Monday 17 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


*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

Ramsay, David (Timiskaming L) for Mr Morin

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:

Management Board of Cabinet:

Charlton, Hon Brian A., chair

White, Frank, director, freedom of information and privacy branch

Platt, Priscilla, legal counsel, freedom of information and privacy branch

Clerk pro tem / Greffière par intérim: Manikel, Tannis

Staff / Personnel: Swift, Susan, research officer, Legislative Research Service

The committee met at 1407 in the Trent Room, Macdonald Block, Toronto.


The Chair (Mr Ron Hansen): I'd like the standing committee on the Legislative Assembly to come to order. Today we're going to be on the hearings on the municipal freedom of information act. Our first presenter will be the Honourable Brian Charlton, from the Management Board of Cabinet. Welcome to the committee.

Mr Murray J. Elston (Bruce): He is the Management Board of Cabinet.

Hon Brian A. Charlton (Chair of the Management Board of Cabinet): No, just the Chair.

First of all, good afternoon. I'm the minister responsible for the Municipal Freedom of Information and Protection of Privacy Act. Thank you for allowing me a few minutes with the committee. I understand staff of the ministry will be available this afternoon for technical comments on the legislation.

I appreciate very much this opportunity to appear before you this afternoon as you begin your hearings and representations and views about the municipal access and privacy legislation. I would like to compliment the work of the standing committee for its comprehensive three-year review of the provincial Freedom of Information and Protection of Privacy Act in 1991. Many positive recommendations were made, such as expanding coverage of the act to include more government institutions, expanding areas of access to the public and streamlining the procedures in the act.

Because of the government's priorities at the time and this upcoming review of the municipal act, the government decided that once this review is completed it will consider whether or not amendments should be made at the same time to both the provincial and the municipal acts. As it is your committee's role to assess what changes could be made and to recommend amendments to the Legislature, I'll offer some brief comments on how the municipal act is working to date and identify some issues that I hope the committee will address in its recommendations.

As you know, the aim of the act is to provide the public with access to government information while at the same time to protect the personal privacy of individuals. In general, I believe the act is working well.

On the access side, a great deal of local government information which previously may not have been available to the public is now accessible; for example, expense accounts of employees, the dollar amount of many severance agreements of senior government officials, the salary range of all local government employees, and routine health inspection reports such as restaurant inspections. In many cases, audit reports and various information about properties, including work orders, are all now accessible as well.

The privacy side has also been effective in ensuring that only necessary personal information is collected and then is only disclosed in accordance with the act; namely, with the individual's consent or only to employees within the institution who must see the information to carry out their duties.

In assessing the positive effects of the act, I must compliment the work of the Information and Privacy Commissioner, Tom Wright. His office has effectively streamlined the appeal procedures, resulting in significant reduction in the time required to process appeals for both the provincial and the municipal acts. The municipal freedom of information coordinators must also be recognized for their hard work and commitment to the effective application of this act.

Within my ministry, the work of the freedom of information and privacy branch demonstrates the importance I attach to this legislation. The staff of this branch conducted approximately 50 workshops throughout the province last year. These included teleconferences, in an effort to provide cost-effective training in northern Ontario. The branch also produced a procedure manual for all local government freedom of information and privacy coordinators and a summary of all significant orders of the information and privacy commissioner.

My ministry is committed to providing support that will help institutions respond quickly and consistently to requests. Last year, local government institutions received over 7,000 access requests. This indicates the high level of interest among the public regarding information about their local governments. I'm pleased to report that local governments responded effectively to these requests. Over 90% were responded to within 30 days. All requested information was released in 54% of the cases, with partial access being granted in another 34%. The majority of appeals were resolved to the satisfaction of all parties through mediation.

With respect to personal privacy, the first comprehensive national study in Canada took place last year to find out how Canadians feel about personal privacy. The findings indicate that the vast majority of Canadians place a high value on their privacy. With the advancements in technology, there is a greater concern about privacy issues and Canadians expect government to ensure their privacy is protected, particularly when it is the government collecting their personal information. We are committed to meeting this expectation.

While it is clear that our access and our privacy legislation is working and has made a positive difference for many individuals and groups, I believe we can improve the legislation in a number of areas. As minister responsible for the act, I'm particularly interested in receiving the committee's view on the following issues:

First, frivolous requests: This is an issue that was looked at by the standing committee when it reviewed the provincial Freedom of Information and Protection of Privacy Act. The concern some institutions raised is that when a local government receives a frivolous request, there is no remedy available. Currently, the local government institution must process it the same as any other request.

Increased workload is another important issue. Local governments would welcome opportunities to streamline the process for responding to access requests. The need for the process to be more cost-effective is of particular interest at this time, when we are all faced with financial and staffing constraints.

There are a number of concerns about fees. The legislation permits certain fees to be charged for requests dealing with information other than personal information. A municipality or a local board can charge for photocopies or for time spent beyond two hours searching for a record. However, the fees do not cover the full cost of complying with requests. For example, in 1992, the total amount of fees collected by all local governments was less than $42,000. The legislation does not permit fees to be charged to individuals for access to their own personal information. While the legislation's purpose is to provide access to general records, the implementation of this principle should not be unreasonably expensive for the operations of local governments.

Where the act allows for fees to be charged, the government institution has to calculate a detailed fee estimate. The requester can appeal the fee estimate and some institutions are concerned about the level of detail needed to justify fee estimates at the appeal stage. This ties into the previous issue about the amount of time and work involved in responding to requests.

I would be very interested in the committee's views about fees and about fee estimates and about, in general, how we handle this whole issue, which becomes an issue of cost to our local governments and some other local institutions.

Another issue relates to citizens' groups expressing the view that the legislation should be expanded to cover institutions such as hospitals, children's aid societies and universities. The views of the committee on what organizations should be covered by the legislation will also be important both to me and I think to the overall discussion.

Citizens' groups have also expressed concerns about an inability to obtain records generated in closed local council and board meetings. Local governments are allowed to hold closed meetings in various circumstances. The concern is that the exemption which allows local government to withhold records generated at closed meetings is very broad and it may need to be more clearly defined.

The last area relates to the provisions of the act regarding the disclosure of personal information. For example, one issue is whether or not mailing lists should be accessible. Another issue that has been discussed is the relationship between the privacy protection rules and the personal information that is a matter of public record. Institutions do not have clear guidelines as to when they should make personal information a matter of public record.

As a further example, elected officials such as municipal councillors and school trustees have stated that the rules regarding their access as elected officials to information, particularly personal information, in the files of their institution are vague.

I look forward to your comments and your recommendations about how the act can work better with respect to these concerns and to other issues which undoubtedly will be raised during the course of the hearings. The work of this committee presents an excellent opportunity for cooperation among the three parties, who all, I think, support the principles of the act.

I've written to my cabinet colleagues to let them know about this important review. When the review is completed, I will seek their assistance in determining where improvements can be made to both the provincial and municipal legislation, and your comments as a committee will be important to me in that process.

All governments in Canada are facing the challenge of earning and keeping the trust and the respect of Canadians. Accountability and openness is essential for government integrity. One of the best ways to open up government is to ensure that our freedom and privacy legislation works the way it was intended.

I wish you well in your deliberations and I thank you for the opportunity to be here. I'll be available for a short period to answer any questions you might have as well as staff being here to deal with specific, technical questions.

The Chair: Mr Elston, would you like to start off with a question?

Mr Elston: It's basically a bit of a run-through of what's happening. I guess it would be interesting for us, if we have to talk about how many fees have been collected, as to how many people have forgone having their requests processed because they found the fees to be too large.

There are other stats that have to be brought forward to us before we can make a decision about whether or not the fee issue is a big one; whether or not it actually pays for the process they have to go through to find information for individuals.

I know you said they only collected $42,000, but I've had complaints from several people saying, "You've made it impossible for me because the amount of money that was requested of me up front before we started to get our questions answered was too high." It seems to me there has to be, again, a bit of a balance in relation to that as an issue as well.


There are an interesting couple of complications that I'm noting. It used to be, particularly on municipal business, that if a ratepayer went to the local council, you could ask and you would be told right up front what the reeve was paid, what the deputy reeve was paid, what the councillors were paid, what the weed inspector was paid and the whole works. It seems now that there is a bit of a split in the municipal field as to whether or not that information is and should be available.

My view is that when this was brought forward there wasn't any intention to change the practice of local governments in being accountable to their ratepayer groups. It seems strange that when money or salaries which are to be paid to local representatives, either school trustees or councillors or whatever, have to be made in form of a motion passed in council itself, for some reason we would determine that it was appropriate that those numbers be withheld from the ratepayers when they make the inquiry.

I'm hoping, by way of question or maybe I should ask, if you, as the person responsible for this act, have heard many complaints about that particular sort of problem and what, if anything, should be done. Should we make an amendment? It seems to me that it should be very clear that a ratepayer should figure out what each elected official that they're going to be voting for for each position is going to be paid. It also would seem to me that this would be the case as well for per diems paid for people showing up for special meetings. I wonder if you have a comment on that particular item.

Hon Mr Charlton: Let me deal first with the fees one and then come to the council salaries question. The fee: The issue you've raised around fees and whether or not fees become a deterrent to some to even proceed is a good one and it's part of the discussion that we have to have. I don't know if the staff would have all of those statistics available this afternoon or not, but I'm prepared to ensure that the committee gets the opportunity to look at those overall numbers as best as we can provide them.

I don't know the extent to which we have a clear record of applications at the municipal level that are not proceeded with, but to the extent to which we can have a look at that, I'm certainly prepared, because I agree with you that on any issue like fees, it's a balancing act that we have to proceed with here. On the one hand, we can't unduly burden the institutions of this province with costs that are unreasonable. On the other hand, if we were going to try and provide access to the ratepayers of this province to their local institutions, then we've got to find that balance. So I don't disagree in that respect.

I'll have to be frank with you, although again there may have been some complaints that I'm not aware of: I haven't had any complaints about the second issue you've raised, which is the access of ratepayers to actual council salaries. My understanding, in most of the municipalities that I'm familiar with, is that they deal with their salary issues, as you've suggested, at a council meeting, and not at a closed one either. Therefore, the salaries of council and mayors and the elected officials are on the public record. It's the issue of some salaries in the staff of our institutions that I think becomes the issue that has to be pursued.

Mr Elston: That raises a secondary question in that regard then. How far do you go once you disclose some salaries for elected officials? Do you disclose the salaries for the clerk administrator or for others? As a ratepayer, if you are to go in and ask about budgetary issues, constraints, which all of us are living with these days, how do you determine that everybody is participating fully and fairly with each of the others?

I think if there's one problem right now, because of the economic difficulties we're in, there is a fair degree of suspicion out in the hinterlands that some get to participate fully in their restraints and others get to escape, by one means or another, from the impact of it and it has a whole lot to do with the fact that people are prepared to join in the battle but they don't want to see others escaping without joining in the full cause as well.

Hon Mr Charlton: Let me respond to that comment in two ways, Murray: one, with specific reference to the review that this committee will be doing. I'm certainly interested in hearing the committee's comments about the publication of salaries of officials in publicly funded institutions. But in addition to that, you'll recall in the fall when the Minister of Finance announced the change in the regulations under the Securities Act in this province and announced that the top five salaries in publicly traded corporations would become public. I was instructed by cabinet -- and I think he made comment on this at the press conference after his announcement -- to look at both the provincial and the broader public sector institutions in this province and what it is we would have to do to pursue a similar line. So I'm more than happy to hear this committee's comments in that respect, but the issue is being pursued in a parallel track, if you like, as well and my officials will be coming forward to me with some recommendations, hopefully shortly.

Mr Elston: Maybe just by way of a couple of final comments more than questions, one dealing with your statement which talked about frivolous requests and how do you deal with them. If I might just make an observation, what is frivolous to me isn't necessarily frivolous to someone else. I would be very, very concerned about trying to put a definition around what would be deemed to be a frivolous request. I know, for instance, that sometimes in public institutions personal disputes come into play when people have a difference of opinion over a particular issue. So to try and lever, sometimes people make a large number of requests and at some point, while they may all be relevant and whatever, some other person or official may very well take it on themselves to say, "This is just trying to get even and it's frivolous as far as I'm concerned."

Those types of battles I think we would have a very difficult time trying to handle by way of an amendment in this act and I would very much have to receive a lot of information to change my mind about having a section that says anybody can resist if they believe a request to be frivolous, because that would mean you'll get all kinds of complaints, I think, to the commissioner and other places and we'll find that the backlog probably shows up someplace else.

Hon Mr Charlton: In that respect, I again don't disagree at all. Because it's an issue that's been raised with us fairly frequently by the institutions that are covered currently by the act, I think it's something the committee's going to have to consider. When I say I'm looking forward to hearing your comments on that, I don't want to prejudge the committee's conclusions, and if those conclusions are that there is no effective way to define frivolous, that's fine. I just wanted to signal that's one of the issues that we've certainly been confronted with by a number of the institutions out there and that most certainly will come before the committee.

Mr Elston: It may very well be that one or other of the members here will be able to bring something forward that will convince us as a committee, that would act as a good amendment for frivolous requests, but at this point I think it would be quite difficult.

A couple of other things that I note, one being the request of whether or not this legislation should be extended to hospitals and others. When this bill came in, the hospitals and others were excluded because there was to have been a movement by the Ministry of Health at that point to upgrade its own freedom of information system inside hospitals, as I recall. I think Mr White is here in the audience and I remember we had this debate at that point and I think we at that stage acquiesced to them having a time frame that would allow them to work on their own precise program that would allow access.

From my point of view, if we are to consider whether or not we extend the legislation, it would seem obviously necessary that we have officials from the Ministry of Health or any other ministry that is responsible for -- I see the parliamentary assistant from the Ministry of Health is actually here in Vice-Chairman capacity today. But we should have people who are responsible as ministries for those institutions to whom we might consider extending this. I would not at this stage want to do that without having the material from those places.

If in fact we find that there is an unwillingness to move to bring freedom of information to bear in those institutions, then I think we have an initiative to make the report here that says that there is a time limit on them to bring forward their freedom of information or that some other arrangements be made between your Management Board officials and that ministry to make sure that something comes about. So if we are seriously to consider the options of extending, I would ask that we consider also bringing in representatives from those ministries to speak to us and to present us with their observations on this.


The final observation -- it's not the only one I'll have, but at this stage I think it's probably the only one that really needs to be made; it's sort of on the top of my head at the moment -- is with respect to school boards and access of parents to information about their children, the old issue of whether or not the school can allow a photographer to take a picture of somebody who wins the local events for the school and have them printed in the newspapers.

Somehow or other, as is put in at least one or two of the letters that have come forward and have been previously circulated to us, we've got to have a bit of common sense about this. I still have a concern about how my daughter, who is now more than 16 years of age, is doing at school, and having access to the information without getting sort of her consent. I mean, I don't have to go around -- she shows her report card and the whole works, but there are a number of parents who are shut down from knowing how performance is going for their offspring at schools.

In some ways I have a sense that more walls have been erected since this legislation has come about than we would have hoped. There have been a few stumbling blocks which have been put in the way of a smooth flow of information which previously was made to individuals in the field. I hope during these hearings that we have those incidents highlighted for us to see whether or not there was a mischief being played on the public and its access to information in that sense in the name of protection of privacy.

I told individuals that I was going to be sitting on the committee for the next couple of weeks listening to the hearings on the freedom of information and protection of privacy for municipalities and others, and they said, "Oh, boy," knowing that it probably wasn't going to be the most sensational or otherwise. Yet I find this work to be the very basis of the institutions which we've served for some time now.

Mr Sterling over there actually laid a lot of groundwork, because I found there was a lot of ground to cover when I ultimately came on to the cadaver that he left when he took up opposition politics. But all of us understand the importance of this, and yet it's only when you get in the middle of it by either making an application or trying to make an application for a free flow of information that you understand how basically important this stuff is and how easy it is in some cases to stymie the free flow of information. I'm hoping that we can improve this without unnecessarily complicating the world that we now find ourselves involved in.

I'm looking forward to the hearings as well. There will probably be, at least from the letters, some interesting issues for us to consider. I hope we will be able to get, as much as possible, hard, factual data for us to base some of our opinions on, as opposed to some of the more artistic application of anecdotal information.

Mr David Tilson (Dufferin-Peel): I'd like to thank the minister for summarizing some of the issues that have come to his staff's attention that the committee can consider. I guess my immediate observation with this piece of legislation, the municipal legislation or the provincial legislation, is asking the question whether or not we've gone too far. In other words, there's the issue of privacy versus the issue of accountability.

I look at the clippings this morning. On the front page of the Toronto Star there's an article, "`Fat Cat' Toronto Battles Payroll Bulge: Critics Say City Let Bureaucracy Grow Out of Control." One of the difficulties that members of the public have drawn to my attention, whether it be in the provincial field, looking at deputy ministers or assistant deputy ministers or people over $40,000, whatever the figure was, or people in the municipal field, which was an issue that Mr Elston had touched on, is looking at what their senior people earn. You can't find out. You can find out a range. You don't know, really, anything. You don't know what their perks are. You don't know what their salary is. You -- when I say "you," I mean members of the public -- may have some concerns about, I suppose, their job and what sort of work they're doing, but that's all.

In fact, we as politicians don't know. I have absolutely no idea what the civil servants are making. The municipal politicians, unless they're told personally, have absolutely no idea. Okay, ranges. Ranges have come to me as being totally unacceptable. Again, I understand that if I were a senior civil servant and you wanted to know what my salary is, it's none of your business. But, on the other hand, you have to look at the issue of accountability.

I think there was general acceptance of this legislation by all three parties. I'm not too sure what it was -- I wasn't around then -- but I gather there was general acceptance of the philosophy of the legislation. But have we gone too far? It's the headline, the fact the city of Toronto has gone out of control, or the problems that this government has had with the social contract legislation where people are losing their jobs. And there are people losing their jobs, particularly at the contract level.

Mr Pat Hayes (Essex-Kent): A lot of jobs saved, though.

Mr Tilson: That's fine for you to say, but there's no question that there are problems and there are people in the lower echelon of the civil service who are concerned about those salaries that are being made, the alleged salaries that are being made, because they don't know, and the perks that are coming. Every once in a while we have a Diamond Dave story, which was one that happened when I first came to this place, and information gets out, the media grab this stuff. That's the only way you're going to find out.

My question to you, notwithstanding the issues that you've raised, and certainly I think you've probably summarized most of the concerns, is the overall issue of accountability. Are we, as politicians, whether provincial or municipal, or school board or sitting on children's aid societies, whoever we are, really accountable when we have no idea what our civil servants are making?

Hon Mr Charlton: I thought the issue had been addressed a few minutes ago, but I'll go through parts of it again and add some things to it.

Thirty years ago -- I'm not sure how the municipalities or school boards handled it in those days -- the salaries of everybody in the Ontario public service were published.

Mr Elston: Ten years ago they were all published.

Hon Mr Charlton: No, no, no -- 10 years ago over $40,000, and 30 years ago everybody was published.

There have been successive administrations in this province that have made decisions that precede us. You've raised the question of whether perhaps those changes have gone too far, and perhaps they have. That's exactly why I said I'd be interested in hearing this committee's comments on the question of salaries and accountability that's attached to those salaries. As a result of a number of other things that have been happening -- I don't remember the exact date; late October or early November -- the Minister of Finance announced changes to the Ontario Securities Act regulations and announced that the salaries of the top five employees in all publicly traded corporations in this province would be made public. At the same time cabinet directed me to look at similar kinds of initiatives across the publicly funded sectors in this province -- other than the federal sector, obviously, where another government has jurisdiction -- to look at provincial salaries and municipal salaries and school board salaries and hospital salaries and university salaries and all of those other publicly funded institutions around which the question of accountability to the public, the payor, is an issue.


I think it's an extremely important issue -- I don't disagree with you at all in that respect -- and I intend, when my officials come forward with recommendations to me, to pursue the issue. But I would also be interested in hearing this committee's views on that issue in its report as well, because you will hear from an interestingly good cross-section of both officials and the public in your hearings, and I think will be probably in an excellent position as a committee to consider both sides, if you like, of the arguments around that issue.

I refer you to the Minister of Finance's announcement about the salaries of the top five paid people in our publicly traded corporations. That's an issue on which the Ontario Securities Commission held hearings two or three years ago. Feelings on both sides of the issue, in terms of investors who were seeking the accountability and of salary earners who were being asked to be accountable, were very strong, and I think it's useful for your committee to be able to comment to us in hopefully fairly unbiased or less political terms than is often the case in many of our committees. This is an issue that I think all of us have an interest in seeing done correctly and I don't disagree that we've got to get on with doing it.

Mr Tilson: You've made this statement before; I think you made this statement some time after the Treasurer, or Finance minister, made his announcement. There may be merit in what he said, although when I brought a private member's bill forward to declare the top five salaries of unions, some of the members, two of whom are here in this committee right now, went berserk.

Mr Randy R. Hope (Chatham-Kent): No. We told you they were already public.

Hon Mr Charlton: They were public to the people they should be accountable to, the members of the union.

Mr Tilson: That's part of the issue, the issue of accountability, and I appreciate your saying you're working on it. Can you tell us what stage you're at? The Treasurer seemed to have no difficulty announcing that without notice with respect to the public corporations, but can you tell us what stage you're at now with these deliberations that you're proceeding with?

Hon Mr Charlton: All right, I have to pick up on some of your comments.

Mr Tilson: I thought you might.

Hon Mr Charlton: My answer will lead to your last point, though. Firstly, the Treasurer didn't announce anything out of the blue. As I said, a very extensive consultation went on, handled by the Ontario Securities Commission, over the course of about a year and a half. There were papers released, there were all kinds of responses, there were hearings on the issue. But having said all that, there is a cabinet process, as you well know, and once the Minister of Finance had received the recommendations of the securities commission he had to decide whether to accept those recommendations, or one of the options in those recommendations, and proceed through the cabinet process with them, which he did.

I've already said that my officials are working on the issue of salaries in the broader public sector. I hope that within a matter of weeks they will have some recommendations to me. In addition to hearing the recommendations from my own staff, I would be interested in hearing comments this committee might have about that issue. One thing that is clear is that we will require some legislative changes to proceed to deal with the salary questions in both the OPS and the broader public sector because of the two acts that we're talking about here.

Having said that, I am prepared to consider legislative amendments that are suggested around the salaries question by this committee and by my officials and to report back to cabinet, which directed me to do this work.

Mr Tilson: The final question I have is with respect to what previously was the law, publishing salaries over $40,000. Have you addressed whether the government should return, not necessarily to $40,000, but a certain figure?

Hon Mr Charlton: That's part of, or at least could be part of, what we've asked the staff to come back and recommend to us, yes. We've asked them to look at the question of salaries and disclosure of salaries in the public sector and what would be a good model to pursue that under. As I've said, I'm also interested in hearing from the committee in that respect and I'm prepared, once we've agreed on a package, to proceed with the legislative changes that are necessary to deal with that. I first have to get a legislative package approved.

Mr Norman W. Sterling (Carleton): I just want to indicate that I'm interested very much in the delay issue. I have found that the freedom of information act provincially has worked more as a shield for the government than as an opening of government and an accountability of government. Even when a member or a member of the public can identify a document specifically and that document lies on the table of a bureaucrat or a politician, our act gives, in my view, far too liberal opportunity for the government to delay the release of that document. In politics, a document today may be worth nothing tomorrow. Timeliness, I think, has to be dealt with in terms of both this act and the provincial act.

You can be delayed up to 60 days under our present act. Sixty days is far too long. It exceeds the time of an election writ period. My view is that timeliness is a very, very important issue in terms of dealing with the release of information.

I think we should look at defining certain kinds of requests which have to be answered in a much shorter time frame, particularly when the person asking for that information can identify a document and that document is known to be there.

The second area which I'm interested in is whether or not we should be taking freedom of information another step. Under the present legislation there is no requirement for any level of government to collect information in a form. I think this has resulted in the fact that there is no more accountability now in government, because the presentation of information is often as important as the information itself.

It's my view that there should be, particularly in the municipal area, possibly in the school board area, requirements by interested citizens in collecting information and presenting it in different forms, in comparative forms. I should, as a citizen, be able to compare the costs of educating a student in the area where I pay taxes against other areas in the province which have similar kinds of population and similar kinds of population mixes.

There's no requirement under our laws today to do that, and I think that both at the provincial level and at the municipal level we should pay some kind of attention to formulating ideas as to how the form of information should be collected; in other words, trying to put forward some kind of process which would allow people to be consulted in order to put that information in some fair form but in a form which the citizenry can understand.

I'm very, very dissatisfied with the way municipalities are required to account to the public. They present a balance sheet at the end of November, I believe, each year, which means absolutely nothing to anybody. They're produced in newspapers across this province. Quite frankly, it's a waste of money in terms of producing them because usually a week or two before that budget is produced there are a number of motions made in councils across Ontario which shift money from one account to another account and other line items so that it will conveniently look all right when it is published.


Therefore, I really believe that in my view there are two issues that are important. I don't find the fees issue that important. Maybe it is for some people. I advocated, when we were dealing with freedom of information at the provincial level, that MPPs should not be required to pay fees for obtaining information. I would extend that in the municipal area to people who are elected as well, because they are accountable in a fashion to the public if they abuse the system by requesting too much information.

I would go along with some kind of exemption for school trustees or municipal officials or municipally elected people who wanted to obtain information from their own municipality under the freedom of information act from having to pay fees.

I do think fees have a role. I've always been a supporter of some level of fees because there are abusers in our system that have to be turned back. We have an abuser at the provincial level, I understand, who has cost the provincial government hundreds of thousands of dollars to date. Individuals like that have to be dealt with.

So I'm very much interested in the delay issue primarily. I'm also interested in perhaps exploring the next level of freedom of information, and that is some outward body or some group of citizens, some interested body, having some rights to require government bodies to report information in some kind of organized fashion which they deem fair.

Mr Hayes: Thank you, Mr Minister and Chair of Management Board, for your presentation. I have never sat on this committee before, but just for members of committee who don't know, I'd like to clarify one issue. When you're talking about the labour leaders, I don't believe the Chair of Management Board or the Treasurer or anyone else really has to do anything there because the leaders' wages are set by the membership at their conventions and it is spelled in their own constitution out exactly what they get paid. I thought I'd make that clear.

Mr Elston: As long as the Minister of Finance knows, that's all we care about.

Mr Hayes: Well, it's there. But I do feel that when we talk about municipal councils or school boards or anyone, and no matter what level they are, if people are publicly funded, I think the public does have the right to know what their per diems are and expenses and what their salaries are. I don't think you'd have much of an argument from the public. I know I get a lot of complaints from various areas, from individuals who want to go to, say, the municipality to find out things and they really have to go through a lot of red tape and spend money to get the information which those municipalities should be able to just readily make available to them.

But I do also agree that we have to be very careful if there are some frivolous requests that are being made. I mean, I have seen cases where the person got defeated and all of a sudden they want information on the person who got elected, for example, and information maybe that had nothing to do really with the person holding office. You have to be careful on that too, but I do think that, if I want to know how much my reeve makes, I should be able to find that out, and if I want to know how much money is spent on per diems or conferences and things like that, as a taxpayer I should have the right to know that. I think it's something that really merits a lot of discussion and debate probably on this committee. I'm hoping we can continue in the non-partisan way that it has started here today. Thank you.

Hon Mr Charlton: I'm going to have to leave, so maybe I could just take a moment to make a couple of quick comments on things that have been said here.

On the issues raised by the last two speakers, the salaries were raised again. We're interested in pursuing that issue and dealing with it, so I'm again interested in hearing the committee's remarks in that regard.

In terms of the issue that Mr Sterling raised around delay, again I'm also interested in hearing the committee's evaluation of that issue after hearing from both sides. Both of these pieces of legislation are now several years old, and that's why we're reviewing them. I sincerely hope that in as non-biased a way as we can, the committee can come forward with recommendations around all of the issues like that, and the fees one.

On the one hand there have to be some fees perhaps. On the other hand, the fees can't, at the end of the day, be a serious deterrent to the legitimate public interest in some accountability around its public institutions. The recommendations of this committee around what's an appropriate balance are important for me.

The last issue which Mr Sterling raised around perhaps looking at some kind of standard format or standard protocol by which similar institutions are required to report, I think that's also an extremely useful issue for the committee to consider. I know that although I'm not the minister responsible for municipalities or for school boards or for universities or for hospitals, in some of the situations I do deal with in my own ministry, where you're dealing between two or three pension boards or any number of issues like that, having a standard format by which you can measure the information you're getting is oftentimes very useful.

I apologize for not being able to stay longer, but my staff are here and will continue to be. All of those issues that have been raised here so far are important to hear from this committee on. I encourage you, as I suggested, in as open and non-partisan a way as the committee is able, to hear the presentations that come before you and to push them, to talk about both sides of this accountability question so that we end up with improvements to the legislation in your recommendations that perhaps start to address whether in some cases we've gone too far with the legislation as it exists or whether in some other cases it's gone far enough, and finding that balance on all of the issues that come before you. So thank you and good luck with your proceedings.

The Chair: Maybe we can have the staff come up here. I know Mr Hope has a question which he's been sitting on for about a half an hour. Okay, Mr Hope, go ahead. And could you please identify yourselves for the purposes of Hansard when you answer?

Mr Hope: First of all, I guess as we listen to the minister's comments, I find it very interesting for the simple fact that I know a lot of people I talk to in my riding don't know the freedom of information act is even out there and how they can access their own personal information, whether it be through any large crown corporation of the government or the government itself. Where it's becoming more and more of a light is around the agricultural issue, back in the 1981-82 recession, when they were putting in the trailer mortgages and other issues.

So it's interesting in that we're talking about legislation and everybody starts talking about access to information. My biggest concern through this whole process will be the information being available to the general public, to access personal information, that they have gone through some process with government before and now they don't have the money to afford a lawyer but would like assistance in getting information to see what went on with their case at that period of time.

When we're talking about the public pay issue, I believe it's more appropriate now. It's in more and more of the public's eye right now. They're talking about the wages of individuals. Myself, I have no problem in showing what I earn for the simple fact that I think it's important that the public see exactly what we make. I think it's important to see what the broader community that is publicly funded receives moneys for, not just because it's a call under the social contract or any others; I always believed that individuals shouldn't be ashamed of showing their wages, at least I'm not ashamed, maybe if more of the broader public were to see what the income was.

But one of the concerns, and I would like to really know, is the claims that are being processed around the municipal end of it. How many of them are really done by law firms? How many are actually done by laypeople and how many are actually done by -- no names -- lawyers and others who have a knowledge of this freedom of information act out there? That's important. I don't believe MPPS should have any special status, no more than the general public. I believe we ought to be treated equally in terms of accessing information. That's always been my view: I don't believe we ought to have special status.


I'm really curious about the type of field or profession those who are currently making applications are in, whether it's just general laypeople, Jane or John Doe who farm in RR something township, who are requesting information or whether it's some law firm on Bay Street or the member. That information is important as we talk about this act allowing individuals access to information.

Just trying to get information on your own health records is a lengthy and legal process. Now there's been a decision made on it, but if we're to start talking about accessing information, and we're really mean the general public, not professional groups but the general public, I would like the information about how many of the general public and how many from professional fields have requested information.

Brian mentioned the municipal stuff. It's becoming more and more of an issue in rural Ontario as members of the agricultural community now talks about their income. Previously in rural Ontario, farmers would never talk about what revenues they bring in; the financial situation of a family or a family farm was very confidential. It's becoming more and more open, and the deals and issues that happened back in the 1981-82 recession are becoming more of a coffee shop conversation. What people are really starting to ask, and don't know how to access the information, is: "Why was I treated differently from the other individual? What is in my file? What do these big corporations, the government or Ontario Hydro or others, have on me?"

To reinforce it, I would like to try to get a better understanding of who is actually using the freedom of information act and who is not, because those who are not are usually the ones who need help in accessing.

Further to the issue about fees, I don't want to get into special categories, with members or elected officials being exempt from fees, because I'll guarantee that the individual who has to pay a fee will be knocking on my door saying, "Randy, can you carry this through for me and access all this information?" It's just going to go to a back-door approach versus a front-door approach. If we're to be treated as Ontario citizens in accessing information, I believe it ought to be that and not by elected status or whether you're a farmer or an auto worker or a lawyer in the community.

Mr Frank White: I'm Director of the freedom of information and privacy branch at Management Board Secretariat. I can answer the three questions in terms of who makes requests under both the provincial and the municipal act.

The Information and Privacy Commissioner is required to produce an annual report, and he collects statistical information from each institution covered by the statute. As part of that, each coordinator, when he receives a request, tries to categorize the requester as a researcher, media or other categories. That is the type of information the commissioner would produce in his annual report, and he probably will be covering that with the committee tomorrow.

Again, though, it's a question of the information and privacy coordinator in the local institution assessing who it is who is making the request, because the person coming forward doesn't have to identify himself in any way for general information. For personal information they would, but if somebody wants a copy of a certain efficiency report, there's no requirement for that person in any way to identify himself. Either they have a right to that report or they don't in terms of the exemptions under the act. There's no categorization other than six general categories of who is making the request for personal information. That may be helpful to the committee.

For citizens trying to find out what information is available under the Municipal Freedom of Information and Protection of Privacy Act, first of all, the Information and Privacy Commissioner does have a role in public education. Tomorrow when the commissioner testifies, you may ask him about his public outreach program in terms of informing the public about the municipal act and the public's rights under that statute.

Also, each organization covered by the Municipal Freedom of Information and Protection of Privacy Act is required to produce a list of the types of records that organization produces and maintains. There's a requirement to have that publicly available in a local government office or at a library, somewhere locally, where members of the public have access to that to see what types of information are produced by the municipality, by the school board, by the police force. So there are ways of getting that type of information before a member of the public through the Municipal Freedom of Information and Protection of Privacy Act.

Mr Tilson: I'd like to ask you a question with respect to access to information. It follows the line Mr Hope raised in his comments about elected officials; in other words, I'm raising the issue about elected officials being exempted from fees. Mr Hope quite legitimately made the observation that if that occurred, elected officials could abuse that process. Constituents could put pressure on an elected official to do something. There's no question that's a legitimate observation, although Mr Sterling quite rightfully said there is a certain amount of accountability, that you have to account for everything you do.

I believe you have legal counsel here. I'd like to raise the question with respect to part V, particularly section 57. As an opposition critic, I may want to ask a specific question to a minister on a specific topic. To ask that question, hopefully I will be informed. To be informed, I have to get access to documents, and these sections give a certain amount of discretion to -- to use the word in the act -- the "head," who is in fact the minister. The minister is given a considerable amount of discretion to waive the fee. What a wonderful way for a minister to avoid assisting a member to criticize him or her, simply by saying there's going to be a fee.

That fee could be substantial, and there's no question the regulations are specific about how that fee is calculated. Certainly many municipalities, members of provincial councils, don't have budgets to pay for that sort of information; they'd have to pay for it out of their own pockets. We at least, as members of this place, have access to funds. We're trying to be intelligent, which I know the government questions sometimes, and ask questions based on facts, yet the minister has discretion to bump fees up anywhere from $50 to -- I've heard of fees being $6,000, depending on the information and the research required.

My observation, notwithstanding Mr Hope's observation, which may be legitimate, is what a wonderful way for a head -- namely, the minister -- to preclude a member from having access to information, because eventually that pot's going to run dry. Eventually, the moneys that may be set aside by a member to make freedom of information applications could run dry.


Have you analysed that issue and can you assist both Mr Hope and me? Mr Hope raised the question, although he really said the pressure would be on and perhaps they should be charged fees. Can you tell us what analysis you've made of the issue of exempting members of this Legislature, or municipal officials, who don't have the funds we have, to be exempted from paying those fees?

Mr Frank White: What you'd have to do is look at the fee waiver conditions and the fee section of section 45. Your fee waiver conditions are in subsection 45(4). It would be 57 in the red one. That would be the same section.

First of all, any time there's a request, the institution is required to search for two hours free of charge for that record, and it's only at that point that fees kick in for searching; then there are fees that are identified in the fee schedule. But the only fees are for searching for the record. Once I locate that record -- say it's this report -- then any decision-making time that goes into determining whether there's an exemption that applies to the whole report or part of the report isn't calculated in your fee estimate. That's all without charge to the requester.

Mr Tilson: But as someone who uses this process, and I can tell you I don't believe I'm using it in a frivolous fashion, I've made a number of freedom of information applications since I've come here and I've discovered that some ministers waive the fees and other ministers don't. Whether it's the mood or whatever -- I don't have my record with me of who specifically waives them -- there doesn't seem to be any set pattern. It seems to be at the complete discretion of the head, who is indeed the minister.

I believe there is too much discretion given to the minister, that the minister could abuse his or her discretion in determining whether fees, whether it be $50 or $5,000, will be charged. I don't know whether you have analysed that issue.

Mr Frank White: No. The other situation is that under the municipal statute, it's the head who's making those decisions. The head is at the local level, so it's this person in a municipality, this person in a school board, this person in a police force. If you look at all the organizations covered under the municipal statute, there are about 2,300, 2,400. With that wide range of individuals making decisions, you're bound to get a --

Mr Tilson: I'm zeroing in specifically on elected officials. You could compare. There are certainly small municipalities that don't have elected councillors or trustees or whatever and don't have a budget for this sort of thing. They would in fact be precluded from finding out information about their own municipal council, let alone ministries. Anyway, it's an issue that I feel is open to political abuse.

Ms Priscilla Platt: I am Priscilla Platt, legal counsel at the freedom of information and privacy branch. Briefly, in answer to your question, in section 45 in the municipal act and section 57 in the provincial act, subsection (4) is rather unique because it does provide criteria for the exercise of discretion. It's different from other aspects of the legislation; for example, discretionary exemptions where there are no criteria listed. In those, the denial of the waiver may be appealed to the Information and Privacy Commissioner, which does act as a check on what you were suggesting is possible in individual cases perhaps, a capricious denial of the waiver option. There have been instances where the commission has decided that the head has inappropriately considered this matter and has in fact ordered that the waiver be applied. If that's of any assistance to you, it's certainly an option.

Mr Tilson: I've gone that route. In fact, there's an appeal under process right now. This happened months ago, and my application happened months before that. The issue has long since died. It involved a toxic waste site in Peterborough. When an issue arises, I need that information now to ask intelligent questions of the minister, yet I'm being stymied by a whole process, and I went through that process.

You read section 57. I don't know what 45 says --

Ms Platt: It's identical.

Mr Tilson: But just looking at 57, with which I am familiar, subsection (4) says, "A head shall waive the payment of all or any part of an amount required to be paid under this act where," and then it uses the words "in the head's opinion." The minister can do anything he or she pleases; they can twist these words around. I don't know whether they are, but I believe they are, because some ministers charge and some ministers don't. That's my only observation.

It's not only that. To get back to Mr Sterling's issue, it's the period of delay of the whole process. I made an appeal and the decision still hasn't been rendered. I was promised it by the end of 1993, and we're now into 1994. I don't know when or if the decision's ever going to be made. I'm sure it will; they've said it would. But my point, to reiterate what Mr Sterling was saying, is that we need that information now, and yet we're stymied, the issue's all over. I don't know whether you have any comment, but I believe there's a problem for me doing my job, specifically as an opposition critic, because I can't get the documentation to ask the intelligent questions I should be asking.

Mr Drummond White (Durham Centre): Just a brief comment and question with regard to Mr Tilson's points, and I think they're very important. I read section 45, in his book section 57, and it seems to be an incredibly detailed section for an act. It clarifies this very important issue, because of course it could be used capriciously, as was suggested: The whole issue of a fee and the level of a fee and conditions of a fee it could be used as a barrier to important information.

Mr Tilson's concern I think is a very legitimate one. His privileges as a member could be seriously impugned. For that reason, I'm concerned that this not be the case. Mr Tilson is indicating that he feels this is a problem with some ministries and perhaps not with others, and he's also indicating that some ministries may respond more rapidly than others.

To Mr White, I'm wondering whether we have any knowledge, any kind of survey or information, with regard to which ministries tend to charge, under what circumstances, and what the turnaround time is for these requests. Do we have that kind of information? I've not had the kinds of problems Mr Tilson's talking about, but he's making some statements about certain ministries not responding rapidly. If that's the case, as parliamentarians we need to know. Is there any kind of information on the different ministries in terms of their response time and the likelihood of there being a fee charged.

Mr Frank White: The only information we get would be the summary of the annual reports provided to the Information and Privacy Commissioner, which gives the total amount of fees charged by each organization covered by either the provincial or municipal act. It would just be a total. I don't think there's been any assessment on an individual request-by-request basis.

Mr White: So it would be a total of fees per ministry.


Mr Frank White: Yes. That information would be provided to the Information and Privacy Commissioner. So at the end of the year, the city of Toronto, for instance, would say, "We've charged $2,000 in fees," and is also required to report how much it has waived. The information is available. I think you'd have to ask the commissioner whether that's been compiled yet.

Mr White: I see. And that would be available by institution and by ministry?

Mr Frank White: It should be assembled by institution, if it's ever been reported.

Mr White: So from that we should be able to get a sense of the legitimacy of Mr Tilson's concerns.

Mr Frank White: Well, in the report that local governments submit to the commissioner, the time lines used are answer to request within 30 days, and then 30 to 45. It doesn't go beneath the 30 days, to see if someone's responding in 10 days.

Mr White: So we do have criteria to measure the speed with which a response is given and the amount of fees.

Mr Frank White: Up to the 30 days, yes.

Ms Platt: The other thing you might want to check is the decisions of the Information and Privacy Commissioner. To the extent that fees are appealed to the commission, the commission is required to issue a decision, so by tracking the decisions -- if you just look at the bold numbers, you won't necessarily know whether those are inappropriate fees or not; they may be quite appropriate. But reading some of the commissioner's orders in this regard may give you a flavour for what institutions are doing what and what the criteria are.

Mr White: I am very concerned. I personally have not had a problem like this, but if Mr Tilson has, then his privileges as a member might have been seriously compromised. I'm glad to hear we have some criteria to measure that.

Mr Sterling: I'm pleased to see Frank White again. I've known him for a long time, and it seems neither he nor I can shake this freedom of information and privacy stuff.

Mr Frank White: I don't want to shake it, though.

Mr Sterling: I guess not in these times, anyway, Frank. You're both under the ministry of Management Board. Could you tell me what its specific role is vis-à-vis this act? With regard to the provincial act, I know you're the coordinating body. What is your role with regard to the municipal act?

Mr Frank White: It's a similar type of role. We provide advice on the Municipal Freedom of Information and Protection of Privacy Act to local government organizations that are covered by the act. If there's a question about fees, if there's a question about exemptions, if there's a question about delegation, we provide advice to those organizations, to the individuals in the organizations who are trying to interpret the statute to make decisions on requests for records.

Mr Sterling: So you're really an adviser role, not a decision-making role, in the municipal area.

Mr Frank White: No.

Mr Sterling: Have you prepared for us in any way what your sense is of the problems that municipalities are having with the act? Are there some glaring areas where there's uncertainty?

Mr Frank White: Mr Sterling, I think those are the areas generally that the minister covered. Those are the types of issues we hear, in terms of advice, where there are some uncertainties. I think the next week and half would be the chance for these local organizations and citizen groups to come in and explain where they feel improvements could be made.

Mr Sterling: Unfortunately, I arrived a few minutes late. The minister didn't hand anything out, did he?

The Chair: No, he didn't.

Mr Elston: You have to get that under freedom of information.

Mr Sterling: Yes. I wonder if you have anywhere composed a list of the sections in the act where there are questions or problems, that perhaps the minister mentioned in his remarks. I'm more interested in having some kind of reference document as I listen to the various proponents.

Mr Frank White: We could get a copy of Hansard and key the sections that relate to that issue from the minister's speech.

Mr Sterling: Would you do that for us, please? Could you key the sections for us so that when groups come before us we'll know which ones they're likely to point to, that kind of thing?

Mr White: It might take a couple of days before Instant Hansard's available.

Mr Frank White: We can have something tomorrow morning.

The Chair: The problem is that when the minister gave his speech, he added comments, so if we get a copy of his speech it won't be complete. And there are five committees sitting this week.

Mr Sterling: I was more interested in having: section 23(2), possible problem such and such. Where there have been a lot of questions raised by municipalities, obviously you as the advisers would have the greatest knowledge that you're getting a lot of questions about this or that particular section. If there's a question of clarifying a section, then I think we should try to do that.

Mr Frank White: What we could do is get a list of those issues the minister raised and put in the sections that deal with those issues. You can in fact say there are constantly questions about almost every section.

Mr Sterling: So there's no one glaring issue overall? Are there one or two key issues that have been raised with you, as advisers?

Ms Platt: Many of the issues are generic to both acts, but the one thing that is unique to this act is the open/closed meeting exemption, which is section 6 of the municipal FOI act. That was something mentioned by the minister as well this morning and this afternoon.

The Chair: Before we go on, I'd note that we're going to have a subcommittee meeting immediately after comments and questions. Members on the subcommittee, be here for the subcommittee meeting.

Mr Tilson: This question's really been asked by Mr Sterling. That is, you've commented on the private session meetings, specifically of municipal councils. Many of us in this committee have at some time in our careers sat on a municipal council, and I certainly remember sitting on a municipal council when someone makes a resolution to move into private session to discuss property and personnel matters, or some general generic phrase, but someone starts talking about something else and it may or may not come out. That's been one of the criticisms of ratepayer groups, that things go on in that meeting and you don't know what it is.

The minister listed areas of concern; I have seven, but he may have listed more. I think committee members would find it useful if you were able, from correspondence you've received from ratepayer groups or councillors or trustees or anyone involved in the process, to perhaps elaborate on which are the most serious concerns or issues that have been drawn to your attention.

Mr Frank White: I'll get a prioritized list together of those issues and the sections that deal with those issues.

If the committee is interested, either today or at some other point, we're prepared to do about a 20-minute quick overview of the Municipal Freedom of Information and Protection of Privacy Act. I make that offer.

Mr Tilson: Are you able to elaborate now on the various issues the minister has referred to? Are you able to tell us that now, rather than putting it in writing? There must be issues that have cropped up more. You've mentioned the private session meetings. Have some issues come to your attention more than others?

Mr Frank White: I think we can point to the issues that the minister raised and point to the section of the act and why it's an issue, if you want us to do that.

Mr Tilson: When we're talking about a review of this act, I'd like to hear specific complaints from people other than clerks or chief administrative officers: perhaps members of the public, perhaps ratepayer groups, perhaps individual taxpayers, perhaps councillors. You must have received correspondence from people expressing concerns.


Mr Frank White: Why don't we give an example and see if that's the information you're looking for and what you want to do, if that's a good way of exploring it? I'd ask Priscilla to take you through section 6 of the Municipal Freedom of Information and Protection of Privacy Act, which has an exemption dealing with records of closed meetings.

Ms Platt: Section 6 is a discretionary exemption. There are two types of exemptions under the act: One is mandatory and one is discretionary. Discretionary exemptions give the head the power to provide access or disclose the record if they wish, even though they may have the exemption apply to that record. They have the power and the right to disclose the record despite the application of the exemption to that record.

Basically, it's a timeliness element to the exemption in subsection (1). Subsection (1) deals with records that have been held in a closed meeting where the exemption may apply, and the exception in subsection (2) states that the exemption cannot apply, essentially once that subject matter has been deliberated in an open meeting. Theoretically then, the exemption would apply once there has been a closed meeting, but once you've gone into the open meeting to confirm or deliberate the issue, the exemption cannot apply. And even where the exemption does apply, it is a discretionary exemption.

The matters that have been requested under closed meeting exemption have been the subject of a number of appeals to the Information and Privacy Commissioner. What's come out of that is that there are different words used in subsection (1). It talks about "reveals the substance of deliberations of a meeting of a council, board" etc. You have to have the authority to hold it in a closed meeting, but it uses the language "reveals the substance of deliberations." The exception talks about where the subject matter of the deliberations "has been considered" in an open meeting. There is some debate about what those words mean, whether a perfunctory reference in an open meeting to something that has been handled in a closed meeting is a consideration and therefore where the exemption would not apply.

If one looks at the commissioner's orders thus far and some of the language used in section 6, I suppose that language is vague enough to have caused the commissioner to look at it and question the meaning or the intention of the Legislature in that regard.

Mr Frank White: The other issue with it would be that this goes back to the statutory authority for a closed meeting, so you'd have to go back to the specific statute that authorizes the closed meeting. Some of the statutes which authorize closed meetings are very restrictive, such as the Education Act, and some are very wide, like the Municipal Act. So it could be a very different outcome, depending on whether you're going to a local board or a municipality, in terms of what records you may get and in terms of how wide the scope is for holding a closed meeting.

The other issue is that if it is never a matter of public debate in terms of making a decision, if it has not been considered in an open meeting, then the records would never be disclosed unless they're 20 years old. It has to be considered at an open meeting for this closed meeting exemption to be removed, and if it's never discussed at an open meeting, then the records remain closed in terms of the exemption.

Dealing with open and closed meetings and records for open and closed meetings, those are the issues one would get into. Obviously, from the public's point of view, there's wide latitude in terms of the closed meeting laws and the records they wouldn't get from those.

Mr Paul Wessenger (Simcoe Centre): I don't know whether this is an appropriate time to deal with the matter, but Mr Elston raised the question of hearing from Ministry of Health officials. I was going to suggest that perhaps we should request the presence of those officials after the hearings have terminated. That would be on Tuesday, January 25, after we hear again from the Information and Privacy Commissioner's office. I think it would be very useful if we heard at that time from the Ministry of Health officials with respect to the whole question of the right to access information.

Mr Elston: I have no objection to hearing from anyone. The only thing I want to make sure of is that we're actually pursuing with some degree of certainty that we want to add these other people, or are we considering just taking information about how we should give ourselves a little better access to information there? If it's only going to be an update from them that they've got legislation on the horizon or something like that, maybe they could indicate that and then they'd just need to give us a written presentation.

It was really in response to the minister raising the issue of possibly adding children's aid societies and hospitals and other organizations that I thought if we even came close to doing it, we've got to have them here to speak to them about it. If there's something they can help us with, then by all means, I'm happy to listen to what they have to say, but if it's something they could provide to us in writing as an update on their undertaking to have their own separate freedom of information procedures, then I'd be happy to hear it that way as well.

Mr Wessenger: I notice some presenters are, for instance, from the Psychiatric Patient Advocate Office and the Ontario Psychological Association, so I gather we will be having some presentations with respect to health matters. I only made the suggestion today to alert the ministry to perhaps the necessity of them coming or preparing something, rather than wait till the end of the hearings. That was the reason for the suggestion today. Otherwise, I would have waited until the end of the --

Mr Elston: Is that in the mandate of this inquiry? Are we supposed to ask ourselves during the inquiry into this act if we should extend it? I thought the inquiry was basically whether or not this act as constituted is functioning well to provide information in the areas it covers and is protecting privacy adequately in the areas we're dealing with. But if it now is that we're supposed to see whether we should extend it to other areas, I think that becomes a different task, at least from what I was preparing myself for, in any event.

The Chair: I should maybe have read this out at the very beginning: "The standing committee of the Legislative Assembly shall, before the 1st day of January, 1994, undertake a comprehensive review of the act" -- it's the word "shall."

Mr Tilson: You missed it.

The Chair: Well, no. We already started it back in December when we were discussing it in committee.

Mr Elston: Technically, you might be right.

The Chair: It was started, because we'd already planned for the hearings. To continue: "undertake a comprehensive review of the act and shall, within one year after beginning that review, make recommendations to the Legislative Assembly regarding amendments to this act."

Mr Elston: I understand that, but the act itself doesn't cover hospitals, so I was asking the question of whether we are really, in this hearing, because we only have a week of hearings planned and a week to write our report, considering extending the operation of this act to these other organizations. That really is a different task than just listening to whether or not we are functioning well under it.

The Chair: The way it looks, it's the existing act the way it is and recommendations --

Mr Elston: Mind you, you can always amend it to add areas of coverage. I just think it's a different task from what I thought we were here to commit ourselves to. I'm not saying we shouldn't do it. I'm just asking the question so we can start preparing to ask people who are here if they've had any other experience with children's aid societies or with hospitals or whatever. It's a whole series of different questions you have to ask yourself about extending the application of an act, as opposed to the questions which basically have been here today: What's the problem with the municipal response to requests? Are there problems with fees under the current act? Those really have focused just on things as they are today.

I'm happy for us, maybe in subcommittee, to talk about the question of whether -- I guess it doesn't really matter, because we're just going to write a report and I suppose we can write anything in the report we have to, but I would be much happier hearing from anybody who we think might be affected by this at the end of the day.

Mr Wessenger: I'd like to add that I'm really just responding to the minister's comments when he indicated that one of the issues was whether the act should be extended to cover other institutions.

Mr Elston: It surprised you too, eh?

Mr Wessenger: I agree that we could discuss this in subcommittee. That certainly would be satisfactory.


Mr Hope: I don't believe we should shut the doors; if I understand Mr Elston correctly, he's talking about the subcommittee. If we get presentations from people who are going to be here from other institutions that may not be covered or that have been covered through a legal battle asking for the government to consider and to move on other areas, we have to leave that door open. We might have to pursue changes so we don't lead into bigger problems later on.

If we're having presentations from some of the institutions, I thought it would be nice to alert ministry staff to questions about where they're at and more detailed questions after the presentations. I don't know of particular circumstances around health issues, and it would be important to have ministry staff on the sidelines, as you might call it, so that if issues do arise from the presentations, we can then ask ministry staff where they're at or if they're anywhere. We might want to put in the body of the report that it might be -- if I heard you correctly, in one year -- the next endeavour to deal with these hot issues that are going to be coming up.

I would like to have ministry officials -- but I hear you're going to discuss it in subcommittee -- on the sidelines or on standby if need be on Tuesday so we can ask specific questions that might be raised by the presenters. We're seriously going to be listening to the presenters, and I'm sure there will be questions we won't have answers for.

Mr Elston: On the same point, as the minister raised the issue, perhaps Mr White could provide us with an update in written form or whatever on the areas Mr Charlton raised as potential areas for expansion of coverage. I think children's aid societies were one.

Mr Frank White: There were three: universities, children's aid societies and hospitals.

Mr Elston: I do know that at the time we did this the hospitals were going to do their own; that was basically the way they removed themselves from coverage. I know it hasn't occurred yet, but maybe there is something cooking that we should know about. That would be at least one of the items to follow up on, as there had been, in my understanding, an undertaking that certain things would occur. Perhaps we should have some update on that. If that's available now, fine. If not, then we could get it at some stage.

Mr Carman McClelland (Brampton North): I wanted to perhaps underscore or amplify Mr Elston's suggestion. To look at the history of what happened a few years ago, specifically 1991, when the same committee undertook a review, if you look at recommendation 3 in the report you have in front of you, it was almost like a knee-jerk reaction -- I say "almost," and that's the operative word, and I don't say this in a pejorative sense -- to suggestions being made that there be an extension to the act. There was a sentiment that yes, it should be extended. Quite frankly, there wasn't any real meat to the discussion. It was a sentiment as opposed to a comprehensive review.

I think that underscores the point Mr Elston's making, that if we are going to do that it should be done in a very thoughtful, systematic, detailed way, with a great deal of expertise brought to bear on the issue of the extension. We've had the three identified by the minister's as illustrative of it.

If you contrast that with recommendation 3 the committee drew up in 1991, and even in part recommendation 4, I think that is fairly substantial evidence that you can make some nice noises and do some broad strokes of the brush, but you're not really dealing with the issue unless you are prepared to sit down -- and perhaps that's the work of the subcommittee -- to thoughtfully determine how you're going to review the extension of the act and the scope of that extension.

Mr Tilson: I'd like to get back to the area I was on originally, and it has essentially been asked again. Mr Charlton has given us six or seven examples, and you indicate that you're going to prepare something in writing elaborating on those points. We're going to start tomorrow. You started to go through and tell us the legalities of number 6. I understand that, and I think many of the members of the committee do. I would like to know, more specifically, what some of the complaints have been, and we can even talk about private session meetings: specific complaints from municipal councillors or others about that issue, or indeed any of the other six issues that were raised by the minister.

Mr Frank White: I think when we discuss it with you, what we would discuss are the questions we get concerning the interpretation. Typically, we're not going to get complaints. If someone is dissatisfied with the statute and how it's being interpreted because of a result they've received in response to a request, they're going to go to the Information and Privacy Commissioner. The commissioner is the one who hears appeals and rules on the appeals in terms of whether the record is going to be released or not released. Generally, we get questions like: What does this section mean, or how does it affect disclosure of this particular record? It's not "I'm dissatisfied" with whatever. In a few of these, that is the case. In terms of the question of how one handles a frivolous or vexatious request, for instance, when an institution asks for advice, I guess that is a way of complaining.

Mr Tilson: All I'm saying is that someone has advised the minister of these six or seven issues and I would like to know how he came to that conclusion. Presumably, someone has been complaining about it or someone has drawn it to his attention.

Mr Frank White: Yes. These are the types of questions that are received from institutions that are covered by the act; for instance, in terms of getting a frivolous request or a vexatious request, how do we go about responding to that or how do we determine whether it is frivolous?

Mr Tilson: Are you prepared to give us a presentation on any of those items, more elaboration?

Mr Frank White: Sure.

Mr Tilson: When are you going to do that presentation?

Mr Frank White: It would be up to the committee.

Mr Tilson: How long will it be? I thought that's what we were doing this afternoon.

Mr Frank White: Twenty minutes or so.

The Chair: Are you prepared to go ahead now?

Mr Frank White: We can talk about the issue if you want us to.

Let's start with the frivolous and vexatious request. That was the first one the minister mentioned. Actually, Mr Elston was quite right in saying that what's frivolous and vexatious to me may not be frivolous and vexatious to him. The problem, though, is that for many institutions covered by the statute, they feel they are getting requests where the requester is not particularly interested in the content of the response, but it's just to in some way disrupt the work capacity of the organization receiving the request. They know there are two free hours of search time and they'll put in a batch of 50 requests.

Is the institution receiving that required by the statute to search for those records, for each request, for two free hours? You get a batch of requests that's five pages long and there may be 60 lines on there. They've created 60 requests, and if you treat each entry as a separate request, each one of those requests is worth two hours of free search time so they've got 120 hours of free search time. The end of all that may be that there may be a fee estimate going out to the requester once they've identified where the records are in the volume of records, and the requester can just back away at that point. There's no onus on the requester to go ahead with the request once they get a fee estimate.

From an institution's point of view, if this is a frivolous and vexatious request, where do they go to stop the system, to say: "Yes, I agree with you. This is frivolous. Don't proceed"? Right now in the statute there's nothing. You receive a request and you process it. There's nothing to stop that request.

For many institutions, particularly small boards covered by the statute, this ends up to be a significant problem. We have a request where there's been an order of the Information and Privacy Commissioner, one page only, faxed to all the police forces in the province. It asked for a copy of all job descriptions, all operational policies, all operational procedures, all -- it just goes on and on for a page. Each one of those police forces had to spend two hours of search time searching for the records, to start with. They also had to prepare decision letters on fee estimates, if there were fee estimates. To them, it presents a workload problem.

On the other hand, if I'm a requester, I don't feel I'm putting in a frivolous request; it's not frivolous to me. I think most of the citizens of the province want to be responded to quickly with a speedy answer in terms of the request for information.

In terms of a frivolous request, where do you go if you feel you have this type of request? Is there any way to stop the system if it's determined that that's the nature of this particular request?

Mr Elston: Can I ask a question? What do you do if ratepayer X walks into your municipal office and stands there and talks to you for four hours? That happens too, so what do you do? Is that frivolous and vexatious? For me, it's a very difficult call to make, to say when it's happening.

Mr Frank White: I agree.


Mr Elston: I could understand somebody, for instance, doing this freedom of information request on policing and deciding that they are going to take a major initiative on trying to standardize for all of the police forces across the province operational things. Some people have a whole idea about trying to coordinate, because they feel they've been dealt with unfairly in one area and not in another.

So who do you go to? Are you now going to have a frivolous application appeal system and hire somebody else so that the clerks can say, "I've had 60 requests from one person; therefore, now I can say they're frivolous and I don't have to answer"?

What happens to the guy who has just received his assessment notice and has been told by the assessors that he has been compared to three other places in the municipality and as a result his house is now assessed at twice what it used to be? He asks, "Who do you compare me to?" and the assessors say, "Sorry, under the freedom of information act, we're not allowed to tell you that," which is absolutely, in my mind, a corruption of the whole proceeding, because if he is now comparable to certain other properties, he should know which ones he's been compared to, to figure out whether or not it's been a fair assessment. It's just the law of natural justice. It seems to me it would be required to give that information to the person.

The only option that person would have is therefore to go and say to the clerk, "Who has an assessment comparable to mine in the municipality?" All the assessment information is available, it's public, but you could make that request to the clerk and say: "You search. The assessors won't tell me." It may take me 75 requests before I find out information about whether or not I'm assessed the same as Mr Ramsay on the 7th Concession.

There are reasons people will make volume requests. If they can't get it one way, they'll try and get it another. I am really quite concerned that we could actually, by putting a definition of "frivolous" that might correspond to the number of requests made or the persistence of requests made, end up shutting down a person's right to know how he or she has been treated in comparison with the rest of the ratepayers. It's very, in my mind anyway, quicksand-like once you start treading on it.

Mr Sterling: Do you have any suggestions how you deal with this? Have you thought about it at all?

Ms Platt: We have thought about it. I think Mr Elston has made a very good point, that coming to a definition and having it applied and having an appeal and so on is probably a protracted way of dealing with it.

One does get the sense, and it's something the committee will have to determine, that if there were a small fee, perhaps a small application fee, that would deter individuals from making a request like the one we just heard about to every police force in the province and so on. That's something the committee would have to determine, but those are some thoughts we've had on it.

Mr Hope: I want to stay focused on this frivolous stuff. For instance, I may be in jail and may have a lot of time on my hands, and I request the drawings of the jail and how many breakouts there have been over the last 30 years. Come on. You're going to respond to that? If I'm asking for plans of the building and you respond and give them to me --

Mr Elston: That's already been done, on more than one occasion.

Mr Hope: I understand what you're saying about frivolous, and I know the fee issue is something we as a committee have to discuss. But I'm looking at the one individual file, somebody who has time on his hands, and most of them study to be lawyers when they're in jail. They have time on their hands and they're making the one application, which is a very constructive application. How would you label that?

Mr Frank White: I haven't heard of any situations where someone's asked for advice and that's been used as a frivolous request example. It's typically when the same request is sent out to multiple organizations at the same time. Typically, in some of these vexatious requests, individuals have said the reason they're doing it is just to add an extra workload on the organization. They've publicly stated this. They've been interviewed by the media to say they're quite pleased with the results in terms of the amount of effort that has to be made by the local government organization to respond, that it's really not the information they're interested in. I don't think most local government organizations would characterize a request by an individual for their personal information as any type of vexatious or frivolous situation.

Mr Hope: When you're dealing with a personal information request being frivolous versus a public issue like policing or stuff like that, the fee might address it. But I was looking at the individual saying: "Well, I'm not going to ask everybody. I'm going to ask one institution some information. I happen to be an occupant who has rental space inside of building and I want drawings." Is that not considered to be frivolous? I'm taking three scenarios here.

Ms Platt: I think it just underlines how difficult it is to come to a definition of what is frivolous. Depending on why you want it, it may be quite legitimate that you need these plans for a tender purpose or for some other purpose, and it may be quite rational. Things that happen in the context of frivolous is that the person is making repeated requests even to the same institution over and over again for material they may already have received or is asking every institution for the same number of things and has no intention of paying for it. If you give them a fee estimate, they won't pay it. That's the kind of experience institutions have had and brought to our attention.

But how one deals with that in terms of the legislation, we don't now ask requesters why they want the records; we don't scrutinize the reasons or the utility of the records. The act is very broad in its application to any recorded information that the institution may keep in its custody or control, so there really isn't an easy mechanism for asking. How would you police that? How would you ensure that the people really expressed themselves well and said what they wanted, or perhaps didn't?

One thought we've had, and again it's up to the committee, is this idea of a small application fee, because one gets the feeling with a lot of these people that if they had to pay even $5 they would cease doing that, that they really wouldn't pursue it for any money at all. One does have to balance the right of access for individuals of goodwill versus the expense and so on to the institution and the problem that these frivolous requests do cause.

Mr Hayes: I think Mr Elston has a very good point, but I'm just wondering, are we looking at something similar to what had to be done with the OMB, for example, a number of years back, where people were charged a certain fee? In pretty well every community, there's usually someone who's going to appeal, especially if it doesn't cost any money. Are we looking at something similar to that?

Mr Platt: I think it is comparable to a lot of the steps that have been taken with respect to tax appeals and other administrative tribunals that have begun charging fees to applicants to ensure that they do intend to pursue it in a timely fashion and so on.

The Chair: Any more questions or comments? Seeing none, we'll adjourn until 10 o'clock tomorrow morning.

The committee adjourned at 1558.