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:
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:
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?
The response I got back, also on the 13th was as follows:
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.
Tracy Samra, LL.B., LL.M.
Manager of Legislative Services
On the 14th, I responded:
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.
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:
- To provide a system for people to ask for records that are not routinely available to the public; and
- 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:
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.
Also on the 15th I received the following response:
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.
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.
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.
This illustrates three different things:
1. Privacy and Freedom of Information legislation has been turned on its head by bureaucrats – private and public – to effectively block access from the outside.
2. Nanaimo has too many managers. A job like this should be handled at a clerical level, not by someone with an L.L.B and an L.L.M. after her or his name.
3. Council has little input as to how Nanaimo is run. The tone of the operation is set almost exclusively by the bureaucrats.
You have met the monster and it is us. You have only proven what is well known. Ask Councillor Pattje for a copy of the letter as he has an interest in following up this matter.
I did ask him after getting my first response. At least at that time he had not seen it. So much for follow through.
Ask if you may be provided with a document with certain information redacted?
If you had made the request via Fred Pattje, would you not have received an answer that would have sufficed?
On the one hand I see the sense of not wasting staff’s time with frivolous requests, however, it is consistent with this administration to avoid as much public scrutiny as possible.
I sincerely hope that this may finally be a Summer of Discontent in Nanaimo, and enough residents finally get out to the fetal position and let these clowns know they are supposed to be serving the public.
The monster is bound by rules and regulations. It cannot think for itself, it doesn’t have a brain. The monster needs new instructions before it can take action otherwise it will continue with the same old request execute program. Perhaps a subsequent question to Councillor Pattje can confirm that a letter was sent. I can’t believe that he has to stand in line for 30 days like the rest of us. He is the boss. He can ask questions and he can actually fire people for not answering questions.
The content of the letter is another matter. It would be interesting to know if it reflects the wishes of Council. Perhaps Councillor Pattje can confirm that as well.
For the record, The City Manager is the only employee of the City who can be fired by Council. And only the City Manager can fire other City Staff. Would you want Council to be directly involved in hiring or firing Staff? Me neither.
Do you really believe that the City Manager would risk his job to protect a non performing employee when such performance is pointed out by a Councillor?
I did not say that they do not have influence. I said that they cannot directly do the deed.
So the obvious starting point is the City Manager.
And when he goes, the position MUST go to open competition. Promoting without external competition is hardly a sound idea. Especially when Mr. Kenning is #46 out of 9856 Municipal Employees in the province for money earners. Only 45 in the entire province make any more.
When you are paying that kind of money you can demand the best. Of course you need a council wise enough to take that route, which pretty much eliminates Mayor Ruttan and company.
And as a fellow citizen, here’s my take on this:
As politicians at the local level do not have jurisdiction over this matter, firstly, I would have to question why the majority of elected officials on council supported that such a request be made by Staff on behalf of all citizens.
I would have to ask why matters, such as this, (and seems that there have been many in the last couple of years), that fall within the jurisdiction of a senior level of government, are placed on the agenda of a council meeting in the first place.
It becomes the responsibility of the City when the health and/or safety of its residents is impacted. This is similar to the effects of water or air pollution and to say that any or all these are the sole purview of senior levels of government is tantamount to deferring to the greater evil. If we can’t help ourselves at the local level, what hope is there for us with provincial, state, federal, national or international levels.
I see that living in Nanaimo continues to keep you busy – regrettably, situation is not much different here in Lantzville.
Bottom line is no level of government wants us to know what they are doing, are planning on doing or have done – they don’t believe that its any of our concern as to how they are conducting the “people’s business”.
If you (and your readers) can find a few spare moments and want to get just a glimpse of the current sad state of Freedom of Information in Canada, then have a look at the following:
Click to access 2010Apr10-VSUN-The%20publics%20right%20to%20know.pdf
Click to access Failing_FOI-May_2009-FINAL.pdf
The current trend with the provincial Liberal government to “not write anything down” is a very cynical, troubling and anti-democratic action, and they even have a Ministry of Citizen’s Services and Open Government!! Expect to see this and other democracy-sucking strategies spread to governments at all levels.
An update on my FOI request: I received a snail mail letter from the City dated March 7, indicating that my request had been received and that they have 30 days to respond. To date (March 26) I have not received either the information requested nor a fee estimate. So much for a request which I had assumed would be on line and available instantly if the system were adequately indexed.
I have just forwarded the following document to Council for their consideration. Freedom of Information should be Freedom of Information and in this day of digital technology there is no excuse for hiding public information in dusty vaults. I will be waiting for comments from Council, and in the meantime, would appreciate comments from those of you who are concerned about transparency and timeliness. I am still waiting for a response to my FOI request discussed above more than a month after it was submitted.
Suggestions for Effective and Efficient FOI (Freedom of Information) Policy and Procedures
Accepting that bureaucratic efficiency requires the use of a formal FOI procedure for requesting information from the City of Nanaimo, I would suggest the following practices which can minimize time and effort for all involved.
1. The development of an online FOI Request document which can be filled out and filed on line. (This will eliminate the effort of printing the FOI request, filling it out by hand and then scanning and submitting it online.)
2. The development of an automated online application for receiving FOI requests and responding with an appropriate time and date stamp to the sender. (This will eliminate time in the receipt and response to receipt of online requests. It will further eliminate the necessity to prepare a receipt letter, print it, and then send it by snail mail with its attendant costs as is currently the case.)
3. In a recent email it was stated that: “When a document is not routinely available to the public a person needs to make an application under FOIPPA.” A comprehensive description of the nature of the documents “not routinely available to the public is required. In a day and age when almost all documents are created and available digitally, it seems both archaic and arbitrary to keep any documents which are available to the public off line thus requiring the special efforts of both citizens and Staff to provide them. If public documents are to be kept unavailable to direct access, the reasons for this should be made clear to the public and be debated by their representatives. A policy of this nature is too important to be left to Staff alone. (This will eliminate, or at least greatly reduce, quibbles about what information is “routinely available” to the public as well as make public information public without excess time or cost.)
4. A methodology for searching this information on line is needed which can accommodate the needs of the public to find the documents required which will minimize both time and difficulty for both the public and for Staff. (This can again reduce time and cost to the public and to Staff in information discovery.)
5. A policy is needed for the addition of documents which are not yet digitally available. I would suggest that we might begin by requiring digital documents in those few cases where they are not already automatic, that documents which come from the public may be digitized, as indeed they are for delegation requests, etc., and that historic documents not already digitally available be added by digitization, when they are requested by current manual FOI means. (This is needed to define the manner in which current or historic non digital information is added to the City’s web site.)
The objective of these suggestions is to improve both efficiency and effectiveness for both the public and for Staff by using our current digital technology to provide a win-win for both parties in the matter of Freedom of Information.
April 8, 2013
Freedom of information will be available quickly and at no cost when it is uncontroversial.
Freedom of information will be slow or impossible to obtain plus expensive when it is controversial.
As the public at large become aware of misdeeds & secretive council meetings the barriers to information rise as fast as the publics demands for it.
This is not a new phenonomen;more serious abuses can be found at the BC rail Bassi Virk trial or at Alexandra Mortons fight with DFO.
To expect other from the council ,now in power, is just unrealistic as they have taken secrecy to a level unaproached by previous mayors & councillors.