McGuinty aide told not to delete emails
The week before David Livingston and Laura Miller allegedly hired her spouse to wipe hard drives in the office of former Ontario premier Dalton McGuinty, Livingston was sharply warned by senior public servants to preserve documents tied to the gas plants debacle.
The Jan. 31, 2013 email from the province’s corporate chief information officer, David Nicholl, was formally made an exhibit Friday at Livingston’s and Miller’s criminal trial.
Livingston, McGuinty’s former chief of staff, and Miller, former deputy chief of staff, are pleading not guilty to three counts each of breach of trust, mischief in relation to data and unauthorized use of a computer — all the charges relating to the pair’s alleged deliberate destruction of gas plant documents.
The plants in Oakville and Mississauga were cancelled in 2010 and 2011, the latter in mid-election campaign, at huge public expense — the total cost could top a billion dollars — amid enormous controversy.
Nicholl told Ontario Court Judge Timothy Lipson that, on Jan. 25 that year, as the government was transitioning from McGuinty to then newly elected Premier Kathleen Wynne, Livingston asked him for an “administrative logon” for the entire premier’s office, a privilege that he said allows the user “to bring in other software.”
Nicholl told him he didn’t have that authority, and told him to ask higher up the civil service food chain.
Within a few days, Nicholl was summoned to an earlymorning meeting convened by Peter Wallace, then the secretary of cabinet, to discuss Livingston’s request.
It was clear, Nicholl said, that the collective antennae was up: “There was general concern around whether to do it (grant Livingston the access) or not to do it,” Nicholl said. “We wouldn’t have had the meeting if there weren’t a fair degree of angst around it,” he told prosecutor Tom Lemon.
Nicholl was dispatched to find out if anyone else in the premier’s office already had that access — seven people did — and said he was then told the next day that Livingston’s request had been approved.
He was told to expect Livingston’s call at 2 p.m. the same day and asked Don Fawcett, “our lawyer for all things records and privacy,” to sit in on that call.
It appears the spidey senses of senior civil servants were tingling madly.
On Jan. 31, 2013, Nicholl sent Livingston a reminder of what records could and couldn’t be deleted during a transition period. It also pointed out that only “transitory records,” those with no long-term value, can be destroyed.
The note had been drafted for him to send, he said, by William Bromm, legal counsel in the cabinet office, and Fawcett.
But incorporated in the two-page email was a stern warning that there was an outstanding Freedom of Information (FOI) request, then under appeal, from McGuinty’s office as well as an outstanding order from the Legislative Assembly “with respect to the production of records related to the closure of the Oakville and Mississauga power plants.
“In light of the risk that this matter could be raised in the House in a new session,” Wallace wrote, “steps should be taken to search for and preserve any records related to these matters and to document those steps in writing, to again avoid any allegation that records were improperly deleted.”
Prosecutor Sarah Egan said in her opening statement this week that the week after Livingston was sent that warning, he and Miller “used Ms. Miller’s spouse, Peter Faist, to wipe the computers” — not the government’s own IT department.
Faist wasn’t a government employee, Egan said, nor was he was “security cleared.”
The prosecutor alleged that the two “acted contrary to the public interest … during a time where the McGuinty government was under intense pressure to produce documents related to the gas plants.”
Egan said the trial is not “about the inadvertent failure to preserve documents but the intentional destruction of data for the purpose of thwarting the public’s right to accountability and transparency.”
Earlier Friday, in a lengthy cross-examination of Linda Jackson, at the time assistant deputy minister and the chief administrative officer for cabinet, one of Livingston’s lawyers, Fred Schumann, suggested the rules around email deletion and document retention were loose and sometimes internally inconsistent.
For instance, one of the government documents Jackson turned over to the Ontario Provincial Police probe — she was the point person who dealt with police — was entitled The Fine Art of Destruction of Transitory Records.
“This was the message the government sent,” Schumann asked. “That transitory records could be reasonably destroyed immediately?”
He appeared to be setting the stage, though it is early days yet at the trial, for what could be called the Mike Duffy defence — that there were so many conflicting rules that, in effect, there were none, and a fellow’s head was left spinning.
That was a key plank of Senator Duffy’s successful defence of a sheaf of fraud allegations. The trial resumes Oct. 16 after a scheduled two-week break.