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City Clerk slammed by information czar

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Ontario’s Information and Privacy Commissioner has rebuked Toronto City Clerk Ulli Watkiss’s attempt to withhold files from a Toronto resident, saying her actions were “contrary to the spirit” of the legislation that protects the public’s right to access government information. Yet the City says it has no intention of changing its interpretation of the law.

Rami Tabello had been barred from accessing public documents at the City of Toronto when Watkiss claimed his requests were “frivolous and vexatious.” On Monday, 16 months later, Tabello’s access was reinstated by Ontario’s Information and Privacy Commissioner (IPC) when she ruled [PDF] Watkiss’s decision was without merit and served to stifle a law meant to bring accountability to government.

Tabello, founder and co-ordinator of the outdoor advertising industry watchdog IllegalSigns.ca, files complaints against allegedly illegal signs and then catalogues the scofflaws in the ad industry and incompetent City inspectors who fail to uphold the laws of the city on his web site.

After making more than 600 freedom of information (FOI) requests in 2006 to get the information required to file his complaints, Tabello was informed by Watkiss that the City would not respond to his FOI requests. In her January 23, 2007 letter to Tabello, Watkiss invoked a clause in the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) that says she can choose not to fill an FOI request if she deems the request to be “frivolous or vexatious.”

Instead of taking Watkiss’s decision as the final word, Tabello, who runs IllegalSigns.ca with a small group of volunteers, appealed to the IPC.

The adjudicator for the case, Catherine Corbin, summarized both sides of the story in her report. The picture Corbin paints is that the City was overwhelmed by the number of FOI requests after complying with more than 300 of them from Tabello. The City then tried to make the case that all 600 requests were essentially the same because Tabello’s true intent was to systemically change “the enforcement of the City’s by-laws relating to sign permits.” Moreover, the City alleged that Tabello sought to use the information from the FOI requests “to portray the City in a negative light on his web site” (Corbin’s words).

Tabello’s position, as described by Corbin, was that each FOI request was unique because it was for unique pieces of information (the building permit for one address is not the same for that of another location). Further, Tabello submitted that the City’s permit system is designed to easily retrieve information and that a system that is built to handle so many thousands of applications should be able to respond to hundreds of queries for information.

In Corbin’s discussion of the facts of the case, her report acknowledges that the volume of Tabello’s requests likely puts a strain on City resources. However, Corbin is clear that the other criteria that must be evident for an FOI request to be considered frivolous or vexatious — pattern of conduct, broad nature and scope, and timing and purpose that demonstrate bad faith — didn’t indicate an abuse of the system.

In her conclusion, Corbin states, “I have found that the only factor that might support such a finding is the large number of requests that have been filed. Although they are in number, I have not found that the nature and scope, the timing or the purpose of the requests could have reasonably been perceived to amount to an abuse of process on the part of the appellant (Tabello).”

However, Corbin goes further by applying a quote from an adjudicator identified as “Officer Higgins” to describe the City’s actions: “to find that a request is…’frivolous or vexatious’ on the basis that the requester may use the information to oppose actions taken by an institution would be completely contrary to the spirit of the Act, which exists in part as an accountability mechanism in relation to government organizations.”

In response to the decision, City spokesman Rob Andrusevich says “the City will comply with the order” from the IPC to turn over the documents Tabello requested. However, when asked how the City will change its interpretation of the Act given the harsh words of the IPC, Andrusevich would only say that “the City thought we were accurate” in interpreting MFIPPA, suggesting no changes will be made.

Andrusevich also defended the City Clerk’s record of dealing with FOI requests, saying that while the City receives more than 5,000 requests per year, less than one percent of decisions are appealed to the IPC and only 25% of appealed decisions are overturned in part or in full.

Tabello, on the other hand, says the Clerk should resign or be fired, citing decisions by Watkiss that include one in 2006 that resulted in the IPC calling her response to an FOI request “somewhat disingenuous.” [PDF]

Councillor Howard Moscoe, chairman of the Licensing and Standards Committee, which recently considered a report [PDF] on illegal billboards compiled almost entirely from the complaints filed by Tabello, is unimpressed with the City Clerk, too. He said he plans to write a letter to Watkiss that “she won’t be happy about.”

“The position the City took (in opposing the FOI request) is outrageous,” said Councillor Moscoe after reading the IPC ruling. “It’s not (Tabello) being frivolous.”

“(Tabello) should get an award…Rami should be encouraged to keep going because the only time the City acts is when people from outside force them to.”

Tabello says he won’t stop filing FOI requests anytime soon and, in his characteristically assertive manner, had this to say about any future attempt by the City Clerk to corral his group’s activism: “We will certainly not shrink from taking the City Clerk to court should she try to pull this again.”

Photograph by Steve Russell/Toronto Star.

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21 comments

  1. Bravo! Nice to see the Privacy Commission telling the city that its love for secrecy is contrary to public interest and the law. Now if only the city would officially say that it was wrong and, moreover, engineer its information systems to make this sort of request easy to handle.

  2. unbelievable that the city clerk would even think that way. if she really believes that that critics should be punished, she’s not fit for her position. howard moscoe , gotta love that guy.

  3. Congrats to Tabello, he was on the right side all along. Now it is time for City Hall to do what is right and sack Ulli Watkiss, she doesn’t deserve to be in our city’s payroll. Set her as an example for all the clerks to realize for once and for all that they work for people like Rami.

  4. Ulli Watkiss, City Clerk, said, “The City of Toronto continues to provide opportunities for public involvement in civic affairs, better access to City Council through improved report formats and committee procedures, and more openness and accountability.”

    http://tinyurl.com/6rd7bw

  5. “the City thought we were accurate”: Remember, kids, whenever you file an access request, a bureaucrat sulks.

  6. Am I wrong in thinking that the Chairman of Licensing and Standards could a lot more to further Mr. Tabello’s cause than just patting him on the back?

    Isn’t it Howard Moscoe’s department that could fight these erectors of illegal signage?

  7. If the government staff would do their jobs properly, we wouldn’t need an outdoor advertising watchdog. They strain their own system by forcing someone to do their work for them for free. Rami Tabello is a hero.

  8. Josh, Howard Moscoe is doing a great job. He can’t go around micro-managing city staff. However, since he got interested in the illegal billboards file, the City decided to write a new by-law and has taken the issue a lot more seriously.

  9. What I find incredulous is that a city official can write that requests should be denied if they are used “to portray the City in a negative light on his web site.” Is that not complete ignorance and denial of the fundamental purpose of FOI legislation? I don’t think many people make FOI requests so they can show how wonderful the City is.

    Is it a coincidence that the Tim Ivanyshyn,a 28 year employee and the city official responsible for releasing Councillors’ expenses to the public was suddenly fired in February? There has never been any reason given why an “information” officer was fired.

    And lest we forget another piece of Ms. Watkiss’s history below is a exert from a press report on the firing of Rita Reynolds, the head of the Toronto FOI Office in 2003.

    “On May 20th, Reynolds had written a letter to Toronto council complaining about the refusal of city officials to co-operate with her, and asking council to order the release of documents which senior bureaucrats wanted to keep private. She wrote that she had requested the documents be provided to her so she could determine if the information could be released, and that her boss, Watkiss, had said that the information would not be forthcoming. Eight days later, she was fired.”

    At the time Ms. Hoy was quoted a saying,”she was not a team player.” Sounds like those who are on “Team Public Interest” are not welcome at City Hall.

  11. If this doesn’t make it clear to the public that the city isn’t open to the public nothing will.I understand just how difficult it is to obtain information that should be public I find it incredible that any city official can defend such a practice working for a democratic government.The public is “the boss” not those who work in the public domain.Now if only the media could use their “freedom of the press” to inform the public of what is going on instead of playing political games.

  12. thanks illegal signs & Rami for dogged & unpopular chasing!
    now if we could just tithe these big ads so that some unpopular messages could get displayed…
    -cars kill
    -cars cause cancer
    -more and smarter transit before demonizing drivers
    and I’m sure there could be a message about bikes too.

  13. As a wannabe municipal leader, George hasn’t learned the lesson about leadership in this story. If you only passively ask for something and then resort to being an arm chair activist when you get rejected, nothing changes. As Rami shows us, when the rules aren’t fair you have to fight them. It might not be fair that you have to fight but leaders fight for the change that’s needed.

    And are you really calling this story a “political game” by the media? This account didn’t pull any punches. It exposed a weak attempt by the city’s Privacy and PR departments to cover up their employer’s shame.

  17. One does wonder why licenses and permits issued are not searchable on-line. While there might be bits of sensitive personal or commercial information that could legitimately be considered private, the permit/license is a recognition by the body politic—that’d be us citizens—that the described activity of the named person is agreed to be OK. How can that be anything but public? Isn’t that why there’s usually a requirement to post licenses? Why don’t billboard owners have to post theirs?

  18. Maybe Rami should take it to the lieutenant-governor for enforcement and the removal of the clerk.A government official should have known better than to try and pull this one off.But I would be very surprised if the city clerk didn’t release the documents requested considering order issued in the appeal.
    I had a similar situation with property assessment information.They would only release information for 3 properties.It didn’t take me long to get access to what I needed beyond the three properties.They have since changed the system so that the public can access the information at terminals near the entrance to city hall.
    Clearly it’s time to begin a major change at city hall,I think the citizens are finally ready.

  19. Building permits are searchable on-line. Those include renovations to private dwellings — if that’s fair game for public access, the type and size of commercial sign authorized at a given location certainly ought to be.

  20. One does wonder why licenses and permits issued are not searchable on-line.

    Howard Moscoe is wondering the exact same thing, and a report on exactly this went to the Government Management Committee today. (See GM13.27.) I don’t know what happened there, but suffice it to say it will be years before councillors and citizens get access to the system, if ever.

    Building permits are searchable on-line.

    It’s only new applications that are searchable online, and with minimal detail provided. It’s only really useful for finding out if a permit has been applied for.

  21. Rami is, once again, to be congratulated for his activism. The City is a better place since he started this campaign.

    I completely agree that sign permits ought to be searchable online but I also wonder why the City does not make it mandatory for every billboard to display its permit number so that not only By-law officers but also citizens can easily and quickly check to see whether a billboard HAS a permit (or the right kind of permit.) Clearly the present rules are not easy to monitor, let’s hope the new By-law will be simpler, clearer and will not simply approve all the existing signs. (The city tender for a consultant to help draw upthe new by-law closed last week.)