Legislative Assembly of Ontario

REVIEW OF FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT, 1987

ONTARIO PUBLIC SERVICE EMPLOYEES UNION

CONTENTS

Wednesday 17 April 1991

Review of Freedom of Information and Protection of Privacy Act, 1987

Ontario Public Service Employees Union

Continued in camera

STANDING COMMITTEE ON THE LEGISLATIVE ASSEMBLY

Chair: Duignan, Noel (Halton North NDP)

Vice-Chair: MacKinnon, Ellen (Lambton NDP)

Cooper, Mike (Kitchener-Wilmot NDP)

Frankford, Robert (Scarborough East NDP)

Jamison, Norm (Norfolk NDP)

Marland, Margaret (Mississauga South PC)

Mathyssen, Irene (Middlesex NDP)

McClelland, Carman (Brampton North L)

Morin, Gilles E. (Carleton East L)

O'Neil, Hugh P. (Quinte L)

Owens, Stephen (Scarborough Centre NDP)

Villeneuve, Noble (S-D-G & East Grenville PC)

Substitution: Cleary, John C. (Cornwall L) for Mr McClelland

Clerk: Arnott, Douglas

Staff: McNaught, Andrew, Research Officer, Legislative Research Office

The committee met at 1534 in room 151.

REVIEW OF FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT, 1987

Resuming consideration of the Freedom of Information and Protection of Privacy Act, 1987.

The Chair: I would like to call the standing committee on the Legislative Assembly to order and welcome everybody here today. We are beginning to continue with our review of the Freedom of Information and Protection of Privacy Act and we have some witnesses here today from the Ontario Public Service Employees Union. At this time I would ask them to come forward and make the presentation.

ONTARIO PUBLIC SERVICE EMPLOYEES UNION

Mr Onyschuk: Thank you, Mr Chairman. My name is Jim Onyschuk. I am an education research officer with the union. There may be another person joining us. He is probably stuck in traffic with the rain that is falling. He is coming from North Bay, but I asked that he attend to provide some firsthand examples.

You will notice from the title of our brief, we call it A Delicate Balance, and as we go through the brief you will see why we do title it A Delicate Balance, because there are certain areas in which we feel that the heads who have to interpret this act sometimes are going the wrong way.

We of the unions have perhaps had more experience in applying this act with the government because we are continually dealing with the government. I will just read the brief into the record.

The Ontario Public Service Employees Union welcomes this opportunity to present to the committee some of our experiences with the Freedom of Information and Protection of Privacy Act. Our union represents more than 105,000 public sector workers, and when the legislation first came into effect we were concerned that information that was previously accessible would be closed off. Just as an aside, it was quite common for us to receive information in a rather informal way. We have found that information that had been informally obtained before the act was passed was now being denied us, forcing us to use the freedom of information request procedures.

On the positive side, we saw this act as opening up information helpful for collective bargaining, organizing drives, whistle-blowing on government mismanagement, critical comment of government programs or policies, and grievances. We also saw how the act may enhance the privacy rights of our individual members.

Over the past three years we have used the act to obtain information, primarily to gather information on government contracting-out situations. The underlying premise of this act is that the government should have nothing to hide except when policy is being formulated or matters of security are involved. We agree with the general principles stated under section 1, which lays out the purpose of the act. However, our experience with this legislation has been that too much is left at the discretion of the department head. As a result, some information has been shielded when it should be open.

Under the heading "Shielding Information," we cite that subsection 10(1) of the act provides that "Every person has a right of access to a record or a part of a record in the custody or under control of an institution unless the record or the part of the record falls within one of the exemptions under sections 12 to 22." So while section 10 opens the door to information, sections 12 to 22, which cover exemptions, have the effect of shielding information.

Subsection 13(1) says that a "head may refuse to disclose a record where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by an institution." Subsection 13(2) lists the exceptions to the exemption rights of a head. These exceptions are mandatory and "a head shall not refuse under subsection (1) to disclose a record" covered by subsection (2). It is subsection 13(2) that allows our union access to information useful for collective bargaining and other purposes.

Subsection 18(1), however, provides that a head may refuse to disclose a record that contains information described in clauses (a) through to (g). A great deal of confusion has arisen when interpreting subsection 18(1) alongside subsection 13(2). Our interpretation is that subsection 13(2) relates to final plans and policies, whereas subsection 18(1) refers to plans and policies that have not been finalized. While at first glance subsection 18(1) may appear to be reasonable, in most situations we would ask that this government give it a second look, especially where new technology is being introduced.

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Under the heading "Technological Change," we are anticipating some new direction on the part of this government and we foresee a problem that may arise with the introduction of any legislation regarding technological change. Should the government enact comprehensive legislation on new technology, which we hope it does, fundamental to such legislation will be the need to disclose information on the kind of new technology and how it will be applied. In this situation we would foresee that subsection 18(1) can become a problem. Subsection 18(1) essentially allows the government to refuse to disclose information when in its formative stages. In situations where new technology is being formulated, it is precisely at this time that a union should be involved, not after a policy has been adopted and implemented. Should this government consider legislation such as a technology bill of rights, much of subsection 18(1) could in fact contradict an advance notice provision or interfere with negotiations on the type and design of hardware, processes, etc.

Technology, for those of you who are familiar with the process, not only involves just the hardware; it also involves a process of work. We feel that there has to be some sort of involvement of the union in the very initial planning stages before any policy is implemented.

We would ask this committee to consider an amendment that would create an exception to subsection 18(1) that will enable us to garner information to enable the union to bargain new technology in the workplace.

Another problem that we have experienced is with regard to third party information.

Mr H. O'Neil: Was that to bar any new technology? Was that your comment?

Mr Onyschuk: Not to bar new technology, no, by no means, but that we would be involved in the initial stages of the actual planning and negotiating the type of new technology, the processes, even to the extent of perhaps even designing it. In other countries, for example Sweden, the unions got involved in the design process of the hardware and when you see a computer with a detachable pad, like the keyboard, that is as a result of an actual union design that was implemented in the very formative stages and they got the engineers to then redesign the hardware so that people were not sitting with this piece of hardware that was doing damage to them.

The Chair: I am going to interrupt for a minute. Margaret, did you have a question?

Mrs Marland: I am happy to wait until the end.

Mr H. O'Neil: Sorry, I should have waited.

The Chair: I was wondering if the committee members could hold back until the end of the presentation. There will be ample opportunity for everyone to ask all the questions they need. You may proceed.

Mr Onyschuk: Under third party information, clause 17(1)(d) is supposed to protect sensitive labour negotiations information supplied to a mediator. It provides that a head "shall refuse to disclose a record that reveals...labour relations information...where the disclosure could reasonably be expected to...reveal information supplied to or the report of a conciliation officer, mediator, labour relations officer or other person appointed to resolve a labour relations dispute."

To us that language is very clear. It is a government-appointed individual who is involved to help resolve a labour relations dispute. So this section is clear; it is not a vague section and it is a reasonable provision. However, any head who reads page 4-15 of the manual on the Freedom of Information and Protection of Privacy Act supplied by this government can become thoroughly confused over the meaning of "third party information."

Under the heading "Categories of Third Party Information," the manual reads, "Labour relations information: The term refers to information concerning the relationship between employers and their employees, both union and non-union, particularly information relating to collective bargaining." That is quite a broad sweep and it covers the whole ambit of collective bargaining: Whereas the legislation is very specific, the advice that is being given to the people who will be administering this act in the workplace is a very general kind of definition which in fact bars much information that is needed by the union in many cases.

The manual, which provides a broad sweeping interpretation, should be corrected to specify exactly what would constitute third party information in a labour relations dispute, and I can cite you a few examples.

For example, in grievance handling, in competition cases where two or more people are competing for a position and one person is successful and the other person grieves, the person who is successful is regarded as a third party. We have had the employer denying us information citing the Freedom of Information and Protection of Privacy Act and we have had to actually subpoena documents to correct the situation. So we go through this hassle when all it would take is a clarification of what the Freedom of Information and Protection of Privacy Act actually applies to with regard to the third party.

We have also had situations in the past where we have tried to get information from the employer during bargaining, such as incident reports in institutions, where they refused to grant us incident reports. These would be incidents, let's say, in a correctional facility or a facility that deals with mentally ill persons where an incident occurred where maybe somebody bit somebody or fought and this would just be a list. So we wanted to find out exactly how many incidents were occurring for purposes of negotiating health and safety. We found that employer was stymieing us in this regard. So those are just a couple of examples where people cite the freedom of information act when the freedom of information act should not be applied.

Another criticism that we have, and I am sure you have probably heard this before, is the prohibitive fee for service that is present. Individuals who request information under the act may find that information is worth a lot of money to the provincial government. In fact, high fee-for-service costs may actually act as a deterrent to those seeking information. In the exhibits, we have some correspondence under appendix 2 from one of our members, Mr Misir, a member of our union, who questioned Sidney Linden, the Information and Privacy Commissioner, on an estimate of $9,503 for processing a request.

Mr Misir writes: "The estimated cost of $9,503.80 for processing my request is too exorbitant and is equivalent to 20 weeks' wages for a full-time file clerk. I do not think their estimate is reasonable since most of the information sought is stored on microfilm, microfiche or computer disk and can be easily retrieved."

We joined Mr Misir in questioning the high rate. For example, 20 cents per page for photocopies seems to be exorbitant. Then they provide a search after two hours and "record preparations including severances" costs $6 for each 15-minute period, amounting to $24 an hour. At that rate the staff would have to be paid $870 per week. If the government maintains that staff doing this retrieval work are worth $870 per week, we would agree; however, the government is not paying its staff this amount. The government appears to be gouging those who are seeking information that is legally theirs. We recommend that fee for service be based on the actual costs and not these higher and prohibitive rates.

Fortunately for Mr Misir, the costs were borne by our union. Otherwise the information he sought, which was being used to protect workers' jobs, may not have been affordable.

Under the heading "The Slow Runaround," we have had a common complaint about the slow process found under this act. We cite one example, and under appendix 3 you will find a request that we filed on 15 June 1989. A little over one month later, on 19 July, we received a response from the acting deputy minister of the Human Resources Secretariat, Mr R. M. Monzon, and it was dated 10 July. The postmark indicated that this letter had been mailed out 17 July, and you will find that in appendix 4.

OPSEU was refused the information based on subsections 12(1) and clauses 18(1)(f) and 18(1)(g). No rationale was provided as to why each detailed request was denied. The deputy minister, in a cavalier fashion, simply cited the gist of the sections. It would seem that the practice was to wait the full 30 days, and in this case a little bit more than 30 days, and then toss off a minimal response with no detailed rationale, even though there was plenty of time for a rationale to have been provided. We questioned whether this was step 1 of the runaround process.

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The onus then fell on OPSEU to justify its request. Section 53 reads, however, "Where a head refuses access to a record or a part of a record, the burden of proof that the record or the part falls within one of the specified exemptions in this act lies upon the head." So the act is very clear on where the burden rests, that they should be providing a rationale as to why rather than to simply cite sections. We question whether the acting deputy minister had indeed met the "burden of proof" test. What would constitute a proper response under these circumstances? Simply citing those sections of the act that were being used to deny us access was not enough. What was needed was a point-by-point rationale for his decision.

On 18 August 1989 OPSEU appealed the denial of information; see appendix 5. We offered a detailed response indicating, point by point, why subsections 12(1) and 18(1) did not apply. We maintained that the material requested was factual as is allowed under subsection 13(2) and that the information pertained to current and future plans based on current policy. We were not requesting information where the disclosure could reasonably be expected to result in "premature disclosure of a pending policy decision," which is found under clause 18(1)(g). The purpose of our request was to obtain information that would allow us to better protect our members whose jobs were being contracted out.

It would appear that the previous government seemed more interested in hiding behind the act to deny us information. Based on this experience, we would recommend that this government establish clear guidelines for what is required to meet the test of "burden of proof." The "burden of proof" rationale should start before a head issues a denial, not after an appeal is filed. I think that is an extremely important principle to incorporate in any regulations that you may change, that when a head is refusing, rather than just simply citing the act, he should cite the section of the act and why he has chosen that section of the act.

On 24 November 1989 OPSEU received a report from the appeals officer indicating that the commissioner was conducting an inquiry into our appeal. Finally, on 11 January 1990, we were informed that section 12 had been dropped as an impediment but subsection 18(1) still applied. So they found that the application of section 12 was incorrect but subsection 18(1) still applied, in their determination. However, the appeals officer added clauses 18(1)(c) and (d) to the exemptions and indicated we could then appeal these decisions. So of course we chose not to, because it would have further delayed it.

This example, spanning seven months, illustrates the inordinate length it can take to receive information under the act. We ask that this committee look into ways of speeding the process. We have experienced delays of up to two years when requesting information about contracts that were awarded in a crown transfer situation from the Ministry of Natural Resources. Even though a court had ruled that a crown transfer had indeed transpired, OPSEU was stymied when attempting to obtain information about the nature of the contracts. By the time we received this information it was not helpful to us; it was too late. We are not saying that in every instance there are inordinate delays; we are saying that the act does not provide for speedy retrieval of information. In fact, in many cases we have had a very quick response from some of the ministries.

Under the heading "Balancing Privacy and Safety," an important issue that we are very concerned about, we are also concerned about how interpretation of the act could have serious affects on the job safety of our members. In the fall of 1990 an inmate of the Wellington Detention Centre applied under the act to see his personal file. The superintendent of the institution was ordered to disclose the information. The inmate had a history of unprovoked violent behaviour towards correctional staff. His file contained the names of correctional officers who had recommended disciplinary procedures against the inmate. The superintendent informed the staff named in the file that the information in the file was to be released to the inmate. The staff objected to the release of the information on the grounds that disclosure may provoke the inmate to violent behaviour towards those named in the file.

The superintendent felt bound to release the information as required by the order under the act. Fortunately, OPSEU was asked to intervene on the issue of health and safety of staff. After some discussion the superintendent was persuaded to remove the names of the correctional officers from the file. Had the union not been asked to intervene, this disclosure could have had disastrous consequences. And unbeknownst to this superintendent, the act does provide measures to protect the privacy of officer members, under clauses 14(1)e and 14(2)d, section 20 and clause 49(e). However, heads who are called upon to apply the act may not be aware of these protections.

While the act does provide some protection, those responsible for interpreting it are not properly trained to interpret it, so there is a major fall-down. It is a very complicated piece of legislation and people are not being trained as to how to apply it, especially when it comes to health and safety situations.

Under the heading "Violent Inmates and Patients," related problems occur when violent or psychopathic inmates or psychiatric patients are placed in general settings and staff are not informed of their violent proclivities. By not forewarning a correctional officer or a psychiatric nurse that an inmate or patient is potentially dangerous, a serious safety risk is presented.

When clients, patients or inmates are known to be dangerous, proper training should be provided to all staff on the "public interest override" known as section 23 of the act. This section gives the head the discretion to disclose information and override an exemption where the public interest outweighs the purpose of the exemption. Health and safety of staff is public interest that should apply to dealing with dangerous offenders and patients. Our members should know whom they are dealing with and not have to find out from a hospital bed.

Finally, under "Listing of Documents," it is our submission that it is in the public interest to know what issues the government is working on. Each ministry should disclose a list of all studies and policy documents that are accessible under the act. Likewise, each ministry should indicate the titles of those documents that are deemed confidential and not yet accessible. This would save a lot of time and expense in situations when someone requests a document that has been exempted under the act. Quite often we will file under the act, only to find out that there is legitimate reason why certain sections cannot be released.

Just one additional point along the same line: Quite often we will receive a document to find a lot of blacked-out spaces, with maybe the odd reference to a section of the act but no rationale provided. We really do not know whether or not the wool has been pulled over our eyes. We would like to see a situation where, if there are sections being blacked out, there is an explanation in the margins as to why those sections are being blacked out and not just simply citing subsections 18(1) or 14(2) or something that.

We thank the committee for consideration of this submission, all of which is respectfully submitted.

The Chair: Thank you for your presentation. We now have questions and we will begin with Mr O'Neil.

Mr H. O'Neil: Let Margaret have it.

Mrs Marland: Thank you, Mr Onyschuk. In your introduction on page 1 you make a very strong statement in the second paragraph where you suggest that you would be "concerned that information that was previously accessible would be closed off. We have found that information that had been informally obtained before the act was passed was now being denied us, forcing us to use the FOI request procedures."

I think that is a very significant statement in your presentation today and I was wondering if you could give an example of what you mean by information that had been informally obtained before, because I am wondering how significant that information was that it now had to be under the act.

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Mr Onyschuk: Most of this information was pertaining to collective bargaining situations, such as memos that would be brown-paper-enveloped to us of maybe a minister requesting that there is a need for an expansion of staff, matters such as that. It was very common, in fact, for us to receive this kind of information. Assistant deputy ministers would be corresponding with somebody else or a department head would be just corresponding, saying, you know, "We're being hard pressed; we're just understaffed." Primarily in those kinds of situations now we find that this kind of information is no longer forthcoming. Technically, I do not think that would apply under freedom of information, but we would not know of this information.

Mr H. O'Neil: That is a pretty strong statement there too, "It's not happening now."

Mrs Marland: Excuse me, Mr O'Neil.

Mr H. O'Neil: Sorry about that, Margaret.

Mr Owens: Ask the employees now, for a change of pace.

Mrs Marland: I find the --

The Chair: Excuse me, Margaret, just for one minute. If the members of the committee could direct remarks to the Chair, please.

Mr Owens: Excuse me, Mr Chair. We should ask the employees, for a change of pace.

The Chair: Everyone will get an opportunity to put questions. Margaret.

Mrs Marland: He will give you your turn, Steve.

Obviously in this building we are all privileged to the brown paper envelope route. I have even received chocolate bars in plain brown wrappers from former cabinet ministers, which I enjoyed thoroughly.

I thought perhaps you would give another type of example, because the plain brown wrapper route is going to continue regardless, because that is part of a system that exists and I am sure it would exist in your offices as it exists in ours that we get stuff under the door from sources unknown.

I am just wondering if that really is the route that has been cut off now because, I mean, that was an informal, unofficial source for you before. I find it hard to imagine that kind of source would now be limited to formal freedom of information requests. So is that really a example of what you mean in this second paragraph?

Mr Onyschuk: There is another example, of a high-level official with the Ministry of Correctional Services who did some whistle-blowing. He was upset, again, about the shortage of staff and the dangerous situation some of our staff were being placed under. Consequently the employer got hold of the name and this person was released. Of course, one of the purposes of the act that we see is that it should allow for whistle-blowing when it comes to especially revealing hazardous situations.

Mrs Marland: Absolutely.

Mr Onyschuk: It is a tragic situation.

Mrs Marland: Who was released?

Mr Onyschuk: The senior person was released.

Mrs Marland: Really? I suppose that has been grieved and is in process?

Mr Onyschuk: At that level, I do not know if a grievance was processed under the Public Service Act. That would be the only recourse. I am really not familiar with what transpired afterwards.

Mrs Marland: I happen to believe that wherever anybody works, if there are situations of concern -- whether it is a physical risk or some other kind of risk to an employee -- I feel that those kinds of concerns should be permitted to be brought to the attention of the administration without any risk to the employee.

Certainly, having travelled the province on two bills dealing with workers' compensation and occupational health and safety, I am well aware of some of the examples. You just mentioned an example with the Ministry of Correctional Services where under-staffing really did put the balance of staff at risk.

I would hope that we would not get into a system in our Ontario government bureaucracy where in order to get that kind of information out where that kind of situation exists we do not have to go through a process of filing for that information through the freedom of information act. If that is what you are saying in your second paragraph, then I do have a great deal of concern with how the system works. That is why I was wondering, when I asked for an example, because we, as a government, cannot have our employees or other workers in any workplace in this province at risk because it takes six months or 12 months to get the concrete information extracted in order to make a legitimate claim of risk for those workers.

Mr Onyschuk: I think much of the criticism we have of the act is not necessarily in the area of wording per se but in the actual application. In the examples we cited, for example, health and safety, there are sufficient provisions within the act for health and safety coverage. In fact, the Occupational Health and Safety Act overrides all acts, so there is provision there. However, some of the heads are not informed, and I think that is where the danger lies. It is incumbent upon the government as an employer to apprise the heads who will be utilizing this act to indicate that in certain instances there are health and safety issues and here is where they are covered under the act, so when it comes to gathering information this information will not be denied the union, nor should the union have to go through a prolonged process of appealing and so on.

But the other key things I pointed out are the inordinately slow process it takes to gather legitimate information that is necessary; also, there is some confusion between the wording in the act and the interpretation provided in the manual. The example I cite under the first exhibit shows there is a contradiction in interpretation. If you look at the act there is a plain meaning of the act; it is very clear what "third party" means. However, the interpretation found in the manual that is sent to the heads is very confusing, so consequently it leads to a lot of bona fide information relating to collective bargaining or to grievance handling being denied us, and we have to go through a hassle to try and retrieve this information.

Mrs Marland: You state very clearly that too much discretion is left to the department head. I think there has to be some kind of wording we can make in our recommendations for any changes to the act where the discretion of a department head does not put at risk either his or her job on the one hand or the employees' on the other, in any workplace, not just a government workplace.

I have another question on page 2 that I found very interesting, in your second paragraph, where you say, "A head may refuse to disclose a record where the disclosure would reveal advice or recommendations of a public servant." I did not know, because I do not think any of us know the act -- all whatever number of pages there are in this act; I suppose a couple of hundred -- I do not think we know the act well enough to know every section and the wording. But is it not colossal to think that the advice or recommendation of a public servant is not accountable? Why should a head refuse to disclose a record where the disclosure would reveal advice or recommendations of a public servant? If a public servant is giving advice or making recommendations, surely he should not be doing that if he cannot be accountable, so what is the concern about revealing it?

Mr Onyschuk: We have no concern in this case. What we are doing is just citing the delicate balance between subsections 13(1) and 18(1), that there is an area where policy is being formulated. We interpret that subsection 13(1) is looking at where you are asking for advice; you may ask for advice from 20 different sources, but once the final policy is determined there should be the basis of accessing information; and after the policy has been brought into play it is the exemptions. So we are just showing the delicate balance. On the one hand you have an area, and it is logical why these areas are cut off from view at this stage, but after policy has been implemented then this information should be accessible to view.

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Mrs Marland: But as a representative of public servants, which you are through this union, do you not agree that this section in the act in itself is a little ludicrous? For example, maybe he or she is in a job where giving advice is all he does, that is what he is paid to do as a government employee, or is giving recommendations. Surely they should not be shielded from that; if they are paid to do that, surely they have to be accountable for what they do. Why should they be shielded? Why should that be there?

Mr Onyschuk: I think you are asking the wrong person. My interpretation, and I may stand corrected, is that I presume this is to deal with situations in the formative stages, and there is a certain logic to it, because let's say somebody prepares a document and it is way out in left field; policy is going in one direction and you are garnering information from many different sources. Until the policy is determined, there is a certain logic to shielding that particular information. I presume that is the purpose.

Mrs Marland: Project X of the former Liberal government would be a good example, I suppose.

Mr H. O'Neil: Which one was that?

Mrs Marland: That was the one where the bureaucracy was blamed for suggesting major changes that would affect the Environmental Assessment Act and the Environmental Protection Act and future development in the province. It was labelled project X and was palmed off as a civil servant document, not a government document.

I will not monopolize the time any more. But I want to tell you, Mr Onyschuk, that I certainly agree totally with your comments about the fee for service. I feel the fee for service should cover the cost, the real cost, of providing this information to the public, and your union and your members are the public the same as anyone else. I do not think the system should be prohibitive through its cost. If it is truly access to information, it has to be accessible to everyone. I am sure that is going to be an area we will be spending some time on when we discuss possible amendments to the act.

I can also understand what you are saying about the pivotal department head in every instance being an area we have to look very closely at. It seems to me there is an awful lot of latitude in that interpretation as to what their powers of discretion are. I appreciate those points you have brought to us today.

Mr H. O'Neil: I also appreciate receiving the brief and some of the comments, although not all of them. Margaret raised that concern about that second paragraph. Are there any examples of ministries or agencies that are not supplying quick answers, or refusing when they should not be refusing?

Although you have touched on one example you feel, I do not feel you have given us enough examples to really substantiate what you have said in the brief. In other words, you are comparing before with now; again as Margaret mentioned, your statement, "We have found that information that had been informally obtained before the act was passed was now being denied us, forcing us to use the FOI request procedures."

In the hearings we have had some people who have come before us who have experienced some of this through the different ministries. I would like to know what those examples are, what the ministries are and some more details. If you cannot give them to us today, maybe you could supply it for the committee in some type of written addendum to this. In a lot of the cases, we find there are some reasons it was not given. Are there any other examples you could give?

Mr Onyschuk: I think this would be an excellent example of how we could use the freedom of information act to gather that information of all the times OPSEU has applied using the freedom of information act and the time it has taken from start to finish for that information to be forthcoming and how many denials have occurred. It would take a fair amount of effort on our part to go through, individual by individual, because it is not only our staff involved in accessing information, it is also members out in the field. This may be an example, if you want to test it, to see just how quickly you can retrieve information under the freedom of information act. I am sure there is a central area where all the files have been logged, so this information should be accessible.

Mr H. O'Neil: Mr Chairman, that is maybe something we should check into, but, again, it is like you drawing the line and saying, "Before FOI we had no problems or not very many problems; now we have more since FOI came in." I find that hard to really comprehend.

Mr Onyschuk: I think what happened after the FOI came in was that everybody was put on guard, that there was a process and you better watch yourself because there is now this legislation that covers it. I think as a consequence people erred on the side of protecting their backside, whereas before it was a little more informal.

In fact, it was a sort of amusing situation I faced. When I first came on staff with the union, it was known as the Civil Service Association of Ontario. I came on staff as a research officer and I used to receive information that should have been going to the Civil Service Commission from various employers who were being surveyed on jobs, so I was getting all this confidential information because the employer thought the Civil Service Association was the same as the Civil Service Commission. I would note down the information and forward it to the Civil Service Commission, so we were being apprised of a lot of information, mainly through the title our organization then had. Once we changed to the Ontario Public Service Employees Union, that information quickly dried up as those errors were no longer being made. But I think once this act came into place, the informal approach became formal.

Mr H. O'Neil: People were on guard for fear they would release something they should not.

Mr Onyschuk: That is right.

Mr H. O'Neil: One of the other things you raised was this particular case of a $9,000 fee. Could you give us some more particulars on what that case was and what you were charged for?

Mr Onyschuk: You will find it in the exhibits. It is all there, and it is broken down in terms of the charges.

Mr H. O'Neil: We just received this, so we did not have a chance to look at the enclosures.

Also, you were mentioning several things, that it might be business, dealing with patents or certain changes in industrial work. You are saying that unions should be involved and help with the planning and things like that.

Mr Onyschuk: With new technology, the experience in Europe has shown that unions have been involved from the initial planning stages. When the employer decided it was going to be introducing new technology, it would then inform the union and involve the union in the actual informal discussion stages right through to the formal planning. This seems to have worked. As a result of this process, the union has always felt comfortable with that kind of process.

Right now there is no legislation covering new technology. In Canada, you may find it in a few jurisdictions. Federally there is a disclosure process in the federal legislation. The Public Service Staff Relations Act provides up to, I believe, six months' prior disclosure that they are going to be introducing new technology. What we would like to see ideally is that as soon as the employer is anticipating bringing in any technological change and the process of technological change, this be disclosed to the union and they sit down and actually hammer out the policy with regard to that, because it affects the health and safety of workers as well as the general working conditions and so on.

That is why we feel it is important that we be involved at all stages, and hopefully with this new government it will bring down some major legislation in the area of new technology.

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Mr H. O'Neil: You keep referring to the new government as making all these changes and no more brown envelopes. You might be a little biased.

You were talking about Europe, where this has been used, and different cases like that. How do you see things working here if the unions were brought in on some of the planning on these new technologies and changes? What if the new technology results in quite a few job losses? How do you see the union approaching that and working with the company, if it is in competition, maybe, with other countries or other companies in retaining some of the jobs and possibly losing some of them? How is that handled in Europe?

Mr Onyschuk: That is exactly why the unions should be involved in the initial stages, because they can then plan the job in such a way that there is no job loss. If productivity increases then there is a valid reason for keeping a worker on. We have had a traditional slogan of a shorter work week over decades as productivity increases. You have heard slogans like 30 for 40 and 40 for 56 and so on, but these are long-standing demands of labour that the workers do benefit.

If you are bringing in new technology and you have already decided that you are bringing it in and after you have made up your mind you will now negotiate the impact on work, then there is something wrong there. It should be that if it is going to have any kind of impact on work, why not sit down with the union or with the workers and say: "Okay, to compete with so-and-so, we want to bring this in. What suggestions do you have? How are we going to protect workers? What about retraining? What about the whole aspect of job enrichment, job location?"

How can we redesign the job, never mind the technology but redesign the job, so that the technology and the job are working hand in hand and you have a humane kind of relationship, as opposed to adopting a Ford or the factory approach to jobs, where you have people doing the same mundane task, except now they are using a computer to assist them to do a mundane job? There are elements of job design that are quite exciting and could lead to some very innovative work. The management rights provisions under both the law, the Crown Employees Collective Bargaining Act, and under provisions of collective agreements deny workers any major say in terms of new technology. We negotiate the effects of new technology. We do not negotiate new technology.

Mr H. O'Neil: I do not disagree with most of what you have said. I think what you have said is that if people can work together like that, it is to the advantage of both the companies and the employees.

Going back to the other point that Margaret raised on shielding or employees giving advice, I guess having been a minister for over five years in the previous government it is my own personal feeling that I do not think employees should be held responsible for the advice that they give, whether it is verbally or in writing. I think that advice is used to help formulate policy for a minister and for the government, and in the final end it is the minister, along with the deputy and the government itself, who makes the final decision. I feel you would sort of hold back advice coming from civil servants if you were to place them in such a position as that, so I guess I am for, if you want to call it, a type of shielding for employees of the Ontario government or any government. I think they should be able to give their opinions without being held to ransom.

I guess in closing, getting back to the brown envelopes, we are still getting them, and I do not think you should think just because the new government that is in there and you have close ties with it -- you may have close ties with us in the future when you get a few problems, and we already have some of your employees sending those brown envelopes. I mention that just in passing.

Mr Owens: I think the difference would be, though, that at least our envelopes are recycled paper as opposed to the type that was used in the final stages of your government.

Further, I would like to invite Mr O'Neil to my office one day and we can go over the finer points of tech change and the importance of that type of language in collective agreements. As Mr Onyschuk quite accurately points out, it is actually a time- and money-saving device that is quite often not utilized by employers and it tends to strain the relationship.

As a person coming out of a unionized environment, I can tell you of a number of occasions where the employer introduced new technology without the benefit of consultation. It led to weeks and months of wrangling and expensive grievance arbitration procedures.

My question to Mr Onyschuk is around the health and safety concerns that you raised. As a person coming out of a health care institution, I can tell you I have lost count of the number of times the words "patient confidentiality" were used to prevent our workers from being informed as to how they could protect themselves from the various and sundry diseases that patients bring into hospitals.

My question is around the health and safety act and how that relates with the type of problems you are having around receiving information. The act does not require a duty on the employer, as you are probably well aware, that information and assistance be forwarded to the health and safety committee. Are you having difficulties around that in terms of finding out the kinds of information that would be useful to your membership in protecting the membership, and what steps have you taken to rectify that?

Mr Onyschuk: I think the most common complaint is in common settings, let's say in a mental health centre where you have a patient who is very violent and he will be put into the common area as a practice. The staff do not know the background of that particular individual. It could lead to and has led to all sorts of what are referred to as "incidents."

Similarly, with the correctional facilities you have correctional officers who are put into situations where they do not know the background of an individual. They may be escorting an inmate, for example, and it is previously known that this is a person who tends to try and break out and would use violence to try to achieve his goal. Instead of having the proper number of correctional officers accompanying this person, they just may have one or two and consequently an escape occurs.

Of course, there is also the violence that quite often ensues with other situations where you have somebody who is transferred from a hospital setting into a correctional facility and it is not known that this person is psychotic and extremely violent. This information is not passed on. Now, we would ask that the override provision be applied here and that the heads in these cases would forewarn the staff that you have got a person here who has got a proclivity to or a record of violence. In a case that we cite about a person who has a hatred of correctional officers, and them having access to the information about who put what down on the record, that could have led to some sort of dangerous situation evolving. But we do have the situations. If you talk to any correctional officer in any facility, they can cite examples of that where they find out afterwards that so and so is a known violent individual.

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Mr Owens: In that case, what steps would be taken by management to ensure that that situation does not happen again, or is this an ongoing problem that is ignored by the corrections officials?

Mr Onyschuk: It tends to be ignored. This is what we are saying: that this information should be taught to all heads so that they know there is provision in the act for this information being provided, and it should be made very clear in every instance.

Mr Owens: In terms of the fees, the $9,000 that you were charged for the search, what is the average amount of money that your group spends per year on FOI searches?

Mr Onyschuk: You have me there. We have not done a compilation. It is difficult for us to do. We could probably very readily find out from head office what transpired out of head office. Then you have the regional offices and you would have to get a record of that, and then there would have to be what individual locals have been doing on their own. So it would be a major digging process on our part. We just do not have the facility at this point to be able to access that information.

Mr Owens: If we were going to look at changes to the fee structure, I am of the opinion that we should perhaps look at a one-time charge at the beginning of the process. You pay whatever number of dollars, whether it is five bucks, 10 bucks, or whatever the committee and subsequently the Legislature decides. Would you see that as being a reasonable suggestion, or what are your thoughts on that?

Mr Onyschuk: Given the fact that most information is put into a computer, it should be relatively easy to access, especially if there is a process where documents are logged in and ministries note down beforehand all the documents that are now public and those that are not public, and it would be easy in this manner. I would agree that probably you could have some sort of reasonable basic charge for the service so it would not be prohibitive.

I guess when they put this fee-for-service aspect in, it was to stop, I guess, fishing expeditions. People were going and asking for everything under the moon, and that would, of course, tie up a lot of staff and so on in exploration. But if you have the information known beforehand, "Here are the following documents and here's what they cover," then it would stop the fishing expeditions that could go on. I would agree that there just may be something worth while exploring in terms of trying to make it more accessible and reasonable for cost purposes.

The Chair: Thank you for coming here today and making your presentation. I am sure what you presented to us today will be helpful in our deliberations in making recommendations and changing this act.

The other witness who was scheduled for the hearing today has decided not to appear before the committee but instead to submit a written brief.

Are there any other items that the members wish to bring before the committee today? Hearing none, we have an item that we wish to review in camera. At this point could I have a motion to move to in camera? So moved.

The committee continued in camera at 1636.