Privacy Commissioner calls on county to act

By DOUGLAS GLYNN Midland Free Press
The Information and Privacy Commissioner’s office has taken its toughest stance yet over Simcoe County’s failure to obey an IPC order to obtain information from a consultant.
In the latest move, IPC adjudicator Colin Bhattacharjee wrote Graham Wilson & Green, the county’s law firm, last week asking the county to either comply with the order by Dec. 18 or serve the IPC with an application for judicial review.
The IPC order stems from a freedom of information request made in 2007 by Steve Ogden on behalf of the Site 41 community monitoring committee (CMC). He is seeking the calibrated hydrogeological model and input data relied on to approve dump Site 41 so the CMC can have it peer reviewed. The county said it did not own the data, so Ogden appealed to the IPC.
The IPC ordered the county in May to direct its consultant, Jagger Hims, to provide the county with the calibrated model and input data.
(In assessing whether the county has any grounds to compel Jagger Hims to provide the county with the records, the IPC adjudicator concluded at the time that the model and input data held by Jagger Hims are under the county’s “control” for the purposes of section 4(1) of the Act.
(“In light of my findings, he wrote, and particularly the fact that Jagger Hims received and used taxpayers’ money to create the hydrogeological model and input data, I find that the county has a potent legal basis for compelling the firm to provide the county with these records,” he wrote.)
In June, Jagger Hims declined to do so for proprietary reasons. On Aug. 21 the IPC issued a further order directing the county to to “immediately take all steps, including legal proceedings if necessary” to obtain the records.
What county council did was pass two resolutions at its Aug. 25 meeting.
The first resolution instructed the county’s legal counsel to seek a judicial review of the Information and Privacy Commission’s order and related matters and continue efforts in the interim to persuade Genivar [the new owner of Jagger Hims] to release the calibrated model.
The second resolution proposed that the Information and Privacy Commission be approached to determine if a further peer review would satisfy its order.
In October, the Toronto law firm McCarthy Tetrault advised Ogden’s lawyer and the IPC that it had been retained to bring an application for judicial review of the IPC decisions.
McCarthy Tetrault’s letter said, in part, that because the IPC required the county to take certain steps immediately, “the county feels it must bring an urgent application for an interim stay of this decision pending the hearing of this appeal.”
In a letter dated Oct. 29 to the Divisional Court of Ontario, McCarthy Tetrault said the county would be bringing a judicial review application from two decisions of the IPC, noting the decisions in issue were dated May 13 and Aug. 21, 2009.
(However, Bhattacharjee’s Dec. 8 letter says: “we have not yet been served with this application, nor have we been served with a stay application.”)
On Nov. 17, the county’s lawyers sent Ogden’s lawyer a proposed agreement giving “conditional access to the calibrated modflow model” based on an agreement reached between the county and Genivar (Jagger). The proposal offered to arrange a peer review of the calibrated model if that would satisfy the outstanding IPC order.”
Ogden’s lawyer replied pointing out that Ogden had not been a party to the agreement between the county and Genivar. In addition, the lawyer wrote, Mr. Ogden cannot agree the proposed agreement satisfies his access request or the IPC order.
“My client remains of the view that the document should be made a public document. It was paid for by the citizens of Simcoe County and relied upon by the Ministry of the Environment to approve Site 41 as a landfill site,” the lawyer added.
Ogden said obtaining the information is especially important, “because it was relied on by the Ministry of the Environment to approve Site 41.”
The new IPC deadline puts the Site 41-related issue in the lap of Cal Patterson. Interestingly, the IPC letter was dated Dec. 8, the day Patterson was acclaimed warden after Tony Guergis declined his nomination. Several efforts to reach Patterson for comment have been unsuccessful.
Bhattacharjee’s letter points out that an application for judicial review “does not automatically stay the operation of an order issued by this office.
“However,” it continues, “this office can grant a stay where warranted. If you wish to have the order stayed pending the hearing of the application for judicial review, please serve us with your application to stay the order, together with your application for judicial review.”
The IPC declined to comment on the contents of the copy of its Dec. 8 letter which had been obtained by The Free Press.
However, an IPC spokesperson said the FOI process in Ontario remains a key cornerstone of accountable government.
“This is evidenced,” he said, “by the increasing number of FOI requests filed with government institutions each year and the steadily expanding number of government institutions being brought under the FOI umbrella (universities, Cancer Care Ontario, etc., and discussions are underway about adding hospitals).
“The number of requests filed across Ontario in 2008 was the second highest ever -37,933, trailing on the record set the previous year, 38,584. There has been a strong, consistent upward trend, particularly at the municipal level.
“It is also important to note,” he that challenges by government organizations to IPC decisions, through the judicial review process, are infrequent. In fact, there have been only a total of 18 new challenges over the past two years.
The Site 41 situation has raised a novel issue; the requested records were not in the possession of the government institution, but rather, in the hands of a company contracted to provide services to the institution. Under normal circumstances, the government institution would have possession of at least a copy of the requested records.
“The IPC decision in the Site 41 case recognizes that governments retain responsibility for records even when in the hands of an agent.
“Because this is a novel situation, it is likely that the courts will have the final say on the validity of the IPC order and the County’s response to it. We are confident that at the end of the day, the IPC position will be validated.”
To comply with the the IPC order, the county must obtain the data. Once it has done that, it must decide whether to provide it Ogden. The county has 30 days to decide. If it chooses to refuse, Ogden can appeal the decision to the IPC.
Ogden says has confidence in the IPC and was encouraged earlier this year when Commissioner Ann Cavoukian, in commenting on the matter, said:
“I cannot stress enough the importance of freedom of information. If citizens are to participate meaningfully in the democratic process and hold politicians and bureaucrats accountable, they must have timely access to this type of information.”