We debunk the City's claims about why it is trying to censor Focus and we provide a more likely motivation for its unwarranted attack.
LESLIE, DAVID AND GOLIATH. That’s what the City of Victoria’s application to “Section 43” our magazine feels like to us. A corporation 1000 times our size is trying to throttle us because we had the nerve to expose its mismanagement of a mega-project for which only a dubious rationale was ever produced. That project is now at the edge of failure, and Goliath is angry.
That’s the metacontext of the City of Victoria’s application for a Section 43 authorization from the Office of the Information and Privacy Commissioner (OIPC) to freeze my FOI requests. Section 43 is a provision of the Freedom of Information and Protection of Privacy Act (FIPPA) that allows a public body like the City of Victoria to protect themselves from the odd crank who wants to file an FOI a day. What makes our case noteworthy is that Section 43 has never before been applied to a media source in BC.
What prompted the City’s dramatic move? They claim they did it because the three people named in the application, Leslie Campbell, Ross Crockford and myself were overwhelming them with work arising from our FOI requests. I’m going to address the overwhelming- them-with-work claim in detail because that’s the fastest way to debunk what the City has been saying. Then I’ll move on to what this is really about: their dark secret.
The City of Victoria made their Section 43 application on August 7, 2012. In the seven months previous to that date, Focus filed five FOI requests for which the City has provided a response. That’s five, not fifty. Our 2012 requests have declined dramatically in frequency since 2011 (a civic election year), when we filed 24. All of our requests were as focused as possible.
Which makes the City’s Communications Director Katie Josephson’s characterization of our requests on CBC Radio borderline libel. Josephson told CBC, “In most cases they are asking for every email or record over the span of half a year, and you can imagine the volume of work that does go into collecting and compiling an enormous amount of records...We have seen a significant increase in the number of Freedom of Information requests from this group [Campbell, Crockford and Broadland], however it really is due to the broad nature of those requests [that the City applied for a Section 43 authorization].”
Let’s look at the facts Ms Josephson has ignored. The largest of our requests was for the emails between former Project Director Mike Lai and MMM Group—the company providing the City with project management—from August 2011 to March 15, 2012. This request was filed after the predicted cost of the project had jumped from $77 million to $93 million last March. The City’s response to this request ran to 677 pages, puffed up by hundreds of pages of information that did not fit the request criteria. The City charged us $1200.
I made two other requests on March 15, one for the record of internal staff communications relating to the escalating cost of the new Johnson Street Bridge (52 pages) and the other for the record of communications between the City of Victoria and the Government of Canada regarding the $16.5 million Gas Tax grant announced March 3 (19 pages).
Then on March 27, I requested a ledger record of the City’s costs for the bridge replacement project between July 2011 and March 2012 (16 pages supplied in electronic format). This is a record that the City would keep as a natural course of tracking the project’s cost.
On July 9, I requested evidence that the City was being overwhelmed with FOI requests, a claim they had made to OIPC in support of serial delays in producing the 677-page request. This information was supplied by the City as a single-page email. They clearly shouldn’t have been overwhelmed.
One of the other people in Josephson’s “group” is Focus editor Leslie Campbell. Campbell has never made an FOI request to the City.
Ross Crockford, who is a director of JohnsonStreetBridge.org, tells me that so far in 2012, the City has provided him with a response to only one request for information (191 electronic pages). He abandoned one other request after the City assessed what he felt was an unreasonably high fee.
Josephson’s “enormous amount of records” actually amounted to 956 pages over a period of 7 months. Is this “enormous”?
No. A single FOI request by a journalist can often run to thousands of pages of records. Focus’ Rob Wipond tells me a recent request he made to Public Works and Government Services Canada will run to 5200 pages; another with Health Canada, 3200 pages.
Speaking about the City’s Section 43 application at the September 28 Sunshine Summit in Victoria, former Information and Privacy Commissioner Dr David Flaherty called the City’s Section 43 request “absolutely outrageous,” adding, “If you’re planning to spend $100 million on something, you better fund the FOI regime to be able to handle the access requests, otherwise it’s undemocratic and inappropriate.” He expressed a hope that the City would be “whacked” by OIPC.
It isn’t too surprising that the same senior City managers who forgot to include the $1.1 million cost of applying for permits, for example, would also overlook the need to increase funding for its FOI capacity by a few thousand dollars. Meanwhile, the City happily spends $600,000 a year on Josephson’s image makeover department.
But the source of the City’s Section 43 attack on this magazine isn’t just the short supply of competency at City Hall. Its action demonstrates a willingness to use FIPPA’s provisions for cynical political purposes. According to FOI experts assisting Focus, City of Victoria has next to no chance of winning the authorization it is seeking. That’s not even the City’s game. Lawyer Michael Vonn, policy director for the BC Civil Liberties Association, in discussion about the City’s Section 43 maneuver, compared it to a shell game and said, “Like comedy, the only thing that counts in FOI is timing. If you can stall it out past the line, it almost doesn’t matter.”
The City is simply misusing a provision of FIPPA to stall the release of information. It’s hoping to play the clock out and get a contract signed on a new bridge before its Section 43 request is declined by OIPC and it is ordered to release information that could embarrass it and threaten its already shaky project.
I believe the foundation for the City’s stalling tactic was laid on July 5, 2012 when I sent an email to the City outlining the public interest involved in my 677-page request mentioned above. Public bodies are required by FIPPA to provide information at no cost when the information is deemed to be in the public interest. So I made my pitch.
My premise was simple. In the 52-page FOI mentioned above, I had obtained a memo written by the City’s Assistant Director of Finance Susanne Thompson. That memo and other documents showed senior City managers definitely knew about significant design changes and the bulk of the $16 million price increase for the bridge project on November 21, 2011, just a few days after the last civic election. It seemed very likely, then, that the cost increase was known by City Manager Gail Stephens and former Project Director Mike Lai before the election. But how much before?
This question matters. In my appeal for a fee waiver, I wrote, “If the engineers knew of the design change and anticipated cost increases and did not relate this information to the city manager or councillors, this raises the question of whether they have breached their professional code of ethics. If the city manager knew of anticipated cost increases but did not relate this information to the mayor or councillors, this raises the question of whether the city manager acted ethically by informing them that the project was ‘on budget, on schedule.’ Whether civic officials have acted ethically is always a matter of public interest.”
I was referring to an October 6, 2011 council meeting at which City Manager Gail Stephens had reassured councillors the project was “on budget and within timelines.”
The City’s Director of Legislative Services Robert Woodland rejected my request for a fee waiver on July 19. He made it clear that he was aware of my “theory,” as he put it, but differed on whether such a concern was a matter of public interest. What’s important to note is that the City was aware of why I was asking for the information.
Now I need to go back in time for a moment to pick up a stray piece of the story. A document obtained from the above-mentioned 52-page FOI request had noted that on September 12, 2011, the “JSB Steering Committee” had met and discussed the “wheel design.” Don’t laugh. This is much more unusual than it sounds. In the 677-page response mentioned above, the subject of the bridge’s design never appeared; nor was there any mention of cost escalation. It was clear these issues, and any other problems they were having, were being discussed in some other venue than the email communication between Lai and MMM Group. The Steering Committee consisted of all the top officials working on the project, including Stephens, Lai, and Joost Meyboom of MMM Group. Whenever the design changes and cost increase had occurred, these would have been the first people to know. We know from the above document that Sherri Andrews, Stephen’s personal assistant, attended all or some of these meetings and made notes. We know from a City Hall insider that Andrews takes shorthand notes of transcript quality.
So on August 3, working along that same line of inquiry, I requested from the City “the personal notes and records made by City of Victoria employee Sherri Andrews that covered the proceedings of the JSB Steering Committee between January 1, 2011 and August 3, 2012.”
My August 3 FOI touched a sensitive nerve at City Hall. By August 7 the City had applied to OIPC for authorization to ignore FOI requests from me, Leslie Campbell and Ross Crockford, both of whom were apparently guilty by association. Merely by applying for the authorization, any FOI requests I had made were automatically frozen, including the August 3 request.
Is the dark secret that the cost increase was known in September 2011? Or is it that and a whole lot of other embarrassing facts about how badly this project has been managed? A “Final Project Definition Report,” which was wrestled from the clutches of senior managers and into public view after I informed councillors of its existence back in early September, contains sobering revelations. For example, the report notes that as of July 31, the design for the bridge was only at “30 percent.” MMM Group told councillors in March the design would be at 60 percent before the procurement process started.
Here’s the bottom line. The date for receiving bids for construction of a new bridge was to be completed by August 17. After two postponements, that date has been moved to October 18. The “design optimization” process, by which the three construction companies rework the design so they can keep within an overall project cost of $93 million, may produce a bridge very different from the one Victorians approved in the 2010 referendum. When councillors finally get to see what that looks like, they’ll have to decide whether to proceed or kill the project and look at other options. With the project hanging by a political thread, any bad news could sink it. So City managers chose to knock the most likely source of embarrassing news out of the game for as long as possible.
City managers could easily prove me wrong by releasing the requested information without further delay.
David Broadland is the publisher of Focus Magazine.