Conseil
30
April 2010 / le 30 avril 2010
Submitted by/Soumis par: Douglas Wallace,
Meetings Investigator
Contact Person/Personne
ressource : Douglas Wallace, Meetings Investigator / Enquêteur pour les
réunions
(613) 789-2166, doug.wallace@rogers.com
SUBJECT:
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REPORT
TO THE COUNCIL OF THE CITY OF OTTAWA REGARDING IN CAMERA CORPORATE SERVICES AND ECONOMIC DEVELOPMENT COMMITTEE
MEETING OF AUGUST 31, 2009 AND COUNCIL MEETING OF SEPTEMBER 9, 2009: THE
AUTHORIZATION OF A PAYMENT TO A SENIOR OFFICER |
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OBJET :
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RAPPORT AU CONSEIL MUNICIPAL D’OTTAWA SUR LA RÉUNION À HUIS CLOS DU 31 AOÛT 2009 DU COMITÉ DES SERVICES
ORGANISATIONNELS ET DU DÉVELOPPEMENT ÉCONOMIQUE ET LA RÉUNION DU 9 SEPTEMBRE
2009 DU CONSEIL : AUTORISATION D’UN PAIEMENT À UN AGENT PRINCIPAL |
That
Council receive the attached report and consider the recommendations included
therein.
Que le Conseil prenne connaissance du rapport ci-joint et
examine les recommandations qu’il contient.
On
November 28, 2007, City Council approved the establishment of a Meetings
Investigator position to investigate complaints regarding the propriety of
closed meetings held by City Council, a local board, or a committee of
either. The Meetings Investigator, Mr.
Douglas Wallace, was retained by the City on January 14, 2008. As part of his mandate, Mr. Wallace
acknowledges receipt of requests for an investigation, conducts the
investigation and reports his findings and any recommendations to an open
meeting of Council.
In
accordance with his mandate, and upon receipt of a number of requests for
investigation, the Meetings Investigator conducted an investigation of the
closed meetings of the Corporate Services and Economic Development Committee
held on August 31, 2009 and City Council held on September 9, 2009.
As
part of the Mid-term Governance Review, at its meeting of June 24, 2009, City
Council approved that “future reports to
Council from the Meetings Investigator include a staff comment.” Accordingly, a staff response to the Meetings
Investigator’s report is attached at Document 2.
As
part of his investigation, the Meetings Investigator interviewed the City
Manager, the Senior Officer in question, the City Clerk and Solicitor, the
Deputy City Clerk and staff of the City Clerk and Solicitor Department.
LEGAL/RISK
MANAGEMENT IMPLICATIONS
There
are no legal/risk management implications associated with this report.
There are no financial implications associated with this report.
Document 1: Meetings Investigator’s Report to the Council of the City of Ottawa Regarding the In Camera Corporate Services and Economic Development Committee Meeting of August 31, 2009 and Council Meeting of September 9, 2009: The Authorization of a Payment to a Senior Officer
Document 2: Staff Response to Meetings Investigator’s “Report to the Council of the City of Ottawa Regarding the In Camera Corporate Services and Economic Development Committee Meeting of August 31, 2009 and Council Meeting of September 9, 2009: The Authorization of a Payment to a Senior Officer”
DISPOSITION
The
City Clerk & Solicitor Department will undertake the implementation of any decisions
made by Council as a result of this report.
Document 1
REPORT TO THE
COUNCIL OF THE CITY OF OTTAWA
REGARDING
IN CAMERA CORPORATE SERVICES AND
ECONOMIC DEVELOPMENT COMMITTEE MEETING OF AUGUST 31, 2009 AND COUNCIL MEETING
OF SEPTEMBER 9, 2009.
THE AUTHORIZATION
OF A PAYMENT TO A SENIOR OFFICER
“The democratic legitimacy of
municipal decisions does not spring solely from periodic elections, but also
from a decision-making process that is transparent, accessible to the public,
and mandated by law. When a municipal
government improperly acts with secrecy, this undermines the democratic
legitimacy of its decision, and such decisions, even when intra vires, are less worthy of deference”……. The
Douglas R. Wallace
Meetings Investigator
REPORT TO THE
COUNCIL OF THE CITY OF OTTAWA
REGARDING
IN CAMERA CORPORATE SERVICES AND
ECONOMIC DEVELOPMENT COMMITTEE MEETING OF AUGUST 31, 2009 AND COUNCIL MEETING
OF SEPTEMBER 9, 2009.
THE AUTHORIZATION
OF A PAYMENT TO A SENIOR OFFICER
BACKGROUND
The
Meetings Investigator received a number of requests to investigate the
propriety of a closed meeting of the Corporate Services and Economic
Development Committee meeting held on August 31, 2009 and a subsequent meeting
of City Council held on September 9, 2009.
The
essence of each complaint was that Council approved a substantial ex gratia payment to a senior officer without
public debate following a closed meeting of the Corporate Services and Economic
Development Committee meeting, contrary to the provisions of the Municipal Act and the Procedure
By-law.
The
Meeting Investigator reviewed the procedure followed by the City in approving the
payment to a senior officer to determine whether there was compliance with the legislative
process regarding transparency and accountability in the decision-making
process.
THE
INVESTIGATION
The
following documents were reviewed to determine whether there had been
compliance with the provisions of the Municipal
Act and Procedure By-law:
(1)
Corporate
Services and Economic Development Committee Report 46A (In Camera)
(2)
Confidential
Minutes 25 of the Corporate Services and Economic Development Committee,
Monday, August 31, 2009.
(3)
Minutes
of open Corporate Services and Economic Development Committee Meeting of August
31, 2009.
(4)
Council
Agenda, September 9, 2009
(5)
Minutes
of the open Meeting of Council, September 9, 2009
Interviews
were also held with the City Manager, the Senior Officer in question, the City
Clerk and Solicitor, the Deputy City Clerk and staff of the City Clerk and City
Solicitor’s branch.
The
Meeting of the Corporate Services and Economic Development Committee
Two questions arise concerning
the propriety of this meeting:
1. The
Subject Matter
THE
FACTS
The
Agenda for the Corporate Services and Economic Development Committee included a
Motion that the Committee “move In Camera
pursuant to Section 13 (1) (b), personal matters about an identifiable
individual, including staff” to consider a report that was listed on the Agenda
as “Transfer of Pension from Federal Government to OMERS resulting in a
shortfall of one year pensionable services time.”
The Report consists of a request
by a senior officer for reimbursement of a sum which would, after taxes, and
upon payment to OMERS, provide the Senior Officer with the same number of years
of pensionable service as if he had worked the time he worked for the federal
government with the City of Ottawa and had contributed to the City’s pension
plan. It sets out figures to show how this amount was calculated and clearly
indicates that the basis for the request is a statement made by the Senior
Officer at the time of his hiring that he would be transferring his pension to
OMERS rather than any agreement by the City to pay any shortfall which might
arise at the time of the transfer. It
contains an opinion by the City Clerk and Solicitor’s as to liability.
LEGISLATIVE REQUIREMENTS WITH
REGARD TO THE SUBJECT MATTER THAT MAY BE CONSIDERED IN CAMERA
Section
239 of the Municipal Act provides
that all meetings of a municipal council, local board or a committee of either
of them shall be open to the public. It also lists several exceptions to this
open meeting rule.
Section
239 reads in part as follows:
Meetings open to public
239. (1) Except
as provided in this section, all meetings shall be open to the public. 2001, c. 25, s. 239 (1).
Exceptions
(2) A
meeting or part of a meeting may be closed to the public if the subject matter
being considered is,
(a) the security of the property of the municipality or local
board;
(b) personal matters about an identifiable individual, including
municipal or local board employees;
(c) a proposed or pending acquisition or disposition of land by
the municipality or local board;
(d) labour relations or employee negotiations;
(e) Litigation
or potential litigation, including matters before administrative tribunals,
affecting the municipality or local board;
(f) advice that is subject to solicitor-client privilege,
including communications necessary for that purpose;
(g) a matter in respect of which a council, board, committee or
other body may hold a closed meeting under another Act. 2001,
c. 25, s. 239 (2).
The
Committee relied on the exemption in subsection 239 (2) (b) of the Act as its
authority for resolving in camera for
a consideration of this matter.
ANALYSIS
A
discussion of an employee’s financial situation can sometimes properly take
place in camera under this exception to
the open meeting requirements of the Act. Indeed, it will often be most appropriate to
hold such a discussion in camera. The decision to hold the discussion in camera, should however not be automatic. Council has a discretion,
and must exercise its discretion thoughtfully.
The
Municipal Act provides no guidance as
to what factors a municipal council or board should take into account in the
exercise of its discretion. Some guidance however, may be found by looking at
the treatment of personal information when it comes into conflict with the
public interest under the provisions of other Ontario statutes.
The Municipal Freedom of Information and Protection of Privacy Act (MFIPPA)
does not purport to regulate what matters a municipal council or committee of
council may discuss in public. Nevertheless, some guidance may be found in the
manner that it deals with the disclosure of personal information in response to
requests under that Act.
Subsection
14 (3) of the Act indicates that the disclosure of certain personal information
will be considered an unjustified invasion of personal privacy which the head
of the institution shall not release to the public.
Presumed invasion
of privacy
14.
(3) A
disclosure of personal information is presumed to constitute an
unjustified invasion of personal
privacy if the personal information,
(a) relates to a medical, psychiatric or psychological
history, diagnosis, condition, treatment or evaluation;
(b) was compiled and is identifiable as part of an investigation
into a possible violation of law, except to the extent that disclosure is
necessary to prosecute the violation or to continue the investigation;
(c) relates to eligibility for social service or welfare
benefits or to the determination of benefit levels;
(d) relates to employment or educational history;
(e) was obtained on a tax return or gathered for the purpose of
collecting a tax;
(f) describes an individual’s finances, income, assets,
liabilities, net worth, bank balances, financial history or activities, or
creditworthiness;
(g) consists of personal recommendations or evaluations,
character references or personnel evaluations; or
(h) indicates the individual’s racial or ethnic origin, sexual
orientation or religious or political beliefs or associations. R.S.O. 1990, c. M.56, s. 14 (3).
Although
the report before the Corporate Services and Economic Development Committee would
likely be included within the definition of an “unjustified invasion of
personal information” thus preventing the release of the report in response to
an application under that Act, there is nothing in the Act which limits, in any
way, the matters which may be considered at an open meeting of Council or a
Committee of Council. Further, there is
nothing that would have prevented the Committee from declining to consider the
report unless the author provided his
written consent to its discussion in public or redacted the report in such a way as to remove the most sensitive
financial information,. It is also important to note that this Act gives
recognition to the inherent value of submitting municipal deliberations to public
scrutiny. Subsection 14 (2) provides that
“A head, in determining whether a disclosure
of personal information constitutes an unjustified invasion of personal
privacy, shall consider all the relevant circumstances, including whether the
disclosure is desirable for the purpose of subjecting the activities of the
institution to public scrutiny”.
In
a case which came before the Assistant Information and Privacy Commissioner
under this section of the MFIPPA in 2002 [1] the Assistant Information and Privacy
Commissioner heard a journalist’s request to gain access to an electronic copy
of campaign contribution records from the 1997 municipal election in Toronto. The
journalist’s request had been refused by the City on the basis that the
information at issue was already publicly available in paper format. The Assistant Commissioner did not accept
this ground for refusing access, but upheld the City’s refusal to release the
information on the grounds that disclosure would constitute an unjustifiable
invasion of contributors’ personal information.
On
appeal, the Superior Court of Justice (Divisional Court) held that the
dissemination of records in electronic format was not an unjustified invasion
of personal privacy on the grounds that the incremental disclosure of personal
information which would result would be
reasonably small and, more importantly for our purposes, “would achieve the
important objective of enhancing the transparency of the political process with
only a minimal further intrusion upon the personal privacy of contributors.”
Other
Ontario statutes express a similar preference for upholding the public right to
transparency and accountability over individual rights to personal privacy.
Section
9 of the Statutory Powers Procedure Act [2], for
example, like S.239 of the Municipal Act, contains a general requirement that hearings be held
in the open, subject only to certain limited exceptions. One of the exceptions is stated to be when
the Tribunal is of the opinion that
(b)
Intimate financial or personal matters or other matters may be discussed at the
hearing of such a nature, having regard to the circumstances, that the
desirability of avoiding disclosure thereof in the interests of any person
affected or in the public interest outweighs the desirability of adhering to
the principle that hearing be open to the public.
The
Police Services Act [3] contains
the identical wording with respect to the requirement for open hearings under
that Act, as did the Public Libraries Act
[4] until
its recent amendment adopting the identical language to S.239 of the Municipal Act.
In
summary, S.239 of the Municipal Act is
just one of several pieces of provincial legislation indicating a presumption
(or statutory preference) in favour of openness in the absence of any
compelling reason to the contrary. It may safely be presumed that in enacting
S.239, the legislature intended municipal councils or other municipal bodies to
follow the same type of balancing process with respect to the exercise of its
discretion under this Act as it mandated in the other pieces of
legislation. In short the choice to go in camera was not to be automatic, but only to be made when the desirability
of avoiding the public disclosure of personal matters is found to outweigh the
desirability of maintaining the principle of transparency and accountability in
the political process.
CONCLUSION
It
is not the role of the Meetings Investigator to weigh the factors which Council
or a Committee of Council should take into consideration in making its decision
whether an individual’s interest in personal privacy should prevail over the
public interest in submitting the actions of their elected representatives to
public scrutiny. The legislature has
clearly placed this responsibility on the shoulders of the elected
representatives. It is my duty, however,
to advise elected representatives and the public alike when it appears that
this responsibility may not have been properly exercised.
Circumstances
which members of the Corporate Services and Economic Development Committee
might properly have taken into account in the exercise of its discretion include
the following:
(a)
the report before it had a reporting out date (“After
Council consideration”) indicating that the individual had no expectation that the
recommendation would be kept confidential following Council Approval.[5]
(b)
the precise amount of the payment would be made public
at a later date under the Public Sector
Salary Disclosure Act, S.O. 1996,
c.1
(c) the
decision involved the discretionary spending of a substantial sum of public
money, and
(d) the
payment was to a senior officer or employee of the municipality
If the Committee had taken these
circumstances into account, as well as the nature of the personal information
contained in the report, it is difficult to conclude that the Committee
properly exercised its discretion in deciding to consider this matter behind
closed doors.
RECOMMENDATIONS
It may well be that in deciding
to discuss this matter in camera, the
Committee was genuinely concerned with protecting the privacy of the individual. Unfortunately,
in the absence of any reasons for its decision on the record, the public is
left with a legitimate concern that the real reason may have been a desire to
avoid being held accountable for its actions. To disabuse the public of this
view it is recommended:
1. That Corporate Services and Economic
Development Committee Report 46A, together with the vote taken in camera, be released to the public,
subject only to such redaction, if any, as the City Clerk and Solicitor may consider
necessary to comply with the provisions of the Municipal Freedom of Information and Protection of Privacy Act, and
2. That staff be directed not to place a report
on an in camera agenda under the
exception relating to personal matters about
an identifiable individual, if that
report can easily be redacted to minimize the harm to that individual and
permit discussion in open session.
2. The vote in Committee
THE FACTS
The
recommendation in the report that came before the Corporate Services and
Economic Development Committee read:
That the
Corporate Services and Economic Committee consider [a request by a senior
officer of the Municipality for the payment of a stated sum of money] to cover
the shortfall of the pension transfer from the Federal government to Ontario
Municipal Employees Retirement System (OMERS).
The
Committee revised the recommendation to read:
That Council direct staff to
authorize the payment [of a stated sum of money to a senior officer of the
Municipality] to cover the shortfall of the pension transfer from the Federal
government to the Ontario Municipal Employees Retirement System (OMERS), provided
the costs are taken from the [relevant] budget.
LEGISLATIVE
REQUIREMENTS REGARDING VOTING IN CAMERA
Subsection 239 (5) of the Act and
section 13 (5) of the Procedure By-law prohibit the taking of votes during in camera meetings. Two exceptions are
set out in subsection 239 (6).
Subsections 239(5) and 239 (6) of
the Municipal Act provide as follows:
Open meeting
(5) Subject to subsection (6), a meeting shall not
be closed to the public during the taking of a vote. 2001,
c. 25, s. 239 (5).
Exception
(6) Despite section 244, a meeting may be closed to
the public during a vote if,
(a) subsection (2) or (3)
permits or requires the meeting to be closed to the public; and
(b) the vote is for
a procedural matter or for giving directions or instructions to officers,
employees or agents of the municipality, local board or committee of either
of them or persons retained by or under a contract with the municipality or
local board. 2001, c. 25, s. 239 (6).
The first change in the wording
of the recommendation was made by the Committee in an obvious attempt to bring
the motion within the exemption set out in subsection 239 (6) (b).
ANALYSIS
There were three ways that the
Committee could have complied with the legislative prohibition on voting in camera. It could have
(a) redacted the report to remove exact
figures if it felt this was necessary, to allow a discussion of the report and vote to be taken in public; [6]
(b) preserved the report’s
confidentiality until a decision was made by council by voting to refer the recommendation in the
report to council; or
(c) reworded the recommendation as a
direction to staff so as to allow a vote be taken in camera pursuant to subsection 239 (5).
Its choice of the third option was
unfortunate.
CONCLUSION
Although arguably complying with
the letter of the legislation, this choice clearly violates its spirit. There
is little doubt that the framers of section 239 of the Municipal Act intended to limit the use of the two exceptions set
out in that section to the type of actions which would facilitate the carrying
out of past Council decisions or assist in the preparation of material for
Council’s use in making future decisions. It could never have been their
intention to allow the prohibition of voting in camera to be circumvented by simply cloaking a substantive
motion in the clothing of a direction to staff.
Whether the money required to satisfy the Senior Officer’s request is
new money or is taken from an account under the relevant budget, it is still
the spending of public money for a purpose for which it was not originally approved.
And whether the motion is to pay the money or to direct staff to authorize the
payment of money, it is still a substantive motion not, in the Meetings
Investigator’s opinion, a motion within the spirit or intent of clause 239 (6)
(b).
RECOMMENDATIONS
3. That the intent
of subsection 239 (5) be honoured by restricting its use to the giving of
directions required to carry out decisions already taken by Council or to
obtain information required for future decisions.
The
Proceedings at Council
FACTS
At
the opening of its meeting of September 9, 2009, City Council carried, on
consent, the staff direction passed by the Corporate Services and Economic
Development Committee. It did so without making public the report containing
the Direction or even reading aloud the Direction which it was approving. The
recorded Minutes of this meeting of Council indicate that “the confidential
staff direction set out in Item 1 of Corporate Services and Economic
Development Committee Report 46A (in
camera) was CARRIED by Council on consent”.
Strangely, the only record of what was in the staff direction that Council
approved at this open meeting is found in the Minutes of the In Camera Meeting which was convened on the same day
to deal with a different matter altogether.
The
heading of Item 1, Report 46A as it appeared on the Committee Agenda indicated
that the report had a reporting out date of “following council
consideration”. For the Council meeting
of September 9, 2009, the reporting out date shown on the report had been
changed to “Not to be reported out”.
LEGISLATIVE
REQUIREMENTS
Subsection
239(7) of the Municipal Act sets out
an important requirement with respect to the recording of all decisions at
either closed or open
meetings of Council:
Record of meeting
(7) A
municipality or local board or a committee of either of them shall record
without note or comment all resolutions, decisions and other proceedings at a
meeting of the body, whether it is closed to the public or not. 2006, c. 32, Sched. A, s.
Section 13
of the Procedure By-Law as amended
sets out a requirement regarding reporting out dates.
(6)
All reports intended to be considered in a closed meeting shall include a reporting
out date being a date when the report can be released to members of the public
upon request.
ANALYSIS
Recording
in Council Minutes, that Council
approved a direction which was set out in another report may arguably comply
with the letter of the law. It, however, certainly sheds no light on
what it was that Council was actually approving, and in this respect it falls
far short of complying with the spirit of the law. How much better it would have been to record
that “Council approved the staff direction set out in in camera agenda 46A that “staff authorize the payment [of a stated
sum of money to a senior officer of the Municipality] to cover the shortfall of
the pension transfer from the Federal government to the Ontario Municipal
Employees Retirement System (OMERS)”
The
deletion of the reporting out date that was shown in the report that went to
Committee was apparently a staff decision in keeping with past practice
involving directions to staff. This
practice appears to fly squarely in the face of subsection 13 (6) of the
Procedure By-law.
CONCLUSION
The
result of Council’s action was that neither the Report nor the effect of City
Council’s decision in approving the Direction contained in the Report, were
ever made public.
RECOMMENDATION
4. That subsection
13 (6) of the Procedure By-law be amended to provide that, every in camera report indicate under the
Disposition section either the date that the report will be made public or , if the report is not to be made public, the opinion of the
City Clerk and Solicitor that there are legal impediments to the release of the
report.
5. That the wording of all Committee
recommendations considered at an open session of Council be made part of the
public record for that meeting of Council.
PUBLIC
REPORT
The
Meetings Investigator received the full cooperation of the City Manager, the
City Clerk and Solicitor, the Senior Officer in question and the staff of all
departments.
City
Council is required by the Municipal Act to ensure that this report
is made available to the public.
Douglas
R. Wallace
Meetings
Investigator
April
30, 2010
Document 2
Staff Response to the Meetings Investigator’s
“Report to the Council of the City of Ottawa Regarding In Camera Corporate
Services and Economic Development Committee Meeting of August 31, 2009 and
Council Meeting of September 9, 2009: The Authorization of a Payment to a
Senior Officer”
As part of the Mid-Term Governance Review, at
its meeting of June 24, 2009, City Council approved that “future reports to Council from the Meeting Investigator include a staff
comment.” This is the second Meetings Investigation report since that
change.
Summary of the Staff Response
As with previous Meetings Investigator
Reports, procedural improvements have been identified that will enhance the
City’s progressive policies related to open meetings and reporting as much as
possible from closed meetings. The recommendation in this report, with which
staff agrees, is:
·
Amending the Procedure
By-law so that the Disposition of every in
camera report indicates either the date that the report will be made public
or a legal opinion indicating why the report cannot be made public and that
this be listed in both the Disposition Report and the Minutes of Standing
Committees and Council.
Staff further suggest that these changes be adopted
as a practice as soon as possible and be formally incorporated in the upcoming
Governance Review Report.
Apart from these recommendations, staff does
not agree with the remainder of the Meetings Investigator’s recommendations, as
these are, in staff’s opinion, based on an incomplete and incorrect analysis of
the Municipal Freedom of Information and
Protection of Privacy Act (MFIPPA) and his own beliefs regarding the “spirit”
of this and other legislation. Staff notes that in his report the Meetings
Investigator states, with qualifications:
·
That the Corporate Services and Economic Development
Committee (CSEDC) complied “with the
letter of the legislation” in dealing with CSEDC Report 46A, In Camera Item 1, “Transfer of Pension
from Federal Government to OMERS Resulting in a Shortfall of One Year
Pensionable Services Time” in camera;
·
That it is not the Meetings Investigator’s role “to
weigh the factors which Council or a Committee of Council should take into
consideration in making its decision whether an individual’s interest in
personal privacy should prevail over the public interest” in having the matter
deliberated in open session;
·
That “a discussion of an employee’s financial
situation can sometimes properly take place in
camera” and that “it will often be most appropriate to hold such a
discussion in camera”; and
·
That
“recording in Council Minutes that Council approved a direction which was set
out in another report” complies “with the letter of the law”.
Staff has reviewed the
Meetings Investigator’s opinions with respect to his interpretation of the
MFIPPA legislation and his statements regarding the “spirit” or “intent” of the
Municipal Act, 2001 and the MFIPPA
and other legislation, and do not reach the same conclusions. Most
specifically, staff conclude that Corporate Services and Economic
Development Committee and Council correctly decided to deal with the
confidential report in closed session, as permitted under Section 239(2)(b) of
the Municipal Act, 2001, in order to
avoid a contravention of MFIPPA. Public disclosure of the Senior
Officer’s information in open session may have lead to a privacy complaint, and
furthermore could have been construed as a wilful disclosure of personal
information, which is contrary to the Act.
Detailed Response
In his Report
to the Council of the City of Ottawa Regarding In Camera Corporate Services and
Economic Development Committee Meeting of August 31, 2009 and Council Meeting
of September 9, 2009: The Authorization of a Payment to a Senior Officer,
the Meetings Investigator reports on complaints received related to Corporate
Services and Economic Development Committee Report 46A, In Camera Item 1, “Transfer of Pension from Federal Government to
OMERS Resulting in a Shortfall of One Year Pensionable Services Time”. The Corporate Services and Economic
Development Committee moved in camera
pursuant to Section 13 (1) (b), personal matters about an identifiable
individual. City Council did not discuss this Item in Council, carrying it on
consent with noted dissents and declarations of interest pursuant to the Municipal Conflict of Interest Act.
For his report, the Meetings Investigator
examined two questions:
1. Was the subject matter in the
report before the Committee the proper subject for an in camera meeting? and
2. Was it proper for the Committee
to amend the recommendation in the report and vote on it as it did?
The Meetings Investigator
concludes that “(a)lthough
arguably complying with the letter of the legislation, this choice[to deal
with the matter in camera] clearly violates its spirit”. In light of this conclusion, it is clear that
the Committee meeting was properly closed to the public in compliance with both
the Municipal Act, 2001, and the
City’s Procedure By-law. Despite this finding, the Meetings
Investigator makes five specific recommendations to Council as a result of his
investigation.
Overall, staff agrees that the Meetings Investigator offers some
useful recommendations that will continue to enhance the City’s progressive
procedures related to closed meetings, including adjusting in camera disposition procedures to ensure clarity around reporting
out dates. Furthermore, while staff
agrees with the Meetings Investigator’s conclusions that Committee and Council met
the legislative requirements for a closed meeting, staff does not agree with
his interpretation of some of the relevant legislation or the majority of his
conclusions.
In his report, the Meetings
Investigator’s analysis goes far beyond his statutory mandate, being a review
of the provisions of the Municipal Act,
2001 and the City’s Procedure By-law,
and offers opinions regarding what he believes are related provisions of the Municipal Freedom of Information and
Protection of Privacy Act (MFIPPA), the Statutory
Powers Procedures Act, the Public
Libraries Act and the Police Services
Act.
Staff does not agree with the Meetings Investigator’s
interpretation of the MFIPPA legislation.
In staff’s opinion, the protection of privacy requirements of MFIPPA
supports both the issue being deliberated in closed session and the majority of
the information, including the staff report, remaining in camera. Further, staff believes that
all of the Meetings Investigator’s observations related to open meeting
provisions in the Statutory Powers
Procedures Act, the Public Libraries
Act and the Police Services Act
are not relevant to closed meetings under the Municipal Act, 2001. If the Province had intended for these other
clauses to be the provisions as they relate to municipalities, they would have
enacted them accordingly.
Staff’s response
addresses the overall issues raised in the report, its conclusions and the
recommendations as they relate to the propriety of the closed meeting under the
closed meetings provisions of the legislation that govern municipalities in
Ontario, namely the Municipal Act,
2001. However, as a significant amount of the Meetings Investigator’s report is
spent on the relevance of the Municipal
Freedom of Information and Protection of Privacy Act (MFIPPA) in this
specific case, staff provides a comment on the
Meetings Investigator’s interpretation of these provisions as well.
1.
The Subject Matter
Overview
of Meetings Investigator Analysis, Conclusions and Recommendations
As indicated by the
Meetings Investigator, the Agenda Item in question “consists of a request by a Senior
Officer for reimbursement of a sum which would, after taxes, and upon payment
to OMERS, provide the Senior Officer with the same number of years of
pensionable service as if he had worked the time he worked for the federal
government with the City of Ottawa and had contributed to the City’s pension
plan.”
As indicated above, the
Corporate Services and Economic Development Committee moved in camera pursuant to Section 13 (1) (b)
of the Procedure By-law, being,”
personal matters about an identifiable individual.” The Meetings Investigator acknowledges that
“a discussion of an employee’s financial situation can sometimes properly take
place in camera” under this exception
and further notes that “it will often be most appropriate to hold such a
discussion in camera”. He goes on to say that the “decision to hold
the discussion in camera, should
however not be automatic. Council has a
discretion, and must exercise its discretion thoughtfully”, and further
acknowledges that the “Municipal Act
provides no guidance as to what factors a municipal council or board should
take into account in the exercise of its discretion.”
The Meetings Investigator
confirms that it is not his role “to weigh the factors which Council or a
Committee of Council should take into consideration in making its decision
whether an individual’s interest in personal privacy should prevail over the public
interest” in having the matter deliberated in open session. However, he does
offer his opinion that the information being discussed in camera would not likely constitute personal information of the
type that required to be protected from disclosure under the Municipal Freedom of Information and
Protection of Privacy Act (MFIPPA).
He goes on to state that “it is difficult to conclude that the Committee
properly exercised its discretion in deciding to consider this matter behind
closed doors.”
The Meetings Investigator
makes two specific recommendations resulting from his conclusions related to
whether the subject matter was appropriate to be discussed in camera:
1.
“That Corporate Services and Economic Development
Committee Report 46A, together with the vote taken in camera, be released to the public, subject only to such
redaction, if any, as the City Clerk and
Solicitor may consider necessary to comply with the provisions of the Municipal Freedom of Information and
Protection of Privacy Act; and
2.
That staff be directed not to place a report on an in camera agenda under the exception
relating to personal matters about an
identifiable individual, if that report
can easily be redacted to minimize the harm to that individual and permit
discussion in open session.”
Staff
Response
The Meetings Investigator
notes that the Corporate Services and Economic Development had the legal right
to discuss this item in camera, and
further notes that it is not his role to weigh the factors related to exercising
Council’s discretion to go in camera to discuss an item. Staff agrees with
these statements.
With respect to the
Meetings Investigator’s comments that the decision to move in camera should “not be automatic”, staff would note that
Committee and Council does exercise its discretion to move in camera when they believe it is in the public interest to do so,
including waiving solicitor-client privilege on occasion. As an example,
Council voted down the motion to move in
camera to discuss “Matters related to the
LRT Litigation – Mediation Update” in a vote of 2-19 at the
City Council meeting of September 11, 2009, just two days after the Council
meeting that is the subject of this report. In doing so, the question of whether Council
should move in closed session to receive a legal briefing on the settlement
talks was openly debated with the result being a recorded vote to proceed in
public.
With respect to this
item, it is staff’s opinion that the Meetings Investigator’s analysis of the
application of MFIPPA to Committee’s decision to deal with this matter in camera is incomplete. There is
no reference in the Meeting Investigator’s report to the application of Part II
of MFIPPA which, in staff’s opinion, is directly relevant to the disclosure of
personal information in open session as these are the provisions that govern a
municipality’s decision to disclose personal information outside of the context
of an access to information request. In
staff’s opinion, Part II of MFIPPA requires that the personal information
found in this confidential report not be disclosed publicly.
The Meetings Investigator
does discuss the application of the principles found in Part I of the Act,
which governs how information is disclosed in response to an access to
information request. Staff
is also of the opinion that the application of this Part supports Committee’s
decision to discuss the confidential report in
camera. Staff
concludes that the requirements of both Part I and Part II of MFIPPA do not
support the Investigator’s conclusions that the confidential report should have
been dealt with in open session. Personal information under MFIPPA is
defined in s. 2(1) as:
“recorded
information about an identifiable individual, including…
(b) information
relating to the education or employment history of the individual, or
information relating to financial transactions in which the individual has been
involved..;
(h) the
individual’s name if it appears with other personal information relating to the
individual…”
The confidential report
at issue contained several pieces of the Senior Officer’s personal employment,
financial and other personal information as defined in MFIPPA.
As the Meetings
Investigator does not discuss Part II of MFIPPA at all in his report, staff is providing an overview of the relevant portions as
part of this response. Part II of MFIPPA establishes the rules by which
municipalities and other institutions may collect, use and disclose
personal information on a day to day basis, outside of the access to information
provisions found elsewhere in the Act.
Section 32 addresses how the City can disclose personal information and
prohibits the City from disclosing personal information except in the
circumstances specifically described in its subsections.
While the term “disclose”
is not defined in MFIPPA, case law from the Office of the Information and
Privacy Commissioner (IPC) confirms that the term should be interpreted widely.
Many cases from the IPC confirm that the manner of disclosure is irrelevant
to the determination of whether the disclosure was authorized under the Act –
that is, even accidental or mistaken disclosures, or those made through “leaks”
will still be considered as disclosures made by the institution in question. Therefore, the discussion of the Senior
Officer’s personal information contained in the confidential report in open
session of Committee would certainly have been considered a disclosure under MFIPPA,
and would be subject to Section 32.
Further, a more detailed
review of those exceptions where disclosure of personal information is
authorized in Section 32 suggests that none would have permitted the public
disclosure of the Senior Officer’s personal information in this case.
For example, Subsection
32 (c) of MFIPPA allows disclosure for the same purpose for which the personal
information was collected in the first place, or for a consistent
purpose. For this provision to apply, the employee in question must
reasonably have expected that the information would be disclosed in this way –
in this case, to the public in open session.
While the Senior Officer
may have reasonably expected that his personal information would be disclosed
to Council (since he reports directly to them), it is equally reasonable that
he would not have expected public disclosure by Committee or Council of his
personal information, since he did not consent to such a disclosure and
information of this type would not routinely be disclosed in open
session. The Senior Officer would have been aware of a municipal
council’s ability to hold a closed meeting to discuss personal information
pursuant to s. 239(2)(b) of the Municipal
Act, 2001, and the City’s past practices of not disclosing personal
information in open session. The IPC, in examining Council’s
ability to proceed in camera under
this section of the Municipal Act, 2001,
has found that the reference to “personal matters” in the above-noted section
of the Municipal Act, 2001 has a
similar meaning as “personal information” under MFIPPA.
Subsection 32(e) of
MFIPPA allows Council to disclose personal information if the disclosure is
required under a Provincial or Federal statute. In this case, there was
no legislative requirement to disclose the Senior Officer’s personal
information. In fact, the Municipal
Act, 2001, specifically allows Council (and Committee) to hold a closed
meeting to discuss personal information.
While Subsection 32(d) of
MFIPPA also allows disclosure of personal information to an officer or employee
who requires it in the performance of duty, where the disclosure is necessary
and proper in the discharge of the City’s functions, it would not have applied
in this case. In fact, discussion of the Senior Officer’s personal information
in open session would have constituted disclosure to the public, which is not
contemplated by this subsection.
Finally, Subsection 32(b)
allows disclosure of personal information with the prior consent of the
individual in question. In this case, there is nothing to indicate that the Senior
Officer consented to the disclosure of his personal information as contained in
the confidential report to the public in open session.
Case law from the IPC
dealing with contraventions of Section 32 supports Committee and Council moving
into closed session to deal with this matter. In privacy complaint report
MC-050018 (2006), the IPC reiterated that Section 32 establishes a general
prohibition on the disclosure of personal information subject to specific
exceptions, and does so to protect the privacy of individuals while balancing
the need for governments to disclose personal information in order to carry out
their legitimate activities. In that case, the disclosure of a candidate’s test
scores for a high profile municipal position was not in accordance with Section
32, as none of the exceptions allowing disclosure applied. This was the
case even though the information in question was properly reviewed by a
Committee of Council for the purposes of filling a vacant position, but
disclosure to the public (via the media) was not justified. In
another case, the disclosure of employment information by a District Health
Council to the public (via the media) of a former top employee was also found
to be in contravention of Section 32, since the disclosure was not for a
consistent purpose, was not required under legislation, and did not occur with
the employee’s consent (I94-023P, 1994).
Subsection 32(a) of
MFIPPA incorporates the principles of Part I (access to information rules)
since it states that a Head may disclose personal information “in accordance
with Part I of MFIPPA”. Generally this has been interpreted as meaning
that disclosure is permitted under s. 32 (a) if it would be a permissible
disclosure under Part 1, as if a formal access request had been made for the
information. This would suggest that, if no exemptions to disclosure apply
under Part I to allow the Head to refuse disclosure, the disclosure of the
information in question would be permitted under Section 32 of MFIPPA.
Staff have reviewed the
principles of access to information found in Part I of MFIPPA and conclude that
they too would require that the majority of the personal information found in
the confidential report not be disclosed, and therefore be dealt with in camera.
The Information and
Privacy Commissioner (IPC) has made it clear in many orders (e.g. MO-2174 and
others) that personal information can only be disclosed in response to an
access request under s. 14(1) if the institution can show the disclosure of the
information would not constitute an unjustified invasion of personal
privacy. As noted by the Meetings
Investigator, Sections 14(2), (3) and (4) all provide guidance to the
institution in this regard. In particular, again as outlined in the
Meetings Investigator’s Report, s. 14(3) of MFIPPA specifically lists the types
of information the disclosure of which is presumed to constitute an unjustified
invasion of personal privacy.
A consideration of s.
14(3) of MFIPPA is therefore required in this case, since information contained
in the confidential report has been determined to constitute an individual’s
employment history under s. 14(3)(d) of MFIPPA
(PO-2050, M-173, MO-1332, among others). Contributions to an employee’s
pension plan have also been determined to be an employee’s personal financial
information under s. 14(3)(f) (MO-2174), as have
details of particular financial transactions undertaken by an individual.
Furthermore, in this
case, since the information in the confidential report considered by CSEDC does
not pertain to the Senior Officer’s classification, his salary range or his
employment benefits, s. 14(4) of MFIPPA would not apply to allow disclosure
(case law confirms that the payment of the lump sum to him was not a benefit
for the purposes of this section since it did not derive from this employment
contract).
The Meetings
Investigator’s own analysis of s. 14(3) indicates that “the
report before the Corporate Services and Economic Development Committee would
likely be included within the definition of an “unjustified invasion of
personal information” thus preventing the release of the report in response to
an application under that Act”.
Further, the IPC has been
clear that, once information has been found to fall into one of the
presumptions in s. 14(3) under Part I of MFIPPA, it cannot be rebutted by one
or more of the factors listed in s. 14(2) of MFIPPA, and can only be rebutted
if the “public interest override” found in s. 16 applies (John Doe v. Ontario (Information and Privacy Commissioner) (1993),
13 O.R. (3d) 767, (Div. Ct.)) applies.
Staff conclude that
Corporate Services and Economic Development Committee and Council correctly
decided to deal with the confidential report in closed session, as permitted
under Section 239(2)(b) of the Municipal Act, 2001, and Section 13 (1)(b) of the Procedure By-law in order to avoid a
contravention of MFIPPA. Public disclosure of the Senior Officer’s personal
information in open session may have lead to a privacy complaint, and
furthermore could have been construed as a wilful disclosure, which is contrary
to the Act.
With regard to the
recommendations in this section, staff believes that
Corporate Services and Economic Development Committee Report 46A cannot be
released without explicit permission from the Senior Officer. Staff could, if
directed, release a redacted report but would caution that the extent of
necessary redactions would likely not provide the public with much information
regarding the nature of the issues discussed. In addition, information in the
report concerning the legal opinion could only be released if Council waived
its solicitor-client privilege.
With respect to future
reports, it should be noted that staff have already instituted a practice
whereby, where possible, staff reports are written for public release, with
legal opinions or other confidential information being provided as a separate
addendum. Staff
is working to determine how to produce public reports that relate to personal
matters about identifiable individuals within the context of MFIPPA
legislation. These will mostly relate to Advisory Committee appointments and
Commemorative Naming Reports. Staff will be bringing forward recommended
improvements as part of the next Governance Review.
2. The Vote
Overview
of Meetings Investigator Analysis, Conclusions and Recommendations
The Meetings Investigator
notes that Subsection 239 (5) of the Municipal
Act, 2001 and Subsection 13 (5) of the Procedure By-law prohibit the taking
of votes during in camera meetings,
while two exceptions are set out in Subsection 239 (6). Subsections 239(5) and 239 (6) of the Municipal Act provide as follows:
Open meeting
(5) Subject
to subsection (6), a meeting shall not be closed to the public during the
taking of a vote.
Exception
(6) Despite section 244, a meeting may be
closed to the public during a vote if,
(a) subsection (2) or
(3) permits or requires the meeting to be closed to the public; and
(b) the
vote is for a procedural matter or for giving directions or instructions to
officers, employees or agents of the municipality, local board or committee of
either of them or persons retained by or under a contract with the municipality
or local board.
The Meetings Investigator
concludes that, “although arguably complying with the letter of the
legislation”, the amendment of the recommendation to a
staff direction to allow the report and recommendation to remain in camera “clearly violates its spirit”.
He goes on to suggest that, “There is little doubt that the framers of Section
239 of the Municipal Act, 2001
intended to limit the use of the two exceptions set out in that section to the
type of actions which would facilitate the carrying out of past Council
decisions or assist in the preparation of material for Council’s use in making
future decisions”.
To this end, the Meetings
Investigator’s Recommendation 3 is:
3.
That the intent of Subsection 239 (5) be honoured by
restricting its use to the giving of directions required to carry out decisions
already taken by Council or to obtain information required for future decisions.
Staff
Response
The Meetings Investigator
notes that the in camera proceedings,
including the vote, were conducted within the legislation. For all the reasons
set out in the first section, staff have concluded that that Corporate Services
and Economic Development Committee and Council correctly dealt with the
confidential report in closed session, as permitted under Section 239(2)(b) of
the Municipal Act, 2001, (e.g. in
order to avoid a contravention of MFIPPA).
Furthermore, the amendment of the recommendation into a staff direction
avoided a breach of the Senior Officer’s privacy, and a potential finding that
the City wilfully disclosed personal information contrary to MFIPPA.
With respect to Subsection
239(5) of the Municipal Act, 2001, no evidence is offered by the
Meetings Investigator with respect to his assertions regarding the intent of
the “framers” with respect to specifically defining the use of the two
exceptions in the legislation.
To the contrary, the Municipal Act, 2001 is a comprehensive
piece of provincial legislation that includes a significant number of new
transparency and accountability initiatives.
Staff contends that if the “framers” had wished
to restrict the use of exceptions to the giving of directions required to carry
out decisions already taken by Council or to obtain information required for
future decisions, they would have done so. Staff does
not believe it is any municipality’s role to presume to define Subsection 239
(5) outside of what is formally established by the Provincial Legislature.
3. The Proceedings at Council
Overview
of Meetings Investigator Analysis, Conclusions and Recommendations
The Meetings Investigator
states that, at its meeting of September 9, 2009, City Council carried, on
consent, the staff direction passed by the Corporate Services and Economic
Development Committee and that it did so without making the report or the
direction in the report public. He notes that the recorded Minutes of this
meeting of Council indicate that “the confidential staff direction set out in
Item 1 of Corporate Services and Economic Development Committee Report 46A (in camera) was CARRIED by Council on
consent”. He further states that,
“Strangely, the only record of what was in the staff direction that Council
approved at this open meeting is found in the Minutes of the In Camera Meeting which was convened on the same day to
deal with a different matter altogether.”
The Meetings Investigator
observes that the heading of Item 1, Report 46A as it appeared on the Committee
Agenda indicated that the report had a reporting out date of “following council
consideration” and that, for the Council
meeting of September 9, 2009, the reporting out date shown on the report had
been changed to “Not to be reported out”.
He notes that deletion of the reporting out date that was shown in the
report that went to Committee was a staff decision in keeping with past
practice involving directions to staff, and appears to be in contravention of
Section 13(6) of the Procedure By-law.
Finally, he acknowledges
that “recording in Council Minutes, that Council approved a direction which was
set out in another report may arguably comply with the letter of the law”, but
suggests, once again, that “it falls far short of complying with the spirit of
the law”.
The Meetings Investigator
concludes this section by noting that the result of Council’s action was that
neither the Report nor the effect of City Council’s decision in approving the
direction contained in the Report, were ever made public.
His recommendations
related to this section of the report are:
4.
That Subsection 13 (6) of the Procedure By-law be amended to provide that, every in camera report indicate under the
Disposition section either the date that the report will be made public or, if
the report is not to be made public, the opinion of the City Clerk and
Solicitor that there are legal impediments to the release of the report; and
5.
That the wording of all Committee recommendations
considered at an open session of Council be made part of the public record for
that meeting of Council.
Staff
Response
The Meetings Investigator
is correct that Council carried the item on consent and that it did not make
the report public or state in public the staff direction. Staff
agrees with the Meetings Investigator that Council met the statutory
requirements of the Municipal Act, 2001. As indicated above, staff believe that
Council correctly dealt with the confidential report in closed session, as
permitted under Subsection 239(2)(b) of the Municipal Act, 2001, in order to avoid a
contravention of MFIPPA, and that publicly releasing the report or the staff
direction could be a breach the Senior Officer’s privacy and constitute a
wilful disclosure of personal information, contrary to MFIPPA.
The public minutes did
indicate that three Members of Council dissented on the item, and three Members
declared a conflict of interest.
Although the Meetings
Investigator found it “strange” that the In
Camera direction was recorded in the In
Camera minutes when the item was not discussed in closed session, the In Camera Minutes routinely list the recommendations of all In Camera reports that are not to be
reported out immediately following Council approval whether they were
discussed or not. Staff agrees that this approach
complies with the requirements under the legislation.
Staff also agrees with the recommendation to
amend the Procedure By-law to provide
that every in camera report indicate
under the Disposition section either the date that the report will be made
public or, if the report is not to be made public, the opinion of the City
Clerk and Solicitor that there are legal impediments to the release of the
report. Staff further agree that the reporting out date or the reasons for not
reporting out be made public as part of the Disposition report from Standing
Committee and Council meetings. This is in keeping with the City’s progressive
policies related to open meetings and reporting as much as possible from closed
meetings. Staff will bring forward these changes formally as part of the next
Governance report, but recommend adopting this recommendation as a practice in
advance of the formal report.
Staff also agrees that the wording of all public
Committee recommendations considered at an open session of Council be made part
of the public record for that meeting of Council, and this is already
occurring.
[1]
Gombu
v.
[2] R.S.O.1990,c .S.22
[3] R.S.O.1990 c. P.15 s.35
[4] R.S.O. 1990 c. P 44 ss.16(3)
[5] See section 13(6) of the Procedure By-law defining “reporting out date” as “the date when the report can be released to members of the public upon request”. As a senior employee, the Senior Officer in question could be expected to be well aware of Council procedure.
[6] Although the report contained an opinion by the City Clerk and Solicitor, the release of this opinion would in no way prejudice the City if it became public and, in any event, the opinion could well have been set out in a separate communication, not forming part of the report.