GAS PLANT SAGA HEATS UP
What McGuinty staffers told OPP
Twenty-one minutes after she responded “I have no records” to a Freedom of Information request seeking documents from the office of outgoing Ontario Premier Dalton McGuinty on the infamous cancelled gas plants fiasco, Laura Miller’s “life partner” Peter Faist tried to wipe clean her desktop computer. It was Jan. 24, 2013. McGuinty had just quit as premier of a minority government, dogged by a decision two years earlier to cancel unpopular gas-powered power plants in two vulnerable Liberal ridings during an election campaign. A legislative committee, driven by the opposition who held the balance of power, was digging into the $1-billion cancellation cost. So were journalists, who had been asking for government documents through Freedom of Information requests since the previous fall.
Faist, who tried to install the White Canyon erasure program on Miller’s computer, failed. To use the software, he needed what are called “administrative rights,” a special login and password usually restricted to IT staff.
Thus was born “Pete’s Project,” as Miller called it, which early the next month saw Faist spend three days in the offices of McGuinty, wiping the computers of 21 senior staff, some of whom weren’t told what he was doing.
The information — and the claim that it was Miller who set the wheels in motion — is contained in a previously sealed “production order” from Ontario Court Judge Jonathan Brunet. The Ontario Provincial Police sought the order to force the Ontario government to turn over the relevant records.
The “information to obtain” order is replete with police allegations and details of Livingston’s and Miller’s statements to the OPP.
Livingston was McGuinty’s chief of staff and Miller Livingston’s deputy.
Postmedia lawyers went to court in Toronto this week, where Livingston and Miller are on trial before Ontario Court Judge Tim Lipson on charges they deliberately destroyed data about the gas plants.
Lipson ordered the packet unsealed Wednesday with the agreement of defence and prosecution lawyers.
The statements Livingston and Miller gave the OPP were “cautioned” statements — it means the pair were warned that they could face criminal charges — and were video-recorded. Both had lawyers with them. Faist testified Friday at the trial and briefly acknowledged having done what he called “a test pilot” on Miller’s computer and agreed it hadn’t worked. His evidence will continue Monday.
According to the unsealed documents, the day after Faist’s unsuccessful attempt to wipe his spouse’s computer, Livingston approached Peter Wallace, then the province’s top public servant and the secretary of cabinet, asking for the administrative rights.
Within the week, Livingston had “broken through,” as he put it in an email to Miller, and got the access.
What neither he nor the province’s chief information officer, David Nicholl, ever told Wallace was that the access they were seeking for Livingston was sweeping and unprecedented, and would allow the user (Faist) to delete or manipulate data on all 90 computers in McGuinty’s office.
Neither did Livingston tell Wallace that they were farming out the job to Faist — an outsider who wasn’t on staff or securitycleared — or that Faist had already tried once and failed.
What Faist had going for him was that he was Miller’s partner and that his company, NetCon1, had done computer work for both the Ontario Liberal Party and the Liberal Service Caucus Bureau to the tune of almost $225,000 over a four-year period ending March of 2014.
Livingston had once told Wallace’s executive assistant, Steen Hume, that they might get Miller’s boyfriend to do the job, but both Hume and Wallace, when he learned of it, told police they never dreamed they would actually do it, so far beyond the usual practice was it.
As the normally genteel Wallace furiously told the OPP, “… like it’s one of those things that you really don’t take that seriously because, it’s like, really?
“Like, the tape (his interview was also being recorded) doesn’t get my body language here, but really? Like, that’s just such a piece of s--t. Like, I’m not going to write you a memo saying don’t do that because you already know, don’t do that.”
Wallace testified at the trial for several days, but it’s in the OPP interview that the breadth of his betrayal, when he discovered much later that he’d inadvertently OK’d the extraordinary access being given to Faist, is revealed.
He believed, he told the police, that Livingston and others had gone “behind my back to undertake document destruction on a Government of Ontario asset” and that their duplicity “frankly humiliates me…. I had a right to expect that they were being direct and honest with me…”
Wallace is now the City of Toronto’s top public servant.
Both Miller and Livingston told police that they only wanted to delete personal files, not gas plant documents. Miller said Faist was hired because it would have been an inappropriate use of government resources to delete personal or political data.
Project Pete actually had its roots, Livingston told the police, in a December 2012 meeting with a who’s who of McGuinty’s staff. (McGuinty himself was never the subject of the police investigation.)
All there — Livingston’s various deputies, like Miller — agreed the personal information on their computers needed to be wiped before incoming premier Kathleen Wynne and her staff moved in.
It apparently occurred to none of them to use the in-house IT staff for the Premier’s Office and Cabinet Office (called POCO for short) who were embedded in their quarters. Senior IT staff have testified at the trial that they routinely deleted personal data for departing staffers, particularly during transitions.
Livingston denied even knowing there was an IT unit, telling police, “…that’s news to me. Like, I didn’t really know these people existed.”
He had been working in the premier’s office only nine months, but had quit a successful career as an executive at TD Bank in 2005 to join Infrastructure Ontario, a Crown corporation, as its president and CEO.
When asked what he had done with the personal data on his Infrastructure Ontario computer, he said, “I’m presuming they got rid of that.”
“You went to terrific lengths in the Premier’s Office to make sure it’s eliminated, but you walked away from it at Infrastructure Ontario?” Detective-Constable Steve Lawson, disbelieving, asked him.
Livingston replied that “we did have our own IT group…”
According to him, “Laura Miller was the one who suggested that her spouse, Peter Faist, would be able to accomplish the task.”
Miller didn’t remember it that way. She told the OPP in her Oct. 22, 2015 interview, where she was accompanied by her-then lawyer Clay Ruby, that “someone” — she didn’t remember who — had suggested Faist.
Livingston was interviewed twice by the OPP, Oct. 1 and 8, 2015; his lawyer Brian Gover at his side.
Livingston told them the hiring and scope of work to be done by Faist was assigned to McGuinty Chief of Staff Operations Dave Gene.
But Gene told the OPP that all he was ever asked to do was find a way to pay Faist — who earned $11,017 for the work by the Liberal Caucus Service Bureau.
Ironically, the most interesting thing about the information in the production order — which reveals either a compelling tale of duplicity or a gong show of ineptitude — is that much of it, sworn by OPP Detective-Constable Andre Duval, may never make it before the judge.
Before the trial itself began, lawyers for Livingston and Miller managed to cast sufficient doubt upon the independence of the OPP tech crimes expert, retired Detective-Sergeant Bob Gagnon, that the judge ruled he didn’t have the neutrality required of an expert witness.
Gagnon had been too involved in the investigation, the judge found, though he said he had no doubts of his integrity or expertise.
As a result, Gagnon wasn’t allowed to give expert evidence.
Instead, prosecutors and defence lawyers signed an agreed statement of fact, admitting that Gagnon had recovered 632,000 deleted files, of which only 400 were created by users, or people.
It’s the sort of information that, absent interpretation, means little to laymen.
The admission didn’t even say if the emails now on exhibit at trial were among those Gagnon recovered.
Many were, Gagnon would have testified, because they were found only in the “sync” folder, which isn’t visible to users.
Of more than 320,000 emails Gagnon recovered from 20 computers in McGuinty’s office, including Livingston’s and Miller’s, only 102 concerned the gas plant controversy.
Given the involvement they suggest, and the fact that the gas plants had been the single burning issue for the Liberals for two years, Det.-Const. Duval, as he said in his 194-page ITO, found the lack of records “unusual.”
One final touch: Not even Peter Faist knows what he removed from those computers. He told the OPP he didn’t know if government records were deleted.