When administrations change in government it isn’t unusual for office holders and their staff to have the IT department wipe their hard drives. That isn’t a problem if there’s a government policy on how to do it properly and it is followed.
But an Ontario judge ruled Friday that David Livingston, chief of staff of former premier Dalton McGinty, was guilty of attempted mischief and unauthorized use of a computer in hiring a third person to delete email and other digital documents on 20 government computers in the premier’s office just before McGinty handed over power to current premier Kathleen Wynn.
Livingston will be back in court Feb. 26, when lawyers will make sentencing submissions to the judge.
UPDATE: At a pre-sentencing hearing the judge stayed the charge of attempted mischief as essentially redundant. Livingston will be sentenced April 11.
Livingston’s deputy chief, Laura Miller, was acquitted of the same charges. It was her spouse, IT expert Peter Faist, who was hired by the Liberal party to do the deleting.
Faist, a prosecution witness, logged on to the computers using a password assigned to Livingston’s assistant, who had been given administrative IT rights. According to the Globe and Mail, the trial heard that Livingston obtained the password Peter Wallace, secretary of cabinet at the time. Wallace testified that he never would have approved the special access had he known how it would be used.
According to the Toronto Star, the judge said the deletion was part of a “dishonest” scramble to protect the Liberal government from the controversy over the scrapping two power plants at public expense before an election almost seven years ago.
The defence argued the password used by Faist was needed simply to delete personal information from the computers of departing McGuinty staffers, according to news reports. However, the Star says the judge said that the hiring of Faist was “compelling circumstantial evidence” Livingston intended to wipe records that should have been retained for freedom-of-information requests and a legal production order from a legislative committee.
The Globe said the judge concluded the wiping of the hard drives was not a “careful and select, deletion of personal records … It amounted to a scorched earth strategy.”
Neither Livingston nor Miller testified at the trial.
The Globe also noted that lawyers for the two argued in their closing arguments that the Crown had not presented “a shred of evidence” that Livingston and Miller knew wiping the hard drives would result in the deletion of government records they were required to retain.
The trial heard that civil servants were sensitive to potential data retention problems because of the power plant controversy. The Globe reported that William Bromm, general counsel to the cabinet secretary’s office testified he took steps to preserve email by suspending email accounts of those leaving the premier’s office. That would have left the emails intact.
In fact the trial heard that David Nicholl, Ontario’s corporate chief information officer, told Livingston in writing to preserve all government records to comply with — including anything related to the cancellation of the gas plants — to comply with provincial record-keeping requirements. Nicholl’s memo was sent because he recieved those instructions from the cabinet office.
However, the emails were deleted anyway.
The controversy over deleted government email relating to the canceled power plants sparked a special report by then Ontario privacy commissioner Ann Cavoukian, who looked into the routine deletion of email by Craig MacLennan, the chief of staff to the then provincial energy minister. She found that the practice of “indiscriminate deletion of all emails
sent and received by MacLennan violated the provincial Archives and Recordkeeping Act and the records retention schedule developed by Archives of Ontario for ministers’
As part of her report Cavoukian also looked into the deletion of email and electronic documents in McGinty’s office just before the transition. She found that while regulations at the time didn’t set out the procedures that should be followed in the event of a change of Premier where there is no change in government, it was her understanding McGinty wanted records should be handled in the same way that they would be if there had been a change in government. That meant hard drives could be wiped only after copies of the data on them were made for the archives.