The Office of the Information and Privacy Commissioner (OIPC) has ordered the Town of Gibsons to turn over some information related to the George Hotel and Residences project that it had previously refused to release under the Freedom of Information and Protection of Privacy Act (FIPPA).
In 2017 the Gibsons Alliance of Business and Community (GABC) requested technical reports, peer reviews of those reports and a response from the developer filed as part of development permit applications and “the most recent project plans.”
The only documents released in response to the group’s FOI request were the project plans, prompting a complaint to the Town and eventually, in 2018 to the information and privacy commissioner.
The Town relied on a section of FIPPA that allows documents to be withheld if they contain “expert advice and recommendations” prepared to help in consideration of development permit applications.
The Town argued in its submission to the OIPC adjudicator that section of the act also exists to allow a decision to be made without being “subject to intense public scrutiny by those politically opposed to development in the area.”
In its complaint GABC said the peer reviews are separate from the decision process and they should be released to “to better understand why the permits were issued and to hold the Town accountable for its decisions.”
GABC also argued that the records “contain information relating to a risk of significant harm to the environment … and a matter before the Environmental Appeal Board (EAB).”
The complaint was filed before the scheduled EAB hearing, which was eventually adjourned before the EAB dismissed the appeal in 2019 (“Environmental appeal for George site dismissed,” Coast Reporter, Sept. 27, 2019).
In a July 13 decision, Ian Davis, the OIPC adjudicator who reviewed the complaint, agreed the Town “clearly considered the peer reviewers’ expert advice in deciding whether to issue the development permits and under what conditions” and that some of the information sought by GABC was “advice or recommendations” or would reveal advice or recommendations to the Town.
Another area where Davis found in the Town’s favour was on GABC’s argument that the documents should be released because they had been referred to publicly by Town officials as “the basis for making a decision or formulating a policy.” A public body cannot refuse to disclose information if that’s the case.
“The CAO deposed that he ‘never cited the peer reviews publicly’ as the basis for the permit decisions, and I see nothing in the material before me to controvert that unequivocal evidence,” Davis wrote in his decision.
Davis did not side with the Town on the question of whether some of the information GABC wanted released through its FOI request qualified as “an environmental impact statement or similar information,” which local governments are also not allowed to refuse to release.
The Town argued the information in question was about engineering and construction issues rather than the environmental impacts, but Davis said in his review of the contested records some of the information was similar to an environmental impact statement because some of the reports “include written assessments of the anticipated environmental effects” of the project and “several explicit discussions of environmental harm mitigation strategies.”
He also noted that while the some of the information in the documents relates to construction and engineering issues only, it was in the context of development permits required specifically to protect the environment “and especially the Gibsons Aquifer.”
Davis’ order includes a list of information the Town “is not authorized to refuse to disclose,” which at this point in the process is not public, with a deadline of Aug. 25 to give the applicant access to those records.
Gibsons CAO Emanuel Machado said the Town is still reviewing the OIPC order.
The full OIPC order can be viewed online at: www.oipc.bc.ca/rulings/orders
