A White Rock resident who is still waiting for answers to his freedom-of-information (FOI) request to the city two years ago says he was surprised to receive a followup question this week from the provincial privacy commissioner.
Charles Fast made a request on Dec. 3, 2016 asking for copies of all records that would show the reasons for council’s public censure of Coun. David Chesney that year. On Wednesday, Office of the Information & Privacy Commissioner (OIPC) registrar of inquiries Rebecca Rohrick emailed all parties in Fast’s inquiry to check whether he, the city or Chesney would have concerns about the inquiry proceeding.
Fast’s response: “I’m astonished that now, after two full years, you present this question.”
Fast is one of two FOI applicants who have reached out to Peace Arch News in recent days to say they have still not received the long-requested information they are seeking from the City of White Rock.
Former resident Dennis Lypka submitted a request on Feb. 2, 2017 for copies of all records related to the city’s water utility purchase negotiations with Epcor, subsequent to the summer of 2015.
Both men say that, to date, they have not received an adequate explanation of why no information was provided.
Both requests – and the way in which they were handled by the city – are currently subject of inquiries with the OIPC, which last month had released a special report citing “serious concerns” in an audit of the city’s handling of FOI requests. The report recommended the city take action to fully document FOI requests, expedite searches and ensure that it responds without delay and within legislated timelines.
Meanwhile, a city staff report to council suggests that slow responses to FOIs were partly due to direction during the previous council term that assigned such requests lower priority than other city business.
The FOI update report will be before council at Monday’s regular meeting (Dec. 10), raising the possibility of public discussion of these and other still-outstanding requests.
According to the report, from corporate administration director Tracey Arthur, much of the significant FOI backlog that had developed by 2016 was “due to limited resources to address the high volume of files and a previous overall direction to pursue other corporate priorities throughout the organization.”
A non-public meeting held Thursday for council members concerning FOI requests led to some speculation of whether Fast and Lypka’s cases were on the agenda, however Mayor Darryl Walker told Peace Arch News that the meeting was for informational and orientation purposes only.
City manager Dan Bottrill told PAN that the update report would be included in council’s agenda package, which was posted to the city’s website Thursday.
“That will be in an open meeting,” he said. “There will be an opportunity (for council) to have a discussion on FOI requests at that time.”
Arthur’s written report states that as of the beginning of this month, there were a total of 11 FOI files under review or subject of an investigation or inquiry by the OIPC.
Arthur’s report also shows that after reaching a high of more than 150 in 2016, FOI requests are in decline, sitting at about half of that at the beginning of December.
In line with the OIPC recommendations, she adds, staff resources have been realigned to deal with FOI requests in a timely manner.
But the wheels are still not turning quickly enough for Fast, who cc’d PAN Thursday in an email to the OIPC noting that he was distressed by the slowness of the commissioner to look into his case.
The city had announced on Oct. 26, 2016 – following an in-camera meeting – that it was censuring Chesney, citing “breach of trust and sharing confidential information” regarding “negotiations of a very sensitive and critical matter” – without providing further details or reasons.
Fast told PAN in an email that he had informed Chesney of his initial FOI request and had included him in correspondence with the OIPC.
“I have an arms-length relationship with Mr. Chesney, so far as I’ve always admired his work ethic, logical questions during council meetings and his availability including library meetings and his willingness to respond to emails,” Fast said.
“Although I have a good idea as to why he was sanctioned, I wanted a statement from City Hall. From the Mayor’s office. I wanted that information to be made public because either Coun. Chesney or (then-mayor Wayne) Baldwin needed to be accountable to the taxpaying residents of White Rock. I had no idea that after two years, and an election, the public would still be denied that information.”
The city’s position on this file, as summarized by Arthur, is that records relating to Chesney’s censure involve personal information. Under the Freedom of Information and Protection of Privacy Act, unauthorized disclosure of such information could open up the city, including employees and council members, to fines or even civil action.
Lypka told PAN this week that after his initial inquiry on the water utility purchase negotiations produced no records, it went to OIPC mediation in May 2017 and had since been handled by lawyers for the city. An OIPC inquiry began this October, after which some records (of 141, according to a city affidavit) were released.
“White Rock at this time chose to dribble out to me 13 records consisting of 144 pages of mostly inconsequential administrative fluff,” Lypka said. “Some of the pages provided are so faint they are not always fully legible.”
Lypka said that in spite of promise of disclosure of a further nine records, the city had released only five – one of those heavily redacted – and a city lawyer had told him the other four would now not be released.
In Arthur’s report, she says that while the city has “proactively disclosed a number of records that Epcor is no longer seeking to withhold… other records continue to be withheld on the basis of solicitor-client privilege, settlement privilege and (disclosure of personal information).”
Waiving those types of privilege, she notes, may result in liability for the city. In the case of solicitor-client privilege for instance, she said, “once privilege is waived, it is gone forever and it is difficult to limit the scope of waiver.”
“Even if a legal dispute regarding the water utility is not in contemplation now, waiving privilege over all of the communications exchanged over the course of negotiating the acquisition and settlement of the final purchase price creates unnecessary risks for the City and compromises its legal interests.”
UPDATE: an earlier version of this story said that Fast had included Chesney in all, rather than some, of his correspondence with the OIPC.