CBRM Doesn’t Have All Docs in $40K FOIPOP But Fee Stands

Remember the $40,000 FOIPOP?

Actually, the price tag the Cape Breton Regional Municipality (CBRM) slapped on a local man’s freedom of information/protection of privacy request was $42,804.50 — a calculation of the value of CBRM employee time that seems to be worked out to the last fraction of a second.

Civic Centre, CBRM

Civic Centre, CBRM

Sydney lawyer Guy LaFosse officially submitted the FOIPOP (with $5.00 application fee) on behalf of an unnamed client in April 2016. The CBRM responded in May 2016 with its outlandish bill and LaFosse appealed it to the province’s Information and Privacy Commissioner (he’s yet to get a ruling — appeals can take up to two years in Nova Scotia).

But according to a 22 February 2017 letter LaFosse received from Municipal Clerk Deborah Campbell, it appears many of the documents the CBRM wanted to charge LaFosse’s client for finding are “not in the CBRM’s custody or under its control.”

Many of those documents are actually with the Port of Sydney Development Corporation and Business Cape Breton. Campbell supplied LaFosse with contact information for Port CEO Marlene Usher and BCB CEO Eileen Lannon-Oldford, the implication being both can be FOIPOPed.

Of course, I know from sad experience that, at least as of June 2016, BCB was not subject to FOIPOPs. Here’s what Julie Young, executive assistant to Nova Scotia’s Privacy Commissioner, told me at the time:

We have reviewed the details of the Business Cape Breton Volunteer Board, as well as the Board of Directors for the Cape Breton Regional Enterprise Network and the Cape Breton Partnership.  None of these organizations fit the definition of a public body under FOIPOP.  This means that Business Cape Breton is not subject to FOIPOP.

Perhaps, given BCB’s nebulous new status as the CBRM’s “economic development entity” this has changed. That would be a good thing.


Port in a storm

As for the Port of Sydney Development Corporation, Young told me in December 2015:

The Freedom of Information and Protection of Privacy Act (FOIPOP) specifically names the “Sydney Harbour Port Regional Development Commission” as a body that is subject to FOIPOP. Unfortunately, we have limited information and cannot confirm that the “Sydney Harbour Port Regional Development Commission” and the “Port of Sydney Development Corporation” are the same entity. If they are the same entity, then the Corporation is subject to FOIPOP.

If not the same entity, we do not currently have enough information to confirm whether or not it would be subject to FOIPOP. It would need to meet the definition of a “public body”, for which I’ve provided the definition below. Please note the sections in bold. We are not able to determine, based upon the information available, if their board of directors meet these criteria.

The Sydney Harbour Port Regional Development Commission was struck off the Nova Scotia Registry of Joint Stock Companies in 2007. (In passing, I think I know why: they list JAMES JOYCE as their TREASURER. Everyone knows Joyce was “perennially bad with money.”) The Port of Sydney Development Corporation was formed in April 2015 as a successor to the Sydney Ports Corporation.

The CBRM Municipal Clerk, however, told me back in January 2016 that FOIPOP requests for the Port of Sydney Development Corporation could be sent to Usher. (Perhaps someone should tell the Privacy Commissioner).



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 CBRM’s delayed admission it does not possess many of the documents LaFosse’s client sought. Conrod told me in an email:

It’s not entirely unheard of for agencies to respond early on with a fee estimate to avoid wasting resources in pursuing a request that’s ultimately going to be withdrawn/cancelled. However, the idea that this exorbitant fee estimate was sent out up front seems a bit fishy, as if they were trying to discourage the requester from going forward, rather than honestly engaging with their request. I’ll also note here, again, that many countries, including many developing countries, do not allow public bodies to charge for time spent searching for records at all. Indeed, the federal government recently shifted to such a system, though our province continues to lag far behind the pack.

Obviously, these kinds of delays are completely unacceptable, and against the spirit of the law.

LaFosse and his client clearly concur. The lawyer responded to the CBRM stating that he hoped, since the municipality was not in possession of all of the requested documents, the $42,804.50 fee would be adjusted accordingly:



This just in…

The Municipal Clerk responded to LaFosse on Wednesday (March 1) and it looks like the $42K fee still stands:



Three things here.

  1. It took seven months for the CBRM to compile a list of documents it didn’t have.
  2. That means that in May, when the CBRM calculated the fee for the FOIPOP, it didn’t know what documents it possessed.
  3. Not knowing what documents it possessed, it still managed to calculate — to .50 cents — how much it would cost to gather those documents.

Add to that the Municipal Clerk failing to follow the instructions of the Information and Privacy Commissioner and you’ve got the makings of a hot time in the old council chambers some Tuesday night. Assuming, that is, at least one CBRM councilor sees this for what it is: a municipality willfully obstructing a citizen’s right to know.


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