Fast & Curious: Short Takes on Random Things

Okay, stop: FOIPOP edition

Sometime on Tuesday, as I was working away on this week’s edition of the Spectator, I received a notice in my mailbox of what I assumed was a package waiting for me at the Post Office.

December packages are usually well worth the trip to the P.O., but I was too busy to go on Tuesday so headed out on Wednesday afternoon, braving a slight drizzle, fortifying myself along the way with a candy-cane hot chocolate from Tim Hortons.

Imagine my disappointment at discovering not a package but a registered letter from a Charlotte Street address.

Now imagine the cocktail of emotions unleashed by the contents of that letter:

CBRM_letter_03

(Ironically, the redactions are mine.)

Yes, the CBRM has responded — with barely a moment to spare — to Nova Scotia Privacy and Information Commissioner Tricia Ralph’s ruling on my 2015 port-related FOIPOP and I think the only possible way to deal with this is to play what may be my last game of “Okay, stop” for 2020. The letter came not from the municipal clerk nor the CAO but rather, from the only lawyer in Sydney, James R. Gogan. Let’s hear what he had to say:

 

Gogan:

November 30, 2020

Okay, stop.

The CBRM had 30 days to give a written decision or risk being deemed to have refused to follow the Privacy Commissioner’s recommendations and you made it just under the wire — 27 days after the Nov. 3 release of the decision.

Gogan:

RE: Review Report 20-06/ OIPC File 15-00302/Cape Breton Regional Municipality File #93

We are counsel to the Cape Breton Regional Municipality (“CBRM”) regarding the above matter.

Okay, stop.

The CBRM a) needed a lawyer to deal with this and b) hired an external firm?

The CBRM’s own regional solicitor was incapable of advising the municipality on its response to an appeal of a five-year-old FOIPOP request?

And why the Breton Law Group? I just read the bios of all your lawyers and no one seems particularly well versed in privacy law — if the CBRM were drafting a will or suing an insurance company or dabbling in offshore development (“energy law” being your own specialty) this would perhaps make sense, but why would a municipality that is always crying broke hire your firm to send me this letter?

Gogan:

We are writing further to the Review Report of the Office of the Information and Privacy Commissioner for Nova Scotia dated November 3, 2020 (the “Report”).

Okay, stop.

This is meant to impress me, isn’t it? To show me how right and tight and legal the CBRM is being now, even though the Privacy Commissioner found that it broke the law in its handling of my 2015 FOIPOP.

Gogan:

The CBRM has carefully considered the observations raised in the Report and, in that regard, is in the process of undertaking a secondary review of the withheld information based upon the Report findings and the impact of the passage of time on the potential harms resulting from a premature disclosure of some of the certain withheld information.

Okay, stop.

“Observations” is one word for the Privacy Commissioner’s comments although I’d lean toward “scathing critique” myself.

And I’m going to correct you on that phrase “secondary review,” because what the Privacy Commissioner said — in terms even a layperson with traces of candy cane hot chocolate on her face like myself could understand — was that the CBRM failed to conduct an initial review. That the CBRM withheld 862 documents in full without undertaking the line-by-line review required by law. That it claimed exemptions it did not justify and that Ralph, based on her review of the documents, said could not be justified.

She also said the “premature disclosure” argument didn’t fly in 2015 because the project in question — the Sydney Harbour container terminal — had been “disclosed” in local media reports before I’d even made my request, so how can it possibly be a factor five years later?

As for “the passage of time,” the reason so much time has passed is that the CBRM bungled my initial request forcing me to appeal to an office that is notoriously backlogged then dragged its feet about supplying information for the review (in some cases, not supplying it at all).

Gogan:

CBRM expects to be in a position to release additional information pursuant to the (4) recommendations in two (2) phases:

i) That information which is readily identifiable for release – on or before December 31, 2020; and

ii) That information which is undergoing a secondary legal review for determination of release – on or before January 30, 2021.

Okay, stop.

Why is it taking the municipality almost two months (from Nov. 3 to Dec. 31) to release information that is “readily identifiable for release?”  And how can you conduct a “secondary legal review” when there has been no primary legal review?

On the bright side, at least you didn’t try to use COVID as an excuse.

Gogan:

Respectfully, given the pending holiday season, together with the associated impacts of the global pandemic…

Okay, stop.

ARRRRRRRGGGGGGHHHHHHHHHHHHHHHHHHH!

Gogan:

…CBRM would maintain that these disclosure timelines are reasonable under these circumstances. In the event information is available for release earlier than the above timelines, it would be CBRM’s intention to immediately provide same to you.

Okay, stop.

Points for sheer gall, employing the words “immediately” and “reasonable” to describe a timeframe that, as of 30 January 2021, will have stretched to five-and-a-half years.

But let’s face it, in the event the CBRM provides me information, it would be my intention to accept same.

 

Addendum

In a development that I suspect is not unrelated to this CBRM saga, the Office of the Information and Privacy Commissioner (OIPC) has just amended its procedure for access to information reviews “where information has been withheld in part or in full under an exemption.”

The new procedure can be found here, but the major change, as explained on the OIPC website, is that:

…representations will be required at the outset of the investigation stage. This is changed from the current practice where representations could be provided during any stage of the process, with the final and most typically used time being upon notification of formal review. There will now only be one opportunity to provide representations at the outset of the process, unless a party is asked for further information from the investigator or the Commissioner at a later stage. Parties should plan to meet their respective burdens during their one opportunity to provide representations.

Under this rule, as best I can tell, the CBRM would have been required to produce all the documents necessary for the review within 15 days of receiving the Notice of Review from the commissioner.

Throw in the power for the OIPC to enforce this rule, and we’ll be in business.

 

Opportunity lost

I think this is the second time I’ve referenced this Linda McQuaig book I’ve yet to read (something I feel properly guilty doing), but since I’m technically referencing an article McQuaig wrote based on her book, I think I can get away with it.

The book is The Sport & Prey of Capitalists, and according to its publisher Dundurn, it asks the question:

Why are we selling off the impressive public enterprises we often battled as a nation to create?

McQuaig challenges the “dogma of privatization” by recounting stories of successful, publicly owned, Canadian companies like Connaught Labs, the subject of the above-mentioned article. which was founded in 1914 by Toronto doctor John G. FitzGerald.

FitzGerald, writes McQuaig:

…was appalled that large numbers of Canadian children were dying during a diphtheria epidemic because their parents couldn’t afford the only treatment available. FitzGerald experimented and developed an antitoxin that could treat diphtheria, and then, with lab space provided by U of T, went on to develop affordable treatments and vaccines for other deadly diseases.

From the early part of the 20th century:

…Connaught created and produced high-quality medical treatments and vaccines for Canadians, including vaccines for smallpox, tetanus, diphtheria and whooping cough…

In fact, when the World Health Organization launched a global campaign to eradicate smallpox in the 1960, it was Connaught that was tasked with:

…improving standards for smallpox vaccine production throughout the Western hemisphere. Connaught scientists travelled to 12 Latin American countries to teach Connaught’s methods.

And, at WHO’s request, Connaught produced a stockpile of 25 million doses of the smallpox vaccine in case of an outbreak in Latin America.

If Connaught were around today and owned by the Canadian government, McQuaig has no doubt it would be at work on a coronavirus vaccine — which, in keeping with company practice, would be provided to Canadians first and at cost.

But Connaught was sold off as part of Prime Minister Brian Mulroney’s “privatization frenzy” of the ’80s, and what remains of it today “has been absorbed into the vaccine division of foreign-owned pharmaceutical giant Sanofi.”

And while Ottawa still invests “roughly $1 billion a year to fund medical research by scientists at Canadian universities,” it has no control over the results:

The scientists are permitted to take out patents on the products they develop (with our money), and then sell them to pharmaceutical manufacturers, who sell the products to the public — often at great profit.

Even though our public investment paid for the original research, Canadians have no say over the products nor the price at which they are sold to us as consumers. Canada also has no share in the profits.

Is there such a thing as a de-privatization frenzy? Because I think we’re due for one.

 

Open-air fashion

The Norwegian concept of friluftsliv, or “open-air living,” about which I wrote this week, has gone viral since COVID made out-of-doors the safest place to be. In researching my piece, I read a number of good articles on the subject, but hands down the best illustration has to be this one, from British Vogue, which looks like what would happen if the Brontë sisters — pretty serious friluftsliv practitioners themselves, what with all that traipsing over the moors — went on a three-day bender and ended up sleeping under a bush:

For the record: I think going on a three-day bender and ending up sleeping under a bush could possibly pass as friluftsliv, but I wouldn’t recommend it.