“We have broken through. CO (Cabinet Office) has facilitated and I will be talking to Dave Nicholl (Corporate Chief Information Officer for the Ontario Public Service or OPS) this afternoon about how to actually get the codes and move forward.” (Line 1599)
This was an email sent January 31, 2013 at 10:20 am (readers might make a mental note of that time) from then Premier McGuinty’s Chief of Staff David Livingston to another key McGuinty insider, former Executive Director of the Ontario Liberal Party then Deputy Chief of Staff of Communications and Strategy and Chief of Staff to the Minister of Intergovernmental Affairs, Laura Miller. Days ahead of McGuinty’s exit to private life, Livingston, Miller, and Miller’s techie spouse Peter Faist were scrambling to get the access codes for the computer hard drives in the Premier’s office. They had a plan.
Livingston’s “broken through” email to Miller was recovered by the OPP Technological Crime Unit from one of the computers seized February 19, 2014. The email is one of dozens of smoking guns laid out in the Search Warrant and associated Information to Obtain a Search Warrant (ITO) released in late December when the Toronto Star won a disclosure motion before the Ontario Court of Justice. The Toronto Star gets a big round of applause for winning a court order to release it.
(The version posted by the Toronto Star is a non-searchable image-only pdf. Line numbers quoted here are meant to identify the general location in the evidence to assist readers and are from Appendix C of the Warrant, which is the ITO, unless otherwise noted.)
The following review cross checks the new information in the Search Warrant against the findings of the two gas scandal reports from the Information and Privacy Commissioner and testimony before the Justice Policy Committee of the Legislature in the context of other key events central to the Liberal gas plant scandal, including one of my freedom of information requests.
If you are interested in a concise and methodical chronology of the gas scandal cover-up within McGuinty’s office, the Conclusion chapter of the ITO is what you want. (Lines 2982-3330) It is seven pages of rock ‘em sock ‘em action that reads like a crime novel. The twist is that Ontario citizens and our democracy are the victims.
I have previously noted what an impressive document the Search Warrant is. I noted that during the last election campaign, while the OPP was investigating the gas scandal, the OPP union campaigned vigorously for the Ontario Liberals. Especially for those concerned about conflicted interests and the apparently slow pace of the OPP investigation, the basic time line of the new Search Warrant bears consideration. The new Search Warrant makes it clear that the OPP received a tip from the Ontario Public Service about newly discovered documents on November 21, 2014. Three days later, a very impressive, complex, and detailed Search Warrant was filed. Three days after that filing, the actual document seizure was executed. Only the deeply cynical could consider these facts without lifting their confidence in the OPP.
The facts laid out in the Search Warrant also indicate special notes of appreciation are also due to three Members of Provincial Parliament featured therein: PCs Vic Fedeli and Rob Leone (e.g. line 100, Appendix A) and the NDP’s Peter Tabuns (e.g. Line 421). Without their efforts, the Liberals might have buried the gas scandal forever.
In the ITO, the OPP allege that Livingston committed a criminal breach of trust. Nothing has been proved in court. Livingston has not been charged. Livingston has been quoted extensively insisting he has done nothing wrong. While the OPP’s ITO does not allege any criminal activity on the part of Miller, the evidence presented demonstrates exhaustively that she and Livingston were acting as a team. The ITO states that Livingston and Miller have declined to provide statements to the OPP, although Miller disputes that statement. (Line 2470)
Unlike Miller, Faist has cooperated with the police. In his thoughtful review of the new information, Vancouver-based journalist Bob Mackin identifies them as the “Liberal Odd Couple”. Emails Faist turned over to the police provide several key information links in the story.
From of the point of view of the investigation the police are doing, taking into account how impressive overall the Search Warrant is and Faist’s cooperation with the investigation, the ITO’s emphasize that Faist is an innocent bystander might well make sense.
Table of Contents
1. “Pete’s Project”
2. The Spouse
3. Business of Government is None of Your Business
4. Unfreedom of Information
5. Who’s Records to Destroy?
6. Livingston’s Contradictions
7. Miller’s Contradictions
8. Performance of the Ontario Public Service
9. Civil Servant of the Year
10. First Steps/Next Steps
1. “Pete’s Project”
Livingston’s “we have broken through” email was in response to a week-long series of emails from Miller prodding Livingston to secure the codes. The handover from McGuinty to Wynne was days away. Six days earlier, Miller and Faist’s test run install deleting software called WhiteCanyon and to scorch her hard drive was thwarted by the locks on her government-issue computer. (Line 1190)
The code phrase Miller used in emails planning document destruction throughout the Premier’s Office was “Pete’s Project”.
Other figures in the Premier’s Office feature in the ITO but evidence that any of them were guided by a sense of responsible public service is noticeably absent.
Take the example of Dave Gene, Chief of Staff for Operations in the Premier’s Office. Gene acknowledged in an interview with the OPP that he hired Faist to delete “personal data” on the computers of Premier’s Office staff (line 1029, 1179) However, the ITO notes that “Mr. Gene failed to advise the investigators that he negotiated and paid an amount of $10,000.00 to Mr. Faist prior to the work being accomplished by him in the Premier’s Office.” It seems significant to me that Gene’s records were among those identified in advance for destruction, discussed later in section #5. The ITO does not comment on whether Gene was asked if he knew his records would be on the destruction list at the time he was cutting the cheque to Faist.
2. The Spouse
Most of the main stream reporting on the new evidence made available in the ITO, including the reports in both the Globe and Star, focuses on Laura Miller’s spouse Peter Faist and the $10K payment to Faist picked up for a few days of deleting the contents of government hard drives.
The ITO makes it clear that Livingston was using an outside contractor with personal ties to Miller as one of many layers to cloak the cover-up scheme that the Premier’s Office was running. (Another example was that Livingston used his secretary as a cut out to pick up the access codes needed for the scheme. Lines 370, 1727) As the OPP observes in the ITO,
“Even though David Livingston had all the resources of the Ontario Provincial Government available to him, he decided to use Peter Faist, the spouse of Deputy Chief of Staff of Communications and Strategy and Chief of Staff to the Minister of Intergovernmental Affairs (McGuinty), Laura Miller…I believe that Mr. Livingston should have known that a public servant might be reluctant to delete or change data on the desktop computers of the Premier’s Office. A public servant would also be aware of his responsibility and the consequences of not following the procedures when dealing with government records…I believe that it is reasonable to infer that Mr. Faist would most likely follow the direction of Mr. Livingston and not concern himself with government policies pertaining to document retention. I believe that this decision might have compromised the integrity of the Premier’s Office.” (Line 2662-2673)
A feature of Faist’s involvement that seems interesting are his comments to police and also his other public comments about the limitations of deleting hard drive contents on individual computers when those computers are networked. Faist undertook deletion efforts, the ultimate effectiveness of which he may have doubted. The purpose of the deleting seems to have been focused on defeating official document disclosure requests.
In securing the services of Faist, Livingston appears to have violated many OPS rules that apply to retaining contractors. (Line 1138)
3. Business of Government is None of Your Business
The ITO piles up a mountain of evidence, including an approximately 50 page chronology within Appendix C, of the Premier’s Office under Livingston’s guidance undertaking increasingly frenzied efforts to find ways to destroy government records during the last months and days of the McGuinty regime.
The ITO documents Livingston in early August 2012, anticipating future needs to defeat FOIs, casting about for methods to keep secrets. At that time, a key element of cloaking advice Livingston gained was an assurance that back-up files would not be used to respond to FOIs. (line 265) (This factor later reappears during my gas scandal FOI appeal.) With assurance in hand that back-ups are secret, on August 9th, Livingston relayed to some Premier’s Office staff advice that deleting emails on desktops in both the inbox and the deleted files folder would suffice. List of people he circulated this advice to were:
Dave Phillips (Line 262)
Except for Roberts, this list of characters is a recurring list that appears at several key points later in the story. Roberts is a significant figure in the context of my “Ontario Electricity Regulation Crisis Report Series” to be discussed later.
In August 9 email to his staff, Livingston concluded with a line quoted by the Globe, the Star, Bob Mackin and others:
“…nothing is more confidential than talking rather than writing!” (Line 934)
This email from Livingston was recovered from a hard drive seized by the OPP February 19th this year. The ITO’s understated remark on Livingston’s note:
“there was no direction in this email from David Livingston on the necessity to preserve government records or follow the Premier’s Office Records Retention Schedule.” (line 947)
Evidence obtained by the police showing Livingston’s direction to staff about how to cover their tracks vindicates earlier findings of the Information and Privacy Commissioner. In her June 5, 2013 report “Deleting Accountability” the Information and Privacy Commissioner Dr. Cavoukian noted,
“I find that there was a culture of avoiding the creation of written documentation on the gas plants issue.”
I don’t see any new information documented in the ITO that contradicts Cavoukian’s analysis in her June 5th gas scandal report or her later August 30th follow-up report except where it appears that key McGuinty office functionaries directly lied to her, a subject I’ll turn to later.
Consistent with McGuinty’s testimony before the Justice Policy Committee, in his interview with the OPP, which he declined to have recorded, the former premier feigns total obliviousness toward laws requiring the preservation of government records. McGuinty specifically denies directing Livingston to delete documents. (Line 1288) McGuinty told police that he was “unfamiliar with records management policies.” (Line 1697) The ITO says,
“Mr. McGuinty stated that he communicated with his Chief of Staff David Livingston through meetings. He stated that minutes of those meetings were not documents and this supported the oral nature of his government.” (Line 1712)
Remember that when McGuinty testified at the Justice Policy Committee under oath May 7, 2013 he claimed that “I did not have an office computer; I did not use a government email.” However, when he testified June 25, 2013, under cross-examination from the NDP’s Peter Tabuns, McGuinty admitted that while managing the gas plant file, he used the email account <firstname.lastname@example.org> and also used a Blackberry. (See around 1320) (Shout out to @ on Twitter for noting McGuinty’s Blackberry usage.)
Perhaps McGuinty forgot that it was his government that passed the province’s Archive and Recordkeeping Act in 2006.
Perhaps referring back to the early days of the Iroquois Confederacy, McGuinty also told police that “most governments and democracies” operate without minuted meetings with the leader. (Line 1713) What kind of organizations operate without minuted meetings with the leader?
In the sorry story of the gas scandal, the most powerfully stated refutation of McGuinty’s junk about no records came from the Information and Privacy Commissioner’s June 5, 2013 report “Deleting Accountability”, where Dr. Cavoukian noted,
“Without a written record of how key government decisions are made, the government can avoid disclosure and public scrutiny as to the basis and reasons for its actions.”
4. Unfreedom of Information
On October 10, the nightmare that the Premier’s Office had been dreading arrived. The NDP had filed an FOI asking for documents from the Premier’s Office referencing “Project Vapor” or “Project vapor” for 2010, 2011, and 2012. Just five hours after he received the NDP’s search request Livingston shot back an email, recovered from a seized hard drive, saying “I have nothing responsive.” This statement stands out as one of many Livingston may regret.
We now know that operation “Pete’s Project” was still months away. The new evidence the OPP are seeking by way of this most recent Search Warrant seems likely to spell big trouble for Livingston. Remarking on the 24 hard drives recovered in the earlier computer seizure, 21 of which contained files from the Premier’s Office, the ITO notes “David Livingston’s work station hard drive had the highest number files deleted, 118,348.” (Line 2444, 2465) In section #6 of this review, I address Livingston’s September 10, 2013 testimony to Justice Policy where he swore to his “long-standing” clean inbox policy.
On January 15, 2013 another FOI landed in in-boxes around the Premier’s Office. (Line 991, 2503) It was from me. Readers following this series have seen previous reports on it, including my appeals to the IPC and the role that FOI played in the IPC’s June 5th report. A summary of that reporting in my “Gas Buster’s” series is presented below.
From the day my FOI arrived, until the first day of Wynne’s government on February 11, 2013, it appears from the intense pace of communication and meetings documented in the ITO that “Pete’s Project” was a top priority for Livingston and Miller.
My FOI was originally filed in November 2012. The FOI reflected my concern that the mandate of the Justice Policy Committee, and information requests pursuant to that mandate, to that point omitted the role of the Premier and also omitted developments in 2012. The motion at the Estimates Committee initiating the hearings sought gas scandal disclosure specifically from documents created in 2010 and 2011 only. My FOI reads:
Please provide all documentation, including but not limited to all correspondence, minutes, presentations, emails, videos, audio recordings, other electronic communication, handwritten notes, reports, briefs, maps, photos, any other communication, or any other document whether it appears or appeared on paper, microfilm, computer disk, or any other medium, produced, sent or received in the period January 1, 2012 through October 1, 2012 by the Premier, the Premier’s Office, consultants to the Premier’s Office, or advisors to the Premier’s Office, relating to the construction, contracting, relocation or any other arrangements, associated with the gas-fired power plants once contracted for development in Oakville by the firm TransCanada Energy or related entities and in Mississauga by the firm Eastern Power or related entities. Where any of these materials are available as electronic text, .PPT, .PPTX, .ODT, .EXE, .DOC, .DOCX, .EML, .MBX, .PST, or any other kind of application file, please provide the search results in machine searchable format.
(The Justice Policy Committee’s mandate was expanded March 5, 2013 to finally include events in 2012 and also to include the Premier’s Office.)
My reporting on my FOI research started with this report — Part 23 of this “Gas Busters” series — wherein McGuinty’s office claimed that the only responsive documents they had were a handful of mostly PR fluff. My next report — Part 29 of this series — is my appeal to the Information and Privacy Commissioner arguing that the fluffy response to the original FOI could not have been a complete reply. The next report was Part 41. In it documents disclosed by the Premier’s Office, then under Wynne’s control, containing material from the Government House Leader’s office showing deliberations over parliamentary strategy and costs. Part 42 is a letter from the Premier’s Office to the IPC in response to my appeal identifying a list of individuals claiming to have not responsive documents. The same list of characters will later appear in an affidavit discussed later. This new material indicates that emails from the Premier’s Office’s former Chief of Staff, former Principal Secretary, and former Deputy Director of Policy responsive to my FOI for 2012 gas plant docs have been destroyed. The letter states, “It has also been confirmed by IT staff that these emails accounts cannot be restored from any back-up tapes.” Parts 43 and 48 were procedural notes indicating that I was requesting an adjudication of my appeal to the IPC. Part 53 was posted just before Laura Miller testified to the Justice Policy Committee, wherein I document her role in my FOI saga, also identify other documents disclosed elsewhere in the Committee’s discovery process authored by Miller, and ask “How is it that Laura Miller participated in a search for the documents I requested but failed to discover any documents that we now know she authored?” The new Search Warrant abundantly answers that question. Part 54 reports on my appeal submission to the IPC. I asked “Do Ontario citizens have actionable rights to access government documents detailing how they are conducting public business? Or, are the apparent information rights of Ontario citizens simply a smoke screen that allows government to conceal from public view anything that might be inconvenient to governments while those governments go about pursuing their self-interested agendas at public risk and expense?”
Here is a link to the original affidavit issued by the Premier’s Office on the day Wynne became premier in response to my FOI. In the affidavit, Miller and Livingston and a bunch of other insiders like Neala Barton (now a senior exec at the PanAm Games) swear to having none of the gas plant documents I requested.
Emails recovered by the OPP from seized drives show that Livingston received from a person administering the official response to my FOI at 16:48 pm on January 15, 2013 my detailed request for disclosure. Livingston replied at 19:17 pm the same evening “Nothing here.” (Line 1001) Miller emailed a similar response to my FOI a few days later. As the ITO makes clear, Faist did the dirty deeds to the government documents on the computers in the Premier’s Office AFTER Livingston and Miller were served with my FOI. The ITO notes Detective Constable Duval’s statement that “I believe that a standard search would reveal that Mr. Livingston had responsive documents.” Duval makes the same remark with respect to Miller.
5. Who’s Records to Destroy?
The ITO is chock-a-block with documented evidence of the central Premier’s Office staffers deeply engaged in managing the gas plant file, coordinating the non-release of information, and developing messaging. (For example, lines 1862-1935) Those staffers included:
Recalling Livingston’s email directions from August 2012 on how to keep their biz concealed from the prying eyes of mere citizens discussed in section #3 of this report, only Debra Roberts is missing.
Presenting emails recovered from seized computers, the ITO includes several emails between Livingston and Miller on February 1, 2013 setting up the list of computers to be wiped. The ITO identifies all of the individuals listed immediately above on their list of computers to target for deletion.
There is evidence in the ITO that at least some of the folks on that list were not passive bystanders. For example, after the list was developed, the codes obtained, and “Pete’s Project” initiated, Livingston and Miller got the following email on February 4 at 5:59 pm from Wendy McCann (McGuinty’s Executive Director of Communications): “Is Pete or someone else wiping our hard drives?” Hours later, Livingston replies: “Yes.” Miller immediately chimes in with additional details and then McCann, at 8:24 pm replies: “Great.”
This exchange is illustrative of how the whole gang were coordinating with each other to destroy records immediately after my FOI was brought to their attention and with outstanding requests from the NDP’s FOI and Justice Policy Committee hearings on the gas scandal proceeding. Notice also the joint responsibility of Livingston and Miller.
The ITO states the obvious: “I believe it is a reasonable conclusion to draw that efforts were made to ensure that potentially damaging information would not be made available through a Freedom of Information request or through the Standing Committee on Justice Policy.” (Line 1983 and 3235)
The day after the exchange quoted above involving McCann, Livingston and Miller, Faist gained access to the Premier’s Office and to its computers and implemented his destruction program.
Compare the list of key insiders identified in the ITO quoted above with this list of Premier’s Office staff who are named in this sworn affidavit attesting to the claim that they had no documents responsive to my FOI:
Six of the eight names on the list given to me in the affidavit match names on the list Livingston and Miller assembled of insiders whose records were to be destroyed.
In what appears to be a classic case of covering ones derrière, Neala Barton, who the record shows was heavily involved in managing the gas plant file and is now a senior executive with the Pan Am Games, is identified in the ITO telling police that she checked to make sure that cleaning hard drives was approved by Cabinet Office. (line 2190)
6. Livingston’s Contradictions
Livingston’s lawyer has written to the OPP stating his position that Livingston’s sworn testimony to the Justice Policy Committee and also his statements to the Information and Privacy Commissioner are not available for use in a criminal investigation or prosecution since he was compelled to appear. Whether or not the lawyer’s position will be accepted by a court with respect to the OPP’s breach of trust investigation, the evidence in the ITO powerfully demonstrates a mountain of contradictions between Livingston’s public statements and his actions. Note also that Livingston’s lawyer makes no comment on the admissibility of the affidavit that Livingston and the gang used to brush off my FOI.
In her June 5, 2013 report Deleting Accountability, the Information and Privacy Commissioner details responses she obtained from Livingston, many of which are directly contradicted by the evidence presented in the new ITO. The June 5th reports Livingston as claiming:
• His discussions with the CIO and the Secretary in January were motivated by a concern that email accounts for departing staff must be decommissioned to avoid the possibility that old accounts would continue to accumulate emails after staff had departed.
• The conversation was not motivated by an attempt to inappropriately delete emails or other electronic records.
• In his conversations with the CIO, he learned that his staff already had the administrative passwords they needed to “wipe clean” the electronic records.
• His view was that there was a robust process for handling freedom of information requests in the former Premier’s office that he was familiar with. He added that in his opinion, there was a culture of full compliance with freedom of information requests.
Contrary to each of these claims, the evidence in the ITO makes it clear that Livingston’s inquiries to the OPS over document management were seeking ways to thwart information disclosure, that he sought special computer access codes directly for the purpose of destroying records, and that a specific motivation was to defeat freedom of information requests.
Here is another statement Livingston made to the IPC directly contradicted by the evidence in the ITO:
Livingston did not find it unusual that no one in the Premier’s office had records responsive to the freedom of information requests. He stated that effective May 2012, when he assumed his position as Chief of Staff, the Premier’s office was being “informed” but was not “involved” in the gas plant closure issues.
Contrary to these statements, the ITO documents Livingston’s deep involvement in many decisions and activities associated with the gas plant closures.
One or many examples arose the day after a contempt motion was introduced by then PC MPP Rob Leone in the Legislature against Energy Minister Chris Bentley for failing to release gas plant documents ordered by Speaker. Livingston lead a a discussion in the Premier’s Office on engaging TransCanada for lobbying help to thwart Leone’s motion. On August 28, 2012 Livingston started an email discussion with staff saying:
“A thought — as things move along with respect to the contempt motion re. Oakville, could TransCanada play a role? I can’t imagine they would love having communications with them in the public domain. Is there anything constructive they could do to have an impact on the decision made?” (Line 801)
Notice that this initiative to ask for secret favours from TransCanada was in the midst of renegotiating TransCanada’s power contract worth many billions of dollars. In the ensuing email discussion, nary a syllable is recorded in the available record from any of the participants suggesting that asking for political favours from TransCanada during contract negotiations might disadvantage ratepayers.
Not included in the June 5th report, but captured in notes taken by IPC staff during their interview with Livingston for that report and made available to the OPP, Livingston: “stated that he was not involved in wiping out his own computer hard drive.” (Line 2720) Virtually the entire ITO is documentation on Livingston’s instrumental role in organizing the destruction of documents.
Not only did Livingston give many false statements to the IPC but he also repeatedly perjured himself in his sworn statements to the Justice Policy Committee. Here is his September 10, 2013 opening statement with my annotations interspersed:
Mr. David Livingston: Thank you, Chair. Good afternoon.
The last time I was here, we talked extensively about gas plants. Today it seems that there are three issues being treated as if they are related, and they are not. I want to comment on each separately.
With respect to email management, when I joined the Premier’s office in May 2012, there were briefings on the many issues the office needed to address. Email management policies were not among them. There were no policies or procedures regarding email management, nor was any legislative material offered either by the office or by the Ontario public service.
Nicholl, with support from Cabinet Office, wrote to Livingston reminding him of his legal requirements to preserve records. The memo included a copy of the Premier’s Office Records Schedule which details preservation requirements. (Line 1650) The complete memo with attachments is included as Appendix G of the ITO. Part of Nicholl’s memo noted: “I understand that at the present time there is an FOI related to your office that is currently under appeal (my FOI). As a result, my recommendation would be to preserve the email accounts and records of any individuals involve in that matter until that appeal process is complete.”
In managing their emails, all staff continued to follow practices developed over the years before my arrival. In my case, I followed my own long-standing practices. Emails were my to-do list. Once action was taken, the email was deleted so that it was clear what remained outstanding.
As previously noted, remarking on the 24 hard drives recovered in the earlier computer seizure, 21 of which contained files from the Premier’s Office, the ITO notes “David Livingston’s work station hard drive had the highest number files deleted, 118,348.” (Line 2444, 2465)
We became aware that for departing staff, email accounts remained open and that unread emails were piling up. As chief of staff, I talked to Peter Wallace many times every week on many issues, so I naturally turned to him for advice on how to deal with the situation. The answer seemed to be one of better execution of existing policy: Close the account on a timely basis on the departure of the staffer, which is what we did.
The purpose of Livingston’s communication with Wallace after my FOI arrived January 15 was to obtain computer access codes to destroy government records.
With respect to electronic file management, as chief of staff in the Premier’s office, there was no need for me to create electronic records. So in January 2013, as the outgoing chief, I had no active government files and no records that were not duplicates or transitory in nature. However, I did have some personal files, and as you can imagine, I had some privacy concerns about them. Again, it was perfectly natural for me to turn to Peter Wallace for advice, and the resulting actions were entirely consistent with his advice.
Blaming the Cabinet Secretary Peter Wallace for the Premier’s Office document deletions Livingston coordinated is particularly rich. As noted above, Appendix G of the Search Warrant is an email delivered to Livingston on January 31, 2013 from the provincial civil service’s Chief Information Officer, composed with input from Wallace’s office, setting out in detail the laws and policies on document retention Livingston was required to follow.
As with emails, all staff continued to follow their own long-standing practices for managing their own files.
With respect to the gas plants: As I have said to this committee before, I spent nine months in the Premier’s office, from May 2012 to February 2013. I became the Premier’s chief of staff long after decisions regarding cancelling the gas plant contracts had been made.
Decisions about covering up the gas plant paper trail appears to have been one of Livingston’s top priorities, particularly in the last four weeks of McGuinty’s premiership.
During my tenure, the job of government was to settle disputes with the companies involved. The Ministry of Energy was responsible for the negotiations and kept the Premier’s office informed. Files regarding gas plants did not originate from the Premier’s office, and everything relevant to the settlements came from the ministry. Any interaction between the Premier’s office and the ministry would have been provided under previous information requests. Email and electronic management practices had nothing to do with the gas plant file.
It is possible that the purpose of destroying documents in the Premier’s Office extended beyond the gas plant file, but the priority placed on destroying gas plant information is demonstrated by the correspondence between the list in the FOI affidavit and the destruction list co-created by Livingston and Miller.
Going forward, I have co-operated with all requests to appear before this committee and the Office of the Information and Privacy Commissioner and have answered all questions asked. I will continue to co-operate, and I believe that any direction or recommendations from the committee will be helpful to future staff.
As we have seen above, there are glaring contradictions between the evidence set out in the Search Warrant and Livingston’s statements to the Information and Privacy Commissioner.
7. Miller’s Contradictions
When Miller testified to the Justice Policy Committee, August 6, 2013, she also wove a web of statements contradicted by facts. Here are two glaring ones:
Mr. Victor Fedeli: Then, under oath, tell me, did you have responsive documents to either of these two FOI requests? Yes or no.
Ms. Laura Miller: At the time I did the research, no.
Mr. Victor Fedeli: So what you’re saying is you deleted your emails to do with the gas plant? That’s why you have none—
Ms. Laura Miller: I would delete political, personal and transitory emails.
The ITO documents many emails obtained from seized computers where Miller is initiating and coordinating government responses to the gas scandal. For example, when then energy minister Bentley was asked by the press to explain who decided to cancel the Mississauga power plant, Bentley couldn’t answer as to whether it was the Liberal party or McGuinty. In an email sent by Miller the day this news broke, under the subject line “Energy minister isn’t saying who made decisions to cancel gas plant”, Miller states, “Can we determine if this was a Cabinet or Treasury Board conversation and move this discussion off of the party and over to the government? Governments make decisions here not OLP Platforms or press releases.” (Line 560) In this same email series, Miller adds, “Understand we now have details on what shook down. He has to communicate and own it. Thk.” (Line 573)
Livingston and Miller were not the only Liberal witnesses testifying under oath at the Justice Policy Committee who gave testimony abundantly contradicted by facts. The August 30th report of the IPC documents that Craig MacLennan wasn’t telling the truth when he testified that he always maintained a “clean inbox”. Here is a huge load of MacLennan’s email later uncovered from his inbox.
8. Performance of the Ontario Public Service
Some individual within the Ontario Public Service do not look great in all this but there are also evidence of integrity inside the public service.
Livingston made “Pete’s Project” a top priority for the top civil servants of the day. The Cabinet Secretary Peter Wallace, the Corporate Chief Information Officer for the OPS David Nicholl, the Chief Administration Officer of Corporate Planning and Services Linda Jackson, and many of the top staff supporting these executives were tangled in a flurry of meetings, discussions, memos, and legal briefs focused on Livingston’s access code request around January 30-31, 2013.
Stepping back from the details of gas scandal for a second, it seems to me breathtaking the public service resources consumed at a critical time in government — the leader transition — by the schemes coming out of the Premier’s Office to delete government documents.
One of the tactics Livingston used to get the document destruction job done was to explain little pieces of the overall scheme to the different individuals he needed help from in the OPS. Key pieces of the scheme — that Livingston was planning to use a computer expert from outside the OPS to wipe clean the Premier’s Office computers — appear to have filtered up to Peter Wallace, perhaps in incomplete pieces. Wallace told police:
“At the time, nothing penetrated my consciousness where I thought, oh my goodness, you know, they are stepping right outside procedure here and I better go write them a memo, otherwise, you know, had I really understood that… I could have reasonably assumed that they understood that bringing somebody external to deal with something external, like it’s one of those things that you really don’t take that seriously because, it’s like really?!? Like, the tape doesn’t get my body language here, but really?!? Like that’s just such a piece of shit. Like, I am not going to write you a memo saying don’t do that, because you already know, don’t do that.” (Line 1349-1356)
Where Wallace may have missed putting the pieces together in the pressure cooker environment of the transition period, the facts surrounding David Nicholl’s aid to the Premier’s Office’s deletion scheme suggest a civil servant who went too far in aiding his political masters and then tried to avoid responsibility after the fact.
There are several inconsistencies between the statements David Nicholl made to the IPC and to the OPP. The June 5, 2013 IPC report notes,
“The CIO confirmed that he had been contacted by Livingston in late January 2013, asking for the administrative computer system passwords so that they could transfer electronic records from the desktop computers of staff to portable electronic devices and “wipe clean” the computers as part of the transition process. The CIO understood that the purpose of this query was to ensure that if these computers were redistributed, any data on them would not be available to individuals receiving them. The CIO had some initial concerns about whether he could provide these passwords, and then he learned that the former Premier’s office actually already had these passwords in its possession.” (emphasis added)
The OPP document in detail not just that, but also how, Nicholl knew that the existing passwords referred to in this passage were less powerful, providing only limited computer access, whereas the codes that Livingston sought were more powerful access codes that had to be specially created. His technical staff explained all this to him at a meeting on January 30th. Some points in Nicholl’s testimony to police about that meeting are contradicted by statements to police from the two computer staffers in attendance. (Line 1480) The key difference is that Nicholl denied to police knowing that the special access codes he was ordering his staff to prepare for Livingston were different than the ordinary single user access codes available to seven members of the Premier’s Office Staff. Contradicting him, both OPS computer experts in the meeting independently told police that they explained to Nicholl the difficulty of meeting his request and how unique the request was. (Line 1832)
Nicholl claims that Wallace’s EA and a deputy minister communicated the decision to release the codes to Livingston at a meeting on January 31 at 10:30 am. (Line 1579) There are at least two problems with this part of Nicholl’s story. Remember the time on Livingston’s “We have broken through” email to Miller of January 31 — 10:20 am. The second problem is that the EA and the deputy minister in question reported to police that they did not inform Nicholl to release the codes.
There was obviously communication between Nicholl and Livingston prior to the “We have broken through” email, but that little piece of the story is missing so far.
It seems clear that Nicholl knew what he was doing when, after gaining knowledge about the capabilities of different access codes, Nicholl reassured Linda Jackson that special access codes were previously in the hands of Premier’s Office staff. Critically, Nicholl left out the fact that those special access codes previously granted were far less powerful than the codes sought by Livingston. (Line 1406-1510)
Another point of contention in Nicholl’s statements to the police relates to a meeting on the 30th that included Wallace and Jackson. Nicholl says that the decision of the big Jan. 30th meeting of top OPS people was to provide the access codes. The others at the meeting told police that the outcome of the meeting was to determine if access codes should be provided. (Line 1400) Nicholl followed up the meeting with the top OPS people by immediately meeting two computer technical staffers to direct them to set up the special access codes capable of gaining access to a list of computers in the Premier’s Office.
In Nicholl’s defense, Livingston had failed to inform Nicholl in a meeting between them on January 25th that he needed the access code because Faist’s attempt the previous day to install the deletion software WhiteCanyon had failed. Note also that Nicholl’s January 31 memo — Appendix G of the Search Warrant — to Livingston clearly set out Livingston’s legal obligation to preserve documents. Keep in mind also that on the 26th, Wynne won the Liberal party election to replace McGuinty, so this would have been an intense period of activity for the top civil servants. (Line 1262)
9. Civil Servant of the Year
My nomination for the OPS Public Servant of the Year for 2014 goes to Linda Jackson, the Chief Administrative Officer of Corporate Planning and Services.
Jackson appears time and again throughout the ITO. (Examples at lines 1092, 1129, 1270) Livingston saw her as a threat.
Referencing a recovered email from Livingston to Miller sent the day before Wynne was elected to lead the Liberal party, Livingston notes to Miller his concern that Jackson was an impediment to their document destruction plans for the Premier’s Office. (Line 1385)
Livingston worked around Jackson to get the codes. (Line 1555)
Almost two months after the fact, Jackson discovered that Livingston had got the special access code. She immediately went looking for answers as to how and why. (Line 2400)
A little context might help. The August 20, 2013 report of the Information and Privacy Commissioner called “Addendum to Deleting Accountability: Records Management Practices of Political Staff” was issued in response to new information provided to the IPC in mid 2013 by the Ministry of Government Services, Corporate Security Branch. The new information identified the discovery of backup tapes containing emails of the Energy Minister’s Chief of Staff Craig MacLennan. MacLennan is another of the McGuinty government’s “clean inbox” people (like Livingston) who claimed to have deleted all his emails every day. MacLennan’s claim was central to the government’s explanation for how its responses to motions for disclosure from the Energy Minister’s office on the gas scandal yielded zero documents, a claim that particularly alarmed MPP Peter Tabuns. The Information and Privacy Commission had been told directly by the Ministry of Government during her investigations leading to her June 5th report that the MacLennan emails could not be recovered. In her August 20th report, the Commissioner was critical of the Ministry of Government Services for not doing due diligence that resulted in her forming an opinion on matters central to the gas scandal investigation based on incorrect information.
It now appears that the IPC’s criticisms were taken to heart by the OPS, particularly Jackson.
The ITO indicates that the OPP receive note a report from the Cyber Security Branch of the Ontario government detailing a recently discovered inventory of stored emails from Livingston and Miller. (Line 2863) This report was brought to the attention of the OPP on November 18, 2014 by Linda Jackson. Jackson provided details on how to electronically access the files. (Line 2910) That access was the purpose of the ITO. The Search Warrant was executed November 27, 2014.
10. First Steps/Next Steps
Initially, the gas scandal appeared to many observers as yet another routine case of political manipulation for electoral gain at public expense. I launched this Gas Busters series on the hunch that more was at stake:
Secrecy. Cover-up. Abuse of public trust.
This new series is for all those seeking to uncover the truth of what happened when the Ontario government decided to relocate two gas-fired power plants originally contracted in Mississauga and Oakville and the consequences of those actions.
Ontario’s democracy and its citizens’ pocketbooks are at stake.
More clearly than any previous document, the Search Warrant documents the amoral — perhaps even criminal — climate at the very core of McGuinty’s government.
Livingston character, as revealed by his actions throughout the gas scandal, raises questions about his activities in government outside of the gas scandal. What went on when he was in charge at Infrastructure Ontario?
So far, all of the OPP Search Warrants have focused on government computers. What about McGuinty’s Blackberry and the email account <email@example.com> which McGuinty acknowledged using for official business? Did Livingston and his group also conduct government business on non-governmental email accounts? Where are the text messaging sent to and from their phones?
In late August, the OPP successfully petitioned the court to extend the time the 24 seized hard drives could be kept. According to the order, the OPP is allowed to keep the seized hard drives until Feb 2/15 or “if charges have been laid before that date, until the completion of all proceedings.” Given this schedule, it appears likely that the gas scandal will be back in the news soon.
In the meantime, I suggest that folks who care about the rule of law in Ontario and the honour of our public institutions should should extend thanks and best wishes to the OPP officers working on this case.