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Burnaby fighting privacy commissioner to keep real estate interests secret

Burnaby seeks to quash B.C. privacy commissioner decision to release 421 city-owned property addresses.
Burnaby City Hall 3
The City of Burnaby is suing the B.C. Information and Privacy Commissioner and a Burnaby resident to keep information about 421 of its properties secret.

Update: The Burnaby Now has received the list of City of Burnaby-owned properties, not including the 421 properties under review. You can read the document at the end of this article.

The City of Burnaby is fighting to keep information about 421 of the properties it owns secret.

Burnaby resident David Hayre made a request to the city in under the Freedom of Information and Protection of Privacy Act (FOIPPA) for “a list of all properties owned by the City of Burnaby and any properties it may own in the Province of B.C.”

Request for a list of Burnaby-owned properties

The city, which owns 2,735 properties, gave Hayre a list of 2,314 properties, with the information of 421 properties redacted.

The withheld information included street addresses and land parcel IDs of properties “currently the subject of land acquisition projects where the City has targeted adjacent or proximate properties for acquisition and land assembly.”

The land assemblies have the goal of creating higher density housing or expanding existing parkland, according to a review by the Office of Information and Privacy Commissioner (OIPC).

Releasing addresses could harm negotiations: city

A city can refuse to disclose information if it could “reasonably be expected to harm the financial or economic interests of a public body,” according to FOIPPA, as well as information about negotiations carried on by a public body.

The city said disclosing the property addresses would “harm its ability to negotiate the purchase of these targeted properties at fair market value” and worries property owners would refuse to sell or seek prices much higher than market value.

Burnaby’s general manager of community safety and the general manager of planning and development gave sworn affidavits with more than 20 examples of property owners seeking compensation “above fair market value” after learning of the city’s hope to purchase their property.

In some cases, the city stated property owners asked for $1 million over market value once learning the city wished to purchase their property, according to the city’s petition.

Burnaby resident requests FOI review

But Hayre said withholding the information disadvantages homeowners, and that the city is abusing its powers.

Hayre asked the OIPC to review the city’s decision, saying fair market value is the determined price a property sells for in an open market, with buyer and seller both reasonably knowledgeable about the property.

Hayre said the city is not allowing property owners to receive fair market value, “in part by withholding information from property owners about its plans and future zoning changes,” according to his response in the OIPC review.

OIPC orders city to reveal addresses

In September, the OIPC decided in Hayre’s favour.

Adjudicator Elizabeth Vranjkovic ruled the city did not establish a direct link between property owners selling their properties for more than market value and the disclosure of municipal addresses.

Vranjkovic said it is reasonable that property owners would seek prices above fair market value or refuse to sell regardless of when they learn of the city’s interest in their property.

She noted the city did not explain how the timing of when the property owner learns of city interest in their land would affect the owner’s desire to sell or not.

“In fact, the City’s evidence demonstrates that even without the kind of advance knowledge that the information in dispute conveys, property owners often demand more than fair market value once they learn of the City’s interest in their property,” Vranjkovic wrote.

“I do not see, and the City does not explain, how advance notice of the City’s interest would alter the negotiations between the City and the property owner.”

Vranjkovic ordered the city to give Hayre the previously undisclosed information by Nov. 3.

City wants to quash order

But the city is fighting the OIPC decision.

The city filed a petition in B.C. Supreme Court against the B.C. Information and Privacy Commissioner and Hayre on Oct. 31 to quash the OIPC order.

The city’s petition said Vranjkovic’s decision is based on speculation on how some property owners may react “regardless of knowledge” about city interests.

“What might be in a property owner’s mind before and after the City’s interests become known is something incapable of proving or disproving,” the city’s petition stated.

It said the OIPC decision is unreasonable and doesn’t align with the requirements stated in FOIPPA or the city’s “actual experiences in the past.”

Claims have not been tested or proven in court.

Below is a document listing 2,314 City of Burnaby-owned properties received through an FOI to the City of Burnaby. It does not include the 421 properties not made public.

FOI by Teresa Verenca on Scribd