Dead skunk on Douglas Street

By David Broadland, November 2012

Is freedom of information already roadkill on the City of Victoria’s shiny new misinformation highway?

On October 9—my birthday—the City of Victoria withdrew its Section 43 application to the Office of the Information and Privacy Commissioner (OIPC). Some gift. With only hours left on the clock for the City to produce whatever evidence it had to support its claim that Focus and JohnsonStreetBridge.org director Ross Crockford were working in concert to crash the Johnson Street Bridge project headlong into the City’s FOI office, it chickened out.

But that was no big surprise. The City had used a section of the Freedom of Information and Protection of Privacy Act—legislation intended to increase government transparency and accountability—to obstruct a specific request for information, the release of which would likely cause great embarrassment—and an outbreak of accountability—at City Hall. The City’s top dog in the FOI office, lawyer Rob Woodland, simply played out the clock until the last possible moment before stepping out of the way of the oncoming public relations smash-up.

Section 43 of FIPPA allows a public body to ignore FOI requests from an applicant. Merely by sending a letter to OIPC, the City was able to ignore an FOI Focus filed on August 2. The clock on that file was stopped on August 7 and didn’t start ticking again until October 10. Because of an additional time extension the City has already put on this request, we will not see a response to that August 2 FOI until well into 2013. That’s a lot longer than the 30 working days intended by the Act.

The big loser here, at least for the moment, is the public interest. The Act is intended to make governments more accountable to the public. This particular government has just learned it can openly use the Act to accomplish the opposite—and get away with it.

The political response at City Hall was oddly theoretical. The progressive side of City council tried to use the issue to reform the City’s approach to FOI requests. A motion by councillors Lisa Helps and Ben Isitt to transfer control of Section 43 applications from Woodland’s office to councillors was supported by Geoff Young and Shellie Gudgeon. The conservative majority, led by councillor Marianne Alto, demurred, claiming such a reform would “politicize” the FOI process, “a road,” Alto warned, “we should not go down.” Alto seemed to genuinely believe that the FOI process at City Hall is not currently politicized, that any issue involving an FOI request is resolved by the strict and straightforward application of existing administrative rules.

But after Woodland’s withdrawal of his Section 43 application suggested the City’s claims against Crockford and Focus were baseless, Fortin and Alto put forward a face-saving proposal that would see immediate hiring of additional staff to process FOI requests and then a review of the City’s FOI process. Their cart-before-the-horse proposal, yet to be voted on, provided tacit approval of Woodland’s claim that current resources had been overwhelmed by Crockford and Focus.

As usual, none of the politicians appeared to possess the kind of specific information that would have allowed them to make an accurate assessment of the issue. And, no surprise, Mayor Fortin was eager to throw money at a “problem” without having a firm understanding of what the problem was. He simply accepted his staff’s story.

Fortin ought to have called for an independent review of the City’s FOI workload first. If he had, he would have found something like this: The number of FOIs the City is fielding each month has not changed significantly over the past four years. Information obtained by Focus from the City through an FOI in 2011 showed that the City was fielding, on average, a total of six FOIs each month between January 1, 2009 and February 21, 2011. During that time, media (including Focus) accounted for an average of 1.1 requests each month. From information obtained from the City for the first nine months of 2012, the average monthly load was essentially the same. FOIs filed by media (including Focus), for which the City had to provide a search for records and a material response, have averaged 1.2 requests per month.

FOIs filed by media account for only 20 percent of the total filed with the City. Individual citizens account for 50 percent, litigants 19 percent, and commercial and government requests total 11 percent.

Although media requests only make up 20 percent of the total, they can have a disproportionate impact on those working for the City. After all, reporters don’t take this stuff home and put it in a drawer. We share it with many thousands of our fellow citizens. And let’s face it, we’re not using what we find to make public servants look good. We’re using it to hold them accountable for decisions they make. That’s the role media was expected to play when freedom of information legislation was enacted.

But in the absence of firm political leadership at City Hall on this issue, senior managers there are attempting to overthrow the long-accepted role media plays in providing independent analysis and criticism of its operations. As a result, the FOI process at City Hall, when it involves issues of broad public interest, is already highly politicized, and the political decisions about how to use it are being made by unelected bureaucrats. Moreover, that process now appears to have been opened up to interference by private interests.

On December 19, 2011, senior engineers from MMM Group—the company providing the City of Victoria with project management on the Johnson Street Bridge project—met with City engineers in Victoria. A document obtained by Focus through an FOI shows that at that meeting MMM Group engineers expressed “concerns regarding the City’s approach to FOI requests.” City engineers present asked MMM to “send a letter to the City” addressing MMM’s concerns.

Here’s a question for councillor Alto to mull: Why was MMM Group, a division of a very large, private American engineering corporation, HW Lochner, involving itself in how the City of Victoria handled requests for information mandated by the Freedom of Information and Protection of Privacy Act?

The City will, we can be sure, provide a reasonable explanation. I’m going to offer one based on my own experience over the past several months. The engineers at that December meeting knew the cost of their project had risen by at least $16 million and they were sensitive as to when and how that information would be released to City councillors and the media. The engineers had hidden this cost increase for months and had kept it out of the 2011 civic election. Adding to their concerns, the mechanical design of the bridge had changed dramatically in the previous months, seismic modelling had not been completed, and there were serious questions about whether the design was even buildable for the money that was available.

At the same time, MMM Group officials were acutely aware that both Focus and JSB.org were following the project closely by filing FOIs.

So what were MMM’s “concerns”? I don’t know exactly (I have filed an FOI), but given the backdrop of that meeting—the rising cost, the changing design, the need for secrecy—it’s hard to imagine that MMM wanted the City of Victoria to provide easier access to information about the project. Was MMM concerned the City wasn’t doing all it could to slow the release of information to Focus and JSB.org? Did MMM put their concerns in writing and send them to the head of the City’s FOI office? Did MMM try to influence how that office responded to FOIs from Focus and JSB.org? 

I don’t know the answers to these questions. But I do know how the City responded to our FOI requests in the months following that December 19 meeting. Once the engineers announced the cost had climbed to $93 million, Focus quickly filed four FOIs looking for information about the cost increase and design changes. One of those FOIs, filed on March 15, asked for the communications between the City’s Project Director Mike Lai and any employee of MMM Group over the previous seven months. 

After we filed that FOI, the City applied for a 30-working-day extension because the Act said it could. Then it told OIPC that it needed an additional 30-working-day extension because it had been swamped with FOI requests about the bridge project. In a letter dated June 12, the City told OIPC, “This year to date, the City received 17 requests related to the [bridge] project.” OIPC granted them another 30 working days. When that extension had expired, the City applied for another. Its delay tactics added 90 working days to the response time stipulated by the Act.

Was that delay justified? Focus filed an FOI asking for details about the “17 requests” the City had said made it impossible to process the Lai-MMM request. Its response came on October 4 and it showed the City had exaggerated to OIPC the number and character of bridge-related requests it received in 2012. There had been a total of 10 requests, four of which were from Focus and two from Crockford (Crockford says that to date he has received a full response to only one of his two FOIs, both filed in May).

So did the remaining four requests justify the extra 90 working days? One of the requests was from Roszan Holmen of Victoria News. The City provided her with the exact same 52-page record that had previously been supplied to Focus for one of our requests. How much time would that have taken? Half an hour? Another FOI request from an individual was for a single-page email that, once again, had previously been supplied to Focus. Twenty minutes? The remaining two requests were queries from a Ministry of Transportation employee asking if the City would have any objections if the Ministry released material about the bridge project that had ended up in its hands. No search for records by the City was required. Let’s be generous: three hours? But the minor amount of work involved in processing those four requests apparently took the City 90 working days to accomplish.

So what do we have here? We have a road that most councillors don’t want to go down—the politicization of the City’s FOI office. And we have a small group of City bureaucrats that have already gone so far down that road that most councillors can no longer see them. The public interest is roadkill, a dead skunk in the middle of Douglas Street.

David Broadland is the publisher of Focus.