Judge denies councillor's request for report on fire department investigation

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A Moncton Court of King’s Bench judge has denied a Tantramar councillor’s request to make a report on the work environment of Sackville Fire & Rescue public.

In 2021, the former Town of Sackville – now part of the Municipality of Tantramar – hired Montana Consulting Group to complete a “comprehensive workplace assessment” of the department and its operations after receiving complaints from members of bullying, harassment and favouritism.

At the time, several firefighters were speaking up about the inconsistencies in the fire department’s policies and how they were applied, such as some members being reprimanded for arriving at a scene not wearing full gear, while others were not. In addition, some female members were prevented from entering buildings on some fire calls, or were not allowed to drive the fire truck though they were fully licensed to do so.

The firm wrote a report with 20 recommendations to improve the working environment. Montana presented the findings to council in an in-camera session, but the report and its findings were never made public.

According to a written decision dated April 2 by Justice Jean-Paul Ouellette, Coun. Bruce Phinney had filed multiple requests under the Right to Information and Protection of Privacy Act (RTIPPA) in the fall of 2021 to the clerk of the former town of Sackville, who denied his request to receive a copy of the Montana workplace assessment report.

“From what Mr. Phinney is hearing from constituents and firefighters, the full 20 recommendations have not been implemented, acknowledging however having been informed that most have been,” the decision document states.

“Notwithstanding, he still gets complaints and would like to be able to get the report or part thereof as he submits that council and the public should have access to the information contained therein.”

When the clerk denied Phinney’s request, she referred to RTIPPA, which states a public body can refuse a request if the person is asking for records from an investigator with recommendations in relation to an investigation into harassment or a personnel investigation.

In response, Phinney filed complaints with the Access and Privacy Division of the Office of the Ombud. The ombud upheld the municipality’s decision to not release the report.

Again, Phinney filed a request with the clerk to have access to the report, which was denied. During a meeting of Tantramar council on Oct. 5, 2023, he moved to direct the municipality to release a copy of the report to members of council and members of the public. Council voted against the motion.

Phinney then filed an application with the Court of King’s Bench seeking an order to access the report, and an update on the process of implementing the report’s recommendations. He then amended his application to seek only the portions of the report that contain the 20 recommendations.

In an interview on Wednesday, Phinney said he continues to have concerns about the morale and work environment at the department after hearing from firefighters that the harassment, bullying, and favoritism are ongoing. He is also worried about the firefighter and public safety if there is tension among fire crew members.

“It just makes me uncomfortable as a councillor,” Phinney said. “There’s too much secrecy.” 

Ouellette ruled to deny Phinney’s application.

“While Mr. Phinney’s intentions to have access to the Montana Report is noble and implies openness and transparency of a public body, the general purpose of the RTIPPA is intended to give access to information, but that right has its limitations,” Ouellette wrote in his decision.

The judge referred to the paragraph of the RTIPPA about the public body having the right to refuse to release information pertaining to recommendations from an investigator for a harassment or personnel investigation. Ouellette quoted from guidelines published by the New Brunswick Ombudsman in 2019.

“The purpose of this exception is to allow an investigator in this context to conduct his or her work in a thorough, candid, and frank manner, and to provide his or her advice and/or recommendations on a particular situation to the public body in confidence,” according to the ombudsman guidelines. “This protects the integrity and confidentially of the investigation process and encourages those involved to speak freely and candidly during the investigation process without fear of others later learning what they have shared.

“Given that harassment and personnel investigations are by their very nature sensitive matters, this protection is integral to the investigation process.”

Ouellette said Tantramar was “within its right” to deny Phinney’s request.

“If disclosure was permitted in the circumstances of this case, participants would be less inclined to discuss frankly the issues being reviewed. Without disclosure protection, personnel and harassment investigations would never serve their purpose,” he said.

Tantramar Mayor Andrew Black had no comment on the decision, but in an email he did note three of the recommendations from the Montana report are listed as “ongoing,” two are nearing completion for end of spring, and the rest have all been implemented.

Brunswick News has asked fire chief Craig Bowser for comment and in an email on Tuesday. In response Tantramar CAO Jennifer Borne said administration would not be providing a comment.