More On WeACT's FOI Request

I am very shocked.

With all of the issues on the other side of the river with respect to text messages and disclosure of documents, I would have thought that this City would be extremely sensitive about the release of documentation to its citizens and would bend over backwards to provide as much as possible as quickly and as cheaply as possible. After all, isn't that the purpose of the Municipal Freedom of Information Act and the "compelling public interest" statutory override of exemptions.

Wrong!

I am really upset. I thought I held the Guinness World Records title for Windsor FOI Applications. I have been cheated. I demand a recount.

Remember this, part of my June, 2006 Municipal Freedom of Information request:

• "To: CITY OF WINDSOR, OFFICE OF THE MAYOR, WINDSOR TUNNEL COMMISSION
  
  1) All records dated between November 1, 2002 and the current date concerning any plans or proposals to operate, manage, own, sell, transfer, exchange, lease, or otherwise dispose of all or part of the Detroit-Windsor Tunnel including but not limited to any records with
   the Government of Canada,
   Province of Ontario
   the Government of the United States
   the State of Michigan
   City of Detroit,
   the Mayor of Detroit , any member of his Administration
   Council of Detroit
   any agency, Department or Ministry of each of the preceding
   Detroit Councillors
   any administrative or elected officials in Detroit
   the Bi-national Partnership,
   Detroit River International Crossing Project members and consultants
   OMERS and any of its subsidiaries or affiliates including but not limited to Borealis Capital, DRTP
   Macquarie Bank and any of its subsidiaries or affiliates including but not limited Macquarie Canadian Infrastructure Management Limited
   Detroit and Canada Tunnel Corporation.

It was part one of my seven part request for documents. They only found 57,729 pages of records for mine and only wanted a 10 month extension of time. My charge was a bargain $101,089.00 it seems. The interesting part for me was that at the time of my request, the number of records in the Mayor's Office was 30, that is right, 30! Moreover, it was clear that the Windsor Tunnel Commission was never contacted at all.

Apparently, WeACT's application beat mine. Granted that there was more action on the Tunnel deal after my date but seriously, Schnurr's numbers for his request are unbelievable: 128,209 pages, 500 working day extension or about 24 months, $354,650.00 cost. The WTC was contacted too now.

This time around it seems the Mayor has a few more records---37,603 pages of which it will take 650.25 hours to search and process. For Legal Counsel, it is 7042.19 hours for 84,506 pages. Interestingly, the Mayor can do about 58 pages per hour while Legal Counsel can only do 12.

I cannot understand the time periods set out. As an example, 650 hours for the Mayor. Given Eddie's photographic memory and his ability to pull out documents from his files to harangue Councillors at Council meetings as appropriate to shut them up as we have seen, what is being said is absolutely astounding to me.

Mr. Sutts is a respected legal practitioner. His firm handles huge class-action cases and large and complex commercial and litigation matters. They must have a very sophisticated filing system. 7000 plus hours seems like a lot of hours.

Here's a different way of approaching the matter. Mr. Sutts said that he has been working on this file for about three years. Many law firms require 2000 hours of billable hours per lawyer per year. If Mr. Sutts alone worked on this file full time for three years, his billable hours should be around the 6000 hours mark. Naturally there must be several lawyers involved in this file, not just Mr. Sutts but then again, all of these lawyers are not working on the file full time either.

Given the amount of the fees disclosed to date, $1.2 million (and not all of that amount is for legal fees but let's forget about that) and dividing it by say, $400 per hour, that means that there has been 3000 hours spent so far on this file.

Someone please explain to me why it takes over 7000 hours to search and process documents in these circumstances. I am confused.

I know, I know I have not included the City's Legal Department work. It should be included as well. But since this matter is so complex and has been handed to outside counsel, I would doubt that they have very much involvement in the file at all.

Perhaps I'm missing the point but all the numbers just don't make sense to me.

The big sticking point seems to be how big WeACT's request is. So let's fisk it! Here is what WeACT requested and my comments:

"1. Access to the Audit Report prepared by former city auditor Mike Dunbar with respect to the 400 City Hall Square building. [ONE DOCUMENT. That should not take too long to find and prepare since the City's Audit Committee has dealt fully with it already]

2. Any or all appraisal reports, valuations prepared by any party with respect to the tunnel or any part of it from September 2005 until the present. [We know the City had one and Detroit had one. So We have TWO MORE DOCUMENTS.]

3. Any or all records sent to Mayor Kwame Kilpatrick, Mayor of Detroit, and to members of the Mayor’s office and to Council President Ken Cockrel Jr. from the City of Windsor, inclusive of any or all City of Windsor departments and the Windsor Mayor’s office as well as all outside cousel and consultants, as it pertains to what is known as the Windsor-Detroit Tunnel Deal from January 1, 2005 until the present and request continued access from this date forward. [It could be a lot of documents or could be a few. No one knows because the City did not provide any kind of a breakdown. I had that experience as well. Of course it will take another month if Schnurr asks for breakdown for the City to do that calculation. How hard would it be to find those documents? Since it is an active file, probably the amount of time it takes to walk to the appropriate file cabinet and open the drawer or to do a search electronically on one's computer.]

4. The application made to Infrastructure Ontario regarding an infrastructure loan as it pertains to the Detroit-Windsor Tunnel. [ONE DOCUMENT]

5. Any or all records received from Infrastructure Ontario by the City of Windsor and/or the Windsor Tunnel Corporation or the new Tunnel corporation including records to outside counsel and consultants. [See the comments in #3 above. I would hardly believe that the documentation is tremendously extensive since it is one loan application]

6. All records of correspondence to and from any or all members of Council, city administrators and/or the Mayor and/or the Office of the Mayor to any or all Ministry’s of the Government of Ontario, Cabinet Ministers or members of Parliament; as they pertain to the Detroit-Windsor Tunnel from January 1, 2005 until the present. [As above]

7. An itemized list of expenditures, including but not limited to travel costs assumed by any administrator, councillor, employee of the City of Windsor as well as an itemized breakdown of legal and consulting expenditures as it pertains to the Windsor-Detroit Tunnel Deal from January 1, 2005 to the present." [Again, the amount of the documentation is not known but hardly can be extensive since this is primarily expenditures and expense accounts. If they cannot be readily found by the Finance Department, then the Ministry has no alternative but to send in an audit team to examine the books and records of the City and to take over the operation of this City until a proper finance system is put in place. Of course, this should not be necessary because after all we've had an outside accounting firm checking over the City's financial records haven't we.]

I heard the City Clerk give her explanation on Melanie Deveau's show about all of the mandatory provisions of the Municipal Freedom of Information Act. I would have thought that, considering that the Mayor has told us that this is a Commercial transaction, there can be very few "personal" records in the files so the search and processing time would be minimal.

It was strange that she did not refer to the governing section of the Act:

• 4. (1) Every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless,
  (a) the record or the part of the record falls within one of the exemptions under sections 6 to 15; or
  (b) the head is of the opinion on reasonable grounds that the request for access is frivolous or vexatious.

No one has said that the Application of WeACT is frivolous or vexatious so we can forget about that.

Almost all of those exemptions do not use the word "shall" which is mandatory but say "may" which is discretionary.

Even more interestingly, she did not refer to section 16 at all that provides considerable assistance:

• "Exemptions not to apply
  16. An exemption from disclosure of a record under sections 7, 9, 10, 11, 13 and 14 does not apply if a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption. R.S.O. 1990, c. M.56, s. 16.

This section is an override section that allows the City to provide the documentation even if there is an exemption. It goes without saying that there is a compelling public interest in the release of records.

Perhaps if the City Clerk rereads the Act and agrees with me as to what the Act provides then a quick resolution with Mr. Schnurr would be possible based on the information that I have just presented. Moreover, rather than photocopying everything, Mr. Schnurr could go through the documents and only photocopy the relevant pages or, even better, scan then into a computer to save paper.

I am surprised that Cliff Sutts' name has not been used to justify the use of the magic words of "solicitor-client privilege" to hide all the documentation. I don't think that the Mayor would dare allow the City to do that this time around. He IS a lawyer after all and knows that the privilege belongs to the client and not to the lawyer and that the client can waive privilege. Eddie has already done that with respect to the files with respect the dealings with the Detroit Mayor around the time when he came to Windsor so it is no big deal.

Can we come back to reality now. City Hall knows the game. They played it with Schnurr before when it took about a year and a half for him to get the Spitfires agreement. It is no wonder that the fight was so hard to prevent that document from being released.

Is it the same reason this time around?

It does not matter whether Schnurr gets the documents released or not in the end. It will take years for that to happen before a final decision is reached. By then we'll have a new Mayor and Council and the Tunnel deal, if it is to be done, would have been completed a long time before.

It's pretty simple. The Freedom of Information requests are nothing more than a hindrance and do nothing for openness and transparency.

So what is the solution? A Ministry investigation? Please... we already had a white-wash audit. The Ministry spokesperson was quoted in the Star as saying:

• "The ministry views municipalities as a separate form of government and at the end of the day accountability comes at the ballot box," said Tim Ryall, municipal adviser with the ministry of municipal Affairs and housing. "

Of course, his comment is an incorrect view of what the Ministry's role is and is a brushoff. Someone ought to give him a copy of the Municipal Act and the Municipal Affairs Act to study and understand. But he did give us the answer for Windsor and he really did put the responsibility where it properly lies if only our Council had guts:

• "The group is expressing its concern and council should take it under consideration."

He is correct. Let's see how this plays out. Councillors have no choice but to arrive at a decision now that will satisfy WeACT and the citizens of Windsor respecting the immediate disclosure of relevant documents ASAP and at no cost and with no "solicitor-client" silliness. Nothing else is satisfactory!