Province’s information commissioner won’t investigate alleged deletions of wind farm documents

Ontario’s information and privacy commissioner won’t investigate a wind farm company’s allegations that government officials deleted important documents about cancelling its project because that could duplicate a police investigation.

The opposition Progressive Conservatives’ energy critic John Yakabuski, the MPP for RenfrewNipissing-Pembroke, wrote to commissioner Brian Beamish, asking him to take up claims by Trillium Power Wind Corp. in a lawsuit against the government. The company says that the government made a political decision in 2011 to scrap all potential wind farms out in the Great Lakes, including one Trillium was developing, and then officials erased or hid emails that explained the thinking behind the decision.

The company sued over the decision in 2011. When it sought copies of those documents, both through access-to-information legislation and the process of getting evidence for court, Trillium was told there was almost none to be had.

Trillium didn’t get copies of communications its people knew existed because they’d sent them in the first place, the company says. But it did get material about using codenames for wind-farm projects (which would make them harder to find in searches) and about “purging” files. The company, and Yakabuski, allege that documents disappeared even after government lawyers would, or should, have told everyone to preserve everything relevant because a lawsuit was underway.

Besides being the subject of Trillium’s $500-million lawsuit and now an investigation by the Ontario Provincial Police, the government has a responsibility to keep copies of documents that explain important policy decisions, which is where the information and privacy commissioner would come in. Beamish’s job is to make sure the rules around preserving and releasing documents are followed.

“The allegations made by Trillium in its court action are very serious, are supported by documentary evidence in Trillium’s possession and, I submit, are a matter of public interest,” Yakabuski’s letter says. “I therefore ask that you investigate.”

Can’t do it, the commissioner said late Tuesday.

“We understand that the OPP is conducting a criminal investigation related to allegations made by Trillium and there is also a civil proceeding before the Superior Court in which the destruction of documents is at issue,” said a statement sent by spokesman Trell Huether. “Any investigation by our office would have the potential to duplicate or interfere with the efforts of the OPP. Also, the OPP has extensive investigative powers and resources, and we trust they will conduct a thorough investigation.”

In defending against the lawsuit, the government denies doing anything wrong. There is talk in some of the documents Trillium got of “purging” other files, its lawyers acknowledged in a statement of defence against Trillium’s lawsuit, but that’s about “standard record keeping practices respecting transitory items and does not in any respect refer to the intentional destruction of documents” that would help Trillium’s case.

But what’s “transitory” (like an office email to see who wants coffee) and what’s a “business record” (like an internal debate about electricity policy) is subject to individual staffers to judge, and they don’t always judge correctly.

Beamish’s predecessor Ann Cavoukian investigated allegations that government officials erased documents related to a whole separate decision to cancel construction on two gasfired generating stations in the Toronto suburbs before the 2011 election.

She found a culture of sloppiness around documents, including top staffers in the premier’s and ministers’ offices who didn’t know the law required them to keep anything. Some of them routinely deleted all their emails about everything all the time. They assumed other people would have copies if anybody ever asked, they told the commissioner. A moment’s thought reveals the problem with that idea.

“The simple existence of a ‘delete all emails’ policy is proof that no judgment was brought to bear on whether emails were business records subject to the retention policy, as compared to transitory records,” Cavoukian found, back in 2013.

But ultimately the OPP didn’t consider that criminal. They laid charges against two aides to Dalton McGuinty over what the police allege was an illegal means of getting into government computers to erase things near the end of McGuinty’s premiership (the aides deny wrongdoing and McGuinty was never the subject of any investigation), but not over anyone’s being cavalier with the historical record.

If Trillium’s files disappeared for the same reason, that’s still a problem even if it’s not a crime.