Transparency Has A Price In CBRM: It’s $42,804.50

Last March, a CBRM citizen decided he (or she, I’m not sure, so I’m just going to refer to him/her as “The Citizen”) wanted to know more about the expenses of Mayor Cecil Clarke, Port CEO Marlene Usher, CBRM Chief Administrative Officer Michael Merritt, the mayor’s executive assistant Mark Bettens and his communications person Christina Lamey.

The Citizen was also curious about the processes by which Bettens, Lamey, Merritt and Usher were hired. (Of the four, only Merritt was actually required to apply for his job, which, as I write it, reminds me again how utterly amazing that is.)

Civic Centre, CBRM

Civic Centre, CBRM

The Citizen also wanted to know if the CBRM had made any payments to Harbor Port Development Partners (HPDP) or the Chinese Communications Construction Company (CCCC). And The Citizen was really interested in the financial relationships between the CBRM, Business Cape Breton and the Port of Sydney Development Corporation. (The Citizen, by the way, is not me, although even I had to stop and ask myself, “Did I do that?”)

Reluctant to file a freedom of information/protection of privacy (FOIPOP) request personally, The Citizen approached a Sydney lawyer, Guy LaFosse, of Lafosse MacLeod. LaFosse took The Citizen on as a client and filed the FOIPOP on his client’s behalf.

It was a whopper of a FOIPOP, I’ll be the first to admit it, but it sought information to which we, as citizens, are entitled. And if you are an entity subject to FOIPOPs, and you know the information to which citizens are entitled, you should be prepared, when requested, to produce that information.

What you should not do is present a citizen with a cost estimate of $42,804.50 — and ask for $21,402.25 up front, just to begin processing the application.

But that’s what the CBRM did.

 

Municipality May Charge A Fee

Here’s an excerpt from the letter, dated 31 May 2016, which LaFosse received from CBRM Municipal Clerk Deborah Campbell:

Further to my letter to you of May 6, 2016, I have now received a response from the various CBRM Departments with an estimate of the person time required to locate, retrieve, produce and prepare the requested records for disclosure, including necessary redaction.

In accordance with Section 471 of the Municipal Government Act (MGA) and Section 6 [of] the FOIPOP Regulations, the Municipality is permitted to charge a fee for locating and retrieving a record, namely, $15 for each half-hour of person time (i.e. $30 per hour) after the first 2 hours, rounded down to the nearest half-hour. The Municipality is also permitted to charge a fee for the shipping and handling costs, plus the cost of providing a photocopy of the records (i.e. $0.20 per page).

The total estimated person time is 1316.05 hours, less the first 2 hours = 1314.05 hours X $30/hour = $39,421.50. At this point in time it is difficult to estimate the number of photocopies that are required without actually producing the records and redacting personal and confidential information, but we believe it will be in excess of 16,915 pages X $0.20 = $3,383.00 for a total cost estimate of $42,804.50.

As per Section 471(6) of the MGA, CBRM will require that you pay one-half of the estimated fee (i.e. $21,402.25) prior to providing the service. Upon receipt, the records will be prepared for release and the actual costs will be determined at that time and the balance of the fee will be adjusted accordingly.

You’ll note the MGA “permits” a municipality to charge a fee, but does not “require” it to. The decision of when and what to charge is left up to the municipality.

I asked Paul Conrod of the Right to Know Coalition of Nova Scotia, an advocacy group that focuses on freedom of information issues, what he made of the $39,421.50 charge for “locating and retrieving” records:

When a public body demands nearly $40,000 to respond to a request, it should be abundantly clear that the right to information, a core democratic principle and a Constitutional right, is not being respected. Better practice access to information systems around the world, including in many developing countries, do not charge anything for responding to information requests, beyond the fees the agency actually incurs in reproducing and delivering the information. If Mexico and Nepal, to cite two examples, do not need to charge for employee time spent responding to information requests, it is difficult to see why the Cape Breton Regional Municipality cannot fulfill this function without demanding that its citizens cover their costs. This is yet another reminder of how far Nova Scotia has fallen against international standards, and why urgent reform to the FOIPOP is needed to ensure that this right is properly respected.

And I would ask our CAO Michael Merritt, what kind of record-keeping system have you implemented that it will take staff 164 days to find expense receipts, contracts and emails? Do you have actual files or do you have a bin marked “records” into which you throw armfuls of documents at the end of each day? Do you dive into it sometimes, like Scrooge McDuck in his vault, luxuriating in all that information that only you possess?

I’ve done a number of access to information requests to the federal government in the past two years, including one to Parks Canada that ran to 20,000 pages. They first told me they were “hiring a consultant” to deal with it (assuring me there would be no charge), then later came back and asked if I would be willing to reduce the scope of my request were they to provide me information they were releasing based on a similar request. I was allowed to view that information before deciding the fate of my own application. It was a good deal, and in the end, I reduced the scope of my request, received hundreds of pages of documents and — other than the initial $5 application fee — paid not a cent.

But the CBRM didn’t suggest LaFosse’s client reduce the scope of the request, or — another option for reducing costs — accept documents in electronic form. It simply put a price tag of $42,804.50 on the FOIPOP.

 

Richmond County

In February, 2016, Germaine MacDonald of St. Peter’s picked up 3,000 pages of documents from Richmond County detailing spending on municipal credit cards by councilors and staff dating to 2009. She was charged $1,600.

LocalXpress (in a story headlined, “Information on Richmond County Credit Card Use Doesn’t Come Cheap“) questioned the county’s chief administrative officer, Warren Olsen, about the bill:

There were many, many hours of work that went into preparing this request. We provided all the statements, together with summaries detailing where we went, who we went with and the purpose of the expense.

Let’s say Richmond County also charges $0.20 per photocopied document; the total charge for 3,000 documents would be $600. That means the “many, many hours of work” that went into preparing the requested documents cost MacDonald $1,000 or about $0.33 per document. If the CBRM charged a similar fee, the cost of gathering 16,915 documents would be $5,581.95. That’s still outrageous, if you ask me, but it’s a far cry from $39,421.50.

Obviously, it’s difficult to make an exact comparison, especially without knowing how many hours Richmond County staff put into preparing their documents, but the CBRM is charging about $2.33 per document where Richmond charged roughly $0.33. Presumably, Richmond County staff had to “locate, retrieve, produce and prepare the requested records for disclosure, including necessary redaction.” And surely their time is worth as much ($30/hr) as that of their CBRM peers. The gap between $2.33 and $0.33 is suspiciously large.

 

Frustrating the Citizen

In a 2009 article on Nova Scotia’s access to information laws for The Coast , Tim Bousquet (now of the Halifax Examiner) spoke to Darce Fardy, provincial privacy review officer from 1995 to 2006 and founder of the Right to Know Coalition of Nova Scotia. Said Fardy:

What gets my dander up is government’s reluctance to trust citizens, give out the information they should be giving out and just to govern more openly — govern as openly as they say they will — and stop putting all these hindrances up. They do everything to frustrate the citizen. Everything they can do to frustrate, they do. The applicant [seeking government information] goes through hell no matter what — not only the cost, but the wait.

Responding to FOIPOP requests is part of the job of municipal staffers. Making a citizen pay staff for doing that job makes no sense — it would be like presenting a citizen with a bill for replacing the sidewalk in front of her house. The citizen is paying the municipal staffers’ salaries already, as governments in Mexico and Nepal, apparently, know.

And the citizen, or in this case, The Citizen, is frustrated. LaFosse has appealed the CBRM’s response to Nova Scotia’s privacy commissioner but I know, from sad experience, that the privacy commissioner is currently dealing with a backlog that could take two years to clear (another reminder of how far Nova Scotia has fallen with respect to international standards).

Citizens of the CBRM have the right to know how municipal hires are made and how municipal tax dollars are being spent. And that right includes not having to pay more than the average CBRM citizen makes in a year to access that information.

 

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