Inquiry MA-0103021 regarding the Including the letter Join the 2003 FOI Campaign From; Mr. Frank de Jong, Leader Green Party of Ontario Ms. Norma Thorney, Assistant Registrar Information and Privacy Commissioner/Ontario Dear Ms. Thorney: December 6, 2001 Re: Appeal/Inquiry MA-0103021 - City File # 000153-2001 This is in response to the Notice of Inquiry dated November 6, 2001, from the Assistant Commissioner wherein he seeks representations from the Green Party, (Frank de Jong, Leader) with respect to the above noted Appeal. Please consider the following as the Green Party’s representations. 3 Other Issues that Deal with this Appeal / Inquiry; 3 * Mr. Barber's Involvement in this Inquiry as an Affected Person; 3 * Conflict of Interest; 4 * The Copying and Transmission of Mr. Barber's FOI Requests and 5 How the Green Party Became Involved; 6 What are Political Parties and what are Their Function in a 8 The Green Party is a Legitimate and Recognized Political Party; 9 Scientific Method, Democracy and Political Parties; 10 The Cawthra Woods, Jefferson Salamanders and Their Environmental 11 In Regards to Issues of Interest and/or Concern to/by the Public and 13 The Legal Precedence that Could be Set; 14 The Nature of the Appeal and the Issues as Defined by the 16 * Joan LeFeuvre Opinion of Similar Worded Requests; 17 * Mention of Computer Generated Pages or Documents; 17 * The City's Claims Regarding Mr. Barber's Web-site; 18 * The City's Claims that the Green Party and Other Members of the 18 * That City Staff are not Contacted Regarding the Cawthra Woods; 19 Inclosing; Also on this web-page the letter by Natalie Helferty, Ecologist, in support of the Green Parties efforts. - 3 - Time to complete this representation was an issue. As the time extension that was asked for, as it was necessary, till Dec. 10/01, was not granted, when it was asked for, this representation is not as complete or of as high a quality as it could be. It needs to be noted that no lawyers were used in this representation and this is the first Freedom of Information (FOI), request made by the Green Party of Ontario and appealed. Therefore; we should not be considered or judged as persons who are experienced in the FOI Act or the Information and Privacy Commissioners/Ontario (IPC), inquiry processes. Other Issues that Deal with this Appeal / Inquiry; * Mr. Barber's Involvement in this Inquiry as an Affected Person; In Joan LeFeuvre's representation for the City of Mississauga she has clearly identified that Mr. Donald Barber is the person that Order M-947 is against, in a number of ways and the ruling against Mr. Barber, M-947 is the reason why the Green Party has been denied access to City records. On page 4 of her item number 8 (a letter dated May 28/01), Mr. Barber's web-site address has not been blocked out and in it, is a short version of his name - donbar, which also notes that this is the author's web-site. This same letter is noted as on the UFMAC Agenda May 28/01, which means it has been added to the public record. Also Mr. Barber, in his position as Chair of the Cawthra Ratepayers' and Residents' Association (CRRA) and President of the Friends of the Cawthra Bush & Greater Mississauga Area (FCB), has contact the Green Party with the request that we assist the local riding/community. We understand this request has been made to all the political parties active in the riding the Cawthra Woods is located, Mississauga South. As this is the case we (as many others have), have received from the FCB & CRRA letters that include, as the City has pointed out, the same "last paragraph". It also needs to be noted that in this riding/community it is well known that the FCB & CRRA are headed by Mr. Barber and that he is their contact person, so the letter head also identifying him or how to find out who wrote those letters. Clearly any reasonable person can see that the City has provided to the public Mr. Barber's personal information and identified him to us as being a part of this IPC inquiry. As the IPC rules allow persons who are affected by FOI requests or inquiries to be involved, so I have asked Mr. Barber if he wishes to make a representation in regards to this inquiry. He has answered that he will make a representation and it will be attached to this representation and should be considered as included in this representation. For the record - as Mr. Barber has an on going Appeal with the IPC, MA-010057-1, this representation and Mr. Barber's representation should not be in any way forwarded to the City of Mississauga or used in any way in Appeal/Inquiry MA-010057-1. I have been informed that the matter of Joan LeFeuvre being in a conflict of interest in regards to handling FOI requests that, in any way involve Mr. Barber/the Cawthra Woods has been raised. As the City of Mississauga's representation to the IPC in Mr. Barber's inquiry MA-010057-1, was not made by Joan LeFeuvre there appears to be grounds to this line of reasoning. There are number of questionable items in her representation (dealt with in other sections of this representation), so the IPC should consider asking another person at the City of Mississauga to review this matter, re-write and re-submit the City's representation. Mr. Barber will be going into more details in his representation. - 4 - As political parties also run candidates in municipal elections, denying City records to the Green Party on what would be an issue for the Green Party, can be seen as interference that would benefit the currently elected officials. * The Copying and Transmission of Mr. Barber's FOI Requests and Mr. Barber has often stated that the City of Mississauga and its FOI Coordinator have wrongly applied the FOI Act and allowed political interference in the FOI process. It would also be the Greens parties position that the applying Order M-947 to block our FOI requests was an improper application of FOI processes. Joan LeFeuvre in her Nov. 1/01 representation to the IPC provides some examples of the questionable application of the FOI Act that support this opinion. Joan LeFeuvre states in her Nov. 1/01 representation to the IPC; "In late December 2000, requests for records relating to the Cawthra Bush and particularly the Walled Garden and Jefferson Salamander, were received by the Region of Peel and the Ministry of Natural Resources. A copy of these requests, with the personal information severed, was forwarded to the City of Mississauga. A copy of these requests is enclosed for your information (Attachment #1)." Here the City of Mississauga is using FOI requests made to other institutions to block access to City records. FOI requests should not be used as such and in this case the City has identified the requester to the Green Party. So the City has both identified the requester and the requests made to another institution. Did the City ask those institutions for permission to do so? Did the City ask Mr. Barber for permission? Surely the IPC can not support this use of FOI requests and personal information for purposes unintended under the FOI Act or use of personal information collection, to this end. To use this so called evidence presented by Joan LeFeuvre would be to endorse the disclosure of FOI requests made by other person to other institutions. Other institutions that have never complained about the requester or the requests for records made to them. As Mr. Barber has no restrictions what so ever on placing FOI requests with either the Region of Peel or the Ministry of Natural Resources (MNR), the fact that he has, in order to do his job as the President of the FCB and Chair of the CRRA, should not held against anyone who make similar requests to the City of Mississauga. The facts of this inquiry have revealed what can be considered to be a form of government surveillance through the use of FOI requests. It also needs to be added that the request made to the MNR was marked "completely confidential". That both requests clearly stated they were for records in the MNR and the Region of Peel. Mr. Barber received no written notice of his request being forwarded or copied to the City of Mississauga or received any records from the City of Mississauga regarding these requests. Joan LeFeuvre states in her Nov. 1/01 representation to the IPC; "Although the personal information was severed, I am extremely familiar with the wording, spelling, format, etc. of requests by [*******] a frequent City of Mississauga requester. The majority of his many requests related to the Cawthra Woodlot/Bush. To illustrate the similarity, I am enclosing page 2 of a request dated October 23, 2000 filed with the City of Mississauga by [******]. You will note that the last paragraph on the Region of Peel letter and the City of Mississauga letter, is identical." In the above paragraph Ms. LeFeuvre claims to be an expert in Mr. Barber's use of the written English language. The IPC should ask Ms. LeFeuvre how many requests have been made regarding the Cawthra Woods and how many she has denied claiming Mr. Barber is somehow involved. It would be interesting if any access are being granted to those records. It would appear that the City wishes a ruling from the IPC in its favour so the mere claim of guilt by association will be enough to legally withhold City records. - 5 - Joan LeFeuvre states in her Nov. 1/01 representation to the IPC; "On June 10, 2001, two requests were filed ... As well, for a short period during the spring of 2001, the individual who submitted the two requests accompanied [*****] to the Urban Forest Management Advisory Committee meetings." Mr. Barber knows the person who made those requests. A member of the Mississauga South, New Democratic Party Association (NDP), that is investigating the same events the Green Party is. What should be of great concern to the IPC is the City is somehow collecting personal information in regards to who is making FOI requests and attending public meetings, then using it to deny FOI requests. Mr. Barber has contacted the person in question and he doesn't know how the City would know that he attended one UFMAC meeting. How the Green Party Became Involved; In 2000 the Green Party ran a candidate in the federal election, Pamela Murray. She attended an all candidates (Municipal & Federal), debate held by the CRRA, Nov. 7 at St. Dominic's school. At this meeting a display regarding the Cawthra Woods was set up and Ms. Murray was interested in both the environmental and political issues. As the Green Party of Ontario supports green economics, progressive social planning, and begins with the basic premise that all life on the planet is interconnected and that humans have a responsibility to protect and preserve the natural world. Also of great concern was the fact the City of Mississauga was denying all access to City records by way of official FOI requests. It was during this election that Mr. Barber asked for contact information from all political parties active in Mississauga south to post on his web-site in order to be fair and equal, the Green Party included. The Mississauga South Green Party received a formal request, dated May 13/01 to be involved in investigating the City of Mississauga's activities regarding the Jefferson Salamanders in the Cawthra Woods. The Green Party also received a copy of letter Ms. LeFeuvre has submitted as item number 8. As the Green Party is very interested in environmental issues and gaining public support in the Mississauga South riding/community by carrying out its mandate to protect important natural features, as well as promoting democracy by empowering voters with the facts. The Green Party began to investigate the facts. The Green Party has reviewed and is impressed by the support of many individuals in the academic community and institutions, such as the University of Toronto, the University of Guelph, the Toronto Zoo, Canadian Amphibian and Reptile Conservation and Centre for Biodiversity and Conservation Biology - Royal Ontario Museum, in regards to the saving the Cawthra Woods and the Jefferson Salamanders. The Green Party was informed that the City of Mississauga was again removing the habitat of the Jefferson Salamander, a Federally declared threatened species, around the end of July. Adding even greater reason to use the FOI Act to investigate City actions. There are also safety issues regarding the Walled Garden that needed to be addressed and the degree of public involvement in deciding the future of what is a rare piece of built heritage. A English style kitchen Walled Garden. Communications between the FCB & CRRA and the Green Party were in the vein of a political party trying to improve its standing in the community by helping community groups and therefore appropriate. The riding of Mississauga south/community regards the FCB & CRRA as a community resource and so does the Green Party. Time was a factor in discovering the facts and moving to save a threatened species. Mr. Barber has also supplied the Green Party with a report about "Assessing the benefits and costs of the urban forest", which supplies many scientific reasons to have large stands of trees in urban areas, which includes health reasons. It should be noted the City didn't contact the Green Party regarding its FOI requests to clarify any opinion it had about Green Party requests. In fact, a list of questions directed to Ms. LeFeuvre regarding her decision to deny access, went unanswered. It is a common legal acceptable practice for lawyers to represent the interests of a person/group accused or even convicted and not be accused with the same offenses (or tarred with the same brush as the expression goes), as the person they are associating with. Why should this be any different when a political party is advocating for the benefit of the riding/community? Given the high degree of un-cooperation with the public, so much so for a civil servant, it is a fair opinion there is the support of City politicians in denying records. What are Political Parities and what are Their Function in a Democratic By way of The Canadian Charter of Rights and Freedoms, Canada is defined and legally established as a "democratic society" - Rights and freedoms in Canada - 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. In a democratic society, political parties have a special role to play and have special status, their members are the guardians of the public's interest. The politicians of a political party are members of the public themselves and by way of a free and fair election, form the heads of government or the elected officials that will govern Canada, at all levels of government. They will make and enforce the laws. Elected political parties/politicians will have the finial say over the governments bureaucrats. Part of a fair election and a free society for that matter, is freedom of expression which means the freedom to think for yourself, express different opinions and to discover other points of view. For this to occur there must be freedom of information and the right to discover the facts, for ones self. The Canadian Charter of Rights and Freedoms also establishes the right of Canadians to these "Fundamental freedoms - 2. Everyone has the following fundamental freedoms: As democracies developed or evolved over time, a bold new idea was carried out in the worlds great democracies, to allow the citizens of those nations, by way of a Freedom of Information Act the legal right to access government records. One of the corner stones of democracy and the reason that form of government was created is that it is more accountable and just to the public. This is the most often cited reason for the creation of the Freedom of Information Acts of Canada. In terms of accountability or justice the members of a political party that are elected have special powers to over rule and even pardon those that both bureaucrats and the courts have ruled against. This power exists as it is a fact that governments and the civil service can be uncaring, harsh, unjust, just plain wrong and the public needs protection from them. The members of political party are empowered to correct these injustices. Democracies and political parties came into being to replace the many forms of dictatorship and rule by kings and queens. The public wanted this change and fought for it. All of the higher levels of government are controlled by political parties as opposed to individuals, such as in the case of municipal offices. In a democracy, the politicians and political parties are expected to service the public. A fundamental difference from the forms of government that came before. Democracy is one of Canada's proudest traditions and which many Canadian men and women have died for. - 7 - In Canada, the political party that has the second largest majority is called the loyal opposition. They are afforded money and resources to review government actions for errors or short comings to ensure the best possible government but they can not do everything. Political parties whether elected or not, have an important role to play in how government works in their riding/community. All political parties that are serious about being elected are obligated to use all the resources of their riding/community, that are available to prove their ability at representing their riding and that they are worthy of Canadians vote and forming a government. Political parties whether elected or not, review the actions of government to see if there has been any violation or denial our rights or those of groups. To stand up for the rights of those too poor to have the resources to properly defend themselves, and an unjust ruling against one can affect all Ontarians. As political parties are in the unique position of understanding government and using this knowledge for presenting to the public their suggestions as to how to lobby government for a better deal, or for changes to its plans or how laws should be changed as a way of creating a better society. Political parties can get people interested in issues, that would otherwise be considered hopeless or unknown. Their involvement and advocating on behalf of individuals or groups in ridings/communities or about important issues is one of democracies sacred trusts and often the last hope of persons or ridings/communities against the injustices that often come from governments or involving government. Political parties get elected by motivating the public regarding issues and how that party will make changes to both laws of the lands and society. Their power and role is more important then even the media’s. The media does not get elected or even aspire to sit in the legislature and actually have a direct hand how Canada is governed. Political parties have traditionally had the right and the power to define and/or create issues that are of concern or interest to the public in greater ways then the media and therefore; will have a greater impact then either individuals or the media with the facts gathered by way of FOI requests. This is part of the checks and balances in a democracy and political parties must have factual information in order to function to everyone benefit. This is why the Information and Privacy Commissioner should recognize the special status of political parties in a democracy. This is why the Information and Privacy Commissioner should recognize that they should not interfere with a political parities collection of the facts by way of government records through the FOI Act. To do so will open the IPC to criticize that it is interfering with the right of a political party to both represent a riding/community and to elect its members in that riding/community. No matter how impartial the IPC claims to be, they still are a part of the government of the day and they should not set themselves up as the judges as to what government records will be made available to a political party, especially under these circumstances. No exemptions or severances are being claimed by the City. Just legalization of total government censorship and coverup by way of merely claiming guilty by association. The City of Mississauga wants a ruling that guilt by association will become legal and all the City need do is claim there is an association with a restricted requester to deny every ones access to records that will be political embarrassing to both the City and its politicians. A method that will likely spread in its use. Was the IPC Order M-947, that restricted access, a just order? No, and there is proof important evidence (such as a submission by the Canadian Environmental Law Association), was ignored. Also the Mayor was tape recorded personally promising the City will not supply records and Mr. Barber has a list that goes on and on. - 8 - What is at stake is the right of political parties to, by way of the FOI Act, access government records for research purposes in order to be informed about issues, inform the riding/community about the true nature of government activities, to use the facts to represent and lobby for ridings/communities and generally, perform the duties of the loyal opposition (even if they are not the second largest elected majority). A necessary element of functioning democracy. To uphold the right of taxpayers to know the facts and to use them for making informed decisions in their riding/community. Otherwise we are just left with what the government feel safety in providing for our decision making and that will support only the choices the government wants the public to make. The Green Party is a Legitimate and Recognized Political Party; The Green Party of Ontario became an officially registered political party in 1983 after volunteers collected 10,000 nominating signatures. The Green Party of Ontario is independent of other green parties in Canada around the world, yet remains philosophically aligned with them. The Green Party of Ontario supports green economics, progressive social planning, and begins with the basic premise that all life on the planet is interconnected and that humans have a responsibility to protect and preserve the natural world. The party has been developing as an organization since that time, expanding its membership and improving its showing at the polls. The 1999 provincial election was our strongest yet, fielding 58 candidates, up from 37 in 1995. Public support for the Greens is at an all time high and growing stronger. Based upon votes cast (30,633 votes or 1.7% of the popular vote in 1999 - plus whatever was lost to "strategic voting"), the Greens are now the fourth largest party in the province. The first green party in the world, called the Values Party, was started in the early 1970s in New Zealand. The first green party in the western hemisphere was formed in the Maritimes, in the mid to late 70's, and was called the Small Party after E.F. Schumacher's book "Small is Beautiful". In Britain the Green Party was called the Ecology party, before the name "Green" became common. But it wasn't till the West German Green Party, called die Groenen, crossed the vote threshold of 5% and entered the German legislature in the late 1970s, that the green political movement started in earnest, and since spread all over the world. Presently there are over 100 Green Parties world-wide, and there are Green members elected in dozens of countries. At the moment the Green Party is participating in governing coalitions in Mexico, New Zealand, Italy, France, Germany, and Finland. In Canada, as well as the federal Green Party there are green parties in BC, Alberta, Saskatchewan, Manitoba, Ontario, and Quebec, and organizer are planning Green Parties in Nova Scotia and New Brunswick. As the Green Party of Ontario grows it will increasingly require to make use of the important tool of having access to government records through FOI. Denial of information will stifle the credibility and thus growth of the party. Denying FOI is denying the growth of the Green Party as well as other community groups trying to have a voice. - 9 - Scientific Method, Democracy and Political Parties; Scientific method and democracy go together perfectly. Science strives to discover the facts and governments that use the facts to base their decisions on, govern best. In democracies, governments often go to the public for input or to take direction. In many cases, matters that involve the environment are required to go before the public and the public's input plays a significant role in the finial decisions. In order for this process to work properly the public must be fully informed. The public must have full disclosure from the government as to the facts in order to have persons, groups or political parties review the facts on the public's behalf and come to their own conclusions. Also the proposed plans are often circulated more widely for greater input and feed back then if left to just the government. This is the best way to discover the short and long term effects of any environmental plans. This will form the basis of the public's opinions and input to government. Groups and political parties can draw on more people and resources then individuals, increasing the thoroughness and quality of the work done. Also as groups and political parties are representing larger numbers of people, this what governments prefer to deal with, rather then one person at a time. The FOI Act supplies the facts that are needed to come to fully informed opinions and make the best decisions. Political parties aid the public in interacting with government and knowing what questions to ask or what government records to review. One thing that needs to be stressed is the growing body of work to prove that the nature world is essential to our health, safety (safety reasons were noted in the FOI request), and well being. The Cawthra Woods as a large urban forest, is large enough to offer the surrounding community much of this. The issue of Canadians health, safety and public interest, concerns are important factors when the IPC considers releasing records that are being denied. The same is true for both political parties and science. To serve the riding/community both of the fore-mentioned look for ways to maintain a riding/community health and safe benefits, while explaining to the general public the reason why they should be concerned. Ensuring the long term survival of the Cawthra Woods and its environmental elements that supply the local riding/community with longer and healthier life is at stake here. As well as the Jefferson Salamander and other rare plant and wildlife. The most common way that important environmentally significance areas are lost is they see their environmentally significance lost a piece at a time. They are down rated to the point they can be developed. Mississaugans wish to ensure that the Cawthra Woods will not be opened to being down-rated to a non-environmentally significant area and open to development. In which case the local community would lose much or all of the health benefits from having a large stand of trees in their community. Protection of the environment is an applied science and as stated good science depends on free and open communication of the facts, actions, plans and proposals. So they can be reviewed for any errors, so suggestions can be made for improvements and in the end, made the best environmental plans possible. Good science is about provable facts, that can stand up to review, things that can be or have been measured, notes about how the information/data was collected and the methods used and finally about the conclusion standing up to review. At a public meeting, the City or government in general, presents its version of what is happening in an environmentally significance area. The public will usually get a political sales speech by either a political or staff member to justify the proposed plans, a speech with all or most of the data removed. So there is no way to do a proper scientific review of what has been presented during the meeting. The public needs the facts before hand for their own evaluation. This is part of the checks and balances in a democratic society and good science. The City's records are the best source of first hand information there is, which by the way was paid for with taxpayers dollars. - 10 - The City's records are needed to in order to properly review the facts, free of political influence (e.g., controlling what the public is told, to control the outcome). What the City is or is not doing in the way of protecting natural and built heritage as well as what kind of conservation is being carried out at the Cawthra Woods. It has been said that often government will give people three choices. The first two will be made to be unacceptable and the third will be the one that government wanted the public to choose. If the public has full access to government records and has knowledgeable people in the community to review the government plans, then this can not happen. In the past Mr. Barber has reviewed a City's proposal and created an alterative plan to the City's (which was the deforesting of the whole east side of the Cawthra Woods). Rallied the Friends of the Cawthra Bush, a large local Ratepayers group and Mississaugans in general, to support this more environmentally sound plan. The City, under public pressure, carried out the alterative plan. Good science is on going and involves monitoring. This should also mean on going access to City records by way of the FOI Act. The community needs to know what the City is or is not doing in the way of conservation and environmental protection at the Cawthra Woods. Such as, is the City carrying out its own Forest Management plan for the Cawthra Woods? There is evidence to suggest no. The public/political parties can also explore what City has not, in the way of new methods of conservation and environmental protection, if we know all that the City has investigated, to date. Not just so the best environmental protection can be used but as tax-payers we have the right to make requests to the City, such as improving how it deals with environmental protection. To be able to comment on what the City is or is not doing over the course of time. The Green Party is the most environmentally aware and responsible political party in Canada. Environmental concerns are a major part of its political platform and therefore so is science. It is good science that provides us with our environmental concerns for the world today and which are aimed at improving our health and well being. To deny political parties, such as the Green Party, access to government records would not only deny the riding/community the chance to protect its environment, by having the City's plans/actions reviewed by knowledgeable persons (many who live beyond the local riding/community). It would deny the riding the full health and safety benefits of the nature environment, which more and more people are being interested in and express great concerns about regard their and their families well being. It also would be political favouritism by the IPC for the current, local politicians/government. The Cawthra Woods, Jefferson Salamanders and Their Environmental Significance; The Cawthra Woods is a Provincially Significant Wetland Complex and the Jefferson Salamander was in late 2000 declared as Federally threatened species by the Committee On the Status of Endangered Wildlife In Canada, (COSEWIC). It has been called an Old-growth ecosystem by Prof. P. F. Maycock forest Ecologist, University of Toronto, Erindale Collage. Mississaugans and the local community has time and time again stated its desire to see the Cawthra Woods survive as a wild forest for all time. As wetlands are disappearing in Ontario/Canada at an alarming rate. The best way to protect them is to ensure the survival of their environmentally significant features, such as the Jefferson Salamander. In the case of the Walled Garden that provides them habitat, this habitat was being removed by the City's works and the MNR had to be called to stop this. This event needs to reviewed to ensure it doesn't happen again. Due to cut backs the MNR expects the local community to be its first line of defence when it comes to protecting environmentally significant areas. Communities need every opportune to keep on top of events. - 11 - The Jefferson Salamanders and their complex are being used in genetic research. Canada is involved in this cutting edge, genetics research at the University of Guelph and Dr. Bogart who is doing some of this research has done a study at the Cawthra Woods. Canada could make a world class break through in genetics. A study that was made public, by way of the FOI Act, was used to by the FCB to get the MNR to stop the City's removal of Jefferson habitat. The population at the Cawthra Woods is an isolated population and could have unique characteristic that could aid research or other studies. Every effort needs to be made to protect this native population, natural heritage. Which in turns protect the Cawthra Woods. The IPC's decision will likely affect the survival of the Jefferson Salamander and the Cawthra Wood's wetlands features. The discovery of the Jefferson Salamanders in the Cawthra Woods was by the public, as were other amphibians, reptiles and other animals. In Regards to Issues of Interest and/or Concern to/by the Public and Safety and Health; Although not specifically set out in this inquiry by the IPC, issues regarding the health, safety and of interest and concern to the public is very important as that is squarely in the jurisdiction of political parties. It is conspicuous by its absence that the City of Mississauga has not address any of these elements and whether or not the Green Party is acting in the public's best interests in regard to those elements. If there had been mediation then this issue would have been raised. Section 16 of the FOI Act is not being quoted to apply directly to this inquiry but the FOI Act does show there is flexibility in both the letter of the FOI Act and its spirit. From Sec. 16 - "compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption." Also, if there is a reason to believe the public would benefit from the release of records, then fee waives can be applied. Another example of the FOI Act not allowing an institution to withhold records is Sec. 7(2). "a head shall not refuse under subsection (1) to disclose a record that contains, ... (a) factual material;" & "(d) an environmental impact statement or similar record;". The IPC agrees that if the information contained in the government records will be disseminated for the benefit of the public then access should be granted. Political parties can do so through their network of members and to the media by way of a new releases. As this request involves all of these elements the City should be required to provide the records in question. In the past the IPC has applied a high standard in its judgments regarding what was in the public's interest, should be of concern to the public or affecting the health and safety of the public. In this case those standards are unreasonable. Political party can deal on smaller scale or a grand scale. It deals with the local riding, City and/or beyond. Political parties can makes the jump to province or country wide but typically issues for political parties are local, in peoples back yards. The issue becomes how many peoples lives have to be at risk and to what degree. The IPC should error on the side of caution. Science has show that environmental damage or removal will have long term effects on peoples health and loss of nature does degrade Canadians health. In the past the IPC has ruled that records about nuclear safety were important enough to released but issues like having forests in a community, that does affect peoples health (in a positive way), are more likely to affect Canadians, then a problem at a nuclear plant, that could happen. To be realist the IPC needs to consider the health & safety issues in the riding/community of Mississauga South as being legitimate enough and of concern and interest enough to release the records to the Green Party for their review. Otherwise the IPC should state the size of the body count require before they feel motivated release records. - 12 - Mr. Barber has noted to the IPC in his current appeal the number of petitions signed as a measure of public concern and at public meetings regarding the Cawthra Woods. Over 100 came to the Nov. 29/99 meeting and about 70 at a Sept. 13/99, meeting. There were other meetings with good turn outs. Very large numbers for what many call a small forest in Mississauga. A visit to Mr. Barber's web-site and you can count the news articles (which he says all have not been posted yet), the letters to the editors and of course the letters of support or concern from the academic community of Canada. Ms. LeFeuvre has said no one is talking to City staff about the Cawthra Woods, that will be addressed later on in this representation. The IPC is not the sole judge of what is in the public's best interest, what the public should be concerned about and the judge of safety/health issues affecting a community. It is wrong for the IPC to present itself as the sole judge of what the public needs to know and forcing us to prove that it is so. This is a very dangerous position to take in a democracy by an arm of the government's bureaucracy. The IPC is a part of the government and is saying it will decide what the public is or will be interested in and will or will not know. Mr. Barber has presented evidence to strongly suggest that the IPC and its judgements are not totally impartial. So until the day the IPC uses angels as its adjudicators, political parties should be considered equals when it comes to deciding what is or will be in the publics' interest or of concern to the public in regards to health and safety issues. If this appeal is ruled in favour of the City of Mississauga, it puts the IPC in the position of supporting, politically, the governments of the day. As noted else where in this representation political parties have a special status in society as the guardians of the public interests and defenders of ridings and communities. Political parties are in the occupation of prompting issues and what should be of concern to the public. It would be putting the cart before the horse for the IPC to suggest the IPC has to see existing public concerns and interest before it rules they existed enough to grant access. The IPC would not be able to even review the records and see all that would be important to the public's and/or of use to a political party. How could the IPC factor in other records/documents already in the possession of the requester and combined with the requested records? Or the records hope at from on going access? The IPC would just not be able see the significance of government records in these context. The FOI Act clearly does not require the requester to supply a reason for requesting the requested records. The Adjudicator for this inquiry, Stephanie Haley, has told me that I should provide all the reasons why certain records are being requested. When dealing with issues regarding the public concerns/health/safety and if the records should be released, the requester is being told to justify requesting the records that have been requested, when it should be clear to just do so. The reason the FOI Act was written so the requester does not need to inform the institution as to the purpose behind their request is simple, it would invite governments to make judgements about granting access based if the records could be used against the institution or politicians. The IPC is in very much the same position here when it come to passing judgement on a political parties use or possible use of records. Political parties exist in a very flexible environment and what could appear to be of little value today (by the IPC), in defending the riding/community, would likely become very valuable in the future. The IPC's decision will likely affect the survival of the Jefferson Salamander and Cawthra Woods, surly the IPC can see the value of protecting natural world that our survival depends on and on going good health depends on, as being important? - 13 - Order M-947 states no one shall "acting on his behalf". The dictionary defines behalf as benefit, support and defence. Mr. Barber is recognized as the leader of two community groups (the FCB & CRRA), and all the records gained by way of the FOI requests are used for the benefit, support and defence of the local community as well as Mississaugans/Canadians rights to be involved in make fully informed decisions when interacting with government. And as the City has presented no evidence it has granted access anyone regrading the Cawthra Woods, it is safe to assume it is denying access to everyone. Therefore; Order M-947 is being used to ensure that no FOI requests can be made that would benefit, support and/or in defence of the Cawthra Woods, the local community and Canadians rights to know and hold their government accountable. What the City has accuses the Green Party and the FCB & CRRA of, is the most democratic activity of all, groups working together for a common goal of benefiting the community, how is this wrong? How can this be called natural justice? The Legal Precedence that Could be Set; In no small way the IPC will be determining the very nature of the democracy Canadians live in. There a number of elements to this inquiry and that are being presented in defence the right to access. Of greatest importance is the fact that the FOI request that this appeal/inquiry is reviewing has been undertaken by the Leader of the Green Party of Ontario. As it is being presented, a political party has special statue in a democratic society, other considerations such as health, safety and issues of interest or concern to the riding/community need to be considered in a different light. Past IPC ruling/Orders have been in regards to the requesters by individuals, community groups or media, now the IPC must deal with the unique circumstances and social consequences that arise from a political party trying to access government records. Will the poor lose their last champion? The issues of the IPC becoming the judge that will control what political parties will know is at the heart of this matter. The only exemption or severance that is being claimed in order to deny City records (to those who would use them for the benefit of the riding/community), is guilt by the claim of association by a Canadian City. In the past the IPC was warned that allowing the City of Mississauga to succeed in its efforts to rule Mr. Barber was frivolous & vexatious FOI requester would create a tool for governments to defeat FOI requests and requesters who were working for the benefit of the community. In fact the Honourable John M. Reid, P.C., Information Commissioner of Canada, has expressed his grave concerns that allowing frivolous & vexatious as a reason to deny records at the Federal level would be "regressive" and would be a severe blow to government accountability. In this case the requester is made to justify the request and prove their innocence before the government. Order M-947 was the lowering of the legal bar so that most community groups could be ruled frivolous & vexatious and records denied. Now we see further evidence that the City of Mississauga is using the FOI Act to deny all access to it records. The record shows that the Mayor of Mississauga has promised to not to provide the records. The latest use of M-947 by the Ms. LeFeuvre that is of concern is claiming it can be used to deny non-FOI requests for information. M-947 would appear to legalize government censorship and cover up, that not even a political party can override. - 14 - Other legal precedence that should be of concern is the evidence the City has presented. The City identifies the person Order M-947 is against. The City provides his FOI requests from other institutions, where there are no restrictions or problems with his requests and uses them as evidence to deny access to a political party. The issue of the City monitoring the FCB & CRRA by way of FOI requests made to other institutions is cause for concern. Just as the City appears to be monitoring who makes FOI requests and attends public meetings. The Nature of the Appeal and the Issues as Defined by the Information and Privacy Commissioner/Ontario; NATURE OF THE APPEAL: The City received a request made pursuant to the Act for access to the following: "A copy of information where reference is made to the Walled Garden in the Cawthra Wood. Safety issues regarding the Walled Garden is the main focus of this request but please list all records that refer to the Walled Garden, including reports, memos, notes by staff and emails. Search City records from Sept. 2000 to present". The City denied access to the records citing Order Provision 3 (c) of Order M947. Order Provision 3 (c) reads as follows: I impose the following conditions on processing any requests and * The terms of this order will apply to any requests and appeals made The City clarified their access decision by stating: * For your information, the provisions of this Order are being applied The requester, now the appellant, appealed the City's decision. COMMENTS: The request noted by the IPC is incomplete, it should also contain the following wording; "In order to make this a cost effective search a list of persons is For this information please be sure to contact John G. Lohuis, Director - 15 - The significance of the above wording is proof of the Green parties willingness to make the most efficient and low cost request possible, that would be with the least disturbance to the City. The City made no effort to work with the requester to access City records. (1). The City was asked to provide representations that support their COMMENTS; Much of the Green parties response to this issue is contained in the general body of this representation. However there are some specific issues that will be addressed here. The original Order M-947 states "organization or entity found to be acting on his behalf", now the City has changed it to be "we have reason to believe". In the original wording it appears clear that the requesters would have to be "found" or ruled "to be acting on his behalf", before the terms of the Order M-947 could be applied. Therefore the City would have to provide its records till such a ruling had been delivered. Now it is whom ever the City judges "to be acting on his behalf", based on saying "have reason to believe". It is asked that the original wording and meaning be used. In this case the requester is made to justify the request and prove their innocence. (2). The City was also asked to provide evidence that the individual who COMMENTS; Mr. Barber has noted to the Green Party that it is in the City's best interests to keep requests and appeals open as a means to deny the community records. Which safe guards the reputation of the City, its politicians and denies Mr. Barber and the community in general the opportune to elements to make the City of Mississauga accountable. - 16 - * Joan LeFeuvre's Opinion of Similar Worded Requests; Joan LeFeuvre states in her Nov. 1/01 representation to the IPC; "On December 22, 2000, three requests were filed in our office (225-226-227-2001) by one individual, all requesting records relating to the Cawthra Bush (Rezoning, Jefferson Salamander and Walled Garden). A copy of these requests with the requester's personal information severed, is enclosed (Attachment #2). All three requests were accompanied by a computer generated document, copies of which are also enclosed. Your attention is drawn to the wording, format, staff to be contacted and how the request should be handled, of the computer generated documents. The requests were submitted by another party, however, I am confident that the computer generated pages were produced by [*****] [******], as the Privacy Commissioner's Office is aware, is familiar with the staff in City departments and in particular staff of the Community Services Department who are involved in managing woodlots." Ms. LeFeuvre has not stated if she has ever made any effort to ask the people she has judged as working for Mr. Barber as to the facts. In a case like this the judge, jury and executioner is the same person and one that questions of conflict of interest appear to have grounds. Ms. LeFeuvre should not be allowed to make these judgements and the IPC should have included these requesters in this inquiry as they are affected persons. Mr. Barber is the source of much common wording regarding the Cawthra Woods by way of his web-site, flyers and newsletters. Also, political parties that showed an interest in this matter received a copy the May 28/01 letter the City has numbered as 8. The City does not make mention of those facts. Joan LeFeuvre states in her Nov. 1/01 representation to the IPC; "On June 10, 2001, two requests were filed (86-87-2001), copies of which are enclosed (Attachment #3). Both requests are for records relating to the Cawthra Bush and the Walled Garden. Please note the wording of the request and the members of staff to be contacted. At the time these requests were filed, [*****] had an active request with the City, therefore, because of the conditions imposed by Order M-947, was unable to file a new request until the active file was closed. As well, for a short period during the spring of 2001, the individual who submitted the two requests accompanied [*****] to the Urban Forest Management Advisory Committee meetings." "Once again, access was denied pursuant to Provision 3(c) of Order M-947. This decision was not appealed and a copy of the Order was provided to the requester." These requests were made by a member of the NDP, as noted before and the reason Mr. Barber heard that it was not appeal was the requesters was so disgusted with the actions of the City, the term "fascist" was used. Another example of how M-947 can be used to discourage legitimate requesters. The wording Cawthra Bush does not appear in this request, another example of Ms. LeFeuvre not getting the details right. Joan LeFeuvre states in her Nov. 1/01 representation to the IPC; "On July 13, 2001, a request was received from a representative of the Green Party of Canada, (140-2001), a copy of which is enclosed with the requester's personal information severed (Attachment #4). Once again, please note the wording of the request, as well as reference to the members of staff. [******] request referred to above, was still active. Access to this request was denied pursuant to Provision 3(c) of Order M947 and a copy of the Order was provided to the requester. This decision was not appealed." The Green Party did receive a copy of the FCB & CRRA letter dated May 28/01, that the City has numbered as 8. The decision not to appeal was in part the requester would be out of town in the appeal period and it was hoped a request by the leader of the Green Party would be more successful. - 17 - Joan LeFeuvre states in her Nov. 1/01 representation to the IPC; "The request from the leader of the Green Party of Ontario (1532001) which is the subject of this appeal, was received on August 2, 2001. A copy of this request is also enclosed (Attachment #5). Although this request is difficult to read due to a computer problem, the wording and reference to City staff is consistent with the previous requests referred to. [*****] request was still active. The Green Party of Ontario is listed on [***** ] web site as are other political organizations (Attachment #6), however, it is the only entry containing the name and telephone numbers of the leader." The wording of the leaders request was based on the earlier Green Party request. * Mention of Computer Generated Pages or Documents; Joan LeFeuvre states in her Nov. 1/01 representation to the IPC; "On December 22, 2000, three requests were filed in our office (225-226-227-2001) ... All three requests were accompanied by a computer generated document, copies of which are also enclosed. Your attention is drawn to the wording, format, staff to be contacted and how the request should be handled, of the computer generated documents. The requests were submitted by another party, however, I am confident that the computer generated pages were produced by [*****] [******], as the Privacy Commissioner's Office is aware, is familiar with the staff in City departments and in particular staff of the Community Services Department who are involved in managing woodlots." Again, Ms. LeFeuvre makes no mention of having made any contact with the requester, other then to deny access. How can this be considered as proper? The suggestion of "computer generated documents", is clearly to try and bring elements of frivolous & vexatious requests into this inquiry without being specific or direct about it. In fact there is no direct proof the pages in question could only be "computer generated documents" and Ms. LeFeuvre again present nothing but her opinion. Would it not be reasonable that three requests made at one time would be similar in format? * The City's Claims Regarding Mr. Barber's Web-site; Joan LeFeuvre states in her Nov. 1/01 representation to the IPC; "The Green Party of Ontario is listed on [***** ] web site as are other political organizations (Attachment #6), however, it is the only entry containing the name and telephone numbers of the leader." The logic that Ms. LeFeuvre presents as being reasonable is truly mind boggling. In any other case a person making an effort to present the contact information of Ontario's political parties would be called a fair and reasonable person. But now it is suggested to be evidence of some kind of special relationship. It would be clear to even the casual observer that Mr. Barber is trying to be fair in the way he treats the political parties of Canada/Ontario, that are or are not active in Mississauga south. As a community leader of the FCB & CRRA he has an obligation to be even handed. It is a sad comment on the City, that this clear effort at being fair is being used against not only him but the Green Party. The City's item number 6, does show the Green Party was not the only political party that had a phone number as part of the contact information, for a Provincial leader. A print out of more of the web-page in question is enclosed to give a better picture of the efforts made by Mr. Barber to be fair, which is clearly noted at the top of this web-page. Arrows have been added to note that the Green Party were not the only political party to supply a phone number of an executive member/leader as contact information. That personal e-mail addresses and web-sites were also supplied. Mr. Barber posted what we sent him. - 18 - * The City's Claims that the Green Party and Other Members of the Public Would not Be Knowledgeable Enough to Write a Complete or Concise FOI Request; Joan LeFeuvre states in her Nov. 1/01 representation to the IPC; "For your information, I have enclosed a copy of two letters written by [*****] to City of Mississauga staff, as well as staff of the Ministry of Natural Resources, regarding the Walled Garden and Jefferson Salamander (Attachments #7 and #8). When members of staff whose names are mentioned in the various requests were contacted and asked if they had been contacted by persons, other than [******] regarding Cawthra Woodlot issues, the response was negative, therefore, it is doubtful they would have been able to identify the appropriate staff. I believe that the requesters, including Mr. deJong have no awareness of details, such as staff names, positions, etc. Based on the foregoing, it is my opinion that the similarities in the format, wording, tone and content of all the requests, including the one under appeal, is not a coincidence and that Mr. deJong was acting on [******] behalf or under his direction." Mr. Barber must find it very flattering to be noted as the only person the City knows of that would know the names and positions of City staff and be able to apply that highly specialized knowledge to a FOI request. However, there are other ways find out this information. The City has an information line that operators can explain who does what at the City of Mississauga (905 896-5058). Then there are the Secretaries and Receptionist who can be contacted when City staff are not taking calls, which is fairly often. Let not forget about the City Councillors, the Mayors office and the City's web-site as sources of information about City staff, names and positions. These comments do show Ms. LeFeuvre's low opinion of the Green parties resourcefulness and perhaps that has affected her judgement in regards to our FOI requests. * That City Staff are not Contacted Regarding the Cawthra Woods; Joan LeFeuvre states in her Nov. 1/01 representation to the IPC; "When members of staff whose names are mentioned in the various requests were contacted and asked if they had been contacted by persons, other than [******] regarding Cawthra Woodlot issues, the response was negative, therefore, it is doubtful they would have been able to identify the appropriate staff. Ms. LeFeuvre also appears to be making the comment that no one but Mr. Barber is concerned about the Cawthra Woods. This is something that Mr. Barber will address in his submission but it does need to be noted here that the City has gone to great effort, including the refusal to recognize the CRRA as a Ratepayers' group, as examples of the City and its staff going to great lengths to create the illusion that Mr. Barber acts alone. This is a very political method to deal with community opposition. Mr. Barber has worked for years to be the person in the community that most concerned people would call on for information about the Cawthra Woods. So it should come as no surprise that residents would call him and not the City for the facts as to what is going on. In fact that is noted in the May 28/01 letter, when a resident saw the City in the Cawthra Woods with heavy equipment they call him not the City. Mr. Barber has assured us that he has heard of people calling the City about the Cawthra Woods in the past and getting the brush off. There is no time to make the effort to provide evidence of this at this time. Also Ms. LeFeuvre makes no mention of asking the Ward 1 Councillor if people were contacting her. Many people would the Councillor before calling staff. - 19 - It is hoped the IPC will find in favour of the Green Party so we can resume our investigation of the City activities regarding the Cawthra Woods. Please do not hesitate to contact me if you have any questions. Yours sincerely, Frank de Jong, leader Green Party of Ontario Green Party of Ontario 244 Gerrard Street East, Toronto, ON, M5A 2G2, 416-929-2397 Please find enclosed; a) A copy of the May 13/01, request letter from the CRRA & FCB. b). A print out of two pages from Mr. Barber's website. c). A copy of Assessing the benefits and costs of the urban forest. d). Mr. Barber's representation to this inquiry. e). A letter from Pamela Murray, dated Dec. 3/01. f). An e-mailed letter from Natalie Helferty, Ecologist, dated Dec. 3/01. g). Photocopies of the letter to the editor by Mr. de Jong published by the From: Natalie Helferty To: Frank DeJong Green Party of Ontario Dear Mr. DeJong, Dec. 3, 2001 RE: FOI Request re the Cawthra Bush, City of Mississauga As an amphibian biologist and ecologist with expertise in the Jefferson salamander, I am actively involved in protecting the habitat of this endangered species within the Jefferson forest in Richmond Hill on the Oak Ridges Moraine. It has been brought to my attention that the management of a similarly sensitive area, the Cawthra Bush, needs to be addressed. I have visited the Cawthra Bush and found this area to be very unique and significant and healthy, especially considering the surrounding urban development in the area. The old growth forest and swamp habitat in association with the remaining breeding wetland is conducive to the continued existence of this Jefferson salamander population in Mississauga, one of only 13 populations left in Canada. The Jefferson salamander is now listed as Threatened in Canada, where it exists around the Lake Erie and Lake Ontario area down into the northeastern US to Kentucky. It is likewise considered by all states that have evaluated the species, as a species at risk of extinction in the US as well. The walled garden in the Cawthra Bush seems to be acting as refugia for the salamanders, which may be enabling this population to survive as more habitat than normally found in park areas that are typically barren and managed exclusively for human use, is created, even if artificial. Jefferson salamander typically require about 800 to 1000 acres of intact, undisturbed mature forest and wetland habitat in order to survive longterm. This number was derived from studies done in New York by Michael Klemens, a herpetologist with the Bronx Zoo. Dr. Jim Bogart from Guelph University has also worked with Mr. Klemens on DNA testing of the Jefferson salamander complex. I have also been helping Dr. Bogart by providing him with salamander roadkills for DNA testing from the Jefferson Forest. Dr. Bogart is working out the genetics of both populations as his primary research into population genetics of this species as a world renowned scientist in this specialized field of DNA work. The importance of the ANSI designation, Area of Natural and Scientific Interest, is not lost on those of us who do practice in this scientific field. It is important that those areas are retained for future scientific work. That means, managing the population properly over evolutionary time scales to ensure their continued existence. - 2 - It is quite appropriate that Jefferson Forest, is the last and most northern population to be found by me in 2000 and Mississauga, in fact Streetsville, was the first identified population of Jefferson salamander to be found back in the mid1970s. This species has not been known in Ontario for very long, and is most likely threatened with extinction due to ignorance of its existence in most forests, where poor management has resulted in its decline rangewide. As the most sensitive of all the amphibian and reptile species in eastern North America (from results of Mr. Klemens work), the Jefferson salamander needs to be accounted for. The City is now responsible for 1/13 of all Jefferson salamanders in Ontario. That responsibility cannot be taken lightly. The Cawthra Bush and its resident salamander population needs to be managed in a way that will allow the continued existence of this special and remnant ecosystem within the City as a "jewel" within the urban infrastructure of the City of Mississauga. Like Richmond Hill, the City of Mississauga has a very valuable piece of natural and human history in its midst and must take the responsibility to ensure that this special place is protected. For this reason, the public who reside in Mississauga and are duly represented by their elected officials and the staff who work for the residents, need to be assured that such management is in fact taking place responsibly. The public has a right and a need to be informed of any management practices, and also omissions in management practices, that may be proposed or taking place by the City of Mississauga. The environment is where people live, work and play and an environment conducive to its residents, including protection and good management of their natural resources, is a very important aspect of living. Physical, mental, emotional and spiritual benefits derive from interaction with a healthy ecosystem, where nature often represents a reprieve from daily living within urban areas. It is an important matter that citizens are kept informed and can provide feedback to their elected representatives and staff. A functioning system is open and honest and provides many opportunities for alternative opinions to be voiced and considered. This FOI request, from my perspective, is just one such opportunity that should be made available to the public. I encourage the Green Party of Ontario to be vigilant in its request for any information that may benefit or otherwise harm the Cawthra Bush, either through deliberate action or negligence, not always knowingly. I would be happy to review any information obtained and provide recommendations to protect the Cawthra Bush from degradation, which is often a very real outcome for sensitive areas adjacent to urban land use. My own Masters thesis studies show that amphibians and wetland habitats are very vulnerable and do decline in diversity and complexity when surrounded by urban land use. Please do contact me for further information if I can be of assistance. Sincerely, Natalie Helferty Ecologist [ COMMENTS BY DON B. - ] |
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