Spinning gold into dross… My OIPCBC Case Goes ????
Ron Bolin: Nov. 11, 2015
The following response from the OIPCBC was received yesterday.
OFFICE OF THE
for British Columbia
Protecting privacy. Promoting transparency.
November 10, 2015
To the Parties:
Inquiry under Part 5 of the Freedom of Information and Protection of Privacy Act
(“FIPPA”) between An Applicant and the City of Nanaimo (“public body”)
— OIPC File No.: F14-58563
I am the adjudicator assigned to this matter.
I have reviewed the submissions and related correspondence for this case. I have
concluded that there is no reviewable issue under the Freedom of Information and
Protection of Privacy Act (“FIPPA”) for me to decide, for reasons which follow.
Access rights under FIPPA
FIPPA applies to, and gives a right of access to, records in the custody or under the
control of a public body (ss. 3(1) and 4(1)). An applicant must make a written request
and give sufficient detail to enable the public body to identify the record sought (s. 5(1)).
The head of the public body must tell the applicant whether or not the applicant is
entitled to have access to the requested record.
If the head of the public body decides to deny access to all or part of the record, the
head must, among other things, give the applicant the reasons for the denial and tell the
applicant that he or she may request a review of the decision (s. 8(1 )). A person who
makes a request to the head of a public body may request a review of any decision, act
or failure to act of the head that relates to that request (s. 52(1 )).
No request under FIPPA
This matter began with an email from the applicant:
I would appreciate receiving the reasons for the redaction of the public
video record of the Notice of Motion put forward by Councillor Mckay at
the July14 meeting of Council.
This email was not a request under s. 5(1) of FIPPA for access to records. It was a
request for an explanation of a particular action the City took.
The City replied as follows:
As you have noted, a portion of the City’s video of the open meeting on
July 14, 2014 has been removed. This has occurred as a result of legal
advice provided to the City that this was properly an “In-Camera” item and
should not be on public view.
The City’s reply was not a response under s. 8(1) of FIPPA. It provided an explanation
of the action the City took with respect to the video.
It follows that the applicant’s email to the Office of the Information and Privacy
Commissioner (“OIPC”) complaining about the City’s reply to his email was not a
request for review under s. 52(1). The applicant may not be satisfied with the City’s
explanation but he has not been denied access to a record. Rather, the remedy he
seeks is for the City to restore the “redacted” portion of the video to its public website.
No remedy under FIPPA
I appreciate that the parties have made the effort to provide submissions to the OIPC on
this matter. There is, however, no dispute under FIPPA for me to dispose of in this case
and no remedy I can offer, as I have no authority under FIPPA to order the City to do
what the applicant wants.
Trying to comprehend the nature of this dismissal and any remedies available to me, I have written to the OIPCBC today as follows:
Dear Ms. Hamilton:
Thank you for forwarding the decision reached by the Adjudicator in the case of the above noted file. I must say that I find it terse and would like to enquire about any further action I might take in the matter. If I read the decision correctly, it seems to indicate that my request was somehow deficient because it did not demand a specific action such as the replacement of the redacted segment into the video record of the Council meeting. Is this correct? And would I be correct in interpreting this to mean that I can correct this oversight and resubmit the matter for adjudication? If this interpretation is incorrect can your office provide any assistance in understanding the nature of the deficiency and what, if anything, can be done to correct it.
I must take note that I, as a layman without the benefit of legal Counsel, do not appear to be alone in my misunderstanding of the nature of my inquiry as both the process involved in accepting my case and the City of Nanaimo and its formidable legal advisors seem to have made the same mistake attributed to me and have spent considerable time and money in reacting to my request as if it were legitimate.
I would appreciate any advice that your office can provide in this matter.
I will keep you posted. Any questions or comments??
The adjudicator appears to believe that a video recording is not a record. That is patently absurd. Video recordings are frequently used in legal proceedings and indeed are often the only record of an event.. If the city authorizes video recordings by Shaw Cable or anyone else, it has authorized the generation of a record. To suggest otherwise defies common sense.
I encountered a similar situation when I used the ICBC appeal process a few years ago.. It became obvious to me that the adjudicator in that case enjoyed being a member of the ICBC team of consultants and wouldn’t put at risk future contract work by rendering a decision unfavourable to management –otherwise he wouldn’t have produced such an illogical report in which he actually made up some “facts” on behalf of the other party.
When I spoke to management about this, which I was invited to do, the management team member I contacted was initially unfazed by what I had to say. When I advised her that my conclusion was that an auto insurance monopoly shouldn’t be permitted to control its own appeal process and that under a market system for insurance I would at least have the opportunity of taking my business elsewhere, she very quickly changed tact and suggested that yet another appeal process was available to challenge the adjudicator’s report — at a cost, of course..
I declined the offer because it would have meant yet another ICBC adjudicator ruling on the facts and therefore the problem I encountered the first time around would likely occur again..
Perhaps the bureaucracy you are dealing with will provide a similar offer of redress. My advice: don’t bother, because the same breed of consultant will likely be called upon to render a verdict and it seems very unlikely that you will get a different result.
What I suggest instead is that you submit a FOI request of this agency, asking it to provide you with a list of all appeals in the last 5 years and the outcomes. That would likely be more telling than anything else.
Seems clear that you have to ask for a copy of the unedited video, which is the record. If the city refuses, you can then complain and make the same arguments all over again. I wonder why the adjudicator did not consult both parties to reach an agreement that, in effect, it was the applicant’s intent to make such a request and the public body’s intent to refuse it. A lot of public money has been wasted on this, so a decision on the facts rather than a technicality would be a fair outcome for all, especially we taxpayers who have footed the bill with nothing to show.