City takes rare “Section 43” action to deny News Nanaimo freedom of information rights — then backs away

Municipality’s move to wield “blunt tool” against access rights came after article revealed FOI request for expense receipts
The City of Nanaimo applied to provincial authorities to be allowed to strip News Nanaimo of access rights under a rarely used provision in BC’s freedom of information (FOI) laws — but backed down when we demanded to see a copy of the application.

Described by officials as a “blunt tool” that denies individuals their rights to access public body records, Section 43 applications under BC’s Freedom of Information and Protection of Privacy Act (FIPPA) are a rarely used device — and almost never used against journalists or media representatives.

The last time a municipality used Section 43 against a media outlet was in 2012 when the City of Victoria applied to disregard requests for records from Focus Magazine about the controversial Johnson Street Bridge project. That case was also withdrawn and never went to a hearing.

Part of the section 43 notice from BC's Office of the Information and Privacy Commissioner
The City sought to block five of our freedom of information requests, the notice said.

Pattern of attacks against transparency

In News Nanaimo’s case, the City of Nanaimo applied to BC’s Office of the Information and Privacy Commissioner (OIPC) for authorization to disregard five current FOI requests from us, claiming they were vexatious and intended to cause harm to the city and city staff.

News Nanaimo contends that the city’s action is part of an escalating pattern of attacks on free speech and access rights designed to discourage legitimate public scrutiny of the city’s management and governance.

The city made its unusual application on September 13, a day after we published an article about senior city staff’s expenses.  That article, which mentions certain unexplained expenses, made it clear that we were persisting with an August 29 FOI request for copies of expense claims and receipts submitted by Chief Administrative Officer (CAO) Tracy Samra and Chief Financial Officer Victor Mema.

The FOI request for expense claims and receipts was among the FOI requests that the city asked the OIPC to be allowed to disregard in its Section 43 application.

Also cited in the city’s application were requests we made for Ms. Samra’s current employment contract, her contract as interim CAO, documents related to her 2013 employment at the city, and severance agreements for managers who have left the city since last year. We have made similar requests to other municipalities without problems. Prior OIPC rulings have also found that such records cannot be withheld.

No prior warning or complaints

Prior to its Section 43 action, the city had never complained to News Nanaimo that our requests were a problem. So far this year, we have received less than 100 pages of information and filed about a dozen requests, most of them only after the city added a new staff member to the FOI department.

By comparison, the City of Victoria’s complaint against Focus Magazine in 2012 involved 49 requests and 2,000 pages of information. Our requests also represent a small percentage of the FOI requests that the city has received over the past year.

Although the city made its Section 43 application on Tuesday September 13, notice of it from the OIPC did not reach News Nanaimo via Canada Post until late in the afternoon on Monday September 19.

The form notice said the five requests would be put on hold while the city’s Section 43 application proceeded. In effect, this meant the right to have access requests processed within 30 business days was being summarily suspended until the application process was completed.

In prior Section 43 applications against the media, the allegation has been that the mechanism has been used simply to delay access to potentially embarrassing information. The OIPC now seems to be sensitive to this and tries to fast track the applications to minimize delays.

Another concern was that we had no idea which requests were suspended or on what grounds the city was asking to deny our right to access the documents.

Request for copy of complaint

On Tuesday, we asked the OIPC to give us a copy of the city’s application so that we could know what allegations were being made to justify it.OIPC logo

In an email Wednesday morning, OIPC investigations director Patrick Egan agreed to give us a copy of the city’s application but said there was a problem.

The complaint letter contained personal information “of third-parties” that the city “clearly was not intending to be made public,” he said.

The OIPC was requiring the city to redact the personal information so that it could be disclosed to us. We advised Mr. Egan that we objected to the city redacting its own complaint letter.

Our objection to the city redacting the letter was based on the fundamental principles of natural justice and the duty of procedural fairness — including pre-hearing disclosure — whenever a person’s rights, privileges or interests are at stake.

City withdraws — but disclosure delayed anyway

By Friday, we still did not know what the allegations were or which of our requests were suspended. We emailed the OIPC asking if they had given the city a deadline to respond with redactions to their application.

As it turned out, we were never given access to the city’s complaint letter, redacted or otherwise. At 2:40pm on Friday afternoon, the OIPC notified us via email that the city had withdrawn its application.

Notice of withdrawal
The email on Friday afternoon telling us the city had withdrawn the application

The public may never know what was in the city’s complaint against News Nanaimo.

The only certain thing is that our requests for expenses, pay and severance information can now be delayed by an extra week.