Ombudsman and Privacy Commissioner Oppose Bill 68 Closed Meeting Exceptions

Ontario’s Information and Privacy Commissioner and Ombudsman both spoke out this week in opposition to additional closed meeting exemptions proposed in Bill 68. Bill 68, as it is currently written, adds a number of new exemptions for when council meetings could go into closed session. Section 239 (2) of the Municipal Act allows a municipality to hold a meeting or part of a meeting behind closed doors if it conforms to one of a series of proscribed situations. Bill 68 would add four new exemptions to the seven that are currently contained in the Municipal Act, including:

(h) information explicitly supplied in confidence to the municipality or local board by Canada, a province or territory or Crown agency of any of them;

(i) a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence to the municipality or local board, which, if disclosed, could reasonably be expected to prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization;

(j) a trade secret or scientific, technical, commercial or financial information that belongs to the municipality or local board and has monetary value or potential monetary value; or

(k) a position, plan, procedure, criteria or instruction to be applied to any negotiations carried on or to be carried on by or on behalf of the municipality or local board.

The Ombudsman and Commissioner’s opposition to these provisions runs as follows:

Information Access and Privacy Commissioner Brian Beamish:

The IPC is concerned that the proposed amendments in Bill 68 would broaden the circumstances in which councils and local boards may exclude the public from important decision-making, including by limiting access to information…. The proposed amendments will frustrate open and accountable government, inhibit open procurement practices, and limit the public’s existing right of access to records….Moreover, we have not been provided with sufficient information to suggest that the amendments are necessary to the effective operation of municipal councils and local bodies.

Ontario Ombudsman Paul Dubé:

The Information and Privacy Commissioner is the expert in access to information issues in Ontario’s municipal sector, and I fully support his submission relating to these proposed exceptions…. The public’s right to witness local government conduct business and make decisions should not be removed unless there are strong and compelling reasons to do so.

While AMCTO welcomes the flexibility that the additional closed meeting exemptions provide, we do have some concerns, especially with exemption “K.” In our submission on Bill 68 we recommended the government remove exemption “K” for the following reasons:

The problem with exemption “K” is that it is simply too broad. It is worded so loosely that it is prone to misuse and abuse. Over the past ten years municipalities have adapted to the open meeting regime in Ontario, and now conduct the vast majority of their business in public. If the government moves forward with exemption “K” it risks losing that momentum. As an organization that is committed to promoting ethics and accountability, we believe that closed meeting exemption “K” must be removed from Bill 68. It is too broad, too prone to abuse, and too likely to reduce the level of transparency that currently exists in municipalities.

Read our full submission here.

 

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New Paper on Municipal Accountability Officers

A new paper, released this week by the Institute on Municipal Finance and Governance (IMFG), argues that while municipal accountability officers can address many ethical problems and dilemmas, they can also create some of their own. According to the paper, written by Andy Sancton,

…the simplest and oldest municipal accountability mechanism is an election. Rather than expecting accountability officers to take over accountability functions from electors by imposing harsh penalties such as removal from office, we should see them as people who can help municipal voters make informed decisions.

Read the full paper here.

Event: The Role of Municipal Accountability Officers in Local Government

The Institute for Municipal Finance and Governance is hosting an event on March 28th on the role of municipal accountability officers in fostering local transparency and accountability. See below for the description the event. You can register here.

About this event: 

Municipal governments in Canada are held to account by elections and, to a lesser extent, by the courts. But these are blunt instruments and they are not of much help in dealing with cases of poor administration, individual grievances, or unethical behaviour. In response, many municipal governments have established independent accountability officers:  auditors-general, ombudsmen, lobbyist registrars, closed-meeting investigators, and integrity commissioners. While these roles are important, providing these officers with more authority will not necessarily solve all local governance problems.

On March 28, 2017, Andrew Sancton, one of Canada’s foremost authorities on municipal government, will explore the role of accountability officers in Canadian municipal government, highlighting both their accomplishments and the challenges they face.

Speaker: 

Andrew Sancton is professor emeritus of Political Science at the University of Western Ontario. He is the author of Canadian Local Government: An Urban Perspective, 2nd edition (Toronto: Oxford University Press, 2015).

 

Ombudsman Launches First Systemic Municipal Investigation

The Ontario Ombudsman is launching his first systemic investigation of a municipality, since gaining the authority to do so on January 1st, 2016. Yesterday the Ombudsman announced that his office will be conducting an investigation of the City of Brampton’s procurement practices, with a special focus on purchasing by-laws, policies and procedures regarding non-competitive procurement. In February Brampton’s city council passed a motion requesting an investigation by the Ombudsman. Bill 8, the Public Sector and MPP Accountability and Transparency Act, expanded the Ombudsman’s mandate to include municipalities.

For more:

News Release: Ombudsman to Investigate Brampton Procurement Practices 

Policy & Management Brief: Municipal Accountability and Transparency in the Wake of Bill 8

In the fourth issue of AMCTO’s Policy & Management Briefs, Eric Muller—Policy Advisor at AMCTO, discusses the state of municipal accountability and transparency following the introduction of Bill 8. Relying on data from a survey of municipal CAOs and City Managers, this brief offers a glimpse of the operational and policy decisions municipal officials are making several months into the implementation of this new regime for accountability and transparency. It suggests that the municipal response to Bill 8 is both fragmented and evolving. While some municipalities have implemented new policies or procedures, a majority are still determining the best approach for their community.

Brief

To access this issue of AMCTO’s Policy and Management Brief, please click here.

You can also review the full survey data here.

Upcoming Policy & Management Briefs
In June, AMCTO is pleased to release the next Policy and Management Brief titled “Continuously Improving Municipalities to Achieve Strategic Success,” which will examine how operationalizing a strategic plan can align to continuous improvement for all sizes of municipalities. Author Thomas Plant, Director of Strategic and Enterprise Services with the City of Brampton uses this Policy and Management Brief to build upon the work in his previous two books; Strategic Planning for Municipalities: A Users Guide and Roadmap to Success: Implementing the Strategic Plan which are published by Municipal World.

Paul Dubé Appointed New Ontario Ombudsman

Yesterday it was announced in the legislature that Paul Dubé will become Ontario’s next Ombudsman. Dubé comes to the role of Ombudsman after serving as the federal taxpayer’s ombudsman, the office responsible for handling citizen disputes with the Canada Revenue Agency. His appointment was agreed upon by all three parties.

For more:

Toronto Star: Paul Dubé to succeed André Marin as next Ontario ombudsman

 

 

IPC Rules Councillor’s Email An Official City Record

In a decision that may set a precedent for municipalities across the province, Ontario’s Information and Privacy Commissioner (IPC) has ruled that the City of Oshawa must consider an email sent by a sitting councillor from her personal email address an official city record. As part of its ruling, the IPC stated that any records that emanate from a councillor’s official responsibilities as a member of council are subject to information access laws.

The city argues that it could not legally compel the councillor to provide the record. The parties did not refer me to any contracts, codes of conduct or policies that expressly or by implication give the city the legal right to possess or otherwise control the record, which was sent from the councillor’s personal iPad. The Supreme Court has stated, however, that de facto (as opposed to de jure) control is recognized as control. Although a councillor is not considered to be part of the city for the purposes of the Act, neither is a councillor a stranger to the city; both are governed by the Municipal Act.… I acknowledge that, as discussed above, many previous orders of this office have found that records created by city councillors are not in the control of the city. However, determining custody and control is a contextual exercise. None of the orders involved facts similar to those before me…

-Information and Privacy Commissioner Ontario, ORDER MO-3281, The Corporation of the City of Oshawa, January 22 2016

 

Fore more:

Information and Privacy Commissioner Report 

Toronto Star: Email from Oshawa councillor’s private account ordered released 

 

Event: The Expanding Mandate of the Ontario Ombudsman

On behalf of the Ontario Ombudsman’s Office, the Public Policy Forum is hosting an event for school board and municipal stakeholders on February 25, 2016. See below for more information:

As of January 1, 2016, the Office of the Ontario Ombudsman’s jurisdiction now includes the province’s 444 municipalities, 82 school boards and 21 publicly-funded universities, in addition to the hundreds of provincial government bodies it has overseen for more than 40 years.

 This change, part of the Public Sector and MPP Accountability and Transparency Act (or Bill 8), provides an excellent opportunity to discuss the role and function of the Ombudsman, and what these changes mean for the newest members of the Ombudsman’s community: school boards and municipalities. 

The Public Policy Forum invites stakeholders from school boards and municipalities in Ontario one a one day conference in Toronto on February 25, 2016. This conference will explore the meaning, implications, and impact of this new legislation. Findings from the roundtables conducted between September and December 2015 will be addressed at the conference.

The conference will also offer participants information about:

  • What Ombudsmen have achieved in Ontario, and Canada;
  • How the Ombudsman will engage municipalities and school boards when handling complaints;
  • What to expect when the Ombudsman calls;
  • The importance of local accountability and complaints mechanisms and how the Ombudsman can help; and, 
  • Conference delegates will be engaged in group discussions about improving government accountability and public services.

Register here for this free event.

For more information, please contact Rhonda Moore at Rhonda.moore@ppforum.ca or by phone at 613-238-7858 x 230.

 

 

BIll 8 and Recordkeeping

The Information and Privacy Commissioner of Ontario has released a new paper, which is designed to help municipalities understand their new responsibilities for recordkeeping under Bill 8.

You can find the full paper here:

FIPPA and MFIPPA–Bill 8 Recordkeeping Amendments

Bill 8 amends the Freedom of Information and Protection of Privacy Act (FIPPA) and the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) to include new requirements for recordkeeping.

Fore more:

New Resource About Bill 8 Requirements 

Ombudsman’s Office Getting New Resources for Bill 8