Town destroyed majority of records sought in FOI request for severance costs

by Chris Daponte

ERIN – Town officials here say the municipality has destroyed the majority of records pertaining to an Advertiser freedom of information (FOI) request for severances paid to terminated employees.

But they won’t say who destroyed them – or when.

During a second search ordered by the Information and Privacy Commissioner (IPC) of Ontario, the town says it found just one record, about a single employee, for the period covered by the FOI request (Jan. 1, 2012 to Aug. 11, 2017).

“The town is denying access to … the responsive record … [because] it would constitute an unjustified invasion of personal privacy,” states an April 8 decision letter from Erin deputy clerk Lisa Campion.

The additional search, Campion states in an affidavit, was conducted over several days, between March 21 and April 4, and covered financial, budget and human resources records.

The search was ordered on March 8 by the IPC, which found the town initially “failed to conduct a reasonable search” in response to the Advertiser’s request, dated Oct. 13, 2017.

IPC adjudicator Jessica Kowalski stated the town “unilaterally narrowed the scope of the [newspaper’s] request,” resulting in “a complete denial of access to the information.”

Records destroyed

The IPC order also stated that if records once existed but were destroyed, the town must explain when that happened, as well its policies/practices for record retention.

Campion’s affidavit does not specify when records were destroyed, but it states human resources records are to be retained for three years following employee departures, in accordance with Erin’s retention schedule.

“This would mean that any such records from 2012, 2013, 2014, 2015 and early 2016 would have been destroyed, pursuant to the town’s retention policy and practices,” she stated.

Campion and communications officer Jessica Spina said they could not provide specific details about document disposal.

“Lisa searched all of our records … she didn’t find any records … The assumption is that they were destroyed,” Spina said.

She and Campion told the Advertiser the town does not have “a full tracking system” that could identify the dates records were destroyed.

Adhering to the town’s retention schedule, it appears records for employees terminated between Oct. 13, 2014 (three years prior to the FOI request) and March 21, 2016 (three years prior to the IPC ordered search), were destroyed after the town received the newspaper’s initial FOI request for severance information – except, perhaps, for one.

Were records destroyed after the IPC ordered the second search for documents?

“I can’t confirm anything else,” said Campion.

Spina said, “The original (FOI) decision predates myself and the deputy clerk.” She later added “neither one of us destroyed any documents.”

The employees confirmed record management is handled by the clerk’s department, in consultation with senior management.

Retention details

Spina told the Advertiser the town updates its record retention policy annually to conform to the Ontario Municipality Records Management System, but no major changes have been made to the human resources schedule since 2016.

Employee record retention at other municipalities in Wellington County ranges from three (Guelph-Eramosa, Mapleton and Minto) to seven (Centre Wellington) and even 10 years (Puslinch).

Wellington North goes beyond that, keeping records of employee severances permanently.

Yet even municipalities with retention schedules nearly identical to Erin’s were able to provide the Advertiser with severance costs from 2012 to 2017.

Asked about the discrepancy, Campion and Spina said they can not speak to what happens at other municipalities and again reiterated the town’s search found just one record.

Moving on

Advertiser officials will try to get more details through the IPC about when Erin records were destroyed. But it remains unclear what further steps can be taken, given:

– town officials say a majority of the records pertaining to the FOI request have been destroyed;

– Erin Mayor Allan Alls has stated the town will not provide information unless forced to by the IPC;

– the IPC can not order the town to produce records the town says do not exist;

– success is unlikely in an appeal of the town decision to deny access to the one record it says it found; and

– the initial motive was to provide a six-year total of severances paid by municipalities, not specific details about particular payments.

However, the newspaper will file a second FOI request seeking the amount of money Erin has spent fighting the severance request.

Background

In the fall of 2017 the Advertiser asked all Wellington County municipalities for the total amount of severances paid to terminated employees from Jan. 1 2012 to Aug. 11, 2017.

The FOI request was made in response to what appeared to be a large number of firings by some area municipalities.

Erin was the only one of eight municipalities in Wellington, including the county, that refused to provide the information.

The newspaper then appealed Erin’s decision to the IPC.

The town’s IPC submissions, filed by Jody Johnson of the Bay Street law firm Aird and Berlis, argued unsuccessfully that the newspaper’s request was for a single document that does not exist  – and the town is not required to create a record.

The Advertiser maintained town officials knew, or should have known, that fulfilling the FOI request would require a search for several records/documents.

The IPC ruled in the Advertiser’s favour and issued an interim order requiring the town to conduct another search and to submit an affidavit from the person(s) conducting the search.

Wellington County municipalities for the total amount of severances paid to terminated employees from Jan. 1 2012 to Aug. 11, 2017.

The FOI request was made in response to what appeared to be a large number of firings by some area municipalities.

Erin was the only one of eight municipalities in Wellington, including the county, that refused to provide the information.

The newspaper then appealed Erin’s decision to the IPC.

The town’s IPC submissions, filed by Jody Johnson of the Bay Street law firm Aird and Berlis, argued unsuccessfully that the newspaper’s request was for a single document that does not exist  – and the town is not required to create a record.

The Advertiser maintained town officials knew, or should have known, that fulfilling the FOI request would require a search for several records/documents.

The IPC ruled in the Advertiser’s favour and issued an interim order requiring the town to conduct another search and to submit an affidavit from the person(s) conducting the search.

May 10, 2019

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