Once More into the OIPCBC Breach

Posted by on May 23, 2016 in UNCATEGORIZED | Leave a comment

Last month the OIPCBC, the Office of the Information and Privacy Commission of British Columbia, agreed to accept my complaint against the City of Nanaimo regarding the redaction of a portion of the video of a 2014 Council meeting.  Those who have followed this blog will be familiar with the first attempt to remedy this excision of what I consider to be the public record after the fact.  Those who have not, but are interested in the extensive background to the case can use the search facility in this blog to follow its long and winding trail.  For those interested in neither, the substance of the matter deals with a Notice of Motion, read into the video record of a 2014 Council meeting by then Councillor McKay on behalf of Councillor Bestwick and which was heard by all in attendance, but was subsequently redacted from the video.  The Notice of Motion dealt with opening an official investigation into the LEADERCAST affair which brought a great deal of negative publicity from across the country to Nanaimo including several national tv broadcasts from Ezra Levant.  A google search on “nanaimo leadercast” will find plenty of national conversation about that deplorable affair.

The arguments by the City’s lawyer used BC’s Freedom of Information  legislation:

http://www.bclaws.ca/Recon/document/ID/freeside/96165_00

Sections 17:

17 Disclosure harmful to the financial or economic interests of a public body

Which basically is meant to protect the City against litigation for fraud, libel or slander.In this case the heavy legal liability seems to me to be vested in suits from the leadercast speakers who could be seen to be implicated as part of the defamation surrounding the affair.  This information has been so widely distributed in the “official” media by the means described above, and so mocked, that it is inconceivable that any of the well known presenters at the event would offer to take part in any such action.

and Section 22:

22 Disclosure harmful to personal privacy

Which, in this case, seems to be aimed at protecting City employees from any negativity associated with their actions. The extent to which any employees, City or otherwise are liable for mistakes seems to be the question here, as it is in any service. Does the coverage of the FOI legislation set all errors above public recognition?  Only those of public servants?

As the adjudicator chose to nullify the case as having been accepted in error (see a previous post on this question), these arguments were moot, but to my understanding, still remain the focus of the City’s argument for its right to redact.

For now, the new beginning to demand release of the video segment and to determine when a public record is a public record. is to be found in the following document received from the OIPCBC:  IOPCBC April 16 2016001

While I have been obsessed with the sanctity of the public record which is represented by the video recording of public Nanaimo City Council meetings, City Hall appears to be more interested in control of the information which such recordings may reveal and their ability to erase portions of the record which they may find difficult.

The first inquiry into the matter was brought when the City Administration was led by Mr. Swabey and,  as I found from a separate FOI request in the matter, cost the taxpayers of Nanaimo close to $25,000 which, interestingly, is the limit of authority for spending by the CAO without further oversight.  It is also of passing interest that, of the eight City affidavits included in the documents prepared by Young Anderson on behalf of the City, all but one: then Councillor, now Mayor McKay, have left the City’s employ.

It remains to be seen whether new legal advice will be contracted in the current iteration of this affair and how much citizens must spend to keep them from seeing what they could see if they attended Council meetings in person.  This is, at best a sorry affair, at worst the demise of democracy.

Your comments and questions in this matter are welcome.   Are we losing our grip on our governments at all levels and thus on democracy itself?