Freedom of Information and Information not so Free

On Feb. 10, 2013, I sent the following email to the Manager of Legislative Services at the City of Nanaimo:

“At its meeting of Sept. 12, 2011, the following motion was adopted:

15. OTHER BUSINESS:

(a) Councillor Pattje – Request to Consider a Motion Regarding Smart Meters

71711 It was moved and seconded that Council send a communication to BC Hydro and to the appropriate Ministries, requesting a moratorium on the installation of Smart Meters until further independent investigation of health, safety, as well as privacy concerns, are addressed in a meaningful way and reasonable alternatives are found to accommodate those citizens who do not wish Smart Meters attached to their homes, this at no additional cost to them. The motion carried.

Opposed: Councillor Unger

I would appreciate a copy of the communication that was sent to BC Hydro and appropriate Ministries and the responses which were received from any or all of them.

Thank you for your consideration in this matter.”

Little did I think that this request carefully noted in the Minutes of that meeting were a matter requiring more than a reference to the item number to bring a quick response. This is the response I got by email on Feb. 12:

“Ron,

Can you please make a request to Sheila Gurrie under our FOI request process.

Thanks,

Tracy Samra, LL.B., LL.M.
Manager of Legislative Services”

I must admit I was taken aback.  The fact of the document being moved and adopted in the minutes of an open Council meeting appeared to me to provide prima facie reason for it to be public without let.  Accordingly, I emailed back my response on Feb. 13:

Tracy:

Thanks for the prompt, if roundabout, response.

Can you please identify the policy under which a seemingly ordinary request is subject to the FOI request process?

Thanks,

Ron

The response I got back, also on the 13th was as follows:

Ron,

Under the Freedom of Information and Protection of Privacy Act a person may access records in the custody or under the control of local governments within British Columbia. It also provides a means to enable a person to address personal privacy issues with local governments.

When a document is not routinely available to the public a person needs to make an application under FOIPPA. I attach the link to our website form: http://www.nanaimo.ca/assets/Municipal~Hall/City~Council/Publications~and~Forms/foi.pdf and a link to our bylaw http://www.nanaimo.ca/UploadedFilesPath/Bylaws/7024.pdf .

If you have questions about the types of documents routinely available to the public please contact Sheila Gurrie or me. In this case, the letters requested are not routinely available to the public. Unless of course, the correspondence is put on a council agenda. As a result, you need to submit a FOI request.

Regards,

Tracy Samra, LL.B., LL.M.

Manager of Legislative Services

On the 14th, I responded:

Tracy:

I trust that this issue will be provided as an example to those responsible for the study of governance which the City is currently undertaking.

I must ask what “personal privacy issues with local governments” are involved here as the entire process involves public rather than private or even public/private contacts. I am also mindful of the comments to the City which were recently made by the BC Ombudsperson in regard to public processes.

As I reject the premise that any part of this request involves issues which would call for a FOI request I must decline to use that process. I will await your response before taking further action in this regard.

Thanks for your prompt attention.

Ron Bolin

Citizen of Nanaimo

Also on the 14th I got the following response:

I think it is appropriate to clarify the purpose of the Act. It has two distinct purposes:

  1. To provide a system for people to ask for records that are not routinely available to the public; and
  2. To provide a system that governs the collection and use of personal information by local governments (how and when it can be collected, rights for individuals to have their personal information corrected, etc.).

The quotation in your email relates to the “protection of privacy for individuals” not to the provincial system to access information that is not routinely available to the public. You are correct, that issue has nothing to do with the subject matter of your request.

Our bylaw is based on the provincial statute and provides you the right to ask for information that is not routinely available to the public. As both the Act and our Bylaw is based on the underlying principle that all recorded information is available to the public (except information that is subject to the specific and limited exceptions set out in the Act) it is likely that you will get the letters you have requested.

However, as the designated head under the bylaw I am responsible for carrying out my duties in a fair and equitable manner. In other words I am not in a position to exempt you from this process. I do not have that discretion or authority. Therefore, I respectfully suggest that you submit a request so that we may process your request.

Tracy Samra, LL.B., LL.M.

Manager of Legislative Services

Still unable to understand why a document arising out of a motion made by Council at an open meeting should require a Freedom of Information request, on the 15th I wrote for clarification:

Hi Tracy:

I was hoping that you would be able to send a copy of the bylaw to which you refer in your email from yesterday.

“Our bylaw is based on the provincial statute and provides you the right to ask for information that is not routinely available to the public.”

I hope the request did not get lost in the discussion of other matters. I would like to understand why the records requested would not be “routinely available to the public”.

I don’t want to nag, but I guess that this is simply a forward of the bylaw.

Thanks,

Ron

Also on the 15th I received the following response:

Ron,

I sent the links to you in my earlier email. If you do a bit of research you can see the evolution of records management by government under privacy legislation and the work of Privacy Commissioner. Given the complexity of the types and volume of municipal records the FOI system provides the public a way to access records when they are not routinely available.

Regards

You will note that while I have been treated both courteously and promptly, that my request remains closed.

Wishing to determine the circumstances arising from this matter and regarding Freedom of Information requests in general, I sent a request for clarification to the Office of the Information and Privacy Commissioner on March 1st which contained my exchange with the City on the subject as well as the following statement of complaint:

“My complaint rests in my view that the legislation in this regard does not require an FOI request as it involves an ordinary piece of routine administration which arises out of a motion put forward and adopted by Council. To hold otherwise would require the results of all such motions put forward by Council to be included in the agendas/minutes of subsequent meetings -and while this might be an admirable, indeed prudent, requirement for City Staff, its absence in this case should not be permitted on the grounds of poor practice.”

I received the following response from the OIPC on March 6:

Dear Mr. Bolin:

I am writing to confirm what I told you about the FOI process during our telephone conversation earlier today.

You stated that you made a written request to the City of Nanaimo and that the City requested that you fill out a particular form and address it to a particular person. You indicated that the City would not consider your request to be under the Freedom of Information and Protection of Privacy Act (FIPPA) until you filled out its FOI form.

FIPPA does not require applicants to fill out certain forms or make requests to certain individuals in a public body. FIPPA only requires an applicant to make the request in writing and to submit the request to the public body that has custody or control of the record.

However, the City may have good administrative reasons for suggesting applicants use its form. For example, the City may need a mailing address if its policy is to send records by mail or courier. You may want to review the City’s form to ensure you have provided it with all the information it needs to process your request.

You also asked whether you were required to go through the FOI process to request a record that was not publicly available. I believe the record in question was a letter written by council to an outside agency. I confirmed that in my view the FOI process was required to request this type of document.

I hope this helps.

On March 7, having been given something with one hand by the OIPC (FOI form not required) and having it then retracted (for administrative reasons) and having been informed that a message written as a result of a motion in an open Council meeting is not a public record (apparently the only way to determine what has happened in the public’s interest in such cases is to tender an FOI request), I emailed my FOI form (which had to be printed out from the City’s web site, filled out by hand and then scanned in order to submit it electronically) to the City on March 7 containing exactly the same information contained in my original request.

Some days later I received a letter via Canada Post notifying me of the receipt of my request (I was not notified immediately and electronically of its receipt) that stated:

Dear Mr. Bolin:

RE: Freedom of Information and Protection of Privacy Act (the “Act”)

REQUEST FOR ACCESS TO RECORDS — A copy of the communication that was sent to BC Hydro and appropriate Ministries and the responses which were received any or all them.

This letter acknowledges your request dated 2013-MAR-07 for copies of records related to above noted matter.

The Act provides that we must respond to your request within 30 business days of receipt of your request, except in special circumstances where limited extensions may be given. Since we received your request on 2013-MAR-07 we will respond no later than 2013-APR-22. We will make every effort to make the records available to you sooner if possible.

Pursuant to the Act and to our “Freedom of Information and Protection of Privacy Bylaw 2006 No. 7024” there may be a charge to process the request. As soon as we have located the applicable records, we will provide you with a fee estimate.

As I write this document I wait for the information requested and any fee that may be associated with it.  Welcome to the world of Franz Kafka.

From this admittedly mundane and homely quest, I would make the following suggestions.

As it appears that virtually all requests for information not contained on the City web site is from now on to be subject to the FOI request form process, the process should begin with an online form that can be filled out on line and then sent directly to a separate City FOI mailbox which can, as it receives a request, automatically issue an email receipt for same which can also contain the information found in the snail mail letter which was sent to me.  This can considerably simplify the process and lower the cost of dealing with such matters.

A proper study of the information contained on the City’s web site should be undertaken to see that all City documents not subject to privacy under a privacy policy are available on line and that the indexing of information is maximized for efficient searches.  In this day and age there is no reason why all documents which can be accessed through an FOI process should not be directly available on line.  Historic documents not immediately available electronically should be scanned and entered as they become subject to FOI requests.  The City lacks a physical library facility where historic reports and studies which have been prepared at taxpayer expense can be reviewed.  A public document library should be available on line.

It is my hope that the zeal which has been displayed in dealing with the documentation of FOI requests will be matched by zeal to see the necessity for such requests, and the Staff time which may go with an inefficient document system, are reduced to a minimum.

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