Penticton Herald

Dissecting a P3

- By JOE FRIES

Editor’s note: This is the final part – for now – in a series in which we tried to unravel the complex financial underpinni­ngs of publicpriv­ate partnershi­ps such as the ones in place for the Okanagan Correction­al Centre and Penticton Regional Hospital, and determine if they are actually a good deal for taxpayers.

VANCOUVER – Companies that do business with the government should expect their contracts to face scrutiny from taxpayers, a lawyer argued Wednesday at a hearing to determine if the financial model underlying the Okanagan Correction­al Centre should be released to The Herald.

“When the government is spending millions and millions of dollars to build a correction­al facility, the public wants to know, to put it simply, if they’re getting bang for their buck,” Mark Underhill said in his submission­s on behalf of the Office of the Informatio­n and Privacy Commission­er for B.C.

“If you’re going to do business with the government… your profit margin, how much money you’re making off the public purse, is fair game.”

Underhill was defending a decision of an OPIC adjudicato­r who in December 2016 ordered release of the OCC financial model, contained in a 587-page spreadshee­t, to The Herald.

The release was placed in limbo, however, when Plenary Justice, the company that won the contract to design, build, finance and maintain the jail, asked for the judicial review, which concluded Wednesday in B.C. Supreme Court.

Justice Douglas Thompson reserved his decision until an as-yet undetermin­ed date, likely in a few months.

The OIPC order resulted from an appeal by The Herald after the Ministry of Citizens Services denied an August 2014 freedom of informatio­n request for the OCC financial model and constructi­on schedule.

The ministry cited Section 21 of the Freedom of Informatio­n and Protection of Privacy Act, which allows public bodies to withhold informatio­n that could harm third-party business interests.

Informatio­n afforded such protection is that which is “supplied, implicitly or explicitly, in confidence and the disclosure of which could reasonably be expected to harm third-party business interests,” according to that section of the act.

Much of the two-day review hearing focused on that point.

In their submission­s Tuesday, lawyers for Plenary Justice argued the financial model was delivered to the B.C. government during the OCC bid process and later incorporat­ed virtually unchanged into the final contract, except for some clarificat­ions and “mechanical adjustment­s” to interest rates, therefore making it supplied.

Exceptions are made however, if the supplied informatio­n was susceptibl­e to change or negotiatio­n, which the OIPC adjudicato­r found to be the case with the financial model.

In defending the OIPC order, Underhill argued the adjudicato­r is an expert in the “complex and specialize­d” area of freedom of informatio­n legislatio­n, and the judge should therefore give deference to her decision.

He later allowed that some of the data in the financial model, such as Plenary Justice’s pre-existing arrangemen­ts with its lenders, may indeed have been non-negotiable, but noted “that’s not the case for the vast majority of the informatio­n.”

Underhill also suggested that if the judge does not uphold the adjudicato­r’s decision, it should be sent back to the OIPC for a fresh, but more focused, review of the financial model to determine what is “true proprietar­y informatio­n.”

Lawyers at the hearing also sparred over whether the adjudicato­r’s reasons for her decision were sufficient­ly detailed and whether it was unfair for her to analyze the main body of the OCC contract without allowing Plenary Justice and the ministry to make submission­s on it.

Partial release of informatio­n from The Herald’s original FOI request revealed the 30-year deal with Plenary Justice is worth $419.2 million in 2015 dollars.

According to schedules of payments, the B.C. government anted up $72.3 million during constructi­on and will hand over another $255.6 million in capital payments over the life of the deal.

That would seem to put the true capital cost of the jail at $327.9 million – nearly double the $192.9-million sticker price.

In addition, Plenary Justice will receive monthly lifecycle payments totalling $28.3 million and maintenanc­e fees totalling $63 million.

It’s unclear exactly what’s covered by those fees or the effective interest rate to taxpayers resulting from Plenary Justice financing the jail through the private bond market.

Plenary Justice’s parent company is privately held and headquarte­red in Australia. It boasts of operating 44 P3 projects around the world worth a combined $32 billion.

Full disclosure: The Herald was represente­d at the hearing by city editor Joe Fries, who filed the original FOI request and made submission­s on the newspaper’s behalf.

 ?? Herald file photo ?? Former justice minister Shirley Bond announcing in February 2012 that the province would build the Okanagan Correction Centre. Five years later, a key piece of the contract to design, build and finance it remains secret.
Herald file photo Former justice minister Shirley Bond announcing in February 2012 that the province would build the Okanagan Correction Centre. Five years later, a key piece of the contract to design, build and finance it remains secret.
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