The Ford government has been ordered to try and access emails related to the Greenbelt scandal sitting in a former staffer’s personal email account, after Ontario’s transparency watchdog found the province had failed to retain potentially valuable records.
In an order issued after an appeal by Global News, the Information and Privacy Commissioner (IPC) said the Ministry of Municipal Affairs and Housing had failed “to put in place mechanisms” to ensure its staff were not using personal email accounts for government business.
The order told the government it must immediately take steps to work out if former housing chief of staff Ryan Amato has emails with the word “Greenbelt” in his personal account and, if he does, try to access them.
The transparency watchdog said in its rulings that any emails, even on Amato’s personal server, would be government records if they contained the keyword. It gave the government a deadline to try to obtain them and ordered it to outline the steps it was taking.
A government spokesperson said the Ministry of Municipal Affairs and Housing would comply with the order.
“We will write to the affected party to provide the ministry with any emails relevant to this matter that may exist in the affected party’s personal email account,” they told Global News.
Amato did not respond to a request for comment.
Ontario NDP Leader Marit Stiles said it was “very concerning” that the government may have failed to protect records relating to the Greenbelt scandal.
“I think Ryan Amato knows perfectly well what the rules are, and I think the ministry and the government do as well,” she said. “So, I think this is just another example of how this government is continuing to cover things up, and it’s the people of Ontario that are paying the price.”
Emails with the word ‘Greenbelt’
The decision stems from a freedom of information request filed by Global News in August 2023 after Ontario’s auditor general released her bombshell report into the Ford government’s Greenbelt land removal.
In November 2022, the Ford government announced it would remove 7,400 acres of protected land from the Greenbelt and build homes there instead to address the housing crisis. The move was met with immediate backlash and sparked investigations from the auditor general and the integrity commissioner.
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The auditor general’s report found that certain developers, whose Greenbelt land was poised to soar in value, would benefit from the government’s decision to the tune of more than $8 billion. The ensuing scandal led to the resignation of two ministers and several senior staff, including Amato.
Ford ultimately reversed the Greenbelt decision and apologized.
In her report, the auditor general said political staff were using personal email accounts to discuss the Greenbelt decision and forwarding emails between government and work accounts.
In the wake of the report, Global News filed a freedom of information request for all emails on Amato’s personal account with the word “Greenbelt.”
The government effectively denied the request and said it didn’t have control over Amato’s personal email, pointing out he was no longer an employee of the government.
Global News appealed the decision to the IPC.
Greenbelt emails are government records, IPC says
More than a year later, the IPC has issued a ruling confirming that any emails on Amato’s personal account with the word Greenbelt would be official records and scolding the government for its approach.
The ruling said that it was “not enough” for the Ministry of Municipal Affairs and Housing to simply have a policy forbidding using personal emails; the privacy watchdog said it expected it to be enforced.
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“Institutions must also train their staff on an ongoing basis and monitor for compliance, including conducting ‘spot-checks, surveys of staff practices, or other reviews’ and in the event institutions think staff are not complying, they must ‘take immediate action to preserve the records and prevent further loss of information,’” the ruling said.
The watchdog also said if emails about the Greenbelt exist on Amato’s personal account — which has not been decided under the current ruling — they should be held by the ministry. If it is found that emails do exist and the ministry didn’t have them, the IPC said it would have failed in its record-keeping duties.
“If responsive emails exist in the affected party’s email account that have not been forwarded to their Ontario.ca email, this lack of integration with ministry records is inconsistent with acceptable record management practices,” the ruling said.
The IPC said failing to put proper processes in place would not excuse the government from trying to access the potential emails.
“The ministry’s failure to put in place mechanisms that ensure that employees comply with acceptable practices in respect of the use of personal email to conduct ministry business or that to ensure that public records are not removed from its custody or control during or after the employment, cannot be a reason to find that those records are not subject to the provisions of the Act,” the ruling said.
Unclear how the ministry could access emails
In its decision, the IPC ordered the ministry to write to Amato and ask if he has emails relating to the Greenbelt on his personal account.
If he has emails relating to the file, it said he should forward them to the government, which would then assess them and release them to Global News. If there are none, the former chief of staff should sign a sworn affidavit, legally confirming no records exist.
The catch, however, is that the IPC said Amato has “not cooperated by either providing the requested records or confirming or denying whether additional emails exist.”
It’s unclear exactly what happens if Amato fails to cooperate with either the government or the Ministry of Municipal Affairs and Housing.
During the appeal process, the government repeatedly said it could not access Amato’s emails as he is a former employee. They suggested there would be no reasonable mechanism to get hold of them.
The IPC said it was not convinced by that argument.
“I am not persuaded by the ministry’s submission that it has limited recourse available to it when it discovers, after the termination of the employment relationship that an employee has not adhered to its policies and guidelines for acceptable use of non-Ontario.ca email accounts,” the ruling said.
“In considering the ministry’s position, I note that it does not refer to the common law.”
The IPC also pointed out it can “summon and examine on oath any individual who may have information relating to an inquiry.”
The government now has until early June to work out if Amato has Greenbelt emails and inform the transparency watchdog, which will then make a final determination on the case.
Stiles said she was skeptical the government would fulfill the demand.
“I wish we could trust the government to get this done,” she said. “If they don’t, I think it should end up in the courts. And I think that’s where it will end up because there is an RCMP criminal investigation.”