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Deleted or not? Discrepancy found in city’s claims around depot investigation

Emails suggest errors in sworn statements

In 2013, two Oshawa residents were arrested and pulled from Oshawa council chambers following the delivery of a report from municipal investigator George Rust-D’Eye (top right), who was looking into the allegations made by former auditor general Ron Foster (top left) surrounding the purchase of 199 Wentworth Street East. Local residents have been seeking to gain further insight and details ever since.

By Joel Wittnebel/The Oshawa Express

A recent appeal to the Information and Privacy Commissioner by a group of Oshawa residents has uncovered a discrepancy in the city’s claims around the existence of information related to the maligned purchase of 199 Wentworth Street East for a new works depot.

In 2013, when the city purchased the property for its new Consolidated Operations Depot (COD), $5.9 million was shelled out to Durham College for the deal. However, the decision sparked a tidal wave of controversy stemming from an auditor general’s report that alleged the city overpaid for the property and accused the then city manager of influencing the process and threatening the independence of the auditor general’s office.

Following the claims made by Ron Foster, the auditor general at the time, the city hired investigator George Rust-D’Eye to look into the report created by Foster and its allegations.

What followed was one of the most explosive moments inside Oshawa council chambers. When the report was delivered to council in September 2013, Rust-D’Eye noted that he had found no evidence to back up the claims made by Foster and commended city staff for their work on purchasing the depot property.

Citizens in the gallery erupted with calls of a white-wash, and when a scuffle broke out, plain-clothed police officers sitting in the gallery led two men away in handcuffs.

Since that time, a group of Oshawa residents including Jeff Davis, Rob Vella, and former mayoral candidate Lou DeVuono have been pushing through the Freedom of Information process and appeals to the IPC in order to shed further light on the purchase and the hiring of Rust-D’Eye, which is also steeped in its own controversy.

Most recently, however, the efforts of the group highlighted a discrepancy in what the city has previously claimed surrounding the existence of information as it relates to the depot.

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, looking to see what type of information Rust-D’Eye was originally provided to conduct his review.

However, in response to the FOI, the city claimed the drive had been deleted and therefore could not be shared.

The group appealed this decision to the IPC, an arm’s length entity that has the goal of ensuring that the Freedom of Information law is being followed appropriately.

Following a review of their own, the IPC 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.

This also isn’t the first time the privacy watchdog has slapped the city on the wrist for not looking hard enough for information. This group of residents has been stymied in other instances as well with the IPC backing them up in cases relating to emails between the late Councillor Nancy Diamond and Rust-D’Eye, as well as in relation to communications between the city and a nearby landowner to 199 Wentworth, who may have been looking to sell their property around the time the city purchased the depot site.

Following the IPC’s order to look further for the drive, 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.

According to a follow-up report from the IPC, the affidavits are “brief” and come from the city’s IT manager Stephen Patterson and Jason McWilliam, the city’s manager of records and information systems.

According to Patterson’s affidavit, “the account, mailbox, and (F:) drive were terminated upon completion of (Rust-D’Eye’s) work for the City. There are no tapes which have a copy of his (F:) drive.”

The same was noted by McWilliam  who according to the IPC, noted that “the records provided to City Clerk’s Services by the Information Technology Services Department have been reviewed, and there is no way to determine which records were stored on [the investigator’s] drive or elsewhere on his City issued computer or drives.”

Following the sworn statements, the IPC acknowledged that there wasn’t much more they could do.

The same can not be said for the group of residents.

In response to word of the drive’s deletion, the group filed a subsequent FOI to obtain all communications related to the deletion of the drive.

The released information raises a few questions about the city’s previous sworn statement.

An email string starting in July of 2013 suggests that city staff were on top of the need to delete the F drive as quick as possible.

On July 2, network administrator Crystal Tragert asks former city clerk Sandra Kranc, “is Mr. Rust-D’Eye totally done at this time? Shall I blow his account away?”

Kranc responds, noting that Rust-D’Eye will more than likely be around until mid-August.

“Please do let me know if he leaves before then,” Tragert replies. “An open account is a security risk…this one in particular I would imagine!”

Fast forward through mid-August and the eventual explosive council meeting on Sept. 3, the clerk’s department is now officially looking to deal with the account and information provided to Rust-D’Eye.

“Crystal, please transfer all emails, documents, etc. on George Rust-D’Eye’s pc to Jason McWilliam or allow him to access it,” Kranc writes on Sept. 17.

Following that email, a “staff change checklist” document is drawn up officially removing access to the documents from Rust-D’Eye’s account and transferring the balance to McWilliam, the F drive and Outlook account are both checked off as being transferred. The access to both for McWilliam is later confirmed by Tragert.

Then, a few weeks later, McWilliam emails Tragert with an interesting statement.

“I have backed up the electronic content (email and F drive) to external media. You may proceed with whatever steps are necessary to terminate the account.”

In summary, the 39 pages of communications reveal that McWilliam had backed up the contents of the F drive prior to it being deleted by IT staff.

With that said, it raises the question as to why the city did not provide a copy of the backup when the group originally requested the files back in 2017, and why sworn affidavits would be drawn up avowing the F drive could not be shared.

The group has once again taken their findings to the IPC, who are now looking to the city for answers.

According to Davis, the IPC has turned to the city to answer some questions, including a clarification as to whether a backup of the F drive exists as per the statements made by McWilliam in the 2013 emails, and if it does, the IPC is asking the city to explain the sworn affidavits that claim the contrary.

As well, the IPC is asking if the backup was made, if it’s still available, and if not, when was it deleted.

“It’s unfathomable, in this day and age and with provincial legislation in place to ensure an accountable and transparent government at the municipal level, that the City of Oshawa continues to deny, deflect, delay, and now deceive the concerned citizens of the City of Oshawa and the provincial oversight authority of the Information and Privacy Commission for city records that ought to be available to the public,” Davis says. “The City of Oshawa has used every available means, including expensive city lawyers, unnecessary staff affidavits, procedural delays, omissions, and unacceptable exemption requests overruled by the IPC, to drag simple Freedom of Information requests into years of wasteful appeals.”

Moving forward, he has slim hopes for council to step in and make any of the information public.

“City staff operates under the guidance and direction of our Mayor and elected council, as mandated by the Municipal Act.  If these elected officials, seven of whom (plus deceased councillor Diamond) were on council in 2013 wished to show transparency and accountability…they would direct staff to abide by the intent of the MFIPPA and the procedures and authority of the IPC to efficiently and effectively provide requested documents pursuant to the applicable exemptions of the MFIPPA to concerned citizen requesters,” he says. “Instead, under council guidance, staff attempts to frustrate the process and the requester in an attempt to maintain secrecy over the decisions responsible for our highest mill rate in the GTHA and our largest debt burden among Region of Durham member municipalities.”

For Davis, he says the continued argument from the city begs the question of just what exactly they have to hide.

“By following the procedures of the IPC, our appeal files have turned up significant examples of conflicting evidence or representations provided by the City that continue to provide sufficient cause to doubt their responses or efforts to provide full and meaningful answers to simple requests,” he says. “Until the answers are complete, we have no faith in staff or council responses under the Mayor’s mandated responsibility to provide direction.  Who is behind hiding the truth at the City of Oshawa?  Who is being protected by keeping the citizens in the dark about the spending of our tax dollars?  How much is the city spending to keep the truth from us? Why?”

When asked for comment, McWilliam notes as the issue is before the IPC, it would be inappropriate for him to do so.

“We received notice of this request from the IPC earlier this week and have been asked for representations; however we have not at this time had an opportunity to respond,” McWilliam states in an emailed response. “At this point in time, it’s premature for me to comment given the ongoing adjudicative process.  I recognize that some members of the community have an interest in the purchase of the Depot and Mr. Rust-D’Eye’s subsequent investigation; however, I think we’re all well served by the IPC and should respect their adjudicative role and supporting processes.”

The IPC has given the city until April 27 to respond to their inquiries.