FOI Gras: It’s not Chopped Liver

Posted by on June 2, 2013 in CITY GOVERNMENT | 7 Comments

Ron Bolin: June 2, 2013

In February of this year I began an email conversation with our Manager of Legislative Services with what I anticipated to be a simple request.  It turned into a Quest about which I will tell you here.

On Feb. 12, I wrote to Ms. Samra as follows:

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.

Ron Bolin

__________________________________________

On Feb. 13, I received the following response:

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

__________________________________________

On Feb. 13, I responded:

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

______________________________________

Again on Feb. 13, I received the following:

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.pdfand 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 Feb. 14, I retorted in high dudgeon:

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

________________________________________

Ms. Samra responded promptly, also on Feb. 14:

Ron,

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

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On Feb. 15, I wrote again:

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 of Feb. 15 I received her reply which provided a needed reminder:

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

__________________________________

On Feb. 20, dudgeon continuing, I filed a complaint with the Office of the Ombudsperson.  Here are the elements of the form which I filed on line with the Ombudsman’s Office:

5. Why do you believe the actions taken against you were unfair?

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 routing 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.

6. Describe the result or outcome that you seek.

I seek simply the documents which have been requested along with your recommendations for handling such matters in the future.

7. If you consider the matter urgent, explain why.

Yes, I believe it is urgent from a process/procedure point of view.

I can wait for the information requested, otherwise I would have been bullied into the FOI process.

____________________________________

On March 6, I received a phone call and the following email from the Ombudsperson’s Office:

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.

Sincerely,

Patrick Egan,
Senior Investigator
Office of the Information and Privacy Commissioner
British Columbia

_____________________________________

On March 7, sensing defeat, I relented, printed the FOI form from the City’s web site, scanned it, filled it out and signed it, scanned in the completed form with the request I had originally sent as an  email and emailed the form  to Ms. Gurrie:

Ms. Gurrie:

Please find attached my FOI request and let me know if there is any problem with the document.

Thanks.

Ron Bolin

______________________________________

Ms. Gurries responded promptly by post sending the following message:

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.

Please feel free to contact me at 250-755-44M, or via email atsheila.gurrie@nanaimo.ca, if you have any questions during the processing of your request.

Sincerely,

Sheila Gurrie

Information and Privacy Coordinator

__________________________________________

 

In a letter dated April 5, 2013, I received the following in response to my FOI request:

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.

I am replying to your request of N13-MAR-07 for access  to records. The records requested are attached.

If you feel your request has not been answered completely or that you request further clarification, please contact me at (250) 755-4494.

Under Section 52 of the Freedom of Information and Protection of Privacy Ad, you may ask the Information and Privacy Commissioner to review the City of Nanaimo’s response to your request. You have 30 days from the receipt of this letter to request a review by writing to:

Office of the Information and Privacy Commissioner for British Columbia PC) Box 9038, Stn. Prov, Govt. Victoria: BC V8W 9A4

Phone- (250) 387-5629

Fax: (250) 387-1696

If you request a review, please provide the Commissioner’s office with the following:

1.            Your name, address and telephone number:

2.            (sic)

3.            The request number assigned to your request (the file number quoted at the top of this letter):

4.            The type of request that yqu made to the public body i.e. access, or a copy of the request;

5.            A copy of the City of Nanaimo decision (this letter); and,

6.            The reasons or grounds upon which you are requesting a review.

If you have any questions regarding this decision, or the process. please call me at 7554494.

Yours truly,

Sheila Gurrie

FOI Coordinator,

Legislative Services Department, City of Nanaimo

+++++++++++++

Appended Doc. 1

Mr. David Cobb,

Chief Executive Officer

BC Hydro and Power Authority

333 Dunsmuir Street Vancouver. BC V613 5R3

Dear Mr. Cobb:

At the Regular Meeting of Council held Monday, September 12th, Council passed the following resolution:

that a letter be forward to BC Hydro and 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.”

Yours very truly,

John R Ruttan

Mayor

+++++++++++++

Appended Doc 2

October 11, 2011

Mayor John Ruttan City of Nanaimo 455 Wallace Street Nanaimo, BC

Dear Mayor Rutlan:

RE: BC Hydro’s Smart Metering Program

Thank you for your letter regarding the BC Hydro’s Smart Metering Program.

Utilities around the world are facing the challenge of upgrading aging infrastructure in order to continue to deliver power reliably and safely, and smart meters are part of the new global standard for electricity service delivery. Smart meters are a safe and cost effective way to modernize the electricity system for the benefit of British Columbians. reducing rate pressures by over $70 million over the next three years atone,

Smart meters will help BC Hydro get the lights back an faster and more safely in the event of an outage; they will provide people with tools to manage their energy use and save money; and they will help us keep our rates low by reducing waste and other costs.

Our provincial health authorities and scientific experts have confirmed that smart meters are safe. BC Hydro’s smart meters will be active, in total, for an average of one minute per day_ In fact, the exposure to radio frequency from a BC Hydro smart meter over its entire 20.-year life span is equivalent to the exposure during a single 30-minute cell phone call. Additionally, our smart meters are well below Health Canada’s exposure limits and the precautionary limits set by Switzerland, the country with the most rigorous standards in the world.

We take the responsibility to protect our customers’ privacy and security very seriously, and we are working closely with the Office of the information and Privacy Commissioner for British Columbia to ensure we meet legislated privacy standards, end that appropriate privacy and security measures are built into the entire smart grid system.

We understand that some residents in the District of Central Saanich have concerns related to the Smart Metering Program. We encourage customers who have questions or concerns to contact us directly at smartmeterse@bchydro.com or 1-866-535-5505Thank you again for your letter. For more information about the safety and security of our Smart Metering Program, please refer to the enclosed fact sheets. Should you or anyone in your office have questions about the program, please contact Ted Olynyk, Community Relations Manager, at Ted_Olynyk@bchydro,com.

Sincerely,

David Cobb

President & CEO

BC Hydro

________________________________________

 I must say that I find it remarkable that the respective secretaries working on these documents have made such fundamental mistakes: the letter to BC Hydro from Mayor Ruttan has no date on it and the letter from Mr. Cobb in the last paragraph on the first page of his response refers to “some residents in the District of Central Saanich”.  But be that as it may, I did finally, on or about April 7, get a response, such as it is, to my initial request made on February 12.

The mountains trembled… and gave forth … a mouse.

Still, the exercise was not entirely without issue.  The importance that our Mayor gave to an issue which was adopted 8-1 regarding the health of the citizens of Nanaimo on this issue was made clear. And

WHAT CONCLUSIONS DID I COME TO AS A RESULT OF THIS EXERCISE?

    I finally realized that my initial concern with the Freedom of Information form was misplaced: The alternative to a defined Freedom of Information Process is a wink-wink, nudge-nudge system where the requests of friendly folk get quick attention and not so friendly folk get no attention at all — and nobody is the wiser.  It is better to have a defined and transparent process than to have no process at all for dealing with the requests of Citizens.

    ·         The FOI Process as it is currently implemented in Nanaimo is much more time and money consuming than it need be:

    ·         It should be possible to submit the FOI request form on line.  Paper, though optional, should not be required.

    ·         The submission process should include an auto-response regarding receipt.  There should be no need for a printed letter and postage to acknowledge receipt.

    ·         A great number of FOI requests are generated for two simple reasons: First there is no definition of a “Public Document” which declares plainly that any document is public or, conversely, declares the reason why any given document is Not Public. Staff responding to FOI requests should not be required to undertake inquiries to determine the status of a document.  This area should not be political.   Second, there is no policy in place which defines which documents will be on line.  It is my contention that all documents not declared private or secret should be on line, with historical documents being added as required. This would reduce the number of FOI requests to those where there may actually be some question of privacy.

    ·         FOI requests should be fulfilled on line wherever possible rather than using the time consuming and costly method of Canada Post.

    ·         Legislative Services should, Quarterly, produce a report to Council and to Citizens of the number of FOI requests which have been received and serviced.  This number should be declining over time.

With apologies for inflicting all this material on you in pursuit of a simple aim, I ask for your comments on this topic and hearing about any experiences you have had in dealing with FOI requests.  If you agree with these suggestions, please let your Council members know of your concerns.  You may also wish to ask what has happened to our new Manager of Legislative Services who was beginning to probe these areas and has been absent from Council meetings nor responded to emails to her office for a considerable time.