This e-mail, written on October 22, 2008, and finally disclosed to the concerned student on September 9, 2010, was sent from the Dean of Science of the University of Ottawa to members of the university's upper administration, including the Dean of Graduate Studies, Gary Slater, the Vice-President Academic, Robert Major, the University Secretary, Pamela Harrod, and the University Labour-Relations Manager, Jean-Yves Leduc. The details of the battle to obtain this information, and its relation to the University of Ottawa decision to deny a graduate student the right to free research are detailed below. Additional information is available at the U of O Watch blog [link].
The e-mail dates from October 2008, when graduate school applicant Joseph Hickey was awaiting acceptance into the Master's of Science program in physics at U. of O. Hickey's struggle to continue his research with his university-approved and accepted professor extended through the Fall 2008 semester and into the Winter 2009 session, when he became a registered M.Sc. student. The conflict escalated when he, four other graduate students, and one postdoctoral fellow had their research supervisor, Professor Denis Rancourt [link], removed from them in December 2008. At this time, Joseph Hickey was called to a meeting with Dean of Science André E. Lalonde and Dean Slater, where the deans intimidated the student and gave him the false information that if he did not choose a new research supervisor within one month, his full National Sciences and Engineering Research Council (NSERC) scholarship (with a value of $17 500 per year) would be rescinded. [Jan. 26, 2009 news article, in French (pg. 6)]
During the Winter 2009 semester, Hickey and fellow students attempted to lobby the university administration, including deans Slater (right) and Lalonde (left), to allow them to continue their chosen research projects with their chosen supervisor. Hickey initiated an internal complaint following a university policy on the treatment of graduate students (University of Ottawa Policy 110) and received the formal support of the Graduate Students Association, but without success. In late February 2009, Hickey, another graduate student Sean Kelly, and the post-doctoral researcher, Dr. Meizhen Dang, filed a civil suit against Deans Lalonde and Slater and the University of Ottawa over malfeasance in public office due to the intimidation suffered during meetings in December 2008, and over breach of contract for having their research supervisor removed from them despite, in some cases, years of scientific work in the research group. [February 25, 2009 news article, March 2, 2009 news article, in French (pg. 4), March 5, 2009 news article (pg. 2)]
The legal case was eventually unsuccessful for Hickey once it was challenged by the university, threatening a financial risk in the tens of thousands of dollars for the student should his case have failed in court. Professor Rancourt was finally fired on March 31, 2009, and the students were forced to abandon him as their supervisor or have their registrations to the university barred for the following semester. In most cases this meant fundamental changes to the motivation and direction of their research projects, as was true for Hickey.
Joseph Hickey's Policy 110 complaint dragged on for months until the Fall 2009 semester, when the new Vice-President of Governance, Diane Davidson finally met with him. Contrary to the commitment communicated to the student in April 2009, the university refused to appoint an external, independent arbitrator to hear his complaints over intimidation and denial of research by Deans Slater and Lalonde. Ms. Davidson has still to reply to a December 2009 letter from the Graduate Students' Association requesting that a proper professional arbitrator hear the case and make a decision on the issue.
New information on Hickey's case disclosed by order of the Information and Privacy Commissioner of Ontario
Throughout this long attempt to keep his research supervisor and pursue the research that brought him to the University of Ottawa, Joseph Hickey also sought personal information stored in the office of the Dean of Science. After an arduous process of appealing, mediating, and waiting, the matter finally went before a judge at the Information and Privacy Commissioner of Ontario (IPC), who ordered that the University of Ottawa disclose the e-mail above (record 3) in full. This order, PO-2909-I, was issued on August 27, 2010, nearly two years after the initial request for information was made. Two other records that were blocked by the university on the same grounds used to block record 3 were revealed several months earlier as part of a separate Access to Information (ATI) request.
The disclosed records, numbered as record 2, record 3, and record 11 (record 2 is contained within record 11), demonstrate the involvement by deans Lalonde and Slater in the student's application to graduate school, including their comments to upper administrators of the university about his political beliefs, and about courses he had taken, letters he wrote, and activism he supported.
The purpose of the Freedom of Information and Protection of Privacy Act (FIPPA) is to allow the public access to information pertaining to the operation of institutions, and to require institutions to use personal information appropriately according to law that protects privacy.
The state of access to information and protection of privacy at the University of Ottawa
As the following situation at the University of Ottawa shows, however, this essential public service appears to have been subverted in order to keep upper administrators' violations of academic freedom away from public view. The results of the long appeals process, including the University of Ottawa FIPPA office's legal argumentation to deny access to personal information requested by a student is documented here:
1. Initial access to information request
On November 10, 2008, Joseph Hickey submitted an ATI request at the University of Ottawa FIPPA Office requesting, among other things, "All records about me, including records sent and received by the Dean of Science, André E. Lalonde, and the Dean's office." [Nov. 10, 2008 ATI request]
2. University of Ottawa decision lettters
On December 2, 2008, the University of Ottawa FIPPA Coordinator, Pamela Harrod responded with a decision letter which stated that four records had been found to respond to the ATI request. [December 2, 2008 decision letter]. Access to some of the records was either denied (indexed as an "undisclosed record") or only partially granted, with some information "severed" (blacked-out).
The decision was appealed, and after a mediation with a mediator from the IPC, the university FIPPA office performed an additional search for records and responded with a decision letter containing an index with 19 more records. [April 7, 2009 decision letter]. The three records that would eventually be revealed were numbered 2, 3, and 11. The records, in severed form looked like this: record 2, record 3, record 11.
Throughout the mediation process, the university FIPPA office maintained its arguments for why the blocked information should remain inaccessible to the requester, including its claim that the information was related to a labour relations matter and was therefore excluded from the Act, and that the information should remain undisclosed due to solicitor-client privilege between the university and its lawyers.
3. Adjudication process: first round of representations and Interim Order PO-2852-I
The University of Ottawa FIPPA office did not agree to grant access to the records under appeal at the mediation stage, so the appeal had to go on to an adjudication. In May 2009, adjudicator Diane Smith from the IPC requested representations from both sides as to why the information at issue should be disclosed or withheld. At this first call for submissions, the university stressed that the severed portions of records 2, 3, and 11 should remain withheld because they related to the labour relations dispute with Professor Rancourt. [University of Ottawa FIPPA Office representations #1 (see pg. 6-12)]
On December 2, 2009, the adjudicator ruled in Interim Order PO-2852-I (pg. 6,7) that the records could not be withheld on the basis of being substantially connected to the Rancourt-U. of O. labour dispute:"Based upon my review of the records, I find that there is no more than a superficial connection between the creation, preparation, maintenance and/or use of these records and the labour relations or employment-related proceedings or anticipated proceedings that the University has referred to in its representations [Order MO-2024-I]. Therefore, I find that the second requirement of section 65(6)3 has not been met. The portions of Records 2, 3 and 11 at issue are not excluded from the application of the Act by reason of section 65(6)3."
The university provided no evidence in its representations to the adjudicator to support its claim that the severed e-mails were related to the labour relations matter that eventually resulted in the firing of a tenured professor. Does this indicate that the Dean of Science's opposition to the professor's and his student's choice of research area were not used in making the institution's decisions in the labour relations matter?
4. Adjudication process: second round of representations and Interim Order PO-2909-I
The next step in the adjudication required both sides to submit representations about the university's other argument for why the information in records 2, 3, and 11 should remain blocked from the requester. In this case, the university claimed that the information constituted a part of the continuum of information protected by solicitor-client privilege between the university and its lawyers. For this to be true, the information would have to have been used to request or give legal advice, or have been used in litigation. [University of Ottawa FIPPA Office representations #2]
Meanwhile, in a separate ATI request, records 2 and 11 were revealed to Hickey in full. As mentioned above, the unsevered records contain comments by the Dean of Science and the Dean of Graduate Studies regarding Hickey's political beliefs and activity, and show that Dean Lalonde gathered and relayed information about letters that Hickey had written and a course that he attended to members of the university's upper administration in relation to the student's graduate school application.
On the basis of the full disclosure of records 2 and 11, the appellant made his representations to the adjudicator on March 22, 2010. These representations initiated a separate violation of privacy investigation by the IPC. [Notice of Privacy Complaint PC10-15]
At last, on August 27, 2010, the adjudicator Diane Smith ordered in Interim Order PO-2909-I that record 3 be disclosed in its entirety. The e-mail, which is pictured at the top of this page, was sent by the Dean of Science to the Dean of Graduate Studies, the VP Academic, the University Secretary, and the University Labour-Relations Manager, and said:
"The Chair of Physics has evidence that is not reproduced below that indicates the student wishes to research global climate change with Professor Rancourt. The professor has no scientific expertise in this scientific field whatsoever. I am strongly opposed to letting this student initiate such a study with professor Rancourt."The "evidence" about the student's research interests that the dean referred to referred to was most likely his "research proposal" document submitted as part of his M.Sc. graduate school application.
The University of Ottawa uses the "solicitor-client privilege" exemption extensively in its refusals to ATI requests. This time, though, the adjudicator ruled that it clearly did not fly - Record 3, although it was sent to lawyers André Champagne and Lynn Harnden, could not be withheld because of solicitor-client privilege. The adjudicator wrote in her analysis that:
"Based on my review of the information at issue, I find that even though there may have existed a continuum of communication between the University and the law firm about an ongoing labour relations matter involving the professor named in the record, the record also concerns the appellant and his educational position at the University. Although two lawyers at the law firm were sent this email, the email was also sent to two other University officials and was copied to seven other individuals. There is no indication in this email that legal advice is being sought or given. Merely sending a copy of a record to a solicitor in and of itself does not automatically result in privilege being attached to it."
Once again, as in the first round of representations to the adjudicator, the university failed to provide evidence of its claimed need to hide a student's personal information about his position in the university.
Almost two years after seeking to see his dean's emails about him under the concern that his academic freedom was in peril, one student now has a wider picture of how his right to free research was denied. For the benefit of students and the rest of the University of Ottawa community, wll the university FIPPA office release the information due to the public in a reasonable time from now on? Or will it continue to drag information requesters through the mediation and appeals process, citing bogus exemptions and refusing to provide evidence? How many rulings will the University of Ottawa lose before it shapes itself up?
Update, May 2011: University of Ottawa tops the list of Canadian universities and colleges for freedom of information requests and appeals (link).