• Protecting Water and Farmland in Simcoe County

County position on Site 41 MODFLOW creates an ‘information firewall’

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In Simcoe County
Dec 16th, 2009
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The following new release was issued by the SDS41 group
ELMVALE – The County of Simcoe’s support of multinational waste company Genivar in refusing to release the Dump Site 41 calibrated computer model (MODFLOW) sets a dangerous precedent, says Tiny Township resident Stephen Ogden.
Ogden filed a Freedom of Information request in September, 2007, for the model that allegedly shows hydrogeological conditions at Dump Site 41 would provide appropriate containment.
“The withholding of the information is totally inappropriate and prevents the public from monitoring so-called expert opinion, or holding  public officials accountable for the quality of the information they use to reach their decisions,” Ogden said.
Ogden said he is shocked to learn that Simoe County Council met behind closed doors during the dying days of Tony Guergis’s leadership and voted to proceed with a judicial review of an Information and Privacy Commission order.
“The county insists that it doesn’t own the information and it is going to defend Genivar’s ownership regardless of the cost,” Ogden said. If a court were to uphold the County’s position, this would set up an “information firewall” between the electorate and decisions made on their behalf – if a consultant is involved, he said.
“This situation is totally unacceptable in a functioning democracy,” said Ogden, who pointed out that the only substantive ground the County advances for its position is to protect its relationship with vendors and partners.
“What about its relationship with the public?” Ogden asked. “What about its relationship with the people who live in the Site 41 area and who have called for full disclosure so they can be sure that the environment and the fresh water that is the legacy of future generations is protected?”
Ogden noted that the County of Simcoe has refused to request revocation of the Site 41 Certificate of Approval, in case it needs it in the future.
Today, councillors assembled in Midhurst for a training session on how to deal with the media. Ogden suggested that Lesson One would be to act with openness and transparency. “Why does the County continue to act in a manner that creates suspicion and doubt as to how we are governed?” he asked.
In a news release, the County suggests:
1. That the County does not have a right to possession of the model. Ogden points out that the Information and Privacy Commissioner, whose job it is to make decisions on who owns information, has ruled otherwise in the May 13, 2009 Oder MO-2416: “The County’s legal duty under condition 10.1(d) of the PCA resulted in the creation of the model. The sole purpose for creating the model was to fulfill the County’s legal duty under condition 10.1(d) to conduct a “supplemental hydrogeological investigation.” Jagger Hims did not create the model on its own volition… The County has an implicit right to obtain the model and input data from Jagger Hims, particularly since the firm received and used public money to create the model. As in Ontario Criminal Code Review Board, the County’s failure to enter into a contractual arrangement with Jagger Hims that would enable the County to obtain the model and input data cannot be a reason for finding that such a right or power does not exist.”
2.  That the information “is and always has been,” owned by Genivar. As far as is publicly known, this is not true. Initially, the information was owned, either by the County or by Jagger Hims. Genivar had no claim until it purchased Jagger Hims in May, 2009.
3. That the county and Genivar reached a good-faith agreement to submit the calibrated computer model. There was little good faith in an agreement that included no input from Ogden, whose Freedom of Information request was at issue. Furthermore, the agreement limited his choice of peer reviewer and the nature of evaluation to be undertaken in such a way that it would not have been possible to answer the basic question of whether the calibrated computer model reflects reality.
4.  That the IPC has ordered the County to sue Genivar. The IPC ordered the County to take all steps necessary to obtain the model which the IPC has ruled belongs to the County, including legal action – but that was a last recourse. The County has rolled over and adopted Genivar’s position rather than the position set out in the IPC ruling. It has not taken the most obvious step, which is to tell Genivar that it won’t do business with a supplier that withholds information that belongs in the public domain.
County news release

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