MFOIA Reply To The City

Wow, a lot of you wanted to read the Bridge Co.'s Dan Stamper letter yestrday. I assume you liked the direct talk and the strong language. So I followed his example a bit (It's still Canada, eh)

Oh I know it is not as exciting as an arena BLOG or a border one and I know you'd rather read about Bambi (watch for more Superior Park shockers on Monday) but this is important too. It is a continuation of my challenge about how this City is run and to get the facts.

Here is my next letter dealing with fee waiver and public health and safety issues on my Municipal Freedom of Information application.

I know it is long and boring but I believe you will find it of great interest. Who cares about this specific issue (other than me). What is of interest is the way the City works.

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Thank you for your letters dated September 22, 2006 and October 11, 2006.

To be quite direct, I have no idea where we are in the process. I thought I was to respond to your first letter re the fee waiver. Then I received a letter from you respecting “mediation” dated October 11, 2006. I did not think we had started that part of the process yet since I had not dealt with fees.

In any event, let me deal with the fees, waiver and financial hardship first:

Order ORDER MO-2071 states that

“The purpose of a fee estimate is to give the requester sufficient information to make an informed decision on whether or not to pay the fee and pursue access. The fee estimate can assist a requester to decide whether to narrow the scope of a request in order to reduce the fees. A fee estimate also protects an institution from expending undue time and resources on processing a request that may ultimately be abandoned. In all cases, the institution must include a detailed breakdown of the fee, and a detailed statement as to how the fee was calculated.

This office may review an institution’s fee estimate and determine whether it complies with the fee provisions in the Act and Regulation 823, as set out above.”

Frankly, what you have provided to me as a so-called response to my application makes it impossible for me to make an informed decision about anything. I have attempted to reduce the scope but you provided me with no answer responsive to my requests.

I find it quite strange that in a previous MFOIA that I made and for which I sought a fee waiver you did not ask for the detailed information that you have asked for in this case. In the first case, the amount in dispute was only $360.00 while in this case, the amount is $101,089.00. If you will recall in Order MO-1839 the Ajudicator agreed that the fee should be waived based on the fact in part that “I further agree with the arguments put forward by the appellant in favour of his position that it would be fair and equitable to grant a fee waiver in light of the manner in which the City has processed his request.” The same applies this time around, only worse.

This case is much stronger since you have not even had the courtesy to answer my questions so that I might make an informed response. In fact, you have not stated which documents you would refuse to produce so that I could potentially make the payment and receive absolutely nothing!

On its face, a fee of $101,089.00 would cause financial hardship to an individual. There is no absolute requirement to provide “income, expenses, assets and liabilities.” The Order you referred to starts off by saying “generally” not absolutely. The basis of this Order is Order P-1393 and in that case the “The Ministry responded to the appellant's request for a fee waiver, by asking her to provide additional information regarding her financial circumstances.”

For your information, my financial circumstance is that I am in receipt at this time of Canada Pension Plan income and the combined family income for Income Tax purposes for my wife and me for 2005 is a small fraction of the amount requested. Obviously, this request would cause financial hardship to me

May I draw your attention to the case you referred to with my comments therein:

MO-1895

In a letter dated February 3, 2004, the Municipality provided a fee estimate in the amount of $11,100 to process the appellant’s request, estimating that there are approximately 45,000 pages of responsive [Their cost per page is 24 cents, your cost is $1.75]

“In preparing this response, I have consulted with the Municipality’s chief administrative officer, treasurer, treasury staff, public work’s manager, members of the buildings department, members of the administrative staff, the municipal records clerk and various other municipal staff members. The estimates set out herein are based upon the results of these consultations. [You did not state whom you consulted or provide how you reviewed their responses]

I have also retrieved and reviewed a representative sample of some of the records that would be responsive to your request. [You did not do this]

In this respect, we retrieved and copied the agenda packages for 2000, 2001 and 2002, which is one of the many items that you have requested. We made a total of 6,559 copies and, at $0.20 per page, the cost for this copying was $1,319. As set out below, we are prepared to provide these specific documents to you without cost

Search: 140 hours @ $30 per hour = $4,200 [You require 1060 hours]
Preparation: 150 hours @ $30 per hour = $4,500
(approximately 10% of the records will have severances or will require full or partial severances, which is approximately 4,500 pages @ 2 minutes per page = 150 hours) [You claim every page requires severance]
Photocopying: 9,000 pages @ $0.20 per page = $1,800
(based on the assumption that approximately 20% of the records will require photocopying and that the remainder of the responsive records can be placed on computer discs) [I only would want the pages I feel are relevant copied]
Other Costs: It is estimated that it will take 5 hours of computer programming in order to retrieve responsive records @ $30.00 per hour = $600 [Nothing like this was done in my case]

The Municipality has provided the appellant with a fee estimate of $11,100. The calculation of that estimate was broken down in great detail by [the Clerk] in her comprehensive response letter...Given the demands placed on the current staff resources of the Municipality, it would be necessary for the Municipality to hire a new staff person in order to respond to the appellant’s request. [Great detail was not provided in my case and my question to reduce the scope was not answered]

Generally, to meet the "financial hardship" test, a requester should provide details regarding his or her financial situation, including information about income, expenses, assets and liabilities [see, for example, Order P-1393]. [See my comments above]

In regard to the manner in which the Municipality responded to the request, I note that there was some delay in the Municipality’s response to the appellant. The appellant made his revised request on July 2, 2003 to the Municipality and did not receive an interim decision until February 3, 2004. In cases like these where there has been some delay in responding to the request, the argument has been made that the records lose their importance, use and effectiveness. I agree and find that this factor significantly weighs in favour of waiver. [Your actions have stalled my requests for months]

Regarding whether the Municipality worked constructively with the appellant to narrow or clarify the request, the Municipality noted the following to the appellant…I note that both the Municipality and the appellant have made attempts within their abilities to narrow the request. As the appellant is no doubt aware, his request for records is both broad and varied. In my view, a factor supporting fee waiver which would weigh strongly in the appellant’s favour is whether the appellant made attempts and aided in any efforts to narrow or clarify his request. [The Municipality did not work with me at all]

I am satisfied that the appellant would suffer financial hardship if he were to pay the fee. While I agree with the Municipality’s arguments that the organization that the appellant is affiliated with could pool resources or contribute to the payment of the fee, in this case the amount of the fee is quite large and I find that it would be onerous even if the cost were spread amongst a number of individuals. [This comment would apply in my case!] “

Based on the case you referred to, the difference in what was done there and what was done in my case is like night and day.

Let me now deal with the issue of “public health and safety.”

The matter I am dealing with in respect to the Detroit-Windsor Tunnel is of great importance from a public health or safety aspect. I am asking about plans concerning the Tunnel and in particular about its operation, management, financing and improvements, changes and alterations.

The Tunnel is in the midst of a project for improvements that may cost $30 million or more by the time it I finished. In addition, the Tunnel ventilation building project, a separate transaction, will cost around $20 million I believe, well over the $13 million original budget. Both projects deal with public health and safety matters.

The news report states that there are public health and safety concerns to users of the Tunnel respecting the Tunnel ventilation building eg structural problems, aging ventilation system, repairing interior brick work, reinforcing the steel structure, removing PCBs, replacing the roof beams and corrosion of the steel structure throughout the building, which is adjacent to the downtown bus terminal, and concerns about the structural stability of the entire building.

The Mayor has said “virtually no work has ever been done on this building and it appears as if they are encountering new problems every day and every time they turn around.” Councillor Valentinis has said “there are certainly major red flags being raised."

Clearly this project concerns public health and safety.

As you know, there has been considerable concern also about exhaust and pollution from diesel trucks and cars on Huron Church Road in Windsor. In fact, there is a desire expressed by the Mayor and Council to tunnel a good section of the road to the new crossing. However, I am certain that few Windsor residents are aware that the Detroit-Windsor Tunnel owned by the City through the Windsor Tunnel Commission exhausts unscrubbed air from the Tunnel such that it may be a major polluter in downtown Windsor.

My request deals with this matter, amongst others, and what is being done if anything.

In addition, the Tunnel has been called a “unique” security risk and US Customs has said that the Tunnel does not meet its requirements. As you know, it is such a risk because “There’s this inherent security concern with the proximity of that tunnel to the downtowns of both Detroit and Windsor.”

My request deals with this matter, amongst others, and what is being done if anything.

The improvements are also designed to remove vehicles from City streets since there are huge queues if there are backups going into the US. I am aware of relatively inexpensive suggestions about how to fix the Tunnel problem at a cost substantially less than $30 Million. The public needs to know and understand how the City proposes to tackle this issue as well.

Clearly this project concerns public health and safety.

It is obvious that I will disseminate the information received if it is meaningful since I write a daily Blog on politics in Windsor. The readership includes media, government, business people and the general public.

Clearly the taxpayers and residents of Windsor have an interest in being made aware of pollution issues and what is being done, or not being done to deal with pollution downtown. The City can hardly talk about fighting pollution and then be a major polluter. This is very important especially since the City passed recently an Environmental Master Plan and the Tunnel ventilation exhaust may impact the downtown negatively.

As “owners” of the Tunnel citizens should be made aware of what is being done to minimize risk and liability at the Tunnel because of the security risk and the failure to meet Customs requirements. If action is not taken, the Tunnel could be closed down if Bill C-3 is passed. This is a City-owned asset and citizens need to be made aware of the issue and what must be done as soon as possible.

In the circumstances, I have fulfilled the requirements and it is fair and equitable to grant a fee waiver.

With respect to your October 11 letter, I have some comments to make:

Point #1—I have no idea what you are talking about: why would I not receive 100% of the responsive information. Why would there be severing on each page? That seems absurd.

Point #2—I have no intention of guessing where these WTC documents are. Your obligation is to provide them and to provide the information requested as to volume, dates etc. Lumping them in with other departments is designed to mislead and to hide them and to run up costs unnecessarily so that I will not seek them out. That is acting in bad faith in my submission for which the City should be censured. It is NOT my fault if your documents system is a shambles and you should not be requiring me to pay for your inability to file materials so that they are readily available.

Point#3---This comment is absurd. I can file applications by year and department and you would be required to produce the information. What this tells me is that a proper search has not been made and that the document volumes are phony, designed to make me give up on my request by charging an excessive sum of money. You have never provided me with the information I requested twice. Again, I would submit that the City has acted in bad faith and should be censured.

Point#4---the whole purpose of my comment is to reduce costs in advance. There is no need to receive a deposit first before such an easy question is answered. Clearly the City has no desire to try and scope down the request.

In the circumstances, I believe that you must provide me with the documents and at no cost.