REGIONAL MUNICIPALITY OF OTTAWA-CARLETON
FREEDOM OF INFORMATION LAW ENFORCEMENT COORDINATORS NETWORK
PSYCHIATRIC PATIENT ADVOCATE OFFICE
WELLINGTON COUNTY SEPARATE SCHOOL BOARD
ONTARIO PSYCHOLOGICAL ASSOCIATION
CONTENTS
Wednesday 19 January 1994
Municipal Freedom of Information and Protection of Privacy Act \ Loi sur l'accès à l'information municipale et la protection de la vie privée
Regional municipality of Ottawa-Carleton
Kelly McGee, staff solicitor
Leslie Braden, coordinator, freedom of information legislation
Mary Jo Woollam, regional clerk
Freedom of Information Law Enforcement Coordinators Network
Marilyn Taylor, chair; freedom of information coordinator, Halton Regional Police
Nancy Groppo, freedom of information analyst, Halton Regional Police
Paul Perchaluk, freedom of information coordinator, Waterloo Regional Police
Ray Desjardins, freedom of information coordinator, Metropolitan Toronto Police
Psychiatric Patient Advocate Office
David Giuffrida, acting director
Wellington County Separate School Board
Jane Rose, human resources officer
Ontario Psychological Association
Dr Ruth Berman, executive director
Dr Brian Wilson, board member and president, psychologists in education section
Linda Bohnen, legal counsel
City of Thunder Bay
Evelyn Dodds, alderman
Riccardo Simeoni, welfare eligibility review officer
City of Toronto
Barbara Caplan, city clerk
Donald Leith, manager, freedom of information legislation
Jane Speakman, legal counsel
Ray Desjardins
Continued overleaf
Continued from overleaf
STANDING COMMITTEE ON THE LEGISLATIVE ASSEMBLY
*Chair / Président: Hansen, Ron (Lincoln ND)
*Vice-Chair / Vice-Président: Wessenger, Paul (Simcoe Centre ND)
Dadamo, George (Windsor-Sandwich ND)
Johnson, Paul R. (Prince Edward-Lennox-South Hastings/Prince Edward-Lennox-Hastings-Sud ND)
MacKinnon, Ellen (Lambton ND)
Mathyssen, Irene (Middlesex ND)
McClelland, Carman (Brampton North/-Nord L)
*Morin, Gilles E. (Carleton East/-Est L)
*Sterling, Norman W. (Carleton PC)
Sullivan, Barbara (Halton Centre L)
Sutherland, Kimble (Oxford ND)
Villeneuve, Noble (S-D-G & East Grenville/S-D-G & Grenville-Est PC)
*In attendance / présents
Substitutions present/ Membres remplaçants présents:
Cooper, Mike (Kitchener-Wilmot ND) for Mr Dadamo
Elston, Murray J. (Bruce L) for Mrs Sullivan
Hayes, Pat (Essex-Kent ND) for Mr Paul Johnson
Hope, Randy R. (Chatham-Kent ND) for Mrs MacKinnon
Offer, Steven (Mississauga North/-Nord L) for Mr McClelland
Tilson, David (Dufferin-Peel PC) for Mr Villeneuve
White, Drummond (Durham Centre ND) for Mrs Mathyssen
Wiseman, Jim (Durham West/-Ouest ND) for Mr Sutherland
Also taking part / Autres participants et participantes:
Arnott, Ted (Wellington PC)
Clerk pro tem / Greffière par intérim: Manikel, Tannis
Staff / Personnel: Swift, Susan, research officer, Legislative Research Service
The committee met at 1009 in the Trent Room, Macdonald Block, Toronto.
MUNICIPAL FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT LOI SUR L'ACCÈS À L'INFORMATION MUNICIPALE ET LA PROTECTION DE LA VIE PRIVÉE
The Chair (Mr Ron Hansen): I'd like to bring to order the standing committee on the Legislative Assembly. This morning we have a review of the Municipal Freedom of Information and Protection of Privacy Act.
REGIONAL MUNICIPALITY OF OTTAWA-CARLETON
The Chair: The first group to come forward this morning is the regional municipality of Ottawa-Carleton. Would you please come forward and take a seat? I believe we've got three people; we might need one more chair there. We have half an hour. If you can leave some time within that half an hour for questions from the committee, I imagine Mr Sterling would have some questions of you that he's got up his sleeve. So we'll leave some time that gets around to Mr Sterling. You may begin. Would you mind introducing yourselves and your positions for the purposes of Hansard and the committee.
Ms Kelly McGee: Thank you very much. My name is Kelly McGee. I'm a solicitor with Ottawa-Carleton. On my immediate right is Mary Jo Woollam, the regional clerk for Ottawa-Carleton and the designated head under the legislation, and on her right is Leslie Braden, the MFIPPA coordinator for Ottawa-Carleton.
Since passage of the Municipal Freedom of Information and Protection of Privacy Act, the regional municipality of Ottawa-Carleton has processed over 750 formal requests under the legislation. Our presentation, as well as our written brief, will highlight some of the problems that we've experienced in the administration of the act.
The first issue we'd like to discuss is the cost of administering the act. The legislated fee structure was intended to create a user-pay system. With over 750 requests processed to date, the regional municipality of Ottawa-Carleton has managed to collect approximately $5,500 for those requests. There are a number of reasons why this happened.
One of the most significant impediments to a user-pay system is the practice of dividing requests. Requesters divide one single, comprehensive request into a large number of smaller requests. Each request receives two hours of free search time. Dividing the request therefore creates a bank of free search time. Requesters who receive large fee estimates from our municipality indicate to us that they will simply resubmit the request in whatever number of smaller requests it takes to get a free answer.
We've also been instructed by the Information and Privacy Commissioner's office that the search time for which we can charge does not include a number of the activities that we are required to carry out in order to respond to the request. This includes such things as meeting with the requester, applying the exemptions and consultation with the affected departments within our municipality before we respond to the request. None of these items is covered within the search time for which we can charge.
There is also the issue that there's no cost to a requester to file an appeal. There's no financial incentive to resolve the matter through mediation and there are no costs awarded to the successful party at the end of an inquiry.
Finally, when we transfer a request to another institution, we have been unable to recover any of our chargeable search time up to the time of that transfer.
Another issue related in part to the cost of the administration of the legislation is what we would refer to as frivolous and vexatious requests. The existing legislation provides no streamlined way to handle these requests. There is no means whatsoever of identifying and dismissing these requests in a summary way. There's no abridged system for responding to these individuals, either at the time of the original request or on appeal. As a result, we face repeated requests and appeals from the same individual that clearly fall in the category of "frivolous and vexatious." Each request must be responded to, and often each of these requests is appealed. Each of these appeals results in an inquiry. When the requester receives the order following the inquiry, they launch a new request and the whole cycle starts all over again.
We submit to this committee that the legislation must be amended to recognize the existence of frivolous and vexatious requests and provide an appropriate method for processing these requests and these appeals.
Moving on from the issue of costs, we'd like to draw the committee's attention to a dilemma we feel is raised by section 54(c) of MFIPPA and the apparent inability of certain people to control their personal information as a result of that provision.
Section 54(c) of MFIPPA states that any right or power conferred on an individual by the act may be exercised, if the individual is under 16, by the person who has lawful custody of that individual. We wish to offer the committee some of the practical implications of that provision.
Our health department offers medical services to individuals under the age of 16. Our youth services bureau provides counselling to individuals under the age of 16. As drafted, subsection 54(c) appears to give those people with lawful custody an absolute right to that personal information. The legislation does not make clear who has the greater interest or the greater control over that information.
This provision has raised a number of questions for our municipality. Can we refuse access to a parent where the individual under 16 has expressly refused to consent to the disclosure? Must we provide notice to an individual under 16 where a legal guardian has made a section 54 access request? Is the parent's right of access absolute? Is it paramount? Was subsection 54(c) intended to strip individuals under the age of 16 of their right to control their personal information?
The act, as drafted, is silent on the effect of competing interests when dealing with an access request under subsection 54(c). MFIPPA is silent on the scope and the limits of those rights.
We submit that amendments are necessary in order to clarify these competing interests and enumerate the rights of individuals under the age of 16 to control their personal information.
Today we'd also like to discuss with you the impacts of the 30-day time limit on responses to requests. Clause 20(1)(a) of MFIPPA allows us to extend the 30-day time limit on responses where the request is for a large number of records. We are not allowed to use this provision where we have multiple requests that are, in effect, all part of one comprehensive request.
The division of the request has been done primarily to create the bank of free search time. However, the requester is also entitled to a complete response to each individual request within the single 30-day time period. We are prohibited from considering the cumulative effect of these requests. We cannot seek an extension. We must respond to each request within the single 30-day time limit.
The sheer volume of these requests has made the 30-day response time impossible for us in some circumstances. But for the requester's willingness to ignore the 30-day deadline, we would have been in violation of the act. However, the requester is not obliged to accommodate us. We have no recourse but to respond within the first 30 days.
We hereby request that MFIPPA be amended to recognize the cumulative effects of these multiple requests, and to provide institutions with the legislated ability to obtain an extension to the 30-day time limit in these circumstances.
We now wish to discuss an issue of personal safety. The existing legislation allows a municipality to refuse access to a record where disclosure may endanger the physical safety of an individual. There are two separate provisions of MFIPPA that create the same general exemption. The first is clause 8(1)(e). If we rely on clause 8(1)(e), our notice to the requester may quote subsection 8(3). This subsection allows us to refuse to confirm or deny the existence of a record to which subsection 8(1) applies.
Subsection 8(1) itself contains 12 enumerated exemptions. The requester is therefore not aware that the physical safety provision has been specifically relied on.
In the alternative, we may rely on section 13 of MFIPPA to deny access to a record where the disclosure could seriously threaten the safety or health of an individual. If we apply section 13, we must quote that section to the requester. We cannot refuse to confirm or deny the existence of the record. Having to quote section 13 to the requester poses potential problems for our staff who deal with individuals with a history of violence.
Staff at the regional municipality of Ottawa-Carleton have expressed a concern that quoting section 13 in a response to the requester could, in some circumstances, reasonably be expected to trigger the violent outburst they were trying to avoid in the first place by refusing access to the document.
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We recommend to the committee that MFIPPA be amended to allow institutions to rely on section 13 of the act without having to specifically refer the requester to that section. This has been achieved through the parts of section 8 we've discussed. We are simply seeking a comparable reporting mechanism to the requester when using section 13.
Next, we wish to briefly discuss the issue of disclosure of personal information to elected officials. Section 42 of the Freedom of Information and Protection of Privacy Act governing provincial institutions allows the disclosure of personal information to a member of the Legislature who has been authorized by the constituent to whom that information relates. There is no comparable section in the municipal freedom of information act. Municipal councillors regularly receive requests from and make inquiries on behalf of their constituents. It is our submission that elected municipal councillors act on behalf of their ward residents, just as members of the Legislative Assembly act on behalf of particular riding constituents. It is our submission that legislative provisions relating to access by elected officials on behalf of their constituents should be the same in both the provincial and municipal access legislation.
We would also like to briefly mention this morning the existing exemption for examination and test questions. Clause 11(h) of MFIPPA allows institutions to refuse access to questions on an examination or test specifically for an educational purpose. This provision may adequately meet the needs of the school boards that carry out their testing for an educational purpose. However, test questions held by municipalities are not generally for an educational purpose. We are more likely to have tests and examinations to determine such matters as language proficiency and other job-related skill requirements. These tests are not given for an educational purpose and therefore do not qualify for the section 11(h) exemption. We would recommend to the committee that section 11(h) be amended to protect all questions to be used on an examination or test of any kind.
Finally, we wish to identify the issue of consents to transfer. Under the existing section 18 of MFIPPA, we are entitled to transfer a request where we believe another institution has a greater interest in the document or where another institution has a document we were unable to locate. The legislation does not require us to obtain the consent of the requester prior to that transfer. The regional municipality of Ottawa-Carleton has had experience with requesters who do not want any other institution to know about their request. We make a point of advising requesters that we intend to transfer the request, and we get their consent to do so prior to the transfer. The only legislative requirement is a notice of the transfer, and this notice may be issued to the requester after the transfer has taken place. We submit that consent from the requester should be a prerequisite to any transfer, and until such time as the institution receives that consent, the statutory 30-day time limit should be frozen.
This completes our presentation this morning. Thank you very much.
The Chair: Okay, thank you. Mr Elston.
Mr Murray J. Elston (Bruce): This has been a very helpful presentation. It's got good advice for us.
We've begun to discuss the issue of "frivolous and vexatious." One of the questions that concerns us is how to define this type of application in a statute without running afoul of some person who has an abiding interest which doesn't inflict itself on the rest of us. Can you describe for us perhaps a couple of incidents, if you're able to without violating privacy information, so that we could have a description of the type of inquiry you've been speaking about?
Ms McGee: Certainly. We are dealing with an individual now, accessing their personal information, where our MFIPPA coordinator has spent tens of hours with this individual. This particular frivolous and vexatious request is a constant paranoia over the detailing of their personal information in the file, repeated requests for changes to the recorded information in their file. They're not happy in most cases with our decision to not change information. The refusal to change the personal information is then appealed, the matter will go to an inquiry, the person gets an order, the order goes against them, and then they come back with a slightly different request. We deal with other individuals who take one request all the way through the process, get an order, just change what it was they were looking for slightly and make a new request and the whole thing starts all over again.
Mr Elston: So one of the elements of frivolous testing would be, of course, repetition, and probably immediacy after the order has been given --
Ms McGee: That's right.
Mr Elston: -- and that there should be some kind of a spirit of the order that allows the local institution, if not to ignore --
Ms McGee: To close the file on the matter.
Mr Elston: -- at least to close a file on that issue and actually to reject an application for similar information.
Ms McGee: That's right. To be able perhaps to use the original order as a basis for saying: "We have exhausted this issue. We have exhausted this range of requests."
Mr Elston: I was interested in the issue of cost of appeal, because that does get us into a bit of a problem. Just prior to asking you about the costs associated so far with operating the 750 inquiries and the appeals that you've gone through, could you advise if you've been able to manage interested people with informal resolution of their requests for information, and how much that has been done?
Ms Leslie Braden: We have an example just recently where we had a request and the fee estimate was $2,500. Due to the amount of the fee estimate, we determined that we could provide, under business as usual, the entire amount of the request.
Mr Elston: So you have done a number of inquiries where possible.
Ms Braden: Yes, where it's possible.
Ms McGee: A number of people are not willing to withdraw a formal request. They feel there are securities and safeguards and guarantees that the institution will act appropriately as long as it's a formal request. We've also dealt with that.
Mr Elston: Okay, so that you've tried to eliminate the needs but they just say, "No, listen, I'm going ahead."
Ms Braden: Yes. We provide personal information under a "business as usual" basis. We provide the client files from welfare. The individuals perhaps do not trust the social services system to be providing all of their documents; therefore, they continue to request them under FIPPA. We don't have a choice.
Mr Elston: The next issue I would like to add -- by the way, have you a rough idea of the cost so far of those 750 plus the appeals, the inquiries?
Ms McGee: In terms of the cost to the institution?
Mr Elston: To you, yes, roughly. How many people work full-time in the freedom of information area in Ottawa?
Ms Mary Jo Woollam: There's one individual who works full-time --
Mr Elston: With you?
Ms Woollam: -- and that's Ms Braden; with myself, yes.
Mr Elston: So you have a full-time salaried person, plus I presume it takes some staff clerical time as well.
Ms McGee: And about half of my time as a solicitor with the region is devoted to dealing with the issues.
Ms Woollam: There are also staff in each of the departments within the region who are designated FIPPA coordinators as well who actually do the clerical work of getting the files for us, and then we assist them in severing and taking whatever action is necessary to deal with it.
Mr Elston: So could you give us a rough idea on the number of people involved with this?
Ms Woollam: There are 14 departments and I would say, depending on the nature of the service provided by the department, it could be anywhere from a quarter to 75% of their time.
Mr Elston: So you have probably 16 or 17 people in one manner or another dealing with this business.
Ms Woollam: Yes.
Mr Elston: On the issue of multiple requests and the breakdown of the large requests to get a single answer, how would you suggest we word it? I understand what you're asking and it sounds reasonable to me, except how do we determine when it is a valid request? For instance, if I make a request and I get an answer and then I say, "Ah, if I got this answer, then if I ask this question I'll get another" -- it's again the balance issue.
Ms Braden: Yes. For instance, we have an example where the media have accessed inspection reports on restaurants. Instead of putting them all in one request, they divide them up by restaurant, therefore getting two free search hours. They submit them all on the exact same day, so we have 45 requests submitted on one day for 45 health inspection reports on 45 restaurants. It's very clear to us that they're simply dividing this request to save costs.
Mr Norman W. Sterling (Carleton): Thank you for coming to Toronto on such a bright, sunny day. Could you characterize where the 750 requests are coming from, both in terms of what it's requiring and expense?
Ms Woollam: I think the nature of the requests have changed significantly since we changed our procedures with respect to the ability for people to access the health inspection reports for restaurants. I think we're experiencing now more requests from businesses wanting competitive information or information on their competitors and from individuals with respect to their own personal information.
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Mr Sterling: So you're talking about commercial investigation. Are the journalists using it much in Ottawa-Carleton?
Ms Braden: Not so much in Ottawa.
Ms Woollam: Not as much as they were when we were not providing the restaurant inspection information other than under FIPPA. We found that there was a significant amount of media interest in those and they would use the FIPPA avenue. We've since changed our procedures to make those accessible to the media without going through FIPPA.
Ms Braden: Since the accessibility of the inspection reports on a regular basis, 20% of our requests come from the media at this point.
Mr Sterling: So you really don't have an accurate fix on the overall costs of doing this because there are so many different people involved in responding.
Ms Braden: Yes, and it depends on the request. We might have one request that simply takes a matter of a few hours to process, whereas we might have another that involves a number of different people from different departments to meet on the subject and it depends on the number of documents for that one request.
Mr Sterling: I think you should get a copy of the Information and Privacy Commissioner's report because he makes some valuable suggestions in terms of the legislation but also in the management of the whole thing. One of the suggestions he made was that when you're entering into a program or requiring information, that before you set up your computer system or your electronic communication system, you think about freedom of information -- you obviously have done this with regard to the restaurant inspection reports -- and avoid a whole bunch of costs in terms of going down.
Do you think an application fee would assist in doing away with these frivolous or vexatious requests?
Ms McGee: I think it would be very valuable.
Mr Sterling: Do you have any idea of the kind of level of application fee that would be required in order to achieve that end?
Ms Braden: I think it would be minimal, actually. I think just the idea of having to pay for something, especially if the individual's on social assistance, that it wouldn't take very much to deter the individual.
Mr Sterling: I guess it depends on the kind of information that they were requesting. If it was information pertaining to their own ends, then it would be very hard for me as a legislator to accept the fact that you were excluding somebody because they couldn't pay for it.
Ms McGee: The philosophy of the legislation is your personal information is free, certainly, so that would have to be respected and continued, but I think a simple filing fee comparable to other application filing fees in existence would operate as maybe a deterrent or at least make people stop and think of the value of the appeal to them, which just doesn't happen now. It's simply a matter of course. There are no impediments.
Mr Sterling: Do you know how much you're spending on appeals or do you have any estimate of that?
Ms Braden: I'd say we've had about 20, 25 appeals perhaps and it depends if they go to the inquiry stage; I'd say about half have gone to the inquiry stage and that takes time.
Ms McGee: Responding to each inquiry requires two or three people's dedicated time for a week to prepare the written submissions and adequately respond to them.
The Chair: I'm going to have to go to Mr Hope.
Mr Randy R. Hope (Chatham-Kent): First of all, thank you for your presentation. Yesterday we had a presentation from a gentleman from Business Times who made a comment about closed meetings, and I notice in your presentation you talk about in camera meetings.
I'm just curious, say, in a one-year time frame, how many closed meetings occur of council or of set meetings because we got into definite terms yesterday from the person from Business Times and I wanted to approach you about the issue of in camera meetings and how many times they occur and the information that's requested.
Ms Woollam: It's the practice of the regional municipality of Ottawa-Carleton that there are only three issues a committee of council or council will meet in camera on. Those would be property negotiations, labour relations issues or issues of personal information. Other than that, the practice of our corporation is we do not have closed meetings.
Mr Hope: Okay. The other area I wanted to touch on is around -- we're hearing a lot of municipalities calling for names of individuals who are on welfare. My question to you would be, is and should that information be provided to elected officials?
Ms McGee: I think we're restricted both by the existing legislation and the judicial review of the council that asked for that information. We have, on occasion, advised elected officials who were looking for other types of information that under the legislation we did not feel they had a right to it. We operate under the provisions of MFIPPA that say they require it to carry out their functions. We also have a corporate policy adopted by our regional council setting up criteria and mechanisms for a councillor seeking information.
Mr Hope: Okay, you've pretty well answered that very clearly. The other thing is the handling and distribution of normal information that gets out there. Mr Sterling has raised that your financial statements that appear in newspapers and you spend all this money for are really useless information. The information that's usually open to the public -- and I'm talking about communication -- how do you get it out there?
Ms Woollam: We make extensive use of the local daily papers. We also have a fairly sophisticated touchline information system whereby members of the public can access committee agendas. They can access the authors of specific reports. They can give us their comments on any issue that we wish. We have a very open policy in terms of allowing access to information to the members of the public and the community.
Mr Hope: Okay. Yesterday, during a presentation, there was a gentleman who was here about the visually impaired. Knowing that you have 750 applications that are being processed in this time and we're trying to grapple with the issue of making sure every citizen in the province of Ontario has access to this information, what type of program or do you have a program that assists those visually impaired or have you even received a request, I guess would be the first one. If you haven't received a request, it's really unfounded for me to ask the second part of the question.
Ms Braden: No, we've never received a request.
Ms Woollam: We haven't received a request. However, there are services available within the community. I think if we did receive a request, we could certainly make use of what's available to transmit it, be it to people who are hearing-impaired or whatever. It's our practice to make the effort.
Mr Hope: Would it be possible to have a copy of your corporate policy dealing with welfare?
Ms McGee: We don't have a corporate policy specifically dealing with welfare. We have a corporate policy dealing with how councillors go about accessing information.
Mr Hope: Would it be possible to get a copy of that?
Ms McGee: Certainly.
Mr Drummond White (Durham Centre): I was interested in your comments about welfare recipients, Ms Braden. The welfare recipient or applicant who may have been refused assistance, whatever the situation might be: How long would it take to access their personal file?
Ms Braden: It varies on the individual because of the case loads that the workers have.
Mr White: Would there not be just one file in the welfare department?
Ms Braden: Usually they ask for a copy of the file and that's the problem. It depends on the thickness of the file and the length of time it takes to copy it, but usually it's well within the deadline.
Mr White: Well within two hours.
Ms Braden: No, no; within the deadline.
Interjection: Within the 30 days.
The Chair: Mr White, your time has expired. I couldn't hear half the questions anyhow.
Thank you for coming before this committee and putting up with the cold down here in the south.
Ms Woollam: It's significantly cooler in Ottawa.
The Chair: I believe so too. Thank you.
FREEDOM OF INFORMATION LAW ENFORCEMENT COORDINATORS NETWORK
The Chair: In the next group I believe we have four presenters. Welcome to the standing committee on finance -- wait a minute -- the standing committee on the Legislative Assembly. I was too long on that other committee. We have half an hour. If you can, leave some time for questions. You may begin.
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Ms Marilyn Taylor: I'd like to take this opportunity to introduce us. I'm Marilyn Taylor, chair of the Freedom of Information Law Enforcement Coordinators Network.
I have with me today witnesses who appear on the presentation that you may wish to question following same. To my left I have Sergeant Paul Perchaluk from Waterloo regional; I have on my right Nancy Groppo, freedom of information analyst, who works with me at Halton Regional Police Service; I have Rusty Beauchesne from Metro Toronto, who is representing the legislative committee of the Ontario Association of Chiefs of Police; and I have staff sergeant Ray Desjardins from Metro, and Ray is their freedom of information coordinator.
The full intent was for me to present this in its entirety today and then turn it over for questions. Unfortunately, due to one of the flu bugs, my voice is not the best and I would like, with your permission, to turn it over to my analyst who will in turn read the submissions for you.
Ms Nancy Groppo: The membership and objectives of the law enforcement coordinators network: The law enforcement coordinators network is a subcommittee of the information and technology committee under the auspices of the Ontario Association of Chiefs of Police. This subcommittee represents all municipal police services in the province of Ontario. Membership includes all freedom of information law enforcement coordinators covered by the Municipal Freedom of Information and Protection of Privacy Act, including representation from the Ministry of the Solicitor General and Correctional Services.
The prime objectives of the law enforcement coordinators network are as follows:
(1) To recommend guidelines for the standardization of internal policies and procedures.
(2) To provide assistance and consultation in solving operational problems.
(3) To provide a forum for ongoing training.
(4) To act as a unified voice for the Ontario municipal police community in matters relating to access and privacy issues.
This subcommittee wishes the Legislative Assembly to know at the outset that the Ontario Association of Chiefs of Police has great admiration and praise for the ways in which the main bodies involved with the administration of the Municipal Freedom of Information and Protection of Privacy Act have gone about their tasks in bringing access and privacy rights to individuals. The scale of the undertaking and the volume of requests involved, however, mean there are some aspects of the legislation and its operation that call for some fine-tuning or slight alterations.
These proposed amendments would not alter the fundamental principles or philosophies of the act. The proposed amendments are directed to the efforts of the Ontario law enforcement community to better serve and protect the public in respect of access and privacy protection. The overwhelming bulk of our labour is devoted to the public both in (a) providing access to institutional records to requesters, and (b) in protecting the privacy of individuals. These individuals, in the vast majority of cases, have absolutely no connection to the police service other than involvement in a criminal matter as a witness, a victim, a confidential source of information, as opposed to a police informant, or innocent bystander.
I stress this important aspect of the act's operation vis-à-vis the police service. We are not overly concerned about protecting police operations or officer safety as the act has already provided ample protection in these situations.
The recommended amendments can be divided into two categories:
Category 1, financial: The recommended amendments include realistic cost recoveries, standard user fees, updated costs incorporated into Ontario regulation 532/87 and Ontario regulation 517/90. We also recommend a vexatious request class.
Category 2, administrative: The recommended amendments include section 12, solicitor-client privilege needs to be altered, clause 8(1)(a) needs to be added, time limits must be standardized and mutual agreement for oral appeal representations.
Recommendation 1, subsection 45(2): "Despite subsection (1), a head shall not require an individual to pay a fee for access to his or her own personal information."
Recommend: Subsection 45(2) be repealed and a $10 administrative fee be accompanied by all requests; no further fee attached to the personal information request; full fee recovery for general information requests.
Recommendation 2, refer section 12: "A head may refuse to disclose a record that is subject to solicitor-client privilege or that was prepared by or for counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation."
Solicitor-client privilege has been ruled on appeal not to include crown briefs. It is recommended that this section be amended in order that crown briefs may be exempted.
Recommendation 3, refer subsection 18(3): "If an institution receives a request for access to a record and the head considers that another institution has a greater interest in the record, the head may transfer the request and, if necessary, the record to the other institution, within fifteen days after the request is received, in which case the head transferring the request shall give written notice of the transfer to the person who made the request."
Recommend: The head of the institution shall have 15 working days to transfer a request. Upon receipt of the request, the receiving institution shall have 30 working days to respond to the requester.
Recommend: Subsection 18(5) be repealed.
Recommendation 4, refer section 19, the preamble: "Where a person requests access to a record, the head of the institution to which the request is made or if a request is forwarded or transferred under section 18, the head of the institution to which it is forwarded or transferred, shall, subject to sections 20 and 21, within thirty days after the request is received..."
Recommend: Section 19 be amended from 30 days to 30 working days to complete a request.
Recommendation 5, refer clause 45(1)(a): "If no provision is made for a charge or fee under any other act, a head shall require the person who makes the request for access to a record to pay a search charge for every hour of manual search required in excess of two hours to locate a record."
Recommend: Clause 45(1)(a) be amended to read, "A search charge for every hour of manual search required to locate a record." Recommend the free search time of two hours be eliminated from this section.
Recommendation 6: A new section be created to allow institutions to disregard frivolous, nuisance or vexatious requests. We note the inclusion of a vexatious requester clause in the recently proclaimed British Columbia legislation, reference section 43. This request is similar to a recommendation that was incorporated into the standing committee's 1991 provincial review, refer 59.
Recommendation 7: The appeal process now allows for verbal representations instead of written submissions as required in the past. Recommend verbal representations only upon mutual agreement between the Information and Privacy Commissioner's office and the institution.
Recommendation 8: All commissioner's orders should grant a minimum of 30 working days after the release of the order to produce the records. A standard period of 30 working days would allow the institution to carefully study the wording and reasoning of the order and, if necessary, apply to the court for judicial review.
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Recommendation 9: A new section should be added so that when a request for information is received for a major case still under investigation, such as a homicide, the institution may apply to the Information and Privacy Commissioner's office for an exemption from collecting and stamping the records until the investigation and judicial process have been completed. If proof is required to substantiate the open investigation, the officer in charge would submit a sworn affidavit to that effect.
Recommendation 10: Further to Ontario regulation 517/90 under the Municipal Freedom of Information and Protection of Privacy Act, the following amendments to the fee schedule are recommended:
"(a) Refer section 6.1:
"An increase in photocopying costs from 20 to 30 cents.
"(b) Refer section 6.3:
"An increase from $7.50 to $10 for each 15 minutes spent manually searching for a record by any person. Also elimination of two free hours of search time.
"(c) Refer section 6.4:
"An increase from $7.50 to $10 for each 15 minutes spent by any person for the preparation of a record for disclosure, including reading, reviewing and severing a part of a record.
"(d) Refer section 6.5
"An increase from $15 to $20 for each 15 minutes spent by any person to develop a computer program or other method of producing a record from a machine-readable source.
"(e) A new section be created to allow for chargeback of audio cassettes, video cassettes and computer discs. This is to reconcile the municipal regulation 517/90 with Ontario regulation 532/87."
This now concludes our presentation. We appreciate the opportunity to appear before you and present these recommendations. We would be pleased to answer any questions you might have or address any concerns.
The Chair: We'll start off with approximately five minutes per caucus and Mr Tilson.
Mr David Tilson (Dufferin-Peel): Your comments about extending the time in different areas have been made by other delegations. I understand that. You have so many bodies to look all this material up.
Who should I address my questions to? Whoever wants to answer, I suppose.
Mr Paul Perchaluk: I'll take that.
Mr Tilson: I understand that, but on the other hand there are matters that need to be dealt with quickly and there are complaints that the process is too long as it is. I've thought about that issue, and I don't know whether you have as well or whether you've had complaints that the process is too long. I understand both views, because I have experienced it personally, that you ask for something and it's over, the issue's over by the time you go through an appeal process or whatever, all these different issues, mediation, whatever one wants to call the different processes you go through.
Would you consider recommending any different set of fees? In other words, if you had to have something that required immediate attention, the fee might be different than something that didn't require immediate attention. You still wanted information or documentation but you perhaps didn't want it immediately.
Mr Perchaluk: As far as the time period, the 30 days, we're kind of unique in the police services because when we put out to the officers, let's say a homicide, we may have to put out to 20 to 30 officers. We have numerous shift schedules and days off, people are on holidays etc, and we usually try to put a seven-day response for the people to get their reports back. With taking things into consideration, it could take up to 14 days. We're always against the wall.
Mr Tilson: I understand that, and I forget the delegation, but a delegation has already indicated that there are examples where the police in particular have been put through the hoops on some of these applications, particularly with the subject of frivolous applications. But I just get concern from the people who are making the application, the genuine application, who require information for something that requires immediate attention and yet groups such as yours, quite rightfully, because of the person-power you have available to do these things, are saying, "No, we need more time; we need working days."
Mr Perchaluk: Realistically, being a coordinator, if I can get a response out in five days, I'll get it out in five days. I like to get it out the door as fast as I can.
Mr Tilson: The other issue is with respect to fees, and that suggestion has been made by other delegations, particularly people who are providing the information dealing specifically with the frivolous claims, that that is one solution, that you have a fee to simply make an application.
Mr Perchaluk: That's right, and that's what we're recommending.
Mr Tilson: I look at other areas where fees are provided; for example, sheriff certificates. The fees that have been charged in this province have increased so unbelievably to get a snowmobile licence that people don't understand. They don't understand whether it's abuse of power of the government that fees are being charged through the wall to assist in the administration. People are actually making serious allegations, generally to the Treasurer, but to be fair to the Treasurer, it may not be the Treasurer. The Ministry of Consumer and Commercial Relations is another prime example. The fees that have come out of that one ministry in this past year are unbelievable. I won't bother listing them; you may know them yourself. That's the other side of the coin, that people generally want information and the potential for abuse of power by the administration is rather great.
Mr Perchaluk: That's true, but we are under budget restrictions also. We have our problems. As far as fees in general are concerned, remember there's always subsection 45(4), which allows us to waive fees; if there are certain reasons, we can waive those fees. We have to increase. It's just too costly for us.
Mr Tilson: To further help us in understanding your concern about that, can someone of the group talk about what the costs are to provide information on an overall basis, or even localizing it, to give some general feeling for why you're making this request?
Mr Ray Desjardins: As we mentioned at the beginning, I am the coordinator for the Metropolitan Toronto Police Force. In terms of costs, an overall look at costs, last year we processed 762 official requests. The budget for my unit is $462,000, and there are nine people in my unit and we're kept busy all the time. The problem -- I won't belabour the point; we've gone into the costs -- is that the way the situation is structured now, there is two hours' free search time for personal information. In the overwhelming bulk of the cases, it's not worth our time to charge $10 for a few pages of records because it costs us $20 for administration and processing of the documents, so we waive the fees. I would say since 1991 we've had well over 1,700 requests at the police force in Metro here and we may have recovered well under $1,000.
Mr Pat Hayes (Essex-Kent): I'm looking at your recommendation 9. I'm guessing, but it may be that what prompted this is an ongoing case now from the media that you make some investigations public. With issues like this, would this really help in the case of avoiding, I suppose, interference with investigations? In other words, could you give us examples of how the media using freedom of information could actually hinder investigations?
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Mr Perchaluk: What happens is that presently, if it's a major homicide, we could have 20 to 30 investigators wrapped up on it and it's ongoing. As the act states now, the request comes in and there's a section under the act that says we could exempt it, but the problem is that the act says we have to collect all these documents, stamp them and then defend it page by page. If you're taking notes from investigators in the field, it's interfering with the investigation. To be quite honest, we've had those situations and we've spoken to the requesters and they've been fairly decent; they didn't realize. Or if there are charges laid that's another situation, where the investigation is complete but it's before the courts, and again there are exemptions; we won't release until the legal aspects are over. We've talked to them and said, "When the court case is over, come back," and they've been fairly decent about it. We've had no problems. Our problem is, we just may run into a situation where somebody puts us against the wall and says, "No, defend it." It can wrap us up and virtually shut us down for quite a while. I think it's a reasonable request.
Mr Desjardins: I'd like to add a bit to that. The problem here is that a distinction has to be drawn between an ongoing investigation, a criminal matter which has no resolution and is technically still an open file -- it may be three, five or 30 years old -- and a situation where something is immediate and intensive. There's just no practical way we can get those records as required by the act, get the originals in, photocopy them, stamp them and make an index and get the originals back in the field without physically interrupting the operation.
A couple of years ago, you may remember that in Toronto, in the Parkdale area, there was an intensive police investigation over the course of about a week, where a young girl was abducted. We had literally hundreds of officers and auxiliaries out in the field submitting current reports and supplementary reports by the hour. If a request had come in by someone requesting all the police reports relating to this particular investigation, we would have been compelled to gather all those records and -- the ridiculous spectre of going into the field and saying, "Excuse me. Before you sign that, can I have that and can I grab this from your briefcase?" and taking them to our office, photocopying and then returning them.
Admittedly, this type of situation doesn't happen very often, and when it has we've dealt with it on kind of an ad hoc basis. We've made arrangements with the appeals officers at the IPC. As Sergeant Perchaluk mentions, we'll sometimes phone the requesters and very often will explain the situation to them and they understand. That's fine. But when push comes to shove, we may get a vexatious request or something like that or someone who just won't listen to reason: "No, I want this matter to be dealt with right now." Understand that we're not saying it's a question of whether to give the records to the requester. It's a question of being compelled by the act to gather in the originals ASAP.
Mr Hayes: Could you give us some examples? There is a lot of discussion about frivolous or vexatious requests. Some that you people may have to address may be a little different from, say, a municipality; in your police work, for example. I'd like examples of what you feel is a frivolous request, for example.
Mr Desjardins: We have a number. I must say, having listened to the first deputation from the regional municipality of Ottawa-Carleton, I concur with what they said. That's one of the tactics, to break the big request down into the smaller requests.
But we get requests that I can only categorize as being right off the wall. There are requesters who ask for the number of toiletry articles in the chief's washroom, who has access to the chief's washroom, this sort of thing. They come in and we're forced to deal with them. There are a couple of notorious requesters -- I think most of us know them, but of course I'm bound by the act, as everybody else; I can't mention names -- who constantly bombard the force with these vexatious requests. One of the individuals involved has made statements in a magazine here in Toronto that he's a counterculture rebel, he's an anarchist, and he looks on this as a legal way of destroying government by forcing it to spend itself into oblivion sort of thing.
Mr Hayes: Sounds like the opposition.
Mr Elston: We don't have anything on you in that regard. You're way ahead of us.
Mr Jim Wiseman (Durham West): I think we taught them their tricks.
Mr Desjardins: Unfortunately, he's chosen the police forces to start his campaign on. The police forces, if you check with the Management Board of Cabinet or the IPC, you'll find have been very serious about our FOI obligations and we take each request very seriously. So he knows we're not going to stonewall him or play tricks on him but are going to treat it as a serious request, notwithstanding that it is in our opinion a vexatious request or just a nuisance request.
Another example of a request in that vein is that people who are guests of Correctional Service Canada who have a certain amount of time on their hands will ask for every piece of paper that's ever been produced about them from the force that put them behind bars. Understandably, they're not too kindly disposed towards that force. We're forced to give them things such as crown briefs, statements, everything they would have had access to under full disclosure at the criminal trial, and notwithstanding that they've already had it, there's no provision in the act for us to say, "You've already received this at full disclosure at the trial." We can't quibble over the fact that it's a second or third copy of a document they want.
Mr Elston: Actually, I was going to start off with the solicitor-client privilege, the crown brief. You're not trying to close down any full disclosure issues; it's basically people normally outside the process that you're talking about in terms of excluding access to crown brief material?
Mr Desjardins: Precisely, yes.
Mr Elston: Have you got some indication of how these fees would work? I was talking to Steve and we were running through the fees and looking at somebody being paid $20 for every 15 minutes for computer time or whatever. Most of us think that's a fair bit of money. Wouldn't somebody be making money at that rate?
Mr Perchaluk: No, we're not making any money whatsoever.
Mr Elston: So it's costing you $80 per hour in some cases to do this work?
Mr Perchaluk: When you get into the computer aspect, yes, it does. Most of the times when we get these types of requests it isn't the police officer it's going to; we go to our technical people, our administrative people, our computer people.
Mr Elston: And they plus the cost of the machine actually costs you $80 an hour?
Mr Perchaluk: That's right.
Mr Elston: The only thing that I want to be sure of is that somebody isn't going to use this, as I think basically David was referring to before, as a moneymaker. If we could be assured that we weren't doing something that was gouging somebody and earning money for people, I guess we'd feel satisfied. We really don't want to do that, yet we don't want to see you people and your operations out of pocket either.
Mr Perchaluk: Always remember that there is a place in the act for them to appeal the fees to the IPC. If it's unreasonable, they can always do that.
Mr Elston: Except that if we change the fees, there would be a presumption that they're reasonable fees. That's why I'm asking the question before we get into that issue. It seems like a waste of time for the Halton people, let's say, to have to go to appeal about a recently changed regulation, for instance.
Mr Perchaluk: As an example, we have a lot of requests for fatality and accident information, stuff like that. We charge them probably anywhere between $10 and $20, but the cost to us to process those files is probably $300 or $400 by the time we get through with it. Those are notorious. Because of the fee structure, that's what we charge them. We charge $15 for an accident report, and we have other policies like that. When you go through freedom of information, they're getting it for virtually nothing. It's unrealistic.
Mr Elston: If there is a piece of information being requested that would have a fee attached otherwise, you suggest that we at least amend it to say the same fee will apply in those circumstances, which doesn't seem to be too unreasonable in most cases.
Mr Perchaluk: Yes.
Mr Elston: I'm interested in the vexatious, frivolous inquiries as well. Do you have people who inquire about shift times and the strategy around the organization of officer time?
Mr Perchaluk: Yes, we do.
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Mr Elston: How do you decide when that is a legitimate taxpayer inquiry or perhaps a less honest inquiry, how somebody might figure out how to commit a crime, for instance? Or can you?
Mr Perchaluk: It's difficult. But the requests we mean are what Sergeant Desjardins was talking about, the amount of toilet paper used in your organization for a year. It's those types of requests we're talking about. People have honest requests and there's a lot of people doing research, and we have no problem with those, like "How many cars?" and "How much gasoline do you use?" or "How many police shirts do you buy per year?" stuff like that. That's not frivolous. They may not seem important to us, but for some people they would be. It's no problem whatsoever. In my office, we do a lot with students doing projects on the police etc and some of the questions are a little different, but it's no problem whatsoever.
It's just these absolutely weird ones we're talking about. Who would want to know how much toilet paper is used in, let's say, the chief's office? Maybe somebody who sells toilet paper would be interested in how much toilet paper we use as a whole, but not in the chief's office, or how much coffee is drunk by the chief etc. It's that type of thing.
Mr Desjardins: If I can add to that, one of the answers, in terms of your question about shift scheduling and that sort of thing, is that it's on a case-by-case basis. It's a call. That's what we do at the freedom of information unit. If it is a straightforward shift scheduling question, "How many officers are employed at this division and what shifts do they work?" that kind of thing, fine, sure, you can have it all. I suggest that if there's a case where on a particular night there's a plan to put twice as many officers to flood an area for a certain type of crime, then it wouldn't be in the interests of law enforcement to release that information. There's a section, I believe it's 8(1), that would prevent that. When there are tricky cases, we look at it and basically decide each case on its merits.
Mr Elston: I have another question.
The Chair: One short one.
Mr Elston: This is a short question that may get a longer answer. When you have a problem case that goes back for a number of years and is unofficially dormant -- not active perhaps, yet not really closed, because it's very difficult to close any of these -- when do you decide how to release the information around that case? Obviously, one section here says that an officer could give an affidavit that says the case is still open, for instance. Let's say a problem occurred in the late 1950s and yet it's still there, or, as happened with that fellow from Hamilton, the accident occurred in the 1970s and then he ultimately shows up. How do you decide when and how much information is available in a case that is maybe open but not active?
Mr Desjardins: We'd have to go back to the officers in charge of the original investigation and talk to them. In my own organization, we have a training component as well. For the last five years we've been telling police officers that FOI is legislation, it's here to stay, and we have to abide by it. We ask them, "What can you release?" They'll tell me, if they think something would be fairly innocuous: "You can release this. This is all stuff the suspect knows, but this stuff is pretty sensitive. I wouldn't want to release that." Then we slot the material that shouldn't be released, in the opinion of the head of the investigation, under the protection of one of the sections of the act. Usually it's law enforcement, section 8, or personal privacy, section 14. Then we tell the requester, "You can have this amount; you can't have this amount."
Then the requester goes to the Information and Privacy Commissioner of Ontario, who is very scrupulous about checking and forcing us to justify our decisions. I must say they're very good at their job. It's not just a case of myself saying, "This is protected by 8(1)(c) or 8(1)(l)." The IPC has to agree. Often they don't, and that's what the whole appeal process is about.
The Chair: Thank you for coming before the committee today, and safe trip home.
Mr Wiseman: Yes, stay away from the Don Valley parking lot.
Mr Perchaluk: I'm on the GO train.
PSYCHIATRIC PATIENT ADVOCATE OFFICE
The Chair: The next group is the Psychiatric Patient Advocate Office. We have one half-hour, and we'd like you to allow us some time. As you can see, the committee is very interested in asking questions about your brief. They're just getting it now so they haven't had a chance to read it in advance, so they most likely will have questions. You may begin.
Mr David Giuffrida: My name is David Giuffrida, acting director of the Psychiatric Patient Advocate Office. I've been associated with our program since it began in 1983. I've been a patient advocate and, for several years, its legal counsel. In that capacity and in my current one, I've been in a position to respond to numerous freedom of information requests made to our office.
I would like to take this opportunity to present to you the perspective of a program that has both counselled other individuals and groups on the constructive use of the freedom of information act to secure information that we think will help make publicly funded programs more accountable and the perspective of an organization that has had to process over 100 freedom of information applications, and share with you some of our concerns about the current operation of the legislation.
I should add that our experience is with the provincial freedom of information act, and it is my hope that the comments I share with you will have some application to your concerns about the municipal legislation as well.
Our program works for the rights of inpatients in the 10 provincial psychiatric hospitals, and I don't wish to suggest that the concerns I'm going to share with you are the concerns of all our clients. Indeed, some people in the provincial psychiatric hospitals I think are quite enthusiastic users of the freedom of information act and probably wouldn't support some of the suggestions I'm going to be presenting to you to limit the abuses of the system. But I think they speak to the concerns of people in the business of trying to run a small office and work within the spirit and the law of legislation such as FIPPA.
I'd like first to speak to -- and it appears on page 2 of our submission -- modifications to increase efficiency and reduce abuse of the system. Just in the short time I've been able to observe other presenters, I've become aware that you will have heard all of these from other sources.
First is the addition of a "frivolous and vexatious" clause. Let me say that I would not leave it to the head of an institution to unilaterally determine that a request or a requester is frivolous and vexatious. I think it's appropriate to have a more detached body rule on that issue, such as the commissioner. A head might be in the position to make an application to have a requester so designated. I'm concerned that inappropriate use or inappropriate drafting of such a clause could silence legitimate requesters, and that of course is something we want to avoid. But it's also my understanding that such clauses operate in our court system effectively and are used judiciously and in a limited way but are available when appropriate.
The second regards nominal fees for filing requests and for filing appeals. Here again I think it's important to walk a line. I can share with you, from members of the public who have called our program, experiences in which public hospitals have set prohibitively high fees for photocopying information: a $20 flat fee for even one page, for example. One must speculate whether this is being used to generate revenue or whether these rates are set so high to discourage people from having access to their own records.
However, having said that, I think it is legitimate to have a $5 or $10 fee, say a $5 fee for personal information and a $10 minimum for general information requests. I'm conscious of the fact that, for example, the majority of our clients are on income maintenance, and I wouldn't want to set a fee so high that it's prohibitive for them, but it would perhaps deter someone from making 30 applications instead of just the one that is most important to them.
The third item concerns a fee for copying documents received from the requester. This may sound niggling, but if you're in a small office such as ours, I personally end up going through some of these files, and it's frustrating when a requester asks for, "Everything you have on me," and the file's two inches thick and 90% of it is correspondence sent to us by the requester. It would be satisfying just to be able to list the documents and say: "You should have these; you sent them to us. If you wish us to copy them for you again, then you'll pay us to copy them for you again."
Item 4 concerns a fee for repeated requests in the same year. The previous presenters spoke to the fact that a requester may have had disclosure of certain documents and none the less asks for them all over again. It would be helpful to be able to say, "You already got that recently." If it's personal information, there's a general presumption that we don't charge, but, "If we already sent it to you in the last year, and you've misplaced it or you've requested so much that you really can't keep track of what you have, we're going to charge you for the second time around."
Item 5 is perhaps a bit more satiric: fees for locating personal information not stored as such. The classic case for personal information requests is one in which the requester says: "I'd like to see my Highway Traffic Act file. I'd like to see any personal property security, liens listed under my name." This is information that is stored by the institution alphabetically by the name of each individual member of the public so listed. It's another matter when a person says, "I want to look at my personal information wherever it may be stored, including your general information files."
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This may not be a realistic analogy, but it occurred to me that a retired elevator inspector might say to his or her former employer, "I want you to do a search of your files, wherever they may be, of every place my name appears, every elevator inspection report I may have ever filed." The employer might say: "We file those geographically by the location of the elevator. We don't file them by the name of the inspector. We'd have to look in every file."
You should either not be obliged to make those searches at all or, even though it is a personal information request, you should be able to charge for that search as if it were a general information request or oblige the requester to narrow it: "You tell us exactly where we may find your name and we'll look for it." From our experience, we're now inclined to take a tougher stand about that and oblige the requester to narrow it. You can just shut down an office for a couple of days while you're looking through literally every file to see every occurrence of an individual's name.
Item 6 deals with restrictions on access to the confidential records of others. Evidently, one of the key purposes of FIPPA is to protect the privacy of individuals, and I know it is a task that is taken quite seriously by the commissioner as well. The legislation leaves room for uncertainty when the issue concerns what may be characterized as shared personal information. There's a file maintained about client A or patient A, but in it he or she speaks about individual B, and B then says: "There may be stuff about me in that advocate-client file, in that lawyer-client file, in that clinical record. It's the clinical record of somebody else. It's not my clinical record; it's not my advocate-client file, but I'd like you to go through and see if my name appears anywhere in there. I'd really like to poke around and have a look." We received 80 of these in a short time, each one photocopied with just the name of the requester and the name of the hospital put in, all personal information requests for which we could not charge a fee.
There was the tremendous amount of time required to complete the task, time taken away from important work we do, serving people in psychiatric hospitals. There's also the more important issue of maintaining the confidentiality of advocate-client files. People in certain relationships, relationships with health care providers or with their lawyers or, I would say, with advocates for vulnerable people, have an expectation of confidentiality. It would be desirable for that expectation to be better articulated in the legislation so as to say that a requester's right to have access to his or her personal information does not extend to any of his or her personal information that may be contained in someone else's file -- a solicitor-client record, clinical record or advocate-client file -- just to make it abundantly clear that no, that is not even an area of search.
I wanted to speak not only to the foregoing half-dozen suggestions that may in some ways restrict access, but also ways in which access by members of the public to records they don't now see can be expanded. Our program has always been an enthusiastic supporter of the freedom of information act. I spoke to a committee of the Legislature in 1986 and 1987 when the freedom of information act in bill form was before that committee. It coincided with the Mental Health Act being before another committee of the Legislature down the hall. We advanced the rights of patients to have access to their clinical records.
It's perhaps ironic that that right was put into the Mental Health Act and gave psychiatric patients the right of access to their clinical records when no corresponding right was put into any other legislation to give a cardiac patient, a patient in the maternity ward or a patient at a dentist's office the right to see their own records. I say it's ironic because the argument advanced by health care providers opposing this kind of access to clinical records was that the patient might be upset by it. Well, what category of patient is most likely to be upset, if any, but a psychiatric patient?
Since 1987 anyway, going on seven years now, psychiatric patients in provincial psychiatric hospitals and the psychiatric wards of general hospitals have had, at least on paper, a right of access to their clinical records, and the sky has not fallen in. It has proven not to be a problem. In fact, I believe it increases the accountability of health care providers to the people they serve that the patients are able to see what has been written about them.
But the fact is that in the psychiatric wards of general hospitals there are currently no advocates. The patient advocates employed by our program are limited in their scope to the 10 provincial psychiatric hospitals. We receive calls from members of the public who say, "I have made an application for my record to the clinical records department of this public hospital in which I was a psychiatric patient," and either they've ignored it entirely or have said, "But it'll cost you $200 to see it," some prohibitively high fee.
I've been describing to you the right of access to psychiatric records, but the anomaly continues that whereas the psychiatric patient at a general hospital has a statutory right to see his or her record, even if it's one that may be ignored in practice, a patient down the hall in the cardiac unit or any other unit has no such statutory right.
There was a right found by the Supreme Court of Canada in the McInerney case in 1992. We were grateful to see that evolution in the common law, but it's our experience that in practice it hasn't filtered down to health care practitioners and to health care facilities as it ought to. We continue to receive calls from members of the public who say they have not been permitted to see their records despite the fact that the Supreme Court of Canada has found, in most cases, a duty on health care providers to share those records.
Ideally, the time is ripe for comprehensive health care information access and privacy legislation. There are unique issues raised by the collection, use and disclosure of clinical information. We're paving the information highway now, and as hospitals become computerized questions are raised about what hospital staff should have access to what information about other patients on other wards in the hospital etc. It's appropriate to focus attention on these issues and specialize legislation. But this legislation has been discussed for a number of years and discussion papers circulated by the Ministry of Health, and no bill has yet been introduced. I wanted to take this opportunity, since we do not yet have such specialized legislation, to ask that the committee consider whether there are other statutory avenues in which users of health care services can be guaranteed, in statute, a right of access to their clinical records.
Of course, the Freedom of Information and Protection of Privacy Act suggests itself as a vehicle for that. It would have the additional effect, I think a desirable one, that members of the public would have access to general information about public hospitals: They could get at the budget records, for example. But I have to acknowledge that the freedom of information act is, if you will, generic legislation that isn't particularly tailored to the special circumstances of clinical records.
I've noted on the bottom on page 5 some ways in which the freedom of information act might have to be modified. It's not at all an exhaustive list if it were to deal with access to clinical records with appropriate sensitivity.
For example, in the first bullet point at the bottom of page 5, it would be appropriate to better guarantee the confidentiality of clinical records to say that no one other than the patient can go through the patient's clinical record looking for the requester's personal information.
Second, the Mental Health Act has a provision that there can be a review of the mental capacity of the requester to see the information, and there's no corresponding mechanism in the freedom of information act.
Third, at the top of page 6, the freedom of information act also puts restrictions on from whom personal information can be collected and creates the presumption that personal information will be collected from the person it's about. That intuitively sounds right, but I think in political situations there are strong arguments to be made to authorize another manner of collection; for example, someone may be unconscious in Emergency and you would expect clinicians to be able to collect personal information about the unconscious patient from anyone who's standing around and can help. Similarly, for psychiatric patients who may not be able to tell their own histories, who may be mentally incapable, some alternative methods of collection should be authorized.
If broader inclusion of clinical records were contemplated in the freedom of information act, these and all the other issues I haven't mentioned would have to be addressed.
I'd like to conclude my presentation and allow time for questions.
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The Chair: Mr Wessenger, five minutes.
Mr Paul Wessenger (Simcoe Centre): I was interested in your comments with respect to bringing hospitals under the freedom of information act. Is that what you're suggesting as in interim solution, that if comprehensive health legislation doesn't proceed we should in some respect include public hospitals under this legislation?
Mr Giuffrida: I think that should be contemplated. I'm trying to be mindful of what the jurisdiction of this committee is. There are other pieces of legislation like the Public Hospitals Act that deal with public hospitals. If you're starting from scratch, that might be a place to put such provisions, but yes, looking at interim solutions with vehicles available to us now until comprehensive legislation comes in.
Mr Wessenger: I gather you're suggesting that, for instance, administrative procedures could be fairly easily brought under the provisions of the freedom of information act. Is that correct?
Mr Giuffrida: I don't see a problem with that, but administrators of hospitals I'm sure would be pleased to apprise you of any they see. I note that the provincial psychiatric hospitals, because they are government-owned and -operated, are institutions under the freedom of information act and have worked under FIPPA since it became law. They've probably experienced some of the headaches I'm describing to you as well, but overall I think it's a positive thing that hospitals be exposed to general information access.
Mr Wessenger: Do you think, as an interim basis, we should look at the model of the Mental Health Act with respect to how we should deal with clinical records and perhaps limit it to the same scope as under the Mental Health Act?
Mr Giuffrida: I think the paradigm in the Mental Health Act is a good model to look at. I would add one proviso, though. When that was being designed -- and I had the opportunity to comment on it a number of years ago when it was being designed -- there was an intent to create a strong presumption in favour of disclosure of clinical records to the patient. Did the patient have to apply to the mental health review board for permission to see the records? No, not at all. The patient merely had to file the piece of paper, form 28. If the clinician felt the patient shouldn't see the records, because it would cause harm to the patient or others, for example, there was an obligation on the clinician to apply to the mental health review board, and that is as we had hoped it would be.
It failed to contemplate the situation in which the institution just ignored the law, just ignored the request. The patient might think, "If you're going to ignore my request, I'll go to the review board and see what it says," but there's no authority under the Mental Health Act for the patient to apply to the review board if the hospital is simply ignoring the request, in contrast with FIPPA, in which the commissioner has an enforcement role and can audit compliance with the act. So I'd say yes, basically, to the Mental Health Act model, but it would also be desirable to include or continue the commissioner's role in enforcement.
Mr Wessenger: I think Mr White wants to use up the rest of our time.
The Chair: Mr White, you have a question.
Mr White: I hope, Mr Chair, I will be able to continue with a question or two?
The Chair: You have two minutes, so start your speech.
Mr White: With no interruptions? Thank you.
I wanted to ask a couple of questions. You have a great deal of experience with people whose boundaries are not always clear. What's appropriate and what's not appropriate in terms of requests is not always clear with your clients, so I would think you would be the ideal person to respond to a couple of issues that have been brought up during testimony. The issue you brought up of repeated, sometimes frivolous, requests you have a couple of responses for. You're suggesting there should be a nominal fee even for personal information, though, whereas most of your clientele would have very limited financial resources.
Mr Giuffrida: The authority would continue to exist for the head to waive the fee. That is one opportunity to minimize the burden of even a $5 fee on legitimate requests. Also, the point has been made that it can be more expensive administratively to process a small amount of money coming in than is worthwhile, so I suspect that when the requester is a person on income maintenance it may be fairly routine to waive the fee, but for requesters who are inclined to make 10 or 20 requests, you might regard that differently.
Mr White: Sure. Second --
The Chair: I'm sorry, time is up.
Mr White: You said two minutes, Mr Chair.
The Chair: Five minutes per caucus.
Mr Elston: I have a couple of questions that revolve around both the fee and "frivolous." Is it your feeling, David, that perhaps we ought to try the fee as a way of dealing with frivolous and vexatious requests before we amend it to give the head the decision?
Mr Giuffrida: I hadn't really prioritized them.
Mr Elston: I know you hadn't, but the strength of your argument about fees, it seems to me, would deal with some people who say, "It's free, so I can just beat these people to death with my claims."
Mr Giuffrida: It's certainly the case that some of the suggestions I've made relating to fees would address to a significant degree the same concerns that a "frivolous and vexatious" clause would.
Mr Elston: And if you were being cautious, perhaps we might try that before we gave the unfettered discretion, would you say?
Mr Giuffrida: To whom?
Mr Elston: To the head.
Mr Giuffrida: I wouldn't give the unfettered discretion to the head. I would permit the head to apply to a more detached organization, such as the commissioner.
Mr Elston: But in order to make the case, presumably you're still consuming resources, time, energy and whatever to make that application.
Mr Giuffrida: Yes, and that may help ensure that it is confined only to extreme cases.
Mr Elston: I'm interested in the issue of access to others' files. You mentioned that 80 people had made application. I presume those would have been in relation perhaps to allegations of improper care being provided or claims within the hospital administration. How do you balance that right to know what has been alleged, because in fact it does happen, when at the same time you can't say there will be absolutely no access to another record when it means a person may be disciplined, lose pay, lose a job?
Mr Giuffrida: That's an excellent question. Certainly we advocate fairness for our clients and fairness for others as well. A staff member who has been accused of unprofessional behaviour has a right to know the allegations he or she has to meet. But if that staff member has to respond to those inquiries, it's because the patient has not only gone to the advocate; the patient has also gone to the hospital administration, to the employer, and at that point the employer has that information and the employee can get that information from the employer.
But at times a patient will talk to an advocate and unburden themselves of a concern about the way they've been treated by a staff member but not instruct the advocate to tell anyone. There the information just stays in the advocate-client file and cannot prejudice the employee. In that case, I don't see a fairness argument for the employee being able to look in the advocate-client file. If it gets to the employee's employer, then they can get it from the employer.
Mr Elston: I agree with you, except that where there is evidence to an advocate from a patient about a person allegedly mistreating them, there's a different attitude surrounding the relationship that goes on inside the hospital. It may very well stay there as it relates to a formal circumstance, but informally the situation may take a different turn, particularly if you're dealing with supervisors who are in charge of --
Mr Giuffrida: If I were to balance the importance of maintaining the integrity of advocate-client files against the risk that a staff member worries the patient advocate feels ill-inclined towards them because of something the patient might have said, I'd err on the side of maintaining the confidentiality of the files.
Mr Elston: Good advice, but it's necessary to ensure that when we make a recommendation like this, some don't perceive us as changing the balance, or at least as clandestinely doing something to that individual's right to continue with employment.
I'm interested in two or three areas, because you've given us some very good suggestions here.
How do you as an advocate know what your patient needs to know for her or his own satisfaction? It goes to the question of including hospitals at some point. We've already discussed that on a couple of occasions. How do you know what is actually needed, how do you know what is actually understood in those clinical records, and how might we understand that also of a cardiac patient, for instance, a bypass patient or whatever?
Mr Giuffrida: I understand that philosophically under the freedom of information act the requester does not have to assert why he or she wants to know it. It's enough to say, "This is about me and I want to see it." Most clinical records departments want to physically preserve the files, so they have someone standing there when the requester is flipping through it. If that person has some clinical knowledge, they can help interpret medical phrases as well, or the attending physician, the author of the record, could be present to explain it.
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Mr Sterling: When this act was originally passed, I had suggested in an amendment to the original act that the institution or agency be allowed to strike its own fee structure etc, and that there be a "reasonable" clause associated. In retrospect, after hearing evidence for a couple of days now, I think there's a lot of sanity in that kind of clause in that the fees you may require in order to respond are very different from police forces, very different from municipalities. If we widen the scope of this act, which there is some talk of, to deal with hospitals and other social agencies, for instance, it seems to make eminent sense to allow the particular agency to strike its own fee schedule so (a) they're not making money but it's a cost recovery kind of thing, and (b) that it's reasonable; that you leave it at that and let the agency come to some agreement perhaps with the commissioner. What do you think about an approach like that?
Mr Giuffrida: First of all, as we're a quasi-independent program of the Ministry of Health but a part of the ministry for all financial considerations, that means that when a fee is charged to a requester, our program budget does not increase by that amount; it goes to general revenue, so it doesn't even end up defraying our costs.
My concern is to not allow individual institutions to unilaterally and without external oversight set their own fees because of the almost irresistible temptation to set them prohibitively high as it's just such a darn nuisance to process these requests. Where public hospitals have been permitted to set their own fees for photocopying, they have been prohibitively high. I could contemplate something in which an institution would have to persuade a neutral body of an appropriate fee schedule, but I can't imagine leaving it exclusively to the institution to set it.
Mr Tilson: Following that line, the issue of fees is cropping up in almost all the delegations that have come before us. It appears to be for two reasons. One is to try and discourage frivolous claims, and the second is to recover some of the great cost. I don't profess to be completely knowledgeable about these bills, although I am as I'm sitting through these meetings, but one of the areas that hasn't been canvassed, particularly by legal people, is the subject of costs. There doesn't seem to be anything in these pieces of legislation that enables someone to award costs specifically against those who make frivolous claims.
There was a time when the Ontario Municipal Board rarely, if ever, awarded costs. For example, if someone applies for a subdivision or a development and the opponent, who wants one across the street, applies and appeals that to the Ontario Municipal Board for quite frivolous reasons, now the municipal board is starting to award costs more and more. I'm thinking of yet another alternative to recover costs. If people like the hospitals and the municipal people and others start setting their fee schedule, I fear the whole system's going to become prohibitive, yet you've got a serious problem with frivolous claims. Have you ever addressed your thoughts to whether the commissioner or someone independent should have the ability to award costs specifically in frivolous claims?
Mr Giuffrida: A token analogy to the scenario you pose is the courts, where there is the --
Mr Tilson: No, it's not; some group such as the courts or the commissioner or someone who's independent.
Mr Giuffrida: Classically, it's been the courts that have had the authority to award costs against the unsuccessful party and, to a much more limited extent, administrative tribunals, and you just gave us one example. But these are all in judicial or quasi-judicial proceedings, so under the freedom of information act, that scenario doesn't exist until a party appeals to the IPCO.
I don't know that I would support that, because the spectre of having to pay the costs of the successful party can be such a significant deterrent. It's one thing to allow it between commercial interests that are litigating and another to say to a private citizen who really wants to see what the government has about them, "If you take it to the IPCO and lose, you could have to pay thousands of dollars in the other side's legal costs." I don't know that we need to include that in order to deter frivolous requests.
The Chair: Time has run out. Thank you for coming before the committee today with your presentation.
The committee recessed from 1146 to 1404.
WELLINGTON COUNTY SEPARATE SCHOOL BOARD
The Chair: We will resume the review with the Wellington County Roman Catholic Separate School Board. We have a half an hour. Welcome to the standing committee on the Legislative Assembly. You may begin.
Ms Jane Rose: Thank you. First of all, I'd like to introduce myself. My name is Jane Rose. I'm from the Wellington County Separate School Board in Guelph and I'm here today to bring to your attention some of the inadequacies we've found in trying to administer the access to information provisions under the act.
Our board supports the spirit of this legislation; however, there do appear to be a couple of loopholes in the act, which have been to the advantage of groups requesting large amounts of information.
I would like this panel to address two issues:
(1) A recognized and identifiable group acting as one body is able to break down a request for a large amount of information into small requests, submit individual requests, and thereby avoid the applicable fees.
(2) Subsection 20(1) of the act allows an extension of the 30-day time limit when a large amount of information is requested. However, there is no provision for an extension of this time limit when the requests are received from a group in the form of individual requests.
The following will give you some insight into the problems our board has experienced.
A group of people, who call themselves the Coalition for Responsible Catholic Education, was formed by members of the public who are opposed to our board's decision to close one of our high schools which was 135 years old. This coalition has been very active in their goal of keeping the school open.
In March 1993 our board received five requests from individuals for large amounts of information. The board responded individually to these requests and costed them accordingly. There was a lot of information that they required. The total number of hours to locate, sever, prepare and photocopy the information was calculated to be about 200 hours and would cost approximately $6,000. When we replied to the requesters, we did send them a certain amount of information to show goodwill and we certainly weren't opposed to giving them the information.
On April 20 and 21 three more requests were received. Two of these requests were granted access with no charge, the third was costed at $90 and we never heard anything about that one again.
Here comes the interesting part. On April 27 the board received a letter from an individual representing the coalition. This letter stated the five requesters were member of a coalition of approximately 100 individuals and they asked our board to waive the fee of $6,000.
It was stated in the letter, "If necessary our group is prepared to produce the required 100 names and send them to you to back up the five requests." The board replied to the effect that it was not prepared to waive the fee. An article the coalition published in the local Guelph Tribune, just a local little newspaper, claimed the group had raised $30,000 for its cause, so we really felt that waiving the fee wasn't an issue because they weren't in financial hardship.
The coalition then proceeded with the following action. In July 1993 the board received an additional 22 requests. Now, this time each request related to the original five. However, the requests were now broken down into small items to take advantage of the two hours' free search time.
I contacted a policy adviser at the freedom of information office in Toronto for advice on how to proceed with the situation. I was advised to treat the latest 22 requests as one and cost them accordingly as this was an abuse of the intent of the act.
Just to give you an example of how we feel the group has attempted to take advantage of the current legislation, one item in the original request requested the expense accounts of all board employees from 1989 to present. Well, all board employees, that's about 500 people. To get that kind of information prepared was, I don't remember the figure, but it was quite a substantial amount.
After our board refused to waive the fee, we received 19 individual requests for the expense account of the director of education, but this time it was broken down per month, like May 1991, June 1991 etc. Again, these requests related to the original request but were now broken down to avoid the applicable fees.
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It would appear that these requests are from the members of the Coalition for Responsible Catholic Education, and the reason I say that is that the requests have several similarities: The envelopes display the same handwriting; each letter is in the same format; material requested is the same as the original five; the requests were hand-delivered by the same person at approximately the same time of day; the names of the requesters were published in the school yearbook, identifying themselves as members of a coalition; and also the names of the requesters appear on a legal matter between the coalition and the board.
Based on the April 27 letter from the coalition, the separate school board anticipates it will receive approximately 100 small requests to obtain information which was originally estimated at $6,000. Individually, this information can now be requested free of charge.
In order for our board to comply with the current legislation, we must process these requests within a 30-day period, virtually free of charge. Compliance with the legislation will be extremely disruptive to the operations of the board and will also have severe financial implications.
Our current situation is this. Six individuals appealed our decision to treat the requests as one, stating they were requesting the information as individual members of the public. The appeals officer at the freedom of information branch stated there was no provision in the act to support our decision to treat them en bloc, and therefore we were advised to treat each request individually. He did, however, agree this was a loophole in the act which they were taking advantage of. Five of the appeals were settled at the mediation stage to the advantage of the requester and one request was denied under section 14.
We consider the coalition's attempt to avoid payment of fees is an abuse of the intent of the act, harassment of our organization and extremely time-consuming and costly to our organization. Thank you for hearing our concerns.
Mr Steven Offer (Mississauga North): Thank you very much for your presentation. I was wondering just before I ask some more specific questions, if you might be able to share with the committee an indication as to how many requests the Wellington board may have received over the time period with respect to freedom of information, apart from the specific issue that you bring forward.
Ms Rose: None, until this came forward.
Mr Offer: I see. Now, we have heard some presentations from other deputants which spoke to the issue of fees. I know there are probably two issues that I see here: Firstly, the issue specifically of fees and the right to charge fees and the scope and the amount that can be charged; secondly, if applications can be melded together and whether the legislation should provide a process for that to take place.
I am wondering if you could share with us, because on the issue of fees, we have heard a variety of presentations and I think it's fair to say that many people feel that there is an issue that there should be a little bit more discretion to be able to charge a broader scope of fee. I am wondering if you might be able to share with us your thoughts on that, recognizing that your board has had only one issue, granted it's a large one, but one issue.
Ms Rose: I really have no problem with the way the structure of the fee works. The fact that this group has been able to take advantage by withdrawing the original request, breaking it all down and now getting it free of charge, when we know it is the same people, I guess my thought on that was that the two-hour free search time seems to be a little loose -- maybe if it were reduced to one hour and we had the opportunity of charging people. I guess the bottom line is our board is not in a position to process all these individual requests with no financial benefit -- or not benefit, but reimbursement -- and the way the act is set up, they can do that.
Mr Offer: Keeping in mind the particular issue, you would be supporting a reduction in the availability of free search time and a broader area of fees to be charged.
Ms Rose: Or being able to group the requests together when you can prove that it's from a massive amount of information.
Mr Offer: And on that issue, have you thought about what would be the criteria to group particular requests? In your example, when you have one issue in mind, one might more easily be able to draw certain criteria, but when one is looking at legislation which will apply to everyone, are there some ideas or thoughts that you could share with the committee as to what some the criteria might be in order to accomplish this grouping?
Ms Rose: I really haven't given it an awful lot of thought. When one request is submitted, then withdrawn and then resubmitted, I think there could be some provision in the act to stop that happening.
The Chair: You've got one minute.
Mr Offer: I'm just thinking that if that were the case, then that might not necessarily address the problem which you have brought forward, because people just wouldn't have brought forward the issue as one whole at first instance. They would have brought it in chunks and clumps. I'm just wondering again if there are any facts or factors or criteria that we might be able to identify.
Ms Rose: Just, in our case, if we were able to present to you evidence that these were from a group of people, then the act should allow us more time to process the information without any kind of penalty and also we should be able to recoup some of the time, if we can prove to you.
Mr Offer: Okay.
The Chair: Welcome to the committee there, Mr Arnott, and you're up for a question.
Mr Ted Arnott (Wellington): Thank you, Ms Rose, for your presentation. Listening to it I think that I can say that I would give unqualified support to what you're saying. Your brief is constructive and helpful to this committee. I think we all recognize that people and individuals in groups have a right to pertinent government information, but that right should not be abused.
Clearly the situation that you've defined, I think, here would be to most reasonable people an abuse of the intent of the legislation, outside the intent of it, and certainly the potential exists for groups and individuals to make mischief within an organization such that your normal business becomes disrupted. I would strongly urge the committee to give very careful consideration to putting forward a suggestion to the Legislature to clean up the act with respect to the suggestions you've made.
Ms Rose: Thank you.
Mr Tilson: Ms Rose, your comments with respect to frivolous claims are certainly a pattern of different delegations that have come before us and the concern of -- well, we had a police delegation, we've had municipal delegations and school board delegations -- I can't recall whether you're the first or not, but it's obviously a common problem. We're having almost professional obstructionists who are out to cause havoc with institutions, and I understand that problem.
The suggestion has been made for fee structures and that may be an alternative, and that's really, I think, what you're suggesting as well, that there be some form of fee structure, a different schedule, depending on what you're doing, the number of hours spent, shortening down the two hours to one hour, that sort of thing.
The only hesitation I have with that is, and it may well be that's the only solution, the issue of are we really generating income, because governments in the present and the past, municipal or provincial, have obtained the reputation of using fees as a generator of income. I gave the example to a delegation this morning of snowmobile licences and sheriff's certificates and -- I don't know what fees school boards charge for information or for certified copies of documents, but the fees for birth certificates have jumped twice, I think, in the last six months.
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It's becoming very suspicious. That's the fear I would have, that institutions, whether they be school boards or municipalities or provincial governments or agencies, would use this source as a cash source for dealing with other issues. Have you got any comment on that fear?
Ms Rose: Only going back to the two hours, I don't think it has to be two hours. An awful lot of information can be retrieved within an hour. I think that would be a good compromise. They get maybe one free hour and after that -- but two hours, that's a lot of information free.
Mr Tilson: I guess there are problems as well that there are people who are genuinely looking for information, they feel they're paying administrators to provide a service and now they're going to have to pay again.
However, if I could move on to another area, which you did not deal with in your presentation and it may be unfair because you didn't, and that has to do with the availability of salaries of school board -- everyone from administrators down.
The concern of many is the subject of accountability. Not just for salaries, but perks, whether it be for directors of education -- directors of education do get perks, some directors get car allowances. We don't know, we as taxpayers don't know. You, working there, may not know unless that person inadvertently tells you. Privacy is one issue but accountability is another.
It may well be you haven't been instructed to talk on that subject. But as someone that works in an educational system, do you have any thoughts on that issue?
Ms Rose: From the first request we received, and we've actually received 32 in total, and I've met with the trustees and administration, the general opinion is that no one has anything to hide; everyone has been more than happy to supply me with the information. I have all the information that has been requested sitting in my desk ready to go.
Mr Tilson: If you don't get the permission of that person, you're going to get sued.
Ms Rose: No, it's ready to go subject to the requester paying the applicable fees.
Mr Tilson: No, that's not my question. My question has to do specifically with the release of remuneration and everything that's connected with remuneration.
Ms Rose: No one has a problem releasing it. Everyone has been, "Let's give it to them."
Mr Tilson: You have no problem with the legislation being amended to making that law?
Ms Rose: No.
Mr Mike Cooper (Kitchener-Wilmot): Like Mr Tilson, I want to address a couple of things that you didn't address.
Refresh my memory, but the Wellington county public school board has done a lot about violence in the school yard. Were you involved in that?
Ms Rose: No.
Mr Cooper: The separate school board wasn't. All right. This is a fairly large issue that's going on province-wide, and I know the Waterloo County Board of Education is trying to address this right now.
I guess the question is, with them trying to draft up policies and with students being very portable right now because they're moving and going to different schools and their records are following them, about elected officials getting access to these records when they're trying to set up how to secure the schools.
While I realize they aren't responsible if violence happens, it's usually up to the principal whether they would have access, but it eventually comes back to the elected official. So a lot of times an elected official may be asking for these records while they're trying to set up standards. Should they have access to these records when they're formulating their policies?
Ms Rose: This is my opinion only: Not until they are finalized.
Mr Cooper: Would it be necessary for them to receive pertinent information on individual students? Or should they just have the idea that there are people in the community who are going to be in trouble in school and formulate their policy on that?
Ms Rose: Yes, not on the individual students.
Mr Cooper: I know even parents have trouble accessing their own child's records.
The other thing I want to go on, I know my son was involved with the University of Waterloo when he was in grade school and he did some psychological tests. I don't know how they were picked for that, but we had the College of Psychologists of Ontario yesterday and they were talking about the tests not being made public. I know we had to sign a waiver on this, but we don't know how these are being used, what questions are answered.
I know one of the things that came up during the review of the provincial freedom of information, things like when the students were asked, if your ship went down and you had a life raft for five and there were six people, which one do you throw off? That was the big thing that made the newspapers.
This type of stuff is still going on in schools, I'm sure, these psychological tests, and we have no access to the questions or the results or how they're going to be used. Do you think the test questions should be made public? I know the colleges say they spend money developing these questions and they shouldn't be.
Ms Rose: I don't see why not.
Mr Cooper: And the results? Like, we don't know how the results are going to be used and whether they're actually tied in or whether they're tied into a number or an individual person, whether that should be accessible.
Ms Rose: As long as it's left very general, that no one is identified. I'm not really qualified to speak on that.
Mr Cooper: I realize this is a little unfair, but I just wanted to see if you had some background on either of these, the psychological tests, or whether the elected officials should have access to students' records.
Ms Rose: I'll pass on that one. I don't feel qualified enough to give an opinion.
Mr Cooper: Okay. I'll defer to my colleague.
Mr Hope: I'm going to stay specifically to your brief. I'm going to be a little fairer to your presentation.
Mr Hayes: Unlike the others, eh?
Mr Hope: Yes, unlike the others.
First of all, thank you for coming. I want to talk specifically about the identification of individuals making application and putting them into organizations, as one who has been along to coalition groups before. I'm just trying to understand whether it's just not the school board or the institution -- I'll be fair, the institution getting its back up and being protective -- or how you're doing that comparator.
I notice you said about the court challenge and other issues, the same letter and everything else. How are you making that? Because when we talk about -- you know, one of the concerns is the frivolous requests that are coming forward, coalition groups doing this. It's part of your second recommendation on your first page which you've put forward to us, and I just need a better understanding. How did you come up with the identification? Even though I could belong to an organization, I could be acting as an individual.
Ms Rose: Yes. However, I just have so much evidence -- I mean, I have it with me actually. I didn't want to burden you with it. It has been very easy to prove that they are the same people. These people all came together to a service recognition dinner we had and booked a table anonymously and all showed up at the same place. It's really not hard to identify these people, and then they send the requests in. I have absolutely no doubt in my mind that every name ties up with the names in the newspaper.
Mr Hope: So what we have to be careful of, I take it, through your presentation today, is that it's not for political purposes.
Ms Rose: Not at all. Right from the time the requests came in, I handed them out to the various departments, talked to the director. All the information came back to my desk and it has been sitting there. I sent the estimates out and as soon as that cheque came back it would have gone right out to them. There is no problem with the board releasing the information, none whatsoever. As soon as I have the money, they can have the information.
Mr Hope: Did I understand you correctly in the beginning? You said you have not received any requests other than the time that this broke out. There have been zero requests before through the freedom of information and this is the first time, and this is, I'm taking, through written. Have there been oral requests?
Ms Rose: A few that were just handled by not treating it as a freedom of information. Maybe they've asked for something like the policy book and we've said, "Well, why don't you come in and read it and make the photocopies." We've sort of said, "You have this option or you can come in and we'll show it to you." Other than that, no, there have been no formal requests other than this group.
The Chair: Thank you for coming today.
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ONTARIO PSYCHOLOGICAL ASSOCIATION
The Chair: The Ontario Psychological Association, come forward, please. Welcome. We have half an hour, until 3 o'clock, and please leave some time for questions. As I was looking in the audience there, I saw some of the answers that were coming; some were nodding yes, some were nodding no. So maybe you can give us a little bit more insight to what you've already heard sitting in the committee today.
Dr Ruth Berman: My name is Ruth Berman. I'm the executive director of the Ontario Psychological Association. With me this afternoon is Dr Brian Wilson. Dr Wilson is the chief psychologist of the Etobicoke Board of Education, and as well he is the president of the section of psychologists in education within the Ontario Psychological Association. To his right is Ms Linda Bohnen, our legal counsel.
The Ontario Psychological Association is the professional organization of psychologists in Ontario. Formed in 1947, the OPA is committed to advancing psychology as a profession of the highest ethical standards. The OPA represents psychologists in Ontario who practise clinical, industrial/organizational, neuropsychology and educational psychology, among other specialty areas, in private practice and hospitals and in settings such as municipal government and boards of education, which are subject to the Municipal Freedom of Information and Protection of Privacy Act.
When a client receives psychological services in Ontario, those services are provided by psychologists or persons practising under the supervision of psychologists. Psychologists are regulated under the Psychology Act, which is under the Regulated Health Professions Act, 1991. The practice of psychology has been a regulated profession in Ontario for over 30 years.
Among other services, psychologists conduct psychological assessments of the social, emotional, personality and intellectual functioning of clients. Psychological assessments involve observation and interviews as well as the use of psychological tests. Psychological tests are essentially objective, standardized measures of differences between individuals or between the reactions of the same individual on different occasions.
"Standardized" means there is not only uniformity in the procedures of both administering and scoring the test but also that the test has undergone a rigorous and scientifically based development process to ensure that it is a reliable and valid instrument. In order to secure uniformity, test developers provide detailed instructions on the administration, scoring and required secrecy of test items.
Test secrecy is of particular concern, since availability of test items to the public destroys the integrity and validity of tests, rendering them useless. The public relies on psychologists for diagnostic assessments of behavioural and mental conditions such as specific neuropsychological, psychotic, neurotic and personality disorders; and psychologists rely on secure, valid tests to conduct their assessments.
Psychologists have standards of professional practice and ethics regarding test security. Psychologists are required to conduct themselves in a manner which preserves the ongoing security of tests by not providing critical information about a test to anyone who is not qualified to use the test. For example, in litigation situations, psychologists only provide test questions and answers to the opposing party's psychologist unless the judge orders otherwise. The courts have supported this practice in order to maintain test security.
The act establishes a person's right to personal information controlled by institutions, which include municipal authorities and school boards. "Personal information" means recorded information about an individual and includes psychological information. The act provides that everyone has access to a record, or part of a record, held by an institution unless the record or part falls within one of the exemptions under sections 6 to 15.
Sections 10 and 11 of the act set out exemptions of relevance to the disclosure of standardized tests which are part of psychological records. Subsection 10(1) provides a mandatory exemption where the record reveals a trade secret or scientific information supplied in confidence where disclosure could reasonably be expected to cause significant prejudice to a person's competitive position or result in undue loss to a person or result in similar information no longer being supplied to the institution.
Section 11 provides a discretionary exemption where the record contains, among other information, trade secrets or technical information that belongs to an institution and has monetary value to an institution and where the record contains questions to be used in an examination or test for educational purposes.
Although it is possible to interpret the exemptions in section 10 and 11 to apply to test information in a psychological record, the OPA is concerned that the scope of the exemptions, as applied by the commissioner, is too narrow and not sufficient to prevent the disclosure of information which threatens test secrecy and thereby jeopardizes the validity of tests frequently used and relied upon for psychological assessment.
Dr Wilson will now address the specific concerns and recommendations that we're making.
Dr Brian Wilson: The OPA has specific concerns about three substantive sections of the act.
First, clause 11(h) provides an exemption from disclosure for a record that contains "questions that are to be used in an examination or test for an educational purpose," and we've underlined "for an educational purpose." The OPA believes that the current wording is not broad enough in two respects.
First, the exemption may not protect information other than questions, even though the information would lead, through deduction or through inference, to disclosure of the test questions. This is especially troublesome in relation to tests constructed and distributed for ongoing and periodic use. For example, the disclosure of a person's marked test answers would lead by inference to the disclosure of the actual questions. This would render the test invalid for further use.
Second, psychological tests are not solely used for educational purposes. Such tests are widely and typically used in a variety of clinical and other applied situations for diagnostic purposes or where evaluations of intellectual, emotional, neuropsychological and social functioning are required.
In this regard, we have laid out a recommendation, that being that the OPA recommends that clause 11(h) be amended to provide the following exemption:
"questions, and information that could reasonably be expected to lead to the disclosure of questions, that are to be used in an examination or test."
The second concern deals with section 23. In the past, psychologists frequently would review a small sample of test items with clients or parents of clients during post-assessment interviews to facilitate their understanding of the test and what it measures.
However, the OPA is concerned that section 23 of the act discourages this practice by stipulating that any access to a sample of the test items or part of the test record would require the psychologist to then provide a copy of the test items upon request. If it was mandatory to furnish a copy of the whole test, this would be a breach of the professional standards of practice and ethics, and the security and validity of the test would be threatened.
This concern regarding section 23 also has been recognized by publishers and distributors of standardized tests. Recently, one of the major distributors of tests has instructed us in Ontario to refrain from describing or visually disclosing any of the test materials to the public, to the clients that we have, or a part of test materials, to prevent this full disclosure of the test under the act.
In this regard, the OPA recommends that section 23 be amended to permit part of a record, for example, samples of test items, to be disclosed orally or visually, without subsequently requiring that a copy of the record, or part of the record, be provided.
Our final substantive concern deals with section 38. Clause 38(d) authorizes a head to refuse to disclose medical information to an applicant where the information could reasonably be expected to prejudice the applicant's mental or physical health. Psychologists are well aware of situations in which it would be detrimental to a client's mental health for complete, unedited information to be given to the client. The word "medical" to describe this information is too limiting and anachronistic in the current health system in which many professions generate sensitive health information about individuals.
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Our recommendation then is: The OPA recommends that clause 38(d) be amended to change the reference from "medical information" to "health information."
In addition to our three substantive concerns, the OPA has concerns about several provisions in part III of the act, under "Appeal."
Our first concern relates to the means by which affected third parties are identified and given notice of appeals. Subsection 39(3) provides that the commissioner must give notice of an appeal to any other affected person. In our experience, this provision has been applied too narrowly and passively, with the result that third parties who will be affected by the outcome of the appeal are not given notice and are therefore denied an opportunity to participate in the appeal. Furthermore, it has been ruled that the commissioner has no jurisdiction to entertain an appeal by a person claiming to be an affected party from the failure of a head to give notice to that person before disclosing a record.
Our recommendation therefore: The OPA recommends that subsection 39(3) be amended to place an obligation on the commissioner to ensure that notice of appeal and an opportunity to participate in the appeal is given to all third parties who may reasonably be affected by the outcome of an appeal, including professional associations and professional colleges whose standards of practice and ethical codes may be affected by a commissioner's order disposing of the issues raised in the appeal.
Our second procedural concern involves subsection 41(1). That section provides that the commissioner must conduct an inquiry to review the head's decision in an appeal. The OPA is concerned that the scope of the inquiry is restricted and generally limited to a review of the oral and written representations from parties notified of the appeal.
The commissioner should not expect these notified persons to always provide thorough and complete information and submissions in their representations. In many cases, without counsel or expert assistance, notified persons may not be sophisticated enough to prepare thorough and complete representations.
Further, the commissioner cannot be expected to be expert in the nuances of all appeals. Since commissioner's orders can have profound effects on the persons represented and on many third parties across Ontario who are not represented in the appeal, and since there is no right to appeal commissioner's orders, the commissioner should be required to use independent fact-finding and expert witnesses in appeals.
Our recommendation in this regard is: The OPA recommends that the commissioner, while conducting an inquiry under section 41, be required to use both independent fact-finding and expert witnesses in addition to representations from notified persons to ensure that the commissioner's order is based on the best possible and most complete information.
Our third procedural concern involves subsection 43(3). That subsection states, "The commissioner's order may contain any conditions that the commissioner considers appropriate." We believe this authority should be used in appropriate cases to make it a condition of disclosure of a record to a person that the person agree not to further disclose the record.
Use of the authority for this purpose would recognize that there are circumstances where a particular individual's right to information outweighs the interests of an institution or third party in keeping the information confidential, but where the information should not be communicated to the public at large.
This could apply, for example, to answers to questions given in psychological tests. The individual who gave the answers may be entitled to see them, but where disclosure of the answers reveals the questions, the individual should be required to agree not to further disclose them.
The concept that a limited group of people should have access to information but that the same information should not be widely published is well known in the law; for example, bans on publication of evidence given at trials even though the public is not excluded from the courtroom.
Our recommendation then: The OPA recommends that subsection 43(3) be amended to clarify that the commissioner may, in appropriate cases, impose the condition on disclosure that information contained in a record must not be further disclosed or published by the applicant.
Finally, in addition to the previous three procedural recommendations, the OPA believes that there should be a right to appeal commissioner's orders. Right to appeal commissioner's orders would provide more scope for review of decisions. Given the powers of the commissioner, there is not enough accountability for the commissioner's orders and this could be attained through the right to appeal.
Our recommendation is that the OPA recommends that the act provide for the right to appeal commissioner's orders.
Dr Berman: As the professional organization of psychologists in Ontario, the Ontario Psychological Association has been committed to advancing psychology as a profession of the highest ethical standards for almost 50 years. The public relies on psychologists for diagnostic assessments of behavioural and mental conditions. Psychologists rely on valid, standardized tests to conduct psychological assessments, and through the profession's standards of practice and ethics psychologists are required to protect test security.
Where psychologists are employed by school boards and other municipal institutions, the Municipal Freedom of Information and Protection of Privacy Act impacts on psychologists' ability to maintain test security and threatens the validity of these valuable tests which are used by psychologists throughout North America and in many other countries around the world.
We are here today to ask that the standing committee on the Legislative Assembly consider the importance of both our substantive and procedural concerns with the Municipal Freedom of Information and Protection of Privacy Act and to consider our recommendations to further improve the act.
Mr Tilson: Your comment about further appeal from commissioner's orders, what do you mean by that? To the courts? I don't understand what you mean by that. Whom would you appeal to?
Dr Brian Wilson: I guess it would be an appeal to the court at that point.
Mr Tilson: Can you elaborate a little bit on that page 5, item 4, that you read? I guess my question really is, when would it end? When would the appeal process end? Can you go all the way to the Supreme Court of Canada?
Ms Linda Bohnen: The current situation is that commissioner's orders are subject to judicial review applications on points of law, but not appeal. In particular because of the absence of provisions in the current act that ensure all relevant information is made available to the commissioner and that all affected parties have the opportunity to be heard, judicial review has proved not to be an effective method, in the association's view, to ensure that the most appropriate decisions are made. The hope is that by permitting a broader basis for review of the commissioner's decisions, which might bring before the decision-maker wider viewpoints and more evidence, frankly, better decisions could result.
Mr Tilson: It might lead to more litigation too.
Ms Bohnen: That's the other side of the coin and it's clear that the intent of this is not to judicialize privacy and access to information. On the other hand, the impact of the commissioner's orders in many cases is profound and in the association's view worthy of the best possible decision-making.
Mr Tilson: Thank you. The question with respect to tests, someone from the College of Psychologists of Ontario appeared yesterday -- I'm sure you're aware of that -- and made representations and similar representations were made by her, the acting registrar, I believe.
What happens if someone wants to challenge a test, for whatever purpose? It may be for litigation; it may be criminal; it may be whatever; it may involve custody. It could be any number of reasons, I suppose, in which a psychologist's report is made and someone doesn't like that test; that individual hires you to give the test in the first place and they don't like the answer and then they go to you to challenge it. You don't know how to challenge it, because you don't know what it was.
What rights are there to the individual who wishes to challenge it? For example, it may well be that the test wasn't performed correctly by the psychologist. There may have been professional negligence. There may have been an omission. If you don't know what the test is, how can you legally test it?
Dr Brian Wilson: If, for example, somebody doesn't like the opinions you give, they do have the right to a second opinion, so they can go to another psychologist and ask for that second opinion.
With regard to the test, if they wanted to obtain copies of the test and the test questions from the first psychologist who rendered the opinions, then that first psychologist is obligated under our standards of practice to provide the test and the test questions and the answers to the second psychologist.
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Mr Tilson: But only to a psychologist, not to an individual.
Dr Brian Wilson: That's correct. It would be up to the second psychologist, whom the client has asked to look at the situation, to render an opinion to the client on whether that was done correctly or incorrectly or whether they have an different opinion.
Mr Tilson: So if we got into challenging something in court, for example, are you telling me those tests could never be made available in the courts, the questions?
Dr Brian Wilson: No, I'm not saying that at all. No.
The Chair: I have to go on to Mr Cooper.
Mr Cooper: Thank you for your presentation. We went through this in 1991 when we were doing the previous review, and I think you heard my previous line of questioning for the school boards. There was quite a bit of wrestling in the committee about who would have access to the psychological testing of students when it's in their file. Do you have any more views on that from what we went through at the provincial level?
Dr Brian Wilson: All I can say is that, for example, in school boards, which is what you were asking earlier as well, the actual tests themselves, the test protocols that are copyrighted, do not go into the student's record; they do not go into the OSR. What goes into the OSR is the interpretation of the test of the psychologist or the person working under the supervision of the psychologist. The test protocols themselves are kept in a confidential psychological file. What the reader has, the people in the school, is simply an explanation, an interpretation, of the results. The test themselves are protected.
Mr Cooper: And what about the part about elected officials having access to that record?
Dr Brian Wilson: Which officials are you referring to?
Mr Cooper: Basically, school board trustees, but we've also been talking about the municipal level, whether municipal politicians would have access to certain information.
Dr Brian Wilson: When you say "information," are you referring to the actual test itself, the questions?
Mr Cooper: No, the results of the test.
Dr Brian Wilson: The results of the test, the things that are in the OSR, for example. Well, my opinion is that those test results belong to the client, and in the case of school boards, the client is the student, the learner, and the parent of that learner. It is they who can govern or determine where that information goes. They are always given a copy of that information, by the way; it's not as if it's just put in a file somewhere. If they choose to share that information, that's certainly their right and they could do so, but the information contained, say, in the OSR is obviously protected by the regulations associated with the OSR.
Mr Cooper: In general, there's been talk about MFIPPA being extended to the children's aid societies and hospitals. What are your feelings on that?
Dr Brian Wilson: That rights to access of the OSR be extended to those?
Mr Cooper: No, that we bring in MFIPPA to cover hospitals and children's aid societies, expanding it.
Dr Brian Wilson: That's difficult for me to comment on.
Mr Cooper: For hospitals, I guess, is where it would affect you.
Ms Bohnen: May I comment? From the perspective of psychologists and other health professionals, if that action is taken it will raise complex issues of confidentiality of health information, because that information is, by and large, the most sensitive kind of information we generate in our society. For that step to be taken, I think particular attention would have to be paid to ensure that it is protected, and the right of individuals to be protected from their own information where it will damage them has to be assured as well.
Mr Cooper: So would the one recommendation where you talk about changing it from "medical" to "health" cover it? Partly? Almost?
Ms Bohnen: Certainly that's a necessary amendment even if the scope of the act is not extended beyond the current municipal institutions. It would be all the more essential if the scope of the act were extended to cover hospitals, children's aid societies and other institutions.
Mr Cooper: Thank you. I'll defer to Mr White.
The Chair: One minute, Mr White.
Mr White: One brief question: We had the discussion yesterday from the College of Psychologists and what you mentioned, Ms Bohnen,:the protection of an individual from information about themselves. I'm a little concerned about that. This morning we had the patients' rights advocates, who work with psychiatric patients in Ontario facilities, stating that that's never been a concern throughout the duration of the provincial act being in place. I'm wondering why this would be cited and what the position of the psychological association is; how it's determined that information might be detrimental to an individual, that no other body seems to find potentially harmful than your solicitor.
Dr Brian Wilson: I can answer that question with reference to within a school system, for example. We always -- and I'm sure all my other colleagues do too -- go to great lengths to try to convey as much information to the client as possible, to the student, to the family. As we make reference here, we even to a certain degree would show them samples of the test; to a parent, for example, if we're working with a student. We would show them samples of the kinds of things we do in order that we feel they're informed the best we possibly can about what we've done with the student and what it means. Of course, it's what it means that is the most important part: the interpretation of that test.
The Chair: Okay, Mr Elston.
Mr White: I think I got cut off.
The Chair: No, I was keeping watch.
Mr Elston: I have a couple of question. Has there been a decision that has offended the psychologists? I just came back -- I'm late coming back in -- but I notice that there is a substantial amount of information from a legal firm in Virginia. We've had the College of Psychologists. We've got the association of psychologists. What decision is it that has caused you problems?
Dr Berman: There currently is a situation involving a particular school board, where a request and an order was made by the commissioner with respect to releasing of some test information to the family of a child who had been tested for a particular purpose. There is a commissioner's order and there has been a request for a judicial review. Because of that particular situation and that particular order having been made, we are very concerned about that setting a legal precedent.
The interest you mentioned of some Americans attests to the fact that the situation we're finding ourselves in, where the security of standardized psychological tests could be in jeopardy, is not an issue that's of concern to that particular board or to Dr Wilson's school board or any school board: It is a concern to the profession at large.
These tests are used not only in schools; they're used widely in a variety of clinical situations, the same tests used throughout North America. Many of them have been restandardized and translated in other countries. For example, the standard intelligence test is the benchmark for the assessment of intelligence literally throughout the world. That's why you have a submission from the Association of Test Publishers. Many of these tests have undergone painstaking development, much of it taking a period of several years.
Mr Elston: I wish as a member of the committee that you'd just come in as a group and said, "Listen, we believe there's a bad order out there, and that's why we're making a presentation," as opposed to us having to find out about it. It really sounds to me like you're using this committee as an appeal mechanism --
Dr Brian Wilson: Not at all.
Dr Berman: No.
Mr Elston: Well, that's what it sounds like. First of all, you've said today that the commissioner's authority has to be prescribed because the orders are not made in the best interests of the public and that as a result you need some other court avenue to appeal his decision, that judicial review is not effective. That's what has been said. I ask myself the question I just asked you: Why are all these psychologists all of a sudden here?
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Dr Berman: We're saying that the legislation is written in a way that does not speak to the issue of psychological tests. That would be the case whether this particular order existed or not.
Mr Elston: I suspect you wouldn't have been here if that order hadn't been made, though.
Dr Brian Wilson: Except that we have had few concerns with the act. This brought it to our attention.
Ms Bohnen: If I could also add, the procedural recommendations that have been made do partly arise from the fact that this association, other school boards, test publishers, are not parties to the judicial review application because they were not given notice of the potentially affected parties. So it's not the case that the judicial review application will be an effective remedy in this situation.
The Chair: Mr Elston, time has run out.
Mr Elston: That was five minutes?
The Chair: No, about four minutes.
Mr Elston: Well, you gave them five.
The Chair: No, everybody got four minutes. Sorry, Mr Elston.
Mr Hayes: Drummond has been cut short.
The Chair: Yes, he's been cut short every time.
Ladies and gentlemen, thank you for coming before the committee. If Mr Elston has another question, maybe he can catch you at the back of the room before you leave.
Mr Elston: It's not on the record.
The Chair: The researcher has an explanation on the next exhibit that has been handed out.
Ms Susan Swift: The clerk has just handed out copies of the British Columbia Freedom of Information and Protection of Privacy Act. The committee requested that after there was much discussion from the Information and Privacy Commissioner and Management Board on this statute. The statute has been amended and the amendments are attached, and a schedule of the proclamation date for the bill appears at the front of the exhibit.
CITY OF THUNDER BAY
The Chair: The next group is the corporation of the city of Thunder Bay. Welcome. I guess that was a long trip. People have problems coming even, say, six blocks to Queen's Park with the weather we've had down here, which I guess isn't unusual to you in Thunder Bay.
Ms Evelyn Dodds: No. I guess we felt pretty pleased that you're only about five degrees warmer than we are.
The Chair: Please identify yourselves and the position you hold, and you may begin. We have until 3:30.
Ms Dodds: Thank you. My name is Evelyn Dodds, and I'm an alderman with the city of Thunder Bay. The brief that is before you was supported by council resolution of the city. With me is Riccardo Simeoni, who is a welfare eligibility review officer. In that capacity, he is responsible for investigating the reports of suspected welfare fraud that come to our attention.
I find it odd that I should be presenting this particular position to you today because normally I am very firmly on the side of the individual against the power of government to intrude in their lives. Unfortunately, whenever there is a system which confers benefits upon individuals, I'm afraid that liberties have to be diminished in that the public right to be protected in the expenditure of public funds has to take precedence.
It has been clear to me in the past two years in reviewing the activities on the welfare fraud issue within the city that the freedom of information act has contributed in some considerable degree to the difficulties that face social workers when they are trying to assess a person's legitimate eligibility and when they are trying to investigate suspected fraud, which would lead to criminal prosecution.
The position of the city of Thunder Bay is that welfare is too costly to administer, too difficult to monitor and, at the moment, is ridiculously easy to abuse. It is impossible to discuss only the freedom of information act, because its impact within the welfare eligibility systems is so intertwined with all of their procedures that you need to understand how welfare eligibility is reviewed in order to understand why the freedom of information act has made it worse.
The first point I make is that there are far too many eligibility-related forms. Your appendix lists the titles of 99 of those forms. I would like to offer for the committee that we did not copy all 99, but I did bring you a sample of each. There are 99 forms that our welfare department has to keep stocked regularly in its bins to access, more than 40 of which are the direct result of the FOI.
In contrast to this, I did attend in the offices in Winnipeg, Manitoba, the investigative unit there for their welfare fraud. In their bins, I think there were about 25 of them. They have found very simple ways of administering their FOI within welfare administration. I think the government, in several of its departments, would be well advised to have a look at what other provinces are doing.
Numerous consent forms must be signed by each applicant. We don't have a system at the moment where the FOI permits the welfare departments to simply take one blanket authorization to verify information. Numerous forms must be signed. When the supply runs out, workers have to get the welfare recipient back in to sign more. Agencies will not accept photocopies, even if they are stamped as true and certified copies.
Each agency, even agencies run by the same government, have failed miserably to adopt standard practices. You see here before you UIC, CPP, WCB, immigration, OSAP, children's aid; they have all developed their own paperwork. They all require separate signatures, separate filings and separate processes, which has added enormously to the cost of running welfare departments.
Revenue Canada will provide absolutely no information even with the consent form unless a criminal charge is laid.
Applicants can continue to receive welfare benefits even if they refuse to sign a consent. A welfare worker assessing someone's eligibility can deem a person to be ineligible if they refuse to sign the consent form, but it is a very simple matter for an individual to go down the road to a legal clinic and to file an appeal, and the SARB board usually issues an interim order to pay. Since it takes up to six months for SARB to review an application, someone who has refused to sign a consent form can be receiving welfare all that time. When the SARB review is complete, even if the position of the department is upheld, the moneys paid are unrecoverable. It has become a neat way of getting six months' income without any justification.
As you know, the system for ascertaining if applicants are receiving welfare elsewhere, even in Ontario -- in our case, even in the adjoining townships -- is totally unreliable because there is no consistent computerized database that is accessible.
Again, I would refer you to the Manitoba experience, which I personally visited and which I consider to be highly superior to anything that Ontario has. They have, without any fuss, managed to set up databases so that they know, the moment someone applies for welfare, whether they are receiving any benefit funded by the government or by the federal government anywhere in the province, and they are in the process of expanding their databases to the other western provinces.
But as I was told by the head of their unit, "Our database and our ability to check stops at the Ontario border," which is unfortunate. We've had experiences in Thunder Bay with people receiving welfare simultaneously in Winnipeg and in Thunder Bay. With no exchange of information, it's impossible to catch it. Any steps that Community and Social Services takes to improve the systems is automatically going to involve the FOI. They're going to have to work together to change the systems, because one cannot change without considering the other.
Hiding bank assets is relatively simple. The banks generally cooperate if they are given the consent form, but of course the most common kind of welfare fraud that we have detected has to do with unreported cohabitation or the "spouse in the house" situation. The banks of course will not give you any information on this alleged spouse because that person, as they weren't a reported person, has not signed a consent.
People who have virtually no identification can be given welfare. They can simply say they don't have any identification and, provided that the information they submit qualifies them under the financial rules, they can receive income. I don't think that should be.
Many social benefit recipients do not file income tax returns, or claim they don't. That poses a problem.
Support payments from other parents cannot be sought if the applicant parent refuses to disclose who the other parent is: "I don't know who the father is," or "I refuse to tell you," and that's that. You cannot go after the support payments from the other parent.
Applicants can very easily claim, falsely, to be supporting dependent children. Particularly in these days of movable families, it's extremely easy for several families to each claim support of the same children. Unless home visits are possible -- and today's budgets do not normally permit a lot of home visits -- it's an extremely difficult situation to find out about.
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Field workers cannot request income information and verification pertaining to other adults who live in the same household unless a legal relationship or a common law spousal relationship is voluntarily declared. That is not the person whose name is on the welfare cheque; therefore we have absolutely no way of getting information from that person or by that person.
The definition of "cohabitation" is obscure. I'm amazed that we continue to make laws that include in their application some definition of "family," because there is no definition of "family" that I'm aware of that is consistent or that can be applied to these laws. If we insist that we're going to calculate someone's eligibility for a benefit on the basis of family income, I think we'd better get about the business of designing a commonly accepted definition of "family," which at the moment doesn't exist.
Welfare payments that are made at the same time that other awaited income applies retroactively are costly to recover: "Give me welfare now. I have a lump sum insurance payment coming in two months." For some reason, we have not put the onus on the welfare recipient to repay the welfare paid, even though the insurance payment may have applied retroactively, or UIC or WCB.
Landlords are frequently victimized because of the FOI. If they have a welfare tenant who does not pay the rent and then leaves, even though a portion of the welfare cheque is calculated to include a shelter subsidy, once that welfare tenant leaves and goes to another location, the welfare office is prevented under the FOI from telling the landlord, even if he has a court order, where that person has moved to.
I've had many calls from landlords asking me to find out where that person went: "I have a writ. The sheriff is ready to deliver it, and your social workers won't tell me where the person moved. Did you not give that person welfare in order to cover their rent?" I say yes. They didn't pay it. It should be fraud, and the FOI should not be assisting in the victimization of landlords.
When it comes time to investigate fraud -- and I do insist that any receipt of public moneys under false pretences is a criminal offence indictable under the Criminal Code, and I would like you to have a look at the statistics our department has summarized for you -- our efforts to research and to follow up and investigate and prosecute welfare fraud as reported are only recent, only a little over a year, and yet we have already found that the incidence of fraud is far greater than was previously suspected. We've already recovered significant amounts of money and we've put, I think, eight people in jail so far.
Mr Simeoni will review the statistics with you so that you can better understand them.
Mr Riccardo Simeoni: In Thunder Bay, we have an average case load of family benefits and general welfare assistance of approximately 4,800. That's been ongoing since June 1992 to September 1993. Of those 4,800, the social services department received during that time period 547 complaints of alleged abuse. Those complaints were dealt with by the case worker, social worker. They may have made some changes in the budget or whatever or they may have referred it to us. Of those 547, 365 cases were actually referred to the eligibility review unit to be investigated.
If you look at 547 cases, that represents 11.4% of our case load. The ones the review unit looked at were 7.6%. As of September, we still were backlogged by 139, but of the 226 we reviewed, in 102 of them there was no misrepresentation found; however, in 124 cases of the 226 we looked at, or 2.6% of our total case load, there was abuse, abuse that we dealt with. There may have been abuse prior that the worker dealt with, but it wasn't, in the worker's opinion, referrable to us.
Of those 124, almost $1 million of overpayment has been input, or 2.6% of our case load. Of those 124 that our unit looked at, 87 have been referred to Thunder Bay Police for criminal charges. In the remainder, we put an overpayment in and referrals to police were not appropriate. Of those 87, in 82, or 1.7%, criminal charges have been laid. Of those 82, to September 1993, in 32 we have registered convictions in court. As Ms Dodds has stated, up to two years' sentence was the highest. Presently, we have approximately 50 pending through the courts in Thunder Bay. Of those we sent to the Thunder Bay police, five were returned to us or there was a not guilty finding in court.
Ms Dodds: I think the thing to note is that there are two kinds of fraud, and we are able to investigate and prosecute only one kind. There is visible and invisible fraud. Almost every case you have in front of you is of the visible kind of fraud, where some circumstance in a living arrangement tips off the neighbours and relatives that there has been misrepresentation.
The invisible kind of fraud is double-dipping, where a person can be receiving WCB and welfare. We have virtually no way of detecting that, virtually no way, so very, very few of these investigations and convictions deal with the invisible fraud. In Manitoba, almost all the cases that they prosecute are the invisible fraud because they rely almost exclusively on computerized forensic auditing techniques to pull out double-dippers. Because it's a low-profile activity in Manitoba, they receive very few reports of the visible kind.
I very much suspect that if we were catching all fraud and if the courts weren't so slow, the figures would be well in excess of double what we have already managed to detect and prosecute.
We cannot check, even when fraud is suspected, which is a criminal charge. Even when we suspect that a criminal act has been committed and we are investigating it in conjunction with the police department, we still have to have those consent forms in order to access the information. We still can't get information on the co-resident unless that person agrees or unless -- perhaps Mr Simeoni can give you more details on that, but he has developed some rather unique skills. I think he should be teaching a course to other people across the province in what he has learned to do.
Even when you have a signed consent and you want information from UIC, they will only give you information for a specific 12-week time period, and we are finding with many of the cases we are prosecuting that the fraud has been ongoing for years. Revenue Canada won't give you anything unless a charge is laid. We have difficulty defining what a family situation is. It's very difficult to prove cohabitation. It's ridiculously easy to claim that the cohabiter is living somewhere else. I give you all of the ways in which it can be done, though I don't suggest that you try them.
Fatherhood is easy to deny: "That's not my child. I refuse to pay for that child. I just happen to live here and sleep in that bed five nights a week, but it's not my job to support her," and on it goes.
Where unreported cohabitation is alleged, the FOI prevents the investigator from verifying the income of the cohabiter. Telephone companies use the FOI to prevent any evidence being derived through the record of telephone numbers. The cohabiter can have given the telephone number at that same address to his boss as his contact number, yet we are not allowed to get that information from the telephone company unless we go to the actual laying of the charge and getting a search warrant. Cellular phones and call forwarding further obscures the traceable path for tracking people down.
The court system is very slow and people stay on welfare while they're waiting for a case to come to court.
Number 12 was a point we wrote several months ago when we were researching this, but we have managed, through some discussions with the crown prosecutor's office, to improve that situation considerably in Thunder Bay.
Witnesses pay the price. The welfare recipient who is charged with fraud continues to be supported until the case comes to court and is eligible for welfare even after conviction, but the witnesses lose pay, have to pay babysitters, have to go back to court repeatedly and frequently suffer from intimidation because they are willing to testify in court.
The collection system is very, very complicated. There are special considerations for welfare recipients who are under the age of 18. Parents do not have to be charged with anything for their children to be believed that they are in danger from their parents. I do not believe that it is ever appropriate to withhold information from parents about their own children unless there is a proven, compelling reason in the child's interest.
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I don't have time because I see my half-hour is roaring by, but I have a letter here, parts of which I could read to you -- not all of it, because I'd be betraying the confidentiality of the writer -- that would break your heart, from the mother of a 17-year-old whose teenager has rebelled and whose family has been destroyed and the system has served to protect her child against her. There is absolutely nothing proven against the parent. A rebellious teenager is strongly supported by the system.
I want to point out, in this case it was not our department that supported this rebellious teenager. Our department turned this child down, who immediately went down the road to the legal clinic for free legal advice: an order to pay interim assistance. It takes six months for it to get to court, and that's it.
There is no recourse for the parents, who watch their children going astray. Some of the letters and phone calls I get, I'm quite serious, would break your heart, that adolescents are almost encouraged to break loose.
These children from 16 to 18 have to sign a separate consent for every person to be checked with, so the teenager can say, "You can talk to my teacher but don't talk to my mother." It makes you wonder why that would happen.
Teenagers are extremely well informed about their rights. They receive advice not only from guidance counsellors in schools but from legal clinics, and they must of necessity receive this information from social workers as well. So they know exactly how to get around the system if they decide to do so.
But parents don't have the right to receive information about their children. I know of the case of a personal friend of mine whose son decided to run away to Toronto. She knew that her son was receiving welfare somewhere because she had heard through his friends and the grapevine. She tried to track this kid down because obviously he was wrecking his life. The local welfare office knew where he was because they were able to call it up on their database, but the FOI prevented them from telling these parents where their own child was. It was strictly an accident that caused her finally to find him; someone she knew happened to be walking down the street here and saw him and collared him. They finally got him home and straightened him out, and I'm glad to say he finished school and has now made something of himself. But if he had stayed on your streets here in Toronto, with no one giving any information to the mother, he'd probably still be on your streets.
Parents don't have any rights any more. The system takes the child away from them. They share information with each other and everybody can talk to each other within the system, but the parents don't have the right to get information about their own children.
Teenagers who are on welfare live in unsupervised circumstances. I believe we have previously forwarded to the government a resolution passed by the council of the city of Thunder Bay that we think that is not a good situation to allow to persist.
Children who have children are no longer considered children. A 15-year-old gets pregnant and the system immediately treats that person as an adult, supports them, gives them full privileges and rights and protections under the law. But a child who has a child is still a child.
I have pulled out of the recommendations, which obviously apply to the Community and Social Services department as well as the freedom of information commission, those recommendations as they apply specifically to the FOI. This brief will also be forwarded to Comsoc in the hopes that welfare reform will take into account the experiences that we relate here. The two have to work together. Comsoc cannot improve welfare unless the FOI people work with them and vice versa.
I think that the time has come that the right of the public to protect its money must outweigh the right of the individual to privacy when public funds are accessed. I would quote to you a statement, and this is not a new thought by any means. For thousands of years it has been known that the greater the dependence of the citizenry on its government for support, the more liberty has to be given up. It's simply a fact. If you depend on the government to support you, you give up your right to privacy because the taxpayers' right not to have their money abused is greater.
The application of the FOI needs to be simplified, and this should be directed by the FOI. Legislating concepts is not enough. It's wonderful to write a bill that has all the right philosophies and concepts in it, but if thought isn't given to how it is going to be applied by the dozens of agencies that must institute it within their procedures, obviously some very bad things happen.
I think it's irresponsible legislation if it allows agencies to fend for themselves, indeed forces agencies to fend for themselves, in developing their own procedures. That's why all that paperwork developed. You just passed the law and you said, "Okay, you guys, go ahead and deal with it." So they did. They all produced their own forms of paperwork, and now we pay an awful lot for filling out papers that don't get us anywhere. Each independently developed their own bureaucratic procedures. They conflict with each other, and civil servants are beginning to sink under the weight of all this paperwork.
Parents should never be prevented from obtaining information about their children who are under 18 unless there is a compelling, proven -- not alleged; proven -- reason in the child's interest to withhold it.
The FOI restrictions that permit landlords to be victimized by welfare tenants should be lifted.
Investigations of suspected criminal fraud should cause the lifting of FOI restrictions to the fullest extent possible under the Criminal Code. There already is protection for individual rights under the Criminal Code. The FOI does not need to add to them.
The FOI commissioner should work very closely over the next few months with the Ministry of Community and Social Services to improve its eligibility screening systems with the public interest in mind.
The welfare system is now seen as a giant way of squandering hard-earned tax dollars. That perception will undermine, in a continued way, the confidence of the people in their own government, and that cannot lead to anything good that I know of. I think it's time we cleaned it up. Thank you very much.
The Chair: We have four minutes for the three caucuses, about one minute apiece. Mr Hope, very short.
Mr Hope: I was reading a newspaper article of November 9, 1993. Council created a little heat over your study that was being brought forward, according to the paper.
Ms Dodds: Two aldermen out of 13 were opposed to it.
Mr Hope: We're getting into the issue of dissemination of information. My question would be to the non-elected official, because we're looking at the issue of elected getting information versus non-elected. In your role of getting information and working with social services, my question would be, because of the time, should elected officials receive confidential information such as social assistance?
Mr Simeoni: I don't think so. But the point that has to be made is that the reason for my being here is that my investigations continue to be impeded in the pursuit of alleged abuse. I don't have to report back to an elected official -- that's irrelevant -- but I can tell you, sir, that I've been doing this for a long time. My investigations are impeded, and that's the message I want to leave you with.
Mr Hope: A minute's not a lot of time.
Ms Dodds: Mr Chairman, in further response to that question, the council by resolution approved this brief so I think any suggestion that it was not supported by council is totally false. I do believe in majority vote rules.
The other point --
Mr Hope: The city manager, Bruce Thom --
Mr Tilson: Let her finish her statement.
Mr Hope: Well, there's only a minute.
Ms Dodds: That was a misquote in the paper as well, and if you wish to contact Mr Thom, the city manager, directly, he will confirm that. I received a personal apology from the editor for that misquote.
The second point I wish to make is that the brief does not ask for the right of elected officials to receive information about individuals. I do not believe that would be appropriate. I think investigating officers need that information in order to eliminate fraud within the system.
Mr Tilson: Obviously, I haven't got time to ask many questions. I would simply say that trying to figure out the big picture at this place is useful. Your comments probably are more towards Comsoc, but no question that both of you expressed your frustrations under freedom of information. It will be very helpful for me to further study your brief. I will also endeavour to find out information from Manitoba, because you've spoken quite highly about that. I don't know whether other members of the committee will, but I certainly will be pursuing that. I thank you very much for your presentation.
Ms Dodds: Thank you.
The Chair: Mr Hope has a question to research.
Mr Hope: I'm trying to remember the date. It was in the public accounts committee dealing with the auditor's report about fraud. There was a presentation made by the then deputy minister, Charles Pascal, around procedures to work with Quebec, the federal government, the WCB, health and safety and other agencies. This brief seems to be totally focused on social services and alleged fraud, so I believe that report of protocols and procedures being put in place would help balance the report.
Ms Swift: So you'd like a copy of that.
Mr Hope: A copy of the Hansard of the presentation by Charles Pascal dealing with this issue of fraud.
Mr Tilson: I don't know to whom I direct my question about the Manitoba report that was referred to by Ms Dodds. I don't know whether it's difficult or expensive to get that. Perhaps my question is to legislative research. Do you know anything about that report?
Ms Swift: I don't, but I can find out for you and report back to the committee. If we can get it within the next time frame -- and I don't see why not -- I'll do that.
Mr Tilson: Thank you.
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CITY OF TORONTO
The Chair: We have a delegation from the city of Toronto legal department. Welcome. Please identify yourselves and your position. We have till 4 o'clock, so if you can leave some time at the end, the members appreciate asking questions.
Ms Barbara Caplan: I think we will. My name is Barbara Caplan. I'm the city clerk of Toronto and I'm the head's designate for the city for MFIPPA. Do you call it "MFIPPA"? That's our buzzword. Is that okay?
The Chair: Yes, it saves time in the brief.
Ms Barbara Caplan: I'll introduce to you my co-worker Donald Leith, who's the manager for MFIPPA for the city, and Jane Speakman, who's one of our legal counsellors from the Toronto legal department.
First, I apologize for not providing our submission in advance. It was adopted unanimously, but yesterday afternoon was when it went through council. We've provided it to Lisa, and hopefully you'll have copies of that.
I just want to make brief introductory remarks and tell you that the city of Toronto's worked very hard to comply with and apply MFIPPA. We take it very seriously for two reasons. The first is that the city believes very strongly and supports the goals of the act. The second is that we devote the better part of $1 million to administering the act every year. We have shrinking resources and they're precious, but we're happy to spend that money.
We appeared before your committee in 1991 to make comment on the provincial version of the Freedom of Information and Protection of Privacy Act. Some of our comments today relate to the recommendations which were contained in that review, and others have been drawn from our now very extensive experience with applying the act.
We hope you'll find that the 14 points we're going to raise with you are constructive; we mean them to be so. We'll also be very brief. I know that two of our councillors earlier freed up half an hour of your time, but we won't try to make up for that.
I'm going to ask Donald Leith, together with Jane Speakman, to present the points in our brief.
Mr Donald Leith: I propose to go through the points very quickly, about a minute each for the 14, and then you'll have time for questions. You'll note that in some cases, we do refer to recommendations contained in the report on FIPPA itself, so if you have that, it may help.
The first point is simply one where we agree with the recommendation already made, which is to have a provision in MFIPPA to prevent frivolous and vexatious requests. We have been experiencing them, we've had a number of them, and we think there's a lot of merit in the previous recommendation so we would support that in MFIPPA.
The next issue for us is what we call the question of parallel access. That is a case where the city may be involved as a party to an action and the requester or requesters are also party to that action. By operation of MFIPPA, they can sometimes obtain access to our records far in advance of other disclosure provisions that would be available to them under the action, either discovery in a civil case or, say, through a pre-disclosure hearing at the OMB. We think that creates a procedural unfairness. We recognize that we can claim exemptions from the legislation, but if it goes on appeal the privacy commissioner may rule against us, and we're left with that concern.
So we're recommending that MFIPPA be amended to provide that where there are other rules of production in place, those rules should prevail, or alternatively, where that's not to be the case, the institution should be entitled to reciprocal disclosure of documents when there is an action in which both the requester and the city are parties.
Tied into that is our next point, but it also relates to some things the committee on FIPPA found, which is that we believe there should be a requirement to state the purpose of a request. I would note that two of the previous committee's recommendations recognized that a statement of purpose may be required in some cases, both with respect to requests for access to mailing lists and also in order to identify requests made for commercial purposes. We think this would apply to these parallel access cases and may also assist in dealing with frivolous and vexatious requests.
The next point we have has to do particularly with our internal investigations. We have an internal process for investigating allegations of workplace harassment, and one of the difficulties we have faced is getting witnesses to come forward to provide information. So far it has been impossible to guarantee confidentiality, which I think has an inhibiting effect on the witnesses. We're asking you to consider ways to deal with that problem. We don't think we're unique in facing that. I think other institutions that have internal processes have had the same kinds of problems.
We recognize that at the time of the provincial review, a request was made for institutions to have more discretion in setting fees. It was the previous committee's view that there should not be a more discretionary fee schedule. However, we do have some specific concerns and we're asking that we at least be allowed to set fees for specific kinds of records that are not already covered by the regulation.
The example we've given relates to copies of building plans. For a long time at the city of Toronto, we have microfilmed all building plans that are submitted, for security reasons and for other reasons. We've obviously invested a lot of money in that technology, and we have the ability to produce large-scale copies from reader printers, which we used to charge at $12 a page. Under the fee schedule, it's been argued with us that we should be charging 20 cents a page because these are photocopies under the regulation. We don't think that's appropriate and obviously it would mean a significant loss of money for us.
Our next point is a technical one but important to us. At present, the Information and Privacy Commissioner orders an institution to release records if an institution's exemptions are not upheld on an appeal. So far, the privacy commissioner has never himself released the documents -- he merely makes an order -- but there is nothing in the legislation as it stands to prevent that, and we feel it should be made explicit that it is up to the institution. We feel that the privacy commissioner has sufficient recourse: If an institution fails to comply, it's open to the privacy commissioner to ask the Attorney General to bring a prosecution. We feel that would be useful to protect the institution, because if the privacy commissioner released the documents himself, the institution would have no recourse.
The next issue is quite a sensitive one for us and one for which we get a lot of requests. It has to do with mailing lists. We agree with the recommendation in the previous report that mailing lists be dealt with so that release of a mailing list would be considered a presumed unjustified invasion of personal privacy or, at the least, the circumstances in which mailing lists could be available would be spelled out.
As I point out, as I read the recommendation, it has to do with formal requests for access as opposed to the regular process for providing access to personal information under part II of the act.
Our next point has to do with recipients of social assistance in a specific way. We're concerned about protecting the privacy of certain individuals who may live at an address which has a personal qualification for you to be able to live there. In other words, if it's a residential care facility for people with mental illness, anyone who lives there by definition must be suffering from mental illness. We are concerned about requests sometimes which appear on their face to be only for address information but which we feel may in fact be for personal information.
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The next issue has to do with archival records. There's quite a good recapitulation of the position of the archives of Ontario in the provincial report. The city archives, which are well used, faces exactly the same problems and supports a similar amendment to MFIPPA that would have the effect of making general records available after 20 years from creation and records containing personal information available after 100 years from creation of the record.
We don't feel, and we supplied a separate report to you in 1991, that the investigative powers of the privacy commissioner should be extended. We see the privacy commission primarily as an administrative tribunal and not as an investigative body.
There was a recommendation in the previous report that institutions be required to produce regularly, I believe annually, lists of studies and policy documents that are publicly available. We are not very happy about that. We are already required to produce a directory of records. We haven't updated the directory for 1993; it's a reasonably low priority for us. I've been in the office since it opened on January 1, 1991, and five people have asked to see our directory of records. They don't rely on the directory, they rely on us or on the assistance of the department, in locating the record or records they want. So I don't think it's particularly useful. It doesn't seem to be a major problem that's been advanced by anyone who's used our services.
We also note, in the previous committee's report, that they were concerned about delays in the appeal process. Since that time, the Information and Privacy Commissioner as a matter of practice has imposed time limits on institutions in both supplying records and supplying representations to the privacy commissioner. Once we have done that, though, there is no time deadline on the privacy commissioner to render an order. I would point out that the new British Columbia legislation requires an appeal to be dealt with within 90 days of its being filed. There's nothing similar in Ontario, but we're suggesting that the privacy commissioner have an obligation to render an order within 30 days of receipt of all the representations of the parties to the appeal.
We also didn't particularly like the idea that penalties could be imposed for delay in the form of not being able to claim fees. We believe that although the power given to the IPC would be discretionary, at least as set out in this report, what would happen is that there would be a further ground that would have to be argued: The institution would have to show that it was acting in good faith. We have enough work to do on appeals without having to add yet another ground.
Finally, we support the committee's position which says that it would not like to see a privative clause added to the legislation. That would have the effect, of course, of suggesting that perhaps even judicial review is not available. We are not asking for a broader right of appeal, but we feel that the right to apply for judicial review should remain in the legislation.
Those are our 14 points. If you have any questions, we'd be happy to try and answer them.
Mr Elston: I was interested in the appeal issue, since we dealt with that with one of the preceding presenters. My concern is that if we tend to make this thing much more complex, on appeal and otherwise, we are going to end up with costs that really go beyond what this already puts the city of Toronto back. As a preliminary, I wonder if you can estimate for me what the expense is for the city at this point and how much it would cost to process an appeal, for instance.
Mr Leith: I can't tell you as a general term, because it really depends on the nature of the records and the nature of the request. It can be something that's very simple. It can be an appeal, for example, from a decision where we advised that we have no such record. It might be a matter of a couple of hours to prepare an affidavit by the person who searched for the record. That might be all. On the other hand, we have appeals where there might be 10 issues raised, all of which require substantial representations. I can tell you that we had one where we submitted representations and waited over a year for the order, and I think we had about 20 pages of representations.
Mr Elston: In that case you may have been happy to have waited the year for that reply to come back.
Mr Leith: I'm not so sure, though. It's interesting, and I think we should make it clear here that we are taking seriously the committee's approach that what we're interested in is a speedy resolution of the disputes, both from the point of view of the institution, which will not always suit us, and from the point of view of the requester. In asking for there to be a time limit on rendering orders by the IPC, I would assume that is very much in the interests of requesters.
Mr Elston: Could you tell me a little bit about the frivolous and vexatious applications? That's one that's been popular. Could you suggest for us the nature of the frivolous and vexatious type of applicant, and secondly, whether or not you perhaps see the prospect of the use of a user fee for each request as being partly a way of controlling that issue without getting into trying to define it in a statute, which as everybody knows is a very difficult thing to deal with and probably would take you into a lot more court issues, or could take you into more court issues.
Mr Leith: It's really difficult to speculate on the motives people have in making it. I can give you a couple of examples.
An early one we had was a case where a requester was involved in a dispute with one of the city departments, as the result of which he filed 12 requests, all of which were for huge numbers of documents. That was a case where, clearly, we think it wasn't really directed at getting information that would help the dispute; it was just a way, I think, of expressing frustration with the substance of another dispute with the city.
More recently, we've had a number of requests where they're coming in almost as though the person has sat down with our telephone directory and just picked out each area of the city and then faxed in request after request asking for all their records.
Mr Elston: You mean for the requester's records or the department's?
Mr Leith: No, just records; in other words, taking a list of every board, agency and commission of the city of Toronto and asking for all minutes since they were created. Many of these things are available publicly anyway, but the time --
Mr Elston: Perhaps you could send them a videotape of the last council meeting.
Mr Leith: Maybe. Our problem: There is a provision in the act to say to people that these things are publicly available elsewhere, if they are; it's the work involved in dealing with all these things when they come in, just having to track it all down and so on.
Ms Jane Speakman: One of the points Donald was alluding to was the amount of work most recently and I think you asked the question about cost involvement with appeals. There are a couple of points I was going to make.
Donald is the freedom of information manager who deals with these. By the time it gets to an appeal stage, we have a lot more involvement with city staff. The department from which the record has been requested would be involved, and that involves one or two people. There would be Donald and his staff involved. By the time it gets to the appeal stage, all the representations and all the appeal information goes through the legal department, which involves legal staff time, including the time of the city solicitor, and then it goes back to the city clerk. So there is a tremendous amount of high-priced support that's involved in responding to the appeals.
I'd like to tie this in with the frivolous and vexatious requests, because most recently we were involved in responding to an appeal which we thought was a frivolous and vexatious request. We met the deadline. We had gone through all this business of the representations. The city solicitor had signed off on the letter. We had it all set to go on the day it was due. Lo and behold, the phone call came saying the requester had dropped his appeal.
If we had some mechanism to deal with this kind of request, we would feel there wasn't such a total waste of time and resources.
Mr Leith: I'd like to address your point about charging a request fee. While I understand the ambit of it, I'm just not sure that we should impose a sort of limitation on accessibility to all the bona fide requesters in order to deal with the serious but numerically fairly insignificant number of frivolous and vexatious ones, if it is open to us to make a decision not to reply because it's frivolous and vexatious through means of an amendment.
There is an appeal process to the privacy commissioner and the privacy commissioner can rule on that. I'm just saying that I'm not sure the fee route is necessarily the answer either, because there could be bona fide requesters who might feel inhibited about making a request if there were even an upfront fee.
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Mr Tilson: Continuing on with that point, I'm sure you're far more familiar with the legislation than I am. On that last point where you indicated an appeal to the commissioner, I raised the question this morning to a non-legal person as to another alternative to stopping the frivolous and vexatious claims. Obviously the fee is one where you run the risk of making it prohibitive, or people just won't be bothered to make a claim because the fees are out of sight. There is the risk of the municipality or the province or the institution boosting up their fees so high, at their discretion, that it becomes out of sight.
Are you both solicitors?
Ms Speakman: I'm a solicitor.
Mr Tilson: My question is a question that I asked to a non-lawyer this morning, and that had to do with some sort of procedure that would have to be set up, perhaps from the commissioner's office. I drew the analogy of the Ontario Municipal Board. In the past, when an application was made for a development and a competitor appealed the process, whatever one was doing, it was very rare that costs were awarded by the Ontario Municipal Board. Now that is happening more and more, particularly if it becomes quite apparent that the purpose is to delay the development because of a competitor. Now costs are being awarded and they're substantial costs.
My question to you, as a solicitor or someone who has some knowledge of legal procedures, because this isn't really a quasi -- well, I guess it is; there are decisions that are made -- is whether there would be a process that might deal with this. It would be the commissioner who would determine if particular claims -- there would be a process where a municipality, a school board or the province, for that matter, could make an application to determine whether or not that is a frivolous claim and the commissioner could award substantial costs. That is lurking over the heads of these people who are obviously out to sink the municipality in waves of paper and everything else and that sort of thing. I raise that as an alternative to the fee issue of discouraging the frivolous application.
Ms Speakman: I was just speaking with the city clerk and we haven't discussed that in any great detail. It could be something that's worth discussing. My understanding, and I don't know if the IPC has made any representations to you or has commented on that, is that I think right at the moment they have some kind of process at their own office. They recognize that there are frivolous and vexatious complaints and they've developed a system at their end, but I don't think it comes into play until perhaps it gets to the appeal stage or until it gets further on. I guess our concern is that it's too late by that time, sometimes, because we've had to develop and incur a lot of thought and use a lot of staff time.
Mr Tilson: If it's a frivolous claim, the applicant may have to pay for that time.
Ms Speakman: That's right.
Mr Tilson: It gets back, and I haven't read this in detail, I must confess, but I look at page 94 of the one you referred to on the frivolous claims and I get very nervous about heads making these decisions, whether it be -- I forget the term you used -- a nominated head or --
Ms Barbara Caplan: Delegated.
Mr Tilson: -- a delegated head. To me, the political interference, what a wonderful way to get rid of someone. You say: "It's frivolous and vexatious. Go away. I'm not going to give you that information."
Ms Barbara Caplan: I agree. I think that what we've looked at as frivolous complaints are, for example, we have two requesters right now with 26 requests before us each. We don't even consider whether it's frivolous or not until we get a deluge like that. Maybe that could be spelled out. I know that the IPC's system for appeals of that nature has a list of 10 and then things are bumped in as they're dealt with at the bottom. Maybe there's a process like that.
Mr Tilson: There may be extremes of what is frivolous. A police officer came forward this morning and told us someone wanted to know what sort of toilet paper the chief of police uses. You can get those extremes where what you're obviously out to cause are difficulties, but there may be a deluge of applications that may be, in certain circumstances, quite reasonable. That's why I get concerned with the delegated head making that decision and why I would prefer that the decision about what is frivolous or not frivolous be made by an independent type of individual.
Ms Barbara Caplan: I understand that, and of course anyone who is judged to have given us a frivolous or vexatious request has appeal to the IPC as well.
Mr Tilson: On the issue of fees, I just express my concern. I understand the frivolous part of it. I look at the issue of income generating source. I could just imagine the cost, if you start analysing what this costs in time or paper or running a computer or some other machine to figure all this out. My fear is allowing the administrator to go wild on fees, because I've seen this province, I've seen municipalities -- I can't understand a municipality charging $50 for a tax certificate or something like that. I'm sure you could debate that with me.
Ms Barbara Caplan: We charge $5.
Mr Tilson: You charge $5? Well, that's good to hear.
The Chair: Mr Tilson, we've got to go on. I never heard a question there; there were statements.
Mr Tilson: My question is the fear that the abuse could continue, of the administrator or the politician.
Ms Barbara Caplan: Of course there are ways of not paying the fees. The act provides that the fees can be waived if we're of the opinion that it places a financial burden on the requester. We seldom tend to apply fees. If it's for a commercial purpose, if it's a lawyer coming for information for his client, we will.
Mr Tilson: The head has that discretion.
Ms Barbara Caplan: That's right, but that's also appealable to the IPC.
Mr White: Moving firstly to a simple issue, if you have someone in your employ and a landlord wants to know where they have moved to -- they formerly lived in his apartment building -- is there any obligation for you to disclose that information to the landlord, of someone who is in your employ, in whatever position?
Mr Leith: Not to my knowledge.
Mr White: Their personal information should be kept private, should it not?
Mr Leith: You can only give it out if one of the circumstances in section 32 of the act applies. There are a number of them, and I can take you through them, but those are the provisions that allow disclosure in the normal course of business.
Mr White: But for any employee, anyone to whom you are paying a cheque to a specific residence or whatever, you would not be obligated to disclose that information?
Mr Leith: You can do it if you're required to do it by another statute, if you had a court order, for example.
Mr White: The reason I ask is that we had an earlier discussion with someone from Thunder Bay who was suggesting that people who are welfare recipients should not have the same rights as the rest of the universe.
In regard to the frivolous and vexatious issue, as you mentioned, sir, that's a very rare occurrence, but it is the kind of thing that comes up and has come up time and time again. We had one very clear example -- actually two today -- of that kind of thing, but they are almost a red herring in these circumstances. Do you feel that the recommendation you cited would adequately deal with those concerns?
Mr Leith: I think so. It gives the head the right to refuse to reply, subject to the requester's right to appeal to the privacy commissioner, and that seems reasonable.
Mr White: The use of fees as a means to deter frivolous requests, and the use of fees as a means of certainly raising revenue but also as a means of penalizing people, is not the venue you would want to pursue.
Mr Leith: I think I said I was concerned about restrictions being placed on people making requests in the first place, but I haven't thought very much about Mr Tilson's comment about the privacy commissioner's ability to be able to impose a cost on someone if they found it was frivolous and vexatious. I don't think we're advocating a fee up front to make a request.
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Mr Hope: Just one basic question, dealing with the accessibility issue and the people who have visual-impaired problems: Because of your large population here, and this was brought to the committee's attention, about their access to information, could you maybe inform this committee, do you have a protocol or procedure to deal with the visually impaired, to provide them with information, or do you even have any cases?
Mr Leith: We haven't had any cases, but I can tell you that generally in the clerk's department we have an access office that deals with all kinds of disabilities as well as multicultural access. So we would be prepared to work with the people there if a case arose.
Ms Barbara Caplan: We have the ability to contract assistance for anybody who needs it.
The Chair: Thank you for appearing today.
Mr Hope: I need the clerk's advice here. We received the presentation from the corporation of the city of Thunder Bay and it says "the council and the corporation of the city of Thunder Bay." I've had the opportunity to read it and nothing is mentioned about social assistance or the problems around social assistance or individuals, but we did receive a presentation earlier from Mrs Dodds from Thunder Bay, and I was looking for it. I'm just curious because the agenda says it's from the corporation of the city of Thunder Bay, but there's no recognition in her presentation of it being that.
Mr Tilson: So what's your point?
Mr Hope: My point is, is Mrs Dodds speaking on behalf of the corporation or is this paper speaking on behalf of the corporation? It's not indicated and I need clarification from the clerk.
Clerk Pro Tem (Ms Tannis Manikel): When we first got in the paper that I handed out last, the letter signed by the clerk, Elaine Bahlieda, I called her yesterday to clarify whether this would be Ms Dodds's presentation or not, and she said no, they were separate presentations. This one deals with the administration. She asked that I not hand it out until after Ms Dodds had made her presentation so that Ms Dodds would not be questioned on the administration aspect. She didn't feel the alderman could answer those questions or be expected to answer those questions. That's why I handed it out after, but they were both appearing for the corporation of the city of Thunder Bay, I was told.
RAY DESJARDINS
The Chair: We have Mr Ray Desjardins from the Metropolitan Toronto Police Force, freedom of information unit. You look familiar; I think I've seen you earlier today, or was it yesterday? Earlier today, I believe.
Mr Ray Desjardins: I was here today as part of the Ontario Association of Chiefs of Police delegation. I'm on their subcommittee.
I'd like to mention that I think you'll find on the very top of the handouts that I presume are being passed around now a letter that was drafted about an hour ago.
My presentation today should not be seen as necessarily the opinions or the views of the Metropolitan Toronto Police Force board. While the presentation has all sorts of mentions about the Metropolitan Toronto Police Force and the force, I'm speaking on my own behalf right now, albeit as an employee of the force who's worked in this area for five years. I set up unit at the Metropolitan Toronto Police Force. I'm the present coordinator or the commander of the unit. I'm a former vice-president of the Canadian Access and Privacy Association and I'm currently a director of that organization. It's a national organization dealing with access and privacy issues.
I was here this morning and basically, as the documents indicate, my position here is one of support for the recommendations of the Ontario Association of Chiefs of Police's submission. Basically, I'm just here to sort of back those recommendations and corroborate them in that they reflect the situations I've discovered within the Metro Toronto Police Force as far as freedom of information and privacy protection issues are concerned.
I'm not going to read through the whole document. I think that would maybe not be very economical use of your time. You can read. Basically, as I said, it's simply reiterating the positions mentioned at 10:30 this morning by the Ontario Association of Chiefs of Police. I'd just like to go over the main points that obviously I feel strongly about, and perhaps then that would allow more time for questions and elaboration, if anybody wishes.
The first correction or amendment I'd like to see to the act is the solicitor-client privilege. Section 12 of the municipal act doesn't allow municipal police forces to apply the same kind of exemptions to crown attorney-police force information of documents as the provincial act allows the Ontario Provincial Police.
One of the orders issued by the commissioner, M-52, basically states that a member of the Solicitor General's office cannot be seen as a client of a municipal police force. That's the legal problem there. I'd like to see the act change so that the municipal police forces could claim that exemption to protect crown attorney-law enforcement information periodically, when it's called for.
Vexatious requests: I think we dealt with that this morning. I was the police officer Mr White mentioned, the example he used. I think that's been sort of done to death, but nevertheless we feel strongly about it. Someone mentioned in just the last 15 minutes that it's certainly not the normal occurrence; it's not the norm. It happens once in a while, but those once-in-a-while occasions can cause a lot of problems. This whole process is extremely labour-intensive as it is. When you get a vexatious request, it just makes it even more so.
Clause 8(1)(a) of the act, the interfere with law enforcement section: That was touched on this morning. I'd just like to stress that this is the exception to the rule, but there are occasions when these exceptions to the rule loom very large and cause an awful lot of problems and force members of the freedom of information units and members of the IPC and everybody to scurry around trying to find ad hoc mechanisms or Band-Aid solutions, rather than just quote a section or a subsection of the act which would cover us in those situations.
I realize this type of situation could be seen as stonewalling or blocking legitimate access. That's why I stress here that there should be some sort of mechanism to sort of check off with the IPC to determine that this is indeed one of those bona fide cases where this section is legitimately applied.
The appeal process: This was mentioned by the OACP this morning. However, not many police forces have had experience with the oral or verbal representations. Our force has because we're part of what's called the innovation pilot project working group. That mouthful is simply part of a study, a process by the Information and Privacy Commissioner of Ontario to try and cut down the time involved in appeals -- some appeals were taking extraordinarily long periods of time -- and to make things a little more efficient or efficacious.
The oral representations: It sounds great in theory, but in practice I've found there are particular difficulties. My difficulties are documented on page 4. Basically, most of them speak to the fact that there's no record other than the memory of the person who's on the other end of the line and the notes they managed to jot down, should a substantive issue arise.
This has arisen in a case I was dealing with where the issue was an item that was overlooked; at least in my opinion overlooked. I'd like to see, if they're going to have oral representations, having an audio tape or maybe a synopsis that's sent out to the institution prior to the order being issued so that the institution in effect could say: "Now wait a sec, that's not what I said. What I said was...," and that sort of thing. That's the danger as I see it with oral representations.
On page 5, the 30 days standard time period before compelling records disclosure by the institution: This situation can arise once in a while. Nowadays the IPC usually gives 25 or 30 days, I believe; usually 30 days. There are occasions when they'll just give two weeks or 15 days. Their argument -- the IPC, that is -- is they'll always give 30 days when it's a third-party personal information issue. On occasion, one of the points that we're arguing about is whether this is in fact personal information as defined by the act.
In those cases, I think they should be given 30 days, so I think just a simple 30-day period by the IPC telling the -- what I'm talking about now, of course, is the situation where the commissioner's order has ruled against the institution and the commissioner's order says, in effect, "I order the institution to release these records." What I'm suggesting is that I'd like to see it, "I order the institution to release these records in 30 days," and not before and not after, but within 30 days, after 30 days. That way, that would give institutions time to study the order, to discuss it, to seek legal counsel if necessary and possibly go to judicial review if the issue is that important.
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The last point is the question of financial hardship to the institution. I suspect that's an issue that has been dealt with once or twice before on this day or other days. I don't want to sort of overreact or belabour the point, but the budget of my unit was $462,000 last year. We processed 726 official access requests; that is to say, a written request comes in as a bona fide request, it's accepted, it's in writing, they say, "I want this information pursuant to the act," it's assigned a file number and the analyst gets on with it.
To give you an idea of the trend, in 1991, which was the first year of full operation for the municipal act, my unit dealt with 351 requests. In 1992, we dealt with 535 requests, and as I said, we finished the year with 726. We've got about 40 or 41 to date in 1994. So it's a growth industry; let's put it that way.
The staff who deal with these issues: There are nine of us, and actually effectively eight because my assistant is on pregnancy leave right now, so that leaves us with eight people, the same as we started with back in 1991. Our workload has increased about 106%. We've got to the point where initially, of course, we're learning to process the requests, we've learned shortcuts, we've learned more efficient ways of doing things, but those kinds of slack have all been taken up and we're up against the wall right now; we really are.
As many of you probably realize, at the local municipal level here in Toronto, the police force budget is in very sad shape and we're certainly not about to get extra staff. So I'm thinking that if we can have realistic cost recoveries, I can go to my bosses and say that if I could have a few more staff members to cope with the load, they can be at least partially compensated for by the recovery of fees.
Those are the recommendations. As I've said, I'm not going to read the whole thing. It's there and most of it was covered by the points raised this morning. I thought I'd leave a little bit more time for questions.
Mr Hayes: Nice seeing you again.
Mr Desjardins: Thank you, sir.
Mr Hayes: Actually, as part of the question I asked this morning, maybe a little further on that, on dealings with the media, can you give us some examples on how the freedom of information could actually hinder investigations? What kind of guidelines do the police use? Either way, I guess, even without the freedom of information, how far can you really go? How much information can you give out without it actually hindering police investigations?
Mr Desjardins: Usually not a lot of information can be given out when there's an active, ongoing investigation, as opposed to one that's been dormant for a number of years or a long period of time and someone's doing historical research on it or whatever. The funny aspect is -- I shouldn't say "funny" -- that we anticipated a deluge of requests from the media back in 1991 when the act started up, but in actual fact we've had very few requests from the media.
One of the reasons is the 30-day time period, of course. For the Toronto Sun or the Toronto Star to jump on an item that's hot, that's topical, that's just happened, they want the information right now, and everything under the act is done by correspondence. We get the request in and we send a letter saying, "We've received your request and assigned a file number. If you have any questions, contact this analyst." We have 30 days to either respond with the information or give them reasons why they're not getting the information and notify them they have the right to appeal to the Information and Privacy Commissioner of Ontario.
Usually, we find that the majority of requests are for old investigations, investigations that have been basically dealt with by the courts or there is no more looking for a suspect or an accused. We get a lot of requests from people who are involved in crime, from witnesses, from bystanders, from the victims themselves and, of course, from the criminals, the people who are in jail or the people who have been accused and convicted of the crimes.
We get a certain amount of letters from lawyers. I guess we can't say there's any really typical request -- all sorts. But in terms of criminal investigations, usually the request is from somebody who has been involved either directly, indirectly or even in a peripheral way in the police investigation.
Sometimes we get requests: People see three police cars parked at the end of their street on a Thursday night and they wonder what it was all about, so they make a request saying, "I saw three police cars," in which we get the officers' memorandum books, the reports that were submitted, if any, the computer tapes saying who was at the scene. We'll give them basically anything like that. That's no problem. They get an awful lot of information.
Mr Hayes: You talk about what your organization is and what it has cost you already, $462,000, and you only recovered about -- am I reading that right? -- $300.
Mr Desjardins: That's probably about right for this year. One of the problems of the cost recovery, the way the act is structured now, is the two hours free search time and the strict limits on what we can charge. The Information and Privacy Commissioner of Ontario takes a very strict interpretation of the sections and the Ontario regulation that govern costs.
One of the facts that really concerns us is that if we get a file, for example, of 500 pages, which is not typical but is certainly not unusual either, in going through all those documents, an individual, a human being, has to sit down and read through every line to guard against the inadvertent release of something which could harm someone, a witness or an informant, that sort of thing, whereas the IPC tends to take the view that an experienced employee of the institution should be able to look at a document like that and say, "Yes, no, first paragraph" and go on to the next page.
That's not the way it's done. The bulk of the time is spent in reading. It's a very tedious job. The analysts who work on this do an excellent job for our organization, but it's very tedious, it's very labour-intensive and it's not readily adaptable to computerization or electronic mechanization, if you will. An individual has to sit down and read through these. We've only recently had a new piece of equipment, which is a photocopier-editor that takes out sections of text when you circle it with a red pen. in the first two years of our operation, it was black markers, felt tips, blacking sections out, photocopying them, holding them up to the light, finding out they're still legible, black-marking the photocopy, putting it through again. It's just awful.
Mr Hayes: When you talk about the number of requests, the 726, how many of those would be multiple requests? Would there be a number of those that would be, say, 20 at a time or 10 at a time or whatever?
Mr Desjardins: Not at a time, sequentially; Maybe 50 or 60 -- that's high maybe -- at the outside.
Mr Hayes: Let me get back to the victim information, when people are asking, whether it be media or anyone else or lawyers. Just how far would the police force really go? I know you have to certainly protect the victim.
Mr Desjardins: As far as victim information is concerned, we won't give out personal information of the victim without the victim's permission. This is sort of a concept that some, especially in the press, have trouble coming to grips with, the fact that there's still a privacy interest in information, notwithstanding that information was out in the public at some time, at one point.
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For example, there is someone who was arrested or convicted of an offence last year, your neighbour, for example, somebody who moves in on your street, and the rumour is that this guy was involved with the police, so you want to check up on him. You contact the force and say: "I understand Mr and Mrs So-and-so were involved with the police back in August 1987. Can you tell me everything about that?"
Notwithstanding they may have been convicted in an open court back in August 1987, there's still a privacy interest in protecting that information. If the person knew which court it was in, they could go to the Attorney General and say, "I'd like the court dockets for this date in August," and find out. If they come to us, we'll refuse to give it to them. We'll say, "We're sorry, we can't give you that information." In effect, we'll refuse to confirm or deny the existence of any information.
We protect personal privacy very strictly, and that's the message I try and get across to people who aren't familiar with our operation, that the majority of our work is spent protecting the privacy of those with no connection to the police force. A lot of it's even people who are in jail; we protect their privacy too. A small percentage of our time is spent actually protecting police operations qua law enforcement, or that sort of thing, if we blow an investigation; very little of it, actually.
Mr Hayes: How many requests do you get from the crown?
Mr Desjardins: From the crown? I don't think we've had one this year directly. Sometimes we transfer portions of requests to the Solicitor General or we back and forth with -- they get requests, for example, that involve a joint --
Mr Hayes: Requests that go through the crown to you.
Mr Desjardins: From the crown to us, directly from the crown?
Mr Hayes: Yes.
Mr Desjardins: I don't think we've had one in 1993 from the crown.
Mr Elston: I'm interested in the crown brief and the relationship of Metro police, which of course will cover any municipal force with the crown. Would it be enough to make an amendment which said that you will be considered for the purpose of this act a client of or --
Mr Desjardins: Yes, that's how --
Mr Elston: That's basically how the OPP are seen? Is that it?
Mr Desjardins: There's an anomaly in this, and I don't know, but I don't think the drafters of the legislation realized that at the time, so it's kind of an anomaly. It's not the fact that we're going to resort to it every day, but there are occasions when there's sensitive information passed back and forth between the crown's office and the law enforcement investigators. If we didn't have any other exemption to protect that, we'd be at a loss because we'd say this is obviously crown privilege, but maybe not so obviously because of order M-52.
Mr Elston: What about the study now which is talking about total disclosure material? In one way, I suspect the crown and the force now are actually in a position where if a defence counsel asks or requests, you probably feel obligated to provide, but are you worried about somebody other than the defendant's agent or counsel asking for this? Are you worried, for instance, about perhaps counsel for an alleged victim or maybe just somebody out of the newspaper or something looking for this material?
Mr Desjardins: Yes, it's possible. Since the Martin report and the Stinchcombe decision, there's been even more and more emphasis on full disclosure, but they're two separate processes and it's really necessary to see them as such, freedom of information requests under the act and full disclosure.
We quite often get requests from lawyers or individuals or agents for individuals asking for all information pertaining to this certain investigation in which they were charged or convicted. We'll respond and supply them with a certain amount of information, but we'll protect the personal information of third parties. Their lawyer will tell us that he had this at full disclosure at the trial or would have had this at the full disclosure at trial. Either way, our answer is basically that that may or may not be true; it's not our job to go checking in the crown files and see if it was disclosed or not.
We deal with a very specific piece of legislation, the Municipal Freedom of Information and Protection of Privacy Act; we don't deal with full disclosure. That's the way we deal with that. Basically, people will not get information from us that they would have had in their full disclosure at some point in the past.
On the other hand, I mentioned 726 official requests. We get a lot of phone calls from unit commanders and other police officers saying, "What do I do?" We've had quite a bit of activity on full disclosure. We've been involved to the extent with the courts officers that we tell them: "If it's full disclosure, if somebody asks you for something from the crown attorney's office and he says it's necessary to comply with the full disclosure process, give it to them. Whatever they want, give it to them." That's been my instructions from our legal people.
I tell the officers, "If you have any particular concerns about the safety of a witness or anything like that, or the integrity of another investigation, make your comments known to the crown attorney's office." But after that, it's up to him. If he wants to give it to the defence, even though you think he shouldn't, it's the crown attorney's call.
Mr Elston: In relation to the force itself, have you had inquiries from many people trying to figure out, for instance, what equipment you're issued with, what you have? There has been quite a degree of debate about, for instance, the issuance of new side-arms for a while, and then the issuance of being outgunned, I think, as it was described by some people. Have people been trying to take advantage of that to determine exactly how your force is equipped to deal with your surveillance and day-to-day policing?
Mr Desjardins: Yes. We've had a number of requests where they've asked for equipment. The ones that I can remember are that we've had several requests for the radar that the traffic officers use, the frequency band it operates on, the cycle, that sort of thing.
Mr Elston: Do you give that out?
Mr Desjardins: Actually we do, yes. We checked with the radar people at the police college and they said this is a commercially available item, that it's not secret or confidential.
We've had requests for tenders for our computer contracts and that sort of thing. We had requests from someone just recently who wanted the entire procedures manual of the Metropolitan Toronto Police Force and our rules and regulations. The rules we gave him are available to anybody down at the great Metro Hall for a payment of $10. It's a Metro bylaw, so, sure, it's public. You can have it for $10.
The force procedurals manual: We have to deal with that on a case-by-case basis, and that was an interesting case because there we had virtually no cost recovery whatsoever, yet the manual's this thick. It means going through each chapter and checking with the appropriate authorities.
The section that deals with major frauds, for example: In my 23 years on the force, I've never been on the fraud squad, so I've never dealt with major fraud investigations. We have to have the analyst check with the fraud squad guys. So all that sort of back-and-forthing can't be charged because what the IPC sees it as decision-making, we see as information gathering, but we can't charge for that. That, in my view, is one of the invidious aspects built into this.
Mr Elston: We had a presentation a little bit earlier today from David Giuffrida, I think, who was here after your earlier appearance. David is a patient advocate office director, I guess, with the Ministry of Health. He had suggested that something that would help with some of the requests would be just to charge a fee of $5; perhaps a fee of $30, on appeal. Do you have any thoughts on that at all?
Mr Desjardins: Yes, I think it's a great idea. Actually, the imposition of a flat $5 fee, or as you say, a $30 appeal fee, would probably, in many respects, render superfluous the vexatious request clause, because these people who keep coming back over and over and over must have a limit to their resources too, so it would at least make them think twice.
Mr Elston: You wouldn't have as much of a concern about that type of application. Have you ever had anybody who has applied for information, you've sent them out a sort of -- what do you call it? -- an estimate of cost --
Mr Desjardins: An interim fee estimate.
Mr Elston: An interim fee estimate, yes -- who has actually come back and said, "Listen, I really would like this but I can't pay for it," and you've waived it?
Mr Desjardins: Yes.
Mr Elston: Does that happen often?
Mr Desjardins: Fairly often -- I shouldn't say fairly often. It happens once in a while where the person is in dire straits. The charges for which we can legally charge would amount to maybe $12 or $13, and our office policy is not to charge for anything up to $10 because it costs us more to recoup that. In those borderline cases, it depends how busy we are. We'll say, "Okay, forget it." We'll give it to them. We can't be bothered stopping the thing. There are cases where people write in -- not that they're obliged to by the act; they're certainly not. We can't ask anybody why they want the information and they don't have to tell us. But sometimes they write it in; they say they want it for this purpose or that purpose and it seems very laudable, and we say fine, yes.
Mr Elston: Just one last question, and that is about potential costs of media, for putting forward the answers to requests, and Braille, for instance, for manuals and things like that. Have you any ability now to provide people with Braille or tape or any of that?
Mr Desjardins: Tape, yes; we have audio tape and videotapes. Now and again we get requests from people who are arrested. They want all the records pertaining to that arrest, including the booking tape, the videotape where they come in and they say, "Empty your pockets, and state your name." So we have to dub a videotape and give them a copy of it.
The Chair: Thank you for your presentation again.
The committee adjourned at 1631.