The Manitoba Ombudsman has upheld the City of Brandon’s refusal to disclose six of seven documents relating to a conflict of interest investigation of Mayor Shari Decter Hirst last May.
The ombudsman has also found that the city was within its rights to withhold the cost of legal counsel obtained by the Brandon city clerk’s office regarding the alleged conflict of interest.
Earlier this year, the city had denied freedom of information requests made by the Sun on June 18 for files related to legal costs paid by the city to secure a legal opinion on whether Decter Hirst breached the law when she participated in debates and decision-making activities in her role as mayor and as a Renaissance Brandon board member.
The Sun had also asked for any documents related to the legal opinion itself and the city council meeting where the opinion was discussed.
In its refusal, the city stated that solicitor-client privilege applied and the request could not be granted. The city also invoked the local public body confidences provision of the law, adding that the information was provided at a closed meeting of council.
The Sun subsequently filed a complaint with the Manitoba Ombudsman’s office, which started an investigation into the city’s refusal toward the end of August.
In an official report, which was dated Nov. 22 and recently received by the Sun, the ombudsman found that the city had authority to withhold the information, under the Freedom of Information and Protection of Privacy Act.
The report states there are seven pages of records that fall under the Sun request, all of which were initially withheld by the city. However, during the course of the ombudsman’s investigation, the city rescinded its decision to protect one of the files — an email written by deputy city clerk Heather Ewasiuk to Brandon lawyer Doug Patterson dated May 16, asking him for a legal opinion “with respect to whether Her Worship Mayor Decter Hirst is in a conflict of interest under the Municipal Council Conflict of Interest Act ....”
Ewasiuk also asked Patterson to include “any comments and interpretations” he had on Decter Hirst’s role as mayor and “the responsibilities she must adhere to ....”
In a letter to the Sun, the city’s records information manager, Ian Richards, noted his office released the email “on the grounds that it contains information that has already been publicly disclosed.”
However, in siding with the City of Brandon in its refusal to disclose the remaining six documents, the ombudsman cited section 23 (1)(b) of FIPPA, which states:
“The head of a public body may refuse to disclose information to an applicant if disclosure could reasonably be expected to reveal (b) consultations or deliberations involving officers or employees of the public body or a minister.”
Neither the city nor the ombudsman revealed the nature of the files withheld — whether they were emails, letters, notes or reports.
On June 20, city clerk Con Arvisais told the Sun that Patterson’s legal opinion was being reviewed and that it would be made public.
During an interview with the Sun that same day, Decter Hirst appeared to indicate that the clerk’s office was reviewing a physical report.
Later that month, however, Arvisais said that the legal opinion was presented to city councillors verbally instead of in writing.
“A written opinion would have taken more time and the lawyer did a pile of research and was thorough,” Arvisais told the Sun. “So I thought we should assemble council so they could hear it. There was certainly urgency to get this before council as soon as possible and there’s no advantage to wait for a written opinion.”
Ultimately, councillors decided not to pursue conflict of interest charges against Decter Hirst.
A second report received from the ombudsman this week, dated Nov. 21, also supported the city’s position that the costs it incurred from the request for legal counsel were protected under FIPPA.
“There is a reasonable possibility that disclosure of the amount of the fees paid would directly or indirectly reveal any communication protected by the privilege and that the responsive information could be used to deduce or otherwise acquire privileged communications,” the report states.
» email@example.com, with files from Keith Borkowsky