Rhino's Ramblings: Behind Closed Doors

Robert Thomas

It was one of the biggest controversies of the Spring of 2018, the Moose Jaw Cultural Centre Inc (MJCC) and that arm's length third party board interaction with a tenant. A tenant they no longer wanted in the Cultural Centre: RuBarb Productions Inc or just RuBarb for short.

Officially RuBarb was being asked to leave because they had seemingly overrun the entire Moose Jaw Cultural Centre. In a tour, I personally saw how much space the theatre company had taken over and from my own impression it was a lot. The claims that it was hard to do anything else in the Cultural Centre as a result of this were, in my mind, valid.

But of course there was more to the story, as there always seems to be in a Moose Jaw controversy. Nothing here seems to be cut and dried. This story featured strangeness, as the Cultural Centre had what was described as one of the “weirdest” Annual General Meetings (AGM) ever. It was complete with a lawyer and a public declaration that the MJCC had no members so they could not continue with the AGM after they did get some business completed.

But what really happened here? What was the background which had the MJCC Board deciding the fate of RuBarb as a tenant? Was it all about space or was it something else entirely? Something hidden away literally right in front of us, alluded to but never confirmed?

To get a better picture it took two Freedom of Information requests to get the email communications I thought should only be held on the City's servers. It was hard work. In the emails supplied there were some answers to the questions I had but also lots of questions and concerns not dealing with RuBarb at all but focusing on how the City operates.

Now here is what I know about MJCC's relationship with RuBarb: not only did the theatre company and acting academy grow like an ivy that spread throughout the Cultural Centre but there was also a financial angle. An angle which, in my own opinion, means at one time or another RuBarb Productions Inc or another similarly entitled entity owed the Cultural Centre money. A lot of money. It’s that plain and simple.

When I first started writing about the Cultural Centre and RuBarb my main focus was on getting to the bottom of all of this and nothing more. It was a no-win proposition for myself but that’s just how life works sometimes.

But the MJCC AGM and RuBarb intertwining dispute really isn’t what this column is about. This column is about privacy, in camera meetings, transparency and political manoeuvring; all of the things which go on inside Ye Olde Post Office at the corner of Fairford and Main. Or as we call it now Moose Jaw City Hall.

Now let’s talk about the first topic: privacy.

As everybody knows, in today’s digital age, personal privacy is a major concern. It’s something municipal governments like the City of Moose Jaw must maintain. There are even laws and regulations decided on by the Province that our City, including Council, must abide by.

But take a look at the documents and Councillor Dawn Luhning’s reaction to the questions I sent to her, as a Moose Jaw City Councillor, largely about what happened at the MJCC Inc's AGM.

I emailed the questions on April 1, 2018 at 12:23 AM. By 9:49 AM that day Coun Luhning had already forwarded the questions to Colleen Patterson and to the MJCC Board. Here is the kicker though, nowhere in this email did I authorize Coun Luhning to do this. In fact, I have never released the questions. Remember, these people are members of an arm's length third party board and independently operate the Cultural Centre. This, for me, was breach of privacy.

Then on April 9, 2018 at 3:08 pm Coun Luhning forwarded my questions from her City-held email account to a personal Gmail account. It is right there in the released emails. This is also listed as a no-no by the Privacy and Freedom of Information’s Office. It’s to help ensure the integrity, accountability, privacy and accessibility of all records.

INSERT PHOTO OF GMAIL TRANSFER HERE (photo number two)

But why were my emailed questions forwarded to a private email account? Was it just for easier safe keeping or was it to do business related to the Cultural Centre through a private email account?

To find out I submitted my second FOI request and what I discovered was that it was true indeed, Coun Luhning was using her private Gmail account to conduct business connected to the Cultural Centre and my questions.

What I found, in my opinion, were potentially some very serious privacy breaches, as she conducted some of this business while in the United States while riding on an Amtrak train between Boston and New York City. Thereby potentially breaching mine and other people's privacy as the US Patriot Act allows eavesdropping to be conducted.

On April 13, 2018 at 10:31 am Coun Luhning wrote:

“Hello all, From a train on Amtrak, between Boston and New York City. Is there something in particular going on or is this just a response by our lawyer to MJ Independent?

Dawn"

At 10:33 Councillor Luhning responded to Derek Cronin, General Manager of the Moose Jaw Cultural Centre Inc and unnamed other recipients:

“Response advised by the lawyer addressing some of the questions about the AGM.”

The emails provided to me, in my opinion, demonstrate that my privacy rights were violated and Coun Luhning was operating as a hands-on board member a little bit more than the governance model requires. But this is just my opinion. Although I cannot conclusively state this it seems apparent that other emails from third parties – likely a lawyer representing MJCC –had advised on responding to my questions.

So what is the big deal you may ask? Well this is it. All records any elected Council member generates as part of their duties is now subject to an FOI. In my second FOI request I asked for:

“All discussion on the Cultural Centre from email account belonging to Councillor Dawn Luhning. In one of the released emails Councillor Luhning transfers my questions to her private Gmail account. Then no more discussion on her City account. If the discussion continued on this private account it should be accessible.”

Notice the keywords I asked used, asking for “all discussion". I only received a small amount. I’m only guessing but is there any likelihood more Council related business involving the Cultural Centre is in that Gmail account?I cannot say nor can I go back to the City on this FOI because it all deals with a Third Party that is, technically, independent of Council. More on that later.

Under changes to Freedom of Information and Privacy legislation all business done by elected and unelected officials within municipal government must be preserved, as it is accessible, including private email, texting and social media accounts. Which means, for instance, that if you are a member of Council and you use your Facebook account to be a member of a closed business group and then act as a council member those “hidden” discussions you had are now accessible by FOI and must be retained. My topic for a future FOI request.

The thing is most of us want to see in our governments, especially at the most accessible municipal level is to be able to know what’s happening and how policies are formulated. It’s all about accountability.

In my first FOI into the MJCC I was initially told there were no records available and then the figure went up to 25,000 documents and finally around 900 for the time period which I was interested in. The number of applicable documents was finally cut back to just under 100.

As I studied those documents I was able to ascertain something intriguing and that is there is almost a territorial marking of some sort when it comes to committee and boards that members of our City Council sit on. It's seemingly an accepted practice.

In my initial questions to Coun Luhning I had included the fact that I was told a certain other councillor had been contacted about the Cultural Centre. Councillor Luhning started to write all of her fellows and ask them about it.

In an April 1, 2018 email Coun Luhning wrote:

“I just got a very pointed email from Robert Thomas, MJ Independent, about issues surrounding our AGM and in particular, RuBarb. We had many RuBarb staff, supporters and board members in attendance at the AGM yet no one has come to anyone on the board with these questions they are asking.

As the rep on that board, I would appreciate conversations happening with the City rep or the board members rather than with third parties that do not understand the history with this group and the CC (Cultural Centre). I would refer to a city rep if a group came to me…”

What I can tell you about the person who initially approached me, as far as I knew at the time this individual was not affiliated with RuBarb. And even if they were you have to go with the flow and position yourself between the two factions and try to get to the bottom of it.

This is where it gets political. RuBarb and the MJCC started to look for community support for their positions.

In response to a question from Councillor Scott McMann asking for an update to Council about what was happening at the MJCC. This was well within the parameters of Council keeping things accountable.

“Sure thing. I will do that. I’m updating you all about the Humane Society in Exec. next Monday. I'll ask that I get put on for the CC at the next one if that’s OK? I need to get all of my thoughts straight,” Coun Luhning emailed in her response, revealing yet another secret meeting involving the Moose Jaw Humane Society (MJHS). It leaves me wondering, was there something going on at MJHS that is also controversial enough it “needed” to be hidden?

It’s obvious from the emails that in an upcoming Executive Committee meeting, likely in-camera, that Coun Luhning was going to discuss, behind closed doors, what had been happening at the Cultural Centre, including RuBarb.

On May 15, 2018 an Executive Committee meeting was called with one in-camera item on the agenda. If you look on the City of Moose Jaw website it’s listed right there, with no details to tell anyone who met and what the meeting was likely about.

But because I saw it mentioned in documents from my initial FOI request, in my second FOI request I asked for “All documents related to an in-camera briefing about the Cultural Centre as mentioned in an April 2, 2018 email from Councillor Luhning to Councillor McMann at 4:51 pm” I now know when this meeting was held, who was in attendance and how long the meeting lasted.

The meeting started at 5:30 PM and lasted until 6:44 PM and was in camera or behind closed doors with no motions taken. The attendees were the Mayor and five councillors with Councillor Don Mitchell absent, three members of Administration and MJCC Board members and general manager from MJCC Inc.

Everything else which occurred at the meeting was not granted under privacy concerns regarding a third party. Ironically my initial questions to a Council member were forwarded or released to the very third party now being protected by the Privacy rules under FOI legislation. I have no idea – although doubt it – if my questions came up in the closed door discussion, otherwise it should have been released to me.

The meeting was initially an invitation from MJCC for Council to meet with them at the Cultural Centre but City Clerk/Solicitor Myron Gulka-Teichko wrote if the meeting was in-camera it should be at the City Hall.

“Also, in terms of locations, the City must provide public notice for all its meetings. That notice would also identify the location of that meeting. We would expect that meeting would be held in-camera ie behind closed doors which we are allowed to do with discussions with a third party. However, if the meeting location is the “Cultural Centre”, that would effectively make the meeting topic public. So, I would propose that the meeting location be the Scoop Lewry Room at City Hall,” Gukka-Tiechko wrote in response to Derik Cronin Cultural Centre GM.

On June 15 RuBarb would respond with a press conference asking for public support to have Council step in and delay or prevent their pending eviction from the Cultural Centre.

When former Mayor Glenn Hagel spoke at the news conference was he aware the MJCC Board had already spoken with Council behind closed doors and by all likelihood it was a briefing about RuBarb? It is something I do not know.

What I do know is that after the news conference I attempted to speak with Mayor Tolmie about it and as usual my request for an interview was denied. I think that makes it 5 requests on various issues and 0 interviews granted, so at least my batting average is perfect. All I can say is that other, more friendly, media spoke to the Mayor and reported that Council had no intention of interfering at the Cultural Centre.

With that said though what the documents do show are some of the secret workings of a third party operations board and in my opinion how in-camera or closed doors meetings are being used to restrict the Public’s right to know things. The Cultural Centre is a public owned facility costing millions of dollars and subsidized at over $200,000 annually and information regarding it is being withheld. Is this proper or is it a symptom of a closed-door mentality? The main reason given is that it’s information belonging to a Third Party.

But here is the thing; the key words are “Third Party”. This excuse, in my opinion, is being used here to shield an FOI release. Under legislation, if I think there is more here I can file a Request For Review to the Freedom of Information and Privacy Commissioner's Office.

Usually that means it goes to an Early Resolutions Officer (ERO) and there is some haggling and you may get some additional documents. But because it’s a “Third Party” that step is eliminated.

Re-read closely, the City Solicitor said that because it was a “Third Party” they can meet behind closed doors. But is that necessarily true?

Actually, they need valid reasons to do so.

And because this involves a “Third Party” the ERO stage is bypassed on any request for review and it all goes to an analyst who asks for all of the documents and conducts a review. They can come down with recommendations on how to rectify the situation as well as release documents they feel should be. Or perhaps go further and maybe look at exactly how all of these closed door meetings are justified.

I filed the paperwork this past Friday.