In July 1985, the Honourable Ian Scott capsulized the underlying principle behind Ontario’s Freedom of Information and Protection of Privacy Act:
“We do not, and never will, accept the proposition that the business of the public is none of the public’s business.”
What follows is a test of whether the principle that Scott spoke to applies to green energy in Ontario today.
To understand the sudden appearance of thousands of wind turbines in rural Ontario, to understand the factors causing power rates to skyrocket, to understand the policy processes driving these trends, it would help to be able to follow the money, particularly the profits of green energy producers. Right now, notwithstanding Kathleen Wynne’s commitment to “open, transparent and accessible government”, that information is a government secret.
In November 2012, the Ontario Power Authority undertook a study to estimate what it might cost to get out of six wind farm contracts, issued earlier under the FIT program. The direction to the OPA to undertake this work claimed that these wind farms caused undue risk to birds (or Liberal seats). Two of the six already had their Renewable Energy Approvals (REAs). Since the REAs were supposed to take due consideration of issues like sensitive habitat, the obvious question arose as to how the REAs were granted.
One of these projects, then unbuilt, was the McLean’s Mountain Wind Farm on Manitoulin Island. In February 2013, I started an investigation using Freedom of Information (FOI) to uncover the OPA’s analysis.
The OPA and later the IESO have fought tooth and nail for over two years to keep that analysis and records of its circulation secret. For the first 16 months of this ordeal, they claimed that no such analysis was conducted. Even after I explained exactly where to look, they kept claiming the report did not exist. Later, when cornered by a promise the OPA made in the presence of an IPC mediator to produce an affidavit swearing to the non-existence of this analysis, the analysis magically materialized, albeit with the key information redacted.
What follows below is my last gasp submission, filed earlier today in the final round of appeal to the Information and Privacy Commission seeking an order for disclosure of the conclusion of the OPA’s study undertaken in November 2012. I also plead with the Information and Privacy Commission to order the IESO to explain its stonewalling, inaccurate statements, attempts to muddy the waters of my appeal, and strategy of ignoring key elements of my request entirely.
Who is accountable for the OPA/IESO’s delays, unexplained reversals, shifting exemption claims, and smoke screens? Who has directed its actions over the course of this FOI? Who was informed of its strategy in handling the FOI request along the way? Was the proponent of the wind farm in question involved in the FOI? Was the responsible Minister aware of the FOI?
Who can stand?
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Here is a much earlier posting with some of the information revealed in an early round of this investigation.
The MMWF Foi june 2014 partial disclosure from the OPA, after getting caught by its own promise to produce an affidavit, is here.
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February 26, 2014
Jennifer James
Adjudicator
Information and Privacy Commissioner of Ontario
Tribunal Services Department
2 Bloor St. East, Suite 1400
Toronto, Ontario
by email: jennifer.schaffer@ipc.on.ca
re. Appeal PA13-310
Dear Adjudicator James,
This letter and four attachments constitute my representation regarding the above-noted appeal.
The attachments are provided for easy of reference only, all of which are already part of the record of this proceeding.
My representation will address:
background of how this matter has come to adjudication,
response to the IESO representation dated January 16, 2014 (sic),
comments on the applicability of Section 18
conclusions
I hope to persuade you to make findings on the following:
Was the IESO (and its predecessor respondent, the OPA) duly diligent in this matter? The documentation presented below demonstrates that the respondent was negligent in its searches, its response times, and its representations throughout the administration of my information request.
Were statements of the respondent over the course of this FOI process complete, reliable and truthful? The document presented below indicates that respondent relied on false statements and never provided an explanation for its reversal of position. The respondent also sought many times and many ways to muddy the waters of this request. The documentation provided shows that the respondent ignored a central element of my request entirely and without explanation.
I also seek specific Orders for production of documents pursuant to unsatisfied elements of my original and amended requests.
I seek disclosure of the profit estimate that the IESO undertook in the report it now acknowledges to have undertaken. I also seek records of communication of the results of the report, including a list of those to whom the results were sent.
I also ask that you direct the IESO to explain on the record its behaviour in this case.
Who is accountable for the delays, unexplained reversals, shifting exemption claims, and smoke screens? Notice that the IESO’s representation in this appeal is unsigned. Who has directed its actions over the course of my FOI? Who was informed of its strategy in handling my FOI request along the way? Was the proponent of the wind farms in question involved in the FOI? Was the responsible Minister aware of the FOI?
Finally, I ask you to comment on ways to improve future IPC mediation processes.
Your published mediation guidelines indicate that “Successful mediation requires the commitment of all parties.” What actions should IPC mediators take if it becomes clear, as in this case, that the respondent is abusing the process by behaving irresponsibly?
My representation in this appeal is a public document. My original request was motivated by a desire to promote the public interest by bringing to light information I believe critical to understanding the underlying dynamics of Ontario’s electricity policy situation and power rates. As the difficulties associated with my inquiry ramified, I became concerned to inform electricity ratepayers and citizens living with wind turbines about details of how information that might interest them is treated by the public officials holding positions of great influence over their welfare.
At paragraph 42 of its submission, the IESO makes remarks that if I raise new issues regarding a public interest exemption that it have an opportunity to reply. I will be making comments on the public interest pursuant to Section 23 of the Freedom of Information and Protection of Privacy Act (FIPPA). However, all my comments in this representation regarding public interest considerations directly quote or flow from my comments in my letters to the IPC and the respondent of May 13, 2014 and September 16, 2014. The IESO has already had an opportunity to reply to my public interest remarks. As documented below, the body of correspondence leading up to this appeal has made it abundantly clear to the IESO the matters at issue in this appeal. A further round of arguments would unnecessarily lengthen this process.
As I will demonstrate, the IESO’s January 16, 2015 representation focuses extensively on matters that can provide no assistance to the appeal process — yet another example of the IESO muddying the waters.
There are two minor errors in the Notice of Inquiry that I correct below.
How This Appeal Came to Adjudication
The OPA acknowledged receipt of my original Freedom of Information application on February 15, 2013 — more than two (2) years ago (it was filed Feb. 7). Over the course of my struggle to obtain some simple information defined with pinpoint accuracy, on a couple of occasions I have missed deadlines by a few days or weeks here and there. However, the respondent is overwhelmingly responsible for turning this process into an endurance contest. For over a year, the respondent used non-responsive production to delay. There were many occasions, some of which are discussed in greater detail below, when the respondent would miss deadlines by several months with no indication of when I was to expect production. When responses were produced, no explanation for delays were ever provided.
My original request was for:
“any analysis conducted by or for the Ontario Power Authority with respect to adjustments to or cancellation of the power purchase agreement for output from the McLean’s Mountain Wind Farm completed from October 1, 2012 to February 7, 2013. Provide any records of communication associated with this analysis once it was completed. Please provide a complete list of those to whom this analysis was sent.” (emphasis added)
The OPA was unable to produce responsive records. For the records it did produce, the OPA claimed sweeping Section 17 exemptions.
After more than 11 (eleven) month of fruitless exchanges with the OPA, I filled a letter with the OPA and the IPC case mediator narrowing my search on January 21, 2014 hoping to facilitate resolution. My letter included a report of my new research findings obtained by means other than FOI. It should have been clear to the OPA, that I knew the about report I was seeking. This was no fishing expedition:
The purpose of this letter is to report on new research findings that allows me to narrow the scope of my request and therefore my appeal.
By way of background, there are two McLean’s Mt Wind Farm contracts: one is for 50 MW and the other is for 10 MW. I believe they are FIT Contract F-000520-WIN-130-601 and FIT Contract F-000522-WIN-130-601. Those two McLean’s Mountain contracts were part of a group of six contracts identified by the Ontario government in late 2012 or early 2013 for review in contemplation of termination. Those six contracts were for WPD White Pines, Ernestown Wind Farm, Ostrander Point, and one of the Windelectric projects the name of which I have not yet specifically identified. The government’s original purpose, as presented to the OPA, was that these wind farms would be located in sensitive bird and bat nesting areas. At the time this position was presented to the OPA by the government, the OPA pointed out that two of the six already had their Renewable Energy Approvals (REAs). Since the REAs were supposed to take due consideration of issues like sensitive habitat, the obvious question arose as to how the REAs were granted. A specific office within the OPA was given the job of estimating a fair value for cancelling the contracts taking into account sunk costs, lost profits, legal fees, and other transaction costs. A report was produced by the Ontario Power Authority. That is the report I seek.
With that introduction, my narrowed request followed:
Please provide any analysis conducted by or for the Director, Contract Management of the Ontario Power Authority related to the cancellation of the power purchase agreements for output from the two McLean’s Mountain Wind Farm contracts completed from October 1, 2012 to February 7, 2013. Provide any records of communication associated with this analysis once it was completed. Please provide a complete list of those to whom this analysis was sent.” (emphasis added)
The key change here was that my inquiry had been narrowly focused on particular records associated with a named technical position within the OPA. The person in that position at the time was Michael Killeavy.
My request is simple, clear, and exactly accurate. The cover note for my narrowed request explained in further detail that I believed that the OPA had a report in hand responsive to my request. Subsequent partial disclosure from the OPA — which is the subject of this appeal — identified responsive documents from precisely this position and almost at the midpoint of the specified time period.
Three (3) months later, by letter of April 14, 2014, the Ontario Power Authority (OPA), issued a decision under the authority of CEO Colin Andersen in response to my January letter. That letter is attached as Exhibit 1. The key line is:
We did not find any such report you mention in your letter.
In the Conclusion section of this representation, I urge the IPC adjudication process to express a view on the lack of due diligence from the respondent, including as reflected in its April 14 letter. In evaluating the OPA’s performance, consider the following factors:
the pinpoint accuracy of my narrowed request,
the precision of my explanatory note introducing the narrowed request,
the fact that I had at that point been pursuing this matter for over a year, and
subsequent disclosure issued by the respondent in June 2014 producing responsive records exactly as I described in my January letter, although heavily redacted and ignoring the element of my request seeking details on circulation of the report findings.
In April 2014, how is it possible that the CEO did not know about the report I was seeking? Someone had ordered his Director of Contract Management to undertake this analysis. Multiple staff worked on his report. I had been pounding away seeking the report and supporting facts for 14 (fourteen) months.
The April 14th letter not only speaks to a lack due diligence (or worse), it also attempts to muddy the procedures of the ongoing litigation by suggesting that I had the right to initiate an appeal, although the letter was issued in the context of an appeal. The OPA appears to have been seeking a garbled process.
On May 13, 2014 (Exhibit 2), I wrote to the IPC with a copy to the respondent seeking refuge in IPC adjudication as the last hope for my application:
I have been seeking some simple, clearly identified information for 15 months. I am disadvantaged in debating the OPA’s Section 17 exemption claim since the OPA provides no substantiation for its conclusion that it is entitled to an exemption. I am not seeking the details of the OPA’s financial model or proprietary third party information. My request seeks to bring into the public realm information that is of direct public interest, particularly for electricity consumers and citizens directly impacted by wind power developments. If the adjudication process could bring to light a summary of the document discovered by the OPA along with a record of its circulation, that might be best that can be achieved. If the IPC adjudication process is unable to bring any useful information to light, what would that say about the rights of Ontario citizens to see what their government is doing to them behind closed doors?
To the credit of the IPC officer then handling the mediation, Ms. Coccimiglio, she pressed for an additional effort at mediation. At this point, I was so frustrated by the respondent’s stonewalling that I was less than enthusiastic about her suggestion.
The IPC mediator convened a meeting by conference call May 23, 2014 between the OPA and myself to make yet another effort at negotiating a settlement. The OPA representative merely repeated the OPA’s positions already set out in the May 13 letter. With little reason for optimism, I countered by requesting an affidavit swearing to the OPA’s position that no report as I had described four (4) months earlier existed. The OPA’s representative undertook to provide such an affidavit. In return, I undertook to collapse my appeal upon receipt of that affidavit. That agreement is recorded in my letter of May 26, 2014 provided below as Exhibit 3.
Contrary to the chronology set out in the IPC’s Notice of Inquiry for this adjudication, responsive records were not produced prior to my narrowed request. Responsive records were produced pursuant to my narrowed request only after I negotiated with the OPA that it produce an affidavit swearing to the absence of the specified records.
After having promised such an affidavit, that was when the OPA reversed its position.
Faced with the prospect of having to produce a sworn affidavit that would directly implicate the Director of Contract Management Michael Killeavy, a month after promising the affidavit, the OPA experienced a miraculous reversal of its position. Responsive (although heavily redacted) documents appeared, as if from nowhere. The OPA provided no explanation as to what contributed to this epiphany. Why the change?
With the change of heart came new exemption claims. Section 17 exemption pleadings suddenly disappeared, only to be replaced by Section 18 pleadings.
The Notice of Inquiry for this adjudication states that “the only records (the appellant) continues to seek access are those referred to in the OPA’s June 19, 2014 decision letter.” On the contrary, in my September 16, 2014 letter to the IPC (copied to the respondent), included as Exhibit 4, which precipitated this adjudication, I complained of “a total failure to provide records of where the requested analysis was communicated once prepared”. Again, my request from the beginning sought “any records of communication associated with this analysis once it was completed. Please provide a complete list of those to whom this analysis was sent.” I made a similar request in my letter of May 13, 2014, Exhibit 2.
The list of to whom this analysis was sent is critical to my investigation. The information would have been sent to whom ever had ordered it in the first place. Once the profit component of the projects was estimated, who received that information? Was the minister involved?
The only element of the OPA’s section 18 pleadings relevant to this appeal is the final figure estimating the lost profits from project cancellation, a subject addressed below. As I stated in my letter of May 13, 2014 and repeated again in my letter of September 16, 2014, “I am not seeking the details of the OPA’s financial model or proprietary third party information.” My pleadings in this adjudication do not budge from that position.
By letter of September 16, 2014 — after 19 months of stonewalling, false statements, unexplained reversal of position, unnecessary delay, unresponsive production, and failure to even acknowledge the scope of my request with regard to the circulation of the requested report — I sought for a second time compliance with the FIPPA rules by way of the IPC adjudication process.
IESO’s January 16, 2015 Unsigned Representation to Adjudicator
Paragraphs 14, 15, 16, 22, 23, 24, 25, 26, 27, 29, 30 and 32 of the unredacted paragraphs of the IESO’s letter of January 16, 2015 concentrate on why the details of their wind power economics model should be exempt. Even at this late date, the IESO is still wasting everyone’s time with a concocted red herring about why their model and its inputs ought to remain secret. To repeat a point that I have repeated often in the course of this ordeal, I am not — emphasize NOT — seeking the details of their model, just the output of the model.
Paragraph 32 exemplifies the IESO’s stretching to find excuses to avoid disclosure:
“The IESO benefits from the maintenance of a competitive market of providers of various capacities willing to enter into FIT contracts. The modelling assumptions allowed the IESO to consider profitability. The IESO should be free to develop such assumptions without fear that they will later be mischaracterized or applied for an unrelated purpose.”
The suggestion that the FIT program depends on a “competitive market” of providers is simply ridiculous. The whole concept of the FIT program is to hand out juicy government contracts on a first-come-first-served basis. Line ups for government-issue toilet paper in the former Soviet Union, with preferred customers at the head of the line, had the same basic “competitive market” characteristics as the FIT program.
The IESO impugns my motives in pursuing this disclosure, claiming that my intention is to “mischaracterize” and suggesting that somehow my purpose is improper. I stated my intention many times, including in my letter of May 13, 2014: “My request seeks to bring into the public realm information that is of direct public interest, particularly for electricity consumers and citizens directly impacted by wind power developments.” In my September 16, 2014 letter, I explained that the information I am seeking is, “a historical matter of general interest to electricity consumers and of direct interest to residents of eastern Manitoulin Island but of no direct interest to me.” The “fear” the IESO speaks of is that consumers and wind turbine neighbours might become better educated about what is driving the trends they are experiencing.
Ontario’s electricity consumers are captive. We must pay for the output of the two wind power contracts in question. The public has no access to public utility regulation that might help explain what we are paying for from these 20 year wind power FIT contracts. The heavily redacted scraps released by the respondent in June 2014 show that the agency undertook a review of profitability with a view to understanding the cost of cancelling the contracts. That estimate would assist electricity consumers in understanding better what is happening behind their power bills. That estimate would help explain the sudden appearance of thousands of wind turbines in rural Ontario.
Response to IESO Comments on Section 18
As stated in its June 19, 2014 decision, the IESO claims a FIPPA Section 18 (1)(a) exemption for its “final figure of the calculation” of profitability.
18. (1) A head may refuse to disclose a record that contains,
(a) trade secrets or financial, commercial, scientific or technical information that belongs to the Government of Ontario or an institution and has monetary value or potential monetary value;
The first thing to note about this section is its heading “Economic and other interests of Ontario.” It would be ironic if the provisions of this section prevented Ontario electricity ratepayers from understanding better what they are paying for.
The critical question in this adjudication in relation to Section 18 is whether the information I seek has “monetary value” to the IESO, in which case, the IESO might claim privilege unless public interest considerations prevailed.
Much of the IESO’s argument on the “monetary value” exemption discusses at length the assumptions and modeling it used for calculations. As previously noted, these arguments are mere distractions.
In its paragraph 38, the respondent relies on Order PO-3031 to support its claim that planning information and profit projections are protected. The case giving rise to Order PO-3031 involved Ontario Lottery and Gaming Commission expansion proposals, where all the information sought related to prospective business. The present case is completely the opposite. The projects I seek information about are in service, being paid for their production today. Exemptions available to business development financial information ought not protect historical information where contracts are already locked in. A bird in the bush — PO-3031 — is different than spilled milk — PA13-310.
In paragraph 33, the respondent points out that it has released to me information on free cash flow to equity. This is agreed. However, what is missing from the disclosure is what the respondent identifies as the “final figure of the calculation” of profitability.
In paragraph 37, the IESO claims that the urgency of green power expansion overrules the public’s right to know what they are paying for.
Part of the IESO’s mandate is to procure new supplies of renewable energy through contracts in order to achieve the targets set by the government for conservation and renewable energy generation in Ontario. The FIT program encourages and promotes the greater use of renewable energy sources. The fundamental objective of the FIT program is to facilitate the increased development of renewable generating facilities in Ontario. Permitting the release of financial estimate information about the consequences of projects moving forward would be contrary to this objective.
The IESO might be reminded that Section 1(f) of its mandating legislation, the Electricity Act, states as a purpose of the legislation:
to protect the interests of consumers with respect to prices and the adequacy, reliability and quality of electricity service;
FIPPA contains no clauses which suggest that the government’s green energy activities are exempt from disclosure rules.
The IESO has not demonstrated that the historical information I seek has any commercial value.
Other IESO Comments
Elements of the IESO’s representation are unclear, preventing me from assessing whether those particular comments require response. The second sentence of paragraph 6 of the IESO’s statement makes no sense.
“In doing so (referring to monetary value), it (the IESO) has discussed concerns about particular market actors that and unresponsive information contained in the records at issue.” (parentheses added)
Conclusion
As the previous Information and Privacy Commissioner reminded us, including in her report June 2013 report “Deleting Accountability: Record Management Practices of Political Staff – A Special Investigation Report”, the Honourable Ian Scott in July 1985 capsulized the underlying principle behind FIPPA:
“We do not, and never will, accept the proposition that the business of the public is none of the public’s business.”
My plea to this adjudication process for relief flows from this democratic sentiment. The respondent’s behaviour throughout has been to stonewall, to rely on inaccurate statements, to muddy the waters, and to ignore elements of my request entirely.
As demonstrated by the respondent’s eventual partial production 16 (sixteen) months into the process, my request was pinpoint accurate. My request was filed less than 3 months after the report in question was completed. My refinement of the inquiry and supporting explanation was provided 11 (eleven) months into the ordeal. This refinement made it obvious where the respondent needed to look. All this and yet, had the respondent not been put to the test of producing an affidavit, the stonewalling tactic would have succeeded. What treatment could a citizen receive from this government agency if they did not come already forearmed with specific detailed information presented to the agency when the ink on the targeted report was barely dry? At what point does maladministration of a simple FOI request become negligence, denial of fact, or even contempt?
Who is responsible for the respondent’s pattern of behaviour? The decisions of the OPA were the responsibility of the CEO, but the unsigned January 16, 2015 representation of the IESO pursues identical tactics although the OPA’s CEO is long gone. The facts suggest that the respondent’s tactics are being directed at a higher level.
It seems that this respondent has been deliberately seeking to bleed my resources.
I am seeking an Order that makes findings on the conduct of the IESO in this matter, directs further disclosure, directs the IESO to explain its behaviour in this case, and comments on opportunities to enhance future mediation processes.
I urge you to make findings that:
The respondent has engaged in excessive delay with no explanation, justification or notice.
The respondent has relied on false statements about “no report” with no explanation for its later reversal.
The respondent was not duly diligent in its search.
The respondent has muddied the waters with shifting exemption claims, focusing on model assumptions and calculations when those issues were not at issue, directing me to initiate an appeal in the midst of an ongoing appeal process.
The respondent has failed respond to the following elements of my request: “Provide any records of communication associated with this analysis once it was completed. Please provide a complete list of those to whom this analysis was sent.”
I seek an Order that:
The IESO disclose its estimate of the profitability of the contracts in question accompanied by whatever explanation it deems appropriate to characterize its estimate in context of its calculations.
“Provide any records of communication associated with this analysis once it was completed. Please provide a complete list of those to whom this analysis was sent.”
I also ask that you direct the IESO to explain its behaviour in this case.
Who is accountable for the delays, unexplained reversals, shifting exemption claims, and smoke screens? Who has directed its actions over the course of my FOI? Who was informed of its strategy in handling my FOI request along the way? Was the proponent of the wind farm in question involved in the FOI? Was the responsible Minister aware of the FOI?
Finally, I ask you to comment on ways to improve the IPC’s mediation processes.
Your published mediation guidelines indicate that “Successful mediation requires the commitment of all parties.” What actions should IPC mediators take if it becomes clear, as in this case, that the respondent is abusing the process by behaving irresponsibly? What processes might discourage this from happening again?
As a housekeeping matter, I request confirmation that the “Confidential” heading on IESO’s representation is an error and that document may be circulated. Without explanation, the IESO’s January 16, 2015 representation is marked in bold at the top “Confidential”. The claim that January 16 submission is “Confidential” is contradicted by your identification in your letter of the IESO’s representation to be “non-confidential”. The copy provided to me is redacted by the IESO to exclude specific elements it believes to be privileged. I see no justification for the unredacted elements of the January 16 letter to be considered confidential. I request a comment from you in your ruling clearing up this ambiguity and allowing me to publish the January 16 letter. Pending that confirmation, I have quoted from the IESO’s representation only as necessary for my submission.
My representation is public. Please share this representation with the IESO.
Sincerely,
Tom Adams
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Exhibit 1 – April 14, 2014 letter from the OPA
(Letter to Mr. Adams dated April 14, 2014)
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Exhibit 2 – May 13, 2014 letter from T. Adams to IPC and OPA
Tara Coccimiglio
Mediator
Information and Privacy Commissioner of Ontario
2 Bloor East, Suit 1400
Re. FIPPA request 2013-013/ Appeal PA13-310
Dear Ms. Coccimiglio,
By letter of April 14, 2014, the Ontario Power Authority (OPA) has responded to my attempt to facilitate mediation which was filed with the IPC and the OPA on January 21, 2014.
The OPA’s response is so riddled with error and omissions that it does not move mediation forward. I therefore request that this case move forward to adjudication.
My concerns with the OPA’s response relate to its unresponsive content and its proposed process for resolution.
A short review of my original application might assist. The OPA acknowledged receipt of my original Freedom of Information application on February 15, 2013. After much delay, unresponsive responses from the OPA forced me into the appeal process. To facilitate resolution, I filled a letter with the OPA and the IPC case mediator narrowing my search on January 21, 2014. Here is my narrowed request:
Please provide any analysis conducted by or for the Director, Contract Management of the Ontario Power Authority related to the cancellation of the power purchase agreements for output from the two McLean’s Mountain Wind Farm contracts completed from October 1, 2012 to February 7, 2013. Provide any records of communication associated with this analysis once it was completed. Please provide a complete list of those to whom this analysis was sent.”
The OPA did not reply to this narrowed request until April 14, 2014. In the almost three months that it took to reply, the OPA acknowledged that it has a record responsive to this narrowed request and that this record is the same responsive record it had previously discovered. The OPA also claims that a Section 17 exemption applies to the record, apparently in its entirety.
The OPA’s April 14th letter is presented as if my letter of January 21 initiated a fresh FIPPA application. The OPA’s specific direction is that if I don’t like the response I can file a new appeal. The OPA fails to recognize the significance of my attempt to facilitate the mediation process. My letter of January 21 did not create a fresh application and there is no need for me to file a new appeal. The OPA’s efforts to restart the appeal process fails to comply with the legislation.
In its April 14 response, the OPA is not claiming that the record identified contains any private information obtained from Northland that could not be obtained from public sources. With the passage of time, we know the power generation project in question — McLean’s Mountain Wind Farm — is being completed and is in fact now in the final stages of being brought into service. The IESO’s most recent 18 month outlook, available herehttp://www.ieso.ca/Documents/marketReports/18MonthOutlook_2014feb.pdf, shows the “estimated effective date” for McLean’s Mountain Wind Farm of Q4 2014. The contract was not cancelled as once contemplated. As a result, there are no negotiations for cancellation to prejudice. The analysis I have requested is primarily of historical interest.
I look to the IPC adjudication process to produce some remedy. I have been seeking some simple, clearly identified information for 15 months. I am disadvantaged in debating the OPA’s Section 17 exemption claim since the OPA provides no substantiation for its conclusion that it is entitled to an exemption. I am not seeking the details of the OPA’s financial model or proprietary third party information. My request seeks to bring into the public realm information that is of direct public interest, particularly for electricity consumers and citizens directly impacted by wind power developments. If the adjudication process could bring to light a summary of the document discovered by the OPA along with a record of its circulation, that might be best that can be achieved. If the IPC adjudication process is unable to bring any useful information to light, what would that say about the rights of Ontario citizens to see what their government is doing to them behind closed doors?
Sincerely,
Tom Adams
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Exhibit 3 – May 26, 2014 letter from T. Adams to IPC and OPA
Tara Coccimiglio
Mediator
Information and Privacy Commissioner of Ontario
2 Bloor East, Suit 1400
Crystal Pritchard
Freedom of Information Coordinator
Legal, Aboriginal and Regulatory Affairs
Ontario Power Authority
120 Adelaide Street West, Suite 1600, Toronto, Ontario M5H 1T1
by email: <Tara.Coccimiglio@ipc.on.ca>, <crystal.pritchard@powerauthority.on.ca>
Re. FIPPA request 2013-013/ Appeal PA13-310
Dear Ms. Coccimiglio and Ms. Pritchard,
Thanks to both of you for convening a mediation meeting on May 23rd.
My understanding of the result of that meeting was that Ms. Pritchard would obtain from the Director, Contract Management of the Ontario Power Authority an affidavit to the effect that the OPA was not aware of any analysis undertaken for purposes related to estimating the costs of cancelling the McLean’s Mountain Wind Farm contracts. Such an affidavit would satisfy my original request and therefore the case would be closed. No adjudication or further review by the IPC would be required.
Thanks,
Tom Adams
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Exhibit 4 – September 16, 2014 letter T. Adams to IPC and OPA
Tara Coccimiglio
Mediator
Information and Privacy Commissioner of Ontario
2 Bloor East, Suit 1400
by email: <Tara.Coccimiglio@ipc.on.ca>,
Re. FIPPA request 2013-013/ Appeal PA13-310
Dear Ms. Coccimiglio,
A mediation meeting was convened by the IPC on May 23 between myself (the applicant) and the OPA (the respondent) pursuant to what I considered at the time to be inadequate earlier responses and baseless Section 17 arguments from the OPA to my original and then narrowed request. At that meeting, the OPA representative undertook to provide me with an affidavit testifying to the OPA’s position that its previous responses, issued under the direct responsibility of the CEO of the OPA, were whole and complete. Specifically, the OPA would testify to its position that it was not aware of any analysis undertaken during a defined time period of a few months in late 2012 through to early 2013 for purposes related to estimating the costs of cancelling the McLean’s Mountain Wind Farm contracts.
Out of options and worn down by the seeming fruitless, endless process, I accepted the OPA’s undertaking and promised in writing to, upon receipt of this affidavit, abandon my efforts (initiated in February 2013) to obtain the information I originally sought. I said, “Such an affidavit would satisfy my original request and therefore the case would be closed.”
On June 20th, I received from the OPA a new response to my request 2013-013. The only reasonable interpretation of the June 20th response is that, faced with the prospects of an individual person at the OPA being called upon to swear a false oath, a change of heart had occurred. The OPA’s June 20th package proved that the analysis I had specified in my original and amended requests did in fact exist, directly contradicting the OPA’s 16 months of stonewalling. Moreover, the analysis I sought had been produced smack dab in the middle of the time period I had identified in my request. The June 20th response proved that my original request could hardly have been more accurately targeted. However, the new response presented a new bait and switch tactic, now claiming, without any arguments in support, a Section 18 exemption. As noted in my letter to the OPA of June 20th (with a copy to the IPC):
key elements of the OPA’s assertions regarding the above-noted application are contradictory. With today’s package, it is clear that the OPA has reversed the position you presented in our meeting of May 23 that OPA was not aware of any analysis undertaken for purposes related to estimating the costs of cancelling the McLean’s Mountain Wind Farm contracts. A further preliminary observation is that the OPA now claims Section 18 exemptions, reversing its position presented in your letter of April 14, 2014 that Section 17 exemptions apply to requested information.
Note also that both my original and narrowed request sought “any records of communication associated with this analysis once it was completed.” The OPA’s June 20th package is does not even acknowledge this key element of my inquiry.
The OPA’s Section 18 claims, that somehow disclosing the bottom line of the analysis it now acknowledges conducting would harm the “economic and other interests of Ontario”, is utterly baseless. The wind farm we are discussing is now in service. Cancellation of the original contract prior to construction of the facility, which the government obviously once contemplated, is off the table and of interest only for historical purposes.
My request to the IPC is to send the entire matter of my original application 2013-013 and the treatment my request has received from the OPA to adjudication. My request has been subject to unresponsive disclosure, including a total failure to provide records of where the requested analysis was communicated once prepared. The OPA, including its CEO, have made false representations, including during the IPC mediation process. The OPA has relied on shifting and inconsistent exemption claims. The OPA attempted procedural trickery where I was directed by the OPA by letter of April 14 2014 to file an appeal while we were already in appeal. The OPA has deliberately ragged the puck, engineering unreasonable delay.
On May 13, 2014, I wrote to the IPC seeking adjudication. I said then:
I have been seeking some simple, clearly identified information for 15 months. I am disadvantaged in debating the OPA’s Section 17 exemption claim since the OPA provides no substantiation for its conclusion that it is entitled to an exemption. I am not seeking the details of the OPA’s financial model or proprietary third party information. My request seeks to bring into the public realm information that is of direct public interest, particularly for electricity consumers and citizens directly impacted by wind power developments… If the IPC adjudication process is unable to bring any useful information to light, what would that say about the rights of Ontario citizens to see what their government is doing to them behind closed doors?
I suggest that I am still entitled to an answer to that question.
Electricity ratepayers generously compensate the OPA staff and make available to them almost unlimited support resources. The OPA has used its vast resources to thwart my investigation into a historical matter of general interest to electricity consumers and direct interest to residents of eastern Manitoulin Island but of no direct interest to me. I plead with the IPC to stand up for the principles of disclosure enshrined in the Freedom of Information and Protection of Privacy Act and to direct the OPA to abide by that law.
Sincerely,
Tom Adams
Crystal Pritchard
Freedom of Information Coordinator
Legal, Aboriginal and Regulatory Affairs
ONTARIO POWER AUTHORITY
120 Adelaide Street West, Suite 1600, Toronto, Ontario M5H 1T1
416.969.6036
<crystal.pritchard@powerauthority.on.ca>