ABSTRACT
As discussed in a previous blog post, “Total Chaos and Inconsistency in the Town’s (Mis)Handling Notices of Motion“, as part of that confusion, Council, under the mayor’s direction, normally proceeds to a discussion and vote on notices of motion, which is at odds with Section 7.2 (Notices of Motion) of the town’s current Procedural Bylaw 19/2019, according to which there should be no discussion nor vote on a notice of motion. At the December 11, 2023 council meeting, backed up by support from the Administration that improper procedure was suspended simply because Councillor Fedeyko had requested that there should be no discussion of her Whistleblower Policy notice of motion. Because Ms. Stacey Loe, jumped in to support Councillor Fedeyko’s request, one suspects that Councillor Fedeyko had worked out such an arrangement in advance with Administration. In fact, on querying Councillor Fedeyko, I was told that she had spoken to Ms. Jaylene Knight, Director, Legislative & Administrative Services, who had advised Councillor Fedeyko it was her decision as to how her notice of motion was to be addressed. To further confirm that such a prior arrangement, a further example of arbitrariness in dealing with notices of motions, had been made with Ms. Knight, a FOIP request was made on February 8, 2024.
After a somewhat complicated route, I eventually received the report for my FOIP request on April 9, 2024. The report was disappointing in many respects and Ms. Knight was advised of issues I had with the report in an email sent to her on April 11, 2024 and copied to the Town Council, Ms. Angela Hall, Records & Information Management Team Lead, Ms. Stacey Loe, Executive Director, Corporate Services, and CAO, Mike Derricott. Disappointingly, I encountered a change in policy whereby the town has decided to charge a fee for FOIP requests, a policy change that no doubt creates a disincentive for citizens to make such requests and, thereby, shield the town from accountability and transparency. In three previous FOIP requests I had made, retrieving 186 to 808 pages, where the only cost was the initial fee of $25. In this case, I had to fork out $94.25 plus my initial fee of $25 in an attempt to retrieve the information that I was seeking, which yielded only 44 pages. Four issues raised in my April 11, 2024 email, to Ms. Knight, related to the final report that was received, included:
1. Questionable delay in its release,
2. The scope of the records search, as described by (Ms. Knight) in the covering letter, is not as discussed and requested,
3. The cost is outrageous and out-of-line, and
4. Critical information sought is missing.
The bottom line, in my view, was that the way I was treated with respect to this FOIP request was shoddy and unacceptable, most likely motivated by my pressing Ms. Knight on the failure of the town to comply with aspects of its Procedural Bylaw and Code of Conduct. As I said in a March 15, 2024 email to Ms. Hall, “Why am I starting to understand that I should not expect fairness from the town?”
FULL BLOG
According to a report, “Fedeyko introduces whistleblower motion at Cochrane Council“, by the Cochrane Eagle, “Coun. Fedeyko decided she wanted to postpone discussion on her notice of motion to the next regular council meeting in January.” Indeed, when Councillor Fedeyko brought forward her notice of motion related to a whistleblower policy on December 11, 2023 (see video starting at 2:41:42 minutes), she announced, “before anybody pulls out any sort of pieces of paper to do big speeches, I am not looking to debate or actually discuss this notice of motion tonight. It will come back at our first meeting in January”
At that point Ms. Stacey Loe, Executive Director, Corporate Services, quickly jumped in to advise Council that, as per Councillor Fedeyko’s request, the motion was to be “postponed to January, then all discussion and debate should be retained until then”. Not surprisingly, Mayor Genung was taken aback by this, acknowledging it as a “deviation from what we’re used to”, namely, a deviation from the way that he had improperly handled notices of motions in the past, generally by inviting council to discuss and vote on a notice of motion. Asking for further clarification from Ms. Loe, she explained that because Councillor Fedeyko had asked not to have her motion discussed or debated that evening, “so it should not be”, and that discussion should be deferred to January as per Councillor Fedeyko’s request. With that explanation, Mayor Genung, who seems unable to act without Administration’s guidance, then moved on with the agenda.
While Councillor Fedeyko had indeed asked for no discussion or debate with respect to her notice of motion, her request of such is irrelevant and unnecessary since as per section 7.2 of the existing Procedural Bylaw 19/2019, there is to be no discussion or debate to be held on a notice of motion, unless that requirement is waived through a two-thirds vote by Council as per 7.2(a)(ii) of the bylaw. Any other councillor could have chosen to call for such a vote to bring the notice of motion to the floor for debate and vote on that day through a two-thirds vote whether Councillor Fedeyko was in favour of such or not. It was not a “decision” to be made by the author of a notice of motion! As per section 7.2 (Notices of Motion) of the Procedural Bylaw 19/2019, notices of motion are not to be subject to debate or discussion, period, as explained in a previous blog post.
With Ms. Loe promptly stepping in to affirm Councillor Fedeko’s wishes, it seemed apparent that such an arrangement, an arrangement nowhere to be found in section 7.2 (Notices of Motion) of the Procedural Bylaw 19/2019 and another example of chaos and inconsistency in the town’s handling or rather mishandling of notices on motion, had likely been cooked up in advance between Councillor Fedeyko and Administration. I decided to use the FOIP process to confirm that understanding. However, as described below, unlike from past experience, I encountered a change in policy whereby the town has decided to charge a fee for FOIP requests, a policy change that no doubt creates a disincentive for citizens to make such requests and, thereby, shield the town from accountability and transparency. In comparison with previous FOIP requests I had made, where the only cost was the initial fee of $25. In this case, I had to fork out $94.25 plus my initial fee of $25 in order to retrieve the information I wanted.
After a somewhat complicated route (see FOIP Process below, also discussed in a previous blog post), I eventually received the report for my FOIP request on April 9, 2024. The report was disappointing in many respects and Ms. Knight was advised of issues I had with the report in an email sent to her on April 11, 2024 and copied to the Town council, Ms. Angela Hall, Records & Information Management Team Lead, Ms. Stacey Loe, Executive Director, Corporate Services, and CAO, Mike Derricott. Four issues raised in my April 11, 2024 email, to Ms. Knight, related to the final report that was received, included:
1. Questionable delay in its release,
2. The scope of the records search, as described by (Ms. Knight) in the covering letter, is not as discussed and requested,
3. The cost is outrageous and out-of-line, and
4. Critical information sought is missing.
To help explain item 2., I also sent along a chronological record of emails exchanged with town records office .
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 of November 27, 2023 to December 19, 2023, and to include 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 this change in policy to charge a fee was required because of the large volume of FOIPs that needed to be dealt with. 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. 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.
On March 8, 2024 the Records Office came back to advise me that they had “done a preliminary review of (my) file and have been 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”. Despite failing to understand how an estimate of $236.35 based upon supposed 3,048 pages was only reduced by $47.25 to $189 when the page count was reduced to 461 pages, 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.
To make matters worse, subsequent to making my payment, I was advised that while “normally, the Town of Cochrane responds to a request for information within 30 days after receiving the request”, in this case, as allowed by the Freedom of Information and Protection of Privacy Act, an extension of 30 days was being applied because they claimed that, “The volume of information involved cannot be processed within the usual 30-day limit”. 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.
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. From past experience, if any of them reply, I expect that at least three of them, namely, Mayor Genung and councillors Flowers and Reed, would be satisfied and, in fact, supportive of such a change. Their failure to reply to my email provided another example of their passive aggressive behaviour.