Former premier Dalton McGuinty's chief of staff took steps to keep government information secret – "double deleting" e-mails and communicating by BlackBerry messenger to avoid leaving public records of his discussions, police say.
In one e-mail exchange, two of Mr. McGuinty's top aides even cracked jokes about dodging freedom of information rules, and referred to one NDP politician as "an absolute asshole."
These revelations are contained in a court document filed by the Ontario Provincial Police as part of their investigation of David Livingston, Mr. McGuinty's last chief of staff. Police are probing the destruction of e-mails and other records related to the $1-billion cancellation of two gas-fired power plants. The document, an information to obtain, was filed to get a search warrant for Mr. Livingston's government-issued BlackBerry.
Mr. Livingston, through his lawyers, has maintained that he did nothing wrong. No charges have been laid and the allegations have not been tested in court.
OPP Detective Constable Andre Duval alleges in the ITO that there is a surprising lack of records related to the gas plants. Out of 329,748 e-mails from the Premier's office recovered by police, only 102 related to the cancellations, despite it being a hot file for the government.
"I believe that the lack of records concerning the gas plants is unusual and troubling," Det. Constable Duval writes.
In e-mails reproduced in the ITO, Mr. Livingston and his subordinates discussed how to "double delete" e-mails – erasing them from both the inbox and the server – so that they cannot later be retrieved.
Mr. Livingston and his deputy, Laura Miller, also joked about the practice on one occasion in November, 2012. The CBC had just obtained government e-mails related to the collapse of the Elliot Lake mall, in which two people were killed the previous summer. NDP MPP Michael Mantha used the opportunity to attack the government in a news release, arguing that the e-mails showed Mr. McGuinty's office had been indecisive in the aftermath of the tragedy.
"FOI This. Mantha is an absolute asshole," Ms. Miller wrote to Mr. Livingston.
"LOL! This one will never get the Double Delete," he replied.
Det. Constable Duval says such exchanges show Mr. Livingston was "selective" in deciding which e-mail to keep in his mailbox and which would be "double deleted, effectively ensuring that it would not be recovered."
Ms. Miller's husband, computer expert Peter Faist, was given special access to the premier's office three months later, where he wiped the hard drives. As part of "Pete's project," the document notes, the highest number of files were deleted on Mr. Livingston's computer. In all, 118,348 of the 223,624 files on his computer were erased.
Mr. Faist voluntarily surrendered e-mails between him and Ms. Miller that provided police with crucial information, the ITO says. Police did not find these e-mails when they examined government hard drives.
The document suggests that another reason for the lack of e-mails concerning the power plants is that discussions on sensitive topics were often conducted off-line, or using BlackBerry Messenger instead of e-mail. BBMs are generally not disclosed in FOI requests.
"I believe that this type of communication was favoured since it was not routed through the government e-mail accounts and avoided the creation of any government records," alleges Det.-Constable Duval.
For instance, he points to an e-mail exchange that took place when Mr. Livingston was in his previous job as CEO of Crown corporation Infrastructure Ontario. A senior civil servant asked Mr. Livingston's assistant for his BlackBerry PIN. "[Do] you have a pin for DL? For the ultra confidential ultra secret stuff?" the civil servant wrote.
Police say they must get Mr. Livingston's BlackBerry to search for the BBMs and any other messages that have not yet been retrieved.
"I have reasonable grounds to believe that the search and subsequent review of David Livingston's BlackBerry cellular phone will either exonerate or afford significant evidence that David Livingston committed the offence of Breach of Trust," Det. Constable Duval writes.