North Bay City Council has backed a motion requesting the Ontario government review and reform the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) and two of North Bay's most active citizen advocates for municipal transparency and accountability are taking notice.
Both Kevin Ferris and Don Rennick have used the Freedom of Information (FOI) process governed by MFIPPA — and overseen by the Ministry of Government and Consumer Services — to gain access to documents in their respective quests to examine the dealings and decisions of the City of North Bay.
According to the City of North Bay's website, an FOI is a "legal process designed to make sure that all requests for access are treated fairly and objectively. MFIPPA sets out that information should be made available to the public, and that certain types of records such as personal privacy of others, trade secrets, [and] lawyer-client privilege must be protected."
Coun. Marcus Tignanelli noted Coun. Mac Bain was the original mover but was unable to attend Tuesday's regular meeting.
Although the motion seeks efficiencies in the legislation, an update to its language to achieve routine disclosure practices across institutions, and recognition of the advance in technology since MFIPPA was passed in 1990, Tignanelli got right to the point in introducing the motion.
"There are a handful of residents who continually push the boundaries for frivolous and vexatious MFIPPA actions," Tignanelli advised. "We're all well aware of those individuals."
"It is interesting that the focus of a number of the requested changes deal with frivolous and/or vexatious requests — which they claim is unreasonably high and allows for harassment of staff and members of municipal councils," Rennick tells BayToday.
"This is obviously an attempt to silence anyone who speaks out or is determined to hold their feet to the fire, so to speak, while feigning victimhood in a manner similar to that of our illustrious Mayor who has used that stance to bar me from speaking publicly to council. Apparently, they would like to dismiss any hard questions by claiming any requests are frivolous and any questioner is a harasser."
"In asking the province to re-analyze the current legislation, the intent is to increase access of information to citizens but minimize the cost to our taxpayers," stated Tignanelli during the meeting. "I believe it is our job as councillors to ensure taxpayers are protected from people abusing the access to information process — so it is not a burden on taxpayers."
In recent years in North Bay, FOI requests have secured documents leading to further investigation into the compensation arrangements for two former CAOs and the inner workings of the dissolving Invest North Bay board.
"An FOI resulted in the Knox contract being released. There was a public interest in that document being released. The process isn’t there for the comfort level of the municipal politicians. It’s there to expose stuff that would otherwise be kept secret," says Ferris, who, as a result of his advocacy, was named BayToday's newsmaker of the year for 2018.
In the case of the FOI looking into the departure from City Hall of CAO Jerry Knox, Ferris notes the City was "found to have arbitrarily narrowed the scope of their search and were ordered to perform a new search with sworn affidavits. This was demanded by the privacy commissioner."
Ferris was also involved in an FOI request for attendance and financial figures for the 2018 Summer in the Park but says he's made no frivolous FOI applications — he says he's filed only a handful over the years.
He tells BayToday these attempts at regulating the requests "will blow up in their faces. People will just see it as a move to more secrecy and an attempted deterrent to filing FOIs."
In North Bay, the City Clerk's office handles FOI requests and the council motion is intended to highlight the volume of requests from repeat individuals and the misconduct of some of those filing:
"The threshold to establish frivolous and/or vexatious requests is unreasonably high and allows for harassment of staff and members of municipal councils, and unreasonably affects the operations of the municipality."
The motion also states MFIPPA's shortcomings affect the City's staff and its day-to-day business practices.
MFIPPA "fails to recognize how multiple requests from an individual, shortage of staff resources or the expense of producing a record due to its size, number or physical location does not allow for time extensions to deliver requests and unreasonably affects the operations of the municipality."
Furthermore, since the name of the person who filed the FOI request is not permitted to be disclosed to anyone other than the person processing the access request, the motion states "this anonymity is used by requesters to abuse the MFIPPA process and does not align with the spirit of openness and transparency embraced by municipalities."
North Bay Hydro sleuth and frequent municipal government critic Rennick was directed by CAO David Euler to file FOI requests instead of contacting City of North Bay staff for information.
"In general, staff will no longer be responding to your emails," Euler wrote in a January 2020 email to Rennick. "Please follow the FOI request procedure and we will respond accordingly as required under the regulations."
"I'm asking the tough questions, questions they don't want to answer because they don't want anybody to know. So they think by making it more difficult I'll get tired of doing it," Rennick said at the time.
He also noted at $5 per request and $25 per appeal, the personal cost to him had grown as he's filed or received documents on a dozen matters, some of them pre-dating the direction from the CAO to file FOIs.
"What I used to do before is I would ask whoever a question and they wouldn't answer or wouldn't give me a straight answer," said Rennick. "I'm just going to send an FOI and they'll have to deal with it within 30 days."
Meanwhile, Rennick has said this year’s first-place standing in the Canadian Association of Journalists Code of Silence awards is "proof that if you work hard enough at something you can become the best."
The Association of Municipal Managers, Clerks and Treasurers of Ontario (AMCTO) is also advocating for changes to MFIPPA, Deputy Mayor Tanya Vrebosch noted.
According to a presentation given during a recent AMCTO forum entitled "Outdated Legislations Affect Every Municipality: Modernizing Access to Information & Privacy Legislation," MFIPPA legislation "is not one-size-fits-all — access and privacy laws play a central role in government and protecting the privacy rights of individuals. MFIPPA strains municipal resources while providing the requester an affordable research resource for media, personal agendas and/or litigation."
Vrebosch seconded the motion and noted the COVID-19 pandemic has seen some loosening of regulations for FOIs, allowing for documents to be shared securely online, instead of standard paper-based delivery. Whether that practice continues beyond the pandemic is uncertain, she added.
The relatively low cost of $5 per request plus photocopying fees of $0.20 per page and $7.50 for every 15 minutes spent compiling the documents is not a deterrent to frivolous requests, said Vrebosch.
Two of the eight recommendations (see the entire motion here) refer to interactions between the public and staff necessitated by the FOI process:
- That the threshold for frivolous and/or vexatious actions be reviewed, and take into consideration the community and available resources in which it is applied.
- That the threshold for frivolous and/or vexatious also consider the anonymity of requesters, their abusive nature and language in requests to ensure protection from harassment as provided for in the Occupational Health and Safety Act.
Rennick says while MFIPPA "was meant to provide a structured method for ordinary citizens to gain access to records that were previously impossible to obtain if the municipality was inclined to deny access, it also provided municipalities with a means to deny access to those records the release of which would be detrimental to its operation or to others. The Act contains at least ten sections dealing with exemptions ranging from economic interests, relations with third parties, other governments and personal privacy."
He maintains these exemptions have been used against him in his dealings with North Bay Hydro and the purchase of Espanola Hydro, saying "The City of North Bay and North Bay Hydro have purloined the Act to ignore any requests made to them."
Coun. Scott Roberson was the lone dissenting voice although he acknowledged the need for the legislation to be updated.
"The request to lower the standard for frivolous and vexatious requests is going to send the wrong message to the public," he said, adding it could be seen as an attempt "to stifle the freedom of information," despite his belief that is not the intent of the motion.
"When our staff gets a request, they have to go through 1,200 records, they have to read through them and analyze them. They have to redact all personal information." Vrebosch explained, saying the 30-day time frame places pressure on the resources of the municipality.
"It's not that we don't want to be transparent and open," added Vrebosch.
With files from Jeff Turl