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Further emails linked to depot saga could exist, IPC says

Privacy watchdog slams city for borderline "abuse of process" in arguing against search

The IPC has ordered the City of Oshawa to search its servers for further emails between investigator George Rust-D’Eye and the late Councillor Nancy Diamond. Rust-D’Eye was brought in to the city in 2013 to investigate claims made by the former auditor general relating to the purchase of 199 Wentworth Street East for the city’s new depot, pictured above.

By Joel Wittnebel/The Oshawa Express

The province’s privacy watchdog has given the City of Oshawa quite the slap on the wrist for what it is labelling a borderline “collateral attack or abuse of process” in trying to get off the hook from searching for further emails linked to the controversial hiring of an independent investigator in 2013.

The much maligned purchase of the city’s now operational works depot at 199 Wentworth Street East is well-known in city hall circles. More so is the explosive September 2013 meeting that saw plain-clothed police officers drag residents from the council chambers, during a meeting that eventually saw city council fire former auditor general Ron Foster and eliminate the role of auditor general altogether.

The main issue centres around the release of a report from Foster (AG-13-09) that detailed allegations, many of them against senior employees of Oshawa, in particular former city manager Bob Duignan, claiming their actions compromised the process of the acquisition of 199 Wentworth Street East for the new depot used to house city vehicles and many of the city’s operations staff.

The city brought in independent investigator and municipal lawyer George Rust-D’Eye to dig into the claims and their veracity.

However, the circumstances of his hiring have remained suspect after it became known that the late councillor Nancy Diamond had contacted Rust-D’Eye through her personal email account about the possibility of him being available for the role.

It’s these original emails that former Oshawa resident Rob Vella is looking for, a search that dates back to him filing a Freedom of Information request in 2013.

Following years of waiting and appeals, with the city claiming the emails were on Diamond’s personal account and therefore not available to him under municipal privacy legislation, Vella made a breakthrough last year when the Information and Privacy Commissioner (IPC) sided with him in a precedent-setting ruling that noted because Diamond was dealing with city business, it didn’t matter that it was via her personal email.

It was a big step, but one that was followed by disappointment.

A month after the ruling in January 2016, Vella was provided with the package he so desperately sought, but after opening it, it was clear that something was amiss.

What Vella received were two emails, the first sent from Rust-D’Eye at 10:58 a.m. on May 21, 2013. “George’s long bio” was the subject line, the body of the email is blank, but has a 20 page attachment which is Rust-D’Eye’s lengthy resume.

Something didn’t add up, and Vella once again appealed to the IPC for help.

Once again, the IPC has backed Vella, and this time, the order to search for the information came with a strong message for how the city has been arguing its case.

“In my view, the city’s approach to this issue engages at least one, if not more, of the legal principles aimed at bringing finality to litigation and avoiding attacks on prior decisions,” writes IPC adjudicator John Higgins in his report.

Throughout the process, the city attempted to argue that the initial decision to release the emails to Vella was incorrect, labelling it an “outlier”, despite the fact they never requested that the decision be reviewed through a judicial process.

With that aside, the city has since admitted that further emails between Diamond and Rust-D’Eye exist, but they were deleted quickly after they were sent, and therefore impossible to retrieve from any of Diamond’s personal accounts.

However, the two emails that Vella received note that they were forwarded to another email address under Diamond’s name, most likely her city email account, and for that reason, the IPC has ordered the city to check their own records for the missing emails.

“The fact that the first released email came from the councillor’s personal email account and was forwarded from her personal email to another unidentified email account in her name strongly suggests the possibility that the councillor did forward or copy the unrecovered emails to her city email account,” Higgins writes.

“In my opinion, it is possible that the unrecovered emails and other records may exist within the city’s electronic record holdings because the councillor may have forwarded them to her city email account. Unfortunately, we cannot ask her whether she did, and the only way to obtain a definitive answer is to look.”

It’s another small victory, and one that the city now has the next month to respond to.

“The City preserved Councillor Diamond’s email and system account in light of this ongoing appeal.  Staff will conduct a review of the account in an effort to identify any responsive records that may have been forwarded from her personal email account to her City account,” states city clerk Andrew Brouwer. “Any records identified by the search will be reviewed and assessed for potential release.

In light of the order, Brouwer says the city is making an effort to perhaps improve it systems moving forward.

“It’s not uncommon for the IPC to direct an institution to conduct a further search where there is a reasonable belief that additional records may exist,” he says. “I wouldn’t characterize this as an issue of insufficient resources, or mismanagement of City records, but rather a situation where the IPC is not satisfied that sufficient evidence has been submitted documenting the efforts taken by the City during the search phase.  In light of the recent findings, the City is doing a better job of recording the search efforts undertaken by staff such that the IPC is more fully informed about the nature of the search undertaken from the outset.”

Vella says the IPC taking his side did not surprise him.

“In those released emails it appears there are more than what Councillor Diamond released.”

With that said, he notes there is an element of frustration that the process to obtain the information has taken this long.

“In my opinion, the city’s legal department has stalled the process as much as possible and after over four years, the city has still not done a search on their servers and instead rely on the councillor to be completely honest,” he says.  “She has claimed through this entire process there were no emails, then there was one email, followed by there were two emails and finally there were four emails, but two were deleted shortly after being sent. One would think after hearing all these conflicting claims they would look into it more instead of accepting her at her word. The cities reputation is more important than that of one councillor.”

If found, Vella believes these emails could paint a grim picture of what really happened ahead of the hiring of Rust-D’Eye.

“I believe it will show the true scope of Mr. Rust-D’Eye’s investigation and that is to discredit not only AG-13-09, but also the author as well,” he says. “I also believe it could show others, staff, other councillors and the mayor, may have been involved in this.”

Despite the decision of the IPC, Vella says he finds it hard to be optimistic about the future prospects for the missing emails.

“This ruling, after all these years, I am afraid is simply another step in the process,” he says. “The city can either take it to a judicial review or they can issue a decision. I fully expect them to issue me an exorbitant estimate like they have done in the past. It has been over four years now and they have had too much time already to bury these emails where it will be expensive to rebuild their servers to be able to read them.”

In the past, the City of Oshawa has quoted residents, and The Oshawa Express, that it would cost over $11,000 to retrieve information from this 2013 time period due to the server system at city hall being changed and the framework no longer being in place.