A Municipal Challenge to Democracy?

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Freedom of information?
Collingwood has joined other local municipalities asking the province to revamp its Municipal Freedom of Information and Protection of Privacy Act (MFIPPA; a guide from the Information and Privacy Commissioner to the Act is also available here) to make the process more restrictive and less open. While some of those changes might seem appropriate to outsiders, I see buried in the wording of the request some dark challenges to our democracy.

The story in Collingwood Today is titled, “Freedom of information rules ‘archaic’ and in need of modernization, says Collingwood clerk.” Democracies depend on some core attributes: openness, accountability, transparency, and privacy. The motion suggests neither the bureaucracy nor our elected officials respect those attributes and want to restrict or remove them from Freedom of Information (FOI) requests.

It’s bad enough that the majority of our council — including our current mayor — were at the table last term and eagerly participated in the most secretive, deceptive municipal government this town has ever seen. They betrayed the public trust by holding many, many closed-door meetings in which they decided without public consultation to sell our publicly-owned electricity utility to an Alberta for-profit corporation*; they decided without public consultation to sell our publicly-owned airport at less than the assessed value to a private individual; they heard a sole-sourced lawyer advise them behind closed doors to hold a judicial inquiry; they decided behind those closed doors to call for an inquiry without public consultation, then they appointed that same same-sourced lawyer to represent the town without due process of the procurement bylaw, and they planned and schemed to erect roadblocks against the hospital’s much-needed redevelopment. All while hiding themselves from public scrutiny.

Most of the same group that betrayed the public trust last term is back at the table this term. Little wonder they don’t want FOI requests to expose them. And at least one of the newcomers wants to implement a form of censorship on public comments. 

Do you notice a trend here? Do you see those campaign-trail promises of openness, accountability, and transparency being broken before your eyes by a group of callous, self-interested politicians? Democracy under siege?

You can read the whole motion from Clearview Township council to the Minister of Government and Consumer Services here. It bristles with righteous indignation on behalf of local governments, but says nothing at all about serving the public’s need to be fully informed, to be able to access records and information that are not made public, nothing to enhance the openness of town hall that taxpayers expect. It says nothing about holding bureaucrats and elected representatives accountable for their deeds. Why, it flies in the very face of the recommendations from Saunderson’s beloved judicial inquiry (which, of course, he has already flouted as not pertaining to his own behaviour).

The key points in the motion are:

  • Local municipalities want to charge residents much more for retrieving documents requested under the Act. This will only further deter residents from trying to get information about the activities, expenses, and behind-the-scenes discussions at town hall. The motion says “financial shortfalls” between what is charged and the actual costs “are borne by the municipal taxpayer.” Well, duh, of course they are: that is in part what we pay taxes for: to hold bureaucrats and politicians accountable. It’s not like people are demanding the town spend $8 or 9 million of our taxpayers’ money on a frivolous request, as our mayor spent on his wasteful, vindictive judicial inquiry.
  • The bureaucrats and politicians are annoyed by these requests and consider many to be “frivolous and/or vexatious.” They want to be able to limit the public’s access to records by making them seem irrelevant. Important records that might embarrass the municipality or its administration might never become public if the request is deemed frivolous by a bureaucrat. The criteria for what is “frivolous and/or vexatious” is not laid out; it seems that determination will be left to the local clerk.
  • These municipalities want to strip the right to privacy from the requesters and make their names public. They say the “anonymity is used by requesters to abuse the MFIPPA process and does not align with the spirit of openness and transparency embraced by municipalities.” Making the names of requesters public can also deter requests because of the threat of being shamed for making it. The IPC’s guide says governments MUST “design and implement records systems which adequately protect personal privacy.” Apparently, our local municipalities want nothing of that for outsiders, just for themselves.
  • Town’s clerks get to decide whose name gets publicized, whose request is considered “frivolous and/or vexatious” and what gets charged for requests. This puts a bureaucrat (with what training for this additional role?) who has no accountability to the electorate in charge of making very political decisions about the electorate’s interests. I suggest that anyone in that position would consider their own career and reputation, and their relationship with other staff, as well as with the elected officials in a very personal, and non-objective manner when assessing requests. I see this as Stalinist: too much power invested in a single, unelected person. 

In the CT story, the blatant hypocrisy of our councillors over this motion is encapsulated in the comments from Councillor Berman, whose incessant FOI requests in the 2010-14 term were a source of much comment from staff about the work and annoyance they created:

During a council meeting on Jan. 25, Councillor Steve Berman said he often used the act to make requests before he was a councillor at a cost he paid from his own pocket.
“I firmly believe the public should have access,” said Berman. “I don’t think it should be a burden on the taxpayers.”

And now the cabal at the table wants to deter or even prevent others from filing such requests against them. They clearly don’t want to be embarrassed by the exposure of their records, their emails, and their expenses the way Berman and others did to the 2010-14 council. And yet Berman was one of those who benefitted greatly from the previous, reasonable cost system for fulfilling requests: now he and the rest want to make it prohibitive and difficult. He’s just another do-as-I-say-not-as-I-do political opportunist. **

My former respect for the professionalism and objectivity of bureaucrats and administrative staff took a significant dive during the Saunderson Vindictive Judicial Inquiry. During that time I heard or read a mix of self-serving, cover-my-ass, blame-others, and even accusatory testimony from several people on the stand. Clearly, self-interest and self-preservation made for very selective memories, and sometimes mendacious testimony. I now have serious doubts about the wisdom of putting ANY bureaucrat in the position of arbitrating the public interests. I simply no longer trust bureaucrats to work for the greater good instead of their self-interest.

An arm’s length body already exists to oversee the MFIPPA: the Information and Privacy Commissioner (IPC), which on its website notes, “The IPC acts independently of government to uphold and protect access to information and privacy rights in Ontario.” I don’t believe handing that authority to a local bureaucrat who may have personal and/or political allegiances to people and politicians in town hall would serve the public interest.

~~~~~

* That previous council appointed a sole-sourced lawyer to report on the state of the provincial electricity industry, then appointed him to advise council behind closed doors on the sale of our public utility, then appointed him as the town’s lawyer to oversee the sale to a private corporation, all without following the legal requirements of the procurement bylaw. Their utter disregard for the law, for openness, and for the public they pretended to represent was gobsmacking.

** I recall spending many hours in town hall going over records being provided under request that term, to confirm they did not contain personal information. Most of council had to go to town hall at some point (especially after we voted not to give the YMCA a $35 million handout) to go over the piles of paper with our emails and expenses being prepared for FOI requests. None of us ever suggested making the process more expensive or restrictive, let alone publicizing the requester’s name, like this council wants to do. That speaks volumes to the difference in attitude towards the public between that council and this one.

PS. Why didn’t the reporter ask what training local clerks had for this role, and what sort of accountability they would be held to if granted this egregious power? Or if they would expect more money for doing it? Or what sort of appeal mechanism would be in place if a resident wanted to challenge a clerk’s decision? Where would the requester’s name be publicized and when? Would all names be made public or only of people those the clerk chose to shame? Why doesn’t local media ever ask the tough questions?

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