RTG loses bid to withhold inspection reports

An adjudicator for the Information and Privacy Commissioner of Ontario has ruled there’s public interest in releasing several LRT inspection reports that the Rideau Transit Group wanted to remain sealed.

Ken Rubin, an Ottawa accessto-information specialist, has been fighting the city and RTG to get “non-conformance reports” on the Confederation Line. Those documents, which are common in all kinds of construction projects, detail work that’s not up to standard and needs to be corrected.

RTG, the builder contracted by the city, didn’t want some records released because they had technical information and trade secrets protected from release under the Municipal Freedom of Information and Protection of Privacy Act.

And, in fact, adjudicator Cathy Hamilton agreed that releasing the reports would prejudice RTG and potentially harm the consortium’s attempt for work on the Stage 2 LRT expansion and on the future Stage 3.

However, in the adjudicator’s eyes, public interest in a major taxpayer-funded infrastructure project trumps RTG’s business interests.

Rubin said it’s a big win for transparency because a public-interest “override” by the information and privacy office is rare. The decision sets the tone for similar accessto-information requests, he said. “It is significant because a lot of these kinds of non-conformance reports are done on major municipal or provincial projects,” Rubin said.

The $2.1-billion first phase of Ottawa’s LRT line is the largest infrastructure project in the city’s history. It’s a 12.5-kilometre electrified rail system that runs through a 2.5-kilometre downtown tunnel, with trains stopping at 13 stations between Tunney ’s Pasture and Blair station. The federal government and Ontario government helped fund the project.

RTG argued that the non-conformance reports shouldn’t be disclosed because the release of sensitive information — the unique technical data used to build Ottawa’s LRT system — would hurt the consortium’s competitive position, especially as the city holds contract competitions for LRT expansions. The freedom-of-information law restricts the release of information that could negatively impact the business interests of a third party.

In fact, RTG was particularly worried about information released on unique concrete mixes it developed for the Ottawa LRT project.

The city, meanwhile, agreed with Rubin that RTG wouldn’t be harmed if the reports were released.

In her decision, the adjudicator ruled the reports “rouse strong interest or attention,” particularly when the information is connected to public safety.

The adjudicator ordered the release of 63 non-conformance reports, but not attachments to the reports. The attachments have more technical information about the non-conformance findings and sometimes drawings or photographs.

“I am satisfied that the disclosure of only the non-conformance reports will provide the public with sufficient information to assess whether the construction of the LRT is being carried out safely,” the adjudicator wrote in her ruling.

RTG can ask for a judicial review of the decision. Other non-conformance reports released to Rubin in the past document minor construction deficiencies, such as broken anchor bolts and boot marks in poured concrete. Rubin doesn’t know what the next 63 reports will say. He continues to seek the release of dozens more similar reports.