An Appeal-ing Situation

Here is my answer to what the City has done on my Municipal Freedom of Information application. Below is the document that I filed with the Privacy Commissioner. I will discuss more about what is going on and why I am doing what I am doing next week after the holiday weekend.....Enjoy!

Registrar
Information and Privacy Commissioner/Ontario
1400-2 Bloor Street East
Toronto, Ontario
M4W 1A8

RE: City of Windsor FOI 33-2006---Freedom of Information

I hereby appeal the interim decision of the Head in this matter.

Because of the bad faith shown by the City, I respectfully request that the City be required to provide all of the records that it has identified to date for my review forthwith at its cost and expense in the following manner and be required to undertake a proper search for any other records:

 The Commission must actively supervise the City in the search of records since the City is acting in bad faith and needs Commission oversight to ensure that it complies with the Act
 The files containing the records be pulled forthwith and placed in a convenient location where I may review them
 Only those records that I require will be photocopied
 It is not necessary for any staff to be involved other than those who pull the files or do the photocopying
 All the documents of the Mayor and the Windsor Tunnel Commission be produced
 All costs, fee and charges to be charged to me are to be waived

I also hereby request that the fee be waived in whole or part or that the amount of the fee be reduced significantly.

The request for information was filed by me. I write a daily BLOG about politics in the City of Windsor. I was formerly the General Counsel of STOPDRTP which was the largest citizens group involved in the border file and am the founder of OJIBWAY NOW!, another citizens group involved in the border file.

The questions in my request relate generally to the Detroit Windsor Tunnel, an asset that is owned by the City of Windsor and the City of Detroit. The Tunnel is one of the key border crossings in North America between Canada and the United States. The subject of border crossings has been a vital matter in Windsor for the last 4 years and was and will be a key election issue in the municipal elections. The other questions relate to a property that is to be expropriated for the Tunnel Plaza Improvement project and for full disclosure of costs incurred by the City in the border file.

The City of Windsor and the City of Detroit are engaged in discussions concerning the joint operation of the Tunnel. This was highlighted by a Joint Councils meeting earlier this year and with on-going discussions. None of the discussions have been made public and the fact that there are the ongoing discussions have only been disclosed in my Blog and not in the local media at all. There have also been discussions that have taken place at the Senior Government Level involving the Tunnel, all of which have not been fully disclosed. Some of the information relating to the Tunnel regarding finances and security have also only been disclosed in my Blog or disclosed there first.

The person who is negotiating the Tunnel deal on behalf of Windsor is the Mayor, a lawyer.

We have learned many disturbing issues relating to the Tunnel recently, facts that the City has not disclosed fully and when disclosed in a piece-meal fashion:
1) The City and the Federal and Provincial Governments are to spend $10 million each to improve the Tunnel Plaza. The reality, given the City plans revealed at information sessions which were not well-publicized to citizens, is that not one single vehicle will move through the Tunnel more quickly. All that will be accomplished from a traffic perspective is to create a giant parking lot on lands that will have to be expropriated.

2) The Tunnel ventilation building has had to be repaired and the costs have increased from $13 million to over $20 million and the final costs are not yet known

3) The air that it takes from the tunnel itself is not cleaned or “scrubbed” but is sent, “dirty,” into the air of the Community, a fact that has not been well-publicized in the Community

4) Its vehicular volumes have gone down drastically since 1999 from 9.6 million vehicles to about 6 million

5) Its revenues have dropped from around $18 million in 1999 to about $12 million in 2005

6) Its strategy of keeping prices low to increase customers failed and the toll was raised recently

7) It has been identified as a “unique” security risk as a border crossing and does not meet US Customs requirements.

8) The City of Windsor budget chairman and member of the Windsor Tunnel Commission, Councillor Brister, in May 2005 said in an article in the Windsor Star that “he cannot provide any details but there are major issues pending involving the Windsor-Detroit tunnel… that will consume "a significant amount of taxpayer resources." No further information has been provided.

9) The actions related to the Tunnel may have resulted in its value being sharply decreased to the detriment of taxpayers.

In my submission, the Letters sent to me by the Head are totally non-responsive to my request and are designed to prevent me from obtaining the information requested. In my submission, the actions of the City are designed to frustrate the purposes of the Act to that information should be available to the public and that necessary exemptions from the right of access should be limited and specific.

In my submission, the Head has acted improperly and in violation of the Act in the following manner:
1) In my submission, the interim decision is a “non-decision” designed to waste more time and to discourage me from proceeding further. I have already had to wait for almost 60 days, from the date of request on June 28, 2006, to get this far. On its face, the so-called interim decision is clearly designed to prevent relevant information being produced by providing no information about the records or which records of the total of 57,729 are to be claimed to be exempt.

2) Information is being deliberately hidden by lumping it into masses of documents

3) I asked for clarification and to attempt to narrow the original request number of records in each of the seven parts of my request since all that they gave to me are total numbers. The answers given were non-responsive notwithstanding that 2 specific requests were made. This demonstrates the bad faith of the City in the clearest of manners

4) I also asked which Departments were contacted. It was clear that one of the addressees, the Windsor Tunnel Commission, was never contacted at all. The Commission is obviously a key party and an addressee of the request but was never contacted. This demonstrates the bad faith of the City in the clearest of manners

5) In the words of the decision P-4 quoted by the Head, “the "enormity" of the fee “...ensures that the files remain inaccessible." I “simply cannot afford to spend (the amount of the fees) when [I do ] not have any indication as to what the documents will contain. Clearly a fee of over $100,000 would cause me a financial hardship.

6) The fee suggested is outrageous in the circumstances and is designed to prevent relevant records being disclosed

7) The request for a 10 month extension of time and the justification for doing so is ridiculous and is designed to prevent relevant records being disclosed in a timely manner.

8) Clearly the City’s filing system is deficient and I should not be required to pay out outrageous sums of money because of that fact

9) It is not credible that the number of records, 57,729, is the true number for questions that are relatively narrow in scope. It appears as if the Head asked for every Tunnel document to be disclosed rather than relevant ones. This same issue arose between me and the City in Order #ORDER MO-1839 where I alleged that hundreds of unresponsive documents were provided. [Note in that case, but unlike in this case, a description of all of the records retrieved and their source was provided so that an informed decision could be made]

10) The City has not conducted a reasonable search for records responsive to the request since it is absolutely inconceivable that the Mayor would only have 30 records that are responsive to my questions when he is the main negotiator and Chair of the Windsor Tunnel Commission. The number of relevant documents is highly suspect as well.

In my submission, it would be fair and equitable for the fee to be waived or reduced significantly for the following reasons:

1) The results would be of value to the Community since the Tunnel is, in the words of the Mayor “a strategic asset” that could be worth a considerable amount of money if it is being managed and operated properly. It appears, from the small amount of information disclosed publicly to date as if the Tunnel may have not been managed properly given the huge drop in traffic and revenues, the massive cost over-runs and the security problems. Clearly there is a need to shed light on what is happening and obviously the response by the City shows that it is not prepared to do so. I would expect to disclose relevant information to the public thereby saving other citizens costs of application under the Act.

2) The fee amount is outrageous and excessive---spending 1060 hours to retrieve records does not appear to be reasonable on its face considering that the records requested are limited in scope. It appears that I am also being double-charged for searching and preparation time. NO proper breakdown has been provided whatsoever to justify those costs. As has been stated in a decision under the Act “In my view, a requester must be provided with sufficient information to make an informed decision regarding payment of fees, and it is the responsibility of the head to take whatever steps are necessary to ensure that the fees estimate is based on a reasonable understanding of the costs involved in providing access. Anything less, in my view, would compromise and undermine the underlying principles of the Act.” Respecting copying, we would only want copies of relevant documents.

3) Clearly, this is a matter of public concern involving both public health and safety. One of the issues respecting the border crossing is the effect of truck fumes and pollutants on the population. That the Tunnel spews unscrubbed air into the downtown of Windsor is shocking since it appears that no provision was made to clean the air in the Tunnel ventilation building improvements. Moreover, the City has just passed a new Environmental Master Plan. Information is needed forthwith regarding the “unique” security risk of the Tunnel and what steps, if any, have been taken to correct the problem.

4) Dissemination of the records will benefit public health or safety since citizens will be more aware of what discussions the City has had and what the impact would be of any such discussions. Citizen involvement has been sadly lacking to date on the border file---only ONE public meeting where citizens could appear as delegations with the rest of the City actions being taken in secret, in camera sessions by the Mayor and Council. The more information available to citizens, the better the decision-making will be. The dissemination would contribute meaningfully to the development of understanding of important public health and safety issues. I would expect to disclose relevant information to the public.

5) The waiver or reduction of the fee would not shift an unreasonable burden of the cost of access from me to the City since I would be the one going through the documents in detail and would pick out the relevant ones. There would not be a significant interference with the operations of the institution. It would appear that at most, that several hours of work per department would be required to pull the relevant files.

I would adopt the following language as part of this submission [emphasis added]:
ORDER M-583
Appeals M-9400584 and M-9400585
Board of Education for the City of York
“... [T]he Board should be aware that government organizations across the province are now regularly receiving access requests regarding the expense accounts of senior officials. This is part of a trend where members of the public are seeking to hold institutions of all types more accountable for the expenditure of tax dollars. That being the case, I would strongly encourage the Board to reassess the manner in which it maintains its expenditure related records so that these documents can be retrieved more easily and at a minimal cost to requesters.

I share this view, but would take it one step further. I believe it's time for all government organizations to make expenditure-related information routinely available to the public. Such information should include the expenses incurred by senior officials for which they will be reimbursed by the organization. In my view, this "routinely available" approach has equal application to all general records held by government.

For some government organizations a move in this direction will mean rethinking the way in which they maintain expenditure and expense-related information and other general records. I see this as a positive step and one which has advantages for both government organizations and the public...

In addition, in my view, the idea that a member of the public could be asked to pay up to $25,000 to find out how a public institution spends tax dollars is at direct odds with the fundamental purpose of all freedom of information laws - accountability to the public. Such circumstances represent a clarion call for fresh approaches.

At a time when the financial resources available to public organizations continue to decline, the need for creativity in the administration of programs is even more pressing. Freedom of information is no exception - there are straightforward, inexpensive solutions.

For example, I'm aware of a mayor of a sizeable Ontario city who has a copy of each of his expense statements placed in a file available to anyone who asks for this information. This is a low-tech, inexpensive way to respond to inquiries from the public for this type of information. But its simplicity hides a fundamental truth. This mayor clearly recognizes that this type of information should be readily available to the public as an integral part of the day-to-day business of the city.

For me, it is the attitude demonstrated by this mayor toward the public's right of access to information that is the key to achieving a vibrant, cost-efficient freedom of information system in Ontario. This mayor has thought about the public's right of access to information, as well as the type of information in which the public is likely to be interested.

I would also refer your attention to the decision of ORDER MO-1839. It is the same strategy used by the City all over again.


Yours very truly,