A fog surrounds freedom of information in Ontario

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 Editor: In 1990, the Ontario government responded to the dawning of the digital age by passing new legislation that gave every Ontarian a right to request information held by government. The result was the passage of FIPPA (the Freedom of Information and Protection of Privacy Act) and its sister, MFIPPA (the Municipal Freedom of Information and Privacy Act).

Both Acts are governed by the same principle: An institution must make a “reasonable effort” to disclose requested information. This sounds good, but in practice, this principle allows government to thumb its nose at the public and evade its duty to be transparent.

This problem surfaced in Chatham-Kent when I was denied access to information regarding a proposal, tabled before municipal council in 2016, to create a publicly owned ambulance service. Highly recommended by C-K administrators, the proposal would involve defunding all existing private services so that C-K could run its own service, with the province picking up 50 per cent of the bill.

I was alarmed by the cost of the proposal. C-K would have to pay public sector wages and benefits, and would also receive funds needed to keep redundant employees on staff. Moreover, the proposal cited total cost figures for the new service, but failed to provide any underlying financial data to support them.

As a concerned citizen, I asked the municipality to provide the calculations supporting the total figures, but administration balked. So, in 2016, I placed a freedom of information request with the Information and Privacy Commissioner (IPC) under MFIPPA.

In the lead-up to the first IPC decision, C-K argued against disclosure based on 20 separate grounds related to confidentiality exemptions under the Act.

The IPC ruled against the municipality and granted my request. However, C-K responded by producing the same one-page spreadsheet with unsupported totals, which it had placed before council in 2016.

I launched an IPC appeal.

In response, C-K presented an affidavit, sworn by its information officer, indicating that it had completed an exhaustive search, which was based on its own interpretation of possible document sources. The IPC held that the officer’s affidavit met the standard of reasonable search, and my appeal was denied.

In 2020, I applied for a reconsideration of the appeal, and the IPC ruled against me again.

Four years had passed since my first request, and I was no further ahead. I felt like a caged hamster running on a wheel.

Eventually, I realized that my journey had been fated by a defective legislative mandate, and a series of early IPC decisions in which adjudicators had struggled with the meaning of the government’s duty to remain transparent.

Strangely, nowhere in MFIPPA (or in FIPPA) does the legislature clearly define the legal standard the IPC should use to advance the clear and simple purpose of the Act, which is to provide a freestanding right to information, limited only by the confidentiality exemptions.

However, when attempting to develop a legal standard to guide a search for information, the IPC only had one clue in the Act itself – the requirement that an institution make a “reasonable effort” to locate a record. The game was over right there.

A reasonable effort is not a thorough or complete effort. Based on the standard of reasonable effort, an institution could conceivably evade its duty to disclose a record if it were difficult to locate, had been stored in an inconvenient place or had simply been hidden.

Matters got worse when the IPC also ruled that an institution’s duty to locate records only had to be “reasonably related to [a] request.” This further reduced the scope of a “reasonable search” since an institution was relieved of the burden of tailoring its search to match the exact requirements of a request.

The result of these slack interpretations of the right to freedom of information was well understood at the beginning. As one adjudicator put it: “…the Act does not require [an institution] to prove with absolute certainty that records do not exist.”

Indeed, in my own case, I don’t know whether C-K’s civil servants searched in the hard-to-reach places to satisfy my request, and I never will. Until the IPC’s interpretation of its mandate is challenged in a court room or the legislature amends the Act, every person seeking information from government will face the prospect of becoming a hamster running on a wheel.

 

John Cryderman

Chatham

 

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