Senior staff members in the offices of both the Ontario energy minister and former premier Dalton McGuinty intentionally deleted emails about the cancellation of gas plants in Oakville and Mississauga, according to the province's privacy commissioner.
The finding, published in a special report Wednesday called Deleting Accountability: Records Management Practices of Political Staff, adds fuel to opposition accusations that Ontario's Liberal government was trying to cover up the cost of cancelling the controversial projects.
After conducting a special investigation into NDP complaints, Privacy Commissioner Ann Cavoukian determined that senior Liberal staff in McGuinty's office broke the law by deleting all emails sent and received on the matter by former chiefs of staff.
The investigation was sparked after the NDP complained to Cavoukian that documents they had obtained through Freedom of Information requests did not contain emails for several top McGuinty aides.
"It is difficult to accept that the routine deletion of emails was not in fact an attempt by staff in the former minister’s office to avoid transparency and accountability in relation to their work," Cavoukian wrote in her report.
"Further, I have trouble accepting that this practice was simply part of a benign attempt to efficiently manage one’s email accounts."
She singled out David Livingston and Craig MacLennan, the former chiefs of staff for McGuinty and the energy minister respectively, and concluded that the offices violated the Archives and Recordkeeping Act and undermined the Freedom of Information and Protection of Privacy Act.
Accusations of coverup
The Liberals' initial reluctance to release documents on the gas plants as requested by an opposition-dominated committee triggered a rare contempt of parliament motion last fall that ground legislative business to a halt and a Speaker's order to release the data.
Lib govt statement on gas-plant e-mail deletions: "Govt is committed to ensure that situations as referred to do not happen again." #sl— Mike Crawley (@CBCQueensPark) June 5, 2013
The opposition parties have long maintained the Liberals deleted the emails to help cover up the cost of cancelling the gas plants, which has ballooned to $585 million, and said the email accounts were permanently wiped from government databases.
In fact, Cavoukian found that as recently as January 2013, staff in the former premier's office approached the secretary of cabinet, Ontario's top civil servant, trying to find out how to permanently delete emails and other electronic documents.
"I was very concerned with the prospect of inappropriate deletions of electronic records by political staff in the former premier's office," she wrote.
"This failure to comply with the records retention requirements, coupled with a culture of avoiding the creation of written and electronic records, assists in explaining the apparent paucity of documents relating to the gas plant closures produced by the offices of the former minister of energy and the former premier," said Cavoukian.
In an interview Wednesday with CBC's Mike Crawley, Cavoukian said she was disappointed that she was not able to retrieve the deleted emails, despite having worked with government IT staff as well as hiring an independent computer forensic specialist.
"'Delete' unfortunately really means gone. Even though many of us believe you can never actually ever delete email records, in fact you can," she said.
No penalties for staffers
During Wednesday's question period, MPPs slammed the government and asked about jail time for the political staffers involved.
"The commissioner made it very clear — you broke the law," said Conservative MPP John Yakabuski. "The stain of this scandal is on you and on every member of your government."
"Will the premier tell Ontarians what the government was trying to hide when senior Liberal political staff were destroying information?" said NDP Leader Andrea Horwath.
Premier Kathleen Wynne avoided talking directly about the deleted emails, saying "From the moment I have been in this office, we've been following all of the rules in terms of retention of documents."
Despite the report's findings that the staffers violated the Archives and Recordkeeping Act, there are no real penalties for destroying the emails.
Although prov'l laws say govt e-mails must be kept, there's no penalty for deleting them! Info Commish wants it made a "serious offence" #sl— Mike Crawley (@CBCQueensPark) June 5, 2013
Instead, Cavoukian is recommending a complete review of the government's record retention policies, that staff be properly trained in their records management obligations and that a directive be issued to all staff in the premier's and ministers' offices regarding her report.
Liberal house leader John Milloy said the government is looking into Cavoukian's recommendations.
"Our government is committed to addressing the issues raised by the commissioner to ensure that situations as referred to in her report do not happen again," Milloy said in a written statement.
Attorney General John Gerretsen, who admitted he wasn't sure of the rules on keeping emails, suggested that penalty provisions should be looked at.
"I'm quite sure that a lot of us would not have been totally familiar with what you can or cannot delete, quite frankly, from emails," said Gerretsen.