**October 2012 Focus - Focus Magazine

talk
of the
town
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- themwith-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 previous
seven months, Focus filed five FOI requests.
That’s five, not fifty. And our requests had
declined dramatically in frequency since 2011.
All of these requests were very focused.
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
Victoria City Hall’s dark secret
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.
David Broadland 10 Rob Wipond 12
DAVID BROADLAND
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.
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
10 October 2012 • FOCUS