4. IN CAMERA (CLOSED) MEETINGS

RÉUNIONS À HUIS CLOS

Committee Recommendations as amended

1. That Council approve that the Procedure By-law, being By-law No. 2003-589, be amended to provide that:

a. The rationale for holding an in camera (closed) meeting be precisely stated by reference to the issue which requires the matter to be considered in camera; and

b. A “reporting out date” be given in all in camera reports.

2. That the City Clerk be directed to forward Council’s decision on this matter to the Ottawa Police Services Board and the Ottawa Public Library Board for their consideration.

Recommandations modifiées du comité

1. Que le Conseil approuve que le Règlement de procédure, soit le Règlement n^o 589-2003, soit modifié afin d’assurer :

a. que la justification de la tenue d’une réunion à huis clos est énoncée de façon précise en faisant référence à la question qui nécessite un examen à huis clos;

b. qu’une « date de diffusion du rapport » soit donnée dans tous les rapports à huis clos.

2. Que l’on demande au greffe d’acheminer la décision du Conseil à cet effet à la Commission des services policiers d’Ottawa et au Conseil d’administration de la Bibliothèque publique d’Ottawa, afin qu’ils puissent en prendre connaissance.

Documentation

1. Chief Corporate Services Officer's report dated 25 January 2005 (ACS2005-CRS-LEG-0001).

2. Extract of Draft Minute, 15 February 2005.

Report to/Rapport au :

Corporate Services and Economic Development Committee

Comité des services organisationnels et du développement économique

and Council / et au Conseil

25 January 2005 / le 25 janvier 2005

Submitted by/Soumis par : Greg Geddes, Chief Corporate Services Officer/

chef des Services généraux

Contact Person/Personne ressource : Jerry Bellomo, City Solicitor/Procureur de la ville

Legal Services/Services juridiques

(613) 580-2424 x 21215, Jerald.Bellomo@ottawa.ca

Ref N°: ACS2005-CRS-LEG-0001

SUBJECT:	IN CAMERA (CLOSED) MEETINGS

OBJET :	RÉUNIONS À HUIS CLOS

REPORT RECOMMENDATIONS

That the Corporate Services and Economic Development Committee recommend Council approve that the Procedure By-law, being By-law No. 2003-589, be amended to provide that:

a. The rationale for holding an in camera (closed) meeting be precisely stated by reference to the issue which requires the matter to be considered in camera; and

b. A “reporting out date” be given in all in camera reports.

RECOMMANDATIONS DU RAPPORT

Que le Comité des services organisationnels et du développement économique recommande au Conseil d’approuver que le Règlement de procédure, soit le Règlement n^o 589-2003, soit modifié afin d’assurer :

a. que la justification de la tenue d’une réunion à huis clos est énoncée de façon précise en faisant référence à la question qui nécessite un examen à huis clos;

b. qu’une « date de diffusion du rapport » soit donnée dans tous les rapports à huis clos.

BACKGROUND

At the Council meeting of November 10, 2004, Council carried the following amended motion with respect to the Municipal Act, 2001 Review:

That Council request the City Solicitor to:

(1) Review current provisions with a view to recommending ways and means of disclosing more information about the nature of In-Camera agenda items, and

(2) Review ways and means to establish a protocol for subsequent reporting on progress or disposition of In-Camera agenda items.

This report responds to the above-noted motion.

DISCUSSION

Open government is a linchpin of democracy. It allows citizens to scrutinize the actions and decisions of elected officials and public servants. The principle of “open government” is formalized in Section 239 of the Municipal Act, 2001 (and reiterated in the City’s Procedure By-law), which requires that all meetings of Council “shall be open to the public” with limited exceptions as set out in Subsection (2):

(a) the security of the property of the municipality or local board;

(b) personal matters about an identifiable individual, including municipal or local board employees;

(d) labour relations or employee negotiations;

(e) litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board;

(f) advice that is subject to solicitor-client privilege, including communications necessary for that purpose; or

(g) a matter in respect of which a council, board, committee or other body may hold a closed meeting under another Act.

Notably, Subsection 239(2) is a discretionary provision. For the reasons noted in (a) to (g) above, a Council or Committee meeting “may be closed to the public” following the passing of a motion to that effect. Accordingly, one option that is always available for Council to consider is to be more scrupulous in exercising its discretion to move in camera. Notwithstanding that the subject matter of the issue in question may fall within one of the categories that would allow Council to go in camera, Council could decide, for overriding policy reasons, that the issue should be discussed publicly.

To assess the practice of Council in dealing with in camera items, an informal survey of in camera reports considered by City Council in 2004 was undertaken and the results are as follows:

· Council considered 37 in camera items.

· All 37 items were “carried” or “received” without Council actually moving a motion and deliberating in camera.

· Of these 37 items, 32 related to appointments to local boards, committees or agencies.

· Of the remaining five items, three concerned labour negotiations, one related to the disposal of land and one was with respect to a matter subject to solicitor-client privilege.

Although Council did not move in camera as a result of the receipt of above-noted items, Council did meet in closed session on 12 separate occasions in 2004 for the following reasons:

· Seven issues relating to personal or labour relations issues.

· Four issues arising from litigation or potential litigation.

· One issue concerning the disposition of land.

The results of this survey, particularly after discussion with colleagues in other comparable sized municipalities in Ontario, would seem to confirm that Ottawa City Council does not deliberate excessively in camera. However, some improvements could be made in the manner of disclosing the subject matter of the in camera discussion and in the subsequent reporting of the discussion held in closed session following a reasonable period of time. Therefore, the following steps are recommended:

1. The reasons for moving in camera are to be more precisely stated.

Subsection 239(4) of the Municipal Act requires that before holding a closed meeting, a resolution must be adopted that states the fact of the holding of the closed meeting as well as “the general nature” of the matter to be considered. Since amalgamation, the practice at the City of Ottawa to meet this obligation has been to simply reference one of the permitted grounds as set out in Subsection (2) as quoted above (e.g. “employee negotiations”). Although this meets the bare requirements of the Act in setting out “the general nature” of the proposed in camera discussion, further public disclosure of the nature of the in camera discussion would add some transparency to the process. Accordingly, it is recommended that further information relating to the nature of the closed meeting discussion be included in the authorizing resolution.

Examples are as follows:

· Instead of merely stating that the reason is “a personal matter about an identifiable individual”, the rationale could read “a personal matter about an identifiable individual re an appointment to the Ottawa Library Board”.

· Instead of stating that the reason is “employee negotiations”, the rationale could read “employee negotiations involving the collective agreement with CUPE 503”.

· Instead of stating that the reason is “litigation or potential litigation”, the rational would read “potential litigation involving a commercial/sales contract.”

2. All in camera reports are to indicate a reporting out date.

A “reporting out” date would be the date on which the City Clerk would be required to release an in camera report to interested members of the public. In most cases (e.g. appointments to committees, boards or agencies), the reporting out date would be the same date that Council considers the in camera report. However, in other cases, it might be only following the finalization of the event or issue on which Council deliberated in camera. For example, a report on negotiations with a bargaining unit might include a reporting out date which would read as follows: “Reporting out date: The day following the execution of a collective agreement with CUPE 503.” Similarly, the reporting out date for a report recommending a settlement of litigation might be, “The day following the execution of Minutes of Settlement”. In other cases where the issue might not be finalized by one specific event, the reporting out date might be a precise date: e.g. January 1, 2006.

There may also be instances where, in the interest of long-term corporate strategy, the reporting out date might be several years following Council’s consideration of the confidential report. This might be necessary in the case of developing strategy for major contractual negotiations in the case of P3s or collective bargaining.

In addition, the reporting out date could be included as part of the statement of reasons for going in camera in order to further ensure increased public accountability. Accordingly, the revised statement of reasons would read as follows:

“Employee negotiations involving a collective agreement with CUPE 503. Reporting out date: the day following the execution of the collective agreement.”

This reporting out process, however, would remain subject to the privacy provisions of the Municipal Freedom of Information and Protection of Privacy Act. Therefore, in some cases, the in camera report would have to include the following statement: “Reporting out date: In order to protect the privacy obligations as set out in MFIPPA, this report cannot be reported out.” In other cases, the report could be reported out with some deletions to protect the privacy of any individuals referred to in the report.
A process will be put in place to ensure that all reports are reviewed prior to “reporting out” in order to ensure compliance with MFIPPA.

As well, in some circumstances there may be intervening events that would warrant a delay in the reporting out of an in camera report. Premature disclosure of information could result in financial harm either to the City or to some third party. In these cases, Council could, by resolution and on the recommendation of staff, defer the reporting out of specific reports.

It is suggested that with the above amendments to the Procedure By-law Ottawa will continue to lead the way in having an open and transparent legislative process.

CONSULTATION

The City Clerk’s office was consulted and assisted in the preparation of this report.

FINANCIAL IMPLICATIONS

There are no direct financial implications arising out of this report.

SUPPORTING DOCUMENTATION

N/A

DISPOSITION

City Solicitor to amend the Procedure By-law in accordance with the approved recommendations. City Clerk, in conjunction with the operating department that wrote the report, to implement processes to ensure that in camera reports are made available once the “reporting out date” has occurred.