Muir on getting school board closing information - exhausting. But he did eventually get it.

By Tom Muir

May 1st, 2017

BURLINGTON, ON

Tom Muir, an Aldershot resident who does not have children in any schools, wanted to know why parents in the city of Burlington were being told that two of the city’s seven high schools should be closed. His attempt to get at the real reason behind this decision boggles the mind. Red tape galore – a long but not very pretty story.

Part 4 of a four part series:  Another Chapter in This Saga

Because the response to my Freedom of Inforamtion (FOI) request to the Halton District School Board got tied up in the mail, my failure to receive a response to an identically worded FOI request to the Ministry of Education prompted me to contact them. I found the same problem that a Ministry response was in the mail to my home.

I then asked for and received a response by email, and got it April 11.
The Ministry replied that;

“upon review of the records, it has been noted that your request may affect the interests of a third party”
“The third party has been notified that a request has been made for the records, and has been given the opportunity to make representation concerning the disclosure of the records.”
“A decision on whether the records will be disclosed will be made by April 30, 2017 in accordance with subsection 28(4) of the Act.”

At this message, the identity of the third party remained anonymous.

It was obviously concerning because this long delay, with the opportunity for the third party to appeal a decision to release at the April 30 date, meant that the FOI documents from the Ministry might not be released until after the PARC process was essentially over and would be of no use.

This statement and finding begged me to ask numerous questions. For example,

– I don’t know how such an FOI request as mine, involving entirely public business, by public institutions, could involve the interests of a third party other that the HDSB and the Ministry of Education, and employees of said institutions.

– Please tell me how this could be, and what evidence is there that my request may affect the interests of a third party?

– And why are you withholding all of the record?

– I know of some particular parts of the record that have been disclosed by the HDSB, so tell me how this works?

– How could anyone have personal interest in a public process involving only public institutions and public records, have personal interests and information the disclosure of which might constitute an unjustified invasion of personal privacy?

– It’s all public business, conducted in the public domain, so there is no personal privacy to be invaded, unjustified or not.
Subsequent correspondence with the Ministry included;

– On second thought to my message below, it occurred to me – is the third party considered by you to be the Halton District School Board?

– There are only 3 parties to this FOI request – I (1),sent the FOI to the Ministry (2), and ask about their interaction with HDSB (3), without which the basis for the FOI request has no object to search.

– If it is, then this is a most ridiculous idea, and it fits with my suggestion that the end result of this failure to disclose any of the record is to delay beyond the timeline of the public process for which the FOI is meant to inform about.

– The record involves HDSB in some way so this fits with all the record being withheld.

– It is also ridiculous to think that disclosure would constitute an invasion of privacy for HDSB, which is not a person, and staff who are not private persons in their responsible employment with HDSB.

In response to this, the Ministry stated on April 12;

– The information responsive to your request originated from, and was created by, the Halton District School Board.

– In cases like this one, section 28 of the Freedom of Information and Protection of Privacy Act (the Act) makes clear that if there is reason to believe the responsive record may contain information referred to in section 17 [Third Party Information] of the Act, we are to give written notice to the entity or person to whom the information relates.

– As you will see in the portion of legislation below, section 17 lists harms that an affected party would need to prove relevant to prevent the release of specified information. Third party notice is important, especially when we require clarity as to whether the information shared by another institution, business or person was supplied in confidence to the Ministry.

Here is our update –

– Following our third party notice to the board (affected party) and our advisory letter to you (the requester), the board confirmed that they have no concerns with the release of the records.

– My staff are attempting to reach the board contact and advise them that we will release the records prior to the end of the third party period. This is not a usual occurrence, but given their green light, we will proceed. I understand you are under a time constraint of your own so, with your permission, we can send you the records via e-mail when they are ready for a mail-out.

Since all this Ministry revelation was going on at the same time as my interactions with HDSB it is easily imagined that the upset was doubly disturbing and running on.

My reading of this is that all the information in the FOI response came from the HDSB. This was disturbing as it sounds like the Ministry didn’t provide any of its own records, despite my knowing of several documents in the HDSB response to their FOI that are Ministry documents.

This makes it appear that HDSB did basically all of the Ministry response to the FOI. And since the scoping of the FOI request was identical for both HDSB and Ministry FOI requests, it would be obvious to the HDSB that they are coming from the same person.

Further, according to the Ministry, despite the HDSB indicating they had no concerns, the groundless and purposeless delay till April 30 was kept in place, and the HDSB would have known about this, and knowing the identical text of the FOI request, would have a highly likely knowledge of who it was that the FOI response pertained to. And yet, the Board said nothing and let the time delay stay in place.

Add all this together – Board and Ministry issues and delays – and let me tell you, that your so called “unnecessarily abrupt” email from me becomes both necessary and appropriate.

So, on the same date, April 13, the Ministry got a equally “abrupt” email challenging what had been done and essentially “demanding” their FOI response that very same day as I asked the Board to provide theirs.

Although I did not get my demand, in contrast with the Board’s stone-wall and continued power driven evasive response, this is what I received;

Good morning Tom,

My office’s decision to issue a third party notice, which is a time extension, is permitted under the Act.
My office is preparing a response that is the totality of the records responsive to your request. We cannot create records for an access request; only provide records that exist in our custody and control. The records existed in our Ministry at the time we received your request.

Despite the April 30th deadline, we intend to get the records to you next week.

Conclusion
So there you have it, my promised story about how this email you find so “unnecessarily abrupt”, as to be so offensive to you, that you continue to play the Board’s power trump card to dictate conditions, a bully tactic that I have no countervailing means to respond with.

So you got something like what you give.

In conclusion, I will say that I did not opt out of conversation with your Superintendent of Business, rather she opted out of a conversation with me about what the conversation needed to consist of in order to meet the standards of public institutional transparency and accountability, which are of course, the basis of trust.
I never said I didn’t want to consider a conversation. I still want the information and clarifications I asked for.

Now – what was in the documents Muir worked so hard at getting?  That comes next.

Part 1 of a 4 part series.

Part 2 of a 4 part series

Part 3 of a 4 part series