Consultations of the Task Force with other Jurisdictions on their Access to Information Regimes

Ontario

Access to Information Regime

Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) came into force in 1988 and has gone through a succession of reviews and amendments. The Act applies to Ontario's provincial ministries and most agencies, boards and commissions, as well as community colleges and district health councils. A companion Act, the Municipal Freedom of Information and Protection of Privacy Act, which took effect in 1991, applies to municipalities, local boards, agencies and commissions. This may include information held by a city clerk, a school board, board of health, public utility or police services. Privatization has taken some institutions, such as Ontario Hydro, outside the scope of the Act.

Both Acts give individuals the right to request access to government information, including general records and records containing their own personal information, while requiring public bodies to protect the privacy of an individual's personal information existing in government records. There is a $5 application fee for access requests. The search and preparation fee is $30 per hour spent by any person. As a result of legislative amendments in 1996, there are no longer any free hours of search time. There is a $25 fee to file an access appeal with the Information and Privacy Commissioner concerning general records and a $10 appeal fee for personal information records. Except in limited circumstances, public bodies must respond to an access request within 30 days.

The Ontario Information and Privacy Commissioner oversees the application of both Acts, with mediation and order-making powers, subject to judicial review. Institutions provide statistics on requests to the OIPC each year in accordance with the Acts for assessment of institutional performance.

The provincial Act has similar exemptions to Acts in other provinces, with mandatory exemptions for all Cabinet records for 20 years, and third party information, if supplied in confidence, and where disclosure could prejudice the interests of a third party. There are also broad discretionary exemptions covering, among other points, advice or recommendations within a department and information that has been or soon will be published. The request may be refused where the head of the institution is of the opinion, on reasonable grounds, that the request is frivolous or vexatious or made in bad faith or for a purpose other than to obtain access, although any such decision is subject to appeal to the OIPC.

On many levels, Ontario government officials and those of the Office of the Commissioner believe Ontario’s legislation – the Freedom of Information and Protection of Privacy Act (FIPPA) and Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) – work well, based in part on collaborative efforts between the Office of the Commissioner and government agencies to facilitate the Acts. Generally, the view is that the Acts have achieved a good balance of the two values of openness and protection of privacy. Unlike the federal model (with separate Access and Privacy Acts and two commissioners), the OIPC believes it is beneficial to address both access and privacy issues in the same legislation, as is the case in most provinces.

The Management Board Secretariat (MBS) is charged with administrative responsibility for FOI management within the Ontario government. The MBS is adequately resourced and does a considerable amount of training. Within ministries, training is the responsibility of FOIP co-ordinators. In the view of the officials you can never communicate this program enough, FOIP impacts all aspects of government work and executive attitude is important.

Although compliance with timelines is improving, officials find getting some requests through the approval process in time to meet the legal requirements still is a challenge. Risk aversion is still very much part of the government management cadre culture. The OIPC is particularly concerned with the government system for “contentious issues management,” under which some requests are automatically categorized as contentious (i.e. requests from the media or opposition or on any contentious subject) requiring political staff and public service “issues managers” to be notified. The MBS then becomes the point of administrative co-ordination to ensure process consistency. The OIPC agrees with giving senior management a heads up on such requests but is concerned that the process should not require additional levels of approval or affect the time required for making decisions under the Act.

Government officials believe that engaging ministerial staff early and preparing records for release, not approval, make the sign off process more effective. The MBS has been focusing on improving the processing of requests. However, while they initially collected statistics on the implementation of the Act, they now rely on statistics submitted annually to the OIPC. There is no central repository of all access requests across government.

The OIPC finds that the ability to review the statistics, and the practice of highlighting poor institutional access practices in the OIPC Annual Report (they give institutions notice and ask for a commitment to remedy the situation), have been important factors in obtaining institutional commitment to improve practices. The OIPC acknowledges effort and positive measures. The OIPC tries to enter into collaborative efforts with institutions and to provide balanced and fair criticisms as well as praise for efforts. The goal is not to shame government. Over the years it has cultivated a good relationship with public service managers to build commitment for access with some success. Some of these public service managers are now in senior positions in the public service and are champions for access. The OIPC also tries to foster in the public service a philosophy of informal and proactive disclosure and of dialogue with requesters.

Through an Institutional Relations Program, the OIPC is now working more closely with government agencies to help them develop their own solutions for managing access requests. For example, in 2000, the OIPC and MBS collaborated on developing a Freedom of Information Guideline outlining the responsibilities of Deputy Ministers, other senior executives and decisions makers, program managers and FOI managers and co-ordinators under the Act. All deputy ministers now have FOI administration built into their performance contracts.

Ontario officials report that the use of FOI as part of lawsuit discoveries does occur but is not widespread, and the different rules for access in the context of litigation and under FOI are an issue. They see data warehousing with direct public access as the big issue of the future, especially in relation to personal information. The challenge will be the interpretation of the exemptions in this process.

The OIPC has been pushing for more routine disclosure and active dissemination of government information. MBS suggests that there needs to be a strong business case before the government will allot additional resources to this, particularly since there are a variety of e-government initiatives already underway. MBS also believes that certain core government values, such as general accountability, are larger than FOI and there will always be tension between the two.

Ministry FOI staffs are often too few. Although working in FOIP is reasonably attractive to public servants, it is a narrow field and can therefore be career limiting. The role of co-ordinator is difficult and they are frequently seen as the messenger with bad news. Succession planning is a high priority issue. The Ontario government has now added FOIP to its internship program. Government officials believe that the OIPC has failed at times to understand the role of FOI co-ordinators within institutions is one of neutral advisor, not access advocate.

Since its 1988 enactment, the provincial Act has gone through several three-year reviews, although most recommendations were not implemented. Of those that have been implemented, a $5 access application fee introduced in 1996 has essentially eliminated frivolous and vexatious requests. However, the OIPC is concerned that the elimination of two hours worth of free search time before fees are assessed has discouraged some legitimate requesters, while the imposition of a $25 complaint fee appears to be a significant disincentive to appeals of access decisions – which fell by 60% when the fee was introduced in 1996.

The OIPC’s appeal process is very structured and is set out in a Code of Procedure and Practices Direction available on their Web site – there are different streams for different types of files. On issues such as deemed refusals (where statutory time limits to respond to access requests have been exceeded) there is an expedited process under which the mediator can also issue an order as an adjudicator, thus speeding up the resolution of untimely responses. Institutions are given an abbreviated time to make representations before an order is issued. Institutions rarely provide representations, but rather focus on issuing a decision on release.

The OIPC has a statutory responsibility to mediate access disputes and strongly emphasizes the importance of this process. The key is moving parties beyond their initial position; success requires the people at the negotiating table to have the authority to make decisions. Where mediation is unsuccessful, an assigned adjudicator has powers to adjudicate any outstanding disputes on issues such as the exemption of records, the modification or waiver of access fees, and the correction of personal information. A built-in ten-day delay between the end of mediation and the beginning of adjudication to allow the parties to review the mediation report has proven useful in getting parties to arrive at a mediated solution.

The adjudication process is usually a paper process and the option of affidavit evidence is infrequently used. Many institutions are represented by counsel at this stage, though appellants don’t have to be. Although the Commissioner has the power of subpoena, it is not used and officials, ministers or their deputies are not examined under oath. In the OIPC’s view, their processes have worked reasonably well to dispose of access disputes, without the need for use of formal powers such as issuing subpoenas or examinations under oath.

Less than 5% of OIPC orders have been judicially reviewed to date. The OIPC believes that judicial review is not an undesirable outcome in all cases. It will contribute to a body of good case law and the courts have generally been deferential to the OIPC rulings. The OIPC believes that the ability to make orders through adjudication provides necessary rigour to implementation of the Act.

In 2000, 72% of appeals were closed without the need for a formal order. Sixty percent of these appeals were successfully mediated, 30% were withdrawn, 4% were screened out, 4% were abandoned, and 2% were dismissed without an inquiry. Under the current procedures, 75 days are set for the completion of appeals in the regular mediation stream before adjudication will proceed.

The point is also made that the effectiveness of the OIPC is dependent on having proper resources and that ATI requires leadership – a public commitment to the value and importance of the law is a necessary first step to any truly effective access to information regime.