Confidentiality or Secrecy? A Slippery Slope

(EDITORIAL) – The Board of Directors is committed to performing its functions of office truthfully, faithfully and impartially to the best of its knowledge and ability based on the following values:
(a) to work as a committed team in a spirit of collaboration and community;
(b) to be caring and respectful in all interactions and relationships;
(c) to be open and honest, and to adhere to the highest standards of ethical conduct;
(d) to deliver effective public service through professionalism and creativity; and
(e) to be accountable to constituents and to the region as a whole.

— From the Strathcona Regional District Code of Conduct

On October 30th, just a few days after the decisive referendum on Area B Bylaws 328 and 341, the Cortes community received quite a shock: SRD (Strathcona Regional District) published on Tideline a press release detailing a motion of censure against Regional Director Noba Anderson. This censure rests on a claim that Director Anderson inappropriately released confidential in camera information (namely, the Craig Peterson report and two legal opinions whose significance is not explained).  Our community’s assessment of this charge against her depends on how we understand in camera privilege and SRD’s use of it.

Between confidentiality and secrecy lies a slippery slope. I found this article on the uses and abuses of in camera privilege to be very helpful in thinking about this issue, and about the censure of our Director. Recommended reading.

On October 30th, Roy Hales asked some important questions. I’d like to explore those questions in a little more depth. There’s a lot we don’t know that I think we should know and have a right to know. At present, I feel that SRD’s use of in camera privilege is leaning more towards secrecy than confidentiality.


What’s “In Camera”?

It has nothing to do with cameras, whether video or still.  In camera literally means “in a chamber” (or room).  It refers to meetings which take place, metaphorically speaking, in a closed room rather than an open hall or public space.  The minutes of such meetings are preserved for the historical record, but are not published.  Their readership is usually limited to the people present at the meeting.

The purpose of in camera meetings of a Board of Directors is to protect certain kinds of sensitive information. One example would be a bid process for a contract; you really don’t want Contractor A to get a copy of Contractor B’s bid before submitting his/her own, so all bids are held confidential and discussed in camera until the contract is let. After the bidding process is completed, the Board should “rise and report” (as the formal language has it) and make that process and all associated documents public.

A second example would be to enable frank and open discussion of candidates being considered in a hiring process;  to spare non-selected candidates’ feelings, any critical remarks about their interview performance would remain in camera, and only the final decision of whom to hire would be on public record. 

A third example of a legitimate in camera meeting would be if the conduct of a Board member is questioned; rather than condemn that person by rumour and gossip based on partial information, a Board may choose to discuss the matter in camera to protect their Director’s reputation until a final decision is reached


Fire Without Smoke?

Censure is a fairly weighty measure to pass; it’s usually invoked when a Board member has misbehaved in a major way — such as disrupting Board meetings, misrepresenting Board opinions or decisions to the public, or bringing public embarrassment on the organisation. Is this what we’re looking at here?

When in camera information is leaked and a Board gets really upset about it, it’s usually because that information was shared with the media, thus leading to public embarrassment for the Board. In this case however, I’m not aware of any local media (Campbell River Mirror or Cortes Island media) having published any portion of the Craig Peterson report — other than a Cortes Currents article based on the heavily redacted report obtained from SRD’s own web site.  I’ve neither seen nor heard mention of any “legal opinions” provided to the Board by their retained counsel.

No individual on Cortes Island has mentioned to me having access to the unredacted Peterson report, or to any in camera information at all from SRD — except of course for Director Anderson herself. For the last two years, she has consistently answered my questions by telling me that she can’t tell me anything. Speaking as a journalist, I find this extremely frustrating.

So, no one known to me (including news junkies and web trawlers) has any clue about the SRD secrets that have allegedly been revealed.  As the old riddle goes, if a tree falls in the forest and nobody hears it, was there any sound? If a secret is allegedly revealed and yet nobody seems to know about the revelation except the people who were trying to keep it secret, has it really been revealed?


What We Don’t Know

Obviously, the meeting at which a censure motion is approved is itself an in camera meeting, so we only know what SRD permits us to know about this motion.  So what don’t we know?

We are not told to whom Director Anderson is accused of leaking confidential or privileged information. As mentioned above, this “leak” seems only visible to SRD. This leads me to question whether it can really be called a leak, or can present any possibility of embarrassment or harm to the organisation.

I don’t deny that a very small leak can sometimes be harmful.  Supposing SRD were a private corporation, and confidential business plan details were leaked to an executive of a rival corporation; then indeed a tiny, very limited leak might do considerable damage. But as a governmental agency, what does SRD have to worry about if a leak is so small that the general public never hears about it? Can that do enough harm to warrant a very public scolding and censure?

Next, how could a leak be so small that no one has heard about it … and yet become known to SRD?  How did they hear about it? They’re not telling us. What if this censure rests on a denunciation from the same kind of partisan opponents who launched the recent vexatious litigation against Anderson? What if that denunciation is just as ill-founded as the litigation?  An old, old saying that applies to politics as much as any other information-based endeavour is “Consider the source.”  Do we feel confident in SRD’s ability or willingness to consider the source?

SRD is also not telling us by what margin this motion of censure passed.  Was it unanimous?  Did anyone abstain?  Were there Directors who dissented?  Their press release gives the impression that the Board unanimously censured Director Anderson’s conduct.  If we knew what the margin on that vote was, we’d have a better sense of how solid a case was presented.

We should remember here that it is commonly accepted practise for Board minutes to report only the result of a vote, and not the votes of individual members or even the Yea/Nay vote counts. This is not in itself unusual, and in many cases I think it hardly matters. However, elected officials are involved. One could argue that since MPs in Parliament and Senators in Congress vote openly (so constituents can tell whether they are getting what they voted for), perhaps elected officials at other governmental levels should do likewise. Otherwise, how do I as a voter know whether my Regional Director is representing my position? Should our Directors’ votes be secret? Good question.

Secret Trial, Public Verdict:  Just Trust Us On This?

SRD’s “trial” of Director Anderson is as secret as their condemnation is public. We, the voting public who pay their wages, are not permitted to hear the evidence or witness the process, we are just supposed to accept the verdict.  Given so little information, I’m far more inclined to question than to accept.

Recap: SRD is not telling us who saw the forbidden information, i.e. the scale of the alleged leak and why it is so harmful as to merit censure. They’re not giving us any visibility into the process at SRD which resulted in the censure motion; and Director Anderson is of course not allowed to say anything about that process. They’re asking us to “just trust them” to exercise good judgment and fairness.

The problem with this, for me, is that SRD has demonstrated what I’d call poor judgment in the recent past. For example, seen from where I sit, they allowed themselves to be influenced by a noisy minority into obstructing the will of an Area B majority for years. They took seriously — and spent thousands of taxpayer dollars investigating — a purely vexatious, error-riddled set of baseless allegations against Director Anderson from a handful of well-known partisan political opponents.

They apparently condoned for years the anti-democratic practice of secret lobbying via private email. At least one of their Directors publicly meddled in Area B’s election process last year, by jumping into a Facebook discussion to back one candidate and discredit the other. During the weary struggle over the hall tax service for Area B, SRD appeared to take sides with a minority bloc and disregard/sideline the local knowledge and track record of Area B’s elected Director. This amounts to disenfranchising the voters who elected her in good faith.

So it should hardly surprise SRD at this point if there are people on Cortes who no longer trust SRD, who do not feel that SRD is giving us good governance, or is operating in a fair and transparent manner, or is living up to its own code of conduct.  I for one, am not a big fan of conspiracy theories, yet I feel that there is something downright peculiar about SRD’s treatment of our Area.

(The really interested reader might now want to check out Ambush vs Engagement, which offers a detailed example of what I mean by “downright peculiar”. If you’re not that interested in stuff that happened a year ago, read on…)

Inconclusive Conclusions: No Closure

So, is Anderson once again the target of anonymous denunciations that SRD once again chooses to take seriously without basic fact-checking? or has she indeed behaved badly and embarrassed her Board, thus earning a vote of censure?

If you want my two cents, SRD has done a pretty good job of embarrassing themselves over the last couple of years; they haven’t needed any help from Director Anderson. In fact, the number of times she’s had to tell her constituents “I’m not allowed to talk about that” is in itself far more embarrassing (in my view) than whatever she might have been able to tell us if un-gagged. Because the culture of secrecy at SRD, the significant amount of information they are apparently concealing under the handy umbrella of in camera, is the most embarrassing thing of all. This degree of opacity in local governance is unhealthy. Governments should have nothing to hide.

No matter how you slice it, it’s impossible to figure out what’s really going on in such an information vacuum.  This unfortunately leaves us free to speculate in all kinds of unconstructive ways: SRD’s secrecy only encourages gossip and rumours. My conclusion: the only way to get to the bottom of all this murk and mystery is full transparency, an end to this extensive use of in camera meetings to hide information which — in my opinion — the public has a right to know.

The Peterson report found no basis for the allegations against Director Anderson.  The court hearing exonerated Director Anderson. That sorry episode is over, and surely no information related to it can now harm Director Anderson’s reputation (already subjected to public attack) or the community. Director Anderson herself has said more than once that in camera confidentiality (or secrecy?) is not protecting her in any way, and her personal preference would be for the SRD Board to rise and report on the entire affair — not partially but fully, making all documents public (within the limits and redaction requirements of the law).

This enthusiasm for full disclosure suggests to me that whoever has something to hide, it is not Anderson. This in turn strengthens my growing concern that the in camera mechanism can be overused and even abused, and that we may be witnesses to a troubling drift towards a culture of secrecy in our local government.

At the court hearing, Anderson’s counsel said that the plaintiffs had “come to their senses” and withdrawn their allegations. Will SRD “come to its senses” at some point, and allow us to know how and why petty, amateurish partisan shenanigans were ever allowed to spin out so long and at such cost? Will they ever do the right thing and reimburse our Director’s legal expenses for her defence against patently unfounded charges? After reading the stern and sanctimonious language of the motion of censure and thinking it over for a day or so, I was left with the conviction that if anyone deserves a written apology… it is Anderson — from SRD.

Here’s the takeaway: Transparency in government is good.  Secrecy is not good.  There has been too much silence and too much mystery. There will never be closure, or restored confidence in SRD, until we have some sunlight on these matters.

4 thoughts on “Confidentiality or Secrecy? A Slippery Slope”

  1. Thanks, De, for taking the time to write this article. Is attending the SRD meetings in CR still helpful?

    Hi Amy, thanks for reading. Yes I think it is always helpful to attend SRD meetings. Those who attend can monitor the mood of the room, see how Cortes issues are handled and how other Directors interact with our Director, etc. I think a strong turnout on Nov 21 (the day they decide whether or not to enact the bylaws that a strong majority of us voted for) might be a particularly good idea; but attending any meeting is always good. It’s a pity it’s so expensive and time consuming — a real barrier to our participation. I’m really looking forward to SRD meetings being videotaped and available via this new high speed internet they keep telling us about. –DC

    1. This is actually a reply to De’s reply. De, what do you mean “Nov 21 (the day they decide whether or not to enact the bylaws that a strong majority of us voted for)”? What’s to decide? How is it a decision? We voted, they passed. They are obligated to enact, no?

      1. As I understand it, the referendum was not binding. One would think, given the number of people who voted “Yes”, the SRD will go forward with both bylaws, but they still have to decide to do this. This may already have occurred. I was just checking their website to see if the minutes from the last meeting are up, but there is nothing there yet. (https://agenda.strathconard.ca/public/content.asp?id=81)

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