Legislative Assembly of Ontario

RESIGNATION OF VICE-CHAIR

FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT, 1987

CANADIAN BAR ASSOCIATION -- ONTARIO

LITA-ROSE BETCHERMAN

HASTINGS AND PRINCE EDWARD LEGAL SERVICES

CLINIC STEERING COMMITTEE ON SOCIAL ASSISTANCE

ONTARIO ASSOCIATION OF FIRE CHIEFS

CONTENTS

Wednesday 16 October 1991

Resignation of Vice-Chair

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

Canadian Bar Association_Ontario

Lita-Rose Betcherman

Hastings and Prince Edward Legal Services

Clinic Steering Committee on Social Assistance

Ontario Association of Fire Chiefs

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)

Substitutions:

Daigeler, Hans (Nepean L) for Mr Morin

Sterling, Norman W. (Carleton PC) for Mrs Marland

Clerk: Arnott, Douglas

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

The committee met at 1535 in room 151.

RESIGNATION OF VICE-CHAIR

The Chair: The standing committee on the Legislative Assembly is gathered this afternoon to continue our review of the Freedom of Information and Protection of Privacy Act, 1987.

Before we begin that, I would like to read a letter I received from Ellen MacKinnon, the member for Lambton. It says:

"Dear Mr Arnott,

"I hereby submit my resignation as the Vice-Chair of the standing committee on the Legislative Assembly, effective October 16, 1991.

"Please convey my appreciation to members of the committee for their co-operation during my tenure as Vice-Chair. I would also like to thank you for your assistance, and trust that you will be equally helpful to my successor."

I move the committee receives this and I understand --

Mr McClelland: Go ahead. I just want to get on your list.

Mrs Marland: We both do.

The Chair: Okay. I understand this issue will be dealt with next week when things are worked out between the House leaders. Margaret, were you first?

Mrs Marland: I will bow to the loyal opposition.

Mr McClelland: No, she was first. Ladies are always first in my book.

Mrs Marland: Obviously, this resignation comes as a surprise to us. I just want to say on behalf of our caucus that we will accept Ellen's resignation with regret. I hope, however, your caucus is moving you, Ellen; that you are going on to bigger and better things. We regret your need to resign for whatever reason. We certainly hope the Premier will ask us which of the other members would be a good replacement.

Mr McClelland: I do not understand why Mr Owens is laughing so much. I second the sentiment. I simply want to say, Ellen, that one of the comments made from time to time in this place is that this committee, more than any other, seems to operate on a level of camaraderie and non-partisanship. You have been a contributing factor to that.

Since we are on the record I will be very selective in what I say, but I want to say that the first time we went on the road together dealing with this legislation that is before us -- we went to Ottawa -- was shortly after we were elected to this Parliament. You were a new member and it was my second time back, albeit in entirely different circumstances. I want to say that at that point in time, when I really first got to know you, you indicated something that was consistent with what has been said about this committee: that you are certainly committed to people and to your riding. Whatever capacity you serve around this place -- I do not know what committees we may be serving on in the future -- thank you for the contribution you made to this committee. It is appreciated by us all.

Mr Owens: Just a quick comment. I want to echo the sentiments of my colleagues opposite, Ellen, that your contribution to this committee has been one of substance, one of warmth and one of humour. The same road trip to Ottawa -- some well-needed laughs during some fairly dry meetings. I am sure at the appropriate time you will be able to share with us where you will be taking up your new post. On behalf of your colleagues on this side of the committee, we appreciate your hard work and of course we will continue to look forward to working with you.

The Chair: Thank you again, on behalf of all the committee. I think we appreciate the work you have done as Vice-Chair, which contributes to the fact that this committee operates on a fairly non-partisan basis, and hope that whoever your replacement is, he or she will continue to operate and work in that vein as well. On behalf of all the committee again, thank you for the last 12 or 14 months sitting as a member of this committee.

Mrs MacKinnon: Thank you, everybody.

FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT, 1987

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

The Chair: We will begin our deliberations on the Freedom of Information and Protection of Privacy Act, 1987.

CANADIAN BAR ASSOCIATION -- ONTARIO

The Chair: Our first group of witnesses is from the Canadian Bar Association -- Ontario. Welcome to the committee. You have one half-hour to make a presentation, but I advise you to leave some time for members to be able to ask you some questions. If you would begin by stating everybody's name and the position they hold within the organization, please.

Mr Alexander: It gives me pleasure as the president of the Canadian Bar Association -- Ontario to appear before your committee today and to introduce to you the members of the special committee of our organization on the review of the Freedom of Information and Protection of Privacy Act. They are Heather Mitchell; Penny Bonner, the chair of the committee; Colin McNairn; Christopher Woodbury, and Janice Rubin.

The CBAO, as you know, is an organization of lawyers in the province of Ontario, a voluntary organization which has some 16,000 members and from time to time brings its message, when we are able to be heard, to this House and to its committees in response to circumstances as we see them. We hope the spirit in which we bring our message will always prevail on its receipt. We do so in a spirit of co-operation and as citizens of this province in an effort to do what we feel is in the best interests of its citizens. We trust we are never perceived as being the messenger who should be shot, but rather the purveyor of our sincerest and best-held views on matters that we feel are not only dear to us but of importance in the day-to-day lives of the public we all serve.

I would now like to introduce Penny Bonner, the chair of the committee, who will proceed with the message to you.

Ms Bonner: Again, I would like to express our appreciation for the opportunity to talk to you about our submission. What I propose to do is simply to introduce the members of this special committee that has been struck by the Canadian Bar Association -- Ontario to deal with this issue and give some of their backgrounds that relate to their expertise in this area. I will highlight a couple of the recommendations we have made that we feel are most important and then simply take any questions the members of the committee may have for the members of our special committee.

Colin McNairn is a partner in the firm of Fraser and Beatty. He was formerly a professor of law at the University of Toronto and is the author of two books, one being Governmental and Intergovernmental Immunity in Australia and Canada, and is the co-author with Mr Woodbury of Government Information Access and Privacy, which was the first updated reporter series that was published in Canada that relates to freedom of information legislation in all the provinces and at the federal level.

Heather Mitchell is a Toronto lawyer who started working on freedom of information issues in 1975. She did a research report commissioned by the Consumer Research Council of Canada and since then she has written and lectured extensively with particular reference to the concerns of journalists and other requesters. Heather is the co-author of the book Using the Access to Information Act, the federal statute, which was the first to come in, published by Self-Counsel Press.

Christopher Woodbury is a partner with Fraser and Beatty as well and is the manager of the firm's research department. He is the author, with Mr McNairn, of Government Information Access and Privacy, which is an annually supplemented book dealing comprehensively with FOI and privacy issues in force across all jurisdictions.

Janice Rubin is an associate lawyer with the law firm of Blake, Cassels and Graydon, where she practises civil litigation and administrative law. She has special expertise in this area from working at the Information and Privacy Commissioner's office during her articling year taking her bar admission course.

I should try to tell you what the focus of the interests of the members of the committee has been in relation to this submission. Heather has certainly been focusing primarily on the concerns and interests of requesters, of users of the legislation. Colin has been focusing on the procedures and rights affecting third parties; they can be both individual or corporate. Christopher is our expert on the protection of privacy aspect of the legislation, and Janice has focused on the appeals process and procedures.

I should give you a little bit of my background. I am a partner with Osler, Hoskin and Harcourt and have been working on FOI issues ever since the federal act was introduced when I was practising in Ottawa. I have acted at the federal, provincial and municipal levels for users, requesters, institutions and third parties, and tend to speak a great deal at conferences trying to explain to co-ordinators what the interests and problems of third parties are. I was also a member of the CBAO committee that made representations to the legislative committee when this bill had just received second reading. Heather and I were both members of the CBA national committee on the parliamentary review of the federal statute in 1986.

We have tried to put together a fairly broad cross-section of the practitioners who deal with the act.

One thing that happened when we first met was that we realized there was no desperate need for any substantial amendments to the act. It was a sign I think that the act had been very well drafted initially and that it was working reasonably well as intended. Most of the concerns expressed about the act dealt with the implementation of it, either procedural problems or delays inherent in the process. We did not focus then on trying to find glaring deficiencies in the act, because they simply were not being expressed by the members of the legal community.

We decided to focus the structure of our submission on responses to the amendments you received from the Information and Privacy Commissioner, feeling in many cases there were amendments that office had proposed that we could support or that we had reason not to support. You can take it from our submission that where we have accepted a recommendation of the Information and Privacy Commissioner without any further comment on it, it means we adopted its rationale and reasoning for the amendment.

What I would like to do now is highlight a few of the recommendations that we feel are most significant in our submission. One is a recommendation that does not lend itself to an amendment by your committee. It is the one contained at paragraph 30 of the submission on pages 32 and 33. That is a plea for more detailed reasons being issued by the commissioner in his orders. We have found that the more detail that can be given in the orders, the more we can build up a body of jurisprudence, the greater the understanding of the act will be. All we can hope is that you find it within your means to perhaps mention in your report that this would be a positive step.

The other thing I mentioned earlier was that there are concerns about the delays that have been perceived with the implementation of the act both in the institution responding to requests and in the processing of appeals by the commissioner's office. I have to tell you that delay is an issue that has divided the legal community. When we are acting for requesters, we certainly oppose delay vigorously. When we are acting for third parties, it may be that delay is in the interests of the third party, but we do believe that it is not the spirit and intent of the legislation that delays should be encountered on a regular basis.

1550

What we have done in relation to that concern is propose two amendments. One adopts the commissioner's recommendation that there be a disincentive imposed upon the institution for failing to adhere to the time limits. The commissioner has proposed that he be given the authority to order waiver of any fees charged by the institution where that institution has failed to comply with its time limits. We support that recommendation.

We have also proposed that within the commissioner's office there is a procedure for settlement or mediation prior to the appeal going for full inquiry before the commission. We have found that appeals tend to languish at that mediation settlement stage when it is clear from the parties' positions that there is absolutely no possibility of settlement. What we have proposed is, with the agreement of the parties, after 60 days, if no settlement is apparently achievable, then that matter should move immediately to full inquiry.

One substantive amendment we have proposed is: The act currently contains a provision that the head of the institution may refuse to confirm or deny the existence of a record if the exemption claimed for that record is law-enforcement or personal information. We feel there are situations where the injury that the exemption is intended to protect could occur simply by the head of the institution confirming or denying the existence of that record. This is a recommendation that is contained at paragraph 6 of our submission and it coincides with the wording of the federal act. We simply suggest that this discretion be given to the head for all exemptions in the act.

The other very important procedural amendment we have focused on is contained at paragraph 8 of the submission on pages 8 to 11, and that relates to the third-party procedure. This is the situation where a third party receives notice that a record has been requested that the head intends to disclose, and gives that third party the opportunity to make representations to the head within a 20-day period as to why the record should not be disclosed. We have encountered situations where the third party is in an impossible position either to decide to make representations or to structure the content of those representations because the third party does not have ready access to the record. We are proposing that a copy of the record be sent along with the third-party notice. Again, this is the practice under the federal statute and we certainly feel that it will end up enabling third parties to make better-reasoned representations and also to meet their 20-day time limit.

Those were really all the recommendations I wanted to highlight for your attention, and unless any of the members of my committee have anything to add, I would just open ourselves up to questions that any of your members may have for us, Mr Chair.

Mr Owens: Thank you for your presentation. On page 22 of your submission, point 19, you bring up the issue of computer matching, which you did not mention here today. I wish you would talk a little bit more about that because that is an issue that concerns us from the privacy side. Also, if you have any thoughts on extrapolating the computer-matching problem to protection of privacy in the private or commercial sector, where people are now being requested to divulge more and more personal details about themselves to commercial operations.

Ms Bonner: With your permission, I will pass that one along to Mr Woodbury, who is our expert in that area.

Mr Woodbury: The issue of computer matching is a serious one I think. As we indicated in our submission, we support the recommendation made by the Information and Privacy Commissioner that a special task force be set up to report, he has suggested within six months, on the whole issue of computer matching and the need for certain safeguards to prevent potential violations of personal privacy. As I am sure you are well aware, the advent and development of computer technology has not necessarily affected the amount of information governments have collected, but it certainly makes that information much more accessible. Previously the information was in cabinets and files and was essentially inaccessible. It was too difficult to make it available to make it a serious concern.

The problem as we see it is that the current legislation does not deal with computer matching at all. We support the suggestion of the commissioner that it is an issue that needs to be addressed. It deserves a full and complete review by a special group that is dedicated to reviewing that. It is not something that we feel can be addressed simply by amending this piece of legislation. It will require more than that, although it may well be that some amendments, if any are made, would show up in this piece of legislation.

I do not know if that is responsive to your question. The concern simply is that all sorts of information regarded as personal is provided, for a variety of purposes by individuals of this province, to the provincial government. Although the act deals with restrictions on collection and use of personal information by the government, as I say, it does not address the issue of the extent to which computer matching is possible or permissible. There are no safeguards against it occurring and we think it is an issue that needs to be addressed.

As to your second question, that opens up a whole new area that I think is frankly beyond the mandate of this committee to comment on.

Mr Owens: Thank you. Mr Chair, I would like to ensure that we highlight this recommendation and this issue to the minister when he makes his appearance here later this month. It is an issue we have all tried to grapple with. We need to bring it to the minister's attention with a view to perhaps implementing that task force or some method of gaining a better handle on exactly what is going on out there and what the capabilities are in the future, again with a view to ensuring that people's privacy is protected.

The Chair: Each committee member will have an opportunity to question the minister at the end of the month. This is just one of many issues that should be brought in front of the minister. I hope all members of the committee will use the opportunity to do so.

Mrs Marland: I wonder whether our deputation would like to comment on the exemptions to this act. We have just gone through the experience with TVOntario. We received an auditor's report on TVOntario. Because of the Act, the pertinent information in that report is not available to us as members, and obviously not to the public.

I wonder whether you have an opinion on such non-disclosure by government agencies, boards and commissions and crown corporations, where the public taxpayer dollar flows. In some circumstances the public has no real way of knowing how that money is being spent or even what money, quantitatively speaking. The whole business of some of these organizations -- some 800 in the province, though not all exempt -- is shrouded in secrecy, and yet it is public money that sustains their business.

Ms Bonner: I will ask Heather to speak to that one.

1600

Ms Mitchell: It has always been the bar association's position on the issue of coverage that the widest number of boards and agencies should be covered and information about them should be exempt, according to exemptions in the act. We have not addressed coverage in our brief, and perhaps that is an oversight on our part.

To deal specifically with TVOntario, we do not really know what the facts are in that case. The bar association is on record from its earlier brief several years ago as recommending the widest possible coverage of agencies and boards.

Mrs Marland: Are you saying, Heather, that by the widest coverage you mean the widest access to them, or the widest exemption? I do not know which way you are saying it.

Ms Mitchell: As far as coverage is concerned, the greatest number of ministries, boards, agencies and commissions should fall under the act, and it is the information that should be subject to the exemption, not the institution.

Mrs Marland: So where the information would be of a very personal nature, there would be reason for exemption, but in general you would see the exemptions as unnecessary.

Ms Mitchell: I guess I am not expressing myself clearly. Exemptions go to the kind of information that any institution has, whether personal information subject to the privacy exemptions, or commercial information subject to the exemptions for commercial confidentiality. All those apply to information but, with respect, I think what you are addressing is whether the institution itself should be subject to the provisions of the act. The bar association is on record as saying that as many institutions as possible should be subject to the act, and the decision should be made about the information, not about whether the institution is covered at all.

Ms Bonner: I believe your question was two-fold, not just the coverage of the act in terms of the number of institutions that are subject to it, but also our position on the current exemptions in the act. Am I correct?

Mrs Marland: Yes.

Ms Bonner: What you have to take from our submission is that we have no real problems with the current exemptions in the act. There were no glaring discrepancies we could see, or misapplications or unwarranted applications of the exemptions. I think the one we have pointed out in paragraph 3 of our submission in relation to the personal information exemption is that it tends to be used too broadly. We are suggesting that the Management Board of Cabinet remind the co-ordinators that the exemption should not be given broad-brush coverage to hold back types of information that would otherwise be disclosed, and that they should be reminded that you can protect a person's privacy by severing and deleting certain information and still disclose the content of the record. In relation to the application of the specific exemptions under the act, I think that is the only example we have of one that seemed to be too broadly applied.

Mrs Marland: When I re-read Hansard I will probably be clearer, but basically you do not have any problems with those government agencies, boards, commissions or crown corporations presently exempt. You think some of them should be exempt from the act.

Ms Bonner: No, I am sorry. Again, that goes back to Heather's response to your question. Our position has always been that all agencies, boards and commissions be subject to the act. I was picking up on the second part of your question, which was the exemptions, once an institution is subject to the act.

Mrs Marland: I see, all right. Thank you.

The Acting Chair: Thank you, Mrs Marland. No further questions? On behalf of this committee, I would like to thank the Canadian Bar Association -- Ontario for making its presentation.

LITA-ROSE BETCHERMAN

The Acting Chair: I call Ms Lita-Rose Betcherman, our next presenter. Good afternoon. You will be allowed half an hour for your presentation. You could use the whole half-hour for your presentation, but what we would like is a shorter presentation, allowing time for questions and answers from each of the parties.

Ms Betcherman: Certainly. I want to say it is a privilege to appear before the standing committee. I requested the opportunity to appear because I believe that the writing of Ontario and Canadian history is being seriously impeded by the Freedom of Information and Protection of Privacy Act, which you are now reviewing, as it stands at present.

To explain my interest in making this submission to the standing committee, I hold a PhD in history from the University of Toronto and I have written two books on Canadian history of the 1930s, which involved research at the Archives of Ontario prior to the passage of the act in question.

Returning to the Ontario archives recently to conduct some research, I discovered that documents to which I had had free access when I was writing my books were now restricted under the FOI act. I was advised that there was a 75-year restriction -- I stress that, a 75-year restriction -- on entire collections of records.

If I wish to see a document less than 75 years old in, for instance, the Attorney General central registry files, I would have to make an access request. I was told quite frankly that because of the backlog of access requests, it would take approximately a year to get an answer. Even if the document is made available, the names may be blacked out. I can tell you that a nameless document usually brings the historian to a dead end. In fact, I could not have written at least one of my history books to which I have referred -- and I may say that both books are used in the universities, colleges and high schools of this province -- had I been under the FOI act as it stands now.

This stumbling block to historical research at the Ontario archives arises from the FOI act in its present form, as I have suggested. To protect the privacy of individuals, the act of course prohibits disclosure to third parties of government records containing personal information. The definition of personal information is extremely broad; indeed, it boils down to anything that identifies individuals.

I understand and appreciate the reason for this. As a citizen, I would not like confidential documents about myself made available to third parties, but the problem is that the act does not distinguish between active files in government offices and dormant files transferred to the archives for historical and archival purposes.

Second, subsection 2(2) provides that this prohibition on disclosing personal information to a third party is only lifted when the identified individual has been dead for more than 30 years.

To fit its historical and archival material into a framework that was not designed to accommodate it, the Ontario archives devised the present blanket restriction on access. Not knowing whether the individuals identified in the documents were dead or alive, the archivists have reasoned that if they establish a 75-year rule, they will not fall afoul of the death-plus-30 formula in subsection 2(2) of the act. The conjecture, as you can appreciate, is that a person dead 30 years would have reached adulthood 45 years previously, and that adds up to the 75-year restriction. For a researcher like myself to prove that all the individuals named in the documents I would like to see have been dead for 30 years is a practical impossibility. It would be a research project in itself just to trace a few of them.

1610

At present, the long arm of this restriction goes back to 1916, so that even a historian of the First World War period is adversely affected. I suggest that the 75-year restriction on disclosing personal information overly prolongs confidentiality. After all, when these records arrive at the archives, they are already non-operational and dormant, saved from destruction only because of their historical value. Moreover, it should be recognized that personal information is time-sensitive. Documents that were meant to be confidential when they were created are no longer sensitive material decades later. The passage of time dissipates the need for protecting individual privacy.

The 75-year blanket restriction has caught all kinds of innocuous material in its net. For instance, what could be sensitive in today's world about a speech given by a senior bureaucrat in 1917 on the history of the Jews? Yet when I asked for these files, I received a slip informing me that I had ordered restricted records.

Handling historical material in this fashion is unprecedented and retrogressive in my view. Before the act came into effect, government records at the Archives of Ontario, as in most archives, were, with few exceptions, publicly available when they were 30 years old. True, there was no guaranteed right of appeal under the 30-year rule. The originating ministry could withhold any document at its discretion. But for all practical purposes, the appeal procedure under the present 75-year rule severely hampers research, since access delayed is access denied.

Several archivists have acknowledged to me that the 75-year restriction and the time-consuming access request procedure is causing graduate students -- and I think this is serious -- to turn away from Ontario history of the past three quarters of the century. They are backing up into 19th-century history in the interests of time.

The freedom of information legislation was certainly not intended to create an obstacle to historical research. The 1980 report of the Williams commission, which laid the groundwork for the Ontario Freedom of Information and Protection of Privacy Act, recommended special provisions for historical material, as opposed to contemporary records. The report states at page 240:

"It is our intention to ensure that access to archival material relating to identifiable individuals for research purposes will not be hindered by our proposed privacy protection scheme."

The Williams commission never envisaged the 30-year rule being extended to 75 years. Indeed, it found 30 years "too long a period during which to restrict access by the public to historically valuable information." The present 75-year restriction on access applied at the archives is not written into the act, and as a researcher using the resources of the Ontario archives, I pray it never will be.

Although the federal Privacy Act has a clause similar to subsection 2(2), this has not led to a similar restriction on archival material. The important difference appears to be that subsection 8(3) of the Privacy Act specifically states that government records in the National Archives which contain personal information may be disclosed for research purposes under certain conditions. In other words, it permits discretionary disclosure of personal information by the NAC.

According to the NAC guidelines, subsection 8(3) was introduced because otherwise the Act would be "too restrictive in regard to disclosure of personal information to allow historical research to be conducted at the National Archives."

The Ontario FOI act makes no such provision for historical research. In fact, the combined effect of the federal Access to Information Act and the federal Privacy Act is far more friendly to scholarly research than the Ontario legislation.

In criticizing the FOI act from the point of view of a historical researcher, I am aware that it is possible under regulation 10 of the act to sign a research agreement with the Ontario archives. A research agreement giving a bona fide researcher access to government records is one way of balancing the competing principles of the act, that is to say, freedom of information versus protection of privacy. But in my view, restrictive regulations make such agreements unsuitable for historical research. For instance, by the terms of the agreement individuals cannot be identified in your published work; that is to say that someone who wrote a letter in the 1920s or is mentioned in it must remain nameless in your book or article.

Worst of all from my point of view, the researcher is prohibited from data linkage -- that is, from contacting individuals still living or their surviving relatives -- without written permission from the archives. While this is an appropriate precaution in the case of lists of welfare recipients or psychiatric patients, it is surely an unnecessary impediment in the case of archival material. Not only would this cut off valuable leads, but it would hamstring the researcher from interviewing subjects who might have been located through other sources. In my opinion, to sign a research agreement with the archives under the present regulations would seriously inhibit free historical research.

I would now like to make some recommendations. I urge the standing committee to recommend changes to the act to provide more reasonable access to government records preserved at the Ontario archives. It is of prime importance, therefore, to make a distinction in the FOI act between archival holdings and current records in government offices, as the federal legislation does. I point in particular to subsection 8(3) of the Privacy Act.

Ideally, there should be open access to archival holdings except for certain documents whose restriction could be justified under, say, an injury test or a time-sensitivity test. But it is impractical to suppose that the small Ontario archives staff could sift through the masses of records and classify each file individually as the National Archives staff does. Most reluctantly I acknowledge that some fixed time limits on accessibility may be necessary.

Any time limits on access, however, should be based on the age of the document and not on the conjectural lifespan of individuals. I submit that subsection 2(2) of the act should be removed, given the difficulty of proving date of death in the case of private individuals and the section's effect in lengthening access restrictions to 75 years on historically valuable material in the Ontario archives. The question is, how long should the time limits be on government documents? Returning to the 30-year rule at the archives would certainly seem to be the outer limit, but 20 years might be considered sufficient for all historical and archival material, as under the act even cabinet records are opened after that period of time.

For access to documents within the restricted period, the appeal procedures would of course apply. However, the present year-long delay in getting a response to access requests must be remedied by mandatory, or at least more effective, time limits. For one thing, reducing the restricted period from 75 years to 30 years or 20 years should lessen the number of appeals.

In conclusion, far from liberalizing access to the historically valuable government records at the Ontario archives, the Freedom of Information and Protection of Privacy Act has so far placed new restrictions on access. I was heartened to read in Hansard of June 19, 1991, that the Information and Privacy Commissioner expressed to the standing committee his belief "that access under the act to archival or historical records poses unique problems that should be examined and addressed by the committee."

Thank you very much for your time. If I can answer any questions, I would be happy to.

Mr Morin: Dr Betcherman, on how many occasions did you have to consult the archives for certain research and were told that the information was not available because of the 75-year rule?

Ms Betcherman: I would say about three times in the last immediate period, say a month. As I said at the beginning, I recently returned to the archives to conduct some research.

Mr Morin: Were you given any reasons for the 75-year rule?

Ms Betcherman: Oh, yes.

Mr Morin: What did they tell you?

1620

Ms Betcherman: The reason is the prohibition on disclosing personal information which binds the archives because there is no exemption to historical or archival material under our act. There is also, of course, section 22 which I referred to.

Mr Owens: In terms of just researching people who would have historical value, presumably you would not have an interest in digging into the background of John Q. Smith, average person, but you would John Robarts or somebody like that, whom you wanted to do research on. As a public figure, I do not understand why that information would be denied to you when so much of our lives here is very public, for better or for worse, I might add.

Ms Betcherman: Yes, I agree. It appears to me that the archives has been forced to make this kind of blanket restriction which you can get out from under through this very long, prolonged access request procedure, but that is exactly my point, sir.

Mr Owens: Have you been faced with requests for large charges for your information requests?

Ms Betcherman: No, because as I answered a moment ago, this has come to my attention really recently, in the past month, and I have not yet made an access request, which would be the first step on the way.

Mr Morin: Would you see a type of exemption, for instance, where it would be left to the discretion of the archivist to decide if some information should not be available to historians like yourself; let's say an amendment that would leave it to the discretion of the archivist to decide whether he should give it to you or not, within that 75-year rule? I understand your point of view that sometimes some information would be available but, because of the limit of the 75-year rule, they say, "We can't do anything," unless it was left up to their discretion to discover if that document is really secret or there should be an exemption given.

Ms Betcherman: That is exactly what is happening now, but it could take a year.

Mr Morin: But they do not have any discretion whatsoever.

Ms Betcherman: They apply the exemptions under the act and they run into what I just discussed, that this personal information is one of the overriding exemptions. But subsection 2(2) of the Freedom of Information and Protection of Privacy Act lends itself to the kind of thing you are talking about. The federal Privacy Act does not have any time restrictions such as 30 years, 20 years or 75 years. I think the kind of archivist's discretion is available without time limits. But my point is that, given the small staff at the archives at the moment, and I appreciate the burden on them, it would be impractical for them to have to vet each document like this. That is why I most reluctantly suggested a time limit of 20 or 30 years.

Mr Frankford: Am I right in understanding that there is protection even for things like newspaper articles that mention individuals?

Ms Betcherman: I can give you an exact answer to that. One of the files I saw had newspaper clippings among other papers, like personal correspondence. Yes, of course, you could go to the newspaper files and see them, but there are newspaper clippings even in these restricted files.

Mrs MacKinnon: Can you tell me, please, whether this legislation was brought about by the federal Privacy Act or by the provincial act.

Ms Betcherman: I am referring only to the provincial act except where I used the federal act as a point of comparison. The restrictions at the Ontario archives that I have discussed today are strictly provincial.

The Acting Chair: Dr Betcherman, on behalf of this committee, I thank you for taking time out this afternoon to give us your presentation.

HASTINGS AND PRINCE EDWARD LEGAL SERVICES

The Acting Chair: Our next presentation will be from the Hastings and Prince Edward Legal Services. Good afternoon. You will be given a half-hour for your submission. You can either use the full half-hour for your presentation or else make a shorter presentation and allow time for questions and comments from each of the opposition parties.

Mr Little: My name is David Little. I am a staff lawyer at Hastings and Prince Edward Legal Services in Belleville, Ontario. There are four lawyers and one CLW, community legal worker, at the clinic. We are one of 70 legal clinics funded by the Ontario legal aid plan and we do work exclusively for low-income residents of Ontario in areas of interest or of chronic concern to them.

Our mandate is threefold. We do case work, and most of our case work of about 400 to 500 active files is in the area of a general welfare assistance, Family Benefits Act, unemployment insurance and workers' compensation. We also do public legal education on these topics and law reform activities.

The clinic is currently involved in a matter of profound privacy implications for our client group in an issue which has received widespread notoriety throughout the province and that is the case of the Hastings county welfare list. The Hastings county council passed a resolution on September 5, 1990, requiring that the administrator of the welfare department in the county provide a list to the county councillors of all the people who are on welfare or receiving any kind of welfare assistance in the province.

I should say at this point that I realize I am talking about the Municipal Freedom of Information and Protection of Privacy Act technically, but in so far as it raises deficiencies in that act, I would respectfully submit that it raises deficiencies in the FOI act. In addition, the cross-pollination between provincially run and municipally run assistance teams is such that the acts are intertwined not only conceptually but practically speaking as well.

In any event, the reaction to this resolution by the county council was very swift and it was filled with great anxiety. The reason for that anxiety is that the council in general and the councillors in particular have expressed extreme ignorance of welfare legislation, the needs of welfare recipients and the system of welfare delivery in Ontario.

We have, for example, included several quotes in our submissions that the county councillors have said; things like: "This is a cash-for-life county. We're dealing with clients who sit around and drink beer, and we're going to have to ferret out the abusers of the system," etc.

The county councillors have made it known that what they are after here is to police abuse. There is nothing to indicate that Hastings county is any different from the 3% to 4% abusers that the Social Assistance Review Committee researched and spoke about in its report. County councillors have made comments like, "11% of these people are ineligible and 29% are in the grey area," and various other inflammatory comments which I will leave you to read in my submissions.

We have been active in fighting this both in the courts and in the public forum. In the court system, an injunction was granted last November preventing the welfare administrator from providing this list to the county council. That was on an interim basis only. There is a full hearing scheduled for October 28. The Canadian Civil Liberties Association has intervened, as have various other coalitions against poverty.

1630

In the meantime, much to our disappointment and frankly to our surprise, we found that the Municipal Freedom of Information and Protection of Privacy Act has failed to protect us from this type of resolution. Part I of the municipal freedom of information act, which deals with disclosure outside of an institution, which corresponds to part II of the freedom of information act, contains in very clear and unambiguous language that information about one's eligibility for welfare is personal and cannot be disclosed. It is extremely strict about that.

The problem is that the Information and Privacy Commissioner has said that part I does not apply, but part II does. We find in part II that the clear, unambiguous language protecting one's privacy with respect to receiving welfare is absent. There is no clear, unambiguous language preventing that type of disclosure. Not only is that type of language absent in part II, but there are no procedural safeguards by which people can ensure that their privacy and whatever rights they have under that part are protected.

A person who thinks that information about himself is being wrongly used by an institution under part II, the part dealing with use and disclosure within that institution, has basically no remedies outside of going to court, which is a very time-consuming and cost-prohibitive process which one recipient has done, or asking the Information and Privacy Commissioner to make some investigation and comment on what is happening; in other words, comment on the council's resolution in this case.

To begin with, the privacy commissioner has expressed pretty extreme reluctance to get involved in the situation at all. The Ministry of Community and Social Services asked the Information and Privacy Commissioner whether council's resolution was in compliance with the act, and the Information and Privacy Commissioner would not respond to the ministry. It was left to a private person to do it and a private person finally did it. The Information and Privacy Commissioner took about seven months to come up with what I submit is an extremely simplistic analysis, as I have outlined in my submissions.

The problem is in the wording of the section that allows officers or employees within an institution to use information which it needs and which is necessary to properly discharge its functions. The analysis the Information and Privacy Commissioner used is that council must need this information because it has passed the resolution saying that it needs it. I have attached to my submissions the part of the decision setting that out, but the Information and Privacy Commissioner completely failed to consider whether this was a legitimate function of the county. In other words, did the county council need this to fulfil its function within the general welfare delivery system in Ontario? Did it have the expertise to use this information?

Second, it completely failed to consider whether there was anything else at work or any other motive that would account for council's resolution. If we look even at the resolution, it requires a list of anybody who receives welfare assistance in the county to be listed. Somebody who is on the list because he is a recipient for five years is going to have his name beside a person unemployable for medical reasons, or a sole-support parent or a person who received a pair of work boots from the welfare department in its back-to-work program.

If you take the resolution at its face value, it would be impossible for the resolution, if complied with, to achieve the end they wanted. In other words, we cannot police welfare if it is going to show up the name of a person who is just getting a $50-a-week top-up because he happens to work at minimum wage and has five kids.

What was bothersome about the route of asking the Information and Privacy Commissioner to investigate is that the response we got, which we considered to be clearly inadequate, really had no status in law. We could not appeal it. It was just an investigation or a comment. Whereas if a person's privacy rights under part I are going to be potentially violated, that person has a right to a hearing with the privacy commissioner; under part II there is no such remedy. The person is left essentially to go to court if he does not like it.

The question is, what can be done about the act to remedy a situation where county councillors are seeking to pry into a person's eligibility for welfare in a way that is improper? I would not favour any kind of tinkering with the act that would provide vaguer language than what is already contained in section 42 in the FOI act. We would submit that the proper thing to do would be to designate departments of social services as distinct institutions when the county has appointed welfare administrators.

When the county appoints a welfare administrator under the General Welfare Assistance Act, that welfare administrator is responsible for determining all matters concerning eligibility and levels of benefit. It would make sense then, since the county has delegated this to a department which is physically distinct from the county and which has certain prescribed duties under the General Welfare Assistance Act to fulfil, to make that department a separate institution. That way, a person's personal information is protected from the inquisitiveness and perhaps the intimidating schemes of the county council.

We do not think that would cause any bureaucratic problems. In fact, in the northern communities the district welfare administration boards, which are boards appointed by different municipalities, already are distinct institutions. The county councillors in various districts could not request the name of welfare recipients in that district. We suggest the right thing to do in counties which have appointed welfare administrators under the welfare act would be to make those departments distinct institutions.

Those are my submissions.

Mr Morin: Do you know of any other municipalities that -- if I could use the word -- behave the same way as those councillors?

Mr Little: The other one I am familiar with is Renfrew county. I understand in Renfrew county the situation is arguably even more extreme, in that there is a person who is an administrator -- take Barry's Bay, for example. Welfare in Renfrew county is administered by individual municipalities and townships. For example, the treasurer of the municipality of Barry's Bay is the welfare administrator. He is more or less a clerk who gives an application form to the recipient. Then the recipient has to go -- and this is usually in front of other recipients -- and present himself in front of the council and talk it over.

I understand the Hastings policy is also being attempted in several other eastern municipalities. I am not aware of any examples of that in southwestern Ontario or in the Toronto area.

1640

Mr Morin: I can understand that it would be an extremely humiliating experience for anyone -- because it could happen to anyone -- to have to appear before councillors, to have to appear before people who perhaps do not understand the issue at its fullest and then would be more less judges to decide if I or somebody else should receive welfare on a temporary basis.

Mr Little: Indeed, in the court material we can take it as a given that the county councillors have no expertise in welfare delivery. The welfare departments have extensive personnel trained in that area. In addition, the court file in this matter, which the Information and Privacy Commissioner showed no interest in, contains extensive affidavit evidence from recipients showing, frankly, that they were scared silly of the potential humiliation involved in this practice.

Mr Morin: I hope, Mr Chairman, this presentation will be underlined and brought to the attention of the commission. I think it should be looked at very seriously.

The Acting Chair: Duly noted.

Mr Owens: I recall this particular fairly sad chapter in our history in this province, as it was covered relatively extensively in the Toronto press. I was horrified to think of the kind of indignities that people are willing to heap on other human beings in the name of social progress or whatever their goal was.

I was curious about your comments on welfare recipients not having the right to have a hearing under the act. Could you explain that a little bit further?

Mr Little: Yes. If we could just talk very briefly about part I and part II. Part I is the disclosure of information outside of an institution. For instance, if I as a concerned taxpayer wanted to know whether so-and-so was on assistance, that would be a request under part I of the Municipal Freedom of Information and Protection of Privacy Act. If by some fluke, and I do not see how this could happen, the Information and Privacy Commissioner thought that what was potentially personal information could be disclosed outside of the institution, the person who is affected would have the right to make representations to the privacy commissioner under the act.

Under part II, when you are talking about information that is used and disclosed strictly within the institution, the council and the department of social services are the same institution. There are no such procedural safeguards for a person like our client, a welfare recipient, who would like to make representations or even have a hearing in front of the privacy commissioner.

Mr Owens: If I understand your last statement correctly, between the council and the Ministry of Community and Social Services or the welfare commissioner in a particular county, it is rather an intrasharing of the information, as opposed to passing it externally.

Mr Little: Yes. Comsoc technically would be a distinct institution. Welfare assistance is where there is some overlapping. The county council appoints a welfare administrator. The welfare administrator is an employee of council and his entire staff are employees of the municipal corporation. They are therefore one institution for the purposes of the act. Therein lies the problem, from our point of view.

What we really have here, I think, for all intents and purposes, is that these are two different institutions. All the protection, both in terms of the content of the act and the procedure for ensuring that protection, seems to accrue only in part I, only in the part where you are talking about giving information outside an institution. There really is no such protection for uses inside an institution.

Mr Owens: The Canadian Bar Association, which presented earlier this afternoon, had a couple of recommendations with respect to third-party notification and the issue of looking at how you keep information confidential without necessarily designating a particular institution or ministry. If the government were to implement those recommendations, would they cover your concerns, specifically with regard to the information not being able to come out? I guess that is the exclusion option, excluding information around social assistance or anything. Whether it is that, workers' compensation or whatever the case may be, do you see that as answering your request?

Mr Little: That would be one way. If I understand correctly, those protections are already in if you are talking about disclosure outside an institution. If you are talking about putting those protections in part II, in other words, tinkering with the language a bit, I certainly admit that is a possibility. I understand the person following me may have some more specific recommendations in that regard.

Mr Owens: If you and your colleagues can turn this over in your minds, I guess my particular view is that I would not necessarily want to have people come to a hearing or an appeal, subject them to that process, if there is any way we can possibly avoid it.

Mr Little: Sure, that point is well taken.

Mr Owens: Getting rid of the council is probably another way, but that is for another day.

Mr Little: Yes. Another way of doing it, which is what I have suggested here, is to simply make two institutions. One is the county council and the other is a department of social services. So in the same way you have institutions defined in the act to include municipal corporations and then a second section, B, in which you are talking about school boards, planning boards, local roads boards, I would add another one, a department of social services, in counties that have appointed a welfare ministry. I would rest very easy with that amendment. I would have to look very carefully at the other amendments you suggested, but I certainly agree that is a possibility.

Mr Morin: I have a quick question. Do you mean to say that the law now is written in such a way that any other counties could make the same mistake as Hastings and Renfrew?

Mr Little: Indeed. In fact, the act sanctions that now.

The Chair: Any further questions? There being none, I thank you very much, David, for coming along and making your presentation to the committee here this afternoon. As soon as the report is tabled in the House, we will make sure you and your organization get a copy of the committee report.

To the members of the committee, the second page of the agenda somehow or other got left off, but we do have the Ontario Association of Fire Chiefs coming along to make a presentation at 5:30 this evening.

1650

CLINIC STEERING COMMITTEE ON SOCIAL ASSISTANCE

The Chair: The next witnesses are from the Clinic Steering Committee on Social Assistance. You have up to a half-hour to make your presentation.

Mr Morrison: My name is Ian Morrison. I am the executive director of the clinic resource office, which is a research and resource centre for the Ontario community legal clinic system, and a member of the Clinic Steering Committee on Social Assistance. With me today is Nancy Vander Plaats. Ms Vander Plaats is a community legal worker from the Scarborough community legal clinic in Toronto and the chair of the Clinic Steering Committee on Social Assistance. There is another name on the list, Ms Josephine Grey, who has not yet arrived. If she does arrive, we will introduce her then.

We are basically following on from the presentation you just heard. We would like to address the same issue, and we are going to address it from a slightly different perspective. We would like to make somewhat different recommendations about our perception on how the problem could be solved, although we are largely in agreement with what you just heard.

The basic issue that we are concerned with is this question of how well the provincial and municipal protection of privacy acts in Ontario protect the interests of a particularly vulnerable group of individuals in Ontario, recipients of social assistance benefits.

Just to take a moment to explain who we represent, the Steering Committee on Social Assistance is a provincial committee. It is the co-ordinating body on social assistance matters for the Ontario community legal clinic system. The members of the steering committee are lawyers and community legal workers from clinics around the province. We are by far the largest group of legal advocates on behalf of social assistance recipients and other low-income people in Ontario.

Our committee does things like co-ordinating training and public legal education initiatives on behalf of the clinic system. We are closely involved with a number of litigation and law reform activities in this area. We speak on behalf of the clinic system. As an organization which deals with things on a provincial basis, I believe we have a special perspective on some of the problems that arise in this area. We would like to draw some things out a little beyond the individual instances you heard about with respect to Hastings and Belleville.

I understand the committee's current mandate is to review the provincial Freedom of Information and Protection of Privacy Act. Although we are going to be focusing on a particular problem which has arisen in a municipal context and which is obviously a matter that we are deeply concerned with, we suggest that this is an appropriate issue for your committee to hear.

First, as you know, the provisions of the provincial and municipal legislation are almost identical. The problem we are addressing is, I think, potentially a problem with provincial legislation. The provisions on disclosure are almost the same. So what we perceive as being the weakness in the legislation is something that is also a potential weakness in the provincial legislation.

The other reason we would think it is appropriate to consider the matter at this time is that, because of the way social assistance is delivered in Ontario, which results in the same clients looking to the province and to municipalities for different services in the same area, there is, as you heard, a considerable sharing of information between the Ministry of Community and Social Services and local municipalities, both ways. The administration process is really inextricably linked in practice. In fact, there are parts of the province, not Hastings and Belleville but other parts of the province, where intake and processing of applications for social assistance go on in one office; joint intake practices.

The problem of privacy rights of social assistance recipients, as you heard, has been thrown into quite sharp focus by the actions of the Hastings county council. As you heard, the county council directed its welfare administrator to prepare a list of the names of all the welfare recipients in the municipality for presentation to the council.

The public statements of the council members on this issue have basically come down to suggesting two reasons for preparing this list. The first is that knowledge of recipients' identities will enable individual council members to make investigations to ensure that all recipients qualify to receive welfare. The second is that this knowledge will enable council members to alert welfare recipients to the existence of any jobs that come to the attention of council members.

The council has decided to pursue this course despite the fact that the municipality has a welfare administrator, appointed by the council with the approval of the Minister of Community and Social Services as required by the General Welfare Assistance Act. The administrator's staff is responsible for ensuring that only those in need are given benefits and that employable persons actively seek employment as a condition of obtaining benefits.

I would like to note that carrying out these responsibilities involves administration of a complex and detailed regulatory scheme which even experts in social assistance often find confusing. In fact, in a very recent decision from the Divisional Court of Ontario, one of the justices of that court described the general welfare regulation as Kafkaesque in its complexity.

Perhaps I will just interrupt my presentation to introduce to you Josephine Grey, who has just arrived. Josephine Grey is a founder and currently president of an organization called Low Income Families Together, which is one of the oldest self-help groups for social assistance recipients in the province. She is also working on contract on the co-ordination of consumer input to the Ministry of Community and Social Services in the current process of legislative reform, and part of her job, in fact most of her job, consists of going around the province and arranging meetings with social assistance recipients to talk to them about problems with current administration. Josephine has an unparalleled view of provincial issues, especially with problems around privacy and abuses of the legislative scheme for social assistance recipients.

To return to what I was saying, as you know, the action of the Hastings county council is currently before the courts. I am not going to discuss that court challenge. What I would like to discuss is the problem that it points out for us in the current privacy legislation, which we submit is relevant to the deliberations of this committee.

As you know, both the provincial and municipal acts empower the Information and Privacy Commissioner to comment on the privacy protection implications of proposed programs of institutions. A complaint was made to the commission in this case. In response to that complaint, the assistant information and privacy commissioner gave an opinion on August 1 of this year that the proposed actions would not breach the privacy protection provisions of the municipal freedom of information act.

The part of the opinion we would like to focus on deals with the meaning of clause 32(d) of the act, which I will refer to as the need-to-know provision. The identical provision is in the provincial act as clause 42(d).

1700

Clause 32(d) provides that personal information shall not be disclosed to anyone, inside as well as outside government, except "if the disclosure is made to an officer or employee of the institution who needs the record in the performance of his or her duties and if the disclosure is necessary and proper in the discharge of the institution's functions."

In this case the commission gave us its opinion that the requirements of this subsection were met. I think the commission's opinion really boils down to one sentence: "The council...has enunciated a need for the information and stated that the transfer is necessary and proper to the discharge of the supervisory function. Thus, in our view, the requirements of subsection 32(d) of the act are met."

It seems that the commission's view is that nothing more is required to meet the standards of the need-to-know exception than a statement by the person requesting the information that he or she has a need to know.

We are very deeply concerned about the act, if this is a correct interpretation of it. Even assuming that the council could have some legitimate use for this information -- a subject I will not go into, but I imagine you can guess what our position is on that -- there is no objective analysis, in the opinion of the assistant commissioner, of whether disclosure of this personal information was really necessary apart from the council's assertion. Nor is there any explanation of whether any legitimate aims of the council could have been achieved in a way that would be less intrusive to the personal privacy of welfare recipients.

We have made some suggestions as to some other things that could have been done.

If the council thinks its welfare administrator is ineffective at detecting fraud, it could take steps to improve the welfare administrator's operation. They could assist the administrator by passing on any relevant information that comes to their attention.

Any job opportunities that came to the attention of council members could be passed on to the administrator, who could maintain a registry of these jobs for welfare recipients.

There is no consideration of whether a partial list of names would meet any legitimate requirements of the council. I note for you that even though the council seemed primarily concerned with people sort of skiving out of their obligations to look for jobs and not working when they could, a very large proportion of welfare recipients are not required by law to look for work because they are disabled or because they are single mothers with young children. They fall into the categories that are exempted from those requirements. As you have heard, there are also people who work full-time and receive supplementary assistance because their incomes are so low. There is absolutely no attempt to confine this list to something reasonably related to what the council was after.

I will not go on. The purpose here is not really to go into welfare administration; it is simply to point out that there are a lot of things that immediately leap to mind as possible, less intrusive alternatives that are not addressed anywhere in the process that was carried on under this legislation. If the commission's opinion is correct, that is, if a need to know can be established for the purposes of privacy legislation simply by asserting it, then we suggest to you that the protection afforded personal information to these very vulnerable people is very weak indeed.

Before putting forward our suggestions for dealing with the problem we have identified, I would just like to return very briefly to the first principle of why the protection of privacy matters. We will undertake this examination here in the context of social assistance, but obviously the same points could be made with respect to other kinds of protected information under the legislation because, in addition to social assistance recipients, there are many other very vulnerable people, psychiatric patients and so on, about whom information is protected in the same way.

It is a fundamental fact that the receipt of social assistance is both personally shaming for many people, especially first-time recipients who have never had to apply for welfare before, and socially stigmatizing. An excellent reference with regard to this is a 1988 report of the Social Assistance Review Committee called Transitions. That committee spent a long time and heard from hundreds of recipients and recipients' organizations across the province precisely on this issue of lack of privacy and stigmatization in the welfare administration process.

It is very important to emphasize -- and this is where I would like to talk a little from our perspective as people who observe things across the province -- that breaches of privacy in this context have real consequences for people. Sometimes we know, despite the confidentiality rules, that the names of welfare recipients have come to the attention of people who have no business knowing that information. We know of situations where welfare recipients and their children have been subjected to threats, physical assaults, other kinds of harassment, simply because they are welfare recipients. It is unfortunate but true that there are many cases we know of where this identification of an individual as a welfare recipient has come from municipal councillors in local municipalities.

More generally, overwhelming evidence has been documented in many places that has been part of court procedures that recipients of social assistance are routinely discriminated against in relation to housing and many other services. It is self-evident that the more widely lists of recipients' names are disseminated in any context, especially outside the classes of people with a specific and legitimate need to know the information, the greater the danger of inadvertent or advertent disclosure to persons with no business at all with the information.

Even within the particular context of disclosure within the institution in this situation, we know -- and I know that Josephine could reiterate this with innumerable examples -- recipients deeply fear political interference with social assistance delivery. Welfare applicants have been asked whether they belong to self-help organizations that are unpopular with local delivery agents. Recipients around the province who have participated in the legislative reform process or who have come out and spoken about local problems have been threatened locally with retaliation for making complaints. There are serious issues here that arise from even the potential violation of privacy in this context.

These clearly are the reasons why it is public policy in Ontario that this kind of information should be protected. Under both the provincial and municipal legislation, release of any information regarding eligibility for social assistance benefits is deemed to be an unjustified invasion of personal privacy. The regulation to the General Welfare Assistance Act specifically prohibits any kind of public release of the names of welfare recipients.

As you heard, the former Minister of Community and Social Services expressly stated her opposition to any kind of even internal release of social assistance recipients' names in the manner proposed in the Hastings case. A recent report of that minister's advisory group on new social assistance legislation concurred in condemning this kind of thing.

To conclude, having belaboured an obvious point, there are compelling and well-substantiated reasons why the classes of information deemed to be protected personal privacy and why the kinds of things that are deemed in both acts to be unjustified invasions of personal privacy are in there. It is an important statement of public policy. We are very disappointed in the lack of weight given to the reasons why these things are in the legislation and this process.

In so far as the problem we have identified is a problem in both pieces of legislation, we would like to make some specific suggestions that we urge you to consider as recommendations in this area:

First, and this applies to both FIPPA and municipal FIPPA, the legislation should be made clear that when dealing with a complaint of breach of privacy, the commissioner is obliged to explore the legitimacy of reasons given for the dissemination of personal information without the consent of the individuals involved.

Second, and this again applies to both FIPPA and municipal FIPPA, the act should require the institution to prove to the commissioner -- and the onus should be on the institution here -- where a complaint has been made or where it has been asked for an opinion, that any action which has the potential to invade privacy must be the least intrusive reasonable alternative to achieve whatever aim is deemed to be legitimate there.

1710

Those comments apply to both pieces of legislation. I will go on and make my suggestions about the comments for municipal FIPPA. I do not know whether you consider that to be within your mandate or not. We urge there, as one possible solution to this problem, that at a minimum, the legislation could specify by regulation those classes of employees who have a need to know in this area. That would be a relatively simple thing to do, to state that the only people who will be deemed to have a need to know will be employees of social assistance departments or commissions. That would automatically raise a presumption that other people, like municipal councillors, would not have a need to know identifying information about particular individuals.

We also suggest, as a corollary to that, that the act ought to obtain provisions to protect against a certain obvious end run around that to prevent provincial or municipal officials from making a general consent to release of personal information a condition precedent to obtaining any kind of social benefit.

I add and conclude that although we have taken a slightly different approach, we support the recommendation made by the Hastings and Prince Edward Legal Services in the submission you just heard. Their proposed amendment would afford welfare recipients in this situation essentially the protection of part I of the act and would significantly improve the privacy rights of welfare recipients. What we have suggested is a more modest proposal; however, we urge that this would be a valuable thing to consider not only for this context but for the application of this provision of the legislation in other contexts.

That is all I have to say. Thank you very much for listening. I will be glad to answer questions.

The Chair: Thank you very much indeed. We have some time for questions.

Mr Owens: The test you set out on page 4, clause 42(d) of the act, is not a very strenuous test in any sense of the imagination. It is my humble opinion, not being a lawyer, that this council probably did not even meet that test.

My question, and I think you touched on it during your presentation, is around the issue of alternatives. Looking at the request, I probably would have been asking for numbers as opposed to names. What are names going to do? You want to get a general sense of how many people in your county are receiving social assistance. That would be a valuable piece of information, not John Smith and Mary Jane and the other 1,500 people there.

Is there some way we can look at that type of section around who exactly needs to know? I am not really sure council needs to know. Do they meet that test? I am not sure. I hope to God we never fall into this problem in Scarborough and that this is be restricted to smaller centres, but I think it is an issue that needs to be dealt with, just to avoid the situation we have had in Hastings.

The one concern I have is around the issue of MPPs and other officials. At my office we do a lot of FBA and GWA work. How would your recommendations impact on my ability or the ability of my staff to aid constituents in getting through the system? There is an exchange of information and, more often than not, the person at FBA or GWA will simply pass the information on to my constituency worker, who will then pass it on to the recipient.

Mr Morrison: It depends on exactly what you mean. If a recipient comes to you or your constituency worker and requests assistance, this issue does not arise because the person has then clearly consented to your being aware of his identity. He is also consenting in the same way when he comes to us. We require their consent to get information from the FBA office.

Mr Owens: But that is an implicit consent. I do not want to get into the situation of having to get written consents all over the place. It would be pretty horrendous. We do a lot of our work by telephone, as a number of people cannot get out of their homes, for whatever reason.

Mr Morrison: I do not believe what we have suggested would directly affect that, because the situation we are discussing and the specific recommendations we made are with respect to things happening within the institution or between related institutions. There are separate provisions in the legislation dealing with MPPs. I do not see that what we are talking about would directly go to that. Do you have any comment?

Ms Vander Plaats: Yes. I think you should have to get consent in most cases. I just think it is an important thing to be done. When we are assisting people in community legal clinics we get consents, and I think you should. In that case you are assisting the client, so you have a right to that information on behalf of your actions with the constituent, but not because you are an MPP. You do not have a right to call welfare or family benefits and find out something about someone who is on there unless you need that because you are working for them. Therefore you should have consent. Otherwise -- I know you would never do it -- it is possible that somewhere a politician at some level might use that excuse to get it. You need formal protections. They are a pain sometimes, but they are necessary.

Mr Morrison: I think our position certainly would be that it would be no more proper for a member of this Legislature to ask the Ministry of Community and Social Services, "Could you please give me a list of everybody who receives family benefits in my riding?" That would just be antithetical to the protection afforded by the legislation.

Mr Owens: We would hang them out to dry.

Mr Villeneuve: Thank you very much for your presentation. I am sorry I was not able to be here for the whole thing, but I find it intriguing that you are emphasizing that I as an MPP would have to have consent, when indeed I represent a larger riding, and there is no way I want to know everyone who is collecting social assistance in my riding. There are enough of them who phone us now.

I find it very difficult and frustrating whenever I hear, "Oh, you don't have consent. I'm sorry, we can't discuss the case," and I have a legitimate need to know something to assist someone. At this stage of the game, freedom of information or lack of freedom of information makes it very difficult for me to try to help people and to do my job. That is the other side of the coin you just spoke of, and I find it very frustrating at times. The riding sprawls out 150 kilometres from the Quebec border to the town of Prescott, all rural. Fax may assist to some degree, but many people who receive social assistance do not have vehicles. They probably do not even know what a fax machine is. It is a problem. Maybe you could comment on it.

Mr Morrison: I agree, it is definitely a problem. We face the same problem. As you know, we have clinics in your part of the province, and it is a problem they have too. Where I would respectfully have to disagree with you is on your statement of the flip side of the coin. When somebody comes to you and says, "Please help me," and then you cannot get access to information in the possession of the bureaucracy, that is one thing. But where an official or an elected official -- and this is not with respect to anybody who has asked them for help -- says, "I want to know who all the people are on social assistance" --

Mr Villeneuve: That is a different story.

Mr Morrison: That is the only issue we are addressing. I agree with you that the consent provisions are sometimes applied in ways that make it very difficult for advocates to do their jobs. I am not sure that is so much a problem with the act as it is with the procedure for what is considered to be consent, but I would not say that what we are saying makes the problem worse.

The Chair: Mr Morrison, thank you for coming along and making your presentation here to the committee this afternoon. When the committee tables its report in the Legislature, we will make sure that a copy is sent to the Clinic Steering Committee on Social Assistance.

1720

ONTARIO ASSOCIATION OF FIRE CHIEFS

The Chair: The next delegation is from the Ontario Association of Fire Chiefs.

Mr Horrocks: My name is Ronald Horrocks. I am the fire chief of the city of Ottawa. I am also a member of the board of directors of the Ontario Association of Fire Chiefs. My colleague is Tom Powell. He is the fire chief in Scarborough and he is also a member of the board of directors of the Ontario Association of Fire Chiefs.

The Chair: You have up to one half-hour to make your presentation, but it would be nice to leave some time for members to ask questions.

Mr Horrocks: The presentation I have to make is actually quite brief. I have tried to keep it to the point.

The Ontario Association of Fire Chiefs represents members from the smallest villages in the province through to the largest cities. On behalf of the members of the association, I would like to take this opportunity to thank you for affording us this time to make our presentation.

The duties that firefighters perform today have changed a great deal from years gone by. Some time ago the province introduced what is known as a tiered response system. With the tiered response system, the firefighters are called upon to work very closely with the ambulance service.

That system has merit because the citizens of the province receive a better service for their tax dollars. They receive it when they are most in need, and that is when they are having a heart attack, difficulty breathing and so on. The fire stations are strategically located, and this affords the fire service the opportunity to get to the problem in a short time. There is not a day that goes by that citizens are not receiving that service from a fire department somewhere.

These changes have had the effect of exposing firefighters in the province to a far greater number of carriers of communicable diseases. This increased exposure, along with the increasing numbers of carriers of the AIDS virus, hepatitis B and others, has placed the firefighters, quite frankly, in a very unenviable position. Unlike the controlled atmosphere of a hospital setting where necessary precautions can be taken to preclude the spread of disease, in most cases the firefighters are unable to protect themselves adequately because of the nature of the tasks they do and because of the locations and conditions in which they carry out these services.

We all know that firefighters are called upon almost daily to rescue victims from burning buildings. These rescues are usually performed under very, very difficult conditions. Most often, it is in a smoke-filled atmosphere. The rescuer cannot see the victim clearly. He cannot tell whether or not the victim is bleeding. In most cases, when a victim has been exposed to the effects of smoke and heat, there is a lot of mucus present, and the rescuer can often come in contact with these body fluids, thereby increasing the chance of communicating a disease, should the victim be a carrier.

In some cases, it may be something as simple as a bleeding nose, or the victim may be bleeding from a cut from broken glass. There are many areas where the victims can suffer cuts: torn metal, nails, sharp edges and so on. A lot of these exist in burning buildings under those conditions.

In these cases it is difficult if not impossible for us to protect the firefighters adequately from cuts, because the cuts do not happen only to the victims but to the firefighters as well. It is well known that latex gloves, for example, will not resist even a pinprick in a hospital setting, so you can imagine the level of protection they would afford in fire conditions.

When removing victims from damaged vehicles at an accident scene, for example, the victims are often bleeding and the firefighters can become exposed as a result of tearing their protective clothing and cutting themselves on jagged edges -- torn steel, broken glass and so on. It presents the same or similar problems as outlined when we are performing a rescue in a burning building.

It is evident that it is virtually impossible for firefighters to practise what we would call universal protection, such as ambulance personnel do, and assume that every person is a carrier and deal with them accordingly. Even if we did that, we cannot protect the firefighters entirely from cuts and so on because of the conditions we work under. Even the best protective clothing we can buy today does not provide that protection. So you can see that the firefighters are virtually helpless to protect themselves from exposure to these communicable diseases except in some very limited circumstances.

You might ask, how often does this happen? In our estimation, once is too often, and we want to do something about affording the firefighters some protection.

It is our understanding that under the present legislation -- and I do not purport to be an expert on the legislation; I will make that clear at the outset -- those members of the medical profession who become aware that the victim is a carrier are not permitted to inform the firefighters they have been exposed to a communicable disease. Under the Freedom of Information and Protection of Privacy Act, they are not allowed to pass that information on.

It is also our understanding that in relation to certain diseases, when a member of the medical profession becomes aware that a person is a carrier and that carrier had had intimate relations with a number of people, the medical officer can in fact contact those persons to inform them to have themselves tested to ensure they have not contracted the disease. In our eyes, this seems to present a double standard, because the firefighters feel they have the right to know they have been exposed to a communicable disease, even though they were only doing their job and did not have intimate relations with the victim whose life they probably just saved.

In the interest of protecting one's right to privacy, we want you to know that in our estimation it is not necessary for us to know who the carrier was. The firefighters only want to know that they have been exposed. This is being done in the United States at present. We feel that our firefighters should have that same protection. We respectfully call upon this committee to bring in the necessary changes to permit that to happen.

1730

Mr Frankford: Thank you very much, and welcome to the committee. Perhaps I should start by saying that I am a medical doctor, and I am also from Scarborough.

It seems to me that perhaps what you are dealing with comes into more than one area. I hope it is clear to you that this committee is looking at the Freedom of Information and Protection of Privacy Act, which I think is largely about access to information within government departments or to which the province of Ontario has direct access. Starting from that, I think there are some built-in barriers to what you are proposing.

As a physician -- and you talk about the physician's confidentiality requirements -- I think that is really outside the area of the freedom of information act. That is governed by professional regulations, so in the strictest sense, there is strict client-professional privacy.

In regard to the conditions you are talking about, reportable diseases, that confidentiality is not absolute because there is an obligation on physicians to report those conditions to the medical officer of health. I think there was some confusion in some way. On one occasion you used the term "medical practitioner" and another time you said "medical officer."

Mr Horrocks: I would generalize and say people in the medical profession. Where it gets stuck is at the medical officer of health, actually.

Mr Frankford: I think the questions you addressed really have to be with the medical officer of health, who in a sense has that public responsibility to be informed about conditions. Do you want to comment?

Mr Horrocks: Under the act, it is our understanding that he cannot pass that information on to the firefighters.

Mr Frankford: I think that is probably correct.

Mr Horrocks: That is where we would like to have that dealt with.

Mr Frankford: We probably would need some guidance as to where the particular freedom of information acts would impact on this.

The Chair: Someone from Management Board may want to clarify that.

Mr White: I am Frank White, from the freedom-of-information and privacy branch of Management Board of Cabinet. I do not know if I actually agree with that statement. I think the situation deals with the Municipal Freedom of Information and Protection of Privacy Act, because the medical officers of health are covered by that particular act. I have not heard anything about their not being able to disclose -- for instance, it might even be non-personal information, just that someone has come into contact with a communicable disease. There is nothing I can see in the municipal act that would prevent them from disclosing that in a non-personal information way. I believe, in fact, under section 32 of the municipal act and 42 of the provincial act, you could probably make a case for disclosing that a person has come into contact with a communicable, or potentially communicable, disease.

Mr Frankford: Presumably one could do it in the other way, send out negative information that the person has not been reported.

Mr White: I think the situation here is that some medical officers of health may feel there is something in the act which prevents them from disclosing personal information, and without talking to someone who is saying that, I cannot find out what his reasoning is, what section of the act would prevent that.

The Chair: I have to go to the House; I am speaking next. I have a question you might be able to answer or, if not, the legislative research people could. Where in the United States is this done? Is it a federal statute or does it vary from state to state? I do not know whether you can answer that or not.

Mr Horrocks: I cannot give you the specific states, but it is from state to state. We can get that information to the committee.

Mrs MacKinnon: Do you feel you need a specific exemption for firemen in the particular instance you are speaking of here?

Mr Horrocks: It is our understanding that the ambulance people cannot get that information either.

Mrs MacKinnon: No, but do you feel that we should build something into the freedom of information act that would give that specific exemption for firefighters?

Mr Horrocks: Yes.

Mrs MacKinnon: Then what would we do about policemen?

Mr Horrocks: That is why I say the ambulance people and the police are the same, emergency workers. There is a committee called the emergency safety services liaison committee which is under the auspices of the Ministry of Health. It brings together police, fire and ambulance services. This evolved from that committee. You will be hearing presentations from other members as well on this subject.

Mrs MacKinnon: It almost appears that we have to be prepared to make exemptions for people who deal with emergency situations.

Mr Horrocks: That is right. That is where we are coming from.

Mr Owens: Coming from a health care institution just down the road, I am aware of some of your concerns, as they were expressed by members of the security service employed by the hospital. I just think we walk a very fine line on this issue with respect to the need for your workers to feel they are protected versus the need for the rights of the patient or the victim to be protected.

I guess I am not clear, and I am sorry I missed your presentation, but are you looking at, in the event that somebody has had blood dropped on him or has had mucous spat at him or in performing some sort of procedure -- my understanding of the state of the art of technology these days is that there are barriers one can employ when performing mouth-to-mouth resuscitation. I guess I am just trying to struggle with that. Where do you draw the line? When do you start informing people, and is it a necessity?

Mr Horrocks: We are addressing more specifically cases where firefighters have been called upon to rescue people from damaged vehicles, for example, in auto accidents, or rescuing people from burning buildings when these people have been cut. When the victim is taken to hospital, if at that time it is identified that this person is a carrier of a communicable disease, we are asking only that the crew at the scene be informed that they were exposed so they can take precautions.

Mr Owens: What do you then propose to do with a crew of firefighters who are informed that the person they were working with is HIV-positive? That kind of information can be absolutely devastating to people.

My understanding of HIV is that you have to work extremely hard to get this type of disease. So what do you do with these people? I am not sure how many workers you have on your crew -- 10 or 15 people. What do you do with these people from the time they have been told they have been working with an HIV-positive individual? They have the first test done. It is recommended that one repeat the test six months later. You have a whole pool of problems to deal with, not only with the 15 workers but also the families of the workers who potentially may be involved, only to find maybe a year later that it was not necessary.

Mr Horrocks: What you are saying is correct, but we find the reverse is just as important. The families of those people who have been to these incidents and know nothing are always living in fear. We may find ourselves in the position of having to have them tested on a regular basis, which would be very costly. This way, if we know they have been exposed, we can just deal with the crew, with the people who were on scene, the ones who were immediately working with these people.

You mentioned that the chances are very slim. I mentioned that at the outset of my presentation. We feel once is too often.

Mr Owens: Are you aware of the statistics on the number of firefighters specifically in North America, say since 1982, who have developed HIV as a result of work-related, as opposed to lifestyle-related, issues?

Mr Horrocks: There is no doubt the numbers are very low. Again, we are saying, yes, they are low, but the number of carriers is on the increase, it is not on the decline.

Mr Owens: I am not suggesting that what you want is not a good thing, but I think one has to follow it through the whole process and how you deal with the 20 workers or how many would be on the crew who have now been informed en masse. How do you deal with these people, and then how do you deal in terms of cost? You are going to have to look at replacing these people on the crew.

Mr Horrocks: They may not test positive and that will give them peace of mind.

Mr Owens: The nature of the virus is such that you may not test positive today but then your serotype may change the following day. Again, it is a whole issue of counselling and support of families that is involved. I just think we have to look at this very carefully, and this may not be the piece of legislation under which we should examine this issue. I think you make a good point, but there is a bigger issue there than just informing your firefighters that they have been in contact with a person who is HIV positive or has hepatitis B, which is more virulent than AIDS will ever be.

I think we have to look very carefully at how we proceed with this and consult. As you say, there will be other groups, the ambulance drivers and the police departments. We should probably take a look at inviting folks from the Ministry of Health to come in, as well as some of the community organizations that deal with these specific populations around HIV and hepatitis B carriers.

Mr Frankford: Could I just make a general comment? I think perhaps one should not get stuck on these two particular diseases, although they get a lot of press. I was thinking of another example of something which could be contracted in the heat of the moment, which is rabies. I think that would have rather different health impacts, because there you potentially have a rather rapidly fatal disease where there is some active treatment that can be done. I am sure there are all sorts of other diseases which I cannot think of right now that could require all sorts of particular policy approaches.

The Acting Chair (Mr Cooper): Chief Horrocks and Chief Powell, on behalf of this committee I would like to thank you for taking time out of your busy schedule to give us your presentation today.

The committee adjourned at 1744.