IPC rules in ATI case at U of O: Dean, VP-Academic and Legal Counsel conspired to send dubious letter questioning dissident professor’s ‘physical and mental well-being’
Dean caught lying in cover up
By Denis G. Rancourt
The Denis Rancourt case at the University of Ottawa (Ottawa, Canada) is a major ongoing academic freedom case being presently investigated by a Canadian Association of University Teachers (CAUT) Independent Committee of Inquiry and expected to go before the courts as a significant labour dispute. [Endnote-a]
The case has been covered by national and local media in both Canada and the US (New York Times -twice, Globe and Mail -twice, National Post, CBC radio The Current, TV Ontario). [Endnote-b]
Rancourt has presented his views on the case at a conference on academic freedom at New York University. [Endnote-c]
Academic workplace expert Professor Kenneth Westhues’ independent report concluded that Rancourt was subjected to an academic workplace administrative mobbing [Endnote-d].
The present example can be understood as one incident in the broader administrative mobbing phenomenon described by Westhues and enacted by the Allan Rock administration of the University of Ottawa. Several of the players mentioned by Westhues appear here also.
IPC ORDER RELEASED
On September 29, 2010, the Information and Privacy Commissioner (IPC) of Ontario issued its decision in a notable access to information (ATI) case: Order PO-2915, Appeal PA08-149, University of Ottawa.
On September 6, 2007, dean of the Faculty of Science (University of Ottawa) André E. Lalonde sent a dubious letter  to then physics professor Denis G. Rancourt. The letter expressed without explanation that “The University of Ottawa has developed some concerns regarding your physical and mental well-being.”
Rancourt made an access to information (ATI) request on April 30, 2008, for “all records that would have allowed the University of Ottawa to have ‘developed some concerns regarding [his] physical and mental well-being.’”
The September 29, 2010, IPC Order is the final outcome of the ATI request.
DEAN OF SCIENCE LIED THROUGH HIS TEETH
The IPC Order , together with the IPC Mediator’s Report of July 27, 2009 , the University’s revised ATI decision letter of August 27, 2008, with index of respondent records , and Lalonde’s signed affidavit of September 18, 2009 , shows that:
(1) Lalonde lied about the records during the formal IPC mediation step;
(2) Lalonde or his staff meticulously removed at least six records from his office computers and files; and
(3) Lalonde lied in affidavit  apparently to cover up his first lies about the records and his removal of records.
These acts constitute obstruction of justice regarding the Freedom of Information and Protection of Privacy Act (FIPPA) and are detailed below as points 1, 2, and 3.
1 – Lied about the records
When Lalonde was first contacted about the ATI request in May 2008 he said that his September 6, 2007, letter to Rancourt was his personal initiative, that it was based entirely on verbal communications with professors expressing concern, and that therefore there were no respondent records.
The IPC Mediator diplomatically reported it this way :
“At the outset of mediation, the University's FOI Coordinator advised the mediator that she had discussed this matter with the Dean to obtain further details about his letter, and to determine whether he had any records that could be responsive to this request. The Dean advised the Coordinator that he had no records responsive to this request. He advised that he had initiated the letter himself, based entirely upon informal verbal discussions that he had with various faculty members who had approached him with concerns about the appellant.”
The University’s position was that the Dean’s claim was the reason that, in its May 15, 2008, first decision letter, it had curtly claimed “Access is denied to your [ATI] request since no such records exist.”
In more than 20 decision letters from the University that the present author has seen, there is always a description about the search for records that is required by law.
The University’s story changed when the IPC Mediator asked all the officials that the appellant believed to be involved to provide affidavits stating that they were not involved and therefore had no respondent records.
At this point, the University claimed that all the emails of the officials who had left the University (Michelle Flaherty, Louis Benoit, David Mitchell) had been destroyed within 30 days of leaving, that it had no right to ask an involved retired professor used on contract (Raymond St. Jacques) for his records (even though he continued to use his University email account in his contract work for the University administration), and that it had otherwise now found 11 respondent records (all emails and strings of emails).
According to the disclosed index of these 11 newly discovered respondent records , three were sent by Lalonde and three others were received by Lalonde, in a three-month period preceding his September 6, 2007, letter to Rancourt.
The others involved in the same emails were among the highest officials at the University. In the words of IPC Adjudicator Frank DeVries : “the records at issue are communications between University human resource employees [including the head of Human Resources], legal counsel, a consultant, the Vice President Academic and Provost and the dean of the faculty involved in the labour relations issue regarding the appellant.”
DeVries also states:
“On my review of these records, I am satisfied that they were prepared, maintained or used in relation to consultations, discussions or communications. More specifically, the records themselves consist of email communications and consultations, and all of the records relate to the [September 6, 2007] communication eventually sent to the appellant by the dean.”
It is therefore not plausible that in this prominent academic freedom conflict involving such a delicate matter as the dean’s letter of September 6, 2007, dean Lalonde forgot that he had been involved for months with the upper administration in devising his letter to Rancourt and simultaneously remembered that he had acted alone and in such a way as to leave no documentary trace.
I conclude that André E. Lalonde lied in his response that led to the University’s first decision letter (of May 15, 2008) and again when first questioned during the IPC mediation process.
Note that both times he would have been lying to the University Freedom of Information (FOI) Coordinator (Pamela Harrod) who also occupied the post of University VP-Governance and was therefore the immediate supervisor of University Legal Counsel Michelle Flaherty who in turn was a sender or recipient in at least 9 of the 11 respondent records in question .
It is therefore also difficult to imagine that Pamela Harrod was not collaborating in Lalonde’s lies. Not to mention the conflict of interest from which Harrod did not recuse herself.
Pamela Harrod also signed the Lalonde affidavit of September 18, 2009 , as “Commissioner for Taking Affidavits, etc.” (sic), again without recusing herself.
2 – Meticulous removal of records
In order to exclude the 11 records in question from ATI access, the University argued and the IPC Adjudicator agreed that the records were legitimate labour relations records. In the words of adjudicator DeVries :
“On my review of the records at issue in this appeal, I am satisfied that they were prepared and maintained by the University […] Accordingly, these records relate to the University's relations with its own workforce, and the University has an interest in these records. In these circumstances, I am satisfied that the exclusionary wording in section 65(6)3 applies to the records.”
If these were legitimate labour-related records and since dean Lalonde was legally the work supervisor of then professor Rancourt, then why were all these records (at least 6 of 11 were received or sent by Lalonde ) meticulously removed from all the computers and filling systems in the office of dean Lalonde? Indeed, even the employee file of then professor Rancourt is held and maintained in the dean’s office, as required by the Collective Agreement of the unionized professors of the University of Ottawa.
Yet, we have the dean signing an affidavit  stating that an extensive search performed in August 2008 established that no respondent records were present in his office.
The same records were not removed by the other parties to the communications. Yet the one person (Lalonde) most directly linked to Rancourt in the labour relation mysteriously does not have these important labour records “of interest to the University.”
Several other ATI requests about Rancourt to dean Lalonde’s office, in the same 2006-2007-2008-2009 period, have not encountered systematic record gaps of this type.
From a probabilistic standpoint, one must conclude that the respondent records, related to this specific question of dean Lalonde’s letter of September 6, 2007, were necessarily at one time in dean Lalonde’s office and were specifically removed.
It is not a little strange that important labour records were removed from the one place where they are most needed and most relevant to the labour relation, from the one place that emitted the labour-management letter of September 6, 2007.
A less modest reporter might conclude that dean Lalonde was trying to hide something.
IPC Adjudicator DeVries agreed that the records should be disclosed but ruled that the law was such that he could not order the records to be disclosed :
“The appellant [Rancourt] does not directly address the issue of the application of the exclusion to the records at issue; rather, his representations focus on how records that relate to a person's own condition ought to be disclosed to that person. I generally agree with the appellant on this point; however, the first issue I must address is whether these records are excluded from the scope of the Act, If the records are excluded from the scope of the Act, this office cannot address access issues relating to them.”
3 – Lied in affidavit
Dean André E. Lalonde provided an affidavit  stating that he had conducted two searches for records, one in May 2008 and a second one in August 2008 (“I conducted a second search for responsive records”).
Why would Lalonde have been asked to repeat a search? How was the alleged search done the first time? 
On the contrary, according to the sequence of events, the University decision letters, and the formal IPC mediation report (accepted by both the University and the appellant), Lalonde performed at most one search ( and above).
Searches were performed only after the IPC Mediator asked for affidavits from all those potentially involved to establish that they were indeed not involved as claimed by Lalonde .
After these searches were performed, the University sent a detailed description of all the searches performed in its revised decision letter of August 27, 2008 . (A decision letter is a formal requirement of Ontario’s ATI law.) This revised decision letter, meant as a complete and final document about the University’s searches, explicitly names many (13) concerned individuals who did and did not perform searches and gives the detailed methods used in the searches. Disturbingly, there is no mention  of dean Lalonde having performed a search in August 2008 as he states in his affidavit .
In his affidavit  Lalonde claims that “In August, 2008, at the request of the FIPPA Coordinator, I conducted a second search […]” yet the FIPPA Coordinator who asked for searches in preparation for the revised University decision letter made no mention of Lalonde’s (alleged second) search in her detailed revised decision letter of August 27, 2008 .
A reporter tempted by the appeal of reasonable deduction would conclude that dean Lalonde lied in this way (on two counts) in affidavit to attempt to cover up:
(1) that he had denied any involvement by the higher administration,
(2) that he had claimed that he had acted alone and in such a way as to not produce any records, and
(3) that he never performed any search presumably because he knew that he had meticulously removed all respondent records (see above).
IPC ADJUDICATOR ACCEPTS BASIS FOR DENYING ACCESS – THE ALAIN ST-AMANT CONNECTION
In reviewing the University’s arguments for denying ATI access to the 11 respondent records, the IPC Adjudicator needed proof that the 11 communications were legitimate labour relations exchanges.
Here, the IPC Adjudicator agreed with the University’s argument that the communications concerned “a disciplinary matter as well as a grievance filed against one of its professors” .
Labour grievances originate from professors and are almost never filed against a professor. The only grievance filed against a professor was a grievance filed by Rancourt against then Chairman of the Department of Chemistry Alain St-Amant for “harassment” and “derogatory and threatening behaviour” . The latter grievance was filed on January 3, 2007 .
The only discipline in this matter would have been possible discipline of Alain St-Amant and the resulting order from the dean to St-Amant to stop his unacceptable behaviour .
Therefore, it appears that the University was using the problem of St-Amant’s behaviour as its pretext for sending its dubious letter of September 6, 2007, to Rancourt, without providing Rancourt with any indication to this effect.
In common language this is known as “blaming the victim” and it never constitutes legitimate labour management practice.
Beyond demonstrating that the Dean of the Faculty of Science is ethically challenged, this case shows that the Dean, the VP-Academic and Legal Counsel conspired to send a dubious letter questioning a dissident professor’s ‘physical and mental well-being’ based on no record other than communications between themselves and bosses at human resources.
The trio also practiced covert information gathering against Rancourt over an extended period (2006-2008) using a hired student journalist and condoning the student’s use of a false Facebook identity to integrate student activist groups .
Former Legal Counsel Michelle Flaherty is now a judge at the Human Rights Tribunal of Ontario. VP-Academic Robert Major is retired and dean Lalonde continues to manage the Faculty of Science at the University of Ottawa.
IMPLICATIONS FOR THE IPC
The DeVries ruling also importantly illustrates:
(1) the absurdity of present ATI law in Ontario, where employees are barred from access to all their own personal information generated and used by employers without employee knowledge or consent,
(2) the unwillingness of IPC adjudicators to respect the intended spirit of the law in disallowing cover ups of improper employer machinations, and
(3) the unwillingness of the IPC to regulate apparent conflicts of interest in institutions’ ATI responses to the IPC.
Regarding point-1, this grotesque authoritarian-regime feature in the law was implemented via political pressure under the Harris government and needs to be reversed. The Information and Privacy Commissioner of Ontario needs to but her pants on and use her technical and ethical expertise to publicly call for the obvious in this matter.
Regarding point-2, adjudicators such as DeVries need to develop more of a moral compass and admit, for example, that “employment-related matters in which the institution has an interest” means “employment-related matters in which the institution has a legitimate and proper interest”. In other words, the first filter needs to be: Is this an employer dirty trick?
The Dean’s behaviour at mediation should have been a flag for the improper nature of the administrative actions being covered up rather than being overlooked and condoned by DeVries.
Regarding point-3, IPC Adjudicator Frank DeVries condoned the fact that Pamela Harrod simultaneously acted as: (1) University FIPPA/FOI Coordinator, (2) VP-Governance (then “University Secretary”) and immediate supervisor of University Legal Counsel Michelle Flaherty directly involved in the ATI matter, and (3) “Commissioner for Taking Affidavits, etc.” (sic), signing the affidavit of Lalonde in particular.
DeVries also unilaterally and arbitrarily limited the scope of the ATI request resulting in his avoidance of ruling on the question of complete search regarding directly implicated University contract employee Raymond St. Jacques whose records (on the University email server in particular) were never searched (p.11 of  and above).
[a] Website, Denis Rancourt academic freedom case: http://rancourt.academicfreedom.ca/
[b] Chronological list of media reports about the Denis Rancourt case: http://rancourt.academicfreedom.ca/media/news.html
[c] Video of Denis Rancourt’s plenary talk about his case at an academic freedom conference in New York: http://cdecde.blogspot.com/2010/03/denis-rancourt-story-told-at-academic.html
[d] Academic workplace expert Professor Kenneth Westhues’ independent report about the Rancourt case: http://arts.uwaterloo.ca/~kwesthue/Rancourt09.htm
 September 6, 2007, letter from dean André E. Lalonde to then physics professor Denis G. Rancourt - http://ia341205.us.archive.org/3/items/UOfOsMentalHealthConcern/Aelsept-7-2007dean-sMentalHealthminolta20070906162233.pdf
 IPC Mediator’s Report dated July 27, 2009, PA08-149, IPC Mediator Shaun Sanderson. Available to media reporters on request.
 Grievance filed on January 3, 2007, against chemistry chairman Alain St-Amant. See point- (Grievance G8): HERE, where a text of the grievance is also provided.
 See the Dean’s November 6, 2007, letter to Rancourt confirming that he ordered chemistry chairman Alain St-Amant to stop any “threats, harassment and derogatory comments”: HERE.
 Extensive report and supporting documents about the 2006-2008 University of Ottawa covert information gathering campaign against then physics professor Denis G. Rancourt: HERE.