After taking a second look at the MFIPPA document — Municipal Freedom of Information and Protection of Privacy Act — I feel about as ready as I can be to offer commentary with the attached proviso that in no way am I suggesting said commentary is an exhaustive and thorough exercise. I do, however, feel comfortable enough in concluding that the points and examples I bring forward are more or less translatable to the entire document, and thereby serve as an honest interpretation or representation of the Act as a whole.
Remember that lawyers fight about this stuff all the time, so if there’s disagreement around my interpretation, then fair game as far as I’m concerned.
I wasn’t really sure about my axis of approach. The Act is riddled with items that would keep those lawyers busily squawking at each other well into the night. In the end, I settled on an approach that centred upon several key words, terms, concepts, and intentions. So to begin, I’ll list those very things as a pre-report glossary of vocabulary, in no particular order, as their order is irrelevant to my argument.
Those items include:
| HEAD OF MUNICIPALITY | A PERSON’S NAME | FRIVOLOUS / VEXATIOUS |
| ECONOMIC AND OTHER INTERESTS | ABORIGINAL COMMUNITIES | DISCRETION |
HEAD OF MUNICIPALITY
There’s been a lot of talk at council around who the point person should be with respect to requests for information being made of the town. If a resident emails the mayor and cc’s the rest of the council, is that person expecting the mayor to be the point and the others to merely be notified? Or is the expectation that the entire council has been tasked with providing the information? At face value, one could assume the mayor to be the point person, with the others notified as a courtesy, or perhaps with a view to making the mayor aware that the request of information is also known now to the council at large, a sort of an accountability thing. But what if the content of that email breakdown was merely procedural, with the request being put to the entire council through the mayor. This legislative procedure is on display all through council gatherings where individuals direct their questions through the mayor to somebody else in the room. Sort of like the Speaker in the House of Commons.
In the Municipal Act, the Head of Council is designated as the mayor. But in MFIPPA, the head of the municipality is not expressly designated as the mayor, but rather some person chosen from council or board membership, in writing, to take on that position as the key intake person for information requests. Taken together, the two pieces of legislation say something that Mackenzie King would be proud of: The Head is the mayor, but not necessarily the mayor. Head of Council can be the Head of Municipality, but doesn’t necessarily have to be. So right off the bat, the two laws seemingly nullify one another. I’m not saying that’s intentional, but I am saying that it’s sloppy.
Then there’s the scenario where there is no head of Municipality, as per MFIPPA, where no one has been designated as the chief arbiter of all that the Act portends to provide guidance on. In that case, and by default, if there is no designated person, the responsibility falls on Council. (s3.1, s3.2, and s3.3(a)). So we go from an individual on one hand to a group by default if there is no individual so designated.
So far as I can see or determine, the Town of Renfrew does none of this. Perhaps this is part of what Councillor McDonald had in mind when he placed a motion before council tasking town staff to follow MFIPPA in its interactions with residents requesting information. And one of those things would be the designation of the Head of Municipality, which right now is de-facto the Clerk and the CAO-Acting in the absence of any council action, having arbitrarily granting themselves this mantle. This is council’s decision, not staff’s.
Councils decide. Staff implement and execute.
A PERSON’S NAME
From my reading of the legislation, a person’s name is not, per se, privileged information subject to privacy protocols unless their name is attached to other matters that are or if their name appears with other personal information, or if its publication may reveal other personal information about that same person. Also, correspondence initiated by that person toward the town is not protected unless by its nature it is explicitly private or confidential. Likewise, any return correspondence by the town in reply to the original correspondence is not protected unless it reveals an explicitly private or confidential aspect of that original communication.
In English that means the correspondence between the town and an individual, in any direction, is not covered unless it is explicitly deemed private and confidential. As to what the word “explicitly” refers to, or what form it takes, the Act is a little shallow on. Does this mean that a party to the communication, or both parties, have to declare the private and confidential nature? And who makes the call as to whether information crosses the line into private and confidential?
FRIVOLOUS AND VEXATIOUS
Staff have complained that searching for records is time consuming and takes away from the regular administration of town affairs and business. The CAO-Acting made a point one meeting that if a quarter of the population were to make such requests for information simultaneously, the administrative operation of the town would grind to a halt.
The number on the sign for Renfrew’s population is around 8,500. For the sake of argument, let’s just say that half of those are children under the age of 18, and that’s a really generous assumption. I make that distinction because I’m assuming that not a lot of children approach the town requesting information of any sort, especially the kind of information we’re talking about here. So, simply for the sake of argument, that would leave around 4,250 adults in the community.
Taking the 25% civic shutdown number offered by the CAO-Acting’s scenario, we’d need 1,062 simultaneous requests for information to be made to town administrative staff to trigger civic calamity across the board, where the business of the Town of Renfrew grinds to a halt because harried bureaucrats are running down information requests. Well my goodness, we wouldn’t ever want to see that.
To be completely honest, I have no idea how many requests for information staff receive at any time, or in any time frame. If they were to get a thousand a year I’d be surprised, actually really surprised, but as I said, I don’t know and probably couldn’t find out because it’s likely to be, you know, top secret. But in no universe do I ever see staff fielding over 1,500 requests for information all condensed into a short period time, much less simultaneously. Although once the 2025 tax bill goes out, that scenario could actually end up being more accurate than I imagine it to be.
Staff claims that much of the correspondence they receive borders on harassment, in that it contains little in the way of detailed questions, and rather takes the form of political manifesto or ideological preambles before asking the question. This I understand completely.
Some of this correspondence could be construed as “frivolous and vexatious,” meaning it’s just somebody ranting about something or someone intent on simply causing trouble. And yes, sadly, such people exist, and sadly again, exist in numbers that many would find shocking. I wouldn’t be surprised if I myself weren’t classified into this description, since they took my single request for information and arbitrarily labelled it as “political”, so therefore beyond the purview of staff to respond. I asked for leasing information at Ma-Te-Way. Not sure where the political aspect of that takes shape, but they authorized themselves to make that call, and tough luck if I don’t like it.
So that would make me frivolous and vexatious, I suppose. Well how about that? Little old loser me being all of that. Had no idea how frivolous and vexatious I was.
The legislation says that the designated Head of Municipality would make that call, but we don’t have one, so by default It falls to Council, but they’re totally unaware that it’s their hat to wear, cause nobody told them, probably because nobody knew to tell them. This can happen when admin types make their own rules on the fly, although they claim this to be industry-standard stuff.
So, in short, the Head of Municipality can deny an information request on these grounds, but must do so in writing, and articulate the reasons that lay behind the decision to label a request as frivolous and vexatious. Those words, frivolous and vexatious must be specifically used and declared before the reasons for their application are explained.
So we’re missing two key elements of this process: A Head of Municipality that’s aware that he/she/they are, in fact, Head of Municipality and the words “frivolous and vexatious” for information denial.
ECONOMIC OR OTHER INTERESTS
Information can be denied if its deemed to be potentially damaging to a company’s or individual’s economic well-being and other interests. Please name me a company or organization that wouldn’t cite this as their reason to cry foul at the potential release of information. So, If I were to get this leasing information, is there a company involved that couldn’t claim that their economic well-being was at risk of being potentially damaged somewhat by that information being in my hands? Like maybe if I saw something in there and reported on it, something that made somebody or some company potentially look bad aa a result. Could they put a stop to it by invoking this clause, and therefore keep that information privileged? Because, you know, maybe the revelation of the truth would reflect poorly on them, and maybe that might have some consequences of some sort?
Simply put, that’s all it would take to shut a request down.
ABORIGINAL COMMUNITIES
Information can be denied if it’s felt that it compromises any aspect of the relationship that exists between aboriginal communities and the federal and provincial governments.
My lease information request had its origins in my wanting to see the lease terms and conditions for the Bonnechere Algonquin First Nations group (BAFN) the has a substantial physical presence at Ma-Te-Way. The town piggy-backed with this group on a grant application that was aboriginal-specific in it’s nature, meaning that this money couldn’t possibly flow without some substantial form of aboriginal involvement. That grant application was successful. It was worth several million dollars.
I went to do a story on this group at Ma-Te-Way, but the place was closed on as mid-week afternoon. I went into Ma-Te-Way itself and ran into a staff member in what is now the branded lobby of a local construction company, which is way over-the-top small-town cheesy all by itself. I asked a random employee when a good time might be for me to come back and pursue that interview with that organization.
I understand that random staff approached in a branded lobby are not the official spokespeople of the town, but they are people who have eyes and ears and it was a casual request. They know more about what’s going on in a building than the people running the place do, just like the custodial staff and secretaries in schools. And, if I really have to point this out, I’m not exactly W-5 or The Fifth Estate.
I was told the place was often closed, and that staffer thought it might have actually been sub-let to another party. Now, I have no idea if that’s true or not, but given the whole thing with the grant, and given the indigenous nature of the grant, it did strike me as interesting that the indigenous place might not be participating in the new facility in the manner in which most people might expect. Again, not going to hold this staff person accountable for this kind of information, or observation, or mis-guided opinion, or whatever. But I did think that maybe I should should ask for clarification, and so I did, before the Clerk and CAO-Acting shut me down for being political.
That grant was a government grant, and would therefore have something to do with the relationship that exists between aboriginal groups and those two levels of government. That simple fact, according to MFIPPA, would be grounds to shut me down. So I won’t get to see that lease, or any other, unless I make a formal Freedom of Information request, another layer of defence they have at their disposal.
To be completely fair, I could access leasing information enclosed in the vaunted Third-Party Report delivered by consulting group WSCS consulting, but that’s another document that has its own flaws, and it’s a third-party document. I wanted a first-party account, for the purposes of complete accuracy, or something as complete or as accurate as they were willing to provide officially.
That Third Party Report will be the focus of another upcoming piece.
DISCRETION
So much of the decision-making in this legislation is discretionary in nature, meaning some entity or person has the power of discretion over any and all information requests. Yet we don’t even have a properly defined or properly functioning Head of Municipality as is defined by this train wreck of a piece of legislation. So staff arbitrarily take on that mantle at their convenience, not because they’re trying to fill in the gap, but just because they feel it’s their right to do so, which has the ring of professional arrogance. And if you challenge it, then you have to undergo an appeals process that just drags you through mud until you finally give up, which is the point. If there’s one thing they do well, it’s their willingness to play the long game to exhaust you. They do it because it works. And because we let them.
CONCLUSION
Making a motion compelling staff to follow MFIPPA guidelines when dealing with potential privacy issues is just cementing in place a system that’s deeply flawed, and doesn’t do anything to fix the bigger problem surrounding openness and transparency.
It would be akin to spinning one’s wheels, staring at your belly-button, or farting into a sweet summer breeze. All require some degree of action, but none of them really get you anywhere.
There are seven people in the entire world who could put a stop to this, but that would take some courage. And I don’t think all seven have that courage. Perhaps some may, but I don’t know about all of them. I guess it would take at least four.
Four people of courage. Four people willing top wrestle what’s theirs away from those who keep it for themselves and block others out. Or at least four people willing to take on the mantle of properly designating who the intake person ought to be, the official arbiter of openness and transparency.
And the facts on the ground scream that it’s actually four of them versus just two on the administration side. Maybe even only just one. It’s a fight they should be able to win. If it was my fight I feel I could win it without breaking a sweat.
Failing all this, maybe in a couple of years, voters can inject some courage into the place. And then another small piece of local government malfunction would be corrected. It’s an important thing, but small when held up against the other examples of governmental malfunction that even that Third Party talks about in their report. But all the little fixes can add up to a bigger fix when put together.
MFIPPA is a useless waste of time and intelligence. Appearing to do something but actually doing nothing. It’s not some tablet handed down by God or any other deity. It’s an exercise of complete human obfuscation, and in that sense, a political self-defence document handed down from political on-high. It does nothing to further the cause of openness and transparency.
As such, it ought not to be the rung to hang one’s hat on in an argument. It should not stand completely without challenge.
Again, my observations only.
NEWSMAGRENFREW 