IPC may order city to search further for Rust-D’Eye records

By Dave Flaherty/The Oshawa Express

An adjudicator from the office of the Information and Privacy Commissioner (IPC) may soon order the city to search further for more records related to a controversial land purchase.

Earlier this year, the city released nearly 7,000 pages of documents related to the 2013 purchase of 199 Wentworth Street East for a consolidated works depot.

Shortly after the purchase of the land, former city auditor general Ron Foster alleged Oshawa had overpaid for the property by up to $1.5 million and the independence of his office had been compromised.

The city later hired municipal investigator George Rust-D’Eye to review Foster’s report.

Ultimately, Rust-D’Eye stated he found no evidence to back up Foster’s claims.

A confrontation later broke out at the 2013 council meeting, which saw plain-clothed Durham police officers leading two men away in handcuffs from council chambers.

Foster’s position was eliminated by council soon after.

During his time with the city, Rust-D’Eye was given access to a computer drive and e-mail account.

A group of residents, including Jeff Davis, filed a Freedom of Information (FOI) request to have the computer drive released.

However, the city claimed the drive had been deleted after Rust-D’Eye’s role with the city ended.

Davis and the others appealed to the IPC, an arm’s length entity with a mandate to ensure that FOI law is followed appropriately.

The IPC then ordered the city to look again.

City staff then came back with two sworn affidavits stating the computer drive could not be found.

However, it was then determined it had indeed been backed up and copied onto the city’s corporate file server.

However, it was pointed out because the documents were incorporated into the city’s general records holding, staff were unable “to determine which records were stored on the F: drive as all records were copied together onto the city’s corporate file server.”

Shortly after the mass document release on March 29, Davis filed a reconsideration request to the IPC regarding a ruling the adjudicator was satisfied “the city cannot search for the F: drive because it no longer exists.”

Davis argued while the city states records from the drive were released, he was unable to interpret exactly which of the thousands of documents were originally placed on it.

In a decision released by the IPC, adjudicator Gillian Shaw reported on representations provided by both the city and Davis.

The city once again stated it is unable to identify which records on the corporate file server are from the computer drive.

“Given the actions of staff to integrate records into a single repository, it is impossible for staff at this point in time to distinguish records found on the F: drive and [Rust-D’Eye’s] email account from other records prepared or complied by the city as part of this investigation,” the city’s statement to Shaw reads.

The city also explained the back up of the computer drive “was likely deleted, by way of formatting action, on or shortly after October 1, 2013,” and that documentation of these types of “routine actions” is not maintained.

Davis counter argued there is no proof the drive back up was destroyed, and a further search may locate it.

He also submitted the records might be traceable on the corporate file server by date search.

Finally, Shaw said Davis alleged the city told Durham Regional Police it could replicate the computer drive for an investigation concerning fraud allegations in relation to the works depot purchase.

In that investigation, DRPS found no evidence to sustain a criminal investigation against the city.

In her ruling, Shaw stated there was a “fundamental defect” in her original adjudication process because the affidavits provided to her earlier led her to believe no back up of the computer drive had been made.

However, she ruled the city’s response to Davis’ reconsideration request proved a back up had indeed been made, a mix-up she believes could have been avoided.

“My misunderstanding regarding the existence of a backup could have been avoided had the city been more forthcoming and detailed in the affidavits it provided. It was only after the reconsideration request was filed that the city provided more detailed information,” Shaw wrote in her ruling.

As a result, Shaw ruled she intends to order the city to conduct a further search for records, and to provide affidavits regarding its efforts.

However, before making such an order, Davis will be allowed to provide input on what the further search should include, with the city having the opportunity to respond.