UPDATE: Town of Amherstburg Ordered to Conduct Further Records Search

On August 10, 2020, the compliance date for Information and Privacy Commission ORDER MO-3934-I, the Town of Amherstburg requested an extension until September 30 to complete further searches and provide affidavits and representations about the additional searches in satisfaction of Order Provisions 1- 3.

As posted in Town of Amherstburg Ordered to Conduct Further Records Search). the first three Order provisions are:

  1. I order the town to conduct a further electronic search in response to the appellant’s request using the email addresses of the EA and any other staff in the CAO’s office.
  2. I order the town to conduct a further search of its electronic and paper record holdings for records that may flow from the May 8, 2017 email referred to in paragraph 24 of this order.
  3. I order the town to provide me with an affidavit sworn by the individual(s) who conduct(s) the further searches by August 10, 2020 describing its search efforts. The affidavit(s) should include the following information:
    1. the names and positions of the individuals who conducted the searches;
    2. information about the types of files searched, the nature and location of the search(es) and the steps taken in conducting the search(es);
    3. the results of the search(es); and,
    4. if the search described in order provision 2 does not yield any further results, an explanation.

The Adjudicator understood from the town’s letter that the Town of Amherstburg has commenced the additional searches, which have yielded a large volume of records that require review; and that there have been some delays in completing the additional searches due to demands on staff time because of emergency declarations for COVID-19 and flooding.

In response, the Adjudicator amended the compliance date in Order Provision 3 to be September 30, 2020.

Any further requests for extension must be made before September 15 and the appellant will be given an opportunity to make representations. Requests for additional time for compliance with Order Provisions 1-3 beyond September 30 that are received after September 15 will not be granted, unless extraordinary circumstances are present.

The Adjudicator clarified that the order was issued by the Information and Privacy Commissioner of Ontario, which is an Office of the Legislative Assembly and independent from the provincial government.

Privacy Concerns Regarding Downtown Survey Founded

In a December 20, 2015 post, I mentioned privacy concerns about the study given that the town and Amherstburg police have breached my personal information.

I emailed members of council that I would participate as long as the collection was in compliance with the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA). There should have been a notice pursuant to Act that addressed the collection, use, access and disclosure of personal information by the town.

Not one elected official responded to my privacy concerns.

Following a formal complaint, the Information and Privacy Commissioner Ontario confirmed that the Town of Amherstburg’s advertisement regarding the downtown use survey did not satisfy all of the notice requirements in section 29(2) of the Act.

Specifically, it did not notify residents of the legal authority for the collection of their personal information or provide information about whom to contact with any questions about the collection.

The Information and Privacy Commission advised that town clerk Paula Parker acknowledged that, in this case, the town did not use its usual personal information collection disclaimer and that the advertisement and online survey was not vetted through the Clerk’s department before publication. Ms. Parker confirmed that the Town will put a procedure in place that requires the Clerk’s department to vet the collection of personal information before publication.

I subsequently emailed Ms. Parker, copied to council, to notify her that an address was missing from the strategic plan survey notice per the Act.

Commentary by Linda Saxon

Background To Questions About Leaked Information

Commentary by Linda Saxon

In September 2015, news media reported that in camera information had been leaked to the public during the fire department changeover.

Julie Kotsis, Windsor Star, reported, “Amherstburg CAO John Miceli is clamping down on an ongoing problem with confidential town council information being leaked or hacked.”

In a recent post, I wrote about the decision that Officially, it was hearsay, in response to my Freedom of Information Request for “reports and minutes of closed meetings pertaining to the fire department changeover that were released to members of the public.”

The following is a more detailed account of questions I raised concurrently through emails in the spirit of transparency and accountability.

In an October 1 email to John Miceli, CAO, I requested, pursuant to the freedom of information legislation, a copy of the town’s notification to the Information and Privacy Commissioner Ontario of the breach of confidential council information.

On October 8, Mr. Miceli’s response directed me to a forwarded email from Ms. Parker that stated the Privacy Breach Protocol was followed and it was determined that notification to the IPC was not warranted in this matter. Mr. Miceli further stated, “If you have any other questions please do not hesitate to contact me.”

On October 14, I emailed my further questions to Mr. Miceli regarding this or any other breach of information:

  • did council order an investigation?
  • was an independent investigation undertaken?
  • did you or admin conduct an investigation?
  • was a solicitor consulted for direction?
  • how many times was the Information and Privacy Commissioner Ontario notified of a privacy breach?

Almost six weeks later, in a November 23 email, I reminded Mr. Miceli I would like my questions to be answered and, as an aside, I advised the CAO that I could not locate the town’s by-law designating anyone as the town’s Freedom of Information Coordinator on the town’s website.

Members of council were copied and I requested this be placed on council’s agenda.

On November 24, Mr. Miceli emailed me the following:

“Further to your questions I can provide you with the following answers:

1)     Council did order an investigation
2)     AN independent investigation was not undertaken in this regard.
3)     Administration conducted a review an introduced measures to mitigate future leaks.
4)     NO solicitor was consulted
5)     Please see Ms. Parker’s previous response dated October 1, 2015.

Ms. Paula Parker is designated by the Town’s through By-law 2011-84. I have attached a copy for your records. By copy of this email I will ask the clerk to place your correspondence on the public attention.”

(note: the by-law was not posted to the town’s website; it was at the external archived county of essex site and none of the grammatical errors are mine)

Since Paula Parker’s information addressed my initial question about one particular incident, in a November 27 follow up email to Mr. Miceli, I reiterated my question “regarding this or any other breach of information” how many times was the Information and Privacy Commissioner Ontario notified of a privacy breach?

On November 27, Paula Parker emailed me the following:‪ ‬

“‪With respect to question #5.  The response provided on October 8 may speak to the individual circumstance in question at that time, however in all instances of alleged breach of information this answer still applies.  See below:‬

‪In accordance with the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), which governs municipal government organizations, the Privacy Breach Protocol was followed in determining whether these breaches of information would require Information and Privacy Commissioner (IPC) notification.  The following information was taken into consideration.‬

‪The definition of personal information, as per the Act, is:‬

‪“personal information” means recorded information about an identifiable individual, including,‬

‪(a) information relating to the race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual,‬

‪(b) information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,‬

‪(c) any identifying number, symbol or other particular assigned to the individual,‬

‪(d) the address, telephone number, fingerprints or blood type of the individual,‬

‪(e) the personal opinions or views of the individual except if they relate to another individual,‬

‪(f) correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence,‬

‪(g) the views or opinions of another individual about the individual, and‬

‪(h) the individual’s name if it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual;‬

‪Under this definition of personal information, it was determined that the above such information was not released in these breaches of information.  Therefore notification to the IPC was not warranted in these matters.‬”

No one ever did inform me of council’s action/inaction regarding my correspondence.

Officially, it was hearsay

Commentary by Linda Saxon

I previously posted about Another Freedom of Information Appeal Against The Town of Amherstburg Won following Amherstburg Deputy Clerk, Tammy Fowkes’ not processing my FOI request until I submitted the ‘appropriate documentation.’

In October 2015, I requested “reports and minutes of closed meetings pertaining to the fire department changeover that were released to members of the public.”

Paula Parker, Municipal Clerk, on December 17, 2015 advised, “I hereby confirm that there are no records that respond to this request. To my knowledge the alleged release of information was hearsay and not specific records.” (emphasis by P. Parker)

Privacy Concerns With Citizen Engagement Survey – Use of the Downtown Core

Commentary by Linda Saxon

According to the Town of Amherstburg website, “A Citizen Engagement Session For Use Of The Downtown Core (Mardi Gras)” was held at the Legion on Dalhousie Street, Amherstburg on December 3.

The Town of Amherstburg then placed an ad in the December 16 River Town Times advertising “A Citizen Engagement Survey For Use Of The Downtown Core” and directing residents to the recent news section of the town’s website, which is still difficult to navigate and lacks some very basic accessibility features.

I don’t know why it’s necessary for the town to know the name and address of the person providing input; however, given that the town and amherstburg police have breached my personal information, I would have preferred a Notice as set out in section 29 (b) of the MFIPPA (Municipal Freedom of Information and Protection of Privacy Act) which states:

Notice to individual

(2) If personal information is collected on behalf of an institution, the head shall inform the individual to whom the information relates of,

(a) the legal authority for the collection;

(b) the principal purpose or purposes for which the personal information is intended to be used; and

(c) the title, business address and business telephone number of an officer or employee of the institution who can answer the individual’s questions about the collection.  R.S.O. 1990, c. M.56, s. 29 (2).

There was also no information pertaining to the access, retention, or disposal of the personal information, no place to give informed consent or notice that permission would be sought prior to anyone else requesting access.

Seeking input from residents is a great proactive and democratic approach by decision makers; I would just like to ensure that personal information is protected in the process.

Accessing Information In Amherstburg

Commentary by Linda Saxon

The purpose of the Municipal Freedom of Information and Protection of Privacy Act, 1991, is:

a) To provide a right of access to information under the control of government organizations in accordance with the following principles:

information should be available to the public;

exemptions to the right of access should be limited and specific;

decisions on the disclosure of government information may be reviewed by the Information and Privacy Commissioner.

b) To protect personal information held by government organizations and to provide individuals with a right of access to their own personal information.

Given the number of appeals and breaches of information I have endured, I would like to hear from other residents.

How open is government in Amherstburg? How are informal requests for information handled? What about Freedom of Information requests – are they routinely denied?

Another Freedom of Information Appeal Against The Town of Amherstburg Won

Commentary by Linda Saxon

In an October 31 post, Pettiness Prevails At Amherstburg Town Hall, I mentioned that Tammy Fowkes, Amherstburg Deputy Clerk, returned my FOI request, stating, “Unfortunately we cannot process your request until we have received the appropriate documentation. I have included the official form in your return package. I have also enclosed your $5.00 cheque to be returned with the official form.”

I also quoted sections from the MFIPPA (Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56) that set out what a requester shall do when making a request.

The only stipulation is that a request be made in writing; nowhere does it specify that the town’s request form is the only ‘appropriate’ document.

Accordingly, I appealed the decision on the grounds of ‘deemed refusal’ and the town is now required to issue a decision in response to my request.

Is council aware of how FOI requests are handled? Is stifling requests for information a goal this council wanted to achieve? Are FOI requests even mandatory?

The town has posted an Info Sheet – Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) on its website which includes, “Does a requester always have to submit a written FOI request to obtain information? No. Municipalities decide on their procedures locally. In practice, in many cases, municipalities choose to provide information in the absence of a formal FOI request.”

Since the town’s website is difficult to navigate, as I’ve pointed out since 2002, I could not locate the by-law designating anyone as the town’s Freedom of Information Coordinator; CAO Miceli emailed it to me when he finally responded to questions I submitted six weeks ago.

Maybe this council needs to review the Town’s By-law 2011-84 wherein council delegates its powers and authorities to the Town Clerk to act as head of the municipality for the purposes of administering the Municipal Freedom of Information and Protection of Privacy Act and for decisions made there under.

Information And Privacy Commissioner Ontario Issues Interim Order – Town of Amherstburg To Conduct Another Search For Responsive Records That Predate March 2012

The October 30 Interim Order is the result of a Freedom of Information request submitted to the Town of Amherstburg in May 2014 and subsequent appeal, mediation, and adjudication.


The appellant sought access to all correspondence between the town and its insurer relating to the town’s transition to the insurer and benefits for employees over the age of 60. The town located a number of responsive records and issued a decision disclosing them in part. The appellant appealed the town’s decision on the basis that the town did not conduct a reasonable search for responsive records. The town located additional records during the course of the appeal and disclosed them to the appellant, who maintained that more responsive records ought to exist. The adjudicator finds that the town did not conduct a reasonable search and orders it to conduct another search for responsive records that predate March 2012.

Parts of the town’s reply representations are found at paragraphs 17 and 18 below:

[17] The town continues that the appellant, as a member of the Amherstburg Police Association, was entitled to receive information from the Association. It also notes that the appellant has not provided any representations from the Association that additional records exist; he just asserts without any proof that the Association and the Chief of Police have stated that other records exist.

[18] The town asserts that its Manager of Human Resources is an experienced employee who expended reasonable efforts in conducting her searches. It states that it is entitled to reply to the request made; it need not conduct searches for records not contemplated by the request. The town concludes by stating that the appellant’s assertion about the grievance statement in the records is unfounded and is indicative of his ulterior motive for making his request.

Information And Privacy Commission Orders Town of Amherstburg To Disclose Records

Summary: The appellant sought access to two archeological assessment reports prepared in 1994 and 1997 relating to a specified location. The town and the landowner claimed the application of the third party information exemption in section 10(1) to the reports. In this order, the adjudicator does not uphold the application of section 10(1) to the records on the basis that the third part of the test under that exemption has not been met. The town was ordered to disclose the records to the appellant.

Read the full Order.