Ward 2 Councillor Bill Gordon was formerly in charge of IT at the Midland Police Services, and is now being sued by the town of Midland for not handing over the encryption key for the Midland Police Services servers.Ryan Carter/The Globe and Mail
Ever since the Ontario Provincial Police took over patrolling duties in the small town of Midland, by the scenic shores of the Georgian Bay, the computer servers of the defunct local police service have sat idle in a municipal building monitored by security guards.
No Midland official has been able to see the content of these three servers because they were encrypted before they were handed over to the town.
In an unusual modern, digital twist to small-town politics, Midland is now suing its former police chief and a town councillor in a bid to recover the encryption key that would unlock the computers.
The dispute, which follows the town’s decision to disband its police force and replace it with the OPP, underlines the legal and ethical challenges that arise when disposing of electronic records and e-mail archives.
The town is portraying former police chief Mike Osborne and Councillor Bill Gordon, who also was the Midland police’s IT manager, as rogue ex-employees who have taken public records hostage.
The two men, however, argue that municipal employees have no business poking into confidential files that hold details about past investigations, suspects’ names, victims’ statements or information about young offenders.
Unlocking the computers would also enable the town to see Mr. Osborne’s past e-mails, which potentially hold information that could be used in civil suits embroiling the former top cop and Midland.
Midland’s court application against Mr. Osborne and Mr. Gordon, which was filed earlier this fall, is the latest move in a three-way legal battle that also involves a law firm claiming unpaid legal fees from the town.
“This is a very precarious situation, ethically and legally, that we’re in. It’s unprecedented,” Councillor Jonathan Main said during a lengthy town council debate on Aug. 14 preceding a vote to sue Mr. Osborne and Mr. Gordon. “... it’s truly unfortunate that we got to this place where we are.”
While council discussed whether to sue him, Mr. Gordon sat in the audience, having removed himself from the debate to avoid a conflict of interest.
In a court affidavit, he said that, as a civilian employee and special constable of the Midland Police Service, he had taken an oath of secrecy preventing him from releasing the encryption key until he was sure that confidential records would be properly handled.
Mr. Gordon’s court filings allege that the town’s bid to access the computers is motivated by its desire to get its hands on Mr. Osborne’s e-mails. “The town has done nothing to mitigate. In fact, it has charged ahead with litigation,” he said in court papers. He further noted that the town has a poor record for computer security, having to pay a ransom after a hacker shut down Midland’s computer systems for weeks last year.
The town, however, says it now has responsibility for police records that were not transferred to the OPP or the province. “The town of Midland becomes the custodian of that information. We’re not doing anything less. We’re not doing anything more,” town lawyer Amanpreet Singh Sidhu told the Aug. 14 council meeting.
Midland is a community of 17,000 people, 160 kilometres north of Toronto. According to its court application, the town began considering whether to contract the OPP in the early 2010s.
Mr. Osborne was unhappy about the move. In a claim filed against the town, the former police chief alleges that supporters of the OPP takeover ran a smear campaign against him.
Eventually, the town voted to contract the OPP, which took over on Feb. 8, 2018. That same day, the law firm Johnston & Cowling LLP sued Midland and its police service board, saying it was owed $355,000 in unpaid fees and interests.
Most of that sum stemmed from a disciplinary prosecution against a Midland police officer. In a counterclaim, the town blamed Mr. Osborne for overshooting the $100,000 annual budget for legal expenses.
A police officer speaks with a citizen in front of the Ontario Provincial Police office building in Midland, Ont., on Oct. 2, 2019.Ryan Carter/The Globe and Mail
Mr. Osborne responded with his own suit, alleging that the police service board chair, George Dixon, was a friend of the officer’s uncle, had discussions with the officer and meddled in the case, driving up legal costs.
Mr. Osborne and his lawyer didn’t answer requests for comments from The Globe and Mail.
Mr. Dixon denies the allegations, explaining that his contacts with the officer and his uncle stemmed from the close-knit nature of the town.
In a statement e-mailed to The Globe, Mr. Dixon said he was acquainted but not socially close to the officer’s uncle, who is well known in the community. He said he met the officer to discuss other matters, because the man was also a union representative.
As for his intervention in the file, Mr. Dixon said “I was interested in avoiding potential future liability claims by the officer once Midland Town Council decided to opt for OPP policing.”
In another document, a letter he sent to council, Mr. Osborne alleged that the efforts to access the computer servers were an bid to pry into his e-mails. “It is personal, and Chair Dixon has expressed his wish to read our e-mail,” he said in the Aug. 17, 2018, letter.
Mr. Dixon said the e-mails are business records of the Midland police and not personal property of employees. The law firm’s invoices refer to e-mails from Mr. Osborne, Mr. Dixon said. “Defending the Johnstone & Cowling lawsuit … requires the board and its legal advisers to know about the communications on these files.”
Correspondence tabled at council shows that Mr. Sidhu asked the OPP to charge Mr. Osborne and Mr. Gordon. However, a senior counsel for the provincial police said in an April 3, 2019, letter that they wouldn’t intervene. “The dispute ... cannot be resolved by the OPP," he wrote.
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