PART 1 - WHO IS WATCHING THE WATCHERS? PEC’S HERITAGE DESIGNATION PROJECT RAISES PRIVACY AND ACCOUNTABILITY QUESTIONS

PEC Heritage Register and Property Rights Series

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PART 1 – WHO IS WATCHING THE WATCHERS? PEC’S HERITAGE DESIGNATION PROJECT RAISES PRIVACY AND ACCOUNTABILITY QUESTIONS
PART 2 – IS YOUR PROPERTY A NON-DESIGNATED PROPERTY ON PEC’S HERITAGE REGISTER? KNOW YOUR RIGHTS BEFORE THE DEADLINE
PART 3 – WHEN DOES A HERITAGE COMMITTEE CROSS THE LINE?
PART 4 – YOUR HOME, YOUR INFORMATION: HERITAGE, PRIVACY AND PROPERTY VALUE

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Publishing a property address on a municipal heritage register is not, by itself, evidence of a privacy breach. The more important questions concern what happened behind the register: what information was collected about homeowners, who collected it, under what authority, where it is stored, who has seen it, and what rights property owners have to obtain answers. Any impact on your largest investment deserves due consideration.

Prince Edward County’s Heritage Designation Project involves the systematic research and evaluation of privately owned properties for potential heritage designation. That is a legitimate municipal function authorized by Ontario legislation. It is also an exercise of public authority capable of affecting privately owned homes and land, and it therefore deserves careful procedural safeguards.

The County says a Heritage Designation Working Group established through its Built & Cultural Heritage Advisory Committee is working with County staff to research and evaluate listed properties. Property owners may be contacted for feedback and information as part of that process.

None of that, standing alone, establishes wrongdoing.

But when municipal staff, advisory committee members or volunteers acting within a municipal process begin gathering information about private homes and their occupants, the legal analysis extends beyond heritage conservation. Questions can arise under the Ontario Heritage Act, the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), municipal records-management requirements, codes of conduct, committee mandates and ordinary private-property law.

The appropriate question is therefore not whether Prince Edward County may protect heritage resources. It may.

The question is whether every part of the process being used to identify, investigate and potentially designate private property is properly authorized, documented, transparent and compliant with the legal protections afforded to residents.

Based on the public material currently available, there are important questions that deserve answers.

FIRST, WHAT IS NOT EVIDENCE OF A PRIVACY BREACH

The publication of a property’s municipal address on a lawful heritage register does not, by itself, establish a violation of MFIPPA.

Section 27 of Ontario’s Heritage Act establishes a municipal heritage-register regime and requires prescribed information to be publicly accessible. A municipality obviously requires sufficient information to identify the property concerned.

Ontario privacy law also distinguishes between information about a property and “personal information” about an identifiable individual. Context matters.

Accordingly, it would be an overstatement to point to PEC’s published addresses and conclude, without more, that the County has breached privacy legislation.

The stronger and considerably more important question lies behind the public register:

What additional information was collected during the research and evaluation of those properties, and what happened to it?

That is where scrutiny should be concentrated.

WHAT WAS COLLECTED ABOUT PRIVATE HOMES — AND THEIR OWNERS?

The County’s Heritage Designation Project contemplates research and evaluation of properties and communication with owners.

That raises questions that the public-facing project information does not appear, on its own, to answer comprehensively.

Were properties photographed?
Were photographs taken exclusively from public roads and other public places?
Did committee or working-group members enter private property?
Were homeowners asked for permission before doing so?
Were interiors photographed or described?
Were identifiable residents or family members captured in photographs?
Were conversations with homeowners recorded in notes?
Were owners’ private telephone numbers or email addresses collected?
Were personal circumstances disclosed during conversations subsequently documented?
Were records created on County equipment, or were volunteers permitted to use personal phones, computers, cloud-storage accounts or email addresses?
Who had access to those records?
Were photographs, correspondence, research or other information supplied to consultants, heritage organizations, advocacy groups or other third parties?
How long are those records retained?

And perhaps most importantly: what were owners told about all of this before providing information or allowing access?

Those are not accusations.

They are basic information-governance questions that a municipality undertaking this type of project should be able to answer.

PROPERTY INFORMATION AND PERSONAL INFORMATION ARE NOT THE SAME THING

This distinction is essential.

Consider a municipal record stating:

“123 Example Road — stone farmhouse, circa 1870.”

That is principally information concerning a property.

Now consider a record containing the owner’s name, private telephone number and email address, notes recounting a conversation with the owner, information about who occupies the house, photographs containing identifiable family members, or information learned during a visit inside the residence.

The privacy analysis can become materially different.

Whether information constitutes “personal information” under MFIPPA depends on the information itself and its context.

That is why the central privacy question should not simply be:

“Why did PEC publish my address?”

It should be:

“What information concerning me and my property was collected, under what authority, for what purpose, how was it used, where is it stored and to whom has it been disclosed?”

That is the question capable of producing meaningful answers.

VOLUNTEER COMMITTEE MEMBERS DO NOT OPERATE IN A LEGAL VACUUM

The involvement of volunteers creates another issue that Council should address explicitly.

Municipal advisory committees frequently depend upon volunteers. Their public service should be recognized. But volunteer status does not necessarily transform records created while conducting municipal committee business into purely personal records.

Suppose, hypothetically, a working-group member photographs a property using a personal cellphone while carrying out an assigned municipal heritage investigation.

The relevant questions would include why the photograph was taken, whether the person was acting in an official committee capacity, how the image was used, whether it was transmitted to staff or other committee members and whether it became part of the municipal decision-making process.

Similar questions can arise with personal email accounts, text messages, electronic files and research notes.

PEC should therefore be able to identify its policies governing the creation, storage, transmission and retention of records by committee and working-group members.

If strong policies already exist, publishing them would resolve much of the uncertainty.

If they do not, Council has identified a governance problem that should be corrected before this project proceeds further.

A REQUEST FOR ACCESS IS NOT NECESSARILY A RIGHT OF ENTRY

Property owners should also understand an important distinction between voluntary cooperation and compulsory legal authority.

A committee or working-group member may ask an owner for information.

The owner may decline.

A person may request permission to enter private property.

Absent some separate lawful authority compelling entry, the owner may decline voluntary access.

An appointment to a municipal advisory committee does not, by itself, create an unlimited power to enter someone’s land or home.

If someone approaching an owner is exercising an actual statutory inspection or entry power, the municipality should be capable of identifying the statutory provision authorizing it, the person entitled to exercise it and the conditions governing its exercise.

Residents should never have to guess whether someone standing at their door is making a voluntary request or exercising government authority.

CONSENT SHOULD BE INFORMED

If homeowners are invited to permit access, provide photographs, discuss their property’s history or supply information about their home, the terms of that interaction should be clear.

Who is collecting the information?
Are they municipal employees or volunteer committee members?
Why is the information being collected?
Will it become a municipal record?
Who will see it?
Will it be considered by Council?
Could it appear in a public report?
Will it be shared with consultants or outside organizations?
Can the owner decline?

Those questions become particularly important when the subject is a person’s home.

A municipality should not rely upon an owner’s understandable assumption that someone associated with the County necessarily possesses authority that the person does not actually have.

WHERE IS THE PRIVACY NOTICE?

This is one of the questions Council should answer directly.

When a property owner is asked to provide personal information through the Heritage Designation Project, what collection notice or privacy information is provided?

The County’s public project material explains the heritage process and invites participation from owners. What is less apparent from that public-facing material is a comprehensive explanation of the privacy framework governing information supplied through those interactions.

That does not establish a MFIPPA violation.

A legally sufficient notice may be contained in correspondence, forms, internal protocols or other material not apparent from the project page.

But if such a notice exists, there is little reason not to make it readily accessible to every affected homeowner.

IS THE PUBLISHED LIST ACTUALLY THE STATUTORY MUNICIPAL HERITAGE REGISTER?

The Clerk should also answer a deceptively simple question:

Does PEC’s published “Non-Designated Listed Properties” document constitute, or form part of, the statutory municipal heritage register maintained under section 27 of the Ontario Heritage Act?

If it does, say so clearly.

If it is instead a separate inventory, working document, candidate list or designation-priority document, say that clearly too.

This is more than semantics.

A statutory municipal register has a particular legal foundation. A working group’s research list or internal designation-priority list has a different character.

A property owner should not have to retain a lawyer simply to determine which type of list contains their home.

WHAT PROPERTY OWNERS CAN REQUIRE — AND REQUEST — FROM THE CLERK

This is where affected homeowners should become proactive.

The Municipal Clerk has statutory responsibilities, including responsibilities relating to the municipal heritage register. Other information may need to be obtained from the appropriate County department or through a formal MFIPPA access request.

That distinction is important.

Not every question sent to the Clerk creates a legal obligation to provide every requested document immediately. Some records may be exempt from disclosure, and some requests must proceed through the statutory freedom-of-information process.

But property owners are entirely entitled to seek precise answers about a municipal process affecting their property.

CONFIRM YOUR PROPERTY’S EXACT LEGAL STATUS

Ask the Clerk in writing whether your property is:

a non-designated property included on the Municipal Heritage Register;
individually designated under Part IV of the Ontario Heritage Act;
within a Heritage Conservation District;
subject to a Notice of Intention to Designate;
presently being evaluated for designation; or
merely included on a committee, working-group, consultant, research or priority list.

Ask:

“Please identify the statutory authority under which my property presently appears on the Municipal Heritage Register and confirm whether any designation proceeding concerning my property has commenced.”

Do not accept ambiguous terminology where the legal status of your property is concerned.

ASK FOR THE COUNCIL AUTHORITY

Ask when and how your property acquired its present status.

Request the relevant Council resolution, by-law, staff report or other decision.

If a committee or working group has identified the property as a candidate for designation, ask whether Council authorized that particular action and whether Council has made any statutory decision concerning the property.

A committee recommendation and a Council decision are not the same thing.

ASK WHETHER YOUR PROPERTY IS BEING CONSIDERED FOR DESIGNATION

The question should be direct:

“Has staff, a consultant, the Built & Cultural Heritage Advisory Committee, the Heritage Designation Working Group or any other municipal body recommended that my property be designated?”

Then ask:

“Is any report, recommendation or Notice of Intention to Designate concerning my property currently being prepared or scheduled for consideration by Council?”

Owners should know what stage their property has reached before a formal notice arrives.

ASK FOR THE EVIDENCE

Request the material used to research or evaluate your property.

That could include, where records exist:

heritage evaluations, photographs, historical research, site notes, scoring sheets, consultant reports, committee recommendations and staff recommendations.

If those documents cannot be provided informally, ask the County to tell you how to obtain them formally.

A useful formulation is:

“If these records cannot be provided informally, please identify the appropriate MFIPPA access procedure and the municipal official responsible for processing my request.”

That puts the issue squarely on the record without suggesting that every document must necessarily be disclosed.

ASK WHAT PERSONAL INFORMATION IS HELD ABOUT YOU

Where privacy is a concern, don’t make a general allegation.

Ask for specifics.

What records concerning you exist?
Are there photographs?
Notes of conversations?
Emails?
Telephone numbers?
Private correspondence?
Site-visit records?
Communications among staff, councillors, committee members and working-group members?

Ask the Clerk to identify the County’s privacy/MFIPPA contact and the procedure for seeking access to records containing your personal information.

ASK WHETHER INFORMATION WAS SHARED

If you have a factual reason for concern, ask whether information concerning you or your property was provided to anyone outside the original municipal decision-making process.

That might include consultants or outside organizations.

Do not assume disclosure occurred.

Ask for records capable of establishing whether it did.

ASK FOR THE RULES GOVERNING COMMITTEE AND WORKING-GROUP MEMBERS

Request copies of the applicable:

Terms of Reference;
Code of Conduct;
Privacy and confidentiality requirements;
Property-contact protocols;
Site-visit or inspection procedures;
Photography policies;
Records-management policies; and
Rules concerning personal devices and email accounts.

Then ask the question every homeowner should be entitled to have answered:

“What authority, if any, permits a member of the Heritage Designation Working Group or an advisory committee to enter private property without the owner’s consent?”

If there is no such authority, homeowners should be told that clearly.

ASK HOW TO OBJECT

If your property is a non-designated property included on the municipal register, ask the Clerk to identify the statutory objection procedure.

Ask where the objection must be submitted, what it should contain, when Council will consider it and how you will receive Council’s decision.

If a Notice of Intention to Designate has already been issued, different statutory procedures and deadlines may apply. Owners in that position should consider obtaining legal advice promptly.

PUT EVERYTHING IN WRITING

This is not bureaucracy for bureaucracy’s sake.

It is evidence preservation.

A homeowner dealing with a potentially significant municipal process should keep:

Emails;
Letters;
Notices;
Copies of the heritage register;
Photographs;
Committee correspondence;
And notes recording dates and details of significant conversations.

If an important discussion takes place by telephone, send a brief follow-up email:

“Thank you for speaking with me today. My understanding from our conversation is that [brief factual summary]. Please advise if I have misunderstood anything.”

That provides the municipal official with an opportunity to correct the record while creating a contemporaneous account of what the homeowner was told.

A LETTER PROPERTY OWNERS CAN SEND NOW

Property owners uncertain where to begin can use the following as a starting point:

Subject: Heritage Status, Authority and Records — [PROPERTY ADDRESS]

Dear Municipal Clerk:

I am the owner of [PROPERTY ADDRESS].

Please confirm in writing my property’s current legal status under the Ontario Heritage Act, including whether it is a non-designated property included on the Municipal Heritage Register, individually designated, located within a Heritage Conservation District, subject to a Notice of Intention to Designate, or currently being evaluated for designation.

Please identify the Council decision or other statutory authority supporting its current status and advise whether my property appears on any separate committee, staff, consultant, working-group, research or designation-priority list.

Please confirm whether any recommendation concerning designation of my property has been made or is currently being prepared.

I also request access, where available without a formal MFIPPA application, to heritage evaluations, photographs, site notes, research and recommendations concerning my property.

Please identify the policies or protocols governing property-owner contact, site visits, photography, collection of information, use of personal devices and storage of records by members of the Heritage Designation Working Group and Built & Cultural Heritage Advisory Committee.

Please also advise what authority, if any, permits members of those bodies to enter private property without owner consent.

If any requested records require a formal MFIPPA application, please identify the applicable procedure and contact person.

Finally, if my property is included as a non-designated property on the Municipal Heritage Register, please advise me of the statutory procedure for objecting to its continued inclusion.

Please respond in writing.

Sincerely,

[NAME]
[PROPERTY ADDRESS]
[CONTACT INFORMATION]

WHAT IF THE COUNTY DOESN’T PROVIDE THE RECORDS?

A refusal to provide documents informally is not evidence of wrongdoing.

Some records are properly dealt with through MFIPPA.

If a formal access request is required, make one.

If access is refused in whole or in part, the municipality’s formal decision may give the requester appeal rights to the Information and Privacy Commissioner of Ontario.

That statutory process is more useful than arguing informally over whether a particular email or photograph should be released.

IF YOU BELIEVE A COUNCILLOR OR COMMITTEE MEMBER CROSSED THE LINE

Not every disagreement is misconduct.

But where an owner believes an individual acting within the municipal process has exceeded their authority, improperly used or disclosed information, entered property without permission, misrepresented their authority or otherwise acted inappropriately, the first task is to identify the nature of the complaint.

Preserve the evidence.

Then ask the Clerk:

“Please identify the Code of Conduct, Terms of Reference and complaint procedure applicable to this individual and advise whether the Integrity Commissioner has jurisdiction over the conduct in question.”

If the concern involves privacy, request the County’s privacy complaint process.

If it concerns an alleged Code of Conduct violation, the Integrity Commissioner may be the appropriate avenue depending upon the person’s status and the conduct involved.

If it concerns access to records or the handling of personal information, MFIPPA and the Information and Privacy Commissioner may be relevant.

If it concerns unauthorized entry, significant interference with property rights, a proposed designation or financial loss, independent legal advice may be warranted.

These are different legal issues with different remedies. They should not be conflated.

COUNCIL SHOULD AUDIT THE PROJECT BEFORE EXPANDING IT

PEC is moving toward a more substantial heritage administration framework.

Before adding resources, Council should satisfy itself that the existing process is operating under adequate safeguards.

That review should establish:

Whether written protocols govern property visits;
Whether owners are told when access is voluntary;
Whether photography is regulated;
Whether committee members can use personal devices;
Whether municipal business can be conducted through private email accounts;
How photographs and research notes are stored;
How records are transferred to the municipality;
Who can receive information;
Whether information has been shared externally;
And what retention and destruction rules apply.

If those safeguards already exist, publish them.

If they do not, establish them.

This should not require a controversy before Council acts.

DON’T ALLEGE A PRIVACY BREACH UNTIL THE EVIDENCE SUPPORTS IT

There is an important difference between identifying a legitimate legal risk and alleging that someone has broken the law.

Based on the County’s public Heritage Designation Project material alone, there is not presently sufficient evidence to conclude that PEC, its staff or members of its heritage bodies have violated MFIPPA.

That should be stated plainly.

But the absence of proof of a breach is not the same thing as proof that every aspect of the process has been properly managed.

The appropriate response is transparency.

Publish the protocols.

Identify the authority.

Explain the information-collection process.

Clarify the rules governing property visits.

Explain how photographs and notes are handled.

Tell residents whether personal devices may be used.

Explain when information can be disclosed outside the municipality.

And provide every affected homeowner with a straightforward means of discovering what information is held about them and their property.

THE QUESTIONS COUNCIL SHOULD ANSWER

Before the Heritage Designation Project proceeds further, Council and the Clerk should be able to answer publicly with contemporaneous documentation:

Is the published Non-Designated Listed Properties document the statutory Municipal Heritage Register under section 27 of the Ontario Heritage Act?
What information has the Heritage Designation Working Group been authorized to collect?
What legal authority supports the collection of personal information?
What notice is provided to homeowners?
What rules govern visits to private property?
Are owners expressly told when access is voluntary?
May working-group or committee members photograph private areas?
Mqy personal phones, computers, cloud accounts or email addresses be used for municipal heritage work?
Where are photographs, research notes and correspondence stored?
How are records created by volunteers transferred into municipal custody or control where required?
Has information obtained from homeowners been provided to outside organizations or individuals?
What retention and destruction requirements apply?
What procedure allows an owner to see the records held concerning them and their property?
And what complaint process applies when an owner believes those rules have not been followed?

None of those questions is anti-heritage.

They are questions about accountable government.

THE LEGAL RISK IS NOT NECESSARILY THE PUBLIC REGISTER. IT IS AN UNCONTROLLED PROCESS.

The Municipal Heritage Register is visible.

The potentially more important records are not.

The photographs.

The research notes.

The emails.

The site visits.

The conversations with homeowners.

The internal recommendations.

And any information moving between volunteers, municipal officials, consultants and outside organizations.

There may be entirely satisfactory explanations for all of it.

If so, PEC should have little difficulty providing them.

But government should not investigate privately owned homes for possible additional regulation and then require homeowners to discover after the fact what was collected, who collected it and what happened to it.

Prince Edward County is entitled to protect legitimate heritage resources within the authority Ontario law gives it.

Property owners are equally entitled to insist that the municipality exercise that authority lawfully, transparently and with appropriate regard for privacy and private property.

The committee advises. Staff administer. Council decides. The Clerk maintains the statutory process. And property owners retain their legal rights throughout it.

Heritage conservation does not suspend privacy law.

Nor does appointment to an advisory committee confer unlimited investigative authority.

Before PEC expands its heritage system, Council should demonstrate that the system it already operates has clear rules governing authority, consent, privacy, records and accountability.

That is not an argument against heritage conservation.

It is an argument for the rule of law.

DISCLAIMER

This article provides public-interest commentary and general legal information only. It is not legal advice.

Nothing in this article constitutes an allegation or finding that Prince Edward County, Council, staff, the Built & Cultural Heritage Advisory Committee, the Heritage Designation Working Group, a councillor, committee member or any other individual has violated MFIPPA, the Ontario Heritage Act, trespass law, a Code of Conduct or any other law.

Whether particular information constitutes personal information, whether a collection, use or disclosure is lawful, whether particular records are subject to access requirements, and whether any individual acted outside their authority are fact-specific legal questions.

Property owners concerned about a proposed designation, privacy, access to private property, significant redevelopment restrictions or financial consequences should consider obtaining independent Ontario legal advice regarding their particular circumstances.

PART 1 – WHO IS WATCHING THE WATCHERS? PEC’S HERITAGE DESIGNATION PROJECT RAISES PRIVACY AND ACCOUNTABILITY QUESTIONS