Where is the Breach Now?

Ron Bolin: August 29, 2016

It has been over two months since I last picked at my keyboard to continue my conversation with myself and with erstwhile readers of this blog.  It has not been because nothing has happened in this time, but because I have been basking in sloth.  To continue the never-ending-story of my argument with the City and with the OIPCBC, I will pick up the line with the letter which I received from the OIPCBC on July 22 of this year.  It was sent to me by an IOPC Investigator indicating that an initial review of the file indicated sympathy with the view that the redacted segment of the video in question (those unfamiliar with the case at hand can find a number of blog posts on the subject going back to 2014) and giving me about 10 days from the receipt of the letter to respond or, by my silence, to see her close the file.

The letter itself can be seen here:

LeBlanc File F16-64946001

 

My response was, with concurrence, delayed as I wanted to speak to the City Manager and the FOI Officer about the possibility of ending the matter by mutual agreement rather than returning to the legal fray presented by continuing along a path which had already cost the City nearly $25,000 in legal fees and myself considerable time and trouble.

 

My initial response to the OIPCBC Investigator was as follows:

From: Ron Bolin [mailto:rlbolin@telus.net]
Sent: August-05-16 2:08 PM
To: Monique LeBlanc
Cc: Sheila Gurrie
Subject: Your letter dated July 22, 2016, re: OIPC File F16-64946

Dear Ms. LeBlanc:

As indicated in my call yesterday (I left a message in your absence), I indicated that I had only received your letter on the 30th, only found time to read it yesterday, and therefore requested additional time to respond.  I found it quite disconcerting to read that you had set a date for my response as today, August 5, given that timing.  I also indicated that I thought that it was usual in government that a 30 business day response time in such matters was implied.  If I  am incorrect in this belief, please inform me of the given limits.

I note that your Analysis indicates that:

“It appears that the Notice of Motion that was read at the open City Council meeting was not meant to be read in public.”

I was in attendance at that meeting and am unaware of any such intent. I do not know if you have contacted either Councillor Bestwick, the author of the Notice of Motion, or then Councillor, now Mayor, McKay in this regard.

While, as indicated, I do not have time before your precipitate deadline to respond in detail, let me assure you that you will be hearing more from me on the subject of Section 22 of FIPPA.  I do not believe that its intent was to protect employees from all possible judgement regarding the performance of their duties, nor is it to permit pleas of possible taint to deny examination of their actions.  Nor do I believe the contents of the Notice of Motion to be prejudicial.  In this regard it should be noted that all those who were deposed in this matter, barring Mayor McKay, have left the employment of the City of Nanaimo.

 

I remind you that while the original case was voided on technical grounds, the findings of the mediator at that time permitted the case to proceed to adjudication on its merits. I am not sure if procedures have changes since that time.  Perhaps I do not properly understand the role of an investigator relative to that of a mediator.

Please advise regarding the matter of a reasonable time frame in which to prepare a proper response to your letter dated July 22, 2016.

Sincerely,

Ron Bolin

 

This was my subsequent argument in response to Ms. LeBlanc:

From: Ron Bolin [mailto:rlbolin@telus.net]
Sent: August-15-16 4:06 PM
To: Monique LeBlanc
Cc: Sheila Gurrie
Subject: OIPC File F16-64946

Dear Ms. LeBlanc:

In response to your request for defense of my position that the City erred in redacting a portion of the video of July 14, 2014, I provide the following objections to your proposal to consider the matter settled and to close the file.  I will restrict my objections to matters of process and procedure and to Section 22(3)(d) of the FIPPA legislation as you have proposed that the latter is the basis for your proposed action.

 

Section 22(3) provides that:

“a disclosure of personal information is presumed to be an unreasonable invasion of a third party’s personal privacy if; (d) the personal information relates to employment, occupational or educational history,”

 

The Notice of Motion read out on July 14 by then Councillor McKay is as follows:

WHEREAS the City of Nanaimo entered into a contract for services with Vancouver Island Conference Centre Management Company (“VICC Operator”) to operate the Vancouver Island Conference Centre (“VICC”) on behalf of the City of Nanaimo and that neither City Staff nor Council have authority over the day-to-day operations of VICC by the VICC Operator;

WHEREAS the VICC Operator entered into one or more contracts with the Nanaimo Daily News and Coast Capital Credit Union (“Event Sponsors”) for purposes of simulcasting the Leadercast conference on May 9, 2014 (“Leadercast Event”);

WHEREAS Councillor Pattje advised City Staff that he would be bringing forward a motion on May 5, 2014 to cancel the Leadercast Event (“Leadercast Motion”);

WHEREAS there are conflicting statements at Council meetings on May 5, 2014, June 16, 2014 and July 3, 2014 about communications regarding the Leadercast Event among City Staff, the Event Sponsors, the VICC Operator and some members of Council prior to May 5, 2014 and afterwards;

WHEREAS the City Manager and Manager of Legislative Services are responsible for providing advice to Council regarding compliance with applicable federal and provincial laws, City bylaws, and City policies, and on May 5, 2014 City Staff added the Leadercast Motion as a late item under Other Business as 11(a);

AND WHEREAS the Mayor has made public statements that Council will report openly and transparently on the events leading up to the cancellation of the Leadercast Event and that a similar vote will never happen again;

 

THEREFORE BE IT RESOLVED THAT:

Option #1:

  1. Council strike a task force to conduct an investigation of the events leading up to the cancellation of the Leadercast on or before May 5, 2014 and report back to Council before August 31, 2014;
  1. City Staff be directed to cooperate fully with the investigation by providing all relevant records; and
  1. City Staff be directed to seek the cooperation of the VICC Operator and Event Sponsors in order to make a full accounting of the facts and where necessary seek consents to waive confidentiality arrangements.

 

Option #2:

  1. Council appoint an independent investigator to conduct an investigation of the events leading up to the cancellation of the Leadercast on or before May 5, 2014 and report back to Council before August 31, 2014;
  1. City Staff be directed to cooperate fully with the investigation by providing all relevant records on a confidential basis and support to the independent investigator;
  1. City Staff be directed to seek the cooperation of the VICC Operator and Event Sponsors in order to make a full accounting of the facts and where necessary seek consents to waive confidentiality arrangements.
  1. The independent investigator must demonstrate that he or she has no prior business dealings with the City of Nanaimo, City Staff, the VICC Operator, Council or the Event Sponsors; and
  1. Any requests made by the independent investigator to City of Nanaimo under the Freedom of Information and Protection of Privacy Act (BC) and Freedom of Information and Protection of Privacy Bylaw be given top priority.

 

Recommended options for an independent investigator:

o   Honourable Brian Peckford, former Premier of the Province of Newfoundland and Labrador;

o   Mr. Mike Patterson, former Council member, the City of Cranbrook, from 1979 to 1999, the last nine years as Mayor; or

o   Mr. Jonathan Baker, Legal Counsel of Baker and Baker, and former Alderman, the City of Vancouver, serving from 1986 – 1992.

 

Recommended options for a task force:

o   Councillors Johnstone, Bestwick and McKay; and

  • Exclude any City Staff that may be in a conflict of interest – City Manager, Manager of Legislative Services and General Manager Corporate Services.

 

My Comments:

No personal information regarding employment, occupational or educational history related to third party privacy is contained in the Notice of Motion.  Rather the information sought deals with determining the sequence of events which led to the public humiliation of the City of Nanaimo on national television via several broadcasts by Ezra Levant on his syndicated tv show and in subsequent editorials and letters to the Editor in newspapers across the nation, in order to ensure that such a process would never happen again.

It is unclear if Council gave formal pre- (or post-) approval to contracting legal opinion regarding the reading of the Notice of Motion or if Staff using Staff’s spending discretion arranged for the legal opinion or, similarly, for the legal services which were provided relative to the previous OIPCBC File in this matter .  It is questionable whether Staff has this option in cases dealing with Council’s policy rather than routine operations.

The reading of the Notice of Motion on July 14 cannot be construed as having, “accidentally been seen by someone”.  An examination of the video of July 14 demonstrates that while some concern may have been expressed, there was no formal mechanism either proposed or executed for stopping the reading.  Accordingly it was seen, not by a few, but by the entire audience at the meeting and by all viewers of the video record prior to its redaction:  it was neither accidental nor limited to “someone’.  The precise date and time on which the video was redacted is unknown to me.

It would seem that this matter might be further elucidated if the circumstances surrounding any copy of the video which were made prior to the redaction were known.  Is it necessary that private citizens make copies from the public videos of Nanaimo City Council meetings in order to avoid future redactions?  Similarly, what would be the situation had that portion of the public meeting been recorded by any private body or individual?  Could the City enforce any such redaction?

As you are aware, the City is in the process of seeking a second opinion in this matter.  I forward this document to you now in fulfillment of your requirement to respond by August 15, 2016, and without benefit of this opinion.

I believe that there are matters sufficiently ill-defined in this case to warrant proceeding to an inquiry and I ask that you proceed accordingly but with due deference to the City’s pending opinion.

Ron Bolin

 

Last response from Mr. LeBlanc, dated August 16:

Good morning Mr. Bolin,

Thank you for this additional information. I’ve added it to the file and am now waiting for the result of the City’s legal consultation. If the City stands by its decision to withhold the information, I’ll prepare a draft Fact Report and prepare for an Inquiry. Because the case had made its way through the submission process last time before being dismissed, you may be given the choice of providing a new submission or confirming that you want to use the one from last year. That will be clarified by the Registrar in the Notice of Inquiry letter.

I’ll be in touch with an update soon.

Monique LeBlanc CIPP/C, Investigator
Office of the Information and Privacy Commissioner for B.C.
4th Floor, 947 Fort Street, Victoria BC V8V 3K3
tel. 250-387-0354 | fax 250-387-1696
Follow us on
Twitter | mleblanc@oipc.bc.ca

 

And so I wait…  Any thoughts, comments or questions about this seemingly endless process by the City in defense of a blatant do-over are welcomed.

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