1 The City of Oshawa has broken a laudable trend – a trend of co-operation and compliance that the Office of the Ombudsman of Ontario has been accorded by government authorities for more than 30 years. Displeased with the Final Report we issued in response to a closed meeting complaint, representatives of the City of Oshawa have chosen confrontation over co-operation and compliance. They have done so by holding hostage a confidential document. The City of Oshawa is refusing to return a Preliminary Report that we lent it on the clear understanding that the Preliminary Report was not to be put in City files, or reproduced, made public, or retained. Those conditions imposed by us are in keeping with our practice. We are obliged by law to protect witness information pending the release of a final report, yet we also have to give the government authority a chance to respond before we issue an adverse report or recommendation. The confidentiality protocol we were relying on in this case allows us to balance those objectives.
2 The Mayor of Oshawa, His Worship John Gray, understood the confidentiality conditions before the Preliminary Report was provided to the City. In advance of sending the Report, our investigator advised him of those terms, and he made no objection. When the document was delivered, it was under a covering letter in which I listed the strings that were attached. The Preliminary Report was accepted without protest or qualification and City officials profited from it by urging that changes be made. We agreed with some of those suggestions and modified our Final Report. Still, some City officials disliked the final product. So they pirated our Preliminary Report. They have threatened to make it public, and will not return the document. Our demands for its return have been met by shifting, convenient and discreditable claims of legal impossibility. To add insult to injury, they have taunted us to take the litigation bait to resolve the impasse instead of meeting their obligations under the Ombudsman Act.
3 The first claim made by the city’s solicitor, Mr. David Potts, was that the City could be breaching the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) if they were to return the Preliminary Report. When we secured an opinion from the Information and Privacy Commissioner that this was not so, Mr. Potts changed his theory. He is now making the claim that returning the document would contravene the Municipal Act, 2001 document retention requirements, as well as the City’s own document retention bylaw. Those provisions had previously been mere sidebars in the discussion, but when Oshawa’s inflated MFIPPA bubble burst these became the arguments of refuge.
4 Oshawa’s claim that these enactments prevent the return of the Preliminary Report is nothing short of absurd. It requires acceptance that Municipal Act, 2001 retention obligations employ a broader concept of “document” than MFIPPA does. It requires disregarding Oshawa’s own agreement to return the Preliminary Report, given when they accepted it subject to the terms we imposed. And it requires acceptance of the untenable proposition that any document handed to and read or relied upon by a City official somehow changes its ownership and control, regardless of the arrangement under which it is supplied. Yet this desperate position is now the surrogate justification being offered for the City of Oshawa’s continued intransigence.
5 This shifting foundation for Oshawa’s breach of our conditions is not the only factor suggesting that the legal arguments it advances are simply instrumental rationalizations for refusing to comply. At one point Mr. Potts suggested that our confidentiality conditions were ineffective because we should have advised the Mayor of the conditions before sending the Preliminary Report. When we let him know we had in fact done so, the Mayor’s knowledge and acquiescence became irrelevant.
6 During our dealings with the City of Oshawa, we learned that the failure to return the document was not the only breached condition. The City also broke its agreement to keep the Preliminary Report in a file of its own so it remained the property of the Ombudsman and did not fall into City records. We discovered as well that the City made and circulated numerous copies, contrary to the clear conditions we had imposed. The City found those restrictions inconvenient, so it simply chose to ignore them. In doing so, City officials breached the implicit undertaking given by Mayor Gray when he accepted the documents knowing there were strings attached. Moreover, in blatantly disregarding the conditions because they did not like them, City officials have demonstrated either an obliviousness or rank indifference to the fact that the procedure we established for securing the confidentiality of Preliminary Reports is lawfully authorized under section 15(3) of the Ombudsman Act, and that there is a legal duty on governmental authorities to co-operate with my lawful requests or directions. None of this seems to matter to Oshawa.
7 When we attempted to use our authority to protect the integrity of our procedures by investigating the apparent breach by the City of Oshawa of its obligation to cooperate in our investigation, our jurisdiction to do so was questioned with half- baked arguments.
8 Given that doing nothing is no option, the City of Oshawa has now left us with two real choices. We can waste public resources and ignore our own ethos and raison d’etre of informal and efficient problem solving by taking up the City of Oshawa’s invitation to litigate this matter in Divisional Court where the outcome would be held up for months if not years at great expense to the taxpayers, or we can follow our calling by doing what we prefer to do – namely investigating, reporting and relying on moral suasion. We have chosen to do the latter, given that I can make the necessary findings on the record that exists. I do not have to go to court to force compliance in order to present this report.
9 This, then, is my report arising from our investigation of the apparent non-co- operation by the City of Oshawa. In it, I find that the City has intentionally failed to comply with lawful demands made during the course of an investigation, and that it has obstructed this investigation.
10 The conduct that led to these findings is deeply disturbing. The Office of the Ombudsman gives tremendous value to the people of Ontario, yet we are vulnerable to this kind of thing. It would quickly become impossible for us to function if government authorities were to play lawyer’s games and greet us with the kind of resistance we met in this case. This Office would become ineffective. We cannot permit that to happen.
11 What is particularly galling in this case is that the City of Oshawa chose to invite us in. Ordinarily municipalities fall outside my jurisdiction. The sole exception is for closed meeting complaints, and even then, municipalities can opt out of my jurisdiction by appointing their own investigators for these complaints. They can even set out the processes those investigators are to use. Yet, in order to profit from our cost-free service, the City of Oshawa had elected to attorn to our jurisdiction and accepted that the Ombudsman of Ontario would be its open- meeting watchdog. Now it is acting as though it wants a watchdog without teeth, one that gums his way around ineffectively and who can be ignored. The City cannot have it both ways. It cannot agree to give me authority to come in, but then choose to disregard the powers and procedures the Legislature gave my Office. If the City of Oshawa wants a toothless watchdog for its citizens, it should create one by bylaw. I have too much respect for this Office to stand by and watch the City invite us in, only to disrespect our essential procedures. It is to the discredit of some of its officials that this has happened.
12 This was an “own motion” investigation, conducted under the authority of section 14(2) of the Ombudsman Act. It arose out of events surrounding a “closed meeting” investigation conducted by my Office as a result of a complaint filed on June 11, 2008, alleging that the Development Services Committee of the City of Oshawa had improperly held a closed “special meeting” on May 22, 2008, which should have been held in open session. The investigation was conducted and, in keeping with our practice, a Preliminary Report was furnished to the City of Oshawa. It was furnished confidentially, on conditions that it was to be kept in its own file, that it not be copied or marked, and that it was to be returned. This investigation is into whether the City of Oshawa has contravened its obligations to co-operate with the Ombudsman in the way it dealt with that Preliminary Report. As for the closed meeting complaint, my Final Report on that investigation was issued to the City on March 24, 2009. Under the Municipal Act, 2001, the City is required to make that report public.
13 The Office of the Ombudsman has jurisdiction to investigate the apparent failure of governmental organizations or agents to co-operate in its investigations. In doing so, the Office of the Ombudsman is not acting inappropriately as a judge in its own cause. An Ombudsman is not a judge. As Ombudsman I can impose no sanctions. I report what I find so that others can take appropriate action, if persuaded to do so. To accept that I cannot identify, confirm and report non-co-operation that occurs during my investigations would require the Ombudsman to refer all allegations of non-co-operation to the police for potential prosecution under section 27 of the Ombudsman Act. This would result in needless escalation and defeat the informal, problem-solving ethos of the Ombudsman Act. To hold that I cannot investigate apparent non-co-operation during my investigations would be an absurd interpretation of the statute. I am therefore confident that the fact that the subject of an investigation affects the way others deal with my office does not denude me of jurisdiction.
14 This particular investigation is an “own motion” investigation. I did not receive an external complaint that the City of Oshawa did not co-operate in the closed meeting investigation that we conducted. I have undertaken this investigation on my own initiative. Again, it would be absurd to expect that I could protect my processes only where others complain. I have a responsibility to ensure that my investigations are effective and that the authority of this Office is respected. If I learn of apparent non-co-operation in my investigations, I am obliged to look into it and to make an appropriate report if that apparent non-co-operation proves to have occurred.
15 Section 14(2) of the Ombudsman Act grounds this jurisdiction. It gives me the authority to conduct “own motion” investigations into any “act done or omitted in the course of the administration of a governmental organization and affecting any person or body of persons in his, her or its personal capacity.” Ordinarily municipalities fall outside the jurisdiction of the Ombudsman Act and are exempt from this authority. Exceptionally, as a result of amendments to the Municipal Act, 2001 and the Ombudsman Act, some municipalities fall within the jurisdiction of the Ombudsman Act for the investigation of complaints about closed meetings. The City of Oshawa does because it chose not to appoint its own investigator for such complaints.
16 The remaining question under section 14 is whether a failure to co-operate in an Ombudsman investigation is an act or omission “affecting any person or body of persons in his, her or its personal capacity.” Of course it is. The failure to co- operate will compromise investigations, thereby affecting the personal interests of those who made the original complaint. In the case of closed meeting complaints, a failure to co-operate affects the body of persons that is the public, who are entitled to expect that the Ombudsman’s jurisdiction to investigate closed meeting allegations will be effective. In this case the alleged non-co-operation relates to the failure by City of Oshawa officials to respect conditions attached to the handling of a Preliminary Report. Those conditions are imposed to protect the statutory right to confidentiality of witnesses and informants. The failure to co-operate in securing the confidentiality of Preliminary Reports affects their personal interests. Indeed, an unaddressed failure to respect confidentiality requirements threatens the personal confidentiality interests of all complainants in all Ombudsman investigations for the precedent it sets. Section 14(2) of the Ombudsman Act gives jurisdiction for this investigation.
17 Alternatively, I have the authority to make findings about non-co-operation within the context of complaint-based investigations. The fact that the Final Report on the closed meeting case was sent to the City before this investigation was undertaken does not prevent me from now addressing the apparent non-co-operation of the City of Oshawa during that investigation. If the release of a final report in an investigation in which an apparent failure to co-operate occurred was to deprive me of jurisdiction to investigate that non-co-operation, final reports would have to be delayed until non-co-operation investigations were completed. This makes no sense.
18 In any event, my equitable jurisdiction permits me to reopen my investigations. The apparent failure of Oshawa to return the Preliminary Report was not discovered until the Final Report in the closed meeting investigation was forwarded to the City of Oshawa. We were remiss in not noticing this. Evidently, we should not have traded on the luxury of our positive experience with the Government of Ontario and other municipalities and taken compliance for granted. But what matters is substance, not timing. If I had to do so in order to ground my authority to investigate, I would choose to invoke my equitable jurisdiction to reopen the original investigation, for it is in the public interest to address the substance of what happened in preference to disclaiming jurisdiction formalistically because the apparent breach of a confidentiality measure was not discovered until after the Final Report was issued to the City.
19 Without question, I have the jurisdiction to undertake this investigation, and I feel I had no choice but to do so.
20 On June 11, 2008, our Office received a complaint alleging that the Development Services Committee of the City of Oshawa had improperly held a closed meeting on May 22, 2008. We learned during the course of that investigation that the City of Oshawa had not returned our Preliminary Report. Officials within my Office demanded its return. When the City refused, I decided to investigate whether this refusal amounted to non-co-operation in our closed meeting investigation. On March 31, 2009, out of an abundance of caution and to ensure fair notice, I wrote to Mayor Gray, advising him of my intention to investigate the apparent failure of the Corporation of the City of Oshawa to abide by the conditions under which the copy of my Preliminary Report was provided. That same day, Mr. Gareth Jones, Director of the Special Ombudsman Response Team, wrote to Mayor Gray requiring documentation and advising him that Mr. Ciaran Buggle of our Office had been appointed lead investigator. The investigative process that followed is inextricably intertwined with the overall narrative that follows. I will therefore say no more about it here.
21 Under the Ombudsman Act, we are obliged to treat as privileged all information received during an investigation. Specifically, Subsection 24(3) says:
100 Without question, when the MFIPPA mare that he had been riding was shot out from under him, Mr. Potts changed horses by jumping on the untenable retention bylaw pony that had been trotting behind in the shadow of MFIPPA, and then he denied that the MFIPPA mare had been his ride.
101 The second symptom of instrumental reasoning is the exchange that Mr. Potts had with Ms. Pettigrew on April 2 relating to the Ombudsman’s confidentiality conditions. When she was debating the City’s right to keep the documents with Mr. Potts, he said that we should have confirmed the confidentiality conditions with Mayor Gray before releasing the Preliminary Report. The obvious implication of the comment is that this would have mattered. And of course it should. How can the City claim it has a legal obligation to breach an undertaking made by the Mayor as a condition of receiving someone else’s document? When Mr. Potts learned that we had advised the Mayor before the Preliminary Report was sent, he dropped this line like a hot rock and began to argue MFIPPA again.
102 The third symptom that the City of Oshawa is scrambling for any legal argument it can find to defend its conduct is the discreditable jurisdictional claims it is making in opposition to our investigation. It seems to be firing every arrow it can pull from its quiver in an effort to avoid acknowledging that it simply breached its obligation to co-operate, but none of those arrows have points.
103 In the end, it does not matter whether the City of Oshawa in general or Mr. Potts in particular are simply making arguments of convenience. They are wrong. The MFIPPA arguments have been undercut by the opinion of the Information and Privacy Commissioner. Of course, those arguments never did have merit. It bears note that the records of a municipal ombudsman are statutorily exempt from the Municipal Freedom of Information and Protection of Privacy Act by subsection 223.15(3) of the Municipal Act, 2001. This is so even though they are municipal ombudsmen. This provision exists to ensure that the secrecy provision in subsection 223.15(1) can be protected. The Ombudsman of Ontario does not have a similar express MFIPPA exemption for a simple reason: This Office is not subject to MFIPPA. Clearly if the Legislature recognizes that documents used by a municipal ombudsman are MFIPPA-proof to protect privilege, documents used by the Ombudsman of Ontario are MFIPPA-proof to protect privilege. It is futile to argue in the face of this that a municipality is legally obliged to snatch from the provincial Ombudsman and hold, for the purpose of the Municipal Freedom of Information and Protection of Privacy Act, confidential MFIPPA-proof records that the Ombudsman has conditionally produced to a municipality in order to serve the Ombudsman’s investigation.
104 Given the obvious non-application of MFIPPA, Mr. Potts’ fallback position – that the document retention provisions of the Municipal Act, 2001 and the City of Oshawa’s own document retention bylaw made under the authority of that Act make the Preliminary Report lent to the City by the Ombudsman a record of the City of Oshawa – is simply unarguable. It is counterintuitive to suggest that the retention provisions of the Municipal Act, 2001 operate using a different concept of municipal records than MFIPPA does. It is apparent that the relevant provisions are meant to work together. The “Records” provisions of the Municipal Act, 2001 are sections 253 and 254. Section 253(1) says “Subject to the Municipal Freedom of Information and Protection of Privacy Act, any person may, at all reasonable times, inspect any records under the control of the clerk.” Section 254(1) therefore requires the municipality to “retain and preserve the records of the municipality … in a secure and accessible manner.” If records are not records within the meaning of MFIPPA, they are not caught by the Municipal Act, 2001 provisions.
105 Then there is this essential underlying point. The Preliminary Report was never given to the City to make its own. It was lent to the City. It was furnished only after its character as the property of the Ombudsman was made clear. It was delivered conditionally.
106 I am aware, as Mr. Potts claims, that the Preliminary Report was used by the City and its officials and then referenced in documents that are municipal documents, such as the Mayor’s response. But none of this can logically change the ownership of the Preliminary Report itself. To accept the position now being advanced by Mr. Potts is to agree that no-one can allow a municipal official to review one of their documents without that document becoming a municipal record, regardless of the conditions that may be attached to its loan, and regardless of the express or implied undertakings that may apply.
107 Because of the conditions attached to its loan – conditions that were agreed to – the Preliminary Report was never “under the control of the clerk.” It was held under the control of the conditions imposed on its delivery. The Preliminary Report is in no way a municipal record, and it is a contrived argument to suggest otherwise.
108 The City of Oshawa has not directed its personnel to participate in interviews during this investigation. Quite the contrary. It is saying we do not have jurisdiction. Nor has it responded to Mr. Jones’ demand for documents. It is evident that it has not co-operated in this misconduct investigation. It is using half- baked jurisdictional claims to avoid doing so. Those claims cannot be credited on their own merits, and they are discredited by the history of shifting legal positions offered in opposition to Oshawa’s obligation to return the Preliminary Report.
109 Two things make this sad story particularly offensive. The first is that my Office depends entirely upon moral suasion and co-operation to function. The citizens of this province receive tremendous value from the work that we do. We are efficient, inexpensive, and effective at solving real problems. It is disheartening to encounter such rank disrespect for this Office. Had I chosen to ignore it, it could have become contagious. I have therefore chosen to expose it to the sanitizing light of day in the hope and expectation that this Office will not again experience such intransigence.
110 The second thing that makes this episode deeply troubling is that the City of Oshawa did not have to accept my authority to investigate its closed meeting complaints. It chose to do so. It elected to attorn to my jurisdiction by deciding not to appoint its own internal investigator. When a municipality elects to use my Office’s services, it should have the professionalism to respect my processes. It should not try to take the contributions of my Office on its own terms. If it wants to control the processes of its closed meeting investigations, it should take advantage of the opportunity that the Municipal Act, 2001 provides to do so, rather than discredit and disrespect my Office. If it wants a toothless closed meeting investigator, it should design and appoint an investigator who fits its liking. If it calls on the Ontario Ombudsman, it should recognize the entire package.
111 The City of Oshawa has failed to co-operate in connection with the investigation into the Corporation of the City of Oshawa to abide by the conditions under which a copy of my Preliminary Report concerning the Development Services Committee Special Meeting of May 22, 2008 was provided to the City. It did so by disregarding conditions it had agreed to, to keep the Preliminary Report in its own file. It did so by disregarding the prohibition on making and circulating copies. And it continues to do so by refusing to return the Preliminary Report and the copies it made. This conduct is contrary to law, unreasonable and wrong.
112 The City of Oshawa has failed to co-operate in the investigation into whether the Corporation of the City of Oshawa failed to abide by the conditions under which a copy of my Preliminary Report concerning the Development Services Committee Special Meeting of May 22, 2008 was provided to the City. It did so by refusing to make city officials available for interview, and by not providing documents that we have demanded. This conduct is contrary to law, unreasonable and wrong.
113 Accordingly, I make the following recommendation and formal observation:
114 The City of Oshawa should return the Preliminary Report relating to the Investigation into the City of Oshawa Development Services Committee Special Meeting of May 22, 2008, and all copies made.
115 Municipalities attorning to the jurisdiction of the Ombudsman of Ontario should understand that by inviting the Ombudsman of Ontario to conduct their closed meeting investigations, they are attorning to all of the lawful powers, procedures and processes used by the Ombudsman of Ontario, and they should respect those lawful powers, procedures and processes by demonstrating compliance.
_______________
André Marin
Ombudsman of Ontario
Andre Marin, Ombudsman
Bell Trinity Square
483 Bay St., 10111 Floor, South Tower
Toronto, ON M5G 2C9
Dear Sir:
Re: New lnvestigation - Retention of Preliminary Report re Development Services Committee Closed Education Session of May 22, 2008
Thank you for your letter received yesterday afternoon. It is not feasible to personally attend at your Toronto office, view and provide comments on the document referenced in your letter by 5:00 pm this afternoon. If you wish the City to review a document, please convey it at your convenience and we will respond at the earliest opportunity.
The following documents are attached to this letter:
1. Apr 23/09 letter: Marin/Gray
2. Apr 14/09 e-mail: Potts/Pettigrew
3. Apr 9/09 e-mail: Potts/Beamish (co Pettigrew)
4. Apr 2/09 e-mail: Potts/Pettigrew
5. Apr 1/09 e-mail: Potts/Pettigrew
6. Mar 31/09 e-mail: Marin/Gray
With respect, the Ombudsman is without jurisdiction to have continued or to have commenced an investigation respecting the City's obligation to retain the Ombudsman's preliminary report concerning the Development Services Committee'$ Closed Education Session of May 22, 2008 ("Preliminary Report"). The reasons are summarized in Attachment 2 under the heading, ''2. Jurisdiction".
The City Is obliged to retain the Preliminary Report pursuant to the Municipal Act, 2001 and the City's records retention bylaw. The reasons are summarized in Attachment 2 under the heading, "I. Records Retention", and expressed elsewhere in the attachments.
The City has no objection in the event that the Ombudsman chooses to publish the Preliminary Report. Rather, its publication will assist readers to better understand the comments in my letter dated Feb 17/09 respecting the Preliminary Report.
If the Ombudsman's office is determined to proceed with the publication of a fresh report without having had questions of jurisdiction resolved by the Divisional Court, I respectfully request that this letter and its attachments also be published to ensure that our communications are transparent and are accurately represented.
Respectfully,
John Gray
Mayor
cc: City Manager
cc: City Clerk
co: City Solicitor
Attachment #1
23 April 2009
His Worship Mayor John Gray
The Corporation of the City of Oshawa
SO Centre Street South
Oshawa, ON
L1H 3Z7
Dear Mayor Gray:
I have concluded my investigation into the apparent failure of the Corporation of the City of Oshawa to abide by the conditions under which a copy of my Preliminary Report on the Development Services Committee Closed Education Session of May 22, 2008, was provided to you.
My preliminary report: prepared with respect to this investigation, may be viewed .at my Offices, provided that a formal written undertaking is signed confirming agreement With the conditions und.er which review of the preliminary report is permitted. Reasonably alternative arrangements for viewing the document will also be considered.
The City has unti15:00 p.m. Friday, April 24, 2009, to make representations to me regarding my preliminary report.
Please contact Ms. Laura Pettigrew, Senior Counsel, at 416-586-3325, to make arrangements for viewing the preliminary report.
Yours truly,
Andre Marin
Ombudsman
Attachment #2
From: David Potts
Sent:Tuesday, April14, 2009 11:24AM
To: 'Laura Pettigrew'
Subject: New Investigation re Ombudsman's Draft Report
Ms. Pettigrew:
Thank you for your e-mail.
1. Records Retention
The City's good faith efforts to assist the Ombudsman's staff's understanding of municipal records retention obligations have been unhelpful. Specifically, as most recently evidenced by Ms. Finlay's letter to IPC, the Ombudsman's staff continue to confuse a municipality's obligations in response to an MFIPPA access request with a municipality's obligations to retain records pursuant to the Municipal Act, 2001 and a municipality's records retention by-law. The City has not, as claimed in your e-mail below, "cited its legal obligation to retain documents under MFIPPA". Rather, in respect of its obligation to retain records, the City has consistently cited the Municipal Act, 2001 and its records retention by-law. Without limitation, please refer to the writer's e-mails of March 30, April 1, April 2 and April 9.
I understand that Assistant Commissioner Beamish is prepared to request IPC legal counsel to assist the Ombudsman's staff. It is, however, clear that the Ombudsman's staff are disinclined to seek that assistance.
2. Jurisdiction
The Ombudsman is without jurisdiction to continue or to commence an investigation respecting the City's obligation to retain the Ombudsman's draft report. Specifically, the Ombudsman's investigation respecting Oshawa Development Services Committee's closed education session of May 22 was concluded by the Ombudsman's delivery of his final report on March 24. Further, there is no "person or body of persons in his, her or its personal capacity” that has been affected by the City's retention of the draft report pursuant to the Municipal Act. 2001 and its records retention by-law.
Further, the Ombudsman has advised that the investigation relates to an offence under s. 27 of the Ombudsman Act. The purpose of any such investigation is inconsistent with the protections afforded by subsection 19(6) of that Act.
As suggested on April 2, questions respecting the Ombudsman's jurisdiction should be referred to the Divisional court. Only the Ombudsmen has standing to initiate that proceeding. The City will fully cooperate including the writer's acceptance of service of any originating process.
3. Publication of Final Report
It is anticipated that the Ombudsman's final report will be made public by transmittal to an open session of Oshawa Council and, perhaps, by publication on the City's website along with the Mayor's letter dated February 17 redacted to the extent of the individuals' names in the penultimate paragraph on page 2 of that letter. This is likely to occur after April 27 which is the next regularly scheduled Oshawa Council meeting.
Any inquiries or communications respecting the City's rights or obligations should be referred to the writer.
Regards
David J. Potts, City Solicitor,
The Corporation of the City of Oshawa
----Original----
From: Laura Pettigrew
Sent: Monday, April 13, 2009 9:39 AM
To: David Potts
Subject: Oshawa Development Services Committee Closed Education Session of May 22, 2008
Dear Mr. Potts:
I wish to clarify for you in light of your emails to Mr. Beamish that we do not feel it is necessary to engage in a tele-conference with Mr. Beamish or IPC legal staff. As you will see from Ms. Finlay’s letter and the IPC' s opinion, the Ombudsman as an Office): of the Legislature, requested that the Commissioner Provide him with an opinion on whether 'there is any requirement under MFIPPA for municipalities to retain a copy of a draft report forwarded to them by the Ombudsman as part of his investigative Process. A copy of the IPC's opinion in response to that request was provided to you.
As Ms. Finlay noted in her letter, the City of Oshawa clearly cited its legal obligation to retain documents under MFIPPA in response to the Ombudsman Office's attempts to recover the Ombudsman's preliminary report and any unauthorized copi.es that the City may have made. This report was provided to the City pursuant to specific direction· from the Ombudsman on February 2, 2009, including that the report be returned.
The Ombudsman's Office is not seeking the IPC to mediate the return of the Ombudsman's preliminary report and it is our view that it would be inappropriate to do so. The report was provided to the City pursuant to specific direction by the Ombudsman. The City's continued refusal to abide by the Ombudsman's direction has the potential to impair the integrity of our investigative process, which is not negotiable.
We cannot accept your additional claims that the Municipal Act, 2001 or Oshawa's Records Retention by-law prevent the City of Oshawa from complying with the Ombudsman’s direction.
Our Office has attempted to be reasonable in its discussion of your concerns. You have however continued to refuse to accept that your client is bound by the Ombudsman's direction, which was clearly explained to the Mayor and set out in writing when the City was provided with the Ombudsman’s preliminary report. As Oshawa has not returned the Ombudsman's preliminary report and all copies of it made by the city, we have no choice but to resume our investigation. Our investigators will be in contact with City officials to begin their interviews and we expect their full cooperation.
Yours truly,
Laura Pettigrew
Senior Counsel
Attachment #3
From: David Potts
Sent: Thursday, April 09, 2009 2:44 PM
To: 'brian.beamish@ipc.on.ca'
Cc: 'Laura Pettigrew'
Subject: RE: Ombudsman Investigation re draft report reclosed meetings investigation
Attachments: AR-M355N_20090403_133133-2-1.pdf; Ombusman ltr.pdf
Mr. Beamish:
I've now been provided with Ms. Finlay's letter dated April 3, 2009.
We note that Ms. Finlay's inquiry was, in fact, scoped to "whether there is any requirement under the Municipal Freedom of Information and Privacy Act for municipalities to retain a copy of a draft report forwarded to thern by the Ombudsman as part of his investigative process". Your letter responds to that question. However, as rioted below, that does not appear to be the issue between the parties.
In determining that the preliminary report is a record that.is subject to retention obligations imposed by the Municipal Act, 2001 and the City's Records Retention By-law, consideration has been given to relevant matters including:
1. On Feb 2/09 the Ombudsman delivered a preliminary draft report to the City for the purpose of providing comments to be considered by the Ombudsman before issuing his final report.
2. A few copies of the report were made and circulated to those City staff or Councilors whose input was relevant to the Ombudsman’s request for comments. The conditions to maintain in a separate file and to not make copies were inconsistent with the purpose for which the draft was delivered to the City. Accordingly, these conditions were disregarded.
3. By letter dated Feb 17/09, the City responded to the Ombudsman's request for comments. The City's comments were prepared on the basis of the copies of the draft report and internal discussions respecting its contents. The City files of those participating in this process (including the writer) are meaningless without the draft report to which the comments respond.
4. The final report was amended to respond to certain of the City's comments.
5. The City's comments are referenced.in the final report as "Response of the Council of the City ofOshawa".
6. The Ombudsman Office has advised that the City's response to the draft report may be released and that the City may "speak to the Ombudsman's investigation".
The City has only engaged the Ombudsman's office in a discussion about MFIPPA to the extent that a third party may, at same point, submit an access request. For example, the City has inquired of the Ombudsman's office as to whether it considers itself an agency of the Government of Ontario for the purpose of the government relations exemption prescribed by paragraph 9(1)(d).
Again, the City's intention throughout has been to comply with all of its obligations including its immediate obligation to retain the subject record pursuant to the Municipal Act, 2001 and its Records Retention By-law.
In the circumstances, we will proceed on the assumption that your response to Ms. Finlay was not intended to suggest that the City is compelled to return all copies of the draft report and that your response was not intended to address the City's obligations pursuant to the Municipal Act, 2001 or its Records Retention By-law.
We remain willing to engage counsel for the Ombudsman in a joint discussion with IPC counsel if the Ombudsman's office determines that it may be helpful to do so including on an off-record, confidential basis. If so, IPC's contribution to that discussion will be helpful and appreciated.
Regards
David J. Potts, City Solicitor,
The Corporation of the City of Oshawa
---------
From: David Potts
Sent; Thursday, April 09, 2009 1:03 PM
To: 'brian,beamish@tpc.on.ca'
Cc: 'laura Pettigrew'
Subject: Ombudsman Investigation re draft report re closed meetings Investigation
Mr. Beamish:
Further to my voicemail, attached is a letter dated Apr 9/09 from Barbara Finlay to which is attached your letter of the same date to Ms. Finlay.
It was the City's suggestion to involve IPC and the writer's expectation that we would jointly engage our IPC colleagues in a discussion respecting the matter. However, we've not been given the opportunity to participate in any communications between the Ombudsman's Office and IPC. Accordingly, I've e-mailed Ms. Pettigrew requesting a copy of the letter dated Apr 3/09 (and any attachments to it) referenced in your letter so that I may better understand how the issue has been presented to IPC and so that I may properly advise Oshawa.
In the Interim, we note that the opinion in the penultimate paragraph of your letter is scoped to MFIPPA requirements respecting retention. However, discussions respecting MFIPPA have only arisen in relation to the potential applicability of paragraph 9(1)(d) in the event of an access request. MFIPPA has not been cited as an impediment to returning all copies of the draft report. It's unclear whether your office has been requested to consider the City's records retention obligations arising under the Municipal Act, 2001 or the City's Records Retention By-law. However, it is clear that the Ombudsman's Office is interpreting your opinion as compelling the City to return all copies of the preliminary report without retaining copies under threat of a fresh investigation.
In the circumstances, I would greatly appreciate if you'd contact me at your very earliest convenience. Preferably, your legal staff, Ms. Pettigrew and I will engage in one conversation, perhaps by telephone conference.
Regards
David J. Potts, City Solicitor,
The Corporation of the City of Oshawa
Attachment #4
From: David Potts
Sent: Thursday, April 02, 2009 7:54 PM
To: 'Laura Pettigrew'
Subject: New investigation re Ombudsman's preliminary report
Ms. Pettigrew:
Thank you for calling me in response to my voicemail. I called after being advised that investigators from the Ombudsman's office were planning to attend at the City's offices tomorrow to interview individual members of staff in relation to the new Investigation referenced in the Ombudsman's Mar 31/09 letter. When I was unable to reach you, I contacted the two investigators and requested that they put you in touch with me.
I was pleased for the opportunity to discuss these issues directly with you as a continuation of the City's good faith efforts to comply with all of its legal obligations. The following comments are limited to what appears to be the key, preliminary issue. They're provided in good faith, "on record" and intended to encourage a resolution which may also resolve the remaining issues set out in my e-mail of Apr 1/09.
1. As noted in earlier communications, it is the City's view that the Ombudsman's preliminary report is a record in the City's custody or control. A copy of it was delivered by the!! Ombudsman to the City for the purpose of preparing a response. The Ombudsman subsequently received, apparently considered and ultimately referenced the City's response in his final report. Clearly, it was intended that the City act on the preliminary report and it did so pursuant to the Ombudsman's preliminary report.
2. The City is obliged to retain records in its custody or control. The Ombudsman's direction to return it (and any copies) is contrary to the City's obligations respecting records in its custody or control.
3. Whether the preliminary report is a record in the City's control or power is related to the Ombudsman's jurisdiction to investigate. This issue should, therefore, be settled or determined without delay.
4. If you and I are unable to resolve this preliminary legal issue, I've suggested that we invite our legal colleagues in the Office of the Information and Privacy Commissioner/Ontario (or other mutually acceptable access/privacy experts) to consult with us.
5. If the issue remains unresolved, it should be referred to the Divisional Court pursuant to subsection 14(5) of the Act (along with any remaining unresolved and relevant issues respecting jurisdiction including those identified in the writer's e-mail dated Apr 1/09 and in your e-mail below).
6. The Ombudsman's investigators should be immediately requested to "stand clown'' pending the resolution of this issue. I appreciate your undertaking to respond to this request at the earliest opportunity and I look forward to your confirmation.
7. The Ombudsman may be reassured that the City is treating the preliminary report as a record exempt from disclosure pursuant to paragraph 9(1)(d) of the Municipal Freedom of Information and Protection of Privacy Act ("MPIPPA") and will continue to do so unless and until the issue is determined differently by the Information and Privacy Commissioner/Ontario in the context of a complaint or until the City reaches a different legal conclusion (with reasonable notice to the Ombudsman).
8. On the assumption tf1st we may agree that the preliminary report is, in the circumstances, a record it'! the City's custody or control, we should presently turn our minds to the applicability of paragraph 9(1)(d) of MP:IPPA so that we'll be in a position to respond if/when a request for records is submitted. For that purpose, I'd appreciate if you'd respond to question 8 in the Apr 1/09 e-mail.
The City is in good faith attempting to comply with all of its legal obligations including those related to records in its custody or control. In fact, the Ombudsman's letter dated Mar 24/09 expresses appreciation for the City's cooperation shown during the course of the Ombudsman's recent closed meeting investigation. We are, of course, hopeful that the Ombudsman's office will reciprocate.
Regards
David J. Potts, City Solicitor,
The Corporation of the City of Oshawa
----Original
From: Laura Pettigrew
Sent: Thursday, April 02, 2009 5:37 PM
To: David Potts
Subject: Oshawa Development Services of May 22, 2008
Hi Mr. Potts,
I received your message, and Ciaran Buggle and Mary Jane Fenton also contacted me indicating that you had called them.
With respect to your question regarding the Ombudsman’s authority to undertake the current investigation, while the substance of the investigation into the closed meeting the Ombudsman's process has not concluded, as the City’s compliance with the conditions outstanding.
Unlike other statutory decision makers, the Ombudsman has also been considered to have equitable jurisdiction allowing him to reopen an investigation. Our office maintains that it has authority to investigate whether a breach of the Ombudsman’s procedural conditions has occurred.
Laura Pettigrew
Senior Counsel, Office of the Ombudsman
Attachment #5
From: David Potts
Sent: Wednesday, April 01, 2009 12:26 PM
To: 'info@ombudsman.on.ca'
Subject: FW: Oshawa Development Services Committee Closed Education Session of May 22/08
Attachments: Marin ltr.pdf; Jones ltr.pdf; Ombudsman ltr.pdf
Ms. Pettigrew:
I'm back in the office today and following up with respect to our recent communications. In the interim, the Ombudsman has written advising of his intention to undertake a further investigation and expressing his view that an offence may have been committed contrary to s. 27 of the Act. His letter and a letter from Gareth Jones, Director, Special Ombudsman Response Team dated Mar 31/09 are attached.
The letters raise new and important questions. So that I may properly advise council and staff, I'd appreciate clarification with respect to the following issues:
1. Was the Ombudsman's investigation respecting Oshawa Development Services Committee Closed Education Session of May 22 concluded by his delivery (and pending publication) of his final report attached to his transmittal letter dated Mar 24/09?
2. If the answer to question 1 is, "yes", what is the Ombudsman's authority for initiating the investigation referenced in the two letters dated Mar 31/09 (attached)?
3. If the answer to question 2 is s.14 of the Act, who is the "person or body of persons in his, her or its personal capacity" alleged to have been affected by the municipality's act or omission?
4. Does the Ombudsman Intend to rely on information and records obtained during the course of his new investigation for the purpose of prosecuting the offence to which the Ombudsman's Mar 31/09 letter refers?
5. Paragraph 27(b) of the Act creates an offence for every "person who, [...] without lawful justification or excuse, refuses or willfully fails to comply with any lawful requirement of the Ombudsman or any other person under this Act." Is this the alleged offence to which the Ombudsman's Mar 31/09 letter refers?
6. If the answer to 5 is, "yes", what is the "lawful requirement" under the Act with which it is alleged the City has failed to comply?
7. Is it the Ombudsman's position that the preliminary report attached to his transmittal dated Feb 2/09 is not a ''record" in the municipality's "custody or control" for the purposes of section 4 of the Municipal Freedom of Information and Protection of Privacy Act ("MFIPPA")?
8. Is itthe Ombudsman's position that his office is an agency of the Government of Ontario?
This and the e-mail below are good faith attempts to better understand tlie Ombudsman's position respecting the City's obligations including under MFlPPA. For example, if the Ombudsman's preliminary report is a "record" in the City's "custody or control", it may, nevertheless, be exempt from disclosure pursuant to MFIPPA 9(1)(d) If the answer toquestion 8 is "yes". Accordingly, It seems that your timely consideration and response to these questions and to the e-mail below is warranted prior to any determination to proceed with a fresh investigation. Your response will also be appreciated so that I may properly advise Oshawa council and staff.
Regards
David J. Potts, City Solicitor,
The Corporation of the City of Oshawa
---------------
From: David Potts
Sent: Monday, March 30 1 2009 5:01 PM
To: 'laura.pettigrew@ontario.ca'; 'info@ombudsman.on.ca'
Cc: Sandra Kranc
Subject: Oshawa Development Services Committee Closed Education Session of May 22/08
Ms. Pettigrew:
Thank you for your letter which follows our recent conversation respecting the Ombudsman's final report.
As discussed, I contacted you in contemplation of a potential question respecting the City's obligations, if any, to disclose the Ombudsman's preliminary report if/when a request for records may be submitted by a third party pursuant to the Municipal Freedom of Information and Protection of Privacy Act (Ontario) (MFIPPA). The final report refers to the Mayor's comments which, in turn, refer to the preliminary draft so it's plausible that a request will beforthcoming and that the municipality will be required to determine its MFIPPA obligations as they may or may not apply to the preliminary report. The City must, therefore, first determine whether the preliminary report Is a "record" to which MFIPPA and the City's records retention by-law apply. That determination may impact on the City's legal ability to comply with the Ombudsman's request where, as noted in your letter, the preliminary report was provided to the City by the Ombudsman's office. Your letter's reference to the principles of openness and transparency reflect the concern that a correct answer is also important with respect to the City's transparency obligations under MFIPPA.
As mentioned in my voicemail of this afternoon, I'm in the Court of Appeal tomorrow and Wednesday, I've copied City Clerk Services which has statutory and other delegated responsibilities In respect of the City's records so that we'll be in a position to discuss the request in a timely fashion. In the interim, if you've any authorities that support one view or at1other, I'd be pleased to consider them for the purpose of giving an opinion to staff.
Regards
David J. Potts, City Solicitor,
The Corporation of the City of Oshawa
Attachment #6
March 31, 2009
His Worship Mayor John Gray
The Corporation of the City of Oshawa
50 Centre Street South
Oshawa, ON
LlH 3Z7
By fax and letter
Dear Mayor Gray:
l am writing to advise you of my intention to investigate the apparent failure of the Corporation of the City of Osh01wa to abide by the conditions under which a copy of my Preliminary Report into the Development Services Committee Closed Education Session of May 22. 2008 was provided to you. This report was sent to you on February 2nd, 2009. Such conduct may constitute an offence under s 27 of the Ombudsman Act.
The investigation will be conducted by the Special Ombudsman Response Team. The lead investigator, Ciaran Buggle will be in contact with your office today to arrange interviews with yourself and other potential witnesses.
A letter requesting documents will be sent to you shortly.
Yours truly,
André Marin
Ombudsman
[1] The relevant recommendations were retained in the Final Report as 1(a) and 1(b). They advise that “The City of Oshawa should ensure that in future no subject is discussed in a closed education or training session unless (a) It is clear that the presentation of the discussion is only for the purpose of education or training, and (b) All material prepared by presenters and trainers is vetted in advance to ensure it contains only educational or training information and presenters and trainers are instructed that they can only present or discuss information for the purpose of education or training.” Mayor Gray’s response contended: “With respect, neither the Municipal Act nor the City’s Procedural By-law limit in any way the number of topics that could potentially form the subject of an education session. Accordingly, recommendations 1(a) and 1(b) are similarly unclear.”
[2] Calling on the Information and Privacy Commissioner to mediate or adjudicate is different, of course, from our decision to secure that Office’s opinion on whether Preliminary Reports fall within MFIPPA. Had the Information and Privacy Commissioner believed they did, that would have to be resolved, probably through legislation.