COMMUNITY LEGAL ASSISTANCE SARNIA
ONTARIO LEGAL CLINIC STEERING COMMITTEE ON SOCIAL ASSISTANCE
VICTORIA AND PETERBOROUGH COUNTY MUNICIPALITIES
ONTARIO PUBLIC SCHOOL BOARDS' ASSOCIATION
CONTENTS
Thursday 20 January 1994
Municipal Freedom of Information and Protection of Privacy Act \ Loi sur l'accès à l'information municipale et la protection de la vie privée
Renfrew County Legal Clinic
Terry Kirby, executive director
Community Legal Assistance Sarnia
Grant Timms, vice-president and co-chair, consumer liaison committee
Margaret Capes, staff lawyer
Ontario Legal Clinic Steering Committee on Social Assistance
Nancy Vander Plaats, chair
Ian Morrison, secretary
Victoria and Peterborough County municipalities
John Ewart, law associate
Stephen Kaegi, clerk-treasurer, Belmont and Methuen townships
Patients' Rights Association
Harry Beatty, vice-president
Township of Mariposa
Stan McCormack, councillor
Elizabeth Carruthers
Ontario Public School Boards' Association
Helena Nielsen, vice-president
Guy Giorno, legal counsel
Peter Gnish, freedom of information coordinator, Halton Board of Education
Gail Anderson, associate executive director
Ontario Teachers' Federation
Margaret Wilson, secretary-treasurer
Jim Head, president
Ruth Baumann, executive assistant
Marion Thomas
STANDING COMMITTEE ON THE LEGISLATIVE ASSEMBLY
*Chair / Président: Hansen, Ron (Lincoln ND)
*Vice-Chair / Vice-Président: Wessenger, Paul (Simcoe Centre ND)
Dadamo, George (Windsor-Sandwich ND)
Johnson, Paul R. (Prince Edward-Lennox-South Hastings/Prince Edward-Lennox-Hastings-Sud ND)
MacKinnon, Ellen (Lambton ND)
Mathyssen, Irene (Middlesex ND)
*McClelland, Carman (Brampton North/-Nord L)
*Morin, Gilles E. (Carleton East/-Est L)
*Sterling, Norman W. (Carleton PC)
Sullivan, Barbara (Halton Centre L)
Sutherland, Kimble (Oxford ND)
Villeneuve, Noble (S-D-G & East Grenville/S-D-G & Grenville-Est PC)
*In attendance / présents
Substitutions present/ Membres remplaçants présents:
Cooper, Mike (Kitchener-Wilmot ND) for Mr Dadamo
Elston, Murray J. (Bruce L) for Mrs Sullivan
Hayes, Pat (Essex-Kent ND) for Mr Paul Johnson
Hope, Randy R. (Chatham-Kent ND) for Mrs MacKinnon
Tilson, David (Dufferin-Peel PC) for Mr Villeneuve
White, Drummond (Durham Centre ND) for Mrs Mathyssen
Wiseman, Jim (Durham West/-Ouest ND) for Mr Sutherland
Also taking part / Autres participants et participantes:
Huget, Bob (Sarnia ND)
Clerk pro tem / Greffière par intérim: Manikel, Tannis
Staff / Personnel: Swift, Susan, research officer, Legislative Research Service
The committee met at 1008 in the Trent Room, Macdonald Block, Toronto.
MUNICIPAL FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT / LOI SUR L'ACCÈS À L'INFORMATION MUNICIPALE ET LA PROTECTION DE LA VIE PRIVÉE
The Chair (Mr Ron Hansen): Good morning. We'll resume the hearings of the standing committee on the Legislative Assembly on the Municipal Freedom of Information and Protection of Privacy Act.
There were requests from committee members about certain items. Could the research person give us some idea of what she's found out already for the committee.
Ms Susan Swift: There are two memos being distributed now. One is in response to the question that was raised first by the subcommittee and then by the whole committee instructing me to ask legislative counsel about the possibility of including in the current structure of the act the institutions that were named, that is, universities, children's aid societies and hospitals.
I did that. I spoke to Mr Revell, who is the chief legislative counsel, and the memo goes into the details he spoke about. Essentially, the upshot of his comments was that it may not be the most practical way of extending freedom of information principles to these institutions, and he cites a few considerations the committee might want to think about in deciding how to do that.
The second memo is in response to a question raised by Mr Hope, that is, the scheduling of the public municipal council meetings. I've discovered that this kind of information is not available. It's not available because nobody collects it and it's not being tracked by anyone, so it would be very difficult to obtain the information and very time-consuming. It has also been indicated to me that any anecdotal information that might be obtained about the timing of council meetings would be incomplete in the sense that it would give you only starting times so it wouldn't give you the whole picture of when the meeting is actually held; it may go on into the evening. The other problem with anecdotal evidence would be that it wouldn't give an indication of whether public delegations could be made to the committee because procedural rules in the various municipalities differ in that regard.
Mr Randy R. Hope (Chatham-Kent): If you're telling me it's all mixed and mingled and there's no standard process, that kind of answers my question. I'd like to thank legislative research for at least trying to sort through and find out whether there's information. I clearly understand that you can't pursue it any further, so the report as put forward is really good.
I haven't had a chance to go through the memo on the issue of universities, hospitals and children's aid societies. You say it's not the best way to go about it?
Ms Swift: There were actually two questions asked of research with respect to inclusion of those three institutions. One was background information on the issues that might be raised that the committee might consider in whether or not to include the three.
The other question was specifically to go to legislative counsel and inquire of him what his opinion was. I should preface this by saying that of course Mr Revell had a very short time to respond to the request; in speaking to me, he said he had looked over the act and these were comments more or less off the top of his head. But in his view, it was perhaps not the most practical way of extending the principles of freedom of information to those institutions, that is, of including them in the existing act, because of two issues he raised. One was that there may be institutional differences that would be relevant and it might be more practical for an act to start with the problems that pertain to those particular institutions and then address them specifically in legislation.
Mr Hope: In his opinion, it's not practical. What if we were to have health officials come talk to him about their views on whether we should proceed in this, or any other officials trying to deal with allowing more freedom of information to the general public? I'm just trying to understand where they're coming from, whether it ought to be just to a legislative body or in legislation, and whether totally different legislation or incorporated in this legislation, if the officials of ministries feel it's the appropriate way to do it. That way, you're not getting pieces of legislation all over the place.
Ms Swift: In speaking with him, he didn't say it is impractical and that it's not possible but just that it may not be the most practical way. I don't think the upshot of his comments was that it ought not to be or it cannot be; it just may not be the most practical. If you have a different opinion from ministry staff or from others, the committee may decide that those arguments bear more weight.
Mr David Tilson (Dufferin-Peel): Some members may have sat on the public accounts committee. Public accounts experienced this same difficulty, specifically with the universities and the issue of academic freedom: whether the Provincial Auditor should look at all the finances of universities which receive their funds from private endowments and a substantial amount of moneys from the government. The difficulty for universities and hospitals is that a substantial amount of public funds goes to these institutions and there is a substantial requirement for accountability. I understand his comments, because we went through the same thing with public accounts.
My question is to you, Mr Chair. I don't know whether this committee intends to finish its deliberations on this subject. I know it is scheduled to hear delegations and try to prepare the report. I think it would be useful to hear representations specifically from the academic community, the universities or colleges, on this topic, because the word "accountability" keeps cropping up periodically and the public, whose funds go to those institutions, is entitled to look at certain documentation, while acknowledging what was said about substantial private funding.
The Chair: I have to agree with some of the comments being made. This morning we're short on time to discuss it at full length, but I think it warrants further discussion by the committee as a whole.
Mr Norman W. Sterling (Carleton): I'm going to be very brief. First, legislative counsel was responding to a request from us and did it in short order. You may remember a question I asked of Mr Wright, the commissioner, about whether this would be an appropriate structure, to fit these three kinds of institutions into the existing legislation. His answer was yes, probably. There is a difference of opinion between legislative counsel and the commissioner. He referred us to the British Columbia experience, and perhaps our researcher, Ms Swift, could pursue that in terms of asking, "How does it fit?" Their legislation is very much designed on our legislation and they have fitted other institutions into it, so I'd be interested in hearing their experience.
Ms Swift: We've distributed copies of the BC legislation, but if you'd like, I can analyse it in more detail or look into it.
Mr Sterling: No, it's not a question of having the legislation; it's a question of knowing whether it works for these kinds of institutions. Maybe Mr Revell, because of the short notice, was not aware of the similarities of the situation, and he or you could look into that for us.
The last matter is that it was felt by the subcommittee -- I did not tell Mr Tilson because the question never came up -- that there may be some merit in writing a report on the institutions currently covered by the Freedom of Information and Protection of Privacy Act and recommending changes now, and then at a later date having the committee deal with including or excluding other institutions under this act. I don't want to lose the momentum of the briefs we have heard now, and try to write a report three months from now and remember what was discussed at the committee. We may choose to do that after we've finished hearing from all the people. I just wanted to relay to the whole committee that that was discussed at the subcommittee. We may do this in two stages.
The Chair: Mr Sterling, to give more direction to research, the subcommittee had a problem with how it fit, so you want to see how expanding our existing municipal freedom of information fits the BC experience. Is that what you want, whether it would fit into what we have?
Mr Sterling: There are two issues. First, we're dealing with the existing institutions, school boards and municipalities primarily, under the present act. That's what the submissions today are about. The other issue is whether we should recommend, as a committee, including other institutions under this act or under other legislation.
Mr Jim Wiseman (Durham West): We do have people who could answer that question now, if you want to bring them forward, but we're going to get a little behind with the presentations.
Mr Sterling: I think we should go on with the submissions. We can discuss this later, when we don't have people before us.
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RENFREW COUNTY LEGAL CLINIC
The Chair: I call the Renfrew County Legal Clinic. We're a little late starting, but I think some of our presenters will be late because of the weather, so it'll give them extra time to get here. You have half an hour, but we'd appreciate it if you could leave some time at the end for questions from the committee.
Mr Terry Kirby: I'm Terry Kirby, the executive director of the Renfrew County Legal Clinic, located in Renfrew, Ontario. I've been a staff lawyer at the clinic since it opened in 1985. During that time, I've specialized in the area of social assistance law, representing social assistance recipients before the Social Assistance Review Board and the Divisional Court and doing law reform activities around that topic before the Transitions committee and other legislative committees that deal with those types of things.
The issue I want to address today and the issue that's of great concern to me is the way I see MFIPPA as failing to protect the identity of welfare recipients, specifically the way it fails to protect their identify from municipal politicians.
I feel this issue is of particular importance in Renfrew county. I'm going to have to describe to you how welfare works in Renfrew county because it's a little different from anywhere else in the province. In Renfrew county, the welfare system is what is described as an unconsolidated welfare system; in other words, in the rest of the province, except for two other counties, the welfare is administered on a county level. But in Renfrew county that's not the case: Each municipality administers welfare separately. In Renfrew county, we have about 90,000 people and 37 municipalities so some of these municipalities are quite small, some with as few as 600 residents, but they have their own welfare administrator and their own welfare system.
When MFIPPA came into effect, I certainly had a lot of hope that the act would do a lot to protect welfare recipients from councils and local politicians learning their identity. In fact, there were some big improvements when the act first came in.
Prior to that, for example, in Barry's Bay, Ontario, one of the municipalities in Renfrew county, if you wanted welfare assistance you had to come in front of council to explain why you should get welfare assistance. This was a public thing: They would book them all to come before the welfare committee of council and you'd have to come and explain why you should get it, and council itself would decide whether you would get it.
One incident I'm aware of when that practice was in place was that one of our clients was a high school student trying to receive welfare benefits that way and council informed her that she wasn't very bright and would probably be better off dropping out of school and going out into the workforce rather than trying to get welfare assistance for the time she needed to get through her education.
As I said, after the act came in, that changed. The municipalities in Renfrew county that required people to appear in front of the council quit doing that.
Unfortunately, the system that's in place still allows the municipal politicians in Renfrew county to learn the identity of the people receiving welfare benefits. The reason is that all the municipalities in the county except for the city of Pembroke have a practice where the local councillors sign cheques. They sign the welfare cheques in particular, and it's identified that these cheques are welfare benefits, so the local councillors know who in their community is receiving welfare benefits. The reason this is of more importance in an area like Renfrew is that some of the municipalities are very small. You can imagine that in a municipality where there are only 600 residents and 10 councillors, if the council sees this name they are going to know the person; they know who is receiving welfare benefits and who isn't.
In my brief I've tried to focus on how this knowledge has been abused at times by the local councillors. I've given you some examples of things that have happened. One of the worst of the examples I've given you is the example of the local reeve following the woman around in the grocery store and finally coming up to her, looking through her shopping cart and saying, "If you can afford to eat this type of food, you don't need welfare." This happened, and other things like that do happen.
Another example that came to my attention was that a person phoned and said they needed funds to survive. They were an elderly couple but not quite old enough to get the old age supplement, and they were wondering how they could survive through the winter because they needed fuel or wood, which is what we burn up in Renfrew county, for their house for the winter. I suggested they might want to apply for general welfare assistance, and the woman said, "No, I'm not going to do that." I asked, "Why not?" and she said, "Because if I do that, council will know I'm getting welfare assistance." I said, "How do you know that?" and she said, "I used to be the welfare administrator in the township, so I know that's what takes place."
Those are the types of things that happen. Having talked to quite a few former welfare administrators, I know local councillors will make comments about people and will tend to judge people on personal characteristics. Some of the examples I've given is that they'll state that someone doesn't need welfare because his mother has a large farm and could easily sell off 10 acres and give the money to the son, that type of thing.
This highlights the general attitude in certain areas about welfare recipients and the stigma that goes with that, that these type of people don't deserve it. This has been noted in a lot of previous studies dealing with welfare reform, in the Transitions, the Back on Track and the Time for Action reports, that there is a stigma attached to receiving welfare in this society.
The statute seems to recognize that too, in that it says it would be presumed to be an infringement of your privacy rights if that type of information were released. It's one of the categories that's listed. Unfortunately, the act doesn't go far enough to protect welfare recipients from having that type of information released.
There was a famous case a few years ago about the Hastings council trying to get a list of welfare recipients. There was a successful court challenge to that and it was found that MFIPPA prevented that. Unfortunately, these types of activities haven't stopped. It's still going on in Renfrew county, and I understand that later on the people from the Sarnia clinic are going to speak about the Sarnia county council trying to get access to that type of information too.
The reason that was given in the Hastings case about why the council wanted that type of information was basically that council felt it had a role to play in preventing fraud and preventing abuse of the welfare system. From all the studies I've ever seen, abuse of the welfare system does not appear to be a big problem. The study that's quoted in Transitions puts at maybe 3% the welfare benefits people get as the result of some type of fraud. A study done last year in Ottawa-Carleton put it at 1%. Compared to other types of benefits or systems, even the tax system, this is a very low level of fraud.
The other reason I don't think the councillors should be playing a role in that is that I don't think they're qualified to detect fraud. In the clinic, I often get people who phone me up and say, "Do I qualify for welfare benefits?" and even though I've done this type of work for eight years, it still takes me about 20 minutes to get all the information and determine whether they qualify for benefits. It's a very complicated procedure, and I don't see how county councils could address this question since they don't have any training in that.
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What happens, and what has happened in Renfrew county, is that the fact that local governments may know the identity of people who get welfare tends to discourage people from applying, even though they may need the benefits. I've given you the one example I told you of. When this type of activity happens, I think in the long run it ends up costing the taxpayers a lot more money, because if people don't apply for welfare when they need it because they feel intimidated, they'll have a lot more health problems and will put a lot more burden on the health system. They also may be being evicted from their premises and may have to call the clinic, and there may be court time involved. In the long run, people who need benefits should be given the opportunity to apply for them and know that their identities are going to be protected.
I've listed in my brief the recommendations I would like you to take out of this. Specifically, the main recommendation is that when you're defining "institution" in MFIPPA, make it clear that the welfare department is a separate institution from the municipal government and separate from the municipality. A recommendation also is that there be some kind of investigation or audit done of the practices in the unconsolidated counties.
The first recommendation was the recommendation the committee made to the Legislature after FIPPA hearings in 1991, and it doesn't seem to have been followed up on. I hope that coming out of these hearings, the committee will strongly recommend the recommendation that was made before and press the government to do that.
Mr Tilson: Thank you for coming and giving us your observations on the legislation. Dealing with your first recommendation, it's ironic that you've come at this particular time: In yesterday's news, we had the federal auditor making comments about people receiving social assistance in particular who shouldn't be receiving social assistance.
Mr Kirby: I remember he was talking about the Canada pension plan disability benefits.
Mr Tilson: Yes, and he was saying it was quite substantial. We also had a municipal councillor from Thunder Bay here yesterday talking about welfare fraud, the observations she's made in her capacity as a municipal councillor. I don't know about studies. I'm a politician, and I've sat as both a provincial politician and as a municipal politician. There may or may not be studies. As a politician, I do in my constituency hear people telling me of people abusing the process. I observe people abusing the process -- quite legally, but they're abusing the process. There's no question that there are people, in my observation as a politician, who abuse the freedom of information legislation to deceive the government to receive welfare. I know it's the minority, but there are people who do that. It's unfortunate, because it causes problems for those who genuinely need social assistance.
But I am an elected politician. A municipal councillor is an elected politician. They administer, through their staff, these pieces of legislation we're speaking of. In other words, there's the issue of accountability: Someone has to be accountable; someone has to observe whether the system is being ripped off.
There are serious accusations being made federally, there are serious accusations being made provincially. They may be well founded; they may not. We've had the federal auditor, we've had a municipal councillor -- and it wasn't only the municipal councillor yesterday; it isn't just a single allegation being made. There's that issue of accountability. If this committee recommended to the Legislature that your first recommendation be adopted, how can I as a politician, how can a municipal councillor as a politician, be accountable?
Mr Kirby: First of all, you have to understand how welfare is administered by the municipalities. They administer welfare and pay 20%; 80% is paid by the province. The Ministry of Community and Social Services is ultimately responsible for how that money is spent. The Ministry of Community and Social Services does do audits of how the municipal government is administering welfare. In Renfrew county we have an officer who comes around and looks at the books to see how thing's are doing, to make sure that the people who are getting welfare are the people who are supposed to be getting it. There's an audit done on the general welfare accounts by the municipality too.
The point I'm making is that there are systems in place that do detect fraud. It's not a major problem. There are always going to be some people who abuse any type of system, but there are no studies that show that fraud is not being detected or that it's a major problem.
I've read Ms Dodds's submission yesterday. She wasn't recommending that municipal politicians would know the names of welfare recipients. I didn't see anything in her submission stating that, and that's the point I'm trying to deal with today. There are systems in place to detect fraud, and it is detected. It's not a major problem. If it is a problem, it's the problem you've identified: that when people do that, they discredit all the people who are receiving welfare.
Mr Pat Hayes (Essex-Kent): Thank you for your presentation. You're well aware of the presentation made yesterday by the councillor from Thunder Bay.
Mr Kirby: I've read the briefs.
Mr Hayes: And there's an article in the Toronto Star this morning: "Welfare Users Should Lose Privacy Rights, Politician Says," that they should be "stripped of all privacy rights to ensure they don't bilk the public purse." Your presentation really doesn't slant in that direction.
Mr Kirby: I would say I'm taking the opposite view.
Mr Hayes: Yes, I think so. In your line of work, over the years of your involvement with people on social assistance, I'm sure you run into those who feel that people on social assistance probably shouldn't have sugar on their cereal, for example, like other people enjoy, or shouldn't be able to watch TV and other things, that they shouldn't even be allowed to have a beer if they choose, because they are on social assistance, even though we know that many of these people are not on social assistance by choice but because of the economic climate in this country.
People do talk about fraud. Of course there's fraud; I don't care what system it is. But it's rather interesting that you have people come before these committees in government and complain about one specific group when there are others in our society who cheat on income tax and other things, and some corporations that get funding from all levels of government and seem to have their privacy protected. We seem to pick on the ones who are the most vulnerable.
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How do you feel we should deal with some of the examples of abuse suffered by people in the community? There are people who refuse to go on social assistance. Some may be very proud because they've had good-paying jobs and lost them, and others just don't want to be harassed. How do we deal with that as a government, or how do the social assistance people deal with that?
Mr Kirby: I don't think you can deal with that through MFIPPA, but I've always made the point to the Ministry of Community and Social Services that if people knew how their welfare dollars were being spent, I don't think they'd be as upset about it. I've made recommendations before that perhaps the government should educate people on how it's spending their money. There have been previous examples of the government trying to educate people around issues like drunk driving that have been very successful. If the government were to explain to people how that money is being spent, that, for instance, 40% of the people getting welfare benefits are children, statistics like that, if it made the public more aware of that, I think there'd be less concern in the public about how the money's being spent.
Mr Hayes: On your recommendation that "the privacy commission should immediately engage in a comprehensive audit of the practices of welfare delivery in unconsolidated counties," you feel that system in Renfrew should be operated from one level, from the county itself?
Mr Kirby: I've made numerous recommendations over the last nine years that welfare in Renfrew county and in the other three unconsolidated counties should be delivered at the county level, that it would solve a lot of these problems. It's been impossible to get government to move on that, although they always agree with me that it's what should be done. In the meantime, if this is the system we're going to have, I'm making recommendations that the privacy of these people should be protected more under this act.
Mr Hayes: From a different angle, do you have any idea of how much money could be saved if it were consolidated? It seems like a pile of duplication in that particular county, with 37 municipalities, all with their own welfare department.
Mr Kirby: I don't have those statistics, but I think the Ministry of Community and Social Services does. They've done studies on that and have recommended to county council that the system should be consolidated. For some reason the county councils are reluctant to do that, but from speaking to the ministry, in counties like Leeds, the last county that went consolidated for its welfare, it's been very successful. Once it's done, the municipal politicians tend to like it.
Mr Gilles E. Morin (Carleton East): Do you have any statistics about the number of people who are intimidated by the fact that their names may be known by politicians?
Mr Kirby: No, I don't, Mr Morin.
Mr Morin: It would be quite interesting if you have any statistics. You say that statistics show fraud is very low. Perhaps the number of these people is also very low. Does it warrant a change in the legislation?
Mr Kirby: The problem is that the people who are intimidated about it are the people who are least likely to come forward and say anything. That's why I've only been able to present anecdotal evidence today that this is a problem, because these people will not come forward. When I brought a court action to challenge the practice of having the cheque signed, I could not get a client to come forward and do it because they don't want people to know they're on welfare. That's the problem. That's why they don't want the councils to know, but that's also why they tend not to come forward and tend not to want to bring court challenges. The Hastings case was very good in that they could find two people who weren't very worried about that and were willing to challenge the practice -- there, anyway.
Mr Morin: To be on welfare or to be unemployed for some people, I know, is very humiliating. Is the same phenomenon happening with unemployment insurance? Do you know of any cases of people who hesitate to collect unemployment because they know that certain politicians would know about it?
Mr Kirby: No, I've never heard of that.
Mr Morin: Why would there be a difference between welfare and unemployment?
Mr Kirby: Unemployment's a federally delivered system. While the Treasurer signs the cheques, it's done by a machine and they're sent out to millions of people. There's a lot of difference. I don't know that the members of the federal government know who gets unemployment insurance benefits, but I doubt they do. Local government makes it much closer, that I see this name of this person getting welfare and I actually know this person and their family.
Mr Morin: One of the recommendations that hopefully will be made pretty soon by Community and Social Services is to encourage direct deposit for the recipient.
Mr Kirby: They're already doing that now.
Mr Morin: Would that alleviate the problem you're referring to?
Mr Kirby: No, because that would only deal with people who are receiving family benefits through the Ministry of Community and Social Services, and not at this small level: You've got to realize that in some of these municipalities with 600 residents, there might be three or four people getting welfare, and to institute a direct deposit system is not practical.
Mr Morin: If I have any time left, I would be glad to pass it to Mr Tilson.
Mr Tilson: I represent small communities. As to your question of confidentiality, in some of the small communities I represent, everybody knows everything about everybody. Who are we kidding? They know everything, practically speaking. It would be literally impossible to keep that sort of thing going. They know where you're being paid from, where you're receiving your income, everything about you, good things and bad things. It's just a fact of life.
Mr Hope: That's not a factual statement.
Mr Tilson: It is a fact of life.
Mr Hope: I live in a small community too. They think they know everything about everybody, but they don't. You can't make that statement.
Mr Tilson: I just made it.
Mr Hope: I know, but it's not factual.
Mr Sterling: It's opinion. He can state his opinion.
Mr Tilson: I can say whatever I want to in this place. You may not like it, but that's what I can do.
The Chair: Mr Tilson, you've got the floor.
Mr Tilson: The conversation appears to have degenerated into nonsense, as it normally does with some of these people.
Mr Kirby: It's true that in small communities people know a lot about each other, but this would be one thing that one person wouldn't know about somebody else. The local councillor would not know who was getting welfare. They may know from some other way.
Mr Tilson: That's just my point.
Mr Kirby: Yes, they may find out because they know the guy isn't working and his UI has run out and what else is he living on, but that's quite different from using your government position to find out something. Finding out something in the community is a lot different from using a position as a politician to find out information about individuals.
The Chair: Mr Kirby, thank you for your presentation.
COMMUNITY LEGAL ASSISTANCE SARNIA
The Chair: The next group is Community Legal Assistance Sarnia.
Mr Grant Timms: My name is Grant Timms, and I am vice-president of our clinic's board of directors and co-chair of the board's consumer liaison committee. With me today is Margaret Capes. Ms Capes is the staff lawyer at Community Legal Assistance and will be handling the second half of our presentation.
We would like to thank the committee for the opportunity to appear before you today to present our views on the Municipal Freedom of Information and Protection of Privacy Act. Community Legal Assistance Sarnia is one of approximately 70 community legal clinics in Ontario offering legal assistance to low-income residents in areas such as Canada pension, workers' compensation, family benefits, general welfare and landlord and tenant matters. In addition, the clinic does extensive work in the areas of law reform, public legal education and community organizing.
Our consumer liaison committee, made up of low-income people with the support of the clinic's community legal worker, advises the board and staff on poverty law issues and acts as an advocate on these issues.
These hearings and review of the Municipal Freedom of Information and Protection of Privacy Act are, for us, timely, as a situation has recently developed in our community which speaks directly to the deficiencies as we see them in the act.
On November 24, 1993, Lambton county council passed a motion directing the social services administrator to make available to the current warden the complete list of welfare recipients. The purpose of this disclosure, according to the then warden, was to deter welfare fraud. It was his belief that welfare recipients, knowing that elected officials had access to personal and confidential information about them, would think twice before abusing the system.
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This warden's term was due to end December 1, one week after the vote. On November 29 and 30, he looked at the list. The new warden has stated publicly that she has no interest in looking at the list and voted against this motion to disclose. Proponents of the disclosure have apparently based their opinion about its legality on the provisions of MFIPPA, which my colleague will speak to, and a decision in 1992 of Mr Justice Byers in a case involving Hastings county council. Justice Byers struck down a resolution of the Hastings council to release the names of welfare recipients to all members of council. He added, however, that a warden might have access to this information in a proper case.
In our judgement, Lambton county has not demonstrated and has not even attempted to demonstrate a proper case. Proponents have offered no other justification for the disclosure than the statement that they were receiving a lot of complaints from citizens regarding welfare abuse. However, the county has produced no evidence whatsoever to suggest that fraud is increasing, that it is widespread or even that it is more than a marginal problem; in fact, in media statements they've suggested just the opposite.
There has been no evidence to suggest that employees of social services cannot handle the problem. Lambton county has one of the lowest case-load-to-case-worker ratios in the province. In addition, a former RCMP officer was hired in September 1993 specifically to investigate potential cases of fraud and abuse.
Just how this disclosure would serve to discourage welfare fraud, other than through the intimidation of all recipients, has not been explained. It is difficult, moreover, to see how these certain councillors took seriously the Hastings county court decision. Indeed, also in September 1993, a motion was brought which, if passed, would have allowed the disclosure of recipients' names to all councillors. The most vocal proponents of the current resolution also supported the earlier motion, which knowingly and willfully disregarded the Hastings decision.
In taking this action, the county has disregarded the policies and directives of the province with respect to the interpretation and application of both MFIPPA and the General Welfare Assistance Act concerning the treatment of personal and confidential information. Indeed, two letters from the Ministry of Community and Social Services to the county's social services administrator directing him not to release the list of names were disregarded.
In our attempts to persuade council to rescind its motion to disclose, members of the clinic staff and consumer liaison committee have had the opportunity to speak with several of the councillors who supported disclosure, as well as with social services officials. For the most part, the reasons for supporting disclosure have little to do with fraud and more to do with misinformation and resentment or pre-existing biases against welfare recipients. A large percentage of the complaints from the public, we have been told, can be traced to an ignorance of social assistance regulations. Many people do not know, for example, that recipients are permitted to work, that being employed while on assistance is not fraud as long as earnings are reported.
Certain councillors have expressed anger over social assistance regulations and eligibility criteria. Some believe that benefit rates are too high, that it is too easy to live on assistance. Some believe that there are many people receiving assistance who do not deserve it. These are personal and subjective opinions; they do not constitute fraud on the part of recipients. However, the line between what these councillors feel is wrong and what constitutes the crime of fraud has been blurred. It seems that the lack of clarity in MFIPPA is being used as a vehicle to express complaints about the welfare system in general. This of course is not an appropriate use of personal and confidential information.
We certainly do not expect the standing committee to address the issue of bias against and the stigma of social assistance. However, we ask that you consider these in your review of MFIPPA. Social assistance recipients need the protection of a clearly worded law, one that will preclude these negative attitudes finding expression in a legally discriminatory action such as the disclosure of personal information.
The need for clearly worded protection-of-privacy provisions in the law is demonstrated time and again in the clinic's experience. Unfortunately, the stigma of welfare still exists. At the clinic, we deal with many of the so-called new poor, people who've worked for years, built careers, but now have been forced to seek assistance. They are understandably uncomfortable discussing their personal situation with those close to them, let alone welfare case workers, but they must reveal everything about their lives during the application process. This can be a humiliating experience.
The only consolation is the assurance that the information will remain confidential. It says so on the forms applicants must sign. This information often includes medical information. The clinic has dealt with persons with all manner of medical problems, including people with HIV and AIDS. They must reveal this information to satisfy eligibility requirements but have every right to expect that the information will go no further.
While it is true that in Lambton county only a list of names and addresses was disclosed, this was personal and confidential information as defined by the act. If this action is permitted, we believe a principle will be established. Recipients are rightly concerned that this will lead to disclosure of other confidential information. If the intention of disclosure is to allow county councillors to root out welfare fraud and determine whether eligibility criteria are being met, they clearly cannot accomplish these tasks by looking at a list of names only. They will need access to financial, medical and other personal information.
Clearly worded protection-of-privacy provisions are needed, because it is clear that county councillors feel safe in taking this action. They may well have felt that there would be no repercussions, knowing that recipients do not have the resources necessary to protect their legal rights and knowing, more importantly, that recipients, due to the welfare stigma and due to the desire to keep their private lives private, will be unlikely to fight for these rights in a public forum.
Our experience bears this out. Community Legal Assistance has explored the possibility of applying for a judicial review on this case, as was done in Hastings county. To do this, we would need a client, a person whose name appeared on the warden's list, but potential clients fear repercussions. They fear that benefits will be cut off in retaliation by the county. They fear public ridicule. Most of all, they fear their children will be subjected to abuse at school by their friends, by their friends' parents and even by teachers.
We see laws such as MFIPPA as mainly preventive. Their first intent is to prevent damage being done to people by the unwarranted and unnecessary disclosure of personal information. Provisions which emphasize these preventive aspects of the law are a necessity where vulnerable people are concerned. It should be incumbent on those wanting access to personal information to prove their need, and this information should be released only with the person's consent. Apparently, Lambton county believed, given its interpretation of MFIPPA, that neither proof of need nor consent was required.
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Ms Margaret Capes: Today I've been asked to add comments about our recommendations for change around the municipal freedom of information and privacy act based on our experience in Lambton county. It's very clear that our clinic and many members of our community are at odds with Lambton county council about the interpretation of this law. As long as it's unclear in its application, we have the feeling that we will be continually fighting Lambton county council; that motions of this kind will continue to arise over and over. It's our recommendation within the submissions we've presented to you that these vague areas be cleared up once and for all.
It's our recommendation, along the same lines as Mr Kirby has already suggested, that for the purposes of general welfare assistance and information relating to such recipients the head of the institution under the act be designated as the department of social services in each municipality; and that any information that's being requested about general welfare recipients or their level of benefits be sent to the department of social services as the head of the institution; and that the department head would assess whether the release of that personal information is appropriate under the basic workings of the act.
You may or may not know, but there is a presumption under the current wording of the act that that is personal information and that it is not to be released. It's our recommendation that in all cases, if the department of social services in each municipality received this, there would be consistent application of the release of this information or not.
A side issue around that point is that under the current system, if someone wants information under MFIPPA, any private citizen has to make a special request, using a specific format, to the head of the institution. If a person's personal information is a part of that request, that person is to be given notice of the fact that the information may be released. If that person objects to the release of personal information, they can appeal that to the Information and Privacy Commissioner.
In the situation in Lambton county, Lambton county council felt that given the current wording of the act, it did not have to go through that specific procedure and, as a result, no person on the general welfare list in Lambton county was notified before their names were released to the warden and therefore did not have the opportunity to exercise their rights of appeal.
As Grant has already mentioned, and Mr Kirby earlier, the stigmatizing effect of that information being released, it's our recommendation that we create a level playing field here, that everybody under MFIPPA has to make requests in the same format consistently. Whether you're a private citizen, a county councillor, a warden, a lawyer representing a client, everybody should have to go through the same procedure in terms of applying for the information, at which point the information could be either released or not released, based on the presumptions and exemptions in the act.
Something we've discussed about this situation, and I ask that the committee members consider this fact, is that the motion at Lambton county council allowed the warden to look at the list of general welfare recipient names. You may want to ponder this point: If I wanted to find out if the warden of Lambton county were on general welfare assistance, I wouldn't have the opportunity to simply make a motion and then go and look at the list. As a private citizen, I would have to apply through the MFIPPA procedures to the head of the institution, and it's very likely that information would not be released to me as a private citizen. And, under those circumstances, the warden would be notified of the fact that I have made that request, and if it was even being contemplated that it was going to be released they could appeal that decision to release to the Information and Privacy Commissioner.
That's an opportunity that was not given to many, many people in Lambton county in November 1993 who are on general welfare assistance. Their names were released. It seems to me that if one scenario would apply in the one case, it should apply to all of us, regardless of our position in the community.
Mr Bob Huget (Sarnia): Thank you, Margaret and Grant. I appreciate your taking the time to come today. I want to touch on a few of the comments you made. I want to start by referring back to a comment Mr Tilson made to the presentation earlier, in terms of accountability and elected officials' perception of accountability, and that someone has to be accountable in overseeing all this abuse, alleged.
Has it been your experience that an elected official, a politician like me -- I'm a politician in Lambton county -- has any of the expertise that would be required to determine eligibility, disability or any other requirements of the GWA? Is that an easy thing to do?
Ms Capes: I've been working at the clinic almost five years now, and at least one third of my case load is in the area of social assistance representation. It would be my opinion that there are fewer than a hundred people in this province who fully understand the workings of the general welfare act. I would not think that a person who has a copy of the act could necessarily determine from a fact situation presented to them, let's say by the release of a name and their circumstances, whether in fact that person legitimately qualifies for assistance.
You've touched on a point that's very important. I think there's anger out there about what's in the general welfare act and who should be eligible and who shouldn't. That should not be taken out on the people who are on assistance legitimately.
Mr Huget: I think people in this committee will know that the province administers family benefits all through the province, and as an elected official in my community, I don't feel the need to see the names of the people who are receiving family benefits. I'm not in any position to determine whether they should or should not receive them. I leave that to professional people, and I would assume that's probably a logical thing to do in terms of GWA.
However, I do understand that for the politics of poverty, it provides some press and provides election campaigns on the backs of people in my community who can least afford to have one more brick put on their backs.
The stigma issue is an important one. You've raised a couple of examples in your presentation. I could raise hundreds of examples of people who visit my office on a regular basis, who are receiving benefits and are subject to the kind of ridicule and attacks on the fact that they are in an unfortunate situation, that makes their self-esteem drop to below zero. At the same time, elected officials are asking people to feel good about themselves and go out and change their circumstances. Well, it's damned hard to do when you've got people loading that stigma on you on a daily basis. It's true. It happens.
I also want to focus on the issue of access to information. The point you raised about the warden is a very interesting one and I want to go over that again. If what you are saying is correct, if I were to go to the warden of Lambton county or any other county and demand to know whether that elected official, whether it's a county politician or any other, is receiving welfare assistance or has ever received welfare assistance, what would be the response and what would I have to do to get that information?
Ms Capes: From my understanding of MFIPPA and my experience with using MFIPPA in my own case work, you would have to complete a form. It would be sent to the head of the institution. In this case, as the act is currently worded, it would go to the warden himself or herself because they are considered the head of the institution in Lambton country as a bylaw's been passed to that effect. That individual would assess whether or not that personal information should be released. I point out that there is a presumption under MFIPPA that says personal information relating to general welfare assistance is to be presumed to be information that should not be released, so I would expect that if you put in that request, the response would be: "There's a presumption against the release of that information. I'm sorry, you're not going to get it." The end result would be that if you received that you could appeal that to the Information and Privacy Commissioner for a second look at the decision, Or, if the decision was to release the information, the warden would have the opportunity to appeal that decision because they may object to that personal information being released. That's the current situation.
Mr Morin: I am inclined to agree with my colleague Mr Huget that I have no interest whatsoever in finding out who is receiving welfare. I'm not qualified to determine whether they are entitled to receive it or not.
But I am concerned about fraud. Let me give you the reasons why. I recently conducted a survey in my own riding: 7,000 cards were sent, and I was very fortunate to get a 35% reply, which is totally unusual. One of the questions asked what the main issues were that people were concerned about, and 80% responded "fraud."
As long as government is not capable of coming up with a system which would at least alleviate that fear the public has about fraud, especially when economic times are bad, like now, the ogre of fraud always comes out. We must find a way to prevent fraud so that the public can say: "We have a system. It is our responsibility to help the people in need, it is our responsibility to help the people who are without work, but we want to be sure that money is well spent, that the money goes to the right person." This is the concern we all have here today.
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I agree totally with you that the persons responsible should be well qualified to determine whether that person should be on welfare. That's without any question. But you must also point out the problem you are facing, because we know there is fraud. It's not as big as we may expect, but just because I have to pay taxes -- I'm talking on behalf of my constituents -- and I accept the fact that I have to help people in need, I want a system in place that will make sure these moneys are well spent. Basically, that's all it is.
When you hear politicians saying we should take stringent measures to prevent fraud, this is what they mean. It's what I mean, anyway. I'm voicing an opinion I receive from all my constituents, rich or poor. We have to tackle that issue to remove the fear of the public. It cannot be 100% foolproof, but we must make an effort to come up with a system to say we trust the system; it's well administered. Do I make my point clear?
Mr Timms: Yes. That issue of accountability has come up in our conversations with county councillors in Lambton, and it's a legitimate concern. But if somebody understands the application and review process, it's not as if someone can apply for assistance and then they're just left alone. Reviews are done every six months or on a monthly basis in terms of income reporting and these kinds of things, and different people have different eligibility requirements. If you're employable, a condition of your eligibility is that you're out there looking for work, and you have to provide documentation of where you have looked. If there's any government system that has a lot of checks and balances, it's this one. People are monitored every step of the way, not on a daily basis but certainly on a monthly basis. It may be that one reason the incidence of fraud is so low is because of all these checks and balances being there. People are accountable.
I'd have to agree with Mr Kirby: If the public were educated about the process and the kind of information applicants and recipients have to provide, whether at a municipal level or at a provincial level, it would certainly ease their fears. I don't think anybody who hasn't been through the system would welcome going through that kind of process, because it can be a degrading and humiliating experience.
Mr Tilson: We're all expressing the same concerns. There certainly is a need and a desire for privacy, in the same way -- I don't know whether you were here earlier when we were talking about universities. Some of the other committees in this place have debated the issue. Universities don't want government interfering with their financial affairs because of their need for academic freedom, yet the taxpayer is putting substantial amounts of money into a university and then the citizens see tuition fees going up and other expenses going up and they question it. This word "accountability" keeps cropping up, notwithstanding there's a desire for academic independence.
The same comparison could be made with exactly the issues you're raising. No one would like to see their name in headlines or in minutes of some county council or municipal council meeting or whatever, that they're receiving welfare. No one in this room -- no one, period -- would want that. I understand that. But there is that issue out there, as just stated earlier, that the politician must continue to deal with. Whether they're qualified or whether they're not qualified, there is the need to make sure that people are eligible and that there's no fraud. They're not going to be the investigators, but someone has to watch the system. I believe that's what the politician's for. It may well be that we may have to find another avenue of approach --
Mr Huget: It sounds like George Orwell to me.
Mr Tilson: I'm going to ask the same question that's already been asked and perhaps rephrase it: that whole issue of accountability, of the need to obtain privacy but the need to have accountability.
Mr Timms: We hear that a lot: Are the people who are receiving assistance accountable? In our opinion, they certainly are. With all respect, politicians could take more of a leadership role in educating the public to show them the system. If the general public is concerned about how the system is managed, maybe they should take some responsibility on themselves and look into it, because a lot of the information is available. Somebody could read the general welfare act, could go and ask a case worker for a sample application or something like that to see what people have to go through, and then they would get a pretty good idea of how their money's being managed. But I don't think people do that.
Mr Tilson: Who would the head of the social services department be responsible to?
Ms Capes: This is a good question. In our experience in Lambton county, it appears that the head of the department of social services in Lambton county is answerable to at least two parties, and this is part of the problem. Under section 3 of the general welfare act it states that the province has responsibility through the Ministry of Community and Social Services to see that the act be administered properly, so they've got that master. Then they have Lambton county council saying to them, "We also have responsibility to make sure that taxpayers' moneys are being appropriately spent, so let's see the names."
The Chair: Time has run out. Thank you for appearing. Have a safe trip back to Sarnia. Is it warmer there?
Mr Huget: No.
Mr Hope: You've got to go a little farther south, to Chatham.
ONTARIO LEGAL CLINIC STEERING COMMITTEE ON SOCIAL ASSISTANCE
The Chair: The next group is the Ontario Legal Clinic Steering Committee on Social Assistance.
Ms Nancy Vander Plaats: Thank you for the opportunity to talk to you today. We are the Ontario Legal Clinic Steering Committee on Social Assistance. I'm Nancy Vander Plaats and I work at the Scarborough community legal clinic. With me is Ian Morrison, executive director of the clinic resource office.
You've heard from two individual legal clinics about the experiences they've had in their own areas and why MFIPPA is important and should be strengthened. We represent all the clinics. There are some 60 legal clinics in Ontario that handle general welfare cases, and we're a representative body, with regionally chosen members from across the province, so we hear people expressing to us what happens all over Ontario on matters related to welfare and family benefits.
You've heard specific examples of invasions of privacy. The committee members have expressed concerns about accountability, that maybe there's a problem that privacy is protected too much so that we can't deal with fraud and abuse.
Let's go back to the position of the person who has no money, who is in need and needs to apply for welfare. Do they have privacy rights? Basically, no. They don't have privacy. They have to go to strangers and disclose everything about their lives, of course all their financial situation, but besides their financial situation they have to disclose all kinds of things about their personal lives: who may have fathered their children, whether they have any boyfriends, whether they have boarders or someone else living else with them; their children have to provide information from schools and so on; they have to provide letters from employers or from their landlord. All kinds of people get involved in the application process and have to provide documentation for welfare. People don't have much privacy. That's unavoidable. I'm not saying they should have privacy. You can't avoid that when you have people applying for assistance. You have to ask questions and determine eligibility.
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That's just where we should start: The privacy is already invaded. However, MFIPPA limits that invasion of privacy somewhat, puts some protections on it. It says your privacy should only be invaded to the extent of those who really need to know: Professionally educated and legally responsible welfare officials are the ones who should get that information, and other people shouldn't. That's the context. The question is, does MFIPPA protect privacy enough, or too much, or what?
The stigma attached to welfare has been alluded to already, the fact that people are so afraid of being identified as in need of welfare that they might not apply even when they're in real need. It's common and it's probably always going to be the case, but I'd like to emphasize again some of the effects of this. It's been mentioned already that 40% of welfare recipients are children. The stigma on children is probably the greatest problem. After all, even if sometimes people blame adults for being in a position where they need welfare, you can't blame the children.
Yet even when all their rights are protected, high school children, for example, have to get letters from the school proving they're in attendance at school and making satisfactory progress and so on. We've heard many examples of how that has humiliated children, teachers who use that against those children, how other people find out in that way. The same thing happens with employers. When people have to provide letters from employers, they can get harassed and have problems that way.
The issue of accountability is the other one I wanted to address. The system has a lot of checks and balances built into it. Perhaps there could be more. The ministry just announced a whole new computer system. One of Ms Dodds's points was that the computers aren't hooked up so maybe people could apply in different municipalities and get welfare. Certainly that kind of fraud should be stopped and, luckily, the technology now exists so that it can be stopped. There are many ways to deal with accountability, to address the issues. However, it's not a good idea to try to address it by making the identities of welfare recipients known to people who don't have a need to know and a real reason to know to judge whether they're eligible.
With those general comments, I'm going to turn to Mr Morrison for our specific recommendations.
Mr Ian Morrison: We've made three specific recommendations in our brief. Two of them essentially follow on things you've heard this morning, and we will treat them quite briefly.
The first one is that subsection 2(1) of the act should be amended to define the social services department of a municipality which has appointed a welfare administrator to be a separate institution and to designate the welfare administrator as head of the institution.
The reason we've made that recommendation you've already heard in considerable detail, and I won't run through all the points. We've examined whether there is some other way of dealing with that issue under the current legislative framework that would not require an amendment to the act and we have concluded that there isn't. We don't believe that relying on the judicial process is an adequate protection. We have indicated that although the Ministry of Community and Social Services is opposed to the kind of thing that happened in Hastings county and Lambton county, it's very doubtful that it actually has the legal authority to do anything about it, so we believe the only sure way of ensuring this protection of privacy is an amendment to the act.
I appeared before this committee a couple of years ago when it was reviewing the provincial act, and although we were talking about the provincial act we touched on some of these municipal matters. This committee made the same recommendation at that time, and we are simply asking you to affirm that recommendation, this time in the context of MFIPPA.
The second recommendation we've made is that the privacy commission should immediately engage in a comprehensive audit of the practices of welfare delivery in unconsolidated municipalities. The unconsolidated municipalities are only a small part of the province. Unfortunately, it's clear -- I think this was clear from Mr Kirby's presentation -- that all the problems of welfare delivery in unconsolidated municipalities cannot be addressed through MFIPPA. I was assured yesterday by people from the Ministry of Community and Social Services that a decision would be made, hopefully within the next six months, on the delivery agent for a revised social assistance program in Ontario, and we certainly hope that will deal with many of these problems.
However, in the meantime these issues do exist. We don't know what that decision about service delivery is going to be. We also don't know for sure that there will in fact be new social assistance legislation. Although it's possible that that issue will become moot, unfortunately there are no guarantees that that's the case and we would therefore still ask that this committee address that issue.
The third recommendation we've made is one that wasn't touched on by the others, so we'll spend a little more time on it. It flows out of something that Nancy said. Our recommendation is that the act should be amended to provide that in the case of release of information to determine eligibility for welfare benefits, the institution -- and of course, this follows on our recommendation that the institution should just be the welfare department -- must consider alternatives to disclosure of the identity of the recipient and must demonstrate that it has considered all reasonable alternatives to the proposed use or disclosure, regardless of whether the person concerned has signed a blanket consent to disclose as a condition of applying for assistance.
Nancy mentioned that already considerable information about the identity of welfare recipients is disclosed to all kinds of people when somebody does apply for welfare, and this applies everywhere, to Toronto as much as it does to Barry's Bay. There are really two general categories of release. Information is released to other branches of government in order to verify all kinds of information other branches of government have, but it's also released to members of the public who have some relation to the recipient: landlords, employers, potential employers, past employers, all that sort of thing.
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In its review of MFIPPA a couple of years ago, this committee made this recommendation in essence, except for the last part, that says "regardless of whether the person concerned has signed a blanket consent to disclose as a condition of application for assistance." We ask that that be added because we believe this information is often disclosed in circumstances where it's not necessary and where there are other reasonably reliable ways of getting the same information.
If the part about whether the person has signed a blanket consent is not added, it really undermines the entire purpose of that protection in this context. If you apply for welfare, you must sign the general consent saying they can release the information to anybody. You have no choice: If you don't sign that consent, you cannot get welfare. It's not a free consent. There's no meaningful consent to the release of information in those circumstances. We think the onus should be on the institutions to identify the least intrusive ways of obtaining this information.
On the whole, I think we would all admit that it's not a problem when information is being shared between government departments, as long as it's information that actually is needed to determine eligibility. Implausible as it may seem, I'm actually going to acknowledge that somewhere in her brief Evelyn Dodds had a valid point, which is that as things stand, that kind of information sharing is unduly awkward and there are unnecessary barriers to that. I would add that it actually works against clients' best interests because it's sometimes very difficult for the client to get information they need from other government departments to show their eligibility, so it can even cost them a great deal of money.
The purpose of this recommendation is not aimed at intergovernmental sharing of relevant information. It's aimed at the release of information to members of the public who have no obligation to do anything with respect of it. This covers an almost infinite number of situations, and we couldn't run through them all here. But we're suggesting that there be a statutory onus on the institutions themselves to review their various practices for gathering different kinds of information and in each instance to consider whether the release of the person's identity is demonstrably necessary to ensure that the necessary information is being collected.
That's all I will say with respect to our recommendations. Generally, of course, we support the provisions of this act. We believe the protection of privacy indicated in the act is already a matter of public policy in Ontario. At this time, of all times, it's particularly important that that protection be maintained. There's a great deal of public concern about abuse of social welfare programs. In many cases, this concern amounts, I would say, to hysteria.
I'd just finish off with two things to put in perspective the concern about abuse of social programs. We've heard several times from people on the committee about constituents calling them up, complaining about fraud, complaining about the abuse of social programs. To some extent, I think that was answered by the previous presenters, but to add one more piece of information to that, the Metro Toronto welfare department a couple of years ago instituted a welfare hotline where people could call up and anonymously denounce people they thought were committing welfare fraud. They recently released the statistics about the results of the operation of that hotline for a couple of years.
In 1992, in just less than half the cases where people called up alleging that somebody was committing welfare fraud, the person reported was not even on welfare. Of the people who were on welfare, the vast majority were investigated and it was found that there was no impropriety. Ultimately, legal action was only taken in something like 1% to 3% of the cases referred to them. That is consistent with every study that has ever been done on the volume of losses to social welfare fraud. It's consistent with national studies, provincial studies, studies that've been done in other provinces.
The issue of accountability is important. Of course there is some money lost to welfare fraud, although I would point out, just to put that into perspective, that the estimated losses to tax evasion in Canada are something in the order of $5 billion to $20 billion per year. That's more than Ontario's entire annual welfare budget.
In closing, we would ask this committee to reaffirm that the million and a half people on welfare in Ontario are citizens of this province who are entitled to the same kinds of rights and protections as any other citizen and not a subclass of people who've abandoned all claim to humanity because of their need.
Mr Murray J. Elston (Bruce): We have a problem here. It's an interesting one for me, because it is based on an intellectual battle about accepting recommendations of some people about disclosing the salaries of every person who works in the public service or receives taxpayer dollars, yet retaining the right not to publish information about people receiving social assistance. It's a difficult step to do one and not the other. Can you help me out on that? How do you warrant disclosing information about people who work, plus their benefits and expenses, while not providing information about people who are receiving taxpayers' dollars, in a different sense, but none the less taxpayers' dollars?
Ms Vander Plaats: I don't really think that's a fair comparison, but I can see how it's a conundrum for you.
Mr Elston: Because that would set up a second class of people, right?
Ms Vander Plaats: The people who work for the public sector then are a second class if it's disclosed.
Mr Elston: In agencies, yes.
Ms Vander Plaats: I don't support disclosing of salaries of everyone who works, so it's hard to answer that. I think people should have some privacy rights, so that's not a fair thing to ask.
Mr Elston: But it's been put to us that we at least consider it. The minister responsible for Management Board has suggested we think on it, not that he's saying he's going to do it, but he has received direction from cabinet to follow up on Mr Laughren's initiative that the top five officers of every publicly traded company have their salaries disclosed. What I took from Brian was that it really meant he was leaning towards coming up with a policy for disclosure of public salaries. While you say it may not be fair to ask you, the problem for me is that I can't differentiate between one group of recipients and another without logically having to create the two classes that were just spoken about by Ian.
Ms Vander Plaats: But there is a differentiation now. It's true, sometimes bureaucrats or politicians are certainly maligned a lot, but not in the same way.
Mr Elston: That's part of the job description.
Ms Vander Plaats: Right. You do have a choice about whether or not to run as well. It's a public service that you do. But people who are forced to apply for welfare don't have a choice. They have tried everything else they can and have nowhere else to turn. There isn't the same kind of stigma, there isn't the same concept that everybody who works for the government are lazy bums. It doesn't apply in the same way, I don't think.
Mr Elston: There's a sizeable group of people who just fainted in that corner.
Mr Tilson: Yes, and some politicians too. I get back to questions that are asked of me, that society or government, the provincial government or the municipal government, is making it easier and easier for welfare fraud. I don't know whether that is a legitimate allegation or not. The fact is, the allegation's being made. You people have obviously thought about this and other things. Can you tell me what an appropriate answer to such a comment would be?
Ms Vander Plaats: I'd say the government is doing a lot to deduct fraud and they're doing more and more all the time. You should tell your constituents about some of the things they're doing. Besides putting in new computer systems, they have procedures called enhanced verification, where they're reviewing files of recipients more often, they're checking up on more details, they're requiring far more documents. We think many times that goes overboard and some of those procedures actually deny benefits to people who need them, but nevertheless they're doing them. I repeat: There are incredible hoops people have to go through.
One of Ms Dodds's points was that people don't need verifiable ID to get welfare. Well, they certainly do. They need very specific kinds of ID and they've tightened that up: A driver's licence or something isn't good enough any more.
There are a lot of procedures in place already, you should tell your constituents.
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Mr Sterling: What do you think about doing away with the social welfare system altogether and just having guaranteed income?
Mr Morrison: I'm not sure that's really within the mandate of the committee. There isn't a short answer to that. There is merit to the proposal but it depends on how it's constructed. I think the answer is that the devil is in the details. It would depend on what kind of guaranteed annual system you set up.
Mr Hope: In the three minutes I have available to me, I'll again refer to the article in the Star, that "the right of the public to protect its money must outweigh the right of the individual to privacy," the point made by Mrs Dodds during her presentation.
You commented about the system itself being streamlined, cleaned up, with better communications with Quebec, Manitoba, the federal government. You're probably well aware that the provincial government is embarking on that, which was also indicated to the Provincial Auditor when all the stuff was being talked about in terms of possible fraud.
I notice in your numbers that you make reference to the Quebec welfare police and also to the corporate side of it. Mrs Dodds is worried about spending taxpayers' money for people to keep food on the table for the children. She forgets to mention these individuals who can corporately continue to feed their families and everything else on $100,000 or $200,000 a year. She forgets to mention that and I'm glad you brought it out.
The other part brought out was political responsibility. I believe you're absolutely right. A lot of people do not know what it's like to apply for social assistance. We have leaders of provincial parties running around this province saying that welfare recipients make $17 an hour -- irresponsible -- which then leads the public to believe this. I know the leader who did it because he did it in my riding. I won't mention who.
Mr Tilson: But the initials are "Michael Harris."
Mr Hope: I want to focus on an important part of your presentation, and rightly so, because I am in the Ministry of Community and Social Services. I've listened seriously to the concerns made by Renfrew about the municipalities -- if you want to talk about cost savings, I'm sure there must be some there -- and the concerns you raise about the privacy issue. We have to address this, because it's amazing the way economic situations turn social mentalities into political 1994 election campaigns.
I wanted to use my full three minutes, because with Mrs Dodds I only had one minute and I would have loved at least 10 or 20 with her.
Mr Morrison: Obviously, we tend to agree with you. One of the most difficult things working in this area is that welfare is one of the most myth-laden topics in our society. Along with the consistent studies that show there is not nearly as much welfare fraud as people think are the consistent studies that show that large numbers of the public have wild misconceptions about the welfare system. People have wildly erroneous ideas of how much money you get on welfare, what you have to do to qualify and so on.
It's very difficult to deal with those perceptions. The reason it's public policy in Ontario to protect the identity of people on social assistance, who are the very poorest people in the province, is because of the difficulties of overcoming those kinds of perceptions.
It is one thing to have an informed debate about what is being done about fraud, what can be done to prevent it, legitimate accountability things, but the other is to deal with the lives of people out there in the province, in their communities, who, on top of everything else that has happened to them, have to deal with the fallout of often having lost everything after a lifetime of working, who apply for social assistance and suddenly find out that in the eyes of everyone, they're a second-class citizen.
The Chair: Thank you for coming today.
Mr Elston: An administrative inquiry: Mr Morrison actually complimented Mrs Dodds, and I wonder if we could send the transcript of that to Mrs Dodds for her edification.
The Chair: I think Mrs Dodds will be reading it. I don't think she'll have a problem.
Mr Sterling: On a point of order, Mr Chair: I wasn't able to be here yesterday afternoon for Ms Dodds, but she obviously made quite an impression on everybody here. She's been quoted more than anybody else. I'm amazed.
The Chair: We'll have a quick Hansard out for you.
VICTORIA AND PETERBOROUGH COUNTY MUNICIPALITIES
The Chair: The next presenter is Mr John Ewart.
Mr John Ewart: Thank you, Mr Chairman. My name's John Ewart. I'm an associate with the law firm of Howell, Fleming in the city of Peterborough. As solicitors of that firm, we represent about 20 or more local municipalities both in Victoria county and Peterborough county, together with boards of education, as well as counties themselves.
My submission this morning is on behalf of those municipalities, to convey to this committee the difficulties the municipalities seem to be experiencing in administering the act. These comments are derived from the experience since 1991 of dealing with the Municipal Freedom of Information and Protection of Privacy Act.
With me this morning is Mr Stephen Kaegi. He is clerk-treasurer of the townships of Belmont and Methuen. They're one of our municipal clients.
With respect to the act itself, I wish to deal with the negative aspects as conveyed to us by our municipal clients. However, in fairness, there are a couple of what I'd consider positive aspects which are worth pointing out to this committee.
First, there's the element of formality. It has been the comment of our clients that since 1991 the act has imposed a formality within the municipalities in dealing with requests for information. Prior to 1991, it was been the experience that many people perhaps would deal with the request for information, but since the coming into being of the act in January 1991, the act has required that the decision-making be centralized in one person, or the head itself. I think this is a positive experience of the act.
The second factor, which is very similar, is accountability. One person is now responsible for making a decision with respect to the release of information requested by members of the public. Again this is being viewed as a positive aspect.
The third aspect is record management. If anything, the act has imposed upon our clients at least the need to keep proper records, not only recordkeeping but record storage as well as record retrieval. It's never known when a member of the public will be requesting certain information which is in possession of the municipality or the institution.
If those are the positive aspects, the negative aspects are as follows: First is the cost. One common area our clients have conveyed to us is the issue of cost in dealing with this act. It's been the experience of our clients that the implementation of the act has resulted in additional costs, as well as sometimes the requirement of additional staff time to comply or complete a request from a member of the public. This comes at a time when the institutions are required to cut back both in staff and resources, and oftentimes a request for a complex series of documents or a large number of documents imposes a burden upon the municipalities.
It's also been our experience, more often than not, that the municipalities have incurred legal costs in dealing with requests. This comes more often at the time a request is denied and appeals forthcoming. Nevertheless, it seems a common concern of the municipalities that they're often not really quite sure what is being requested of them by members of the public and in order not to run afoul of the act, we often become involved even at the very first instance, not, say, at the level of an appeal. Again this comes at a time when most ratepayers are very critical of any further expenditures by the municipalities, including that of legal fees.
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A second aspect our clients seem to have concern about is that the whole procedure itself seems to be of an adversarial nature. Once the request for information is denied and an appeal commenced, it does put the parties in what would seem to be an adversarial position. Aside from the legal costs incurred in dealing with this type of appeal, there are expected results which follow from any adversarial process, namely, that of bad feelings. When a member of the public is denied access to the record, that member of the public will not likely feel that the municipality has acted in his or her best interests, or indeed will feel that the municipality has something to hide. This seems to be a very common complaint among our clients.
The third concern is the type of documents the act deals with, as well as the language of the act itself in administering the act. It's been our clients' experience that the problem in administering the act, which often leads to appeals, arises from the numerous situations where the act either provides subjective or objective meanings or provides few guidelines, if any, about how the act should be interpreted. Clauses and phrases throughout the act such as "could reasonably be expected to," "compelling circumstances," "consistent with the conditions or reasonable expectations of disclosure," "unjustified invasion of personal privacy" or "compelling public interest," all of these clauses, offer few guidelines and impose real difficulties upon our clients in administering the act and it often results in our involvement at that stage. If the suggestion was that the act would allow for the free flow of information at a local level by the head or the local municipalities or their officials, it hasn't had that result, at least through our experience.
One particular example I've been asked to put forward to this committee involves a situation of one of our municipal clients who actually received a copy of an OPP incident report from the Ministry of the Solicitor General. That document was received through the municipality's own FOI request. The reason the document was requested was that there had been allegations of wrongdoing on behalf of council members. The request was put to the Solicitor General's office in an attempt to find out not only the status of the investigation but any conclusions or finding reached by that branch.
This document was received into correspondence by the municipality and therefore became a public record pursuant to section 73 of the Municipal Act. Being a public record, it was therefore available to the public. As a result of receiving that document into correspondence, a complaint was then lodged with the commissioner's office by the same individual who had made the allegations against members of council. The township in that situation was then found in breach of the act in receiving that information or that document into correspondence, despite the fact that it was the head's decision that compelling public interest in the disclosure of that document outweighed the purpose of the exemption set forward in the act. That's just one example.
Another is the subjective interpretations possible of many sections of the act. One in particular is subsection 8(4) of the act, which deals with routine inspection by a branch of a law enforcement agency. Nowhere in the act is the definition of "routine inspection" set out.
The final what we consider to be negative aspect of the act is that of the requests themselves. Oftentimes it's not clear what the requester is seeking or the purpose for which the requester is seeking the information. It is recognized that there are provisions in the act to seek clarification of the nature of the request. It doesn't avoid what are known as "shadow applications," applications being brought by individuals who have no interest in the information sought but it was only to pass it on. We have seen this on several occasions, particularly when there is either litigation ongoing with the municipalities or other hearings involving the municipalities as parties to a procedure.
The problem is that through requests for freedom of information, these may be documents that can be received which are not normally provided in the normal course of fact-finding processes in litigation. In short, it could become not only a fishing expedition but extended discoveries if the parties are involved in litigation.
Those are just experiences I've been asked to convey to this committee.
In summary, these are the recommendations submitted to this committee:
First, with respect to the issue of costs, it is submitted that the province perhaps provide additional funding to the municipalities to offset the cost of administering the act. Provincially provided funding is seen as a more desirable response to the cost of implementing the act than raising the fees which are currently provided for by the regulations set out in the act, which could result in an obstacle to those parties seeking information from the local institution.
Second, with respect to the adversarial nature of the process, it is submitted that the commissioner continue to attempt to resolve appeals in the informal manner he carries out right now; however, it takes more active mediation between the applicant and the local institution, thereby ending up in a resolution at that level rather than necessarily going off to an appeal. It is submitted that if the appeal were more direct between the parties, the nature of the process would be less adversarial, perhaps resulting in greater confidence in any decision reached.
Finally, with respect to the language of the legislation, it is submitted that much of the discretionary or subjective language of the act should be tempered by providing more complete guidelines about the criteria upon which exemptions are to be based. Furthermore, it is submitted that the act should be revised to eliminate the difficulties in arriving at what would be seen as a reasonable interpretation or application of the act by those who are administering it, namely, the local officials.
In conclusion, it has been the experience of our clients, or the municipalities, that the act has been successful. In fact, it does carry on most of the policies that were in place prior to the implementation of the act, that is, a free flow of information. However, it is hoped that those recommendations put forward will be considered by this committee.
Mr Tilson: As to the issue of funding, I don't think this particular government has any funding, so I think you can forget about that one. It does raise the question that costs for the municipalities and school boards you represent and other municipalities across this province are obviously climbing and climbing and climbing, for different reasons. There are more and more applications, and more and more frivolous applications; there are people simply out to drive the municipality and the school board under with these goofy applications, and there are some goofy applications.
A question I have asked on two occasions, and I'd like to ask it of you, has to do with costs. There doesn't seem to be anything in either piece of legislation that provides the commissioner the discretion to award costs. When I've asked this question before, I gave the example of a municipal board hearing: In the past it was very rare to have costs awarded, but now they're starting to award costs, particularly where it's quite obvious that someone is being cute in their appeals. Costs are being awarded, substantial costs.
Would it be appropriate for municipalities, when someone is making application after application after application, to make a query to the commissioner about whether these claims are frivolous and whether costs should be awarded by the commissioner? Is that an appropriate role for the commissioner?
Mr Ewart: I submit it is. In fact, your analogy to the Ontario Municipal Board has actually been my experience. It's only now that the OMB is prepared to award costs, particularly in those situations where extreme costs have been incurred by the parties and it's resulted in perhaps a loss of competition. These are the large store war applications.
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With respect to the act itself, there are indeed no provisions for what we would consider an award of costs for applications which are nothing more than disruptive, and they can be recognized as disruptive because they come continuously and under the act you do have to deal with each one. Perhaps there should be some ability in the act to bring a motion to the commissioner prior to dealing with the request itself, that is to say, some time within the 30-day period from when the request is first received, to have a commissioner determine whether this is indeed a bona fide application or some sort of disruptive attempt by a member of the public to drive up the costs, as you indicate, of the municipality.
I think it is indeed appropriate. It would result in perhaps only those applications which are in good faith going forward, as well as acting as a deterrent to those who see this as an avenue to generate extreme costs on the part of the local municipalities.
Mr Tilson: On the topic of mediation, I've had complaints that mediation currently consists of someone calling up and telling the applicant, "You shouldn't be making the application." In other words, the criticism is that the mediation process as it now stands is a joke. Can you comment on that?
Mr Ewart: It's been our experience that mediation has to date been very unsuccessful. Perhaps the parties should be somehow brought together rather than dealing with one party on one hand and dealing with the other party on the other hand and saying: "This is what he says. This is what you say. What are you going to do about it?" Using that position, the parties can become entrenched, and it has not resulted in very successful mediation.
On the downside for the municipalities, an appeal to the commissioner's office is not present in the act. Currently, it's a judicial review. There's nothing clearly set out in the legislation for that type of application. It's not only the possibility of an appeal falling down because of the way the matter's been mediated, but there's no further provision for an appeal of the commissioner's office other than judicial review, which is a very costly experience for the municipalities.
Mr Wiseman: What we're hearing from groups and other people such as yourselves is fees and making it more difficult for people to make freedom of information requests, to get information. I'd like to come at it from a different point of view. What could we recommend in this legislation or in other ways that would make the information more accessible, so that people could come in and do their own research and look through the documents?
The perception I'm getting is that municipalities in particular don't want their constituents to know what's going on and therefore they're asking for these fees to make it more difficult, while on the other hand the community activists are saying: "What have they got to hide? Why are they doing this? All over the paper in one of my ridings are meetings being held in a restaurant, with people having dinners bought for them and so on.
So there's this perception out there. How do we make it easier for people to get information without having all this extra cost to the municipality?
Mr Ewart: One of the solutions is to provide perhaps clearer guidelines in the act itself about the exemptions or the exceptions: Make it clearer to those at the local level what has to be released and what shouldn't be released. For instance, a number of exemptions or exceptions set out in the act seem to contradict themselves as they go on in the act itself.
The concern the municipalities we represent have is that they'll release something which will offend some third party, and the point is that most municipalities are dealing with third-party information. If they could have clearer guidelines about what has to be released and what shouldn't be released, I think that would lead to a greater ability or a greater desire on the part of the municipality to not get into this appeal, because an appeal at any level is costly to the townships. I think the townships and the municipalities wish to disclose the information. I don't see it as something they're trying to hide. It's the concern that they're going to offend some third party out there by releasing the information. If there were more protection for the municipalities by making very clear in the act what the exemptions are, with suitable guidelines, I think you'd see more openness.
Quite candidly, right now many municipalities await the order of the commissioner's office to take comfort that the order's been made and they're not going to run afoul of any third party or other person. They're almost inviting the appeal by saying, "We will not release this until we're ordered to do so," and that just defeats the purpose of the act altogether.
Mr Mike Cooper (Kitchener-Wilmot): Thank you for your presentation. Right at the end you mention providing more detailed guidelines. That came up during the review of provincial freedom of information, and it wasn't in the recommendations there. Hopefully, it will be put in there this time.
We've had people from the law enforcement network and from the Metropolitan Toronto Police Force. They were saying that if there's an ongoing case or it's before the courts, people shouldn't have access. When you're talking about requests when something's involved in litigation, are you talking about an exemption there, that if it's before the courts or if there's a hearing coming up it shouldn't be available?
Mr Ewart: No. Specifically, in that situation is a request for documents which clearly fall under, say, solicitor-client privilege. Yet we've had experiences where, despite the discovery process having been conducted, the applicant still comes forward with a FOI request for documents which, worded in such a manner, are protected by solicitor-client. That is the answer given to the requester, who nevertheless ends up in an appeal because the applicant, for whatever reason, is persistent in trying to use the procedure in fact-finding.
The documents we're concerned about are those which are rightly protected by solicitor-client privilege, yet they still take a run at the local municipalities and attempt to get that information through the head, who may not be aware of the type of document. Oftentimes, the head responsible for making the decision on the documents is not party to the action as such -- they are not the ones who were discovered, for instance, in the examinations for discovery -- or may be aware of the litigation, and they'll take it upon themselves to reply to the request. That's our concern.
Mr Carman McClelland (Brampton North): You mention a number of points with respect to the adversarial process. How many people are in the jurisdiction you're counsel for, ballpark figures?
Mr Ewart: About 129,000 for the county of Peterborough; Victoria county perhaps 60,000.
Mr McClelland: So 185,000 to 200,000 at the outside. How many requests a year come in to you? Do you know that offhand? And how many result in an appeal?
Mr Ewart: I can't offhand. Perhaps Mr Kaegi can comment on the township of Belmont and Methuen's experience.
Mr Stephen Kaegi: In 1993, we had 12 applications and two went for appeal.
Mr McClelland: I'm just trying to get a feel for the percentage that goes to appeal. Maybe you haven't turned your mind to this, but I'm wondering if you have considered the mechanism of dealing with appeals. I throw out just for consideration the federal model, where the privacy aspect of the act and the freedom of information of the act rest with two individuals who work essentially cooperatively but have that dynamic tension within the office that oft-times results in a resolution of the matter almost as a pre-emptory mechanism before you go into a formal appeal. Have you turned your minds to that? Do you see that as a possibility? We haven't really discussed it yet. I'm just wondering, from your experience, if you'd see that as a possibility that might work, and conversely, because I think there are some downsides.
Mr Ewart: If some sort of procedure were in place, I could deal with the appeal before it gets, for lack of better term, full-blown. In terms of replying to the request for information, disclosing the information, dealing with the commissioner's office, if something could be set up between them, active mediation between the parties, something like the federal model might indeed be the solution.
Most municipalities we represent say they do not want to go to appeal and certainly cannot afford to go to an appeal. "We will do what we can, but we want to avoid any further costs in complying with these requests. We will do what we can. If we have to disclose, we will, but it's in those grey areas, when we say, `We will not disclose,' yet will take them to appeal." That's when the costs arise.
Mr McClelland: Thank you very much. Mr Chair, can we ask representatives of the commissioner's office, not particularly at this point in time, if they've done any review of that and would be prepared to submit a brief opinion with respect to the issue of splitting the two functions within the office. I'd be interested in hearing their views, perhaps in written form sometime down the road. I just want to put that on the record.
The Chair: Fine. Thank you for your presentation today. Safe trip home.
The committee recessed from 1210 to 1337.
PATIENTS' RIGHTS ASSOCIATION
The Chair: We'll resume the hearing on the Municipal Freedom of Information and Protection of Privacy Act. This afternoon I'd like to welcome to the standing committee on the Legislative Assembly Mr Harry Beatty. He's vice-president of the Patients' Rights Association. Mr Beatty, you may begin.
Mr Harry Beatty: Thank you, Mr Chair. For those of you who aren't familiar with the Patients' Rights Association, we've attached a brochure at the back of our brief. The association is essentially a voluntary advocacy group that has existed for about 20 years, primarily through the individual efforts of Anne Coy for much of that time, who worked 60- and 70-hour weeks as a volunteer in order to see that there was an association. However, about a year ago we were able to open an office and hire an executive director for the first time.
The first part of the brief is just a summary of some of the consumer concerns relating to health records. There is still a reluctance on the part of many health care institutions and professionals to disclose health records to consumers at all, despite the Supreme Court of Canada decision that I will refer to in a minute. There still seems to be a kind of paternalism in some cases, and in other cases a sort of fear that the person may be going to use the record to launch a complaint or even legal action.
There are also difficulties, even where the person can see the record, in getting copies and difficulties in obtaining corrections of inaccuracies in health records. Once the information is in the file, as you're probably aware, health records and health information are used for a wide variety of purposes: decisions about eligibility for insurance benefits, decisions about employment and so on. Inaccurate information in a health record is something that people would often like corrected.
To turn to third-party access, the people who contact the association, members of the public, over the years have been concerned about unauthorized sharing of information among health care providers, about unauthorized sharing with employers, and sometimes unauthorized sharing with other family members. The whole area of both first- and third-party access to health information of course is extremely complex.
In 1979-80, we had the Krever commission in Ontario. The commissioner was Mr Justice Horace Krever, now of the Ontario Court of Appeal. The Patients' Rights Association, as a public interest group, had standing before the Krever commission and participated fairly actively in questioning some of the witnesses as well as presenting a comprehensive brief.
In the end, Mr Justice Krever released a very comprehensive report of some three volumes and 170 recommendations, including the right of health care consumers to access and receive copies of health records; establishment of an office of health commissioner to deal with a limited number of cases where there was a legitimate reason to restrict access and also to deal with unauthorized third-party access; that there be comprehensive health information legislation; and specifically that consumers have the right to request that information be corrected.
Since the Krever commission, we have had what we describe as sporadic efforts by the Ministry of Health to look at this issue. There have been a couple of discussion papers and indications that legislation would be dealt with. We haven't gone back over the whole history, but the bottom line is that no comprehensive health information bill has been introduced.
An important development was amendments to the Mental Health Act. The Mental Health Act does have fairly detailed provision dealing with first- and third-party access to health records, which has led to what many consumers, and I believe many professionals, would agree is an anomalous situation where you have a statute, you have laws dealing with these issues, in a psychiatric facility but not in other settings.
In my experience it's not unusual to find public hospitals, doctors and so on using the Mental Health Act forms where they don't really apply just because there's no alternative available. If someone wants to authorize disclosure of a record, they'll get a form 14 under the Mental Health Act even where the person isn't a psychiatric patient, just because they don't know what other kind of form to use; or they may develop their own.
The brief doesn't mention the Public Hospitals Act. It does have some regulations dealing with records, but nothing like a complete scheme. Again, as I'll explain when I come to the Supreme Court case, even what is there under the Public Hospitals Act is not really consistent with the law as enunciated by the Supreme Court.
Of course, we have FIPPA and MFIPPA in Ontario, but they do not cover public hospitals or other health care institutions or professions. They do cover some health care information that happens to be held by government and agencies that are covered, but they don't cover health care facilities and professionals per se.
This has led to what we perceive as a gap, not only with respect to individual health records but also with regard to other documents that may be held by public hospitals which spend a lot of public money but which still are not covered by freedom of information legislation -- decisions, for example, to close a particular service in a hospital, things of that nature.
People in the community, especially if they were affected, might want access to information about those decisions, but there is generally no duty to make that information available. The PRA is aware of it. It did participate in the initiative to reform the Public Hospitals Act, but the status of that isn't really clear to us at the present time.
The McInerney case is another recent development. In 1992 the Supreme Court of Canada dealt with consumers' rights to access their health care records and essentially came down quite strongly on the side of permitting first-party access by the consumer, subject to the right of the facility or institution or professional to charge a reasonable fee if a record was requested, and subject also to an exception where there is significant likelihood of a substantial adverse effect on the health of the patient or some significant risk of harm to a third party. I believe the court did emphasize that had to be a genuine risk and there could not be a policy to deny access upon a general basis because of some speculative risk.
The Patients' Rights Association, as I've explained, is largely a volunteer group throughout its whole history, although we've had a paid executive director for the last year. Two volunteers, Brenda Fowler and Stephanie Hall -- unfortunately at the last minute Ms Hall was not able to be with us -- did a survey of Toronto area hospitals and health institutions with respect to their consumer access policies.
Thirty-two of these institutions responded, but some said they were in the process of developing a policy and did not currently have one. Of those who had policies the major conclusion Ms Fowler and Ms Hall reached is that they were just all different.
Some said you had to contact your individual physician, others had a contact in the health records department, others somewhere in the administration; some promised to provide the reports within a certain time; others didn't. There is a whole range of fees, in some cases quite high. Sometimes there's a provision to record a correction; sometimes there was no reference to that. Also, in terms of the general attitude or orientation of the policy, some seemed to be very discouraging, while others seemed to recognize more that consumers did have a right of access.
We come to the conclusion on page 6 that our first preference, of course, would be to have a comprehensive health information act in Ontario; in other words, to implement what Mr Justice Krever recommended almost 15 years ago. The alternative, which we understand this committee to be considering, or others at least to have recommended, would be to bring public hospitals and perhaps other health care facilities under MFIPPA.
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We have not reviewed MFIPPA or FIPPA in detail but, in talking informally to people familiar with this legislation, there do appear to be some issues that should be addressed with respect to health records and perhaps more generally.
Just as one illustration, for unauthorized third-party access, it appears that the powers or remedies available under this legislation are either to just make recommendations, in effect, or beyond that to prosecute someone. But if you had a situation where a health care provider did release information without authorization, usually what the individual wants is not necessarily a prosecution but that some steps be taken in order to try and control the damage that was done, like the power to order that records be returned and that sort of thing. Maybe even financial compensation could be considered.
In our experience, prosecutors are quite reluctant to haul health professionals and health institution staff into provincial court and to prosecute, even when the law says that's a possibility. I don't know for sure, but I'm not aware of any prosecutions under the Mental Health Act, for example, for unauthorized disclosure.
That's the substance of our submission and I'd be happy to entertain any questions.
Mr Drummond White (Durham Centre): Mr Beatty, I was very interested in your presentation. You go over a number of important issues. Of course, as you know, what we're dealing with here is FIPPA and MFIPPA. Under FIPPA, the provincial legislation, as it relates to provincial institutions, there is presently access to records that psychiatric patients in particular have under the Mental Health Act. That access is not as general or as easily obtained with community general hospitals as it is with the provincial institutions even though there are people suffering from some of the same ailments.
Here we have a situation where the argument against access is that that information could be harmful to the individual. That's been put forward to us on a number of occasions. Yet when we had the patients' rights advocate coming before us, he said there has never been a situation where individuals have gained access to information and it has been harmful to them.
Perhaps there are some situations where information about one's health conditions, one's infections, operations, whatever, might be harmful, but what do you think are the reasons that institutions have been so leery about providing information now that we know that the most vulnerable people in our community aren't harmed by it? Why would someone with a broken leg be harmed by knowledge about his or her treatment?
Mr Beatty: I should make it clear, first of all, that the board of the Patients' Rights Association, in looking at this at the time of our submission to Krever all those years ago, now does not take the position that there should be no exception. We basically accept what the Supreme Court said and what Krever said, that there may be some limited situations where the individual would be harmed.
At the same time, many people of course are suspicious that if information is withheld from them, the real reason they're not being given access is that something has gone wrong and the institution or provider does not want them to find out. There are other individuals who would just like more information for the sake of having it, and I don't think that raises any of these issues.
We think in some cases that people may find out, for example, they have a terminal illness. Some of these examples that are raised, it really does reflect a well-intentioned paternalism, where the physician is trying to -- taking a physician as an example, in a sense protect the patient from harm, protect him or her from the bad news. Of course, the risks I think you could see in the case that's in the news now, where, according to the allegations in the Pittman case, the physician, having taken that attitude, did not disclose the fact of AIDS to his patient, who subsequently affected the wife, who is suing.
The court will deal with that case, but we feel generally that competent adults should be allowed that information if they want to know. It's the person's choice. An individual may say, "I don't want that information," but we feel if someone wants to know, "Exactly what is wrong with me, how sick am I, what steps can I take to correct that?" he should be entitled to that.
Mr Tilson: I'm just trying to --
Mr White: Can I have a half-question?
Mr Tilson: If you'd stop interrupting me. The question with respect to penalties -- and I'm looking specifically at page 6 of your comments, about what happens to people who violate privacy laws -- are you telling us that the provincial act, the municipal act, I guess the health legislation, that those pieces of legislation simply aren't tough enough or aren't specific enough with respect to those people who violate the legislation and release confidential information of a private nature?
Mr Beatty: I don't think the intention was to say so much that it wasn't tough enough as that it isn't flexible enough, that prosecuting the individual who did it doesn't sort of address the harm, it doesn't really always help the individual. Things that would be more beneficial to the individual, that would assist the person whose rights had been violated, should at least be examined as options. We've just identified this as an issue and not worked out any detailed proposal.
Mr Tilson: So you have no problem with the penalty section? The only one I have in front of me is the municipal act.
Mr Beatty: Section 48, you mean?
Mr Tilson: Yes. You don't have any problem with those types of sections?
Mr Beatty: No, there's no real problem but I think, to be realistic, especially in areas like health information where you're dealing with professionals, quite frankly a crown attorney is going to be reluctant to haul the administrator of the local hospital or a physician into the provincial court and prosecute. Also it really isn't an appropriate remedy, I don't think.
The Chair: Mr White, we have until 2 o'clock, so judge accordingly the timing of your question and what type of response.
Mr White: You would be generally in favour of extending the right to access personal information to include a public institution such as a publicly funded hospital?
Mr Beatty: Yes.
Mr White: For both medical and psychiatric patients?
Mr Beatty: For psychiatric patients, I understand that would be covered by the Mental Health Act now if they actually are in as pursuant to that act, yes.
The Chair: Okay, thank you, Mr Beatty.
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TOWNSHIP OF MARIPOSA
The Chair: The next person to make a presentation is from the township of Mariposa, Mr Stan McCormack. Come forward, please. I'd like to welcome you to the standing committee on the Legislative Assembly. We have a half-hour, until 2:30. In that period of time, as you can see, the members are very eager to ask questions. So if you can, with your brief, just leave some time at the end for members to ask questions on your presentation. It's up to you. You may begin.
Mr Stan McCormack: Thank you very much, Mr Chairman and members of the committee. It's a pleasure to be here, and I can see we have a fine example of democracy at work.
My presentation is not a long presentation. I'm not going to bore you with a whole lot of statistics and legal jargon. I come from the township of Mariposa. Incidentally, the locals -- and I'm not sure which I am; I guess I'm a local now -- they say "Maripawsa." The longer you've been there, it's more like "Maripawsi." Of course, when I first went there it was "Mariposa," I thought, but I soon was corrected.
I'm on township council there. It's a township with 6,700 people. You can appreciate, then, that the operation in the township office is a very limited one. The citizens, though, generally I think are very active politically, if we're going to call municipal politics a political theme, and there is a good deal of information generated by a local taxpayers' coalition. That's really the basis for the difficulty, if there is a difficulty, with this legislation.
What we've experienced is one individual -- I believe that his situation is bordering on harassment; I've talked to him about it. He makes many, many requests which put council to a great deal of work. I'm going to explain those to you.
Specifically, I'm only making two proposals, and they appear on the first page of the presentation. The first one is that minutes made on a document should not create a new record except that any minutes made on the original document shall be available, following normal access procedures. Let me explain that.
The way we operate now, as I've set out on the first page, is that any records or any material which the clerk gives to us, of course she maintains the master copy, and that's kept in the office. We believe that any citizen should be able to walk off the street and have access to that document. That in fact is how it happens. I've stated that in here. We do that actually for efficiency as much as anything, because we neither have the staff nor the time to respond to a great many memoranda. We just find it's in the best interests to give everyone easy access. So it's not a matter of access.
When the clerk copies a document and distributes it to members of council, then hopefully councillors take that home, and in their preparation -- and certainly I'm most guilty, and that's why I'm here; I formulate thoughts on the various things in order to debate them at the next council meeting, and I write minutes on the memoranda or on the letters or on whatever material.
What's happening is that this requester then sends in an omnibus request and he asks for all of the material which each councillor has in his or her home. The reason that he asks for it -- it's different than the original, he claims -- is because he wants to see our minutes.
As I understand the law now and as our solicitor has confirmed for us, those minutes, in law, as the law is written, are accessible to the requester. You can imagine that we're not councillors like in a city; we're councillors where our filing system is maintained by us. Sometimes the filing system is throwing it in a drawer. I happen to have a filing cabinet, but when we have to go through and search for material, it takes a great deal of time.
The situation has been exacerbated in that when we endeavour to charge -- and this is really just an add-on -- for that time, then the -- should I use the term? -- bleeding hearts in Toronto turn down our request to allow any cost. We think that, incidentally, was inappropriate.
What I'm saying to you is under this act, those minutes placed on those memoranda, on that correspondence, in the privacy of our home become a matter of record and we are forced in our own time to search for them. The municipality has to pay for the copying. We think it's a nuisance. We think the individual gains nothing from it, although we're not talking about one individual, we're talking about all councils, obviously. We think it should be dispensed with. We believe the legislation should be amended to remove that requirement.
Just so you know that I'm not being overly harsh or overly restrictive here, we further believe, as my point explains, that if that discussion and debate that we have results in a new memorandum, of course, or if it results in a minute being appended to the original document, then we expect that any individual shall have the right to the original document, but not the various minutes that each councillor puts on his working material.
Just by extension -- I've given this some thought, actually while lying on the beach the last couple of weeks in Nassau -- what about the thoughts that you have when you're shaving in the mirror, as each of us does? The women don't shave, so we have to include them -- equal opportunity. What about the thoughts they have while applying their makeup? I see them as being similar. I think it's only a matter of time, given our technical competence and the things we can do, when we will be required to share those thoughts with individuals. I know that's a bit of an extreme, but it's something to think about. That's the first point.
The second point is that provision for a hearing -- that's where we meet face to face -- be added to the legislation, where either party does not accept the order. "Order" probably should have been in quotation marks. In other words, you're probably all familiar with this process. There's a mediation process and, incidentally, the mediators do a pretty good job. If you can come to a conclusion, then the matter's resolved. However, if you cannot come to a conclusion, each party is given the opportunity to make a submission and an inquiry officer reviews all the material and comes to a decision.
In our limited experience, because we've been able to resolve most of them, we've found the conclusion which that individual arrives at is unsatisfactory. Quite often, despite the best efforts of the writer in the township and the individual, I'm sure, reading it, something is lost through the written word. So what we're proposing is that either originally -- and there's a difference here -- or if one party or the other does not accept that order, then there should be an appeal.
We're into a quasi-judicial process here. In the tribunals which I've been familiar with, certainly it's a reasonable and normal practice that the individuals, the adversaries, if you will, meet face to face. Just as following this presentation you're going to ask me some questions, I suggest and I firmly believe that there's a better dialogue as a result of that.
I've pointed out to you that in the facts there, there's not much material in support of this, that when we tried to appeal the decision, we were told quite bluntly by the commissioner that there is no right of appeal and we should get in touch with our lawyer. We did. We contacted our lawyer. He didn't like it any better than we did.
But I think, rather than go to the courts -- and it looks like it's extremely unlikely that the court's going to interfere in this process, and I understand that and I rather like it -- I know it's additional cost, or it may be, but I'm saying, as I said in the opening, that it is our position that natural justice is not well served, given the inadequacies of the written word coupled with different interpretations given to the same set of facts.
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I don't think this is sour grapes in that the decision didn't go our way. I think that right should be given to either party, whether it's the requester or whether it's the body from whom the information has been requested.
I have given you one variation of that. I think you have to give some thought to this, whether you put an automatic right of appeal in or whether there's some review by the commissioner, but it seems to me that it's overly harsh to deny the right of an appeal of an order coming from someone, effectively a public servant I guess, to supply information at some considerable cost to the individual in this situation -- nothing to do with the municipality. So I'd like to see that.
That really concludes my presentation. I repeat, I think generally we've been able to satisfy most of the needs in our township. We have a completely open-door policy. I should point out that this particular requester, although it's maybe not in general terms, doesn't even bother, quite often, to come and pick up the information after he gets it, and yet we've talked to our lawyers about how to deal with that.
So in this presentation I say, now what is the cause of that? What's wrong here? To me, they would be the two things that are most likely to correct what I see are the ills. Thank you.
Mr Morin: I have a street in my riding called Mariposa. Where is the township of Mariposa?
Mr McCormack: It's in Victoria county, by Lindsay, and I live actually in Little Britain. Mariposa is to the west of Lindsay; formerly Dennis Drainville's riding, now of course vacant.
Mr Cooper: Who?
Mr Morin: I'm intrigued by the two points that you make about the minutes. If I understand you clearly, it is that you're given a photocopy of the original correspondence. You go home, you write your notes on the minutes or on the correspondence, and then the individual is now requesting that you provide him with those notes that you put on the side of the minutes. Is that correct?
Mr McCormack: That's exactly correct. He of course had the minutes, and he also gets the original document.
Mr Morin: Do you bring those notes back to the council when you debate the issue after that?
Mr McCormack: You see, by law he can't see them until after that particular council meeting, but the answer is yes. In other words, I receive it from the clerk on Friday night, I go home and I do my homework and prepare for council. During that preparation, I record some of my thoughts or the points I want to make on the document, and it's just a copy of the document. So then when he reads the minutes, or if he's at the meeting, he says, "Oh, I'd like to see what Stan's" -- or any other member's -- " thoughts were in doing this." So then he makes a request formally to have all the councillors go through and search and supply it. Reams and reams of paper.
Mr Morin: Right. But do you use those minutes, those notes that you've made? You bring them in.
Mr McCormack: Oh, yes.
Mr Morin: You use them for debates. In other words, the official record indicates what you've debated, but they don't refer to the notes that you've made.
Mr McCormack: No.
Mr Morin: Except the ones that you express verbally.
Mr McCormack: That's correct, and even much of that is not recorded. But that's correct. As I put it, if you took the minutes of all the councillors, then the decision is an amalgam of those minutes and anything else that we added. Really, he just wants to see how any individual councillor is thinking, I guess, and I don't know what he does with it.
Mr Morin: That's a very interesting point, and I would like to hear what the researcher would have to say on that. Is this an official document? Does it become an official document? You didn't follow?
Ms Swift: No, I did follow the discussion; unfortunately, I haven't turned my mind to that issue at all. But I could, and report back to you on other experiences and precedents in that regard.
I understand there has been a ruling by the commissioner that in fact it does become a new document and therefore he has a right in law. We accept that he has a right in law, the way it's written, sir, and of course that's why I'm here, to ask you people to consider reviewing that.
Mr Tilson: I find your story remarkable. I write comments on people's presentations, and I can assure you that no one, including Mr Sterling, is going to see them. In fact my view is that minutes don't become minutes until they've been adopted and approved by resolution of council.
I'd like to see the legal letter of opinion that tells you that notes or a document that a councillor has in his or her possession are in fact a public document. What you have in your file is your business.
Mr McCormack: Hear, hear.
Mr Tilson: Anything else is absolute nonsense. In fact it leads to the thing that neither you nor I are probably able -- maybe I should speak for myself -- that I'm certainly not capable of speaking on.
I know there's a debate with respect to notes that doctors make, handwritten notes that doctors make in a file. It may be slanderous; it may not be slanderous; it may be revealing; it may be information to assist him or her with respect to preparing a report. I don't know where the state of the law is on that one but I don't think that those notes are available. But if this is the law, then none of us will ever write anything down. We'll be winging it for ever.
Mr McCormack: That's exactly what has happened. I still write down as much but the others have ceased.
Mr Tilson: I think that since the delegation has come to us, somewhere along the line research should provide us with an opinion. If Mr McCormack is correct, then we should take a long look to remedying it. Do we have the right, Mr Chair, to ask for a legal opinion on this? Do we have that resource?
Mr Cooper: If I may, Mr Chair, I was involved when we did the provincial review of the freedom of information and this issue came up. It was stated that even in our case our files in our offices are public documents. If we're going to make any notes, put them on sticky pads and they can be taken off and they don't become part of the document, but anything that's written on the document -- if you check the debate during the provincial review you'll find it in there.
Mr Tilson: I'm not interested in debate; I'm interested in what a legal opinion says.
Mr Cooper: We had an opinion at that time, I believe.
Mr Tilson: Did you?
The Chair: Maybe a copy of that legal opinion again to clarify.
Ms Swift: I can go back and check the records for the hearings on that. If there was one provided, I can bring that out. If there isn't one, I could prepare one for you.
The Chair: Are you satisfied, Mr Tilson, on that?
Mr Sterling: I haven't been. Isn't the material difference that an MPP and his or her records are not subject to the Freedom of Information and Protection of Privacy Act, whereas that same kind of freedom is not given to municipal councillors or trustees? I think that's the significant difference here in terms of what we're talking about, and therefore your records are subject to the act and ours aren't. I think there's a very big difference, and whether or not you should be given the kind of confidential nature that we have for our files is a real question.
Mr McCormack: Just so you understand, Mr Sterling, I'm not asking that our records all be confidential. What I'm saying is that of course if it's a memorandum X, the individual will always be able to get the original at the clerk's office. But what's happening is the minutes, and I refer to a minute -- it could be two words or it could be maybe seven or eight. I just scribble on the paper to assist me in my thought process. That's really the issue and that's what's going on. We've been told that's required. Our solicitor called into Toronto -- I don't think he has it in writing -- and confirmed that. I find that offensive.
Mr Sterling: But the significant difference is that once I write something on a minute, that becomes my record. I don't have to divulge that, as I understand it, in the existing law. I think the commissioner could quite easily point -- I think what the witness is stating is correct, that he doesn't have that same kind of immunity, so to speak, as MPPs do.
I think if you're a parliamentary assistant or you're acting as a parliamentary assistant and you write a note on a particular thing, then it is subject to the freedom of information and privacy act.
The Chair: Okay, fine. We'll get an opinion on that.
Mr Hayes: Yes, I'd certainly like to get a clarification on that also because I don't know if I'm hearing you correctly or not. You're talking that as a councillor you get correspondence and the municipal councils get them a few days ahead of time, you're doing your homework and you might be just putting down some potential questions that you might want to ask, and things of that nature, and this is that kind of thing.
Mr McCormack: That's correct, yes.
Mr Hayes: I would like a clarification on that also.
One thing I would like to ask you is in your municipality -- and I know this is a concern across the province; various people have raised the issue of closed council meetings -- actually, if you have many closed meetings and what the purpose would be.
Mr McCormack: No, we really don't have a closed council meeting per se. We would rise in committee of the whole for some very limited issues, such as when we have a lawsuit ongoing and each time we discuss that, then of course we only record any decisions when we come out of the committee. But no, we do not have closed sessions and we don't contemplate them.
Mr Hayes: There's been a lot of discussion about how much information, especially when we were talking about social assistance in the last couple of days -- how much access do you feel that elected officials, and councillors in particular, should have to private information?
Mr McCormack: I'm not deathly against the freedom of information. Where I think we appear to have fallen down is on the privacy, because if you complete the title of the act, there's also the protection of privacy. I don't know if there's a distinction or if there is a line.
Originally, I saw the minutes which I make in the privacy of my own home as things peculiar, if you will, and private to me. The act isn't written that way apparently. I understand that, I accept that, that's what the act means, but I think it should be changed. The danger of course is, how do you write it so that you don't go the other way and we become then a society that overly restricts information? I think in a municipality, generally, most things should be available to all the people, and of course the lawsuit is an exception and certain things, communication with your solicitor.
Mr Hayes: Do you think that a councillor, for example, should have a list of names of people who are on social assistance?
Mr McCormack: I've never turned my mind to that because I'm not on county council and, as you probably are aware, the township is not involved in that.
Mr Hayes: There are some municipalities that are.
Mr McCormack: Yes. I'd want to think about that a little.
Mr Hayes: In your opinion, what would you call a frivolous or vexatious request?
Mr McCormack: I think that's exactly what's happening here, that this has become a frivolous and vexatious request, but I didn't want to overemphasize that today because it seems to me that's a problem we have, unless in your wisdom you came to the conclusion that these very things in the act might correct that. It seems to me that going after minutes that an individual writes is a little far-fetched. I believe frivolous is probably an appropriate word.
I suppose that if we wanted to go after our lawyer, and it's still an option, we perhaps could take some countercharge against this individual, but I'm not sure we should be doing that. We've taken the position that the information is there for them but when we say information we mean the information the clerk retains. Indeed I believe that he overstepped the bounds in this case.
Mr Hayes: I'm a little confused. This person you're talking about, is that another councillor or is that an individual?
Mr McCormack: No, no, no. He's an individual who writes a little sort of semi-monthly -- no, bi-monthly one-page, two-page information circular that he sends around to people who will contribute $10. He's a member of the taxpayers' coalition.
Hey, I get along with the gentleman okay. He's not all bad. In fact, I've told him: "Why do you go to all this trouble? Why don't you just ask us?" But he does everything this way.
The Chair: Mr McCormack, I'd like to thank you for coming before the committee today.
I've asked that the subcommittee members just meet with the clerk here on some changes on an ad that's to go in the paper. We'll take a five-minute recess.
The committee recessed from 1425 to 1430.
ELIZABETH CARRUTHERS
The Chair: I'd like to welcome Ms Elizabeth Carruthers to the committee. We have half an hour, and in that half-hour if you can leave some time at the end of your brief for members of the committee here to ask questions on your presentation. You may begin.
Mrs Elizabeth Carruthers: Thank you, Mr Hansen, and good afternoon. I'm taking medication which has affected my voice. Apparently we're okay if I stay close to the mike. If I slip away from it, please let me know.
I'm here as an individual, though what I've come to discuss affects quite a lot of people. I'm here as the result of a very bad hospital experience which was made far worse by the way the hospital handled the complaint. In the process I learned that Ontario hospitals lack accountability either to the patient or to the government. I'd like to propose that public hospitals be defined as institutions under the freedom of information act.
You already know one good reason for this, that hospitals are publicly funded, costing Ontario taxpayers $7 billion a year. As a precedent, you may know that the British Columbia freedom of information act now covers the BC hospitals as well as the BC College of Physicians and Surgeons. I'd like to give you additional reasons connected with patient care and sometimes patient safety.
I'll start by distinguishing between hospitals and the doctors who practise there. Then I'll describe the limited accountability of hospitals under present Ontario law. I'll show what that lack of accountability can lead to, through personal experience, and how placing hospitals under the act will prevent that from happening to other people. Finally, I'll consider some arguments that have been advanced against this step.
First, hospitals and hospital doctors: The Public Hospitals Act regulates hospitals, not doctors, and the responsibilities of the two are very different. Doctors are usually not employees of the hospital and hospitals are not legally responsible for doctors' mistakes. Hospital doctors are independent contractors who have been given the privilege of using hospital facilities to treat their patients. The hospital is responsible only for ensuring that a doctor to whom it grants privileges is competent.
To balance this, the doctors are self-regulated by the College of Physicians and Surgeons. The college sets standards of behaviour for doctors in matters which are not covered by law. A dissatisfied patient can complain of his doctor to the college. Hospitals, however, are not self-regulated. No entity equivalent to the College of Physicians sets standards for patient care in hospitals, and there is no one to whom the patient can appeal when something administrative goes wrong.
Under the Public Hospitals Act, each hospital is an independent corporation with a board of directors, a staff and a corporate culture. The act specifies the structure of the corporation but says very little about how patients are to be treated. On matters on which the act is silent, what happens to the patient depends on the corporate culture of the hospital.
This leads to inconsistency in a crucial matter: the accuracy of medical records. The Public Hospitals Act doesn't even require the hospital to let the patient see his medical records. It doesn't require the hospital to correct errors or even to respond to a complaint.
Let me tell you what this can mean, using an actual case. According to my own physician, I have a metabolic problem, so my body doesn't use food normally. In the winter of 1990-91 my weight was down to 67 pounds and falling. I've since been told that if something hadn't reversed that trend, I had only weeks or a few months to live. I was admitted to the Toronto Hospital for six to eight weeks of nutritional support, called TPN. I didn't get the treatment. I spent a month in hospital getting only token treatment for a week of that time and then I was discharged. No follow-up was provided, nor was home treatment or any of the support services intended for someone who has only a few months left.
That's not how it's supposed to happen, but the hospital was not responsible for that, the doctor was. The hospital was responsible for the rest of what happened.
I later learned the treatment plan was changed the day after admission by a doctor who was not the attending physician and whose connection with my case I can't learn, nor could I find out why the plan was changed. Several months later, the attending physician stated on the chart summary that I have anorexia nervosa and implied this was the reason.
This is not only a misdiagnosis, but medically it's a contradiction in terms. Thanks to media coverage of anorexia, the public knows that anorexics want to be thin. The last thing they do is go to hospital for medical help to gain weight. But apparently, if they do go for medical help to the Toronto Hospital, they're denied the treatment which would be given to a non-anorexic at the same dangerously low weight. If a misdiagnosis of anorexia means a life-sustaining treatment is withheld, then it's a dangerous misdiagnosis.
The only reason I'm still here is that a physician not connected with the hospital started treating me with anabolic steroids. My own physicians tell me that these can't be used indefinitely. I am going to need hospital treatment again and it's extremely important to get the record corrected. They also tell me I can't avoid the problem by just going to another hospital because treatment is based on previous records, so I tried to get the record corrected. The attending physician did not answer my letters, so I wrote to the hospital's CEO. I wrote many times and provided full documentation, part of which I've left with you with this rather large package of material.
Now here we are speaking of the responsibilities of the hospital when a complaint is made concerning the records. The Public Hospitals Act states that the medical records are the property of the hospital and not of the doctor. Other legislation states that a hospital may correct errors in its medical records, and that's what I was asking for.
Correcting a medical record should be a matter of evidence, like correcting a credit record. Medical records determine treatment which can be a matter of life and death. They determine insurability, disability benefits, employability. Also, technology can now combine unrelated databases. For example, records of child support payments can be combined with records of drivers' licences to force fathers to make payments. Medical information or misinformation can be combined with anything at all, affecting any area of life, yet a person cannot correct errors which can affect him in so many ways.
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To sum up so far, a patient's complaint is investigated by the administration of the hospital, and errors in medical records can be corrected by administration. They don't have to correct them, but legally they can if they choose. These topics are not addressed by the Public Hospitals Act. Therefore, each hospital can choose how it handles them.
Here's how the Toronto Hospital handled mine. The misdiagnosis is a contradiction in terms. That should have alerted the hospital at once, but the hospital refused to address it. It steadfastly refused to answer my questions of why my treatment plan was changed, repeatedly did not address my requests for a correction despite the evidence I supplied, and finally told me in writing to go to another hospital if I didn't like care like that. I later learned it allowed the very doctor I complained of to conduct its investigation. I know of that through a letter written by the CEO himself. This letter and some of the documentation I supplied to the hospital form part of the material that I've provided here.
I'm sure you'll agree that this is no way to treat a sick person, but there's no law against it. As evidence of that, I've also provided a report from the legislative research service, prepared by my MPP, which confirms that Ontario law at present does not give the patient a right of correction or even a right of access to his medical records. Hospitals, which are funded by public money, are not accountable for something as basic as accurate medical records, either to the government which funds them or to the patient, who is the taxpayer who provides the funds.
Placing hospitals under the freedom of information act would change that. It would give an appeal outside the hospital, which my experience shows is badly needed. This idea has come up before, as of course you know. I'd like to review some of the arguments previously advanced against it.
One is that providing for an appeal would be inconsistent with the special relationship of trust between doctor and patient. I suggest to you that by the time the patient has requested his chart, found a serious error, asked for a correction and been refused, and then wishes to appeal, there is very little special trust left in that particular doctor-patient relationship.
Another is that some of the patient's privacy will be lost through investigation by an outside agency, and that's true. It's also true if the patient decides to go to law. The patient in a hospital is also a member of the public most of the time and is the "reasonable person" in law. It's up to that reasonable person to decide for himself or herself whether what he'll gain by correcting the medical record is worth the loss of privacy. This is not something a paternalistic hospital should decide for him.
Another objection is the medical mystique. A layman cannot possibly determine whether a doctor has made an error. Most errors would not be appealed. They result in disaster for the patient, and the disaster corrects the record. In those cases which are appealed to the commissioner, his first step under the act is to appoint a mediator. The mediator can get answers to questions the hospital refuses to answer for the patient: Why was the treatment plan changed? What connection did this doctor have with the case? Bringing out key information before an impartial questioner will usually make things very plain indeed.
For those few cases which have to be resolved by an inquiry by the commissioner, he can obtain any necessary medical advice. The act already covers diverse entities. Medical entities which are already institutions include the Hospital Appeal Board, the review board under the Mental Health Act, the Nursing Homes Review Board, the Criminal Injuries Compensation Board and the Coroners' Council. Non-medical entities include the Ontario Provincial Police Grievance Board, the Wolf Damage Assessment Board and many others.
If a commissioner can get specialized knowledge about police grievances, criminal injuries and wolves, he can get specialized knowledge about hospital complaints.
Finally, there's the objection of cost: the cost to the hospitals of setting up a system to provide information and the cost to government of extra staff to handle appeals.
The cost to hospitals could be overcome through an interim measure. At first, grant access and appeal only with regard to the medical records; not, say, to the minutes of the damage control meetings the hospital held on the complaint. But require the hospital to give the mediator any information he asks for relevant to the complaint. Later, access to other information could be phased in.
The cost to government: As noted above, most medical errors are corrected through the tragic consequences to the patient and would not be appealed. If the hospitals claim that an appeals mechanism would result in a flood of complaints, they're acknowledging that we need such a mechanism very badly indeed.
In fact, what would happen if the public hospitals were placed under the act would be that suddenly the hospitals would have their own internal mediators and suddenly patients' complaints would be taken seriously. There would be a real effort to resolve them in house. No one wants their dirty linen washed in public, it would be washed in private, but the result would be clean linen and better care for patients.
It would be better care in more ways than just attention to complaints. As things are now, we see that a doctor can put down a misdiagnosis which is medically absurd, a contradiction in terms, secure in the knowledge that hospital administration will support it and he will never have to give reasons.
Let there be some way to appeal, to require reasons to be given, and suddenly hospital administration will be annoyed with doctors who embarrass them. Those doctors who might have been overcasual in diagnosis will take greater care to ensure the diagnosis is supported by the chart. A matter of simple justice in hospitals, enabling a patient to correct errors on his medical record, will filter through the system to prevent a lot of those errors from being made in the first place.
Thank you very much. I'll be happy to answer any questions you may have.
Mr Tilson: Thank you. Your testimony is certainly useful, because the committee is discussing the very issue as to whether or not the legislation should be extended to hospitals and other health institutions. It is most useful. So that I understand what your position is, are you telling me that you found out certain information by a fluke or by some doctor telling you certain facts and that the hospital will not change the record?
Mrs Carruthers: That's right.
Mr Tilson: Are you telling me that a doctor who, once finding out, admitting by his or her own observations that a record is incorrect, cannot change the record?
Mrs Carruthers: He or she can change it. In this case the doctor didn't reply to any of my letters, so I then addressed myself to the CEO of the hospital.
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Mr Tilson: Can you retain another doctor to help you with your plight?
Mrs Carruthers: I can retain as many doctors as I like, but there's now misinformation on my hospital record which my own doctors, who are doing their best outside the hospital, tell me is very likely to interfere the next time I need hospital treatment.
Mr Tilson: I understand that, but just so I understand what your problem is, are you telling me that if you went to any doctor, whether a member of that particular hospital or not, who was able to determine, by whatever means, that there is an error in your record, he or she cannot approach the hospital to have that record corrected?
Mrs Carruthers: I don't really know what another doctor could do. Actually, your point does bring up that there was a further development with another doctor after I got sent away which I think relates to what you're saying.
Mr Tilson: You got sent away? What do you mean?
Mrs Carruthers: Part of the material I sent you is a letter which I wrote to a Ms Leslie of the hospital on January 3, 1993, I believe. Ms Leslie was the vice-president to whom Dr Hudson, the CEO, delegated the handling of my complaint, so I was writing to her. I included as part of that letter a written diagnosis from my own doctor, as part of a great deal of material I had provided to them.
I received letters from Dr Hudson, the president of the hospital, and also from the chairman of the board of directors, pointing out that one of the benefits of our system in Ontario is that the patient has freedom of choice and urging me to exercise my freedom of choice to find another hospital where I might obtain medical care.
Mr Tilson: I understand that.
Mr Paul Wessenger (Simcoe Centre): Thank you very much for your presentation, Ms Carruthers. I gather you're quite familiar with the provisions under the Mental Health Act with respect to access to records in psychiatric hospitals. Would it be fair to say that you would be supportive of having the same type of right of access to records in the hospitals, with the same exceptions, that is under the Mental Health Act?
Mrs Carruthers: Yes, I would, but I would point out that what's under the Mental Health Act is not a right to correction, although it's called that in a marginal note. It's only a right to ask for a correction and, failing that, for the patient to attach his own version of events. Now, that could be further amended by an extract from the freedom of information act permitting an appeal to the commissioner. In that case, that would serve the same purpose.
Mr Wessenger: Might I just ask you if you have suggestions of how the process might work with respect to correcting a record? The reason I ask that is, obviously there might be cases where it's clear that the record is absolutely incorrect, but in other instances it might be a situation where you have a professional difference of opinion with respect to a diagnosis.
I know this happens in many cases in the medical community, where different professionals will give a different diagnosis. In that situation of a different diagnosis -- I just throw this out to you -- it would appear that there should be in the records the information. There are different diagnoses with respect to a health matter, but I don't see how you could correct something when there is a professional difference of opinion with respect to, for instance, a diagnosis matter.
Mrs Carruthers: This ties in with what Mr Tilson was saying, actually, about another doctor's opinion. After the hospital sent me away, I took counsel with my friends, one of whom is a retired clergyman working part-time as chaplain in another hospital. Through the hospital chaplaincy route, he got me in touch with a Dr McIlroy of the hospital administration.
I had been told by my friends that if I failed to get a correction, I would do well to ask, as a second best, that they put a letter from my own doctor on the record. I had failed in the first -- the hospital said no and sent me away -- so I asked Dr McIlroy whether I could have this done and he said, "Sure, why not?"
He took the material that my doctor had sent in earlier and told me he'd put it on the record. Well, full marks to Dr McIlroy, but that means that was a possibility that was always available. It's not a correction but it is something. The culture at the Toronto Hospital was such that they led me this dance for two, three years, it is now, when there was at least a partial solution always available.
Mr Wessenger: And it took that time to get even that partial solution in your instance.
Mrs Carruthers: And that was by the back door because I happen to have a friend who's a retired clergyman and a hospital chaplain.
Mr Wessenger: You have no way of ascertaining whether in fact that information is on file, other than being advised that it is because you have no access to those records. Is that correct?
Mrs Carruthers: That is also correct, yes.
Mr Wessenger: Would your first preference be comprehensive health legislation dealing with this matter, or do you feel it's such an important matter that the time delay would warrant dealing with the matter under this legislation to bring some rights with respect to patient access?
Mrs Carruthers: I'm very glad you brought that up, sir. I do have a suggestion. It would take only a regulation made by cabinet to identify the hospitals as institutions under the act.
I realize that what you're doing is the beginning of an orderly process that will result in a coordinated revision of a piece of legislation. But, as I understand it, that takes a few years, and in a few years people can die through inappropriate treatment based on incorrect medical information. If I may venture to put the thought before you, if this committee were to suggest to cabinet that it make a single regulation on this subject without waiting for the full review of the act, cabinet just might listen.
Mr Wessenger: Thank you. I appreciate your very positive suggestions.
Mr Morin: Mrs Carruthers, I thought that your presentation was very compelling and very clear. I detect some real negligence on the part of your doctor in failing to correct the records. Could you have gone to the College of Physicians and Surgeons, where they have the power to investigate a case?
Mrs Carruthers: I did go to them, sir. Their complaints committee decided not to review to discipline. I appealed that decision to the Health Disciplines Board, which has a backlog of 300 cases, they tell me, representing two years.
Mr Morin: Did you go to the Ombudsman after that? The Ombudsman does have jurisdiction over those bodies.
Mrs Carruthers: Not over the hospitals.
Mr Morin: None over the College of Physicians and Surgeons, but over the -- what was the other board that you consulted?
Mrs Carruthers: The Health Disciplines Board.
Mr Morin: Yes, I believe that the Ombudsman has jurisdiction over those boards too but you never followed that procedure.
Ms Carruthers: You're quite correct. The Ombudsman can review a decision of the Health Disciplines Board, but I have to get to the Health Disciplines Board first.
Mr Morin: I see. Okay.
Mrs Carruthers: I have been in touch with the Ombudsman to see whether there was anything they could do, and they did review the situation and they say it's not their jurisdiction.
Mr Elston: I'm interested in the issue of records themselves. In your case you've been able to separate your record in the hospital from those records that are in the charge of your physician. In your case it would probably work if you could have those hospital records corrected. What would you say to being able to access your own physician's records if they form part of the records of your stay in hospital? Would that be necessary in some cases as well?
Mrs Carruthers: I'm sure it would be, and it's my understanding that the Supreme Court of Canada decision, McInerney v MacDonald -- correct me if I'm wrong; I'm an engineer, not a lawyer -- the Supreme Court decision which allows access to doctors and the hospital records becomes the law of the land, that even though Ontario law gives no access, perhaps this does.
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Mr Elston: The judicial record sets the test for access obviously, and we just haven't codified it. My question is then, would you say any part of the hospital record which is perhaps kept separately by the physician in his or her own office should be made part of the record and be made available?
Mrs Carruthers: I don't know that much about it, sir. The exemption I was thinking is based on Ontario Hospital Association objections in the past, where apparently it has in-house meetings to discuss certain cases. There are minutes to these meetings and I'm suggesting as a way to get this going quickly, not to require them to develop systems to make minutes of meetings available, but make strictly medical records available, because those could be done at once.
The Chair: Mrs Carruthers, I'd like to thank you for your presentation before this committee today.
ONTARIO PUBLIC SCHOOL BOARDS' ASSOCIATION
The Chair: The next group to come forward is from the Ontario Public School Boards' Association. Welcome. I have only three names down here and I notice there are four of you so please identify yourselves and your position.
Ms Helena Nielsen: If you want to do it that way. I thought I'd be introducing them, but if you'd like them to introduce themselves, that's fine.
Mr Guy Giorno: I'm Guy Giorno from Hicks, Morley, Hamilton, Stewart, Storie, legal counsel to the Ontario Public School Boards' Association in this matter.
Ms Nielsen: My name is Helena Nielsen. I'm a trustee with the Scarborough board and in the position of vice-president with the OPSBA organization.
Mr Peter Gnish: I'm Peter Gnish. I'm with the Halton Board of Education and I act as the freedom of information coordinator with that board.
Ms Gail Anderson: I'm Gail Anderson. I'm associate executive director for the Ontario Public School Boards' Association. I'm pleased to be here.
The Chair: Okay, we have half an hour. In that half an hour if you can give your presentation and leave some time for the members to ask questions on your presentation. You may begin.
Ms Nielsen: Thank you very much, sir. First of all, we are all pleased to be here this afternoon and for the opportunity to make a presentation to the standing committee. We thank you so very much. The Ontario Public School Boards' Association represents over 90 public boards in the province of Ontario. That's 1.2 million elementary and secondary students and more than 500,000 adult learners. All these boards we represent are pleased to have this opportunity.
OPSBA reaffirms its support for the principles of the Municipal Freedom of Information and Protection of Privacy Act. Make no mistake, local government information should be made available to the public and the privacy of individuals should be protected with respect to personal information about themselves held by local government. In discussions regarding the act, it is notable that all the school board trustees and officials interviewed prefaced their remarks with support for those principles.
In preparing this submission, OPSBA has held discussions with school board staff members who most regularly handle information access requests under the act. It is particularly important that those experienced with the application of the act comment during this review since it provides firsthand knowledge and a resource for the recommendations for workable changes.
It will be Mr Gnish predominantly who will be giving you some practical experiences with respect to operating within the legislation.
Our submission presents one general issue with the act. The act's perspective is narrow, but its coverage is broad. It is OPSBA's belief that, while the purpose for which the act was written -- to provide open access to government information and protect the privacy of individuals -- is good and is supported by OPSBA, the act's limitation is its application of those same principles in a homogeneous and mechanical way.
In reviewing our recommendations we encourage the committee members to keep the following three general observations in mind:
(1) The school boards and other municipal institutions operate differently than the provincial bureaucracy.
(2) School boards, and again other municipal institutions, lack the resources that perhaps are available to the provincial bureaucracy.
(3) School boards handle information in a variety of circumstances and for a variety of reasons, eg, as educators, employers etc. Different considerations may apply to each circumstance.
In our submission, we've highlighted six problems and I'd like to highlight the five main ones to you, and perhaps Mr Gnish can elaborate further in terms of some examples.
The first three problems have to do with the costs. The first is the cost and its application because of its complexity. Also, we have a concern with respect to costs because of the exemptions to the user-pay principle. Also, the act is costly because of the voluminous and frivolous requests we certainly have received.
Problem four is that the act's privacy rules are not designed for educators or employers. The fifth main problem is that boards are forced to respond to privacy or compliance investigations for which there is no authority in the act.
To give you some practical examples, perhaps I could turn your attention to Mr Gnish and some comments he would like to make as part of the presentation.
Mr Gnish: Just to get started, as a practical practitioner I want to say that I've really been quite delighted with the way the act has worked over the past three years. By and large, it's a good act and I support it. I think we've been able to do a reasonable job in terms of trying to provide the service that we're expected to give under the act to the people who are requesting the information. So I'm not complaining about the act as an individual; I really support it.
However, there are some aspects to it that I think really need to be looked at and some modifications made in order for us to be able to provide more efficient service, not only to the requesters who are actually asking for information under the freedom of information act but also to those other people who ask for documents and records all the time, but don't do it under the freedom of information act. Certainly, if I were to say that I have a preference as to how these records should be requested, I would say that they should be requested outside of the act rather than under the act, because in that way we can save ourselves some time and effort and at the same time provide them with potentially quicker turnaround.
In our board, we've got 43,000 students, 5,000 staff and a multitude of records, as you can be aware. When I was appointed the freedom of information coordinator, it was an add-on task, it was part of my job, and I think I probably am representative of the kind of situation that occurred in boards across Ontario. Most boards were not able to afford to hire a full-time coordinator, so somebody got saddled with the job, was asked to do the job, whatever. In my case, this was an add-on.
That was fine, because the expectation was that we wouldn't have a large number of requests. I think over the first couple of years we found that the average number of requests by school board was about four or five per year. That makes it very manageable. Unfortunately, our board is one that's had more requests than any other over the past three years. We've had more than 300. As such, it's made the job somewhat more complicated for me in that it's not as if the 300 come all at the same time; they vary. Sometimes you get floods and other times you get none.
As an example, let me just give you two or three. Most recently, just last week as a matter of fact, and I think it's kind of apropos, we had 205 requests from one individual in one day. We're having to deal with that at the moment. Previously, we had 68 requests from one individual in one day, and we had a total of 137 during a three-week period.
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That makes it very difficult when we are not set up to have a full-time coordinator and other staff to look after these requests. Somehow, we managed to do it. What we do is we hire additional staff and we manage to deal with these requests within the time frame that's allotted. However, it does present us with a problem.
The second problem we have is the size of some of the requests. It appears to us that there are individuals out there who are looking for whatever they can find in the documents, so rather than being fairly specific about the request -- the request is specific in the sense that it identifies the records they want, but they try to cover as much territory as possible by making a large request. So we've had a request, for example, for all of the documentation around the expenses that the board has incurred through five individuals for the past five years, including all the supportive documentation. That fee estimate was over $50,000. We had another request that was in the range of $12,000. These requests are normally appealed.
I don't have a concern with actually doing the fee estimate. My concern rests with the fact that these requests are large, and if we ever had to implement them, then a certain portion of our staff certainly would be on the job full-time for a large period of time. Recently, an alternative strategy to dealing with some of the requests -- we've had one of these requests, not one of these two but a third one, repeated. It was a huge fee estimate and it was repeated by having the time frames broken down. Rather than having the three years all in one request, the same request was made by that person over a two-week period but multiplied by X number of weeks.
That's a deliberate strategy, as far as I'm concerned, in order to avoid the fees and get the two hours of free time. I have a concern with that and I think somehow the commissioner needs to be able to deal with a request where the process is being circumvented, as far as I'm concerned, to avoid the fee estimate.
Another difficulty that we've had is where the requester doesn't necessarily believe that we don't have certain documents. We've had dozens of these requests. In fact, it was almost a matter of fact that if we said there were no such documents that existed, the requester automatically appealed and we went through the appeal process and eventually went to inquiry in some of the cases. The process by the commissioner has been changed somewhat so that in that particular case now what we have to do is go through an affidavit process, which involves using the lawyer, and there's a cost involved to that for us.
My concern here is not that this is being done, because I think that simplifies the process for us. It's just that there seems to be no responsibility on the part of the requesters to actually prove that they think the document's a request. The responsibility is incumbent on us and therefore we have to incur the costs.
I think probably I'll just leave it at that. That gives you a few examples of the kinds of things that I think we have to deal with on a daily basis which cause us to run into some difficulty and really end up meaning that during certain periods of time it makes it very difficult for us to provide the service to the legitimate requester when we have some of these that tend to be vexatious, if you want to use that particular word.
Mr Giorno: Peter Gnish, as a practitioner working for one of the school boards, has identified his experiences from a hands-on level. What I'd like to do, members of the committee, is take you through some of OPSBA's recommendations, because they were drafted with a view to simplifying the act to make it less costly on institutions, yet at the same time meet the twofold purpose that the act was put into place to serve.
My own perspective is that of a lawyer who practises in this area. I've been practising law as long as the act has been in force, and I represent not only school boards but municipalities and other institutions in proceedings before the Information and Privacy Commissioner of both appeals relating to denials of access and existence of records, but also investigations involving the privacy rules of the statute.
OPSBA's recommendations are found at pages 16 and 17 of the brief and it might be helpful for members of the committee to turn to them. While there are a number of recommendations, they fall into simple groups and I thought it might be useful to deal with them in that manner.
The first set of recommendations are those that are designed to simplify the decision-making process. The point that I think is important for members of the committee to understand is that while opening the doors may seem conceptually a simple process, in fact what the act requires is not the simple exercise of opening the doors but a very complicated process of searching, obtaining, classifying, examining, reviewing and drafting fairly complicated decisions based on the legal test in the statute about what will and what will not be released.
I wasn't able to provide to the clerk, upon our arrival, a copy of this document, but what I have from the Information and Privacy Commissioner is a sample of what a very simple decision letter should look like. Mr Chair, I don't know exactly how I should distribute this.
The Chair: The clerk will distribute those.
Mr Giorno: What I've handed to Mr Tilson and Mr McClelland is, from the Information and Privacy Commissioner's perspective, a very simply precedent --
Interjections.
Mr Giorno: Thank you, sir.
The Chair: Just continue on.
Mr Giorno: This is a sample response, or index, prepared by the Information and Privacy Commissioner for the guidance of institutions. It's a sample response to a request which involves three records and triggers two sections of the legislation. It's already one page and it refers to various clauses and subsections. It's detailed. You'll see that institutions are required to examine, not just an entire record but make the decision based on, in this example, each paragraph of a record. It could in some cases be a decision which is a different decision for each sentence of a document, a different decision for each word or name in a document, and you've got to remember that many requests involve not three records but 300. This is a requirement that's imposed on institutions by the statute.
Recommendations 2 and 3, then, are designed in some measure to simplify that. Recommendation 2 is to give consideration to reducing or removing the onerous and complex burden imposed by subsection 4(2) of the act. Subsection 4(2) of the act is the subsection that in effect says that you can't look at one record as an entire package, that you've got to examine each of its constituent elements, each sentence, each paragraph, each line, and make a decision on each, if possible.
Recommendation 3 is that the act be amended to state that where a group of documents all contains identical or similar kinds of information, the group may be treated as a single record for purposes of the institution's decision.
Again, many requests involve a number of documents all of which are similar or identical, yet the act requires that a separate decision be made for each. OPSBA suggests that it would be simpler to allow institutions to respond, especially where there's going to be a denial of access for legitimate grounds, to a class of records and deal with them all at once. It would simplify the decision-making process, and I'm sure you'll have heard or will hear during your deliberations from requesters and users who talk about the amount of time it takes to get a decision letter. This will simplify and expedite the process from their point of view.
The most important recommendations fall under the heading of reducing costs for institutions. Commissioner Sidney Linden, the first Information and Privacy Commissioner, recognized that the Legislature, in drafting these statutes, the provincial and municipal freedom of information and protection of privacy statutes, wanted there to be a user-pay principle so that the individual who wants the information can obtain it, but at his or her own cost and not at the expense of all the taxpayers collectively. The reality is that the user-pay principle is imperfect and there are loopholes, and OPSBA suggests that some of them be closed.
A major loophole is that which says that while you must pay for access to general information, if you're asking for information about yourself, you get it for free. That may make sense if we're talking about a student's OSR or one or two documents, but when institutions receive requests from people who are involved in litigation with the board, personal information about them held by the board could amount to boxes and boxes. Yet under the wording of the statute, they still get that for free.
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OPSBA's recommendation 5 is that subsection 45(2) of the act be deleted. The result of that would be that if you're asking for personal information about yourself, you'll still get two hours' free search time, but if it takes more than that, you'll bear the cost of the search and not the taxpayers generally.
The sixth recommendation is that subsection 45(1) of the act be amended to allow institutions to charge for the time spent reviewing a record, making a decision and preparing a decision letter. I've pointed out to members of the committee how complex the decision-making process itself is, how complex the review process itself is, yet right now those are costs which under the statute must be borne by the taxpayers collectively, because they finance the institution. They're not passed on to the requester.
Recommendation 7 of OPSBA is that the act be amended to make a requester bear the onus of showing that a fee is unreasonable. Mr Gnish alluded to this. Any requester can, and it's a legitimate right, challenge a fee that has been charged, yet the onus of justifying a fee is placed entirely on the institution. The Information and Privacy Commissioner requests affidavit evidence from a member or an employee of the institution who is familiar with the records, the record-keeping processes, who will talk about exactly what was done to come up with the fee estimate. Often this affidavit itself is pages and pages just to justify an estimate.
There are situations in which I've been involved and in fact Mr Gnish has been involved where a fee estimate of $200 or $300 is appealed. That is where an institution has legitimate grounds to decide that if it's going to cost the taxpayers a certain amount of money to find a record, $200 or $300 of that will be passed on to the requester. In situations where that fee is appealed, it will cost a school board or a municipality more to defend the fee than to give it away for free.
Recommendation 8 is that appeals involving fees of less than $1,000 be resolved in a summary fashion by telephone conference so that the legal proceeding, the litigation which surrounds fees, is not all out of proportion to the fee itself.
Recommendation 9 is that full costs be paid by the requester for information to be used for commercial purposes. That in fact is a recommendation that this committee itself made following its review in 1991 of the provincial statute.
Recommendation 10 is that the act be amended to allow an institution to treat as a single request multiple requests from the same individual, whether or not they're received on the same day. Members of the committee will be aware that under the act, a requester gets two hours' free search time for each request.
Mr Gnish alluded in his remarks to a situation where a requester made a request for a large amount of information, expense records relating to a three-year period of time. That person was given a fee estimate and declined to pay it. That person instead responded by saying, "I'm not going to make one request for a three-year period of time, I'm going to make a number of individual requests each for a two-week period of time." The act as worded may suggest that this person gets not two hours' free search time but two hours times 205 requests' free search time, which is in our submission not at all consistent with the intention of the Legislature. The recommendation is that if institutions are allowed to group requests and treat them as one, that will simplify the process.
In outlining some of the recommendations, I've taken more time than I intended. I believe Ms Nielsen has some concluding comments.
Ms Nielsen: We apologize if we're going over a little bit. I will be very short.
The Chair: It depends on the presenter. If you want to take the full half-hour for your presentation, that's up to you.
Ms Nielsen: Ladies and gentlemen, OPSBA does truly appreciate the opportunity to provide our views to members of the standing committee on the Legislative Assembly.
OPSBA believes that the purpose for which the act was created is important and necessary. We however encourage the standing committee and the office of the commissioner to look for ways to improve the mechanisms for the administration of the act so that it may be easily applied by the practitioner, and also to make the process far more cost-effective.
Mr Cooper: In recommendation 15, you ask about being exempt from FOI and just having it included under the Education Act. We received something from legislative research this morning that recommended against this. It actually suggests that the children's aid societies be included under MFPPA. I know one of the problems you're facing is that under the Education Act, it talks about 18-year-olds; under freedom of information, it talks about 16-year-olds; under the Young Offenders Act, it talks about 12-year-olds.
I can understand the difficulty you're having, because even the new advocacy legislation may come into effect in this where you're dealing with other things. So bringing all these acts into some sort of uniformity that you can address I realize is a problem. Where would it be better to bring it under the Education Act, rather than just being more expedient for you?
Mr Giorno: Thank you for raising that, Mr Cooper. Recommendation 15 is not a recommendation that school boards be exempt from the freedom of information provisions of the act. It's simply confined to the privacy rules. Those are the ones that govern the collection, use and disclosure of information.
The suggestion that's made, and it's outlined in some detail in the brief and I refer members to that, is that the privacy rules by their very nature are broad. They cover everything that a school board does.
There's an example in the brief. When a student writes an essay, What I Did On My Summer Vacation, the teacher who assigned it is collecting personal information. Whether or not members of the committee think that ought to be covered by the legislation is one thing, but I can tell you it is covered by the legislation.
I don't want to take too much time, but I simply refer members to the brief and point out that OPSBA's view is that if there are going to be rules which hit at the heart of all uses, collection, disclosure of personal information, then it is far better that they be contained within legislation which is drafted with an understanding of the particular needs of each institution. In the school boards' case, that's the Education Act.
We talk about information collected by employers and suggest that this be done under employment legislation, and not one general privacy law which applies to many institutions but specific privacy rules which are tailored to the needs of each use.
Mr Elston: One question which I have been allocated deals with recommendations 7 and 12. Can you tell me how the person would be able to establish that the fee was unreasonable if they didn't know the information behind the collection; whether or not there should be at least some reply required when somebody refuses a request on the basis that it is vexatious so that at least you can put it to bed or at least finish that record; and finally, what steps ought to be taken in relation to issues of privacy of an individual who perhaps is attending a school from having been in some form of incarceration or under some treatment or problematic activities in another school, for instance?
Mr Giorno: I think Mr Gnish has examples of the last point in his own board.
Mr Gnish: I think with respect to the last point, there's provision for security of that information, and the information can only be shared with those teachers who are directly involved with that student. If information is requested beyond that source, that would not be shared with anyone else. I don't know whether that gets at what you're talking about.
Mr Elston: Is it fairly safe in the classroom if there is concern? For instance, if I'm a parent and I've heard, what happens? What happens if there has been some activity in the classroom or out while people are on recess or whatever that causes me concern? How do I find out about it? How do I make sure about safety in the school, since that is a big issue these days?
Mr Gnish: That's not an easy one to answer, particularly if that information isn't public. If it's private, then we're not going to release that kind of information. We're going to have to deal with it ourselves, unless the police are prepared to tell us that this information can be made public.
Mr Elston: Just a couple of quick comments on 7 and 12, then, is fine.
Mr Giorno: Dealing with point 7, I take your point, Mr Elston, that it may be difficult under some circumstances for a requester to explain why a fee request is unreasonable, although there is provision in the statute and institutions when making fee requests to explain them. They explain the calculations and the methodology; at least they ought to, and that provides some basis for them.
Again, in response to point 12, it would be OPSBA's position that in explaining why a request is deemed vexatious, the decision letter would, again, explain that. It is OPSBA's position that this should be subject to a right of appeal.
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Mr Sterling: I just want to ask a bit of a question. There seem to be opposing views: on the one hand, Mr Gnish in saying that the act is working fairly well in his practical experience, and then on the other hand, we have legal counsel saying that it's not appropriate for schools and school boards and that kind of thing. I guess the problem legislators arrive at, number one, is to have some kind of law where people will know where to find it, and therefore I reject in some way Mr Giorno's suggestion that we have a separate law for each institution etc.
Given that in my view it would probably be dreaming to expect that we were going to take school boards out of this and put them into another, are there some amendments you can put forward which would take the students' summer vacation paper out of the purview of this legislation, which I don't think it was ever intended to cover?
Mr Giorno: Thank you, Mr Sterling. I think that's the point exactly. Right now, and I'll take this collection of personal information as an example, there's only one rule, basically. If you're not a law enforcement agency and you're not collecting information that you're expressly authorized to do by statute, the only rule is found in the act and it says in section 28 that the information's collection must be "necessary to the proper administration of a lawfully authorized activity."
The amendment to the act that could be made in that case -- I'd suggest the same for uses and disclosures -- would be to provide more detail which would deal, for example, specifically with educational records, educational assignments, would deal specifically with employment documentation, as opposed to having one completely broad rule which proposes to cover every single use or collection of information by any public institution, because the same rule is found in the provincial statute, and leave it to the Information and Privacy Commissioner to put on his education expert hat one day to decide what school boards need to collect to do their jobs and what municipal employers need to collect to do their jobs as employers and what district health councils need to collect to do their jobs.
The Chair: Ladies and gentlemen, I'd like to thank you for your presentation here today.
Ms Nielsen: Thank you, and we will follow up on that suggestion. OPSBA will look into that and perhaps we can have something further for you.
ONTARIO TEACHERS' FEDERATION
The Chair: Would the Ontario Teachers' Federation come forward, please? Welcome. Please introduce yourselves.
Ms Margaret Wilson: My name is Margaret Wilson. I'm the secretary-treasurer of the Ontario Teachers' Federation and I'm accompanied today by Mr Jim Head, our president, and by Ms Ruth Baumann of our senior staff.
The federation would like to discuss with the committee today two areas of concern related to the specific activities of the federation itself, as opposed to our members in the school system.
The Ontario Teachers' Federation has been in existence since 1944, which is the year of passage of the Teaching Profession Act. The federation, as a statutory body, has a number of activities that are regulated by the provincial government. Much of our day-to-day business, as opposed to the kinds of things you see us around the House on so regularly, is with school boards. Specifically, by statute, the Ontario Teachers' Federation collects the fees on behalf of all teachers in the publicly funded elementary and secondary schools. Secondly, the federation operates a disciplinary tribunal under a regulation, which determines whether professional misconduct has occurred and, if so, what disciplinary action is appropriate.
I'd like to start by addressing a problem that we've had over the last two or three years with fee collection, and I have provided an example of correspondence from one school board that illustrates the difficulty we're having. I should say that when I talk to school boards they try to be reasonable and they're trying to do the right thing. We're not talking about boards being obstructive on the fee, but the way the fees are structured in OTF, each affiliate has its own fee, and the fees are salary related.
In the latest occurrence in terms of a school board attempting to provide us, not only with the money for the fee but with the information we need in order to verify whether or not the fee was accurate, the school board, as a consequence of inquiries it made related to other issues in the freedom of information act, had decided that it could not pass on salary information. But when a fee is salary based, you need the salary information, by individual, in order to verify whether or not the individual amount and then the total amounts are correct.
We had correspondence with the board, and the board did forward the information. But every year it's a different board. Where somebody asks a question, they get a general answer, and we get the "What if?" I now propose to write to the commissioner to try to get a compliance letter.
I think this is an illustration of one of the things that was not apparent in the act when the act was written; that is, individuals can make inquiries of the commissioner, but the act wasn't structured to deal with organization to organization. It's not clear in terms of why it overrides other acts. It would be our belief that it never intended to override acts that deal with things such as the statutory power to collect fees. That, when it comes right down to it, is a mechanical and financial problem, and I'm sure we'll find a way around it, although it would be easier if the act were clear in not intending to override those powers.
A more serious and ongoing problem has occurred related to our operation of the relations and discipline committee of the federation. Under a regulation, the federation conducts inquiries and holds hearings in cases of alleged professional misconduct or unethical conduct of its members. The committee also considers applications for reinstatement of the teaching certificates of former members or a request for the lifting of a suspension of a teaching certificate.
The sorts of cases that we deal with range from serious interpersonal disputes between teachers to teachers who have been convicted of criminal offences, including those involving children. The committee considers cases brought by members of the profession, by its member organizations, by members of the general public, including school boards, and by the Ministry of Education.
The relations and discipline committee takes its responsibilities very seriously. Part of the responsibility is to gather evidence of the teacher's misconduct. Generally speaking, the case is forwarded to the committee following a conviction. But the committee operates under the rules of civil procedure and from time to time proceeds without a conviction being in existence. Recently, several school boards have refused to provide evidence to the relations and discipline committee. When we have talked to the school board personnel, the freedom of information act is mentioned.
It's the federation's position that the disciplinary procedures under the Teaching Profession Act are a necessary aspect of public interest and that while the committee, under the Statutory Powers Procedure Act, has the right to subpoena, it can only subpoena witnesses, and that committees such as this committee, which are empowered by law to act, should be able to obtain evidence which is clearly necessary for the committee and the federation to fulfil its mandate without going through the subpoena-of-witnesses process.
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It is a fact, however, that school boards are increasingly nervous about even statutory tribunals having access to files. Recently, there was a case in which the federation and the Ministry of Education and Training had to appear together before an Ontario judge -- it was Judge Kovacs -- arguing that the reasons for judgement, reasons for sentencing and the certificate of conviction from a criminal trial were necessary evidence for the committee to make a determination about a recommendation regarding an individual's teaching certificate. The federation and the ministry were successful in pleading before the judge, but we had to go and plead before the judge in order to get the release of the information. In this case, a minor was involved and the release of the information was conditional on the minor's name not being revealed, which we would have done in any case under our procedures.
It's the federation's position that disclosure to its relations and discipline committee of such evidence as may be required for a member of the profession to have a full and complete hearing before the committee should be permitted under section 32(e), and that a clear reference should be made in the Municipal Freedom of Information and Protection of Privacy Act to the requirements of professional disciplinary bodies for information relevant to their deliberations.
When any act contains within it provisions which override or take precedence over other legislation, there's need for a reasonable adjustment mechanism to sort out and anticipate the difficulties. In addition to the specific problems cited above, the education community was extremely concerned after the original passage of the act that the ability of schools and their obligation under the Education Act to communicate to the parents of 16- and 17-year-olds was seriously compromised.
At that time, the Ministry of Education was unable to provide any useful clarification. Despite the fact that only individuals were supposed to be able to make inquiries under the act, the school trustees and the teachers of the province wrote and asked for clarification of the issue of informing the parents of 16- and 17-year-olds when their children were truant.
We've attached the letter and the reply for your information, but it's a useful example of the kind of tortuous thing you can get into when you get an override act. It's not clear exactly how it applies to all the other acts, and of course we were really grateful when the Ministry of Education couldn't shed any light on it.
I'd be happy to take questions.
Mr Elston: I'm interested in the clarification for the purposes of safety of individuals, sort of to the extent that I started to ask the question of the last group. If I'm teaching in one classroom, for instance, I am able to find out if one of my students is participating in temporary absence programs or he is at a home. But if I am the teacher in the next classroom, also responsible for my students in many ways -- at least I think most feel they are -- I'm unable to be advised of that, technically. Have you sat around -- I know you have. Can you tell us what conversations you've had about trying to get some reasonable way of managing that as an issue?
Ms Margaret Wilson: I'll start and Jim may, as a vice-principal on leave in a Scarborough school, want to address the issue as well.
That's a serious issue for teachers. It's an ongoing issue for teachers. Essentially, the kind of motions we get, the kind of requests we get, from teachers consistently say that all teachers, all school employees -- because caretakers sometimes need to know as well -- who have a need to know about the background of a particular pupil should have access to that information and that their professionalism should be respected. They're not going to go clackety-clack out on the streets. But if we take some students who are assigned to school as part of their rehabilitation, very often they're not in a stable emotional condition and people other than the classroom teacher are going to have to cope with them from time to time in the halls and in the cafeteria as they move between classes.
Our strong preference would be for any school employees who are likely to have contact with the student having access to the information, with clear discretion to the student's rights. We don't want to be punitive, but we have had serious incidents.
Mr Jim Head: I just say that, certainly at the level of administration, that access should be there so it could be distributed with some sort of professional ethic and some discretion. I give you a simple example of just how far some of this is going. At my school last year we wanted to do a video yearbook and we were advised that we would have to get permission for every photo taken in that video, otherwise we might be in violation of freedom of information, and that, as I think you can appreciate, is almost impossible when there are background people and everything else involved, so it became a very interesting thing. I think the school did the right thing and tried to get those permissions out, but also realized that they'd have to take a certain risk and go ahead and do some of that. It's gone that far and there are a lot of people very jumpy.
Ms Ruth Baumann: I think there are two separate issues here. One is the question of the restrictions, for instance, placed by the Young Offenders Act on the communication of information of children and young people who have had encounters with the law and have been convicted. That's one area.
We discovered the other area when we were looking at the 16- and 17-year-old issue, after the Municipal Freedom of Information and Protection of Privacy Act came in. We started out looking at it from the standpoint of, what do we do with 16- and 17-year-olds who are truant and can we call home? We ended up in a position where we found ourselves discussing cases where there was intimidation activity, or extortion activity going on in a school and the child who was a victim did not want the parents to be told because of cultural issues in the particular community.
What happened when things reached the state in a school where the people responsible in the school believed that the child was at serious risk if they did not alert the parents to what was happening and what the circumstances were? That's one of the issues referred to in the letter, in the appendix that went to the freedom of information and privacy branch, trying to get clarification on the relationship between the Education Act and this legislation.
There are many shades. There are some things where there are clear prohibitions in the case of the federal legislation. There are other cases where the rights granted in the FIPPA legislation to 16-year-olds create a whole different set of problems potentially for schools and which I think we need to have ways of dealing with right across that range.
Mr Elston: The second question, if I might, relates actually to your issue about divulging salaries to yourselves for purposes of fees. You may be aware -- or you may not, but you should be aware -- that the minister started his remarks by saying that he was advised he should look into making public, or he should examine the question of making public, salaries of those people paid by taxes. The commissioner has basically recommended that as well and I wonder if you might comment on that from the standpoint of the federation.
Ms Margaret Wilson: I'm laughing because I can remember a time where --
Mr Elston: That would certainly deal with your issue.
Ms Margaret Wilson: Yes, it would deal with my issue. I'm remembering a time when OSSTF, the federation to which I originally belonged, used to publish a book in which there were everybody's salaries and there was always somebody who left it on a desk in a school and then the rest of the staff would be furious.
That's an interesting question, as to whether or not public servants have any right to individual privacy. I would have thought that, except for the very top echelons, those who are the equivalent of CEOs, there should be a right to individual privacy. I think the public has a right to know salary ranges and they can make a reasonable stab at it. If we're paid from the public purse, I don't see why the ranges shouldn't be public.
Mr Sterling: I was going to ask the same question in that the second recommendation of Mr Wright, who appeared in front of this committee, was that all salaries of all people paid by taxpayers be made public, I guess from the standpoint or the view that the taxpayer has a right to know what every individual is receiving from them.
Ms Margaret Wilson: It's going to make for interesting neighbourly arguments.
Mr Sterling: I guess so. I guess, as legislators, we've been under that scrutiny for a long period of time and it's part of everyday life.
Mr White: It showed at least how poorly we're paid.
Mr Sterling: Well, I guess so.
Mr Wiseman: That is public knowledge.
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Mr Sterling: The amendment that you recommend under 32(e), "for the purpose of complying," is to allow information from the board to flow to the disciplinary board. The amendment on page 4 of your brief says, "for the purpose of complying with an act of the Legislature or an act of Parliament, an agreement or arrangement under such an act or a treaty." What do you mean by "agreement or arrangement"?
Ms Baumann: That's what's in the act. That's exactly the language from the act.
Mr Sterling: Okay. I'm sorry.
Ms Margaret Wilson: What we're suggesting is that there should be a reference in the Municipal Freedom of Information and Protection of Privacy Act that cross-references to that section of the act and that deals with the right of disciplinary bodies.
We're specific about professional disciplinary bodies because they're all regulated by the province, so there would be some guarantee of the appropriateness of the body to which the information is going.
Mr Wiseman: I'd like to go down a different road. You made a comment, and if I'm paraphrasing you correctly, you said nervousness about giving out information with reference to the boards.
It seems to me that the boards are not the only government institutions that are becoming increasingly nervous about giving out information. What's happening in response to that as a rebound effect is that the public and community activists and people are becoming more and more cynical about this lack of information flow. We just heard from the previous group about vexatious requests and I think that the difficulty of getting information is leading to that. I'm just wondering if you might want to comment on what you perceive as being the reasons behind this nervousness and whether or not there's anything that we should be doing -- I've asked this question of others -- in changing the act, making it clear about what information should be confidential and what information shouldn't. Have you got any thoughts on that?
Ms Margaret Wilson: I think your problem is that no list is ever going to be all-inclusive and any list lends itself to being interpreted in a very restrictive manner. That's why we specifically made the suggestion that you identify professional disciplinary bodies as bodies that had the right to information for their specific disciplinary purposes. We think that if you go that route, then you're not making lists.
Some of the information which we've been refused you would probably think of as picayune. We've had four school boards refuse us copies of the board motion which terminated teachers. These were people who were fired because of criminal convictions and we couldn't get the official record that they'd been fired. That's the extreme degree to which people are taking their obligation to protect information under this act, if you want to know how the public feels about not knowing. That, to me, is at the extreme end of refusing information.
Mr Wiseman: I have one like that. I have a complaint on my desk right now about a refusal for the release of information that to me seems like it should be public domain.
Ms Margaret Wilson: To me, a number of bodies have become almost paranoid. It's like Jim's school being told that they needed releases to make a video. What's happened to the world if you need releases to make a video yearbook? There's something peculiar.
Mr Wiseman: I wish you hadn't brought that up, because we had a videotape of the public school where my kids are and I don't know if they got releases.
Ms Margaret Wilson: Somehow or other we have to be able to deal with an act such as this so that it does what it should do but doesn't chill everything in terms of information which should be going out to the public.
Mr Wiseman: But how do you put that kind of common sense into an act? That's really what I'm asking.
Ms Baumann: That's our adjustment process.
Ms Margaret Wilson: You gradually make adjustments. Unfortunately, the adjustment process itself is bureaucratic. We don't have a bright idea for you for an adjustment mechanism but we think this act needs one that makes it easier for people to go and where you get a better record of what's permissible and what isn't, that's then communicated across the broad community so that people know what the real restrictions are supposed to be.
Ms Baumann: The act itself talks about an appeal to the commissioner where someone has refused information or where someone is proposing to provide information. The presumption is that it's an individual who appeals to the commissioner.
From our perspective, when we looked at the various issues that affected us, we wrote the letter to the branch about the Education Act issue and we did get an answer that we found quite satisfactory and quite useful. But we think some kind of more accessible and less bureaucratic access to that kind of advice, as Margaret said, in a way that would keep a running record so there would be a body of what was said in a similar case, so that there's a body of knowledge that gets built up that the people who then in turn administer the law locally begin to incorporate in their knowledge, would be useful.
Mr Hope: It's interesting, the comment that was made about what's happening to our society. I guess as we look at the economic situations and what's going on socially in our communities, this is what's provoking a lot more inquiries, which then leads me to what Mr Sterling had brought out earlier about the information we are providing to the community. Are we providing it well enough, or is it informational enough so that the general public maybe gets away from the frivolous requests that are being put forward?
We are getting a more knowledgeable community now, a more knowledgeable irate taxpayer now, and they are demanding more information, which is supposedly general public information. I'm just saying that we always look at trying to put the clear guidelines: What is public information and public domain and what is not public domain? I'm just saying there can't be all that much that is so confidential. Most of it, I believe, is more public, and the public has the right to know.
It was just your comments. Really, I wasn't going to ask anything until you said, "What's happening to our society?" I keep asking that question too: What is happening to our society today?
Ms Margaret Wilson: It's angry.
The Chair: Thank you for your presentation.
MARION THOMAS
The Chair: The next presenter is Marion Thomas. Welcome.
Ms Marion Thomas: Good afternoon. I'm pleased to be here. Freedom of information is something I've had a lot of experience with, or frustration with.
I have entitled my brief to you Shields and Barriers. I believe municipalities and governments in general use the freedom of information act as a shield; we see it as a barrier. That's just the way we perceive it, and I'd like to just recount some of our experiences.
In March 1989, while commuting home from work, a radio station announced that a landfill site would be located adjacent to the community of Whitevale, where I reside. This isn't the present search I'm referring to. This is a search from the previous government. Our quest for information from the municipality of Metropolitan Toronto was a direct result of this announcement.
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After the shock subsided or the dust settled -- whatever you want to call it -- it was important to us to determine by whom and how this area had been selected. When we asked the consultants, they told us that the region of Durham selected the site. When we asked the region, we were told the province of Ontario selected the site. Obviously, somebody wasn't being truthful.
A substantial period of time passed before we finally realized that it was actually Metro Toronto that had commenced a search in the region of Durham and they'd been exploring it for some time. The search eventually resulted in the public release of a short list of sites, but the long list of 25 sites still remains an enigma. We've spent over a year trying to get this information and we're still at a standstill.
Our original request of September 21, 1992, requested a report dated February 9, 1988. On October 28, we received a four-page document dated July 1989 -- that's more than a full year later -- and it was illegible. We couldn't read it. I brought it because it's just so bizarre. It was such a poor copy and it was reduced to such an extent that it's impossible to read even with a magnifying glass. We complained about it and got a new copy that was substantially larger though still very difficult to read, and we could now read the date of July 1989. Obviously, a report dated more than a year later is not what we were looking for.
Ironically, Metro admit to the existence of the list in their submission to the Information and Privacy Commissioner when they state:
"...in a previous waste site selection process undertaken in 1988, the institution refused to assure individuals offering their property of confidentiality throughout the selection process. Ultimately, the short list of sites identified during that process was released for public comment. However, the long list of sites remains confidential to this day."
We have commenced this process again, using new information obtained at the Metro Toronto Reference Library and referring in more detail to the report that we want, but Metro is still denying the existence of this list. Obviously it exists, so you can understand our frustration.
Concurrent to this search for an interim site, Metro had also directed their consultants to search for a long-term solution. After a period of more than one year, we were successful in obtaining this report. It wasn't easy. Metro opposed the release of information at every step. They were successfully able to use sections of the act as a shield to prolong the eventual release of information or, as in my first example, give irrelevant information. We didn't get what we wanted anyway.
On our part, we were faced with a decision to either retain legal advice to argue our case or become textbook lawyers to prepare our appeal. It was a time-consuming project to respond to Metro's defence. They have all their lawyers and everything at their fingertips.
During the last two years, I've made over 50 requests for information, largely to provincial ministries and authorities, with regard to the waste management initiatives that are going on. The results are far less than desired. Initially this was quite successful, but it deteriorated badly during the latter part of 1993. Perhaps this was because of the volume of material I sought.
I have encountered many barriers to obtaining information, such as the town of Pickering using their lawyer to hire the consultants and invoking lawyer-client privilege, or charging exorbitant amounts for the search and photocopying. I presently have estimates totalling over $5,000 for information I have requested. I must either prove that this is an issue of health and safety or show that I'm unable to pay in order to avoid these fees.
In the case of municipalities not revealing which information has been removed when they give you the files to look at and advising which sections of the act were used to justify the decision, on my part, two can play at this game. I'm acutely aware that requests for freedom of information are time-consuming for the recipient. My frustration with the process just created a knee-jerk reaction that every time I received something really ridiculous in the mail, I responded by sending out three or four requests for more information.
I have some suggestions. I probably have many more; I started preparing this this morning. I could come up with a few more if I had another week.
The time line for responding to requests must be improved. I've never received a response prior to the 30-day interval imposed by the act.
Number 2, reasonable time lines for response from the Information and Privacy Commissioner with regard to the appeal process must be established. Our defence had to be prepared and submitted within 30 days, yet it took a further nine months to reach a decision.
Establish reasonable fees. Recognize that the average citizens who are requesting the information just don't have $5,000 to fork over for information that they require to be on a level playing field with the consultants and their experts.
Improve the act so municipalities cannot use it as a shield to hide behind. If you can accomplish the aforementioned, impose a $5 processing fee to reduce frivolous requests. The federal government uses this. I spend significantly more time preparing my requests. Thank you.
Mr Sterling: Thank you very much for coming to the committee. You're representing a different viewpoint, because we've had a lot of municipalities come forward and talk about frivolous costs and the high costs of producing information.
I assume that you're acting in concert with other individuals in your quest to get information.
Ms Thomas: That's correct.
Mr Sterling: What strikes me is that you're the very kind of individual for whom the freedom of information act I think was created, in other words, for citizens who are being attacked by government, or their property rights and their rights to live in a community are being attacked.
I don't know whether a $5 application fee would deter the frivolous use. What I'm trying to do is that if you were acting on your own and you were not dealing with something which was as important as the waste disposal sites, there would be a real concern on my part, as a taxpayer, to pay a $5,000 bill for it. I'm not concerned, as a taxpayer, if in fact you're acting in concert with a number of other individuals and there is a real concern in your community. I think that the issue -- not trying to be partisan -- has been botched badly by two successive governments in terms of dealing with this issue.
Mr Wiseman: Three.
Mr Sterling: Well, three; I don't care how many. Is there any suggestion you might have, for instance, when a request is cosponsored by a number of citizens, or something of that nature? I think that if a group is really seeking the information, to me that indicates a larger part of the community than one individual who may be acting on his or her own. Have you ever thought of something akin to that?
Ms Thomas: I understand what you're saying. I've sent these requests in on behalf of the Whitevale and District Residents' Association, not the town of Pickering or PACT or anybody else of that nature. There are 200 individuals who actually live in Whitevale. The information we seek is the raw data that was used to produce the information books the IWA eventually released. Now, in the course of finding some of this information we discovered that what was in their books didn't correspond to what was actually in the raw information. When you're allowed to produce a book that frames the question and frames the answer, it has an entirely different meaning when you see the whole document that it was prepared from. So our effort was to just get the actual correspondence from the ministries within the government to see what they actually said. I don't think that should be private information and I don't think it should be so difficult to get.
Mr Sterling: Yes, I guess the big problem you have when you're trying to draft legislation is that you can't deal individually with what happened in your case.
Ms Thomas: No. I realize that.
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Mr Sterling: It's important for us to hear your story.
We have to try to draft general rules so that somebody else in Ontario who's faced with the same problem isn't faced with the same kind of delay, and I agree with you on the delay issue. I think that the government's used 30 days as its minimum, not as its maximum, that we try to deal with it.
I was just trying to explore how we could -- because we've heard so much about people abusing it from the municipalities' end -- perhaps put requesters in two different categories: those who have some kind of community support and those who are acting on their own, a whim perhaps or whatever. I guess my concern is that somebody acting on a whim or who isn't really that concerned about it but is more interested in creating mischief is not creating a great tax burden on the rest of society. So I guess that's what I was trying to do, was trying to find some kind of median in between.
Ms Thomas: I agree with what you're saying but even to impose a $5,000 fee on a small community such as ours -- I mean, we are obviously raising funds and the funds were intended to hire expert witnesses. If we have to spend money just to get the information that we need, we need to be on a level playing field with the consultant. We need the information that he has gathered through various means in order that we can understand what they're doing.
Mr Wiseman: Thanks, Marion, for coming. I guess it really leads from the question that I asked the previous presentation. It really strikes to the heart of what we talk about when we talk about open government and what should remain confidential and at what times and what should be public access and how it should be accessed.
Do you have any ideas or thoughts on what should be public access and how it could be arranged that it should be delivered? The act suggests that there should be reading rooms available within municipalities where individuals such as yourself could go and do the research and do the work and get the information. Do you have any thoughts on, since you've done a lot of this, what would be the most expeditious way of getting information into public hands, opening up the whole process?
Ms Thomas: Actually, I did experience what you're talking about at the region of Durham, surprisingly enough. I sent a request for information to the region of Durham. They responded. They set aside the files. I phoned and made an appointment to go in and review them. At that time, I went through all the files, indicated which ones I would like photocopied, which saved a large waste of paper, and three or four days later they had them ready for me to pick up. I just picked up what I had asked for and then they invoiced me.
The only thing I don't know is if anything had been taken out of those files prior. I would imagine somebody would have had to have reviewed them before I saw them and I don't know if anything was missing, if I saw a complete file or not.
Mr Wiseman: Do you think that municipalities and governments should be required, maybe when they're filing those documents, to classify them in a way that would allow for: "This is very innocuous information. We can have that public file. If somebody wants to come in and read it, we'll put it in the filing cabinet and they can see it but they just can't take it with them"; "This has privacy of individuals documents, so we won't allow that. They'll have to access that through freedom of information so we have a screening system"?
Ms Thomas: I would think there would be some merit in doing that. Some of the things that I've asked for, I should really not have to go through freedom of information at all. I think they should have just been made available to me when I requested them.
I found the situation that I was in it was just so difficult to get anything that it became imperative that I documented everything. The only way I could really do that and know, first of all, that they'd received my letter, they acknowledged the receipt of my letter instead of if I'd just sent in a request and then didn't get anything. Then I would call back and they'd say, "We can't find your letter, it's gone," or "It never arrived." This way, I know immediately whether they have received the letter or not. That's why I've put all my requests in freedom of information format, so that they can't be ignored.
Mr Wiseman: This raises an issue of public accountability, because I know, prior to being elected, the frustrations that we had with Metro in that getting any kind of information out of them was like -- it just wasn't coming. They'd ignore us, even when we went --
Ms Thomas: You arrange to pick up the maps and when you get there, they say, "There aren't any maps."
Mr Wiseman: Yet when I asked for them all at the Bill 143 hearings, I managed to get a lot of documentation that previously we were unable to access. Do you think that some kind of local public accountability should be somehow introduced into this act in some way? One of the comments that is being suggested by the opposition is to allow MPPs to access freedom of information with no fees and so on. That was one of the suggestions. What about local councillors? I think that was another suggestion.
Ms Thomas: Well, we'd have to get our local councillors to write the letter. That might be difficult. Certainly I think there are some merits to that. Perhaps if an MPP was able to review the request and -- I think it's pretty easy to decide whether the request is frivolous or not -- and only request those things that the MPP deems to not be frivolous. Maybe there could be a priority put on those items.
The other ones still have to be dealt with, but the time lag is just horrendous. We're into this over a year now on the one example and we're not any further ahead than we were back in September 1992.
Mr Wiseman: Well, 1989 -- we're still looking for that list.
Ms Thomas: That's right, yes.
Mr Elston: As Mr Sterling had indicated, we've been really hit with the whole issue of frivolous and vexatious. I presume that you probably were a very welcome individual when you started filing the follow-up requests. Did anybody suggest to you at some point that you were being difficult or being frivolous?
Ms Thomas: No, they haven't.
Mr Elston: So they've treated you as a serious filer.
Ms Thomas: Well, they were all serious requests. I just term it being jerked around. If I hadn't been jerked around so badly, I probably wouldn't have sent so many. It's like, "Okay, what can I ask for now?" It actually became a little exercise in saying, "What else would I like to see?" It's not that I wouldn't like to see those things, but I probably would've been more satisfied in getting the original things that I'd asked for.
Mr Elston: What you were hoping to do then basically was sort of by extension of the pieces of information you got, perhaps leading you into getting the information you actually felt was available for distribution to you then. Is that the case?
Ms Thomas: No, I looked at it as a make-work project for them.
Mr Elston: So you could've been classified as one of those people who want to tie them up.
Ms Thomas: No, I wanted the information, but at the same time, what I really wanted was my original request filled, and not having succeeded in that, having them tied up in the appeals process, trying to argue either poverty or health and safety. At the same time, I thought, "If you're going to put me through this, I'm going to give you more." So I just started on another round.
Mr Elston: You'll be happy to know that there've been several suggestions that when somebody is seen to be doing that, that we should make recommendations that the freedom of information act be amended to allow the head to disregard that. I presume you would be opposed to that type of recommendation.
Ms Thomas: I expect that you probably get requests that really are frivolous. It's not that eventually I wouldn't have wanted this information, but I expected to get sort of an orderly flow of information. If I requested comments from the Ministry of Agriculture and Food, I expected maybe within a month to a month and a half I would have those in my hand. I don't expect to have to wait a year and a half to get them in my hand.
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When you suddenly realize you're going to have to wait more than a year perhaps until you get the appeals processed, you realize how important it is to get the other things that you may want to look at, too, in immediately. With this time lag, there's no point in asking six months from now for something that you needed yesterday. Whether you need it or not, you have to sort of anticipate what you're going to need and start asking for it right away.
Mr Elston: I noted that you had requested a change in the time lines. As a requester with legitimate needs, what would you prefer the time restrictions to be?
Ms Thomas: When we had to respond to our appeal we had 30 days in which to respond. When we called to find out when we could expect a decision, it seems to be open-ended.
Mr Elston: You would like a limit on that?
Ms Thomas: There should be some sort of limit within reasonable expectations.
Mr Elston: Thirty days, 90 days.
Ms Thomas: Even if it was 90 days -- it took more than nine months and we had no idea when that would actually arrive. I don't know if I have the letter here, but it was actually dated October 28, I think it was, of 1993, the following year from the original request. Our appeal was sent in in January of that year so that's 10 months, I guess, before we actually received it.
Mr Elston: What about the prospect of being asked to pay a request fee for your type of request? Could you understand, for instance, if people say they would like to have a request fee to make sure people are serious about that, because that recommendation has also been made to us?
Ms Thomas: What I found is, the federal government does charge $5 for each request. It's a processing fee; that's what they deem it to be. I find I take a little more care with the letter that I send. I try to be more explicit. First of all, my $5 is here. I don't want it just caught up in -- so I don't have an objection to that. Five dollars is not unreasonable if you really want the information, especially compared to the thousands of dollars they actually want for the release of the information.
Mr Elston: What about an appeal fee, which has also been suggested? I think the number of $30 has been basically given to us by at least one presenter. Any comment on that?
Ms Thomas: No. My comment on that is I would not support a fee for an appeal process. Essentially what you're doing, you request from the municipality or the province some information. The province or the municipality comes back and says: "No, we're not going to give you this," or "We will give you this but we're going to charge you this much for it." I think you have to be able to appeal those decisions to an independent source.
Mr Elston: Have you found any better performance since the act came into effect in 1991 as opposed to --
Ms Thomas: Certainly.
Mr Elston: You have found it to have helped?
Ms Thomas: We couldn't get anything before that. As Jim was talking about with the Brock West information, they just denied any information existed. We couldn't get anything, so it's certainly opened up from that.
The Chair: Ms Thomas, I'd like to thank you for coming before the committee here today.
We've got a couple issues in the committee that we should decide some direction.
Mr Elston: Can I ask a question on administration again -- a very good question this time. I couldn't remember whether or not we have asked research to provide us with the Ministry of Health paper on the principles it would use for freedom of information. If we haven't asked for that, I wonder if we could get a copy of it. I sense we may be moving a little closer to considering, certainly seriously considering anyway, that issue as part of our deliberations. Before report writing, it might be helpful for us to see those.
The Chair: Maybe a little bit of direction to the researcher here to the point of the materials that are being asked by the committee to come forward with and yet we're looking at a time frame of writing the report. With this additional information required, it sort of puts the report back a little bit and maybe we have to take a look more at writing the report when the House comes back, otherwise asking extra time in order for the committee to sit, for the House leaders. This is a decision that has to be made by the committee, with this additional information coming forward. The committee would have to be in agreement. We've got one year to write this report.
Mr Sterling: What additional information are we talking about?
The Chair: I think a few members here have asked for a fair amount to compile information for the committee to consider.
Mr Elston: I think that in my situation, Mr Sterling, it's just a matter of the copy of the principles that Health has set out publicly for its freedom of information and protection of privacy work, but I know Mr Hope has asked for three or four different things to be provided, so there is some there.
Mr Sterling: As we discussed before, there are two issues here, in my view. There is the existing act as we now have it and amendments to it, and we've heard people talk generally about that act. We've heard the odd brief about extending the scope of the act to include other institutions. I say that that's a second issue.
The first issue in terms of dealing with this act -- we've heard submissions on various different aspects of it. My view is that we can't write this report three months from now because we will not have the same makeup of this committee, we will have forgotten what people have said and therefore to do it three months from now is like not having these public hearings. We are better off to look at it, in my view, next week and try to come to some conclusion on the existing act and what people have said about the existing act.
There weren't that many briefs this week. Would it be unreasonable to ask for a synopsis of what people have said about the existing act, taking away the other issue and postponing that and perhaps dealing with the inclusion of other institutions after we would write or try to get some conclusions on what we've heard?
Ms Swift: My sense is from all the briefs that we've had and from the ones that we received before is that we're probably looking at about 55 to 60 written submissions. Not all but some of them are fairly detailed and I've already started to prepare the summary of recommendations. I think that I would be in a position to give you a summary of all of the recommendations made to the committee some time next week. I don't know if it would be Tuesday; perhaps Wednesday.
Having said that, there are still a few outstanding requests for information: the information from Manitoba that Mr Tilson requested, information from British Columbia that you requested and the legal opinion on the marginal notes and whether that falls within the record, those kinds of things.
That is going to make it difficult, I think, for the committee in two senses: (1) for me to prepare the information and (2) for the committee to consider it, but there may be ways to get instructions from the committee on perhaps some key issues that the committee wants to consider and then perhaps draft a report on technical aspects that would not involve so much discussion from the committee.
I think it would be hard at this point to prepare all of that information and then to come forward with a document that would allow you to focus discussion around giving instructions, but it depends on how big a report you want it to be. If it's to be anything like the last review of the provincial act, that's not going to be possible in the next week or two weeks even. That took six weeks to write.
Mr Sterling: What's the purpose of meeting, then?
Mr McClelland: I think from a practical point of view, if you recall, early in the week I raised the issue that I think what happened when we did the review in 1991 with respect to the Ontario act was that there was the sentiment that there ought to be some extension, but there was not enough time focused and devoted to it and I think Mr Elston alerted us to that possibility early in the week. I wanted to underscore that.
It seems to me that we might be caught in a situation that I think Norm makes very well, that if we delay it for any length of time we really lose -- I don't want to say any impact, but certainly the benefit of having had the hearings. Therefore, it seems to me that what you have to do is come up with somewhat, if you can, the best of both worlds. Proceed with what we have, do what we can in terms of the issue of health institutions, some of those issues that have been raised, with a very, very strongly worded recommendation saying that we see this as only a preliminary focus or, if you will, open the door on this issue, come back with a request, whether it be now or at a future appropriate time, to do that particular issue, focus the issue in terms of the extension of the purview of the act, the scope of the act, and deal with that in a very comprehensive fashion.
It seems to me that this way you get the best of both worlds because I think that there's a sentiment, not only a sentiment, but some very valid points made that we need to look at the extension of the act. But I don't think that we've addressed that as comprehensively and in the detailed fashion that it requires. To the extent that we can do it next week and get the ball rolling I think we should deal with it as soon as possible rather than later.
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The Chair: If I understand, when the subcommittee met, that was the focus point of what we were put to task to do. The minister had asked us to look at other areas, but I don't think he stated that that had to be written in the report. Those were areas to take a look at, the hospitals and colleges and universities, I think, keeping an open mind of presenters who were coming forward.
This is for discussion between the subcommittee members who were there, if they're in agreement on that. Mr Wessenger, any comments? I'm just opening it up so we've got some discussion here.
Mr Wessenger: I think we should continue to meet next week with respect to dealing with the outstanding matters. Obviously, I think the subcommittee should have a meeting early next week to deal with what additional persons we wish to have scheduled to come to appear before us. I certainly concur with Mr Elston's request with respect to the Health matter and I think we have to just continue proceeding and see what we can accomplish next week. Maybe we can define some of the issues to give some direction to the researcher on where to go from here. How long that's going to take next week, I'm not certain.
Mr Elston: I think we have to sit next week. I think we have to take stock of where we are after Tom comes in on Tuesday obviously to tie that together. Then we can take a look at perhaps where we are with the summaries.
I'm not sure that it wouldn't give some help, for instance, if we had sort of a list, at least an initial list, that we couldn't eliminate some of the areas that we might agree upon fairly quickly and then we could focus our attention on the areas of real concern later on. I'm happy to see what we have on Tuesday to work with, but I think we do have to come back and finish as much as we can.
I'm still intent on discovering what we do with the suggestion, if the children's aid societies, universities and hospitals do fall within our minds as a second question, as Mr Sterling suggests, whether or not we ask anybody to come in and see us. It may very well be that we'll write our report and say, "This is how it's functioning and we recommend that steps now be taken to find out how freedom of information can be made applicable to hospitals," and whatever as our second recommendation, without us actually doing the work, but basically looking at it as a request for the committee to engage in those as thoughts.
That may be as far as we want to take it. In fact, it probably isn't going to allow us, in terms of time, to get into the whole issue itself, but maybe that's enough to finish off the report and get it done and then let people prepare to do what I think has got to be done, at least from my point of view, and that is to try to figure out how we get something done that has been promised for now six years. I think it's been actually an issue that's been ongoing for years and years.
So I think we might very well find a solution to end this sitting of the committee that might allow us to wrap it up and then get on with the second stage of inquiry.
The Chair: That's your idea.
Mr Wiseman: I would agree that we should forge ahead with this. I agree with Mr Sterling and Mr Elston on this one. I think that we'll expedite this. After we hear from Mr Wright on Tuesday, we should have available to us the technical people from the ministry so that we can continue to make sure that we understand what's going on and to forge ahead. That would be my added recommendation, that they be available for us to question and move ahead with on Tuesday.
Mr Sterling: I understand, two presenters and Mr Wright on Tuesday morning.
Clerk of the Committee (Ms Tannis Manikel): It's one joint presentation; it's two people for half an hour.
Mr Sterling: What I would like to do after that time is perhaps the committee could identify the issues which were raised. I think one, of course, is the "frivolous and vexatious" issue, and the application fee issue and the cost issue. Those are three that I can remember. Perhaps at that point in time we could say to our researcher, "Can you go to the briefs, dig out from all of the briefs what everybody said about application fees, what everybody said about fees, what everybody said about `frivolous and vexatious,' and get what the feds are doing and what BC is doing," and that kind of stuff. Then maybe we can come to some conclusions on those things in terms of recommendations while we still have this group here, so when we're meeting in May and talking about this and there are some brand-new people, we don't get into the whole issue again with just brand-new people.
Ms Swift: I hope the summary will do that. I will categorize some of those things and focus some of those issues for you, so you may be able to do it from there.
The committee adjourned at 1636.