Right to Know Week: Improving Access to Information in Ontario

Acting Commissioner Brian Beamish shares his thoughts on the future of access to information in Ontario:

This week in Canada, we recognize Right to Know Day on September 28th and celebrate Right to Know Week. Since 2002, approximately 40 countries have marked the occasion in order to raise awareness of an individual’s right to access government-held information, while promoting freedom of information (FOI) as essential to both democracy and good governance. The week presents us with an excellent opportunity to highlight recommendations to improve accessibility to government-held information.

In Ontario, it has now been more than 25 years since the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act were passed in order to form the foundation of our access to information infrastructure. For the most part, the Acts have served the province well; however, there is still room for improvement.

The following recommendations distinguish between two key concepts: the formal FOI system, as set out in our provincial and municipal Acts, and the other means of fostering access to government-held information – both are necessary to improve access to information in Ontario.

Recommendations for Modernizing FOI Laws

In terms of the formal process, my office has called upon the government to re-examine the Acts and modernize the legislation, most recently in our 2013 annual report. The IPC was also one of the many information and privacy commissioners and ombudspersons’ offices to sign a resolution which outlined a vision for modernizing Canada’s access and privacy laws. The resolution, Modernizing Access and Privacy Laws for the 21st Century, contained a number of ideas on how FOI legislation should be updated. Some of the key recommendations included:

• Increasing the ability of institutions, and the IPC, to exercise the “public interest override” – when records can be released, even if exempt from disclosure under the Act because of an overriding public interest.
• Creating minimum standards of proactive disclosure – categories and classes of documents that must be made available in usable format.
• Establishing a requirement that for any new systems, government institutions must create them with access to information in mind.

Another concept in this resolution that dovetails with the work of our office is the necessity of creating a legislated duty to document. This would require all public entities to document their deliberations, actions and decisions.

The need for a legislated duty to document was highlighted by an investigation conducted by our office last year, relating to a government decision to relocate two gas plants prior to the 2011 provincial election. Our report, Deleting Accountability: Record Management Practices of Political Staff found that the expectations for recordkeeping must be raised across the government. We also called on the government to create a legislated duty to document to ensure that the decision-making process is available for public scrutiny.

Although the Ontario government has not yet followed up on that specific recommendation, it has taken significant and praiseworthy steps to comply with the other recommendations of our report as part of the introduction of Bill 8, the Public Sector and MPP Accountability and Transparency Act. If passed, this bill would strengthen transparency and accountability in the broader public sector. Specifically, the bill would amend the Acts to require that all institutions ensure reasonable measures are in place to preserve records in their custody or control in accordance with recordkeeping and retention requirements, rules or policies that apply to the institution. The Acts would also be amended to create an offence for altering, concealing or destroying a record with the intention of denying a right to access to the record.

Fostering Greater Access to Government Information

We have seen great strides in the Open Data movement and the future holds tremendous promise. I think it is fair to say that some of our largest cities, such as Ottawa and Toronto, have become leaders in this field and the province also is actively pushing out information in a wide range of searchable data sets. However, there are a variety of ways to move forward in this area and foster greater access to information. A report released this spring, Open by Default: A New Way Forward for Ontario, made a number of strong recommendations which my office firmly supports, including:

• Publishing all government data in commonly accepted open standards, unless there are privacy, security or legal reasons for not doing so. The release of this data should be done in a timely manner, be available free of charge to the public, and ensure that no data is destroyed in the process.
• Give Ontarians the information they need to understand the government’s plans and priorities by proactively publishing key documents online, in an open format.

• Restructuring the fees that institutions can charge to respond to FOI requests. An example, if an institution fails to respond to a request within 30 days, it could not impose a fee, but would be responsible for the cost of answering  the request. Similarly, on a go-forward basis, fees could not be charged for responding to FOI requests for information held on new IT systems. In other words, those systems would need to be designed from the start with access to information in mind.

I strongly believe that following these recommendations would not only bring more transparency and accountability to government, but also lead to substantial cost savings and improved customer service. I hope that the provincial government will implement these recommendations and take a close look at further modernizing our access to information legislation.