Public Right to Public Information
Ron Bolin: July 31, 2019
The following correspondence with the Office of the Information and Privacy Commissioner for BC outlines my correspondence with the OIPCBC and I hope defines my reasons for requesting the legal opinion obtained by the City and pursuing the OIPCBC in response to the refusal of the City to comply. Democracy, and even its stepchild Representative Democracy, is under attack from governments anxious to prevent the governed from governance which includes the governed. In the present case there is no evidence to suggest that the persons or reputations of anyone would be challenged by a legal opinion which would see the opinion obtained by public funds made public, i.e. nothing is shown to demonstrate that all of the conditions mentioned in the OIPC response have been fulfilled: in fact it appears to me that condition 2. “the communication must be of a confidential character” takes on the form of a catch 22.
Your opinion in this matter is requested. Should government have an arbitrary right to withhold legal opinions obtained by government which bear upon the rights of the public to information regarding public activities such as Public Hearings?
To OPIC (July 24, 2019 am):
In response to a question regarding the video recording and public release of Public Hearings, it was noted at an open Council meeting, that a request had been made for a legal opinion on the matter.
On May 2, 2019, I requested access to a copy of the legal opinion obtained by the City of Nanaimo with regard to the legality of the video capture and distribution of Public Hearings held by the City.
On May 6, 2019, the City refused to disclose that opinion pursuant to section 14 of FIPPA.
14 The head of a public body may refuse to disclose to an applicant information that is subject to solicitor client privilege.
On May 8, 2019, I requested the OIPCBC to review the City’s decision to withhold that information.
On June 11, 2019, I received a notice that the case was opened on May 9, 2019 (OIPC File: F19-79500)
On July 2, 2019, I was notified that an investigator had been assigned to OIPC File: F19-79500
On July 10, 2019, I was notified that my request for review had been denied on the ground of section 14 of the Freedom of Information and Protection of Privacy Act. I was referred to four conditions that must be established under section 14 and to OIPC Order F-16-26.
On July 14, 2019, I responded with my concern that the use of the undefined term “may” in the text of Section 4, implies arbitrary discretion by the public body in responding to requests for information regarding any issue of public concern which may involve a legal opinion, even where litigation is not involved. I requested an additional 14 days in which to respond.
On July 15, 2019, I received your email reiterating the position that section 14 permitted the public body to refuse to disclose information that is subject to solicitor-client privilege and suggesting that other legal processes might lead to its acquisition. This, of course, goes against what I believe to have been the reason for the existence of the OIPCBC, i.e. to allow citizens access to information without litigation where this is possible.
I was also granted time through July 24 in which to provide reasons why I believe the “may” in section 14 should not be interpreted arbitrarily in the present circumstance, if ever.
To the circumstances which I have indicated above, i.e. the absence of litigation in the matter as it has been presented to me, and in the light of OIPCBC Order F-19-18, April 12, 2019, which discusses both Legal Advice Privilege and Litigation Privilege and their limitations, I believe, barring the demonstration of the nature and types of documents which were involved in obtaining this legal opinion which require secrecy, that good governance requires that public access to Council meetings held as Public Hearings and established under Part 14 – Division 3 of the Local Government Act be available to the public on video, just as are, and have been for some years, other public meetings of Council falling under the Community Charter and for the same democratic reasons.
I find it impossible to fathom why Council meetings held as Public Hearings under the Local Government Act should be kept without video records for the public while those which Council holds under the powers granted them by the Community Charter are permitted to record and make available video records for public information and scrutiny. If the opinion obtained deals with the issue of democratic rights while not exposing any individual to discredit, certainly the public should be made aware of it.
I continue to find it impossible to believe that any opinion provided to a public body by a lawyer regarding a hypothetical situation not immediately involving litigation is to be kept any more secret in a democracy than is any other form of advice sought by a government on behalf of its citizens.
I hope that this will help to demonstrate my issue with your decision and look forward to hearing from you on the matter at your earliest convenience. I believe this matter to be at the heart of the rationale for the establishment of The Office of the Information & Privacy Commissioner.
Thank You for your consideration,
From OPIC (July 24, 2019 pm):
I have read your email below and thank you for providing your rational as to why the City of Nanaimo should not have applied section 14 to the requested records.
As I noted in my letter to you on July 10, 2019, the City elected not to provide OIPC with a copy of the records but provided a description of the records. The City maintains the records are legal opinions provided by lawyers, in which the City perused information on the legality of the implications of recording or publishing Public Hearings.
In other words, the City requested legal advice from a solicitor prior to making a decision or policy. Legal advice privilege protects confidential communications between solicitor and client for the purpose of obtaining, giving or formulating legal advice. In order for legal advice privilege to apply, four conditions must be established. Those conditions are:
1. there must be a communication, whether oral or written;
2. the communication must be of a confidential character;
3. the communication must be between a client (or his agent) and a legal advisor; and
4. the communication must be directly related to the seeking, formulating, or giving of legal advice.
If these four conditions are satisfied then the communications (and documents relating to it) are privileged. Legal advice privilege may apply to both direct and indirect communications.
In my opinion, with the information provided to my from the City, It is my view the records fall squarely under section 14 as I laid out in my letter to you.
If you do not agree with my analysis, you may request that the matter proceed to an inquiry, please contact me before July 31, 2019, If I have not heard from you by this date, I will assume you do not wish to do so and I will close this file.
For your reference, written inquiries are a quasi-judicial process whereby the parties make submissions. The submissions and issues in dispute are considered by the Commissioner or their delegate who issues an order. Absent an application for judicial review by any party, orders are binding on the parties. In addition, at this time it is currently taking approximately 14 to 18 months to be heard at inquiry.
Your comments, observations or questions are requested..
Is there another option here for Nanaimo citizens who believe public hearings should be video recorded and preserved? Crowd source funding for a lawyer? Or is it simply up to council to decide? I’d be interested in seeing the legal opinion. Keep pushing!
These comments are from someone else who is taking the time to research the video state of Public Hearings in BC:
Looks like other Local Governments do indeed video their public hearings.
From New Westminster
From North Vancouver (their website)
All written submissions and representations made at the Public Hearing form part of the official public record. Minutes of the Public Hearing and a video recording of the proceedings are posted on the City’s website at cnv.org.
Not just a few municipalities “broadcast/video/record” for public consumption, Public Hearings Ron, the list goes on and on and a resolution regarding dishonest public hearing submissions was adopted at UBCM (2018). They didn’t take any action but the motion acknowledges how I feel about Public Hearings taking place in the dark and behind closed doors. Often people don’t know what is happening in their own neighbourhood until the machines and equipment move in – even though signs are supposed to be posted, they are only posted in the ” affected” neighbourhood within a certain area and notices are only sent out a certain distance surrounding the property in question. My neighbourhood doesn’t even get a newspaper anymore so we don’t see the published notices either.
Vancouver Coun. Colleen Hardwick ( 2018) said “she’s planning a motion” to ensure public hearings can’t be influenced by people outside the city or people with undisclosed ties to development projects.
Officials in Squamish are also concerned about fake or dishonest public hearing submissions being used to sway development and policy decisions also. (Aug, 2018)
They sponsored a resolution at the Union of BC Municipalities convention about the issue, but the endorsed motion didn’t get anything done. What a surprise…..
77. B78 Verification of Submissions During Public Hearing Process, endorsed UBCM, 2018
Here is the motion
Whereas the Local Government Act legislates the Public Hearing process and broadly provides for submissions to be made by anyone in the public having an interest in the matter or the property;
And whereas Councils must consider all submissions made with respect to the public interest in the zoning, rezoning, OCP or OCP amendment without an ability to verify the validity of submissions made electronically:
Therefore be it resolved that the Province bring forth an amendment to the Local Government Act which would assist local governments with the ability to verify the legitimacy of a submission where there is strong reason to believe that the submissions are false and dishonest and made to undermine the integrity and purpose of the Public Hearing process and UBCM work with the province to understand best practices.
RESPONSE: Ministry of Municipal Affairs and Housing
British Columbia’s land use planning system is based on legislation, policies and processes that support community-based decisions through an emphasis on local decision making. Council or board members need to consider not only the oral and written submissions made at a public hearing but also their local government’s staff reports to ensure their decisions strike an appropriate balance among community interests and existing land use objectives and policies. Council and board members are ultimately accountable to the electorate for the choices they make.
The existing legislation regarding public hearings ensures that community members and all persons who believe that their interest in property is affected are provided the opportunity to contribute to the discussion about decisions made by local elected officials. The Province recognizes that communication environments are evolving and consideration could be given to a future dialogue with UBCM regarding the development of best practices for public hearing procedures and how much weight in its deliberations elected officials would give to potentially dishonest submissions during the public hearing process.
Other municipalities who video…..
Pot Coquitlam – Public Hearings are broadcast live on the internet. Broadcasts of past Public Hearings can also be accessed through the City’s Webcast archive.
The following also video Public Hearings
And the list goes on……..
I suspect that persons (often developers) who submit dishonest public hearing submissions have been behind trying to keep the process hidden to protect their own interests. I have noticed that friends of developers sometimes show up, even though they may not live nearby. They support each other by making a case in favour of the proposed change – you know, you rub my back I will rub yours. I am sure they would by against any recorded or televised Public Hearings. They don’t want any sunlight to filter out and expose their dark and sneaky interests.