Turbulent waters
Request for information on Port of Sydney development causes stir
SYDNEY — A five-year-old request for the release of information about the CBRM's role in Port of Sydney development has led to an admonishment of the municipality and a lively council debate on transparency, public confidence and disclosure.
The issue dates back to 2015, when a FOIPOP (Freedom of Information/ Protection of Privacy Act) application was made to the Cape Breton Regional Municipality to provide the applicant access to all communications relating to the municipality's granting of exclusive port marketing rights to a firm now known as Sydney Harbour Investment Partners or SHIP.
The applicant was eventually given access to a number of files, although some of the information was redacted. However, the applicant was also denied access to 682 pages of documentation and subsequently appealed the matter to Nova Scotia information and privacy commissioner Tricia Ralph.
The commissioner released her report on Nov. 3 and it was presented to council by CBRM solicitor Demetri Kachafanas during the assembly's Tuesday evening meeting.
The 21-page document states Ralph found that the municipality contravened the province's Municipal Government Act by withholding the documents in full and not conducting a line-by-line review of the record. She also found that the CBRM failed to meet its duty to conduct an adequate search for the responsive records.
The privacy commissioner went on to recommend that the CBRM conduct a new and complete search and provide the applicant with “a new open, accurate and complete decision that contains all of the missing records." She also called on the municipality to explain why certain information was not released to the applicant.
COUNCIL DEBATE
The update on the FOIPOP then led to a lengthy debate in the makeshift council chamber set up in the concourse of Sydney's Centre 200, due to COVID-19 protocols. Meetings have yet to resume at the city hall chamber due to the round room's inability to offer safe social distancing.
Rookie councillor Glenn Paruch kicked things off with a call for disclosure.
“I'm in the dark as much now as I was in 2017, 2015, 2019 — what is being hidden?” asked Paruch, who was elected in the Oct. 17 vote to replace his late father Ray as the councillor for Sydney's
District 6.
“Everyone of us that ran here at some point used the campaign slogan of transparency. So I think it's time that we give the people what they want. The perception right now of anyone outside of Centre 200 and anyone watching at home is that we are up to no good.”
Another first-term councillor, District 1's Gordon MacDonald, said the court of public opinion indicates that the CBRM is hiding information and that the new council must regain public trust and confidence on an issue that has been mired in secrecy for years.
“Taxpayers have the right to know what is being said — I agree there are legal issues and that you can't expose certain parts of it, but with 862 pages it's not unreasonable to think there isn't something in there that is not being hidden,” said MacDonald.
“I suggest that we lay it out on the table, let everyone see what is there and then move forward. If not, we're still going to be here in a year's time fighting about what's happened in the past.”
District 3 Coun. Cyril MacDonald also went on record with his call for release of the requested information to the FOIPOP applicant.
“To withhold 862 pages of public information five years ago was unacceptable and it's certainly unacceptable today, so I think we need to move forward on this and let the past be the past,” he said.
CBRM RESPONSE
However, solicitor Kachafanas said the municipality does not necessarily agree with the findings and recommendations laid out in the privacy commissioner's report.
“We do not agree with the FOIPOP office that they (redacted documentation) were not exempt to disclosure, so we're going through them again to see what is no longer
confidential and anything else that we deem to be confidential will not be disclosed,” he said.
“We believe they are exempt and we still believe that we met the exemption. The FOIPOP office has a different view but they can only make recommendations and the applicant, if they are not happy, has the ability to go to court and say they don't agree.
“The FOIPOP office takes the view that if you are going to do business with the municipality then you should be subject to disclosure, but I would think that the companies we are talking about would be taking a different view of this if we signed a non-disclosure agreement with them.”
CBRM chief administrative officer Marie Walsh was also asked to weigh in on the situation. She said that while the municipality has nothing to hide it must not leave itself vulnerable to lawsuits over the disclosure of potentially
damaging information.
“Even if those (once discussed) proposals are dead there's a been lot of work that has gone into those that others could use and that we would be sued if we released that information,” cautioned Walsh.
Coun. Steve Parsons urged his colleagues to abide by the advice of the lawyers and reminded council that when it comes to doing business the CBRM's reputation is on the line.
“If we set a precedent here and throw everything on the table, including what we may be liable for we will not attract any future business to Cape Breton because we will not be seen as being trusted,” he said.
By the end of the debate it was learned that the municipality plans to go through the requested documentation one more time before delivering what it deems to be relevant and withhold information that might lead to legal action and/or compromise portrelated business negotiations.
Kachafanas said the CBRM is giving itself 60 days to complete the review and deliver what it can.
“It's our hope that most, if not all, of the documents will be disclosed,” he conceded.
As for the proposed container terminal development that has been talked about for years, veteran councillor Darren Bruckschwaiger said he continues to have a positive feeling on its future.
“I'm still very confident that something is going to happen with this container terminal and sooner rather than later,” he said.