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Imagine you are a municipal councillor, perhaps just starting out, and you are presented with a document to sign as part of a negotiation with a company. You are told that that the language in the contract is “standard boilerplate,” to protect professional secrets, a formality that everyone signs. You want to be a good public servant, but you also learn that signing the document means you risk court action and high financial penalties if you divulge anything about the company.  You could lose your home. In some cases, you may be threatened with future action against your children.

Would you sign?

Non-disclosure agreements are a way of preventing the public from knowing the business of council. In some cases, they are even used to prevent elected city officials from knowing what city staff is planning, as was the case in Mississauga, where a CAO was asked by two provincial crown agencies to sign an agreement preventing her from giving local councillors details of a major transit project. She refused to sign the NDA, signalling it as “inappropriate.”  A similar problem arose in York Region last year, where city employees were required to sign NDAs that prevented them from discussing details of a controversial building projects with councillors in Richmond Hill and Markham.

Have officials In other Ontario municipalities signed such documents? We don’t know, because signing would make the document secret. Most NDA’s include a provision that you are not able to tell people you have signed it. In many cases, you are not even allowed to keep a copy of it.

What are they protecting?

It’s certainly reasonable to expect some level of confidentiality in business dealings, as disclosures might be harmful to the participants. However, we already have ways of dealing with potential problems. There is legal recourse for people who cause damage to reputation. We have in-camera council meetings for elements of transactions that are sensitive. How much protection is really needed?

In Stratford, an NDA may have played a part in the secretive Xinyi deal. Get Concerned Stratford has been filing freedom of information requests for over a year, and we still haven’t found out. We believe that secret contracts are bad for democracy, and we are worried about corporate influence on the running of our city. One question in particular keeps us up at night, and it should make you think as well:

What is Council signing NOW?

A special thank-you to Julie Macfarlane, Distinguished University Professor (Emerita) at the University of Windsor, for her kindness in reading this article. Professor Macfarlane leads the Can’t Buy My Silence Campaign, which identifies the many ways NDA’s are being misused to suppress basic human rights in Canada.

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