer who drafted much of that memo, who put it best.
He was being questioned by Scott Hutchison, lawyer for Miller, about the alleged “gap” between what was spelled out in government policies about wiping hard drives and who could do it and what wasn’t.
In other words, there was nothing in black and white that said it would be POCO IT, and there was no apparent prohibition on outsiders being brought in to do it.
“At the time that memo was written,” Bromm said with a grin. “It didn’t need to say it.” It was so beyond the imagination back then, in other words, he couldn’t have contemplated it.
Hutchison snapped that Bromm was laughing and it wasn’t funny.
“It is f unny,” he s aid cheerfully.
“You are trying to interpret a memo by a set of circumstances that happened later, and you’re not giving me the same courtesy.
“It doesn’t say that ( government IT was to do the job). It would say that now.”
WHAT WAS SPELLED OUT IN (POLICIES) ABOUT WIPING HARD DRIVES.