Commissioner rules town must release documents


  • Aug. 10, 2011 1:00 p.m.

By George Brown

Documents withheld by the Town of Ponoka at the request of the engineer and the construction company on the contentious 38th Street utility project must be released, an adjudicator with the provincial Office of the Information and Privacy Commission has ruled.

Teresa Cunningham decided recently that disclosing information on fees and services charged to the Town of Ponoka by Descon Engineering and Nikiforuk Construction would not be harmful to the business interests of the two companies.

She said because the contract prices were negotiated by the Town of Ponoka and the companies, the information was not “supplied” to the town by the companies in confidence under terms of the Freedom of Information and Protection of Privacy Act (FOIP).

Nick Kohlman and others requested documents from the Town of Ponoka on March 24, 2010. The town refused a few months later and eventually mediation was attempted to resolve the impasse. It was unsuccessful and a full review was necessary.

Cunningham determined that negotiated contractual terms cannot be withheld under FOIP. “…once a public body accepts a bid or tender, even if it accepts the terms of the bid or tender unaltered, its acceptance constitutes a form of negotiation, give that it is free to reject the bid or accept another bid. Once a public body accepts a bid or tender, the bid or tender represents the intentions of both parties, and is therefore not information that can be said to have been supplied by one party or the other.”

Even figures revised by Nikiforuk at the request of the Town of Ponoka cannot be considered private information. Cunningham said neither Descon nor Nikforuk had reason to believe that distribution of information provided to the Town of Ponoka was to be restricted, nor that the companies imposed restrictions on the Town of Ponoka. She said there is no indication the Town of Ponoka assured the companies that information in successful tenders or invoices would be held in confidence.

Representatives of the 38th Street residents say they have received contradictory information from the Town of Ponoka and were given redacted tender documents and censored bills submitted by the engineers. In total, consulting engineers were paid a total of $95,600 on a $521,214 project, well beyond the usual acceptable 10 per cent of the project cost. Requests for a detailed cost breakdown were denied.

Even town councillors were denied a line-by-line breakdown of the project’s costs.

Kohlman hopes the commissioner’s order will convince the Town of Ponoka to be more open with its citizens.

“That was really good news,” he said in an interview.

“Maybe, just maybe, some good will come from all this kerfuffle.”

He has received some of the information that had been withheld and “all those black lines are gone.”

“It will take a while to go through,” Kohlman said. “Anytime you go through something from the town you have more questions.”

Ponoka CAO Brad Watson said the town will release all documents ordered by the commissioner. Information negotiated in future tenders for municipal projects will be dealt with in accordance with this ruling.

“If we have a request to release it, we will release it.”

Watson said in his opinion, the Town of Ponoka should have released the information in the first place but the companies involved felt releasing the information would be harmful to their businesses.

“I said what have we got to hide? Release it.”