FOI changes would make Ontario the country’s most secretive government, advocates say

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Proposed amendments to Ontario’s freedom of information law would make the province the most secretive in Canada, experts say, despite Premier Doug Ford’s assurances that they would be in line with legislation in the rest of the country.

The changes, introduced as part of the provincial budget on March 26, would put the offices of Mr. Ford, his cabinet ministers and the many PC MPPs named parliamentary assistants completely out of reach of the Ontario’s Freedom of Information and Protection of Privacy Act.

Mr. Ford and Ontario officials have said the moves would merely make the legislation more similar to the laws in other provinces and at the federal level.

But some of the country’s most prominent FOI advocates say the changes would go well beyond the rules on secrecy elsewhere in the country, and allow the government to hide more documents from public view.

“It is as if they’re building a brick wall around each of the ministers, around the Premier, and saying the public has no right to know what happens within that walled-in space,” said James Turk, the director of the Centre for Free Expression at Toronto Metropolitan University, a non-partisan organization that works with academic and civil society organizations to promote free speech.

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Ken Rubin, an independent researcher in Ottawa who has filed information requests for decades, calls Ontario’s changes a “gutting” of its FOI laws that will make it easy for ministers to hold meetings they never have to disclose.

“It looks like a way for lobbyists and developers to just come into minister’s offices ... and do what they will. Because nobody will ever know,” he said.

The bill follows a court order earlier this year that requires Mr. Ford to hand over his personal cellphone logs to the province’s Information and Privacy Commissioner, to determine which calls and texts relate to government business and should be released.

The bill, if passed, would be retroactive to 1988, when the act was first introduced – nullifying the court ruling on the Premier’s cellphone.

Duff Conacher, co-founder of the group Democracy Watch, a national non-partisan group that fights for open government, said he is exploring the possibility of a legal challenge to the bill’s retroactivity, which would wall off nearly four decades of accessible records with the stroke of a pen. He called the bill extreme and a “recipe for corruption.”

The government did not answer questions from The Globe and Mail about the shortcomings that FOI experts interviewed for this article raised.

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Giulia Paikin, a spokeswoman for Stephen Crawford, the Minister of Public and Business Service Delivery and Procurement, who is responsible for the bill, sent an e-mailed statement repeating the government’s claims that the changes would bring the province in line with the rest of country.

Under the changes, Ontario’s FOI act would still apply to the bureaucratic side of government ministries, just not the province’s top political officeholders.

Before the bill was released, Ontario officials told reporters that under the existing legislation their province and Nova Scotia were the only ones without “clear protections for the records of cabinet ministers and their offices.”

To be clear, all FOI laws across the country lay out a broad range of exemptions for cabinet confidence, personal information, advice to government and other typical carve-outs. Ontario was referring to any extra additional FOI protections for material in a cabinet minister’s office.

And it is true that outside of Ontario and Nova Scotia, the other laws in place either at least explicitly shelter the offices of any member of a legislature, or allow some additional exemptions that can keep certain records in ministers’ offices secret.

But only Saskatchewan, Quebec and the federal government go so far as to completely exclude cabinet ministers’ offices from their access-to-information regimes in any way similar to what Ontario is now proposing.

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While the federal government’s legislation does not broadly apply to the Prime Minister’s Office and cabinet ministers’ offices, it specifically allows for the release of expenses, briefing notes and the mandate letters a prime minister provides cabinet members. Such documents could now kept be secret under Ontario’s proposed changes.

Ottawa’s lobbyist registry also discloses the dates of meetings with politicians, unlike Ontario’s, where soon minister’s daily agendas could be hidden from FOI requests.

Plus, certain records inside a minister’s office in Ottawa are subject to a “control test,” drawn from a Supreme Court of Canada ruling. This allows for documents to be released if they could be reasonably be requested by the bureaucratic side of the ministry, which is subject to freedom of information legislation.

The Ontario government did not answer e-mailed questions about whether this test would still apply to documents inside the offices that would be excluded from the FOI law by its proposed amendments.

Ontario’s Information and Privacy Commissioner, Patricia Kosseim, issued a statement after the province’s changes were first unveiled two weeks ago, saying they “would weaken transparency and accountability for generations to come.” Mr. Ford has dismissed her warnings as “politicized.”

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In an interview with The Globe before the text of the bill was released, Ms. Kosseim said the changes the province has outlined go beyond what is in place in other provinces and further than even federal legislation.

“If we have a law that expressly and explicitly excludes these records from the scope of the act, that would be precedent setting,” Ms. Kosseim said. “That would go beyond the federal act.”

She said Ontario’s current regime, and those in most other provinces, allow information watchdogs to scrutinize a government’s refusals to release certain information from cabinet minister’s offices, to ensure exemptions are being applied properly under the law.

But Ontario’s changes would take away this review power, she said, allowing the government to simply declare documents in those offices off-limits.

Ms. Kosseim also pointed out that Mr. Ford’s repeated assertions that his cellphone needs to be immune from information requests because constituents often share personal or medical information with him don’t hold water: Ontario’s act as currently written would not allow the release of any such information.

Her office said last week it would issue a full response to the text of the bill after further review.

At Queen’s Park, both interim Liberal leader John Fraser and NDP Leader Marit Stiles accused the government of lying to Ontarians about its FOI changes, in order to protect whatever is on Mr. Ford’s cellphone.

Ms. Stiles called the bill “a very far overreach.” Mr. Fraser said the changes must be aimed at hiding something: “I don’t know what’s on the Premier’s phone. It must be really bad.”

Editor’s note: An earlier version of the story misidentified Duff Conacher as a lawyer. It has been updated to reflect that he is a co-founder of Democracy Watch.