ABSTRACT
Over the last three years I have made three FOIP (Freedom of Information and Protection of Privacy) requests in total, one each year, and in each case, apart from the $25 initial fee, there were no additional fees. Therefore, on submitting a recent FOIP request related to notices of motion, I was surprised and disappointed to learn that there has been a change of policy whereby fees will now be charged.
On March 12, 2024 an email, “Charging of Fees for FOIP Requests“, was sent to the Town Council advising them of the change in policy regarding the charge of fees for FOIP requests and asking if they were satisfied with the change, which inevitably will discourage residents from filing FOIP requests to access information.
On March 14, 2024, I received a semblance of a reply to my email from Councillor Fedeyko, which she sent to the Council as well as to the CAO, Mike Derricott, and Ms. Jaylene Knight, Director, Legislative & Administrative Services, saying, “I can’t seem to find the updated policy and costs pertaining to this. Can someone please send?”
On March 26, 2024, I sent an email to Council, as well as to the CAO Mike Derricott and Ms. Jaylene Knight, pointing out that “Two weeks have passed and still no response from Council with respect to my query”. As well, Councillor Fedeyko was asked if she had received a reply to her query?
I waited another week until April 2, 2024, and, not surprisingly, after three weeks, I continued to experience a wall of silence from the Town Council, including no reply from Councillor Fedeyko if she had received a reply to her query. One expects that Administration did respond to her query, supposedly justifying their actions, but I was presumably dropped from the conversation.
Disappointingly and frustratingly, it has been an established pattern by this Council to simply ignore queries this resident sends on to them. I consider such disrespectful treatment of a resident as tantamount to passive aggressive behaviour. But just as they choose to ignore violations of aspects of their Procedural Bylaw, they have no qualms in violating their Council Code of Conduct the establishment of which is to be “consistent with the principles of transparent and accountable government”. Ignoring a resident, essentially thumbing your nose at a resident, is hardly consistent with transparency and accountability! However, enforcement, according to the Council Code of Conduct through a Complaint Process as described in Sections 17-19, resides solely in the hands of the council members themselves. As a result, there is no accountability and they can choose to thumb their noses at a resident who raises concern as to their conduct. That’s why I made a presentation as a delegation to Town Council on March 20, 2023 asking that the code of conduct bylaw be amended to allow the public to make a complaint given that I had clearly demonstrated that you couldn’t rely upon the councillors themselves to make sure that the code of conduct was followed.
Such a disrespectful Town Council is not one which this community should tolerate.
As well, as explained in the FULL BLOG report, I have concerns, in general, regarding the fairness as to how the town manages the FOIP (Freedom of Information and Protection of Privacy) requests it receives from residents.
FULL BLOG
Over the last three years I have made three FOIP (Freedom of Information and Protection of Privacy) requests in total, one each year, and in each case, apart from the $25 initial fee, there were no additional fees. Therefore, on submitting a recent FOIP request related to notices of motion, I was surprised and disappointed to learn that there has been a change of policy whereby fees will now be charged.
On March 12, 2024 an email, “Charging of Fees for FOIP Requests“, was sent to Town Council advising them of the change in policy regarding the charge of fees for FOIP requests and asking if they were satisfied with the change, which inevitably will discourage residents from filing FOIP requests to access information. (As explained below, under “FOIP Process”, I have concerns and grievances, in general, regarding the fairness as to how the town manages the FOIP requests.)
On March 14, 2024, I received a semblance of a reply to my email from Councillor Fedeyko, which she sent to the Council as well as to the CAO, Mike Derricott, and Ms. Jaylene Knight, Director, Legislative & Administrative Services, saying, “I can’t seem to find the updated policy and costs pertaining to this. Can someone please send?”
On March 26, 2024, I sent an email to Council as well as to CAO Mike Derricott and Ms. Jaylene Knight pointing out that “Two weeks have passed and still no response from Council with respect to my query”, and identifying such stonewalling as “essentially passive aggressive behaviour, which I have come to expect from this Council”. As well, Councillor Fedeyko was asked if she had received a reply to her query?
I waited another week until April 2, 2024, and, not surprisingly, continued to experience a wall of silence from the Town Council, including no reply from Councillor Fedeyko if she had received a reply to her query. One expects that Administration did respond to her query, supposedly justifying their actions, but I was presumably dropped from the conversation.
Disappointingly and frustratingly, it has been an established pattern by this Council to simply ignore queries this resident sends on to them. I consider such disrespectful treatment of a resident as tantamount to passive aggressive behaviour. But just as they choose to ignore violations of aspects of their Procedural Bylaw, as described, here, here, here, here, and here, they have no qualms in violating their Council Code of Conduct the establishment of which which is to be “consistent with the principles of transparent and accountable government”. Ignoring a resident, essentially thumbing your nose at a resident, is hardly consistent with transparency and accountability! Section 8 (Respectful Interactions with Council Members, Staff, the Public and Others) of the Council Code of Conduct specifies that “Members (councillors) shall treat one another, employees of the Municipality and members of the public (emphasis added) with courtesy, dignity and respect”. However, enforcement, according to the Council Code of Conduct through a Complaint Process as described in Sections 17-19, resides solely in the hands of the council members themselves. As a result, there is no accountability and they can choose to thumb their noses at a resident who raises concern as to their conduct. That’s why I made a presentation as a delegation to Town Council on March 20, 2023 asking that the code of conduct bylaw be amended to allow the public to make a complaint given that I had clearly demonstrated that you couldn’t rely upon the councillors themselves to make sure that the code of conduct was followed.
Such a disrespectful town council is not one which this community should tolerate.
FOIP PROCESS
The FOIP request was initiated on February 8, 2024, asking for:
“All records related to conversations related to notices of motion for the period from November 27, 2023 to January 30, 2024, and, in particular records related to conversations between Councillor Fedeyko and Administration with respect to her Whistleblower Program & Policy notice of motion that was presented at the December 11, 2023 Regular Council Meeting.”
Two weeks later, on February 23, 2024, I received an email back from the town’s Records Department advising that a preliminary assessment indicated that the search may produce a large volume of records, such that further costs “may be charged per the FOIP Act”. As well, I was also told that “within the current scope of your request, we will be required to reach out to all staff and Council to release any communications, including social media, texts and emails on personal devices, relating to your request to us and to track all responses”.
As a result, I reduced the scope of my search to include only the 3-week time period from November 27, 2023 to December 19, 2023, and to narrow the request to any conversations from Council members, by text and emails on personal devices, and that would include any conversations from them to each other and to administration.
Despite the reduction in the scope of the search, nearly two weeks later on March 7, 2024 I was surprised to receive a Fee Estimate Letter from the FOIP Head, Ms. Jaylene Knight, advising that to complete such a search would entail an additional fee of $236.25!
This request for additional fees was quite a radical departure from my prior experience with FOIPs with the town, where, for example, the time range for a records search was 6 1/2 months (requested July 14, 2023) and 7 months (requested February 8, 2022) and the retrieved records were 340 and 808 pages, respectively. In neither of these cases was I charged additional fees.
On March 7, 2024, I called the Records & Information Management Team Lead to express my displeasure. I was astounded to learn that the search according to the revised truncated search parameters would generate 3,048 documents related to notice of motions for a relatively short 3-week period! Why was there so much conversation related to notices of motion? I was told that a change in policy to charge a fee for FOIP requests was prompted by their apparently experiencing a high demand for FOIP requests. So, clearly the introduction of fees is intended to cope with the demand by discouraging residents to file FOIP requests which also shields the town from accountability and transparency. I wondered why this was so and why other steps were not taken such as improving the search routines or hiring more staff to provide this service.
On March 8, 2024 the Records Office came back to advise me that they had “done a preliminary review of (my) file and (were) able to reduce the results to 461 pages, removing many of the duplicate copies”, which will thereby “reduce the time spent to apply redactions and subsequently we will be able to reduce that part of the fee estimate by $47.25”. I was told that that included the removal of about 1,000 pages of a survey that had no relevance to my search request! However, surprisingly, that substantially lower page count only reduced the fee estimate by $47.25 to $189. Despite failing to understand how that revised estimate made sense, I decided to pay the initial 50% payment of $94.50 so as to get on with the search as by then a whole month had been lost through correspondence with the Records Office since my initial search request on February 7, 2024. According to a FOIP Bulletin for Fee Estimates, “It is important for the public body to issue the fee estimate early in the processing of the request. If excessive time is taken to prepare the fee estimate, the public body may find it difficult to process the request within the time limit”. In my case, a whole month was burned up by two two-week-delayed emails from Administration.
On March 12, 2024 an email, “Charging of Fees for FOIP Requests“, was sent to Town Council advising them of the change in policy regarding the charge of fees and asking if they were satisfied with the change, which inevitably will discourage residents from filing FOIP requests to access information.
With respect to the town deciding to charge fees or adding a 30-day extension to complete the FOIP request, one is advised that this is in accord with the Freedom of Information and Protection of Privacy Act. That is true, thus section 93(1) of the Act, states that “The head of a public body may require an applicant to pay to the public body fees for services as provided for in the regulations”. As well, according to section 14(10 of the Act, “The head of a public body may extend the time for responding to a request for up to 30 days”. However, note in both cases the word “may”, that is, the head of a public body is not required to do so.
Further direction is provided in the Freedom of Information and Protection of Privacy Regulation, under section 10 (Fees), 11 (Fees for non-personal information),13 (Estimate of fees) and 14 (Payment of fees). According to 11(4), “In addition to the initial fee ($25), fees in accordance with Schedule 2 may be charged if the amount of the fees, as estimated by the public body to which the request has been made, exceeds $150″ and according to 11(5), “Where the amount estimated exceeds $150, the total amount is to be charged”. According to Schedule 2, the maximum amounts that can be charged to applicants for searching for, locating and retrieving a record is $6.75 per quarter hour or $27 per hour.
According to the Freedom of Information Statistics posted at the town’s web site, as of March 27, 2024 there were 9 FOIP requests to date, with one having “Access Refused”, two being abandoned, one being no record, three being completed, and two, including mine, being “in progress”. Of those 9, only mine in 2024 had an additional assessed.
On March 15, 2024, I pointed out to the Records Office that while I had been told that it was decided to institute fees because of a FOIP heavy demand, I saw little evidence of such in the record of FOIP requests as of February 28, 2024, and wondered, “Why am I starting to understand that I should not expect fairness from the town?”
An issue in all of this is that there is no way to determine if the fee estimates or time extensions are fair and reasonable. You will be told that everything that they are doing is in accord with the FOIP Act and Regulations (as discussed above), and you just have to take their word for the decisions they make. If you do not like it, you are told that you always can make a written request to the Information and Privacy Commissioner to review this matter, a long, tedious process, if you want a quick resolution to your concern. Such delay is not much value if you want to address an issue at hand in a timely manner. One expects the Administration to soon introduce a revised, updated Procedural Bylaw. One wonders if this delay will mean that the information gained from the FOIP request will not be available in time to speak to the revised Procedural Bylaw.