An independent investigation into a closed-session held earlier this year to discuss the Minister's Zoning Order (MZO) request by Broccolini revealed council did not breach the Municipal Act.
The assessment was triggered as a result of a complaint the city received on June 4. Cunningham Swan Lawyers, who acted on behalf of Local Authority Services Inc. (LAS), which is the city's closed meeting investigator.
A report included in the upcoming council agenda says the complainant viewed council's move into closed session to find out the identity of the tenant as information that should not be kept from the public, as well as information that council could not obtain under section 239 of the Municipal Act.
At its April 6 meeting, council held a public meeting to discuss Broccolini Real Estate Group’s request for a Minister's Zoning Order for a large industrial lot, says the report.
In discussing the project, members of council expressed some concerns, including around the number and type of jobs that would be created.
As council questions began inch closer to a revelation to the identity of the tenant, Hardy Bromberg, deputy city manager, indicated a 'confidentiality [issue]' and inquired if there was a need for council to go into an in-camera session.
Council approved a resolution to go into closed session based on the commercial information exception provided by section 239(2)(i) of the Municipal Act.
The report by the law firm says a review of closed session minutes and interviews indicates there was a non-disclosure agreement (NDA) in place between the developer and client. The name of the tenant, however, was disclosed in closed session, but only after being assured that their identity would be kept confidential.
The above section of the act states that a meeting or part of a meeting may be closed to the public if the subject matter being considered is a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence to the municipality of local board, which, if disclosed, could reasonably be expected to prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization.
The law firm assessed the issue under three areas.
It first established if the subject matter of the closed meeting was indeed defined as commercial information.
The identity of the tenant itself does not have commercial value, says the report, adding, it is the impact of disclosing that information that is alleged to have commercial value.
"The NDA is some evidence that the tenant has ascribed commercial value to its ability to negotiate the transaction and maintain confidentiality of the tenant’s identity," says the report.
Secondly, the investigators prove that the information was provided in confidence, because Broccolini stated in open session that the tenant identity was protected by an NDA. Further, the report says, the developer Broccolini disclosed the tenant’s identity in closed session, with the express understanding that the information would remain confidential. Neither Broccolini nor the tenant have elsewhere disclosed the tenant’s intent to move to Cambridge, and both have expressed that confidentiality was a concern. The closed minutes confirm that the disclosure of the tenant’s identity could result in the tenant not proceeding with its plans in Cambridge.
Lastly, the law firm asserts in its report that, if disclosed, the information could prejudice significantly the tenant's competitive position or interfere significantly with contractual or other negotiations.
The report says, the client withdrawing from the proposal at the revelation of its identity alone suggests disclosure would arguably significantly interfere with contractual negotiations between Broccolini and the tenant.
"Based on the information available, we find that it was more likely than not that disclosure would prejudice significantly the competitive position or interfere significantly with contractual or other negotiations," concludes the report.
The matter will be presented to council at it's Tuesday meeting, which will begin at 5 p.m. and streamed live via the city's YouTube channel.