City Clerks apologize for lack of transparency around depot FOIs

By Joel Wittnebel/The Oshawa Express

The City of Oshawa’s clerks department has come clean about certain issues that have contributed to the lack of transparency and the non-release of documents pertaining to the city’s controversial purchase of lands for its Consolidated Operations Depot in 2013.

In a statement released on July 16, the City Clerks Office notes that while they work independently of city council under direction from the city clerk, they admitted that things have not been operating as they should when it came to the Freedom of Information process.

“City staff acknowledges our lack of transparency in responding to Freedom of Information requests for records related to the purchase of the Consolidated Operations Depot (COD). City staff extends an apology to the community and subsequently has reviewed and updated our practices and processes to support our commitment to accountability and transparency,” the statement reads.

With that said, clerks will now be releasing all documents related to the purchase of land at 199 Wentworth Street East for the COD by Aug. 23, including confidential attachments to the controversial auditor general’s report that claimed the city overpaid by as much as $1.5 million for the land and triggered the hiring of a municipal investigator to analyze the claims.

That investigation, completed by George Rust-D’Eye, looked into the land purchase and accusations from then auditor general Ron Foster that the former city manager Bob Duignan had threatened the independence of his office and misled council. Rust-D’Eye’s final report found no wrongdoing on behalf of the city manager, and city council subsequently voted to close the office of the auditor general.

Since that time, numerous FOIs have been filed from residents in the community to gain further information about the land purchase, including requests for emails from councillors, staff members, and requests for copies of the final auditor general’s report, which has never been released in full to this date.

One particular group of transparency advocates, which includes residents Jeff Davis, Rob Vella, and former mayoral candidate Lou DeVuono, have appealed several of their FOI requests to the Information and Privacy Commissioner. In several cases, the IPC has sided with the residents and ordered the city to look closer for further information. One particular case resulted in the IPC labelling the city’s attempts to not disclose information as a “collateral attack or abuse of process.”

Most recently, this group discovered a discrepancy in the city’s claims around the existence of information provided to Rust-D’Eye as part of his investigation.

When the city hired Rust-D’Eye to conduct his investigation, he was given a computer at city hall complete with an F Drive that contained the information and reports that would be relevant to his investigation.

In 2017, the group filed an FOI for the drive itself. However, the city claimed the drive had been deleted.

The group appealed this decision to the IPC, who determined that the city hadn’t looked hard enough for the F Drive, or the files which may have been contained on said drive, and told them to go back and look further.

Following the IPC’s order, the city came back with two affidavits, legal forms that are sworn to be true by an oath, that the F Drive could not be found.

However, following a subsequent FOI by the group, it was determined that a back-up of the F Drive had been created prior to its deletion.

This discrepancy, along with further questions related to the purchase were forwarded to the Durham Regional Police who are now undertaking a fraud investigation.

In its recently released statement, the clerks department clarified that while the information had been backed up onto external media, it was incorporated back into the city’s general records holding and therefore “staff is unable to determine which records were stored on the F: drive as all records were copied together onto the City’s corporate file server.”

Among the changes being made as a result, clerks note they are implementing “new best practices” in regards to the disclosure of city records, and that staff are reviewing and auditing its processes for handling electronic records once an employee leaves the city.

For Mayor John Henry, he says that he’s pleased with the clerk’s decision.

“I’m happy that we’ve gotten to where we’ve gotten to,” he says. “When the clerk decided to release that stuff and I saw what was going out I was very happy they realized the need for the public to know is now going to happen….now making all the documents public will give the opportunity for the public to be totally aware of what went on.”

In the past, council has been criticized for its unwillingness to release information pertaining to the purchase as multiple residents have appeared before council to request the release of the auditor general’s report in full.

In fact, council has done as such in the past, as confidential city manager reports relating to reasons for making the depot purchase were made public amid the controversy back in 2013.

With that said, Henry doesn’t know if such a decision from the current council could have accelerated the process in this case.

“I’m not sure if it would have moved it up that much, it may have,” he says. “Could we have moved it up a bit, yes. Some documents still would have had to travel through the process to make sure they were okay to release, but in the end, I think you’ll be very happy with what the end result will be, you’ll see that in August.”