McGuinty staff told not to delete emails

Court hears that chief of staff warned in writing don’t get rid of power-plant documents

Dalton McGuinty’s former chief of staff was warned, in writing, against deleting certain emails or documents about the Liberal government’s cancellation of gas-fired power plants, a senior bureaucrat testified Friday.

The caution to David Livingston came as civil servants in the cabinet office agreed to grant an administrative password to political staff in the premier’s office, giving them special access to computers during the transition of power from McGuinty to Kathleen Wynne in the winter of 2013.

David Nicholl, corporate chief information officer for the Ontario Public Service, told the criminal trial of Livingston and deputy chief of staff Laura Miller that he was given an email containing the warning by cabinet office legal counsel William Bromm. Nicholl was to relay the information to Livingston, and told the former TD Bank executive that preserving relevant documents before wiping hard drives “will avoid any allegation that you improperly deleted records.”

Livingston and Miller are charged with breach of trust, mischief in rela- tion to data and misuse of a computer system in the alleged wiping of hard drives in the McGuinty premier’s office before Wynne replaced McGuinty in February 2013. The defendants have pleaded not guilty and face up to 10 years in prison.

Nicholl read the warning email in court, mentioning an order from a legislative committee for documents shedding light on reasons for the plant cancellations. There were also Freedom-of-Information requests.

“There is an outstanding order of the Legislative Assembly with respect to the production of records related to the closure of the Oakville and Mississauga power plants,” said Nicholl, who had worked with Livingston on projects when they were both employed by TD.

“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 allegations that records were improperly deleted,” he added, under questioning from Crown attorney Tom Lemon.

The email stressed that documents must be preserved before premier’s staff could “properly deactivate” and erase emails and hard drives of staff leaving the premier’s office as Wynne’s entourage took over.

Prosecutors, who obtained search warrants and seized hard drives from the McGuinty premier’s office for forensic examination, have yet to introduce any recovered emails or documents as evidence in the trial.

Nicholl told Judge Timothy Lipson that there had been “genuine concern” among senior civil servants as to whether an administrative password should be given to the McGuinty premier’s office, but said he had no “specific recollection” what might be done with it.

McGuinty had announced his resignation in October 2012 with the Legislature in a furor over opposition accusations that the government axed the controversial gas plants to save Liberal seats in the 2011 election, which reduced the Liberals to a minority.

Nicholl replied “no” when he was asked if he knew who, in the civil service chain of command, approved the special password, and said no one indicated it would be given to a nongovernment employee.

“I would recall any references to a third party,” Nicholl added.

In its opening statement as the trial began a week ago, the Crown said the password was given to private information technology consultant Peter Faist, Miller’s spouse, who was paid $10,000 to wipe hard drives.

Faist is not facing charges and McGuinty was not a subject of the investigation, which the OPP codenamed Project Hampden.

The case is adjourned until October 16, when Nicholl’s testimony will continue.