Bay Observer spent years trying to get information

This past July the Bay Observer emailed Hamilton Waterfront Trust board member Jason Farr requesting minutes of the agency’s board of director meetings for the past three years. The HWT says its meetings are open to the public, and the City of Hamilton website notes that the meetings are held the second Tuesday of each month, but unlike other boards and commissions the city does not post agendas or minutes for HWT. Councillor Farr indicated our request for minutes had been forwarded to Werner Plessl, the HWT executive director but as of press time there has been no response. An August 31 story in the Hamilton Spectator described 10 unsuccessful attempts to get board minutes as well.

The lack of response for requests for information is consistent with a pattern of non-responsiveness that, for the Bay Observer, began in 2011 when a request was made under Freedom of Information for the HWT to release the following information:

A list of all the projects that made up $11.4 Million HWT received from the city between 2002-10.

Details of a construction accident in 2002 Did HWT carry insurance to cover the subsequent claim. When was the board of the HWT notified of the occurrence? When were HWT auditors advised? How was the claim settled in terms of who paid the settlement and whether there was reimbursement from HWT? Subsequently the HWT records showed the Trust reimbursed the city for $127,000.

A list of contractors who were expensed under Project Expenses to a total of $8,187,119, from 2002-10

A list of contractors who comprise the $881,578 listed as design expenses for 2002-10.

How were the above projects tendered? Were the projects advertised for tender in the print or electronic media? If so could you provide the dates of those advertisements? Does HWT have a purchasing policy different from that of the City of Hamilton?

Can you provide details of expenditures for the ice rink? Was there a stop work order issued against this project and was the HWT board notified? If so, when?

When this request was ignored, the Bay Observer appealed to the Information and Privacy Commissioner of Ontario and received the bewildering response that because the HWT Board was comprised of a mixed membership—four members appointed by the City and one by the Hamilton Port Authority– the HWT somehow fell outside the jurisdiction of the Provincial Privacy law. The Bay Observer wrote then Municipal Affairs Minister Linda Jeffrey, (now Mayor of Brampton) and Government Services Minister John Malloy, who has now retired from Provincial politics, stating in part; (The ruling that the HWT is not covered by Privacy legislation) “seems unreasonable in light of the fact that the city, which is subject to the Act  has effective control of the board though its ability to appoint 80% of its membership; and further that the HPA, who appoints a single trustee, is itself a declared institution. Under this logic, any public body who would otherwise be subject to the MFIPPA could escape the intent of the act by appointing a minority trustee from outside the organization. I am advised that an appeal to the Minister is my only recourse.”

The Bay Observer contacted then Information and Privacy Commissioner Ann Cavoukian who was sympathetic, describing it as an “important issue.” She wrote, “I have consistently taken the position that any organization receiving the bulk of its funding from public sources has a duty to be transparent in its activities and accountable for how its funds are spent.” However she lacked the authority to declare the HWT an agency subject to the Act.

Later in 2013 the Bay Observer turned to local MPP and cabinet minister Ted McMeekin asking for his intervention. Saying in part: Hamilton Waterfront Trust in its decade of operation, in addition to the $6.3 Million start-up funding contributed by the City of Hamilton, has partnered with such funders as Superbuild, The Hamilton Conservation Authority and, as mentioned, the Provincial Waterfront Regeneration Trust for funding of additional projects—all of which are declared institutions (subject to Freedom of Information). It operates on public land. Its only non-governmental support comes from a number of concessions it operates and these have not produced significant revenue. In short, I would contend that an organization that is a creature of two FOI-able entities and operates almost exclusively with public money on public land should be subject to the Act. There can be no rational justification for this agency not being covered by the act. I am asking that you join me in urging the minister to use his existing ministerial power to declare the HWT a declared institution forthwith. To date McMeekin has not responded to the Bay Observer.

Since the Bay Observer’s 2013 attempts to obtain information about the Hamilton Waterfront Trust, the Ontario Government has begun a process to expand the agencies that can be covered by Freedom of Information legislation,. Additionally the provincial Ombudsman has been given powers to investigate municipalities. The Ombudsman’s website states, “The Ombudsman can investigate complaints about the administrative conduct of municipalities, including complaints about council members, local boards, and municipally-controlled corporations (with some exceptions). Issues the Ombudsman can look at (after local complaint mechanisms have failed to resolve the matter) include: conflict of interest.”

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