Since November 2012, I have been pursuing, using Ontario Freedom of Information and Protection of Privacy Act (FIPPA), official documents detailing what Premier McGuinty knew about the gas plant issues during 2012 up until October 1, immediately prior to his resignation. My reporting on this investigation starts at Part 23 of this series. Parts 41, 42, 43, 48 and 53 provide updates on developments and findings.

Attached is the most recent development in this ongoing story. The attachment is my reply to the submission of counsel to Cabinet Office. My reply was filed with the Information and Privacy Commissioner’s office August 6th.

My ongoing struggle to obtain the information specified in my request illustrates serious gaps in the rights Ontario citizens have to see in a timely way how public business is being conducted.

After discussing the background of my appeal and responding to the excuses presented by counsel speaking on behalf of Ms. Wynne’s government, my conclusions notes in part:

The government’s June 27th submission defends untrustworthy administration of the legislation and fails to explain the destruction of documents.

My rights as an Ontario citizen have been violated. The government has expressed contempt towards the principles underpinning the FIPPA generally and the IPC appeal process specifically.

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?

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(submission to IPC, August 6, 2012)

Subject: PA13-84 – Response to Notice of Inquiry July 3, 2013

This submission to the Information and Privacy Commissioner’s office, copied to Cabinet Office, is made pursuant to your Notice of Inquiry dated July 3, 2013, carrying your appeal number PA13-84 (Cabinet Office file 12-53).

The IPC Notice of Inquiry asks whether I want to share my submission. My response is to invite sharing of my submission. It will be posted to www.tomadamsenergy.com.

Background:

In November 2012, I filed an application pursuant to Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) to obtain documents from the Ontario Premier’s Office related to decisions on the Oakville and Mississauga gas plants.

My amended FOI request was for:

“…all correspondence, minutes, presentations, emails, videos, audio recordings, other electronic communication, and 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 also Mississauga by the firm Eastern Power or related entities. Where any of these materials are available as electronic text, .PPT, .PPTX, .ODTs, .EXE., .DOC, .DOCX, .EML, .MBX, .PST or any other kind of application file, please provide the search results in machine searchable format.”

The substance of my submissions in this correspondence is to respond to the government’s submissions dated June 27, 2013 addressing my FOI appeal. The government’s submission is available publicly here:

Gas Busters Part 53: Laura Miller’s Role in McGuinty’s Gas Plant Cover-up

Response to Government’s June 27th Submission:

The pith and substance of the government’s June 27th submission is that the government made a “reasonable search in the circumstances” in producing its response to my FOI request.

That response comprised 88 pages. The first two documents are versions of a Memorandum of Understanding with TransCanada. After that, the released documents are almost exclusively opinion summaries, talking points, media scrum transcripts, news clippings, and press releases.

Consider the circumstances surrounding the substance of the gas plant issue during the time period that my original FOI requested addressed. Premier McGuinty had just fought an election where the gas plants had been a prominent concern. He had made commitments during the campaign to renegotiate contracts and was active in that renegotiation. Contempt proceedings had been initiated in the Legislature against his Minister of Energy. The government had admitted to $230 million in incremental cost associated with the renegotiations, a figure hotly debated in public by leading experts, including Bruce Sharp. It is against that backdrop that the government suggests that the only documents the Premier’s Office had were 88 pages of fluff.

In considering the reasonableness of the government’s response to my expansive request, I draw the IPC’s attention to the government’s arguments directly contradicting its own position. At paragraph 27 of the government’s response, the government points to the provision of “nearly 30,000 pages of records were produced by the current Premier’s Office to the Clerk of the Committee on May 21, 2013″ in response to a recent expanded request for documents by the Justice Policy Committee. That request for documents specified a more broad period of time than I had specified in my FOI application that is the subject of this appeal. However, as we now know, extensive documentation directly responsive to my inquiry was included in the 30,000 pages.

As of the date of this submission, there are ongoing discussions at the Justice Policy Committee over the publication of those 30,000 page, where some confidentiality issues are still being debated.

A few pages of this vast new library of material have been released by the Opposition, as reported here: http://www.ontariopc.com/news/liberals-attempt-to-hijack-democracy-again/.

This new release contains documents, all from September 2012, squarely within the period of my request and directly responsive to my request but not provided in response to my request. The information released by the Opposition shows email discussions with the participation of Laura Miller, David Livingston, and John Brodhead. In those new documents, these people are directly involved in organizing the pressurization of Dave Levac, the Speaker of the Legislature, directly related to gas plant issues. We know from his testimony, that Livingston was one of McGuinty’s chief document destroyers. We also learned from the testimony of Laura Miller at the Justice Committee on August 6, 2013 that she was also involved in the extensive destruction of public documents. Like previous government witnesses, Ms. Miller relies on her interpretation of the relevant legislation which she claims required her to delete public documents, including documents responsive to my request.

Very happily, it is now clear that Miller, Livingston and others who attempted to destroy public documents detailing their roles in the gas scandal were unsuccessful in destroying all their tracks.

The material released by the Opposition makes it clear that Laura Miller, David Livingston, John Brodhead, and others failed to disclose information I requested. However, it is also clear from the affidavit of Jamie Forrest included in the June 27th government submission that Laura Miller, David Livingston, and John Brodhead were among the government employees who stated in writing that they had no documents responsive to my request.

The government’s 88 page response to my initial FOI request was grossly incomplete and in fact one element of a widespread cover-up of information about the gas plants. While I acknowledge and commend the release of related information from the Government House Leader’s Office, all the continuing claims by the government that the initial response to my FOI was complete, including the June 27th submission, constitute persistent denial of what we now know to be facts.

The IPC’s Notice of Inquiry specifically sought submissions on the following question:

“Is it possible that such records existed but no longer exist? If so please provide details of when such records were destroyed including information about records maintenance policies and practices such as evidence of retention schedules.”

The government’s response, such as it is, to this valid and penetrating question is contained in paragraphs 28 and 29 of the June 27th submission. Rather than answer the IPC’s question, Counsel to Cabinet Office, quotes from the Commissioner’s June 5th report and Mr. McGuinty’s claim that the government was improving staff training, failing utterly to respond to the substance of the IPC’s question.

As of the time of this writing, I am still negotiating with Cabinet Office over two items of information exchange related to the government’s June 27, 2013 submission. Pending conclusion of those negotiations, I may seek leave from the IPC to make further submissions.

Conclusion:

The purposes of Ontario’s freedom of information legislation cannot be achieved without trustworthy administration of the legislation. If the information rights of Ontarians, as enshrined in legislation, have been breached, an Ontario citizen has the right to expect that the appeal process through the offices of the IPC can remedy the breach.

The government’s June 27th submission defends untrustworthy administration of the legislation and fails to explain the destruction of documents.

My rights as an Ontario citizen have been violated. The government has expressed contempt towards the principles underpinning the FIPPA generally and the IPC appeal process specifically.

The relief I seek is that the IPC use the full power of its authority to investigate the reasons behind the government’s failure to respond to my November 2012 request for information. I would ask the IPC to pursue and document all those public officials who illegally destroyed or attempted to destroy public documents or otherwise failed to comply with FIPPA or applicable records legislation. Who organized the document destruction program? I want an answer to the IPC’s own question:

“Is it possible that such records existed but no longer exist? If so please provide details of when such records were destroyed including information about records maintenance policies and practices such as evidence of retention schedules.”