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08 October 2010
By Denis G. Rancourt INTRODUCTION 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 [1] 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 [2], together with
the IPC Mediator's Report of July 27, 2009 [3], the
University's revised ATI decision letter of August 27,
2008, with index of respondent records [4], and
Lalonde's signed affidavit of September 18, 2009 [5],
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 [5]
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 [3]: "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 [4],
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 [2]: "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 [4]. 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 [5], 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 [2]: "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 [4]) 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 [5] 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 [2]: "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 [5] 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? [5] 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 ([3] 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 [3]. 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 [4]. (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 [4] of dean Lalonde having performed a search
in August 2008 as he states in his affidavit [5]. In his affidavit [5] 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 [4]. 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" [2]. 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" [6]. The latter grievance was filed on
January 3, 2007 [6]. 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 [7]. 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. CONCLUSION 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
[8]. 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 [2] and above). This report was first posted
on the Academic Freedom site: http://rancourt.academicfreedom.ca/background/reportonipcdeanliestocoverup.html [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 [1] 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-7-2007 dean-sMentalHealthminolta20070906162233.pdf [2] IPC Order PO-2915, Appeal PA08-149, University of Ottawa, IPC Adjudicator Frank DeVries. http://rancourt.academicfreedom.ca/Data/ Documents/ipc/2010-09-29=PO-2915=PA08-149=DGR-13 =medical%20letter.PDF [3] IPC Mediator's Report dated July 27, 2009, PA08-149, IPC Mediator Shaun Sanderson. Available to media reporters on request. [4] University of Ottawa's revised ATI decision letter dated August 27, 2008, with attached index (page-3) of respondent records. http://rancourt.academicfreedom.ca/Data/ Documents/ipc/2008-08-27=FIPPA=DGR-13=medical-letter=new-decision-letter=August-27-2008=pub.pdf [5] Dean André E. Lalonde's signed affidavit dated September 18, 2009. http://rancourt.academicfreedom.ca/Data/ Documents/ipc/2009-09-18=AEL-affidavit-medical-letter=PA08-149=029802.pdf [6] Grievance filed on January 3, 2007, against chemistry chairman Alain St-Amant. See point-[8] (Grievance G8) at: http://rancourt.academicfreedom.ca/background/formalgrievances.html where a text of the grievance is also provided. [7] 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": http://rancourt.academicfreedom.ca/Data/Documents/ grievances/dean-AEL-letter=Nov-6-2007=St-Amant-control.pdf [8] Extensive report and supporting documents about the 2006-2008 University of Ottawa covert information gathering campaign against then physics professor Denis G. Rancourt. http://rancourt.academicfreedom.ca/background/reportoncovertsurveillance.html
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