HALIFAX—Nova Scotia’s privacy commissioner is recommending Halifax release the full details of an eight-year-old employment offer to its former top bureaucrat and highest-paid employee.

In November 2015, an unnamed member of the media made an application under Freedom-of-Information legislation for former chief administrative officer Richard Butts’ employment contract. The applicant was told the terms of Butts’ employment were recorded in a letter of offer, and so the applicant sought that document.

The municipality initially withheld the letter of offer and eventually released a redacted version in March 2019.

“We have made efforts, informally, to try to satisfy the applicant, and we have actually provided a redacted copy of the letter of offer where we have felt there was information we still feel is personal information or could harm potential negotiations in the future,” municipal spokesperson Brendan Elliott said in an interview.

“It shows, from our perspective, that we are trying to meet that balance between respecting the privacy of our employees and former employees, while at the same time recognizing there is a serious need to be transparent to the public.”

A redacted copy of the letter of offer sent from Halifax Regional Municipality to former CAO Richard Butts View document on Scribd

In a report dated June 6, Nova Scotia Information and Privacy Commissioner Catherine Tully found that Halifax Regional Municipality (HRM) did not correctly apply two sections of the provincial Municipal Government Act in redacting the letter. Tully recommended that HRM release the letter in full.

As many other government departments and public bodies have done, the municipality can choose to ignore Tully’s recommendation. The outgoing privacy commissioner recently told Star Halifax that her office’s “recommendation power turns out to be just a suggestion” and she’d like the provincial government to grant the privacy commissioner the power to order public bodies like HRM to release information.

The letter of offer, signed by former mayor Peter Kelly and dated March 1, 2011, offered Butts the job of chief administrative officer (CAO), the municipality’s top unelected job, starting March 28, 2011. His starting salary was $285,000.

Butts accepted the offer and worked as CAO till January 2016, when he left to go work for a local development company.

Aside from Butts’ and Kelly’s signatures and Butts’ address, nine phrases or full paragraphs are redacted from the letter of offer, which Elliott sent to Star Halifax on Tuesday.

One says, “After the first year of employment and every year thereafter, based on a yearly satisfactory performance review by the Mayor and Administrative Standing Committee and approved by Council” — and then is redacted.

Another says, “You will be entitled to (redacted) paid vacation per year, commencing upon your hire.”

Butts’ severance package is also redacted, along with the conditions under which his employment could be terminated.

HRM used two sections of the Municipal Government Act — s. 480, covering third-party personal information, and s. 477, covering harm to the municipality’s economic interests — to justify the redactions.

Using legal tests for each section, Tully found that neither applied and recommended that HRM “release the withheld information in full.”

Regarding the redactions justified by third-party personal information, Tully wrote that “the law is clear that the balance to be struck between privacy and transparency where the information relates to remuneration is on the side of transparency.”

But most of HRM’s redactions revolve around negotiations and benefits afforded to Butts in the letter of offer — one of which was “an exceptional benefit not provided to the majority of employees,” according to HRM.

Tully found that the release of the information would not harm HRM’s economic interests.

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“HRM has not provided evidence that its negotiating position in relation to a case-by-case negotiation process would be weakened by disclosure of the information,” Tully wrote.

“The fact that HRM may previously have paid a similar type of benefit or expense is not, of course, binding on HRM, and without any evidence to prove otherwise, would not prejudice HRM’s ability to simply say no to the next candidate.”

Tully also noted that some of the information redacted from the letter is available elsewhere.

For instance, when Butts was hired in 2011, the Coast newspaper reported his salary would increase to $300,000 after one year and that he’d receive 18 months salary if he was fired without cause, attributing those comments to former mayor Kelly. That information is redacted from the letter.

Butts went on to become Halifax’s highest-paid employee.

The former CAO made $346,336 in total compensation in fiscal 2015-2016 after leaving the municipality in January 2016, according to that year’s Sunshine List.

Current CAO Jacques Dube makes much less, which Mayor Mike Savage called “a good deal for taxpayers,” when he was hired to replace Butts in 2016. He was paid a total of $273,852 in fiscal 2017-2018.

Elliott, the municipal spokesperson, said HRM is reviewing Tully’s report and recommendation and has 30 days to decide how to respond. It can choose to write to Tully and agree or disagree with her recommendation or it can choose to not respond.

“If we don’t write back to her at all, then there’s a presumption that we are not going to release the letter of offer,” Elliott said.

Asked whether the report would change HRM’s disclosure policies in the future, Elliott said it’s too soon to say.

“We’re going to look at this decision closely and determine if there’s anything that we need to adjust in relation to the way we interpret the rules,” he said.

Tully is approaching the end of her mandate after a five-year term. She’s repeatedly asked Stephen McNeil’s Liberals to overhaul legislation concerning access to information and privacy protection and is urging the public to demand that government update privacy laws to improve transparency and catch up with technology.

In her final report, released June 5, Tully again highlighted her concern that “with each passing day, Nova Scotia falls farther behind other provinces and democracies.”

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