Bob Mackin
A B.C. Supreme Court judge has ordered a new inquiry into whether key parts of a contract with the private company behind the $200 million British Columbia jail near Oliver should be made public.
In late 2016, Penticton Herald reporter Joe Fries successfully convinced adjudicator Celia Francis of the Office of the Information and Privacy Commissioner to order the release of the cost and schedule appendices for the design, build, finance and maintenance contract for the Okanagan Correctional Centre.
At issue are a six-page chart of the draft initial project schedule and 587-page spreadsheet of projected costs. Francis ruled that the contract was negotiated between the Ministry of Technology, Innovation and Citizens’ Services and Plenary Group (Canada) Ltd., so the public has a right to see the deal.
Ribbon-cutting in October 2016 for the Okanagan Correctional Centre (BC Gov)
Both Plenary, which is Australia-headquartered, and the Ministry opposed release and sought a judicial review of the decision because they claim release would harm Plenary’s business interests. After a two-day, late-February hearing in B.C. Supreme Court, Justice Douglas Thompson decided in a written verdict on March 20 to quash Francis’s ruling and send the matter back to the OIPC for reconsideration.
“Plenary Group and the Minister argue that the adjudicator’s reasons show that she ignored and misapprehended important evidence, and applied the wrong test in her interpretation of [the Freedom of Information and Protection of Privacy Act] provisions relevant to the withholding of commercial information, and, in the result, came to a decision that was unreasonable,” Thompson wrote.
Plenary and the Ministry argued that the fairness of the hearing process was compromised when Francis reviewed an online version of the contract and drew conclusions without giving them a chance to submit evidence or arguments.
“Adequacy of reasons is not the issue in this case,” the judge wrote. “Rather, the problem is that the adjudicator did not undertake the necessary analysis in one very important respect.”
Thompson ruled that it was apparent that some of the information in the documents was supplied, rather than negotiated.
“Plenary Group and the Minister have succeeded in establishing that the OIPC outcome and the articulation of the reasons for the outcome are not defensible in respect of the facts and law,” he wrote.
Fries told theBreaker that he is disappointed by the decision, but respects it. His main concern is a securing a swift re-hearing. The OIPC has a three-month backlog and Fries’s quest for the financial details will soon be four years old.
“Plenary Justice is a multibillion-dollar company, they have deep pockets, and I don’t. They know that,” Fries told theBreaker. “They could tie this up, this new decision could come down and they could ask for another judicial review. It could go on and on. I have no intention of giving up, ever.”
Fries remains firm that his request was in the public interest. “Partnerships BC boasts that it has overseen more than $17 billion worth of P3 projects, yet, to my knowledge, the public has never seen the financial models underlying any of them. Perhaps these are good deals for the public, but people can’t know for sure unless they see the details and judge for themselves.”
In 2012, the Sydney Morning Herald called the secretive Plenary “hotshots” in the multi-billion-dollar public-private partnership industry. It was formed in 2004 by former ABN AMRO investment bankers John O’Rourke, Ray Wilson and Paul Oppenheim. Plenary’s Canadian projects include the Communications Security Establishment headquarters, Waterloo light rapid transit, B.C. Cancer Agency for the North, Interior Heart and Surgical Centre and Abbotsford law courts.
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