Contrary to published reports, city council's July decision to hide how much it is paying outside lawyers was debated before being adopted. Taped records of the July 14 meeting reveal that councillors Brian McHattie and Terry Whitehead both raised questions about the proposal, and Tom Jackson declared his support. Jackson eventually seconded the adoption motion, which was moved by Stoney Creek councillor Maria Pearson.
Some councillors have expressed surprise that the policy has been put in place and have suggested that it was passed quietly. Sam Merulla has given notice he wants it reconsidered. The recommendations and staff report are far from clear about the intent of the secrecy rules, and there may be other reasons for the confusion over what took place.
The July 14 committee meeting went for six and a half hours and covered more than 25 items. It was followed immediately by the Council meeting that ran for an additional one and a half hours. During the summer months, the usual dozen major committee meetings are jammed into one or two days. Curiously, the official minutes of the committee meeting fail to indicate the mover or seconder of this motion or any other decision made during the meeting.
City solicitor Peter Barkwell fielded several questions before the policy was adopted at the Committee of the Whole meeting. It was ratified later that day by City Council. All councillors attended both meetings.
The new policy relies on "client-solicitor privilege" which is the secrecy reserved for communications between lawyers and their clients. Whitehead specifically asked city solicitor Peter Barkwell whose privilege was being protected by not telling the public how much tax money had been spent on lawyers fees.
Barkwell explained it was the city itself which was demanding the secrecy, not the legal firm. " From the perspective of the lawyer, the privilege is that of the client," he said. "My obligation is to defend the privilege, unless I have explicit instructions from my client to the contrary." Barkwell went on to explain that council could just as easily reveal its spending on lawyers' fees.
"Council could proceed in one of two ways: you could reverse the recommendation before you and instruct us to always release it; you could instruct us to always bring individual requests here. You could leave the recommendation the way it is and then it would be open to any individual Councillor to bring a specific request here. But, in order to waive the privilege, it really requires a resolution of Council to do it."
The policy has recently been used to block disclosure to citizens about details of spending related to the Red Hill Creek Expressway project. Ironically the citizen request arose from a staff presentation at the same July 14 meeting.
Guy Paparella, the Director of Strategic Initiatives, had reported at the beginning of that meeting that anti-expressway protests had cost the city $1.2 million. But when a citizen subsequently asked for a breakdown of these alleged costs, Paparella refused, and the city has now also turned down a formal Freedom of Information request for the breakdown.
The wording of the secrecy policy and the staff justification for it can be viewed at
http://www.city.hamilton.on.ca/clerk/
agendas-minutes-reports/committee-of-the-
whole/2004/Jul14/FCS04093_LS04012%20.pdf.
More information can be found in an October 18 CATCH story and two related reports by the Hamilton Spectator which are available on the CATCH website.
