Wind Power FOI Appeal: “Frivolous and Vexatious”

Folks following my efforts to uncover truth behind the Ontario government’s chaotic wind schemes, including an official plan briefly explored in late 2012 to cancel six controversial wind developments to be located in vulnerable electoral ridings, might be interested in the most recent resistance reaction from Official Ontario. The bottom line from Official Ontario is that my investigation of the cancellation plan for the McLean’s Mountain Wind Farm on Manitoulin Island — which I initiated with a simple, tightly targeted Freedom of Information request almost two and a half years ago — is “frivolous and vexatious”.

My most recent and final submission in the ongoing appeal process — which has been going on since August 2013 — is posted at Do Ontario’s Freedom of Information Laws Apply to Green Energy?

The thrust of my February 26, 2015 comments was to plead with the Information and Privacy Commission (IPC) adjudicator for a ruling that the IESO was negligent in its responses to my inquiry and a request for orders to complete the record.

(I didn’t include with my February 26 posting the IESO’s submission to which I was responding because the confidentiality of the IESO submission was unclear. I have since confirmed that the IESO’s submission is a public document. The IESO’s January 2015 submission with, a typo in the date, is MMWF FOI JA15 IESO arg. For the FOI nerds out there, here is the IPC’s MMWF FOI JA 2015 Notice of Inquiry for my appeal adjudication, which I correct in my February 26 submission.)

By way of background, I initiated this Freedom of Information (FOI) inquiry in February 2013, asking the then Ontario Power Authority (now IESO) to produce a study it had conducted on the profitability of the McLean’s Mountain Wind Farm as input to a review of options for negotiating an exit from the contract. After 17 months of denying the existence of the information I requested, the IESO finally coughed it up when cornered by a promise made in front of an Information and Privacy Commissioner officer to produce an affidavit attesting to the non-existence of the study. The comments attached below on my appeal to the Information and Privacy Commissioner adjudicator were filed by the IESO as a sur-reply to my comments filed February 26. In its January 2015 comments, the IESO impugns my motives in pursuing this disclosure, claiming that my intention is to “mischaracterize” their analysis. In its March 2015 comments, the IESO persists with this theme, attacking my pleadings in appeal as “frivolous and vexatious”.

One line of the IESO’s March 2015 reaction that is particularly unjustified is the official explanation for that agency’s screamingly obvious lack of due diligence. In attempting to brush away its 17 months of denials regarding the existence of analysis, which the IESO ultimately produced, the explanation offered is that, “The IESO simply continued to conduct diligent searches in an attempt to uncover responsive records that may have been missed in earlier, broader searches.” (emphasis added) The IESO appears to have a dysfunctional document search and recovery system but its appeal submission focuses on deny, deny, deny.

Although the IESO belatedly acknowledged that it did conduct the cancellation research I sought from the beginning, the IESO now claims that there are no records associated with circulating the results to anyone, including whoever ordered the analysis. What’s up the that? The IESO conducted detailed analysis on a sensitive subject using significant resources, but did it just for fun? The results were not sent to anyone?

The logic of the IESO’s sur-reply pleading against my request for more complete disclosure is that the interests of power generators are more important that the interest of consumers. “Disclosure of such information (profitability estimates for the McLean’s Mountain Wind Farm wind contracts) could only be detrimental to the IESO’s relationships with its FIT suppliers.”

My argument that consumers ought to have the right to know what they are paying for is dismissed as “public interest in the abstract”.

My argument that the official estimate of the profitability of this contract might help explain why thousands of wind turbines are being erected across the province is dismissed with the claim that, “The records would not provide any further details that could be useful to the public in understanding the presence of wind turbines in the Province.”

The IESO’s sur-reply is here: FOI appeal PA13-310, IESO sur-reply March 2015.

Post script April 23: The IPC has indicated that the decision of the adjudicator in this case is expected in the late summer or early fall.

5 Comments

  1. Tom: How dare you? McMillian LLP, home of Dwight Duncan, former Minister of Energy and Finance Minister under Dalton McGuinty. The epitome of integrity and all that is green and spins! Wasn’t it Finance Minister Duncan who instructed MPAC to assess wind turbines at $40K per MW? Why this man damn near walks on water! To dare to think that anyone who would defend IESO/OPA on matters related to the FOI on this subject is verging on craziness! Or are they?

    Mr. Chisholm wouldn’t be just a little conflicted would he? McMillian profess to be pretty important in respect to the renewable energy sector as the below linked handout describes: http://www.mcmillan.ca/Files/BRO_RenewableEnergy_0210.pdf

    “A member of the firm’s Renewal Energy Group currently serves as Chair of the Ontario
    Energy Board’s Market Surveillance Panel; another previously served as Senior Policy
    Advisor to Ontario’s Minister of Energy and currently sits as a director of Canada’s
    largest municipal utility and a former member is currently counsel to the Ontario
    Energy Board.” (“A member of the firm’s Renewal Energy Group” wonder if he is the one that beat up on me for my nasty comments about what we lose exporting surplus power) and

    “Wind Development: Represented wind development companies with respect to corporate structuring, real estate, First Nations, supply contracts, power purchase agreements and regulatory permits and approvals (IESO, OEB, environmental, zoning, etc.).” and

    “Negotiated and drafted agreements for the purchase and sale of environmental attributes and renewable energy credits”

    Want to bet they are working on the upcoming “cap and trade” debacle about to be launched by Wynne et al? and

    “Acted as Canadian counsel to the purchaser of an international energy trading business and as lead counsel on the acquisition of a major wind developer.” and

    “Generation Procurement: Advised Clean Energy Supply and Demand-Side Management bidders into Ontario Power Authority RFP processes.”

  2. NextEra is going to place a bid to put wind turbines in our cottage area near Plevna, On in North Frontenac and Addington Highlands Township. It is an ecological wonderland with endangered species, acres of crown land, pristine lakes and the only industry is basically tourism. I am appalled at the rumours I am hearing that the Green Energy Act can trump Acts that protect environmentally and ecologically sound protection Acts such as protection of endangered species. I have heard we don’t need the wind energy as we are selling our current reserves at excruicitingly low costs while paying ridiculous rates ourselves. I like your tenacity and drive to full transparency in regards to government initiatives and full disclosure. NextEra has a meeting this Saturday where they are going to do a public presentation. My fear is that this is a billion dollar company with years of experience and I am uneducated on the subject with a few days to do adequate research to ask the right questions. Do you have any information in regards this that would be helpful in opposing this bid? I just don’t even know where to start.

  3. Inconceivable to apply vexatious exemption to your FOIA request and iam the current UK vexatious champion. To see my vexatious decision please go to GIA/3037/2011 Dransfield v ICO.
    Makes good reading and proves the UK ICO is bent.

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