Hiding the smoking gun (part 1)

By David Broadland, March 2013

Information obtained through three FOIs raises serious questions about how the City of Victoria's FOI office is being run. That office's attempt to block Focus' access to City of Victoria records last fall was misrepresented to City councillors, and the City prepared no evidence for the hearing called by BC's Information and Privacy Commissioner.

It’s a Sunday morning, around 10 o’clock. I’m sitting at a table, scissors in hand. CBC’s The Sunday Edition is on the radio. There’s a small pile of papers in front of me, the results of an FOI request to the City of Victoria. They contain information that is out of chronological order, and I’m trying to sort out who did what and when they did it. Hence the scissors. I’m cutting out individual emails and arranging them on the table so I can follow conversations among City officials about why they applied to BC Information and Privacy Commissioner Elizabeth Denham for a Section 43 authorization to ignore FOI requests from Focus.

On the radio Michael Enright is interviewing Canada’s Information Commissioner Suzanne Legault. She’s telling him, “The reason we have access to information laws is so that citizens can hold their government accountable and they can meaningfully participate in democracy by having information about the policies and the programs that governments put forward.”

Snnnnip.

I’m dividing the individual emails and other documents into two separate themes: One group is related to the question of whether City officials fully informed the mayor and councillors about what they were doing; the issue of withholding vital information from citizens’ elected representatives arises again and again at Victoria City Hall. Was it at play in this story?

The other group of emails shows the extent to which City officials were having difficulty responding to FOI requests just before the Section 43 application. The official justification for the application was that a small group of people, which included me, had overused the City’s FOI resources. Was this true?

Snnnnnip.

Back on the radio, Enright says to Legault: “Information equals power, and governments don’t want to share that power, do they?” Legault responds, “Information is power, but access delayed is access denied. When information about sensitive files is not disclosed in a timely fashion, it prevents Canadians from holding their governments to account in the way they respond to crises, in the way they spend money in responding to crises.”

While I snip, Enright and Legault talk about all the ways in which the federal government avoids meeting its legal obligations to provide access to its records: long delays, excessive fees, redactions based on unproven exemptions, claims that no records exist—all of which I have experienced at the hands of City Hall.

Legault tells Enright that Canada has lately been ranked number 55 of 93 countries in terms of its performance on access to information. “Canadians should be angry,” she tells him. “The law is there. It’s really a fundamental democratic right that we have. In other countries, access to information is considered a fundamental human right linked to freedom of expression. I think Canadians should not be complacent about the fact that our government is not putting [in] enough resources and it’s not managing the access to information systems such that it delivers on its obligations to Canadians.”

Snnnnnnnip.

After separating the emails into the themes I want to examine, I arrange them in chronological order. This is the slow, tedious work that can’t be avoided if our individual right to access government records is actually going to materialize into the lofty goal set out by access laws. Or, as Legault put it: “so that citizens can hold their government accountable...”

GOVERNMENTS CAN ROB CITIZENS of their ability to meaningfully participate in democracy in more than one way. It happens, for instance, when politicians neglect to tell us something important during an election and then later surprise us with some bad news. Gordon Campbell’s Liberal government did that in the 2009 provincial election with the HST. Before the election the Liberals secretly discussed implementing it. After the election they brought it in.

This story is about City of Victoria bureaucrats who similarly robbed citizens of their ability to meaningfully participate in democracy. They did this at three levels.

First, they withheld information—“the smoking gun”—about the true cost of replacing the Johnson Street Bridge before the 2011 civic election. They knew as early as June 2011 that the true cost of the project would be much higher than estimated, and they kept that information to themselves until after the election. In doing so they prevented citizens from participating meaningfully in democracy.

Secondly, when media tried to access the records that would allow that issue to be fully explored, the same bureaucrats invoked a section of a law that was created to ensure accountability to instead prevent accountability. They once again robbed citizens of their ability to participate meaningfully in democracy.

Thirdly, the bureaucrats misinformed elected representatives about what they were doing, again robbing citizens of their ability to meaningfully participate in democracy.

Let’s start with the bureaucrats misinforming councillors about their Section 43 application and then circle back to the smoking gun.

ON AUGUST 7, 2012, City of Victoria Corporate Administrator Robert Woodland sent out two communications related to the topic at hand. First he sent a letter to BC Information and Privacy Commissioner Elizabeth Denham. That was followed by a memo to the mayor and City councillors. He copied City Solicitor Tom Zworski on both.

In the memo to councillors, Woodland noted, “I have limited resources available to respond to these applicants’ record requests and still provide service to other record applicants.” He went on to tell them, “I am asking the Commissioner to limit the number of requests from the applicants to one request at a time.” To the mayor and councillors that no doubt sounded perfectly reasonable.

But in his three-page letter to Denham, Woodland requested authorization under Section 43 of the Freedom of Information and Protection of Privacy Act “to disregard requests from David Broadland, Leslie Campbell, Ross Crockford and any persons acting on their behalf (collectively the ‘Applicants’).” Woodland detailed for Denham exactly what he was asking for: “[T]he City seeks an order authorizing it to disregard requests from the Applicants or any of them received while an earlier request from any of the Applicants remains active or an appeal in relation to any such request is pending. With respect to existing requests, the City seeks authority to process them one at the time, beginning with the oldest outstanding request, and disregard the remaining requests until that request and any appeal related to it are concluded.”

This goes far beyond what he suggested in his memo to council. He didn’t mention that I had just filed an appeal with OIPC asking them to order the City to produce a record that I had requested 16 months earlier. As well, Ross Crockford had earlier filed an appeal because the City had assessed a very high fee for records he sought on behalf of johnsonstreetbridge.org.

By including the length of time an appeal could take in his proposal to Denham, if it had been accepted, first Crockford’s appeal would work its way through OIPC, and, once that had been settled—and it’s usually a five to six month wait before an appeal file is opened by OIPC—then my appeal would begin its journey, likely another five to six month wait. Then the oldest outstanding request that either Crockford or I had made would begin its journey through the City’s FOI office, followed by any appeal process, and so forth. Woodland’s proposal would have effectively killed both Crockford’s and my individual right to timely access of City records. This is an important point. As Suzanne Legault put it, “access delayed is access denied.”

By not providing this information to councillors, Woodland disarmed them of their ability to make an accurate judgment about his action. The record of what happened after the City wrote to Denham makes this clear.

On learning of the Section 43 application, I immediately wrote a letter to the mayor and councillors asking them to intervene. My letter, it turns out (learned via FOI), prompted an email discussion among councillors Madoff, Helps, Mayor Dean Fortin and City Manager Gail Stephens. At one point in the conversation Helps wrote to Fortin and Stephens: “I worry that if we follow through with this, Focus will make a giant national brouhaha about how closed the City of Victoria is. Is there a way to stand down and process FOI requests from Focus just as we would from anyone else?” Stephens responded to Helps: “Will send a more detailed response tomorrow. But in the short term, we are not denying Focus FOI requests, but asking that they limit those requests to one at a time...” Again, on the surface, a not unreasonable limit—and Helps’ follow-up email a couple of days later reflects this: “Has it been made clear to them that the City is not denying their FOI requests, but rather asking that these requests be made one at a time?”

Helps, who from the record seems to have been the councillor most actively seeking a resolution that respected media’s right to access information, writes to Fortin and Stephens a few days later summing up the situation: “There is much public outcry, there has never been a Section 43 request filed against a media outlet in the history of the Act, and I think it does more harm to the City’s reputation than the good that will come of it. Not to mention the expense of the adjudication [hearing] process. Dean [Fortin] said to me yesterday during our monthly meeting that he thinks Mr Woodland maybe made a mistake on this one.”

I recently asked councillor Helps what she thought Woodland had meant in that memo by “one request at a time.” Her response indicated she assumed “that unless there were extenuating circumstances...that the City could conform to the requirements of the Act.” That would imply requests were responded to in the 30 working days stipulated by the Act.

That’s a long, long way off from what Woodland had proposed to Commissioner Denham—something that could have resulted in FOIs taking years to fulfill.

By not providing councillors with full disclosure about the true impact of his action on the media’s right to participate, he took away councillors ability to meaningfully participate in democracy. Woodland did not reply to questions submitted to him by email for this article.

But what about the claim of overuse in Woodland’s Section 43 application? Was it valid? He told Commissioner Denham, “The Applicants’ requests, due to their repetitious and systemic [sic] nature, have placed an unreasonable burden on the City’s limited access and privacy resources and on the operation of the JSB Project.”

There are two ways to judge the validity of Woodland’s claim that Focus and Crockford were overeating at the City’s information table. First, you could look at what the City did once OIPC called a hearing to allow Woodland and Zworski to present documentary evidence of our over-indulgence. The City withdrew its Section 43 application the day before it was required to submit proof to the OIPC hearing. And a subsequent FOI seeking the written submission Zworski prepared to support Woodland’s application showed he had prepared no submission and assembled no evidence. Sheryl Masters, the City’s FOI coordinator, told Focus, “It is my understanding that no submission was prepared and that there is no draft submission nor affidavits or draft affidavits in support of any submission.”

I asked Zworski by email why he hadn’t prepared a submission to support Woodland’s Section 43 application. He responded, “I am not at liberty to discuss the nature or content of legal advice that I may or may not have provided to either City council or City staff and, therefore, will not be responding to your questions.”

The other basis on which to judge the validity of Woodland’s claim of overuse is the City’s record of that overuse, which I sought by FOI.

Based on the record provided, either the City is not good at keeping records, or it was vastly overstating its case. In the seven months leading up to Woodland’s letter to Denham, the only time the City’s FOI office created a record showing how many bridge-project-related FOIs were active was on May 18, 2012. That record shows that with less than three months to go before Woodland wrote to Denham, Focus had two active (highlighted by Focus in yellow in that record) bridge-related requests. Ouch. Two.

Crockford had made a single request on May 3, 2012 that the City then broke into five parts and said were five requests (highlighted by Focus in blue in that record). Records Crockford has shown Focus indicate he then engaged in a lengthy process of negotiation with the City over the assessed fee, and that included filing an appeal to OIPC, which I mentioned earlier. The important thing to know about Crockford’s requests is that at the time Woodland wrote Denham, the City had not been required to do any more than a preliminary assessment of what his requests involved.

Woodland’s Section 43 application simply seems unsupportable. It’s one thing to assert that something is true, another altogether to prove it. The City has provided no proof.

So what was the City’s Section 43 maneuver about?

Both Crockford and I had been separately seeking what we were calling “the smoking gun.” This was a record that a whistle-blower inside City Hall had suggested we should try to locate. It would show City Manager Gail Stephens knew the cost of the bridge project was going to be millions of dollars over budget when she told councillors, media and the public in October 2011, just before a civic election, that the project “continues to be within the budget of $77 million.” Documents dated shortly after the election show the estimated cost had climbed to over $90 million. By March 2012 the cost had risen to $93 million, and that was for a bridge that had been significantly reduced in size and quality.

In July 2012, I wrote Woodland and told him I was looking for records that could show whether City engineers, the City manager or the mayor knew the cost of the bridge was higher than the council-approved $77 million budget before the civic election. Shortly thereafter, both Crockford and I were Section 43ed. By doing so, Woodland took away our timely access to that record, preventing us, as Suzanne Legault might put it, from participating meaningfully in democracy.

But that only lasted as long as it took Woodland and Zworski to no-show at the OIPC hearing last fall. Since then, both Crockford and I have continued to file FOIs and participate in democracy. And, just as this edition of Focus was going to press, the City finally coughed up a response to the FOI he had filed in May 2012. As expected, it contained the “smoking gun,” or, more accurately, several smoking guns. These included a memo written by acting Assistant Director of Finance Troy Restell in August 2011. His memo pointed out many costs that had already been incurred, and many other costs that were completely predictable and should have been included in the $77 million cost estimate but weren’t, that would push the project budget millons of dollars higher. Senior City managers—and the mayor—knew of Restell’s memo but kept it to themselves, thereby preventing citizens from participating meaningfully in democracy during the 2011 civic election.

Watch here next month for part two of this story: The smoking gun and accountability.

David Broadland is the publisher of Focus.