A BLOG You Will Never Read
I am sure that you are never going to read this BLOG unless you are a glutton for punishment, you have a really big cup of Tim Horton's coffee to drink and your boss is away for the day or you want to convince your kids not to be a lawyer but to do something useful like be an electrician or plumber!
It's about 20 pages of typed sheets of paper if you wanted to print it to take it home for the weekend. Its either "War and Peace" or this for insomniacs.
I wanted to set out in its entirety my Answer to the City's Representations so that you can see what I had to do to try and get some documents from the City. It is what one sometimes has to go through with our Open and Transparent Municipal Government.
Remember they wanted me to pay over $100,000 under my Municipal Freedom of Information Act request. I was seeking information about the financing deal re the Detroit/Windsor Tunnel, the Duty Free Shop, Tunnel Plaza Improvements, the Burger King and Top Hat properties downtown and fees and accounts of all consultants and lawyers hired on the border file.
The areas of dispute from my perspective relate to:
- the search for documents (excessive in quantity but deficient in quality)
- financial hardship
- reasonableness of search especially respecting the number of records the Mayor holds and the lack of specificity re the Windsor Tunnel Commission
- adequacy of the City's filing system in searching for documents
- fee waiver
But the most surprising part of the City's position was their reference to my BLOGs and the personal attack on me because of what I write. It's becoming quite common now.
I thought no one at City Hall would ever admit to reading them. Remember, as an example, what the Councillor formerly known as Councillor Budget said to Roseann Danese:
- "Ward 1 candidate Coun. Dave Brister is not a fan of blogs. “I don’t read blogs,” he said recently.
Most city councillors will never admit they read Arditti’s blog, but they do. Be certain of that. Privately, city hall employees have said they’ve been surprised from time to time at the accuracy of some of his inside information. He has moles. But no one seems to know who they are."
Well it seems the someone in the Legal Department reads them. I was accused of not working constructively with the City to narrow the request, that I am not motivated to be reasonable, that I am biased and need to cast public aspersions against the City and that my approach was confrontational and mocking!
Whew, and you, dear reader, thought that the Battagello story was harsh! What a character attack on me.
This was all due to my June 29 BLOG "MFOIA--Open And Transparent Government" and my June 30 BLOG "The Clock Has Started Running" it seems, part of which was quoted in the City's representations. And my calendar, as above.
Touchy, touchy. I may have been a bad fellow but you know what....I did say in my BLOG that I hoped I would be proven wrong in how quickly I would get the documents. Unfortunately, the facts demonstrate that I am a pretty good psychic!
Of course I answered the attack by talking about the City's "openness" and how the City had acted in other MFOIA requests. [See below]
I find it so interesting how concerned some are about a BLOG. To think that a few remarks on the Internet should cause so much consternation. I certainly do not have the readership of the Star and never will. I do not have as many readers as a radio station has listeners or TV station has viewers in Windsor and could never hope to do so. So what's the big deal?
I don't think I am the problem, dear reader. YOU are. I am not that important in the scheme of things but YOU collectively are very powerful and are viewed as a threat.
YOU are the one who chooses freely to come here to get a different perspective on what is going on in Windsor. YOU are not a person satisfied to get the "news" only from the traditional sources.
YOU are the one who scares some people, not me. YOU might start thinking critically. YOU might not swallow what you are being told. YOU might start asking some tough questions and demanding answers. YOU might get more involved. YOU are the one who demands to know more and comes here to read an alternative point of view. And not just mine either, but the other Bloggers in town.
YOU are the real danger, not me.
So if YOU have a few minutes over the weekend and have nothing else better to do, YOU might want to take a peek. Who knows, YOU might want to read "Anna Karenina" next.
ANSWER TO CITY OF WINDSOR REPRESENTATIONS
February 28, 2007
Appeal No. MA06-302
Request File Number: FOI 33-2006
The representations by the City of Windsor are very distressing to me. Red herrings are introduced while relevant information provided by me is not acknowledged as if it did not exist. The City then introduces the irrelevant issue of “character” as if somehow this is important in determining the issues in this appeal.
In my opinion, the Windsor Representations are nothing more than a continuation of the City’s efforts to stall the release of required records under the provisions of the Act.
In answer to the question of who is requesting the fee waiver, it appears that Mr. Scarpelli on behalf of the City had no issue but the City’s lawyer has made up one. His red herring is that “of fundamental importance...is the person making the request for the records.” But he just makes this bald statement without saying why.
It should be obvious to the City with whom they are dealing. Rather, the City prefers to make an issue out of nothing as if my letter was never received. In my letter dated October 19, 2006 respecting the fee waiver, I said:
“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.”
Can anything be clearer that the records are being requested by me as an individual and not Wyndham Hall Consulting.
SCOPE OF REQUEST
It is beyond comprehension how the City can say that it made a reasonable search when it did NOT provide or identify any records from the Windsor Tunnel Commission, one of the named MFOIA parties from whom records were requested.
It was not identified by Mr. Scarpelli as one of the groups from which inquiries were made. All he said was “I would comment that the Windsor Tunnel commission records are duly represented by various departments namely Corporate Projects, Council Services Department and City Auditor.” (Oct11 letter).
What does that mean? That is a totally non-responsive answer and nothing more than an attempt to hide documents by burying them with thousands of others to make them impossible to be seen by the Applicant. WTC is a separate group in the City which ought to have its own files system. If it does not, that is not the fault of the Applicant.
It is absurd to suggest that there are only 30 records in the Mayor’s Office that are responsive to this matter. I find it fascinating that no one thought to ask the Mayor himself if there were more than 30 records, only the Chief of Staff. She merely asked the Mayor about “electronic files.” Is there a reason why there was no conversation about “non-electronic” records.
Lawyers, and the Mayor is one, are notorious for being packrats about paper. That there are only 30 documents is a virtual impossibility. Have efforts been made to store records in other locations precisely to frustrate the purposes of the Act. The Mayor is a known as a “micro-manager” who keeps tab of everything. The Tunnel “financing” file is a huge one for the City given its value as an asset. Micro-managers would have files and records.
Moreover, the comments made refer only to the Mayor’s “main office file cabinets.” Are there any other cabinets in other locations. As an example, when the Mayor was a Councillor, he made me aware in another MFOIA application that the then Mayor had “secret” cabinets. Does this Mayor have such cabinets. Does he have a home office or other location where documents are kept as an example?
The Mayor is also Chair of the Windsor Tunnel Commission. Did the Mayor keep his files in the WTC location rather than the Mayor’s Office precisely so that he can say as Mayor “I do not have any records.” He would be correct since he holds them as WTC Chair.
I have requested records surrounding the possibility of the sale, lease or securitization of the revenues of the Windsor/Detroit Tunnel. This is a major transaction that the City of Windsor has been discussing with the City of Detroit (each City owns half of the tunnel) and the Governments of Ontario and Canada. Here is one example from the Windsor Star:
- Windsor Star 03-01-2006
Councils join in historic meeting
A meeting between city councils from Windsor and Detroit was labelled a historic first Tuesday night.
Fixing border traffic problems at North America's busiest international crossing was the focus of the agenda, but the two- hour session was dominated by background presentations.
A commitment was made by both councils to meet again soon with the hope of making joint decisions about several controversial border traffic issues -- such as the location for a new bridge and deal with a looming bid by the Ambassador Bridge company to take control of the U.S. side of the Windsor-Detroit tunnel.
"The fact these type of sessions don't happen every day was most important," said Windsor Mayor Eddie Francis. "This is a new chapter in our relations.
"Background was very important. It's a first step in understanding of our realities. We can get together again and have more discussions."
It was an historic evening with background presentations. The Mayor is a lawyer. He would have “records” for those presentations that he would have prepared or that he would have seen before anything was presented in Detroit.
In another article, it was said:
- Detroit envies tunnel revenues
Dave Battagello 03-02-2006
Joint operating agreement mulled as Windsor earns millions more from tube
The city of Windsor raked in over $6.8 million US more in profits the last three years than Detroit through operation of the Windsor- Detroit tunnel.
Ownership appears to be the difference -- Windsor owns the Canadian side of the tunnel, keeping its toll revenues, while Detroit has leased its side and receives rent payments from an Australian bank.
Even though Windsor must pay for upkeep, the profit advantages dwarf the deal Detroit has in place, according to figures provided during Tuesday's joint council meeting by City of Detroit fiscal analyst Irvin Corley Jr.
While Windsor pulled in about $9.2 million US in profits in 2002-04, Detroit earned $2.3 million, he said.
Several Detroit councillors hinted they want to see a joint operating agreement with Windsor to run the tunnel so Detroit can generate a similar level of profits.
"Joint operation is something both entities should explore," Corley Jr. said. "This is an opportunity for both sides to do due diligence and do a better deal for both sides…"
Windsor city council and Transport Canada have expressed opposition to the bridge offer, fearing it would give too much control of local border crossings to a private company.”
Windsor had an agreement with the Detroit & Canada Tunnel Corporation to operate its side of the tunnel. It is not believable that an “operating agreement” and other relevant records respecting a possible “joint operating agreement” for an international Tunnel operation that the Mayor has estimated to be worth $2-300 million would only be 30 records.
Please note as well that both the City and the Federal Government opposed a competitive Tunnel offer. Again, is it believable that there was not substantial correspondence between the two levels of Government?
With respect to the competitive offers, here are other Star stories all of which suggest that there should be more records around:
- “Tunnel operator upsets city over customs plaza;
Dave Battagello 07-05-2005
Mayor Eddie Francis and the city's tunnel commission say they are concerned the operator of the Windsor-Detroit tunnel has secretly offered support for an Ambassador Bridge proposal to create 200 inspection lanes in a joint bridge-tunnel customs plaza in Detroit…
Local lawyer Clifford Sutts has been retained by the city and fired off a letter to the DCTC on June 17 reminding the operator it is not authorized to represent the tunnel commission or city of Windsor without prior consultation and "having received their consent to do so
"The tunnel commission has expressed its position to the DCTC," Francis said. "The (joint operating agreement) is very specific."
- Tunnel firm eyes new lease: Longtime operator hopes to thwart bridge's takeover attempt
Byline: Dave Battagello 10-28-2005
Deputy Prime Minister Anne McLellan sent a letter to Mayor Eddie Francis to emphasize there are no plans to move Canada Customs officers to Detroit -- as called for in the bridge proposal.
There are also "serious concerns" about redundancy by creating one customs bridge-tunnel superplaza at North America's busiest border crossing, she said.
- Feds threaten to sue Detroit: Single control of bridge and tunnel raise concern in Ottawa
Byline: Dave Battagello 11-30-2005
The Canadian government has threatened Detroit with legal action if it approves the Ambassador bridge's bid to take over the U.S. side of the Windsor-Detroit tunnel...
The federal government's concerns were raised in a letter sent by the law firm Honigman, Miller, Schwartz and Cohn -- the Canadian government's legal counsel in the U.S. -- to the City of Detroit…
Mayor Eddie Francis said he has received assurances from Kilpatrick and Detroit council president Ken Cockrel that a decision will not be made until a meeting with Windsor city council.
"The (federal government) letter reaffirms support not only from our perspective, but also from a national perspective," Francis said.”
- Detroit rejects Moroun plan:
Dave Battagello 08-02-06
Windsor's city leaders also voiced strong opposition, requesting a rare joint meeting in February with Detroit's council on the tunnel issue.
"We had a number of discussions with Detroit and the mayor indicating the importance of the decisions with the bridge (company) to both jurisdictions," said Mayor Eddie Francis.
"It was their decision to make. We shared with them the information that we had. The border decisions made on one side affect the other side.
In a memo dated February 28, 2006 a Detroit Fiscal analyst made reference to 2 documents prepared by the Windsor Auditor about the Tunnel and one prepared by DCTC’s CEO. Where are they located?
With respect to the second issue, I have NOT asked for “day-to-day” operations matters relating to the Tunnel but records in relation to “financing” issues” and with respect to specific parties. The City is well aware of the issues that I am raising respecting the Tunnel as can be seen from the above news stories as an example. The City is being disingenuous when they “misstate” what I am seeking.
Item #7 relating to the “border file” is specific in what it asks for eg law firms and other firms, their reports, bills and accounts etc. It is preposterous to suggest that this request is so “massive” and “[covers] an extensive and broad range of records.” Again, the City is being disingenuous when they “misstate” what I am seeking.
What must be concluded as well is that the documentation for items #4, 5& 6 is not massive and should be produced immediately since no references were made to them specifically but they are all lumped in together in one general paragraph. That is not evidence of anything
It is also noteworthy that in ORDER MO-1839, Appeal MA-030140-1 where the request was wider than in this request, although the time period was shorter, the City had no trouble identifying and producing documents and did not raise the issues they are raising in this appeal. What has changed in the interim to now make it so hard for the City to produce documents?
SEARCH FOR RESPONSIVE RECORDS
If the City believes that sufficient information was given to me, then it is again misstating facts.
In effect, the City is stating that its filing system is inadequate when it cannot find easily records that are very specific in their nature. Again, look at the response respecting the Windsor Tunnel Commission in the October 11, letter. “I would comment that the Windsor Tunnel Commission records are duly represented by various departments namely Corporate Projects, Council Services Department and City Auditor.”
One can only conclude that the City is deliberately making it extremely difficult to produce those records for reasons unknown but which give rise to suspicion. The applicant should not be made to suffer for the City’s inadequacy in long delays or excessive costs.
In order to reduce costs and work involved by the City, I asked twice for specific information to be provided. (August 3, 2006 and August 14, 2006) SUCH INFORMATION WAS NEVER PROVIDED:
In order for me to determine what my next step should be, I would appreciate if you could provide to me the number of records in each of the seven parts of my request. All that you have given me are total numbers.
I would also appreciate when dealing with each area, if you would also breakdown the records by year.
As an example, and to be clear, what I am seeking for each of the seven areas is:
Area #1 Records re plans or proposals to operate…the Detroit- Windsor Tunnel…
Total number of records
Number of records broken down by year
Without this information, it is virtually impossible for me to make an informed decision.
It is of interest to note that the City again sets out that it did not look at the Windsor Tunnel Commission files even though many of the questions related to the Tunnel.
It is perfectly obvious that the “Records Retrieval Form” information is useless. We are NOT provided with the question asked of the searcher in the first place. Clearly, if the question was to find the “broad and massive” range of documents as the City thinks I asked for, then the answer of “10,000” may well be accurate. However, since it is clear that the City misread my request, no wonder the number of documents “found” is incorrect and excessively overstated.
With respect as well, I would also draw attention to the previous appeal where I alleged that the City was non-responsive by throwing in every document imaginable and I believe it comes from the same Department that provided the representative sample in this case
“The City’s response was originally to grant him access to several boxes of files that contained information that was not relevant or responsive to the request, as well as information that pertained to the subject matter requested…
At that time, access was granted to a large number of records; but the appellant maintains that many of the records provided were not relevant or responsive to the request. In the absence of any evidence to the contrary from the City, I find that it did not comply with the requirements of sections 17 and 19. The City failed to identify those records which were responsive from the Council and Customer Service record holdings that were made available to the appellant and instead simply left him responsible for doing so.
While it would appear that the City did conduct searches for responsive records, I am not satisfied that those searches were sufficiently comprehensive.”
I am disappointed that the Solicitor for the City did not include the two letters where I attempted to narrow the scope of my request and obtain information so I could make an informed decision about records. I stated above what I asked for and what the City refused to provide.
The failure of the Solictor to provide the letters and to acknowledge my requests is a shocking affirmation of the City’s actions which I consider to be an attempt to prevent me from seeing records to which I am entitled.
It is self-evident from the “Records Retrieval Form” that the City’s record keeping is a shambles if it takes 270 hours to find the limited documents I have requested. That should be the City’s costs, not the Applicant’s.
If one does the math of the “representative sample of responsive records,” 51 documents found in 4.5 hours of searching should total 3060 in 270 hours yet the City alleges that there are 10,000 or more.
Are the other estimates as to number of records as inadequate?
I have produced evidence (see above) as to how I would suffer financial hardship and the City has not only not acknowledged what I stated again, but more importantly, has produced no evidence denying the truth of what I said.
I have already commented in a separate document re the fee waiver (October 19, 2006) but let me state the following:
It is absolutely wrong to say that the request was “massive. Rather it was limited as outlined above
I asked a specific question to narrow the scope, twice, and was ignored
It is impossible to say that the City worked with me when I was ignored
If what I have stated is accepted, then it is ridiculous to assume that 10 months are required. I am prepared to work with the City even now to reduce the scope provided that the City will work in good faith with me.
Obviously the amount of time will drop considerably since the records request is limited.
However, given the shabby condition of the City’s file system, the applicant should not be prejudiced by having to wait 10 months even if that is the period estimated. The City should be required at its expense to provide the manpower to provide the records within a reasonable time period, say 30 days.
Such an Order would force the City to maintain a proper filing system for other requests.
The City’s solicitor has chosen to make “character” of the Applicant an issue. I am not sure what the relevance of that is in an information request under the Act. Even if I am the most miserable person around, what has that got to do with what the Act requires. This is merely designed to prejudice the Ajudicator against the Applicant!
In passing, it is interesting to note that what I predicted based on the last MFOIA application and what took place before I wrote my BLOG, that my prediction was quite accurate as to the City’s actions. Being correct cannot be described as exhibiting “animosity!” I did say that I hoped to be proven wrong in my prediction. Obviously I was proven right.
However, if that is the Solicitor’s choice then one needs only to look at what the facts are including the actions of the City in this and other MFOIA applications and the reputation of the City with respect to freedom of information in general and being secretive rather than being open and transparent:
I have already in several places in this note expressed my opinion of what the City is doing to prevent me from obtaining records in and a timely and affordable fashion.
I draw your attention to ORDER MO-1839, Appeal MA-030140-1 including what was said there about the City as quoted above.
In ORDER MO-2117, Appeal MA-060055-1, on page 4, it is stated:
- “[The City submits the following:}
It can be inferred that the price for the service was negotiated in confidence because the [affected party] requires the information be kept confidential in order to maintain a competitive position relative to other potential tenants in the facility.
The affected party made no representations as to whether the terms of the lease were “supplied” to the City. With regard to whether the terms of the lease were supplied “in confidence”, the affected party stated that:
…the commercial agreement was negotiated in confidence at the request of the City. The City has not to this day consented to the disclosure of any parking related information.
The City asked for an “inference” to be drawn rather than admitting the truth. The adjudicator had to point out that what the City was saying was patently incorrect.
The Windsor Star reported on this matter in the following terms:
- Windsor Star 11-18-2006
Privacy czar opens secret garage deal:
Details of city's subsidy of Canderel parking under wraps
Ontario's privacy commissioner has ordered the City of Windsor to release a secret agreement with the Canderel building owners for spots in the municipal parking garage attached to the tower.
The Windsor Star sought the information to determine if the city was offering taxpayer-subsidized rates for patrons of one of the building's tenants
Ten months ago, The Star requested a copy of the city's agreement for parking spots that would be used for customers of the Keg restaurant.
The garage, which sits at the corner of Riverside Drive and Ferry Street, is owned by the city and, while it was a money-losing operation three years ago, it now breaks even, according to Mike Palanacki, who oversees the city's parking operations.
Mayor Eddie Francis said the city will comply with the privacy commissioner's order. "From our perspective, it's always easier to release information so we don't have to deal with rumour and speculation."
Francis said the city refused to disclose the agreement because it did not have the permission of the building owner Windsor Asset Management Ltd., a subsidiary of Commerz Immobilien GBH, a German investment bank
The agreement is for an undisclosed number of parking spots in the municipal garage that are to be used by Keg restaurant patrons, but it was signed with the building's owner.
"We were asked to keep it confidential," Francis said Friday.
But a passage found on page 4 of the ruling by assistant commissioner Brian Beamish suggests it was the city that wanted the deal to be kept confidential.
"With regard to whether the terms of the lease were supplied 'in confidence,' the affected party (the building's owner) stated that: '...the commercial agreement was negotiated in confidence at the request of the city. The city has not to this day consented to the disclosure of any parking-related information…"
Chris Schnurr, who lost his bid for a council seat in Monday's election, said he has filed two FOI requests -- for the agreement between the Windsor Spitfires and the city, as well as the agreement between the tenants subleasing city space in the Canderel building.
The city has refused to release those agreements, too, based on the same arguments used to withhold the parking agreement.
The city had been arguing that disclosure of the agreement would have revealed third-party commercial information supplied in confidence. It also argued the disclosure would have prejudiced the competitive position of the building owner.
But the privacy commissioner's Beamish said none of that applied because the agreement was a negotiated one and not one that was reached through information that was supplied.”
Chris Schurr is also a BLOGGER in Windsor. Here is his experience of dealing with the City respecting excessive costs to be charged for providing him with the same information that the City had already found for the other MFOIA request:
- Freedom of Information Request - Spitfires appeal
Wednesday, February 14th, 2007
Well, as you know, I was granted access to the Canderel leases, and the Keg Parking arrangement…
Now, I have been communicating back and forth with regards to the cost of accessing this information. In their initial access letter, the City of Windsor stated the cost would be $261.98. They finally agreed to lower this to $154.98, as I have requested to view the records in person and copy (at 20 cents per page) only what I deem relevant.
In my letter to the City, I requested a fee waiver and stated that the “costs as presented were invalid.” I questioned the search time required as the Windsor Star requested the same information regarding the The Keg parking arrangement, as well as the leases in the Canderel building. So why the charge for 5 hours of search time, when the search conducted was in response to TWO similar requests? I figure, the search time should be only 2.5 hours. The City, unfortunately, did not acknowledge the two times I brought it to their attention.
But here’s the thing. According to the Windsor Star (January 6, 2007, A1), “The City of Windsor will make public 466 pages of agreements reached with the companies subleasing city space in the DaimlyerChrysler headquarters building at rates below market value.”
According to the city’s letter to me, they stated the search time was high because I did not specify a year in my request. So why then was I granted access to only 390 pages of agreements versus the Star’s 466 pages? I have been given access to fewer pages? There goes the “didn’t specify a year” argument.
According to the city, my request was “time consuming given the scope of your request since you did not specify a year and you had asked for “all leases, and subleases, and other agreements."
Well, if this is the case, why was I granted access to fewer pages? I would expect that given that my request was so daunting, I would have access to more pages than the Star. The Star’s story clearly confirms that the City granted them access to more documents, so how was my request “time consuming” when they had already searched for the records in question in response to the Star’s request?
The City wouldn’t possibly be witholding information - if not, why is the Star being granted access to more pages of lease agreements then me, when I asked for all of them?
Something is clearly amiss. Oh well, it appears I will have to spend another weekend filling out my appeal to the Privacy Commissioner of Ontario - again!
Here are some additional Windsor Star stories and editorials relating to the City’s “character:”
- City council: What constitutes a 'meeting'
Windsor Star 12-16-2006 Section: Editorial/Opinion
It's crystal clear transparency isn't a strategic priority for Windsor Mayor Eddie Francis and the newly constituted council. Neither, it seems, is honouring campaign promises to conduct the public's business in public.
It's a shame. The month between November's election and Thursday's secret meeting was full of so much hope. Now it's back to business as usual for city leaders who appear to embrace open government only grudgingly and only as a last resort.
The public was barred from a council meeting Thursday by John Skorobohacz, the city's chief administrative officer, who told reporters he was concerned councillors might not be able to speak freely if taxpayers could hear what they had to say. Francis spoke privately with Skorobohacz and then told reporters they would have to leave
"Apparently I have no authority," said Francis.
Whether Francis was deferring to the advice of his top administrator or using him for political cover is for you to decide, but the decision to hold the closed door session appears to violate the spirit, if not the letter, of Ontario's Municipal Act, which stipulates all meetings should be open except in limited and specific circumstances."
- Open the closed doors;
Don McArthur Windsor Star 12-04-2006 Column
The pledge by Windsor Mayor Eddie Francis to stop using confidentiality clauses when the city inks deals with the private sector is a welcome step, but he should go further to ensure taxpayers aren't being unnecessarily kept in the dark.
Francis should embrace the concept of non-confidentiality clauses -- a paragraph clearly articulating the importance and necessity of open and transparent government that can be inserted into every contract the city signs with the private sector…
The section in the legislation dealing with third party agreements, like the deals with the Windsor Spitfires and the tenants in the Canderel building, lists very specific reasons why municipalities can withhold information from taxpayers.
Confidentiality is only one of them, meaning it alone is insufficient to deny access unless other conditions are met. Businesses promised confidentiality might learn that lesson the hard way.
The crucial condition is what is known as the "harms" test. In order to deny taxpayers access to reports and contracts, the city or the third party must provide "detailed and convincing" evidence the disclosure could "significantly" harm their competitive or economic interests. This test is wrongly used by municipalities across Ontario as a broadsword to deny the public access to whole documents when it should more rightly be used as a scalpel, exempting only very limited and specific details.
"When government organizations use individuals or companies in the private sector to help develop, produce or provide government programs or services, the public should not lose its right to access this information," wrote Ontario Privacy Commissioner Ann Cavoukian in her 2005 report…
The only question is whether the city releases the information voluntarily or is forced by Ontario's privacy commissioner
The city should proceed carefully before denying access to these and other deals and only refuse public access if there is clear and compelling evidence of potential economic harm.
It has already lost one appeal and been ordered to release information by the privacy commissioner. If it loses any more, city leaders will lose their credibility and taxpayers their faith and patience.”
- Parking deal: Ruling favours openness;
Windsor Star 11-21-2006, Editorial/Opinion
The city of Windsor has been ordered by Ontario's privacy commissioner to release one secret deal and it should voluntarily release at least two others to spare the commissioner's office unnecessary work and provide taxpayers the open government they deserve
The city has refused to release the agreement it reached with the owners of the downtown Canderel building for spots in the attached parking garage, which is owned by the city and, by extension, you and every other taxpayer in Windsor. The parking spots in question are for patrons of the Keg.
There has been much speculation the city agreed to heavily subsidize the cost of those spots to lure the restaurant downtown. The fact Mayor Eddie Francis staged a press conference to announce the Keg's downtown expansion added fuel to the speculative fires.
Attempts by ordinary citizens and The Windsor Star to secure copies of the agreement to determine whether and what amount of tax dollars were in play were rebuffed by the city, which hid behind provisions in Ontario's Freedom of Information and Protection of Privacy Act.
The city maintained the disclosure of the agreement would reveal confidential third-party information and would have prejudiced the competitive position of the building owner. Hogwash, concluded assistant privacy commissioner Brian Beamish, who on Friday ordered the city to release the agreement.
Francis said the city would oblige and added "it's always easier to release information so we don't have to deal with rumour and speculation." It's a curious statement to make given the number of deals the city has laboured to keep secret, but we couldn't agree more.
We would urge Francis to immediately release copies of the long- term deal the city inked with the Windsor Spitfires as well as city- subsidized lease agreements with tenants occupying city space in the Canderel building. The arguments the city has been using to keep those deals hidden are the same ones it used to keep the parking deal under wraps.
The privacy commissioner's office deemed the city's arguments so weak in the case of the parking spots that it didn't even ask The Star to rebut them during the review process. The city's arguments aren't likely to hold any more water in the other two cases so it should voluntarily open the spigot and let the information flow as it should to taxpayers.
The city can withhold and, in fact, is obligated to withhold any information supplied in confidence that would be harmful to the Spitfires or the Canderel tenants, but the law requires a reasonable and narrow test be applied. Those third parties, of course, can consent to the release of the information. But it is not the balance sheets of these third parties that taxpayers are entitled to review but the financial details of the deals as they relate to the public purse.
What the city should release, and what it will likely be ordered to release should matters once again go to the privacy commissioner's office, is an accounting of money or benefits, including waived fees, being paid by or to the city and a list of any inducements provided by taxpayers. It's our money after all. We just let the city manage it.
The deals the city inked might be good for taxpayers, they might be bad or they might be neutral. The city obviously believed in them and can hopefully defend them on their merits. But the only people who can make the final determination are city taxpayers and, to do it, they need to look at the deals and the numbers in them.
- Spits' deal: Details should be public
Editorial/Opinion, Windsor Star. Windsor, Ont.: Nov 24, 2006.
There are several disturbing aspects regarding the city's secret deal with the Windsor Spitfires, including the memory lapse of Mayor Eddie Francis.
Francis, who waxes often about the importance of open government, said this week he couldn't recall whether a confidentiality clause formed part of the 20-year-deal. That's an extraordinary admission for Francis to make given the expectations surrounding an agreement that was signed just weeks ago and announced with considerable fanfare.
It is also unacceptable. Agreeing to a clause that denies the public an opportunity to scrutinize a deal involving public money is not a niggling detail. It is a crucial and controversial aspect of the deal. Thankfully, a few councillors have filled in the gap in the mayor's memory to explain a disconcerting process that has left taxpayers in the dark.
Councillors Fulvio Valentinis and Ron Jones and recently retired Coun. Joyce Zuk confirmed a confidentiality clause is part of the deal that will see the Spits play in an arena to be built for a base price of $48 million. Valentinis said the clause was inserted for "competitive reasons" at the Spits' request but was unable to say who, exactly, the OHL club was competing with.
The clause is designed to prevent taxpayers from learning how much the hockey club pays for its lease and how much it will collect from concession and alcohol sales, advertising and private boxes. The clause also keeps hidden whether any ticket surcharges will be shared with the city like they have been in the past. Such details are clearly in the public's purview considering city taxpayers are footing the bill for the arena.
Those details were always made public in the past. Valentinis said the Spits asked for the confidentiality clause but he is getting that information second-hand from administrators. Taxpayers have no way of knowing how vociferously city negotiators objected to the suggestion or if they objected at all. Was the clause a potential deal breaker or did city negotiators view it as routine? Have they been instructed to negotiate similar clauses on other deals?
Sarnia Mayor Mike Bradley said his city's agreement with the Sarnia Sting is so good it's "available to anybody who wants it" and he wouldn't have it any other way. Bradley said he is often asked to sign confidentiality agreements but simply refuses.
"Just because someone asks for confidentiality doesn't mean they get it," said Bradley. "I'm not signing a gag order to participate in a discussion about the community."
The fact Sarnia's deal with the Sting is public is good for Sarnia taxpayers but it is troubling for their Windsor counterparts because Windsor councillors were told by administrators that all OHL arena deals were confidential. One phone call proved that false.
Even more troubling is the fact councillors themselves haven't seen copies of the deal. Council endorsed it based on a report produced by administrators that was taken away from them following in-camera discussions. This lack of oversight is appalling, especially considering the deal was negotiated hastily before an election. If the MFP financing fiasco taught us anything, it's that elected officials must carefully scrutinize all deals before signing them.
Council should immediately release the agreement so taxpayers know how their money is being spent and they should enact a policy forbidding the use of confidentiality clauses in the future. A mechanism already exists to determine what information should and shouldn't be public. It's called the Freedom of Information and Protection of Privacy Act.
Francis and city councillors should commit it to memory. To make sure they don't forget it, they should post it on their fridge.”
Such a representative selection of stories and editorials is stinging indictment of the City of Windsor’s desire to maintain secrecy at any cost. It helps explain why the City has acted how it did in respect of my request for records and why the Solicitor acted as he did.
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 and that the City provide the adequate manpower required such that everything is completed within 30 days of the date of the order
- 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 undertake to work with the City to reduce the amount of work and effort required
I also hereby request that the fee be waived in whole or part or that the amount of the fee be reduced significantly.