Risky business: (Proposed) changes to the Freedom of Information and Protection of Privacy By-law, and how they could hurt Vancouver (Feb 23 in Council)

digital strategy city hall(Update: City Council planned to adopt the bylaw changes immediately (same day). But the topic has been moved to the Feb 24 (Wed) Committee meeting (starts 9:30 am), agenda item #7. Speakers can address Council. We encourage people do do so in person at the meeting or in writing. See below for the issues.)

A staff report entitled “Freedom of Information and Protection of Privacy By-law Amendments,” goes to the February 23 Regular Council meeting (9:30 am) asking council to immediately approve changes to the Freedom of Information and Protection of Privacy By-law to “(1) appoint a single ‘Head’ reflecting the current City process and the practice of other municipalities, (2) update the fee schedule to remove outdated items, and (3) remove unnecessary sections included in the provincial legislation.”

This topic comes up to a Regular Council meeting on Tuesday, February 23, 2016, but if citizens request to speak on the matter, it could get pushed to a committee meeting the next day. Download the staff report here (Freedom of Information and Protection of Privacy By-law Amendments), but read the narrative and justification with a grain of salt. Everyone should ask, why is the City rushing to do these amendments now? Staff lament the rise in FOI inquiries, suggesting there is a problem of work load. But what is the cost of democracy? Surely the municipal government should accept this burden as a valuable and necessary obligation, especially in view of the risks outlined below.

It would be premature to make these amendments, and much better to consider the topic more comprehensively, not piecemeal at this time. Today CityHallWatch wrote Mayor and Council with a copy to Elizabeth Denham, the provincial information and privacy commissioner with the gist indicated below. Anyone else concerned about these matters is encouraged to write or speak to Council immediately.

While updating the fee schedule and removing “unnecessary” sections of the bylaw may appear to be of a “housekeeping” nature, the proposal to change from three persons as “Head” to one person is of a most serious nature if attempted at this time. The staff are recommending that City Council reduce the “Head” from the current tripartite of City Manager, City Clerk and Director of Legal Services to just one person (City Manager).

In the case of Vancouver today, the power of the “Head” should not be concentrated in the hands of just one person (City Manager).

To illustrate the significance, imagine these two scenarios of a citizen request to City Hall under the FOI legislation.

SCENARIO #1: Current three-person “Head” of FOI
City Clerk: “I’m getting pressure from the mayor’s office to deny this request for information on the $200 million infrastructure project. I say we reject the FOI request.”
Director of Legal Services: “But look at the facts. The law shows clearly that the City should disclose this.”
City Manager: “There is no reason not to release the info. It’s in the public interest.”
City Clerk: “Understood. Two votes to one. Right. Let’s release it.”
OUTCOME: INFORMATION IS DISCLOSED. 

SCENARIO #2: Proposed amendment to one-person “Head” of FOI
Chief of Staff (to City Manager): “…. You know what to do”.
City Manager (to self): He wants me to deny this request for information. What should I do? Redact all or most of it.
OUTCOME: FOI REQUEST IS EFFECTIVELY REJECTED. RESPONSE IS ALMOST COMPLETED REDACTED. NO RELEVANT INFORMATION IS DISCLOSED. 

What City Council should do at this time:
  • do not adopt the recommended amendments at this time, but only accept the report for information,
  • refer the report back to staff for a meaningful review of the findings of the audit by Elizabeth Denham, the provincial information and privacy commissioner, which is currently still underway,
  • take more time to listen to stakeholders (above all, the public) meaningfully (with adequate lead time and discussion time) regarding the Bylaw as well as the overall FOI processes and procedures, in order to
  • take serious steps to truly achieve excellence in transparency of Vancouver City Hall,
  • and prepare/adopt best practices for proactive information disclosure and FOI practices.
Vancouver was selected for an audit (FOI “compliance review”) in part for being ranked among public bodies with highest number of complaints relating to its handling of FOI requests.

FOI requests have gone from being a last resort, to sometimes being the only way to get a straight answer from the municipal government. A lack of transparency in any government weakens our society’s ability to hold governments accountable and threatens the integrity of our democracy.
While the staff suggest that having one Head is typical in other municipalities, Vancouver is a special case. It stands alone in terms of the risks of conflict of interest, fraud & corruption.
Why does Vancouver face the risks mentioned? Here is a short sample of the reasons.
  • Vancouver is rather unique in Canada in having a civic party system, which has resulted in a rather politicized public service.
  • Vancouver election financing is head and shoulders above any other municipality in terms of the dollar size and influence of corporate and union donations.
  • Vancouver does not have a lobbyist registry.
  • Vancouver does not have a whistleblower system.
  • Transparency of Vancouver’s procurement and bid processes is light years behind good practices (compared with Toronto, for example)
  • It appears that most crucial policy and development decisions are made (in advance and maybe illegally) in caucus meetings of the political party with a Council majority.
  • It is known that the Chief of Staff has significant influence internally at City hall, probably on the City Manager. Earlier this year, one of Denham’s investigators confirmed he also mass-deletes his email (see The Province)…. This is a problem that needs to be addressed publicly and officially as a violation of the spirit and letter of the legislation.
How could all of this hurt Vancouver? Many ways, but one is the potential to move down the path taken by Montreal, which required dramatic efforts to clean up after decades of slipping into corrupt practices.
Until the results of the current audit by the provincial information and privacy commissioner is completed and reviewed, until there has been a meaningful consultation with stakeholders, and until other checks and balances are put in place, the City should not move ahead with the amendment of the Bylaw, particularly the reduction from three to one persons as the “Head” for FOI.
It would be premature to do so. It is unnecessary to proceed with the proposed amendments this month. And to earn and maintain the public trust, it would be better to consider amendments later, as explained above.
PARTIAL LIST OF REFERENCES:
Mayor Robertson defends city hall’s access to information practices: Vancouver ranked among public bodies with highest number of complaints (by Mike Howell, Vancouver Courier, 10-Nov-2015)
Vancouver municipal government secrecy: What is being hidden? Why? And how did it come to this? (CHW, 14-Nov-2015) (Regarding the compliance review (audit) by the provincial information and privacy commissioner.
*********************

A FEW EXAMPLES OF FOI REVELATIONS. THESE SUGGEST THAT THERE WAS POLITICAL INTERFERENCE IN THE FOI PROCESS ALREADY. REDUCING FROM THREE PERSONS TO ONE AS THE FINAL AUTHORITY WOULD LIKELY MAKE IT MORE DIFFICULT TO OBTAIN INFORMATION IN CASES LIKE THESE.

Bob Mackin asserts that it is becoming increasingly difficult to obtain information from those in power. As a result, FOI requests have gone from being a last resort, to the only way to get a straight answer. This lack of transparency is weakening our society’s ability to hold governments accountable and puts in to question the integrity of our democracy. (Read Use FOI tools to make your government more accountable: Investigative journalist Bob Mackin reveals his secrets, 18-Feb-2016)

FOI

Community Association of New Yaletown (CANY) discovered only through persistent FOI queries and adjudication from the provincial government, that long before the public heard about rezoning and development at Emery Barnes Park in downtown Vancouver, senior officials at City Hall had signed a land swap agreement with a private developer. Even now, it appears the public coffers got short-changed by tens of millions of dollars. See the chronology here.

[Update: Feb 23, 2016, 11am]
The City of Vancouver had updated the agenda for the Regular Council meeting and added the following point under the Bylaw enactments:

15. A By-law to provide for the Administration of the Freedom of Information and Protection of Privacy Act for the City of Vancouver
Subject to approval of Administrative Report 3

In other words, if the Administrative Motion is adopted by Council, then it can be enacted into bylaw in the same meeting. This would be done without a public hearing. At the Regular Council Meeting on the morning of February 23rd, Council moved this proposed bylaw enactment change to Wednesday, February 24th. Council referred debate on this Administrative Report 3 to the Committee meeting on Wednesday, February 24th in order to hear from speakers.

It’s also worth noting a new fee for scanning paper pages for FOI request. There is also fees for photographs ($17 per digital image), $4 fees for a DVD, and printing fees of $0.25 per page.

FOI_fees

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