Privacy Commissioner Says CBRM has Rejected Recommendations

Previously, on “My FOIPOP Appeal,” I explained to you that in 2015, I made a request to the CBRM for communications related to the decision to give Sydney Harbour Investment Partners (SHIP), then known as Harbor Port Investment Partners, an exclusive contract to market the Port of Sydney.

Roughly 100 days later, the CBRM responded to my request with a strange little collection — 28 pages, heretofore known as “package #1” to be exact — of documents.

I appealed this response and, on 3 November 2020, Nova Scotia’s Information and Privacy Commissioner, Tricia Ralph, ruled in my favor. She said the CBRM had failed to conduct an adequate search for documents (some it never produced, not even for the commissioner) and that it had withheld 862 pages from me without conducting a line-by-line review and under exemptions she said did not apply. She even said the municipality had redacted information from the documents it gave me that should not have been redacted. She made four recommendations:

1. I recommend that the CBRM conduct a new and complete search for all the attachments noted in the attachment line and referenced in the body of emails. At the conclusion of the search, the CBRM should provide the applicant with a new open, accurate and complete decision that contains all of the missing records. The CBRM should take the findings and recommendations found in this review report into consideration when considering applying exemptions to the attachments. The decision is to be sent to the applicant and copied to the Information and Privacy Commissioner within 30 days of receipt of this report.
2. I recommend that the CBRM release all of the information withheld in full in package #2 pursuant to s. 477 to the applicant.
3. I recommend that the CBRM release all of the information withheld in full in package #2 pursuant to s. 481 to the applicant.
4. I recommend that the CBRM release all of the information redacted in package #1 pursuant to s. 480(1) to the applicant.

The CBRM had 30 days to respond to the commissioner’s ruling or be considered to have rejected her recommendations.

As I reported last Friday, the CBRM hired external council — James R. Gogan of the Breton Law Group — to send me the CBRM’s official response, which was dated November 30 and stated that:

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

Rejected

I sent a copy of the CBRM’s letter to the Office of the Information and Privacy Commissioner (because apparently the CBRM didn’t) and today (December 8), I received the following response from Carmen Stuart, executive director and chief privacy officer:

Thank you for providing this letter. I reviewed it and noticed a couple of deficiencies with it. The letter is not compliant with the requirements set out in s. 493 of Part XX of the Municipal Government Act in two ways – (1) it does not specify if each of the recommendations is accepted or rejected and (2) it does not inform you, as the applicant, of your right to appeal the decision of the responsible officer to the Supreme Court of Nova Scotia within thirty days of the date of making the decision (decision issued on November 30, 2020).

As a result, it is Stuart’s determination — soon to be posted on the OIPC website — that:

…the CBRM has rejected the Commissioner’s four recommendations found in the Report. The report recommended that the information be released in full. The CBRM committed to reviewing the records and indicated that it would be likely that much or all of the information would be released. Because CBRM has not agreed to release all of the information, it has rejected the recommendation.

The question of my FOIPOP is on the agenda of tonight’s CBRM regional council meeting; regional solicitor Demetri Kachafanas has promised an “update” on CBRM FOIPOP File 93.

A copy of the commissioner’s ruling has been attached to the agenda, but there is no copy of Gogan’s letter nor is there any indication of what Kachafanas plans to say about the file.

Which is why I’m publishing this today, without a paywall, and including  a copy of Gogan’s letter — to be sure the “update” council receives is really up to date.