I learned a few things from the discussion of my 2015 FOIPOP application during last night’s CBRM council meeting.
I learned that Jim Gogan of Breton Law Group handled my initial request in 2015 and is now handling the review.
Regional solicitor Demetri Kachafanas revealed this in response to a question from District 8 Councilor James Edwards, who inquired about the “chain of command” involved in responding to FOIPOP requests. It was a good question, because the access to information process in any municipality has a very precise chain of command, which is spelled out in the Municipal Government Act (MGA). The CAO, where one has been appointed, is the “responsible officer” making decisions about access to information requests, but can delegate that responsibility, under clause 497:
(1) The responsible officer may delegate to one or more officers of the municipality [emphasis mine] a power granted to, or a duty vested in, the responsible officer.
(2) A delegation
(a) shall be in writing; and
(b) may contain any limitations, restrictions, conditions or requirements that the responsible officer considers necessary or advisable.
The Contract Office
Edwards asked Kachafanas about this “chain of command” in relation to my 2015 FOIPOP and Kachafanas stated:
This one was different than most of the FOIPOPs. Most of the FOIPOPs are dealt with, Deborah Campbell is the FOIPOP administrator, so between her and myself, we usually review most. It was determined by the former CAO that because this was related to the Port that the external Port counsel had a better handle on these documents, so it was tasked to him to do the FOIPOP request.
The former CAO, remember him? Michael Merritt? He decided to hand responsibility for answering my FOIPOP to the external counsel at the Port who is not, by any stretch of the imagination, an “officer of the municipality.” (I’ve asked the Office of the Information and Privacy Commissioner for clarification on this point, but I don’t see how the CBRM could have justified outsourcing a FOIPOP to external counsel.)
Like most things related to Merritt, his excuse for handing the FOIPOP to Gogan was less-than-convincing — he assigned it to Gogan because the “counsel had a better handle on the documents.” What is needed in handling a FOIPOP is not familiarity with the particular documents, but familiarity with the laws governing access to information.
The essential problem here is that responsibility for my FOIPOP was removed from the FOIPOP admin officer — who has a duty to ensure citizens receive information they have a right to receive — and given to a lawyer with a vested interest in keeping information secret. And as was made clear by Kachafanas last night, Gogan (who wasn’t available to answer council’s questions) is still running the show, the “person that was dealing with the Port issues” is going through 862 pages of documents “hopefully with an eye to disclose as much as we can.”
Breaking the law
Asked directly, by District 6 Councilor Glenn Paruch, if the CBRM had broken the law in relation to this FOIPOP, Kachafanas provided a breathtakingly disingenuous response:
When you say “broke the law,” the FOIPOP legislation has exemptions under it, there’s certain exemptions to disclosure, so, if it meets those exemptions you’re allowed to withhold them. That’s the FOIPOP legislation. We feel that they met the legislation, the FOIPOP Office doesn’t…
The Privacy Commissioner didn’t say the CBRM “broke the law” by claiming exemptions that didn’t apply. The Privacy Commissioner said the CBRM broke the law by failing to conduct a proper search for documents (41 of which it never produced) and by failing to conduct a line-by-line review of the 862 pages it withheld. Kachafanas admitted as much at another point in the meeting:
What the FOIPOP office said is that, you know, you, you probably could have went, did a more deeper dive into the documents, maybe redacted more, maybe provided more, [instead of] everything just a wholesale, say it’s exempt…
Yes, exactly, and by not “doing a more deeper dive into the documents” and instead exempting 862 pages wholesale, the CBRM BROKE THE LAW.
Contempt revisited
Throughout last night’s discussion, Kachafanas referred to the Office of the Information and Privacy Commissioner as “the FOIPOP office,” which would be like me referring to his as the “contract office.”
He even, in a moment of peak cynicism, claimed it was perfectly reasonable of the CBRM to take another 60 days to review the requested documents, given they’d waited five years for a decision from the OIPC. As if government bodies in this province — including the CBRM — don’t exploit the two or three-year backlog of cases at the under-resourced OIPC to refuse to release information, knowing that by the time an appeal wends its way through the system, any information released is unlikely to be of any value. As if the CBRM didn’t play its own part in the delay, when, as the commissioner wrote, it:
…treated the statutory time frames as guidelines when they are in fact legal duties. It completely disregarded the statutory timeframes set out in the law. As such, I have no hesitation in finding that the CBRM failed to meet its duty to conduct an adequate search for the responsive records.
Kachafanas referred to Ralph’s ruling as “a different opinion,” and reminded council more than once that the “FOIPOP office” can “only make recommendations,” as though this were simply the way access to information works and not a fatal flaw in the Nova Scotia system, one that successive privacy commissioners — including the newest one — have tried to address. In her first annual report as commissioner, Ralph called for order-making powers for her office. As the CBC reported:
Without the power to compel provincial departments or government agencies to release information, those withholding that information can simply ignore the advice of her office. The only recourse is for an aggrieved party to appeal to the Nova Scotia Supreme Court.
Ralph considered that onerous.
“They might not have enough money to go to court or they might feel intimidated by that process,” she said in an interview.
It is onerous — a fact that wasn’t once mentioned last night, as Kachafanas airily announced that the applicant could always take them to court. (Ralph said she’d be open to a regime like that in Newfoundland, where the privacy commissioner doesn’t have order-making power, but the onus is on the public body to go to court to fight releasing documents rather than on the applicant to go to court to fight to have them released. If we had Newfoundland’s system, the CBRM would either have to release the documents in full or go to court for permission to hold information back.)
NDAs
The specter of non-disclosure agreements (NDAs) was raised repeatedly last night to terrify new councilors into accepting Gogan’s plan to take another 60 days and release as much information as he felt could be released. (Which, I should have noted up top, is where we are now — I’m to give Gogan until 30 January 2021 to see which of those 862 pages he wants to give me.)
But if you read the Privacy Commissioner’s decision, there is no mention of NDAs. Ralph says the package of withheld information contains “various unsigned business agreements.” Moreover, she says the CBRM’s argument for withholding 862 pages was that the “information contained in the records was sensitive and that disclosure of it would lead to future harm to the CBRM.” But the onus is on the CBRM to prove the release of the documents would cause it harm and the municipality, Ralph writes:
…barely even set out what the alleged harm could be. There was one sentence that the release of the documents could put the prospects of the project in jeopardy. Even if I accept that releasing some records could put the project in jeopardy, the CBRM simply asserted that harm would occur. No explanations were provided as to how release of the documents could cause the asserted harm.
Were the information subject to non-disclosure agreements and its release likely to trigger a devastating lawsuit, wouldn’t this have been the place to mention it?
Join the club
The fault lines between the new councilors and the old were clearly visible last night.
The new councilors leaned toward releasing the documents immediately and, in the case of District 1 Councilor Gordon MacDonald, in full:
When you redact 862 pages, it allows everyone in the public to wonder what the heck we’re hiding.
District 3 Councilor Cyril MacDonald agreed:
To withhold 862 pages of public information five years ago was unacceptable and it’s certainly unacceptable today.
District 6 Councilor Glenn Paruch warned that public “perception” was that the CBRM was hiding something, and District 7 Councilor Steve Parsons expressed skepticism that the commissioner would demand the release of documents subject to non-disclosure agreements.
Unfortunately, no one took the next step, which would have been to make a motion to release the documents in full.
Perhaps they were swayed by Kachafanas’ dire warnings of the fate that awaits a council that allows the public to get its dirty eyeballs all over its special, secret work; fears longer-term councilors, like District 10’s Darren Bruckschwaiger and District 5’s Eldon MacDonald, were happy to stoke. (Eldon MacDonald, without a shred of supporting evidence, jacked the amount of their own money Albert Barbusci and Barry Sheehy are now supposed to have spent promoting the Port of Sydney to “tens of millions” of dollars.)
But it was CAO Marie Walsh who really took the cake last night, offering a little history lesson on the Port file:
Just, as part of the history. The decision at the time was to give the mayor the authority to handle the port file. You are the board. You can have those documents. The decision at that time was to keep it very closed in the mayor’s office. He signed the non-disclosure agreements. If you want to sign non-disclosure agreements as a board and come in and sit with the clerk and look at that file, you are more than welcome. There is nothing that we are trying to hide. We are trying to protect the board here, again, it was for the protection of this board because it would not have been the first time that information at an in camera session was leaked to the public and that’s what it was put in place for — for protection for this council.
We have nothing to hide. Except we met a lot in camera. And we let the mayor control the port file from his “office” — which consisted of his unelected “political staff” and a few contractors he had report to him directly, although that’s against the MGA. Oh, and the mayor personally signed NDAs, so he didn’t have to share information with council, so nobody could leak it to the public. But we have nothing to hide, and if you want to see that we have nothing to hide, all you have to do is sign this NDA.
In other words, Walsh, sang the siren song of secrecy: “Come! Join the club! You, too, can know what’s going on — as long as you promise not to breathe a word to the plebs who elected you.”
Tie yourselves to the mast, new councilors! Don’t be tempted — most of you did run on a promise of “transparency,” as Paruch pointed out, and this is not transparent.
And while we’re waiting to see what Gogan decides to send me, why not draft a policy on access to information that ensures no one will ever again be denied 862 pages of information by the external council for the Port of Sydney — or by anyone else, for that matter?
P.S. I will have more council coverage in next week’s edition!
