The tricky nature of the FOI Process; Muir's marathon in navigating it all. Part 2

backgrounder 100By Tom Muir

April 24th, 2017


Few people in Burlington could understand why the Board of Education staff decided that some of the city’s high schools had to be closed.  They also had difficulty grasping why the newest high school was at over 150% capacity while other high schools below the QEW had a total of 1800 empty seats in the high school classrooms.

Tom Muir decided to dig into the official record.  In part 1 of this four part series he sets out on a mission to find out how the Halton Board of Education managed build a new school that resulted in Burlington having more high school capacity than it needed which brought about the need to recommend that some schools in the southern part of the city be closed.

Part 2 of a four part series:

The Tricky Nature of the FOI Process:
In his lengthy communication with the people who have the task of providing information under a Freedom of Information (FOI) request Muir continues –

First, you get to decide what records you will provide to fulfill what you say is the scope of the FOI request. You can send what you want, and refuse further.

Second, you get to make assertions about what you want to say these records mean – your “interpretations”.
Third, if I have questions or disagreements about what you say things mean, or want clarifications, you ask me; May I pass along your email to the appropriate staff so we may thoroughly respond to your questions?”

Muir making a pointThen, to my abrupt surprise, this thorough response from staff apparently consists of a refusal to provide written responses – say you will only talk about it – and further, if I persist, tell me, and I quote; “Our offer to assist you in further interpreting those documents or clarifying their intent was made as a courtesy, and exists outside the timelines and parameters specified under the Act, as it goes beyond the scope of records responsive to your FOI request.”

Along with this declaration you restate a disingenuous assertion of one point, with no planning history or context – that Ministry funds paid the entire construction cost of Hayden.

You also state that the use of future proceeds of disposition (POD) was prohibited by the Ministry on August 31, 2011, however, there is no language in the record, Appendix 7, provided by you to support any notion of “prohibition”, or changes in the funding formula for Capital that would lead to the same result. I asked for clarification of this, but this was ignored and denied too.

Note:  Muir refers to a number of appendices: There were nine of them they are part of the response Muir received.

Only the assertion of the full Ministry funding was given, with no context of how this was rationalized provided. Even the text referred to in Appendices 7, 8 and 9 was not elaborated as support.

Appendix 7 contains no language of prohibition import, or even other cautions on the use of PODs, and this includes the page 4 you noted as pertinent to Burlington, and the records of Appendices 8 and 9.

These last Appendices are the approvals of the final Ministry funding as a top-up provision for additional costs for which future POD projections were deemed to be delayed, or uncertain in timing of receipt, to cover, thus possibly creating a cash flow risk according to the Ministry message. Each Appendix allowed the Hayden school to proceed without the use of projected future PODs, with the Ministry willing to provide additional funding. Appendix 8 provided $3M more, and Appendix 9 an additional $2.2M.

Appendix 9 notes that the top up funding is approved, “To allow the project to proceed to construction in partnership with the city and the library, … .” This partnership was and is a community collaboration program and policy of the Ministry and the provincial government.

There was no mention of any a prohibition of future PODs, or any mention that there were no realized PODs in the overall funding. Clearly, PODs remain a source of funding to the Board, whether realized and in cash reserves, or as possible future PODs held in surplus physical assets.

Make no mistake, if this PAR decides to close schools, these schools will become surplus assets that can be sold, thus providing a funding source from PODs.

In any case, and this is key, if schools are closed they become a definite and very big cost to Burlington, regardless of whether the Ministry paid the cash construction cost of Hayden when they did.

Having the PAR now, almost 6 years after the Ministry approval to fund the school, means that this surplus seats cost was just deferred in it’s reckoning, and, if schools are closed, then the idea that the Ministry paid the full cost of Hayden will be a Big Lie.

This point of the Ministry paying for construction of Hayden was not the object of my FOI, but it is what you used during the public and PARC meetings, and are continuing here, to try a red herring to evade, and divert attention from, my longstanding issue that the construction of Hayden is what created this mess of surplus seats, by the Board, with the knowledge of foresight, and resulted in this PAR, that may result in school closures to eliminate the surplus seats created.

Given this mess, and Board responsibility, this PAR should have been held back in 2008-2009 or so, when Hayden was planned. Instead, the board did just a boundary review.

In my FOI request, I explicitly asked for records pertaining to consideration of any OTG surplus pupil places that might or would be created in the overall HDSB of Burlington by the approval and construction of Hayden.
And at the same time you ignore anther point I raised for clarification, that is central to my FOI, and proof of my central issue above – that Hayden was planned and rationalized with a Ministry Growth School Application (FOI response Appendix 6) within the same Planning Area, SRA 100, as the other 6 schools in Burlington that are now the subject of the current PAR, and are threatened with closures.

This Appendix 6 clearly shows that the construction of Hayden, and the transfer of students to Hayden from several of the other schools, created surplus seats at these schools, declines in their utilization, and declines in the overall utilization of the schools in the planning area. These results are the mess we are in.
Specifically, this Appendix 6 shows Hayden was planned with a Ministry Application based on historical and projected enrollment for the planning are SRA 100, in which they included Hayden.

Appendices 1 to 6 show: (1), the Board’s intent to build what is now Hayden; (2), the inclusion in the LTAP; (3) terms set by the Ministry for funding approval, including part payment from Disposition of Surplus Assets, and Trustee resolution approving these terms; (4) funding sources for new schools including Hayden, including Disposition; (5),Trustee resolution approving the terms in (3); (6) Board submission of Growth School Application to Ministry.

SRA 101 as at 2015

SRA 101

SRA 100 as at 2015

SRA 100

This application reduced the 10 year projected average enrollment utilization at MM Robinson from 93.2% to 53.4%; at Nelson, from 108.7% to 95.6%; and at Bateman from 94% to 43.9%. Overall application SRA utilization declined from 88% to 74%.

It also reduced projected 2022 enrollment at MM Robinson from 1268 to 669; at Nelson from 1460 to 1311; and at Bateman from 1273 to 454. The overall transfer of students numbered 1567.

You totally ignored this data, my request for clarification as to when and how Hayden later turned up in a new SRA 101, and how is this inconsistency to be explained.

Instead, you emphasize the Ministry funding all the construction cost of Hayden, like that means there will be nothing for Burlington to pay in some other form, like closed schools. The Ministry decision to fund Hayden construction didn’t come until May – July 2011, but the closing of schools, pursuant to that, is here in our face right now.

Is this really what you mean when you say; May I pass along your email to the appropriate staff so we may thoroughly respond to your questions”?

Part 1 of a four part series.

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