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.

Policy Needs Corrections Made

The Town of Amherstburg website contains a list of policies, including a MFIPPA Policy, (Municipal Freedom of Information and Protection of Privacy), that lists the ipc.on.ca site as its source with date enacted and date amended both blank.

Page 2 mentions the City of Ottawa twice; the first states that individuals wishing to access municipal government records should begin by contacting 311 in Ottawa.

Page 3 states upon receipt by the Regional Clerk’s Office…

Page 3 also mentions the Region of Peel’s commitment.

The document ends at page 4 of 6.

This isn’t the first time I’ve found Town of Amherstburg documents borrowed from other municipalities that include references to the other municipalities.

Should the town budget for a proofreader?

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.