A Letter Of Appeal

I blogged a few days ago that I had to spend a good part of a weekend preparing a letter for the Privacy Commission to define the issues for an adjudication over what the City has not disclosed to me and the amount of money they want in order for them to do so.

The letter I sent out is copied below.

I assume that the new Councillors and some of the members of the old Council at their strategic session will vote in favour of openness on border issues. If that is the case, then the appeal need not go on further and I should be able to get the information I require.

But I won't get it because if I did, then I could tell you what is really going on at the Tunnel. Silly me, I thought you and I had a right to know something about a City asset.

It should be interesting though to see what happens. Will this Council demand openness or will it be more of the same? By the end of the week, we should have a good idea of what Messrs Dilkens, Marra and Hatfield are made.

• 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 want to set out what I consider the issues to be in this matter:
  
  1) The City is not acting in good faith in my submission. The so-called interim decision is a “non-decision” designed to waste more time and to discourage me from proceeding further. I have already had to wait 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 little relevant information about the records and 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. The answers given were non-responsive notwithstanding that 2 specific requests were made.
  
  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.
  
  5) In the words of the decision 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 ti 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) 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.”
  
  6) 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 look forward to hearing from you.
  
  Yours very truly,