TORONTO, Aug. 21 /CNW/ - Ontario Information and Privacy Commissioner Ann
Cavoukian's office today issued an Order requiring that the County of Simcoe
immediately take all steps, including legal action if necessary, to obtain
hydrogeological data at the core of a controversy over a proposed landfill
site in Tiny Township.
The Order issued today is the second related to the same appeal before
the Commissioner's Office (IPC). On May 13, 2009, the IPC ordered Simcoe
County to issue a written direction to engineering consulting firm Jagger
Hims, requiring that the records in question - which were created by the firm
to develop a report for its client, the County - be delivered to the County.
After reviewing the records, the County was then to make an access decision,
under the Municipal Freedom of Information and Protection of Privacy Act,
regarding whether the records could be released to an individual who had filed
a freedom of information request for that information.
In failing to obtain the records from Jagger Hims, the County has failed
to comply with the initial order. The County has since indicated in a letter
to the IPC that it is not willing to take any additional actions to obtain the
data. "This is completely unacceptable," said Commissioner Cavoukian.
"The County," IPC Adjudicator Colin Bhattacharjee says in today's Order,
"is continuing an unacceptable pattern of conduct in which it is deliberately
disassociating itself from key records relating to the environmental integrity
of Site 41, despite the fact that these records were created by Jagger Hims
with taxpayers' money. I have decided to order the County to take all steps,
including legal proceedings if necessary, to obtain the hydrogeological model
and input data from Jagger Hims."
At question is a new landfill site being developed by the County, known
as "Site 41." The proposed site is facing vigorous opposition from residents
in surrounding communities, who are concerned that leachate will contaminate
the groundwater that lies beneath the site. In particular, they wish to
scrutinize a hydrogeological model and input data prepared by Jagger Hims
which simulates groundwater flow in the proposed site.
In assessing whether the County has any grounds to compel Jagger Hims to
provide the County with the records, the IPC concludes that the model and
input data held by Jaffer Hims are under the County's "control" for the
purposes of section 4(1) of the Act.
"In light of my findings, and particularly the fact that Jagger Hims
received and used taxpayers' money to create the hydrogeological model and
input data, I find that the County has a potent legal basis for compelling the
firm to provide the County with these records," writes Bhattacharjee.
ACCESS BY DESIGN
At the heart of the matter is a complete absence of what Commissioner
Cavoukian calls "Access by Design."
"When institutions embark on ventures that will have major implications
to the public, as is the case with Site 41, they must plan up-front to include
access to information of public interest," said Commissioner Cavoukian. "I
cannot stress enough the importance of freedom of information. If citizens are
to participate meaningfully in the democratic process and hold politicians and
bureaucrats accountable, they must have timely access to this type of
The IPC has ordered the County to issue an access decision to the
appellant within 30 days of receipt of the records, and will remain seized of
any compliance issues or subsequent appeals that may arise from this Order.
The Information and Privacy Commissioner is appointed by and reports to
the Ontario Legislative Assembly, and is independent of the government of the
day. The Commissioner's mandate includes overseeing the access and privacy
provisions of the Freedom of Information and Protection of Privacy Act and the
Municipal Freedom of Information and Protection of Privacy Act, as well as the
Personal Health Information Protection Act, which applies to both public and
private sector health information custodians, in addition to educating the
public about access and privacy issues.
For further information:
For further information: Media Contact: Bob Spence, Communications
Co-ordinator, Direct line: (416) 326-3939, Cell phone: (416) 873-9746, Toll
free: 1-800-387-0073, firstname.lastname@example.org