SUDBURY -- After a three-year battle, Ontario's Information and Privacy Commission has dismissed my appeal to get details of a 2018 settlement in which a former employee sued Greater Sudbury, claiming harassment and wrongful dismissal.

In my appeal, I argued the public has a right to know if taxpayer funds are being spent to pay for the misdeeds of bureaucrats.

But in a decision released this week, the IPC ruled that the statutory litigation privilege and the solicitor-client privilege set out in the legislation allows the city to keep the details of such agreements secret.

The litigation privilege applies to records prepared by or for counsel …“in contemplation of or for use in litigation” and the adjudicator found that both the courts and the IPC have found settlement agreements are exempt from disclosure under Section 12 of the Municipal Freedom of Information and Protection of Privacy Act

The case dates back to 2016, when a former clerk working in Mayor Brian Bigger's office was dismissed. She sued the city for $300,000, claiming she endured a toxic work environment, and was harassed by the mayor's chief of staff until she was dismissed.

At the time, the city said it intended to defend the suit in court, but came to an out-of-court settlement with the former employee in 2018. I filed an FOI that year seeking the details of the settlement, but was refused, sparking the three-year-long appeals process that was further delayed by the COVID-19 pandemic.

In my appeal, I argued that the current system enables public institutions to hide the costs of misdeeds by bureaucrats from the public. Under the current rules, taxpayers could be footing the bill for settling lawsuits resulting from bad behaviour of bureaucrats and not have the right to know.

More important than transparency

In a decision released Feb. 4, Adjudicator Colin Bhattacharjee ruled that previous decisions have held the importance of encouraging settlement agreements is more important than “the public interest in transparency.”

"The records at issue in this appeal are those records held by the city that contain information about the settlement reached between itself and a former employee of the mayor’s office who sued the city for wrongful dismissal, including the settlement agreement and any other records that identify the terms of that agreement," Bhattacharjee wrote.

"The former employee was apparently represented by legal counsel in the subsequent negotiations that led to the settlement agreement reached between herself and the city."

The city had the option of releasing the records, but exercised its right not to do so, the IPC said. In doing so, the city had to determine whether the public's right to know trumped privacy concerns.

The city argued the principal of solicitor-client privilege entitled them to keep the settlement details secret.

"The city further states that it also considered the impact that disclosure may have on its ability to navigate future negotiations," the decision said. "It submits that … disclosing records produced in the context of confidential negotiations would have a negative impact on any future negotiations. It asserts that opposing parties may not be willing to engage in negotiations if they believe that confidential discussions could be made public as a result of an access request."

It cited a previous decision that read, in part, "the public interest in transparency is trumped by a more compelling public interest in encouraging settlement of litigation.”

Compelling arguments

"In my view, the appellant has raised a number of compelling transparency arguments as to why the settlement agreement reached between the city and a former employee who sued the city for wrongful dismissal should be disclosed," Bhattacharjee wrote.

But he said the law gives the city discretion to decide whether to release such records, and there was no evidence they had exercised that power in bad faith.

"In this case, the city has chosen to exercise its discretion in favour of withholding the records, which it is entitled to do, as long as it exercises its discretion appropriately," Bhattacharjee wrote.

"I cannot substitute my own discretion for that of the city." 

Read the full decision here.