06/17/2014 11:34 EDT | Updated 08/17/2014 05:59 EDT

Ontario Privacy Watchdog Wants Penalties For Deleting Government Documents


TORONTO - There's little to stop a government from trying to cover up an unpopular decision by destroying documents in the same way emails were deleted on the Liberals' decision to cancel two gas plants, Ontario's privacy watchdog warned Tuesday.

The problem, said Privacy Commission Ann Cavoukian, is there are no real penalties for bureaucrats or elected officials who deliberately destroy government records in violation of the Privacy Act.

"I strongly believe that (the government should be) providing strong enforcement powers and penalties for non compliance with the privacy provisions of the act," Cavoukian said as she released her annual report.

"In the absence of any penalty or consequence, there's no deterrent."

Cavoukian called for new penalties to prevent another case like the gas plants scandal, which now has the Ontario Provincial Police investigating the wiping of computer hard drives in the premier's office as part of an alleged coverup.

"You have to say 'we went through this and never again will we tolerate this kind of activity on the part of bureaucrats or the government,'" she said.

"I just think we have to drive that home so government doesn't think they can do whatever they want quietly behind closed doors."

The government should determine the appropriate penalty for anyone who destroys records, and educate staff "from top right through to the bottom" about what Cavoukian called their "duty to document" the activities of government.

"We have to ensure that this is implemented throughout the entire government, that you have a duty, an obligation to document and record what takes place," she said.

"I want the duty to document to become a new mantra in a way for the government."

Court documents released last Friday showed former premier Dalton McGuinty told police investigating the gas plants that communications in his office were "overwhelmingly verbal in nature" and he kept few records of issues discussed.

McGuinty also told police he hadn't been familiar with the rules on the retention of government documents, and said if any were destroyed that shouldn't have been, it was the responsibility of his chief of staff, not him.

Cavoukian said that's the attitude she discovered when she investigated complaints that the Liberals deleted emails about their decisions to cancel gas plants in Oakville and Mississauga, which the auditor general warned could cost taxpayers $1.1 billion.

"Last June, I issued a special investigation report (into the gas plants) called 'Deleting Accountability' in which I found both a lack of understanding and an apparent lack of concern within government regarding the need to retain relevant business records," she said.

"It was bad enough that the taxpayer dollars had been misused, but then to attempt to remove any indicators that would tie to that and destroy any possibility of a record just flies in the face of freedom of information."

The Liberals introduced legislation in March that would make it an offence to destroy government records, and Premier Kathleen Wynne said Tuesday it would be revived after dying on the order paper when the June 12 election was called.

"Our government intends to re-introduce the Public Sector and MPP Accountability and Transparency Act, which would ... create an offence for the wilful destruction of records with the intent to deny a request for access to records," Wynne said in a statement.

In her final annual report after 15 years as privacy commissioner, Cavoukian also said it is unacceptable for governments to withhold details of publicly-funded contracts once they've been awarded, especially after a freedom of information request.

"There are a number of institutions that are denying FOI requests to contracts that have been awarded, using sections of (the Privacy Act) to delay or obfuscate the information requests," she said.

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