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Questions continue to swirl around depot land purchase

IPC orders city to search for further documents related to availability of nearby property

Oshawa resident Jeff Davis has appealed to the Information and Privacy Commissioner (IPC) for help in his search for further information surrounding the controversial purchase of land in 2013 for the City of Oshawa’s new works depot at 199 Wentworth Street East. (Photo by Joel Wittnebel).

By Joel Wittnebel/The Oshawa Express

The City of Oshawa has once again been ordered to look a little closer for documents pertaining to the purchase of 199 Wentworth Street East for its new works depot and the possibility that a cheaper property nearby may have been available at the time.

In an order released by the Information and Privacy Commissioner (IPC), the city has been told they must hunt for further information, following a search related to a Freedom of Information (FOI) request that was deemed insufficient.

That request, made by Oshawa resident Jeff Davis, is in regards to communications between city staff and the owners of the building located at 1001 Ritson Road South, previously the home of General Printers and now the office of the International Brotherhood of Electrical Workers.

An initial response from the city to Davis’s FOI claimed it would cost over $11,000 to complete his request. Davis appealed this claim to the IPC and narrowed the scope of the search. A second response from the city came back with a $115 fee and an estimate that 628 pages of documents corresponded to the request.

However, when the final decision came down, the city only claimed to have found 68 pages.

It was for that reason that Davis once again appealed to the IPC for help, and they’ve taken his side, noting that the city failed to address the wide discrepancy in the final number of pages available and must look for more.

The main indicator being that the earliest bit of correspondence provided to Davis begins with a draft offer for a site on Ritson Road property. The city purchased two acres of the parcel, which is now home to the city’s new salt storage facility.

This city fell into this same pitfall while dealing with an FOI request for communications between the late Nancy Diamond and George Rust-D’Eye, the municipal lawyer eventually brought in to conduct an investigation in 2013 into the much maligned depot purchase.

That request was also appealed to the IPC due to the fact that the earliest bit of correspondence found by the city, was an empty email to Diamond, attached to which was Rust-D’Eye’s resume.

“I agree that it is reasonable to conclude, when examining this record that there was likely earlier communication before a draft offer was made,” the current IPC report reads. “While it may be possible that such a record does not exist, the city failed to address this issue when they were given the opportunity.”

According to Andrew Brouwer, the city clerk, the initial estimates for responsive documents are simply that, estimates, and it sometimes results in more or less information being found.

“During the initial phase of a request…staff in areas that might have responsive records are asked to prepare an estimate of the total time that it will take to search for records and the total number of pages of records that are anticipated,” he says. “The individuals tasked with preparing these estimates are those who are familiar with the business conducted by the area in which they work and the records that they generate.

Brouwer says there are a number of factors that could result in a discrepancy between the initial estimate and the final amount of documents produced, including casting a too wide of a net, or upon review by clerk’s staff, documents are deemed to actually not respond to the original request, and records being exempt due to laws under the Municipal Freedom of Information and Privacy Act. In other instances, it’s simple overestimation.

“This most often occurs where relevant records are maintained in long-term retention awaiting destruction under the city’s records retention schedule,” Brouwer states.

The city’s records management system has been in the midst of an ongoing review for nearly five years. Initially planned for completion in 2015, the review remains incomplete.

“Where the request is overly complex…or broad…as is this case with (this request) it becomes more difficult to accurately forecast the number of pages that may be provided to Clerks and ultimately to the requester,” Brouwer explains.

However, Davis notes that this is not the first time the city has failed to uphold the basic requirements under the freedom of information legislation.

“Repeated and consistent failures of the city to fulfill the minimum requirements of the MFIPPA raise serious questions as to the integrity of not only our elected municipal representatives, but also senior management that are hired by and entrusted by council to work on behalf of citizens and taxpayers,” Davis says. “The excessive time and use of legal services to defend the city’s failure or refusal to meet bare minimum legislative requirements should concern citizens as the City of Oshawa projects an ‘above the law’ attitude and culture of protecting not only their secret dealings, but those instrumental in arranging, approving and possibly profiting from those dealings.”

The original IPC order, released in May, has now resulted in the discovery of further information, but only in the form of a single page document.