Jak's View of Vancouver v.3

In the middle of July last year I filed what I thought was a fairly simple FOI request with the City of Vancouver.  Last November, I wrote about the unpleasantness that followed. Today — seven months after that last report, and almost 12 months since the original request — my FOI Request has still not been dealt with, even though the process is supposed to take just 30 days from beginning to end.

My request is currently being investigated by the Office of the Information and Privacy Commissioner for BC, so I guess it will be resolved at some point.

I bring this up again because this morning the Commissioner issued a devastating report on Vancouver City’s handling of FOIs in general. It found:

• possible deletions of emails (similar to the triple delete policies of the Clark regime in Victoria);
• missing documentation;
• failure to meet legislated deadlines;
• unjustified
• failure to provide reasons for non-responsiveness;
• unjustified fees required;
• communications with requesters were “unhelpful” in “tone”.

The body of the Report gives examples of egregious errors and attitudes at CoV. The report concludes that “[b]uilding and maintaining open and constructive communication with applicants would help the City improve compliance with its legislated duty to assist. This report points to a need for City executive to lead a cultural shift that changes the dynamic with access applicants.”

We can but hope.

For many months I have been trying to get some information from City of Vancouver through an FOI request. They have stymied me and delayed me at every turn,  Finally, yesterday, I wrote an official complaint to the Commission of the Freedom of Information and Privacy Act

“I wish to lodge an official complaint about the handing an FOI request by the City of Vancouver FOI Office.

On 14^th July 2015, I filed an FOI request to foi@Vancouver.ca.  On July 15^th 2015, I received an email signed by Cobi Falconer, FOI Case Manager, “acknowledging” my request, assigning number 2015-189, and stating they “are required to respond by August 26, 2015.”

On July 24^th, I received an email from Cobi Falconer to which was attached an estimate of $510.00, and a demand that 50% (or $255.00) be paid before work could begin.  The demand quoted section 75 of the Act as the basis for their ability to charge a fee.  They further say: “Although the Act imposes time limits on our response to your request, the time that elapses as we await for the deposit will not be used to calculate our response time.”

Later on the same day, I emailed Cobi Falconer stating that “I hereby apply under 76.5 (b) for a waiving of all fees due to my inability to pay.” I sent them details of my income and why i shoukd qualify.

On July 27^th I received an email from Cobi Falconer denying my appeal of the fee: “Due to the complexity of the question as well as the time to research and retrieve a potentially large amount of records, we are unable to waive the fee under 76.5 (b).”

COMPLAINT #1:  That the City of Vancouver subverted the clear spirit of section 75b which is to ensure that access is not limited by inability to pay.

 

Later on July 27^th I sent an email to Cobi Falconer expressing my disappointment with their decision and reserving my right to appeal.  At the same time I asked them to explore ways in which the request could be narrowed to reduce the cost.  Ms. Falconer replied on July 29^th that it was “difficult” for them to narrow my request.   On July 31 I received an email from Cobi Falconer with a “gentle reminder” that the FOI office was not working on my request until “we a) receive further clarification to narrow the request or b) receive a 50% fee deposit.”

On September 15, I was finally in a position to pay the deposit.  I traveled to City Hall in person and paid my cheque for $255.00 to the City Clerk’s office.  I received a receipt and an acknowledgment that my FOI request was now restarted.   On September 16, my cheque was cashed.

At that point the City had 23 working days to fulfil the request; seven working days from July 15 to July 23 having already elapsed before they advised me of the need for a deposit, thus stopping the clock.

By September 26 I had still not had a response date confirmed.  Therefore I sent an email to Cobi Falconer as follows: “Can you please confirm the fulfilment date for this FOI which was restarted upon payment on 15^th September.”  On September 28 I received an email from Cobi Falconer “acknowledging your request of September 28” and starting a new FOI request, numbered 2015-290, using the exact same wording as in 2015-189, and giving a response date of November 10”.

I responded immediately with an email stating: “Just to confirm that I have a receipt of payment dated 14^th September and the cheque was cashed on the 15^th September. That is the date from which the request needs to be dated, not 28^th September. I look forward to receiving confirmation of the correct response date .”

I followed this up with a telephone call with Cobi Falconer where I discovered their claim that, although City Clerk had accepted payment on September 14, the FOI Office did not become aware of the payment until I emailed on September 26^th. On September 28 I received an email from Cobi Falconer which stated:

“While we understand your point of view, the City has opened a new FOI request as of today, (2015-290), because this is the date the FOI Office received notice the fee deposit was paid. Furthermore, we have accepted the cheque as applicable to the new file even though the fee deposit invoice was issued for a closed, abandoned FOI request, (2015-189); closed because you did not pay the fee deposit within the allotted 30 days.  While we understand an error in processing was made by the department accounts’ receivable clerk, we do not have an adaptive statutory mechanism which would allow for accommodation of the intervening time between the receipt of the cheque and the FOI Office’s notification of payment. “

On that same day, I emailed Cobi Falconer asking her to tell me the regulation where the thirty day payment period is defined.  No response ever received.

Complaint #2:  Nowhere in FOIPPA nor in Vancouver By-law 7364 is there mention of paying the fee within an “allotted thirty days”. In neither of the emails from CoV FOI Office on July 27 and July 31 was this thirty day time limit mentioned.  I ask that this time period be considered arbitrary and therefore discriminatory. 

Complaint #3:  Their office makes “a mistake” by “losing” my payment and yet I am the one who has to suffer by waiting longer, while they gain time by their “mistake”. Moreover they have the confounded cheek to suggest they are being the good guys by transferring my payment from the old FOI to the new one.  I ask that the original FOI 189 be reinstated and that the City of Vancouver FOI Office be sanctioned for their failure to meet statutory disclosure dates.

On September 29 I wrote a long email detailing my disagreements with their decision of September 28.  No response has been received.  Later that days I received an email from Barbara Van Fraassen simply confirming that my FOI Request entered the queue on September 28 and “we will do our best” to deliver by November 10.

I responded later that day, pointing out that my emails of 28 and 29 September  asking for regulatory details of her decisions had not been answered.

Complaint #4: That the City of Vancouver FOI Office must explain the statutory and regulatory justification for their actions and decisions.

On November 9, I wrote an email to the FOI Office asking the best time to collect the material on the following day.  In response I received a letter confirming that the FOI Office had located the responsive records.  However, they say, the records “contain information that may affect the business interests of a third party.”  The third party was given until December 8 to reply. The City then had, they said, until December 22 to decide what to do.

Complaint #5:  That the time periods suggested are, once again, arbitrary and not contained in either the Act or the By Law. Given the extended history of this FOI – which began in July and is now headed for Christmas – I ask that the City be required to shorten these time periods significantly, especially the City’s decision time.

 

In general, I would argue that the City of Vancouver FOI Office has done everything in its power to slow down the process of this request which, they are well aware, is time sensitive. Their decisions and decision-making processes are anything but transparent and they stack the rules to their own advantage.  This is diametrically opposed to the Mayor’s stated desire to bring openness and transparency to City Hall, sentiments he has repeated just this month even as your Office begins an audit of CoV FOI procedures.  I look forward to your intervention in this matter.”