This is a story of trying to get information --- which is supposedly publicly available --- from the Ontario Ministry of Natural Resources. Because of difficulties with a local gravel pit, I needed a site plan for various parts of the pit. Among these, I needed the 1998 site plan for the Darrington Pit.

What's a pit site plan? It's a set of pages, usually three or four pages, whose size is about two feet by three feet, giving the details of how a pit is to be operated. It gives the allowed depth of excavation, the places where excavation is allowed, details of how the pit is to be rehabilitated, etc. It is legally binding on the operator of the pit. I needed the 1998 Darrington site plan to find the allowed depth of excavation, the estimates of watertable depth, etc., to determine if the operator (and MNR) were operating within the law.

Why should anyone want a copy of the Darrington site plan? The Darrington pit lies a few yards from a cold water creek (Carroll Creek), next to a spring-fed wetland, a couple hundred yards from my home, and a few yards from other neighbours, all of which have water wells that feed from the underlying watertable. The Darrington site plan is the controlling document that protects a key environmental feature of the area, namely, the flow of underground and surface water.

This 1998 Darrington site plan turned out to be astoundingly difficult to obtain. In fact, I never got it. MNR destroyed it after I had requested it in October 1998 under the FOI (Ontario Freedom of Information) Act; this destruction is illegal under FOI. Besides that, MNR, by their own policy, is required to retain site plans for eight years; so they violated their own document retention policy.

Mr. Warren Knight, Aggregate Resources Officer of MNR, says that he destroyed the plan in November 1998 --- which was after I asked for it under FOI.

An MNR investigator, Ms. Anne Hinton, wrote a note in June or July 1999 indicating that site plans must be retained for a number of years. Yet, the MNR Investigation report (for an EBR investigation), drafted by Ms. Hinton, states that the plan was destroyed in accordance with Ministry policy..

Lack of access to this plan damaged the neighbours' ability to represent their case involving the local pit to the Township of Pilkington, to OMB (Ontario Municipal Board) mediation, to an EBR (Environmental Bill of Rights) request for investigation, etc. It prevented us from knowing essential information involving the neighbours' allegation that the operator illegally excavated into the watertable.

I kept a detailed diary of events during my unsuccessful search for the 1998 Darrington Site plan.
 
 

Diary of Events: Searching for the Darrington Plan

11 Sept 98: I visited Warren Knight at MNR Clinton Ontario office and viewed site plans. I had insufficient time to study the site plans. I asked Mr. Knight how to get copies of site plans. He phoned George Davis and Bob Gibson (who work for the pit operator, the Murray Group), trying to get copies for me. All were non-responsive. I asked Pilkington Town Clerk, Ms. Carol Hacking; she said I should get them from Mr. Seibel (Murray Group VP), who had previously refused to give them to me. At 3:47pm, I phoned (on my way home) Warren Knight and asked him to get the plans under FOI. My understanding was that Mr. Knight would get me the plans. I asked Mr. Stovel, Murray Group's planner for the plans, but he was non-responsive. Davis said his client (Murray Group) refused to allow him to make me a copy. (Later: it is now my understanding that the Township, and Ms. Hacking as Clerk, are responsible for maintaining copies of site plans, and making these available to the public.) (At a later date I also searched for the plan in the Wellington County office, with the help of Planner Mark Van Patter, to no avail.)

29 Sept 98: I phoned Warren Knight, MNR Clinton Office. I said I need the site plans for Darrington and Watson pits.

5 Oct 98: In talking with Warren Knight, it emerges from his comments that my request under FOI was "not official", so I must write to Don Routly (MNR).

7 Oct 98: I wrote letter to Don Routly, MNR, with official FOI request for Bowman and Darrington site plans.

28 Oct 98: Letter to MNR info officer John Boufford sending $5.00 deposit for FOI info; attached copy of letter of 7 Oct 98 requesting Darrington & Bowman site plans. (Note: FOI legislation requires delivering requested items within 30 days of request. So, MNR was legally required to provide me the site plans at latest by the end of November 98.)

17 Nov 98: Talk with WK. He said: Bowman site plans cost: $75 Darrington (Gibson), $240 Bowman (Davis).

6 Dec 98: Letter to Don Routly, MNR Info Officer, reiterating request for site plans. (Added later: by this time, the FOI request was legally a "deemed refusal", because it was not responded to by MNR in 30 days. In other words, the MNR was in violation of the FOI act. At the time I was not very knowledgeable about my FOI rights.)

7 Dec 98: From a letter recovered from the MNR files. The letter is dated 7 Dec 98 and is from Mr. Warren Knight to Mr. Richard Seibel (Murray Group Vice President). The text of the letter states "Your request to amend the above mentioned property [License #19333, which is the Darrington Pit] has been approved. Enclosed are two copies of the amended plan. All other site plans for this property are now out of date and should be destroyed." (Note added later: Considering Mr. Knight's later confusion about when this plan was approved, it may be that the letter was "predated" to an earlier date than its actual writing.)

16 Dec 98: Talked with Philip Dubuc of MNR. Said cost of making site plan copies from firms was about $315 --- he said way too expensive. Could I find someone to reproduce them in Waterloo? (I subsequently found Ed Green [572 Weber N, Waterloo] in phone bk and told MNR of EG's good prices.) Wife Marie phoned PD back with this info.

16 Dec 98: Call to WK. WK rec'd and was just opening box containing new Bowman and Darrington site plans. WK said: Peterboro MNR asked how to get cheaper copies for site plans. On Bowman plans: operator changing responsibility to Bob Gibson from Geo Davis. WK says: Notes on old plan were confusing --- changed mainly for simplicity --- really just editing. Elevations were screwed up on Darrington plan (old). Discussed setback violations at some length.

22 Dec 98 9:30 am: WK called me. WK says he is taking site plans to Ed Green to reproduce. Said already approved Darrington on 27 Nov 98. We discussed what site plans he was to reproduce for me. I asked for both (new and old) Darrington site plans, all old Watson plans and new Watson plan that actually changed (which WK said was only the Operations sheet), as well as copies of notes on Watson site plans. I am to pick up copied site plans from Ed Green (Waterloo). (Looking back on this diary entry, it seems peculiar that WK never mentioned any destruction of the 1998 Darrington site plan. Later, On 12 Jan 99, he stated to Marie that he destroyed these plans in November 1998.)

22 Dec 98 9:45 am: Called WK back. WK said: He forgot he had approved Darrington new site plan on 27 Nov 98.

23 Dec 98: Letter to Warren Knight, follow up on a 16 Dec 98 letter. Also, I asked for progress on getting site plans.

24 Dec 98: Warren Knight phoned, saying: he is going to take copied site plans to Clinton, to mail them there, and not leaving them with Ed Green.

7 Jan 99: Received WK package with site plans and WK letter arrives (postmarked 5 Jan 99). Does not contain original (effective till Nov 98) Darrington site plan. Contains new Darrington site plan. Contains all old Bowman site plan, plus operations sheet for new Bowman site plan (WK says this is only sheet that changed). Contains WK letter (dated 24 Dec 98) on amendments and when they were approved (Nov 98 -- Darrington and Dec 98 --- Bowman). WK says Darrington site plan involved change in excavation depth, and relaxation of setback.

8 Jan 99: I leave phone msg for WK, saying I need the original Darrington site plan.

12 Jan 99: WK talks with Marie, and tells her the original Darrington site plans were destroyed in Nov 98. Marie takes notes on conversation and asks WK if she got it right. Marie documents conversation in email to me, Pickfield, etc. Marie's email to me, recording the content of her conversion with WK, is as follows.

12 Jan 99: Electronic mail from Marie to me with copies to various other people.

Tue, 12 Jan 1999 16:10:50.

WK just called:

1) Watson Pit: he sent you 5 sheets, 4 original, 1 operating

plan. Only 1 new sheet, only operating plan changed

2) Darringtom: 3 sheets we received are all new ones. Old ones

destroyed when new ones were approved. In November.

3) I asked why the old plans were destroyed when you had asked to

see both sets. He said that back in September there were only one

set of plans so you couldn't have asked for both sets. I didn't

dare proceed because I was so *@*! [very anger].

4) Please ask Ric to call if he has any questions......

(Looking back on that day: I was extremely upset. I did not see what could be gained by talking to Knight at that point. He had destroyed the material that I had clearly asked for and which was my legal right to receive, and which I very much needed. About this time, I talked to Ms. Carolyn Hacking, Pilkington Township clerk, who told me that WK had written her, asking her to destroy the 1998 Darrington site plans.)

30 Apr 99: R. Holt and P. Piotrowski, in Application for Investigation Under Environmental Bill of Rights, state: "The site plan for the Darrington pit was formally requested from MNR on 7 Oct 98 under FOI (Freedom of Information Act). After this request, but before delivery of the site plan, the pre-November 1998 version of the site plan was destroyed by MNR and was not delivered. The site plan which MNR delivered, on 7 Jan 99, is the one approved by MNR on 27 Nov 98. Because of these events, it has not been possible to verify the site plan excavation depth limits for the period of 20 May 97 to 27 Nov 98."

June/July 99:. Document A9001523, extracted from MNR under FOI, written by Anne Hinton, investigator for Bowman Pit Investigation. In her handwriting: "What is policy on MNR keeping old reviseded (sic) site plans ... 62(1) - licensee/permittee -> 7 years ..." This indicates that the investigation knew that the MNR policy required site plan retention for a number of years. Document A9001523 is page 9 of a 9 page document. MNR refused to release pages 1 to 8, claiming that those pages (but not page 9) were part of a legal investigation.

19 Aug 99: In Notice of Outcome, by Hinton et al, Application for Investigation, Environmental Bill of Rights, file No. I99019, "The former Darrington Pit site plan was discarded once a new plan was fully approved. This practice complies with ministry policy".

22 Aug 99: I submitted an FOI request for information to MNR, asking, among other things, for the following, "A copy of the MNR policy, which is referred to in MNR's Outcome report for this investigation [under EBR, alleged digging into watertable, etc.] in its sentence, 'The former Darrington Pit site plan was discarded once a new plan was fully approved. This practice complies with ministry policy." MNR's response was a "deemed refusal", meaning they provided no response to my FOI request within the 30-day required response time, and hence they violated the FOI act. After 3 months, on 5 Jan 2000, I received a package responding to my FOI request. It contained neither an acknowledgement of my request for a copy of the policy nor a copy of the policy. In subsequent attempts, mediated by the IPC (Information Privacy Officer), to obtain the information I requested, MNR failed to either produce this policy nor to admit that it does not exist. The final IPC mediator's report on this FOI request states that I received the policy, which was the policy I had received earlier from Ms. Wendy Craig in her letter of 29 Sept 99, which specifies an eight year retention period.

29 Sept 99: In letter from Ms. Wendy Craig, Information and Privacy Commissioner, "According to our records schedule for site plans, they are to be kept in the office for two years after the licence/permit is cancelled, then at the Ontario Government Records Centre for an additional eight years." She enclosed a "Records Schedule" document, number 1588, giving this policy, signed by various officials in MNR during 1988 and 1989. In her letter, she stated, "Some years ago, district and area offices were advised by regional staff that they should destroy old site plans as soon as revised ones were received." However, she did not provide a copy nor the date of any such advice.

15 Nov 99: I wrote an open letter to Mr. John Snobelen, Ontario Minister of Natural Resources (MNR), saying, among other things: "I am asking you to clear the air by providing all information from MNR's Investigation", where the investigation was the one carried out by MNR to investigate alleged illegal excavation into the watertable, etc. The information that I was asking for, described in my FOI request of 22 Aug 99, should have included a copy of any policy used by MNR to destroy the site plan. After three months, on 18 Feb 2000, Mr. W.R. (Bill) Allen, Assistant Deputy Minister, answered for the Minister, providing none of the requested information, saying, "Your request for information has been processed under the Freedom of Information and Protection of Privacy Act (FIPPA). For your information, disclosure of a report prepared in the course of law enforcement, inspections or investigations by an agency, which has the function of enforcing and regulating compliance with a law, is exempt from disclosure under the act." He is stating that MNR reports produced during a law enforcement investigation can be exempted from the FOI act. The policy which I requested, if it existed, was not part of a law enforcement activity.
 
 

What Does It Mean? What Should Be Done?

This is a shabby performance by MNR. They acted destructively and incompetently and then tried to cover up their violations.

They violated the Freedom of Information Act by destroying 1998 Darrington site plan. They violated the Freedom of Information act twice more, by deemed refusals. They violated their own retention policy by destroying the plan.

Then MNR refused to take responsibility for these failings. Instead of admitting to any problems, they attempted to cover up the difficulties. They stated in writing, apparently understanding the falseness of their statements, that the destruction of the plan was in accordance with their policy. They refused to produce a copy of this policy, and they refused to admit that this policy do not exist. The policy which MNR delivered when this policy was requested states that the site plans must be retained for eight years.

Whose fault was it? Although Mr. Warren Knight is a clear culprit, the subsequent actions by the MNR in attempting to justify Mr. Knight's illegal actions indicate that the failure is a systemic problem within MNR, and hence the Minister should take responsibility. It appears likely (though it is difficult to tell) that Mr. Craig Selby, Mr. Knight's immediate superior, is one of the main people involved in subsequent attempts at a cover-up, to try to make his department look good. Ms. Anne Hinton apparently understood the falseness of the claim that the plan was destroyed according to MNR policy. However, the investigation report she wrote was actually the collected opinion of a set of MNR personnel. In the end, the core problem is the pervasive attitude of secretiveness in MNR, through all its levels, along with its attempts to cover up any ill-doings.

It is my impression from talking to others that my case is not an isolated case of secretiveness in MNR. My case is interesting simply because I was persistent and I kept detailed records throughout. I expect many other cases illustrate the same MNR failures.

Could it be that there were questionable or corrupt practices that would have been exposed by the destroyed site plan? Yes, this is a definite possibility. Mr. Knight treated the Darrington amendment as "minor" and hence the amendment had not publicly reviewed. The old site plan may have revealed that there were major changes. If so, this would have been embarrassing to MNR and Mr. Knight. There are other possibilities, but we will likely never know the truth.

Requested Action: I request a full and appropriate apology, acceptable by myself, from MNR for their illegal, inconsiderate and damaging actions in this matter. I request a detailed plan from MNR giving the concrete steps they will take to change their attitude of secretiveness. I want a clear statement that in the future they will obey the FOI act and their own retention policies. I believe there should be punitive measures against MNR and its personnel for this illegal and damaging behaviour, to encourage them to do a better job in the future in meeting their legal obligations and in dealing with the public. It is my hope that this recorded experience, of searching for the Darrington site plan, may help the MNR improve how it operates and may help the public participate in an informed way in the protection of our environment.

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Addenda, Added in August 2000

Ms. Anne Hinton was the MNR investigator in who carried out the investigation of alleged violations in the Bowman pit complex. Her investigation report is dated 6 August 1999. MNR withheld the Hinton Report from the public until August 2000. At that point, after lengthy negotiations involving Mr. Ric Holt, the MNR and the Information and Privacy Commissioner, the MNR finally released this information. This report records that on 15 July 1999 Ms. Hinton interviewed Mr. Warren Knight and asked him about the destroyed Darrington site plan. Here is her report on this interview:

"Conversation with ARA, Knight (July 15, 1999) regarding the Darrington Pit (19333) sit plan destruction. The request for copies of this site plan was initiated on September 4, 1998. Knight informed the Applicant at the time that copies could not be made at the Clinton area office. Knight contacted the author of the plans, George Davis and arrangements were made that the Applicant would pay for copying. Davis did not send a copy so a formal application was made under the Freedom of Information Act. The F.O.I. request indicated that the copies of the plan would cost $315.00 to reproduce. The Applicant found a location that could copy the plans and the Applicant picked up the copies and paid fo r their reproduction. The site plan for the Darrington Pit (19333) had been amended on December 7, 1998 so that is the copy the Appliant received. "

This information is incorrect in that Mr. Knight mailed the site plans to the Applicant (the Applicant did not pick up the site plans). A surprising point is the statement that the site plans were amended on December 7, 1998. In all other communications, Mr. Knight has stated that the amendment was on 27 November 1998. This raises the question of whether the actual date of amendment corresponds to the date on the document; could it be that the amendment was backdated to a date earlier than its actual signing?

The Hinton Report also records the following:

"The policy of the former South West Region of the Ministry of Natural Resources, directed by Mahendra Narain, Regional Aggregate Geologist at that time, was once a replacement/amended site plan was approved, the former site plan had no status and was to be destroyed. This is still the policy."

Any such policy, if it existed, was in direct violation of the MNR retention policy number 1588. Repeated requests under FOI produced no copies of such a policy.

The Hinton Report reveals that her MNR investigation into the case of the destroyed Darrington site plan failed to locate MNR's own document retention policy (policy 1588). It conveniently concludes that the site plan was destroyed in accordance with MNR policy.