White Rock calls for judicial review of OIPC order

White Rock calls for judicial review of OIPC order

Petition filed after adjudicator declines to reopen inquiry on water utility records

The City of White Rock is continuing efforts to block release of information on the purchase of the city’s water utility from Epcor, in spite of a further judgment against it from the Office of the Information and Privacy Commissioner.

Last Friday, OIPC adjudicator Chelsea Lott declined to reopen the inquiry that led to her April 12 order to release the information to freedom-of-information applicant Ross Buchanan, rejecting extensive submissions from lawyers for the city and from Metro Vancouver (Greater Vancouver Regional District), which claimed it would also be compromised by release of the records.

On Monday, the city filed a petition for a judicial review.

As a result of the petition, the order is now stayed for 120 days under provisions of the Freedom of Information and Protection of Privacy Act (FIPPA).

In her written decision, Lott declared Metro Vancouver’s submission moot, since Buchanan has made it clear he is no longer seeking information that specifically referenced Metro Vancouver.

And she rejected White Rock’s submission – in which an affidavit from property, risk management and FOI manager Ken Overton blamed his own inexperience and lack of direction from the OIPC for not filing detailed evidence on behalf of the city – as insufficient grounds for rehearing the inquiry.

The original OIPC order had given the city until Monday to release the information to Buchanan, a resident and frequent critic of the current city administration. Buchanan had first asked for the records two years ago.

A statement released by the city Monday afternoon says that “as a result of its concerns about the effect of the order, as well as some of the conclusions drawn by the adjudicator, the city determined that a petition for judicial review was in the best interests of the public.”

While the city acquired the water utility from Epcor in 2015, the statement says, the final purchase price is still being negotiated and that release of confidential information on the city’s strategy and financial analysis could compromise negotiations.

“While council has resolved to release to the public all city records relating to the Epcor purchase once the final purchase price has been determined, it remains of the view that releasing the information now could be damaging to the city’s financial interests and therefore the interests of its taxpayers.”

The city had until Monday to file a petition for judicial review.

In his April 2015 FOI request, Buchanan sought information on the city’s 2013 decision to stay with its existing water supply rather than seeking access through Metro Vancouver. But related records include information on the city’s decision to purchase the water utility – including a corporate report on the business case for acquisition of the utility, discussed in the closed meeting of council, in 2013, at which the decision to purchase took place.

To date, Buchanan has received only heavily-redacted versions of the documents.

Lott said in her April ruling that she found that the city “was not authorized or required to refuse access to the information it had withheld.”

She rejected city arguments that release of the information would harm the financial and economic interests of the city, violate public body confidences and might harm third-party business interests, and she criticized “unsupported assertions” the city made in stating its case.

In her written decision last week, Lott concludes White Rock’s latest submission did not pass the test of legal precedent by offering new evidence that could not have been presented before by the city.

“In my view, it would have required only ordinary efforts for White Rock to tender the evidence it has submitted in support of the reopening application,” she writes. “The reality is that, other than the records in dispute, at the inquiry White Rock submitted no evidence whatsoever in support of its assertions about the application of exceptions under FIPPA.”

Lott adds that to reopen the inquiry would only give White Rock a second opportunity to provide evidence.

“It is not in the interests of justice to reopen (the order) to permit White Rock to adduce evidence which it could have provided in the first instance.”

In his affidavit, Overton had said he believed a previous release of portions of the business case for the water utility purchase had been “the result of a momentary lapse of judgment” by a former city employee.

Overton added he had never before taken part in an OIPC inquiry and had sought procedural guidance from the OIPC.

“I relied on what I understood to have been the direction of the OIPC when I decided not to include affidavits,” he wrote. “I realize now that I inadvertently misapprehended the requirements for an inquiry.”

Asked on Monday if he had comment on Lott’s decision, White Rock chief administrative officer Dan Bottrill said “not really.”

“It is what it is,” he added.