REVIEW OF FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT, 1987
FEDERAL EMPLOYERS TRANSPORTATION AND COMMUNICATIONS ORGANIZATION EMPLOYERS' ADVOCACY COUNCIL
REGIONAL MUNICIPALITY OF PEEL POLICE SERVICES BOARD
CONTENTS
Wednesday 30 October 1991
Review of Freedom of Information and Protection of Privacy Act, 1987
Federal Employers Transportation and Communications Organization; Employers' Advocacy Council
Regional Municipality of Peel Police Services Board
Management Board of Cabinet
STANDING COMMITTEE ON THE LEGISLATIVE ASSEMBLY
Chair: Duignan, Noel (Halton North NDP)
Vice-Chair: Vacant
Cooper, Mike (Kitchener-Wilmot NDP)
Frankford, Robert (Scarborough East NDP)
Jamison, Norm (Norfolk NDP)
Marland, Margaret (Mississauga South PC)
Mathyssen, Irene (Middlesex NDP)
McClelland, Carman (Brampton North L)
Morin, Gilles E. (Carleton East L)
O'Neil, Hugh P. (Quinte L)
Owens, Stephen (Scarborough Centre NDP)
Villeneuve, Noble (S-D-G & East Grenville PC)
Substitution: Sutherland, Kimble (Oxford NDP) for Mrs Mathyssen
Clerk: Arnott, Douglas
Staff: McNaught, Andrew, Research Officer, Legislative Research Service
The committee met at 1540 in room 228.
REVIEW OF FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT, 1987
Resuming consideration of a comprehensive review of the Freedom of Information and Protection of Privacy Act, 1987.
The Chair: I call the committee to order.
Mr McClelland: I would like to make a couple of brief remarks. Having seen Mr Cooper's tie, I regret that I am saying this because I want to see more of the same. I understand this is my last day with this committee. As General MacArthur said, "I shall return, all things being equal," if nothing else to visit some old friends in Cincinnati together with Mr Cooper. I just wanted to say thanks, I have enjoyed it. I regret that I am moving elsewhere. Be forewarned, Mr Cooper: I will be back and I like your tie.
Mr Villeneuve: Is this a sabbatical for your leadership run?
Mr McClelland: This is to further my education elsewhere. I just wanted to make those comments before I move on.
Mr Owens: Just a comment from the government side of the committee, we are shocked to hear that Mr McClelland is leaving -- shocked and appalled, as the Globe and Mail would say -- but we have appreciated the contribution Carman has made to the committee, his insights -- all two of them -- the brainstorms that he claims are brainstorms but perhaps are only slight drizzles. We are not pleased that Carman is leaving and I hope that his successor will be as kind to the third party members as Carman has been in showing guidance and leadership.
The Chair: On behalf of all committee members, we are sad to see you go and wish you well because I know you have contributed to the non-partisan air that exists on this committee. Your help and advice have contributed to that. Thank you for all your participation.
FEDERAL EMPLOYERS TRANSPORTATION AND COMMUNICATIONS ORGANIZATION EMPLOYERS' ADVOCACY COUNCIL
The Chair: At this point I would ask the first set of witnesses to come forward. I understand you are from the Federal Employers Transportation and Communications Organization and from the Employers' Advocacy Council. Thank you for coming here this afternoon. If you could each state your name and what position you hold in your organization, please.
Dr Rickwood: My name is Dr Roger Rickwood. I am co-chair of the workers' compensation subcommittee of the Federal Employers Transportation and Communications Organization. I am also a director of health, safety and environmental affairs for Canada Post Corp.
Mr Cryne: My name is Stephen Cryne and I am the executive director of the Employers' Advocacy Council. You have a brief that was prepared rather hurriedly by our office this morning and I do apologize for the error in identifying this committee as the standing committee on resources development. Please excuse my oversight on that.
Dr Rickwood: I have with me two of my colleagues: Charles Sheehan from Canadian Pacific Railways, the general claims agent for this region, and Mr Curtis McDonnell, a solicitor from the Canadian National Railway.
This represents the first time our organization, and for that matter the Employers' Advocacy Council -- Canada Post is a corporate member of the Employers' Advocacy Council as well -- have tried to look at the linkages between the freedom of information act and the Workers' Compensation Act. It has not exactly been a topic that has had a great deal of discussion.
I propose to make some introductory comments and then I think it would be appropriate for Mr Cryne to make his comments, then we could deal with questions collectively, because the subject matter we deal with is the same subject matter essentially.
Our first concern is that the board did not appear. Even though the board submitted a written brief, we would have expected the board to come and make a presentation to this body in support of its brief because we think that would help in the process of getting the issues out and discussed. That is a concern we have. The federal employers' group does not take any particular position on the Workers' Compensation Board brief. It stands for itself. I understand Mr Cryne, however, probably will deal with certain aspects of the board brief.
On behalf of the federal employers, we first of all are in a unique situation in that for some purposes we fall under provincial legislation and for other purposes we fall under federal privacy legislation. Exactly where the boundary is has never really been determined by any court. To some extent, we are not sure what all the impacts might be on us as federal employers.
What I wanted to do today was talk about some concerns we have and overall goals that we think should be looked at or at least taken into account by the committee in doing its review. We understand you are mandated by statute to review the act to see how it has been performing and whether any amendments should be made to make sure it works better and that there are no abuses.
We have some concern, as employers, that information we supply in trust to the compensation board may be accessed by third parties and used for purposes other than what is originally intended. This is dealt with in the board brief and it is also dealt with in Mr Cryne's brief.
We wish to assert the principle that information we supply to the board should stay with the board and should not be taken out and used in any way that could individually identify a particular company. It should be used only in a generic way for general statistical purposes, because that is the way we understand the material is given to the board. That is the first principle we want to put before you.
The second principle comes from a concern -- and we have heard rumours but we have not been able to track them down in any specific way -- that there is a proposal to amend the act or at least have the act interpreted in a way that would make it much more difficult for employers to get information under section 77 of the Workers' Compensation Act, and that there would be an additional stage of review required by the privacy act before we could get access to information through section 77. When there is a question in the file, we request, through section 77, access to the administrative file and the medical file of the worker. The worker, if he has any objections, can indicate so and that matter is taken to the Workers' Compensation Appeals Tribunal and the tribunal decides whether the information can be released or not. We think the present provisions under the Workers' Compensation Act are sufficient to maintain the privacy and the appropriate use of the information, and we do not see any need for additional control.
What has reached our ears is a concern that rather than be treated as clients of the Workers' Compensation Board we might be treated in a third-party situation and be put through a more extended process by which we would have to require information which we need to deal with files that we may find doubtful. For us, getting access to information quickly is very important in trying to get workers who are injured back to work in a modified-duties type of situation, so anything that inhibits our getting information quickly could delay the speedy return to work of the person and the appropriate kind of rehabilitation and treatment.
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Also, as employers, we are not interested in challenging every claim. There is some view that employers go around challenging everything. If we can get adequate information that shows the case is a legitimate and well-founded claim, then we have no problems with it and we will allow the board to continue processing and handling the claim.
Often, however, we are in a doubtful situation. We do not know the dimension of the claim and, for that reason, the present procedures under the compensation act appear to be working adequately. We do not know of any abuse and over the years we have had an opportunity to read the various section 77 applications that have been made and have gone on appeal to the Workers' Compensation Appeals Tribunal, and we think that the tribunal has handled those issues in a satisfactory manner. Sometimes the employer is successful, sometimes the employer is not, but we have confidence in the appeals tribunal in discharging that duty to the public of Ontario, ensuring that information is only provided when there is a just and adequate need for that information. So I guess we are here seeking you to scrutinize any kind of application that might be made to you to change that provision, because we do not feel that is appropriate.
Those, in general, are the comments the federal employers' group would like to make. What I propose to do is let my colleague from the Employers' Advocacy Council, Mr Stephen Cryne, make his comments, and then if we can be of assistance in answering any questions or providing you with any further information you would like, we would endeavour to do so. We realize this is not one of the topics that probably gets a lot of discussion or a lot of scrutiny, but we think it is an important matter and we as employers want to play a larger role in looking at the linkages between the Freedom of Information and Protection of Privacy Act and the Workers' Compensation Act, to make sure that most statutes work well and the interests of the public in Ontario are well served.
Perhaps I should describe the federal employers' group before I close. We represent 19 companies across Canada, with some 200,000 employees in the province of Ontario. The major transportation and communications companies -- Canadian Broadcasting Corp, Canadian National, Canadian Pacific, Air Canada, Canadian Airlines, Bell Canada -- are the companies we represent, and as major employers we try to see that appropriate programs are in place to get our injured workers back to work. We would like to see that this is done in the fairest and most timely fashion possible.
Mr Cryne: By way of introduction, the Employers' Advocacy Council is a volunteer non-profit organization of employers across Ontario. We have been incorporated since 1986 and currently over 1,500 members belong to our organization. Our objectives are relatively straightforward, and those are to effect constructive change to the Ontario workers' compensation system, to lobby on behalf of employers before both the board and the government on major policy issues, and to educate employers on all aspects of workers' compensation.
Echoing the comments of Dr Rickwood this afternoon, it is important that we look at the interaction between various pieces of legislation and the impact they may have upon the Workers' Compensation Act. The changes to other pieces of legislation could have significant impact upon the way with which the employer community is dealt with under the Workers' Compensation Act.
I would like to echo the comments on section 77, which deals with the access to information under the Workers' Compensation Act. The present situation works relatively well. The procedures that have been developed by the board are relatively well entrenched within the system now. They are well understood within all of the communities and they are relatively well followed for the most part.
The Freedom of Information and Protection of Privacy Act impacts upon the information collected and maintained by the board. Much of this information surrounds not only the individual claimant histories that are gathered by the board, which includes the medical information, etc, but also business information that is received from employers. This information includes financial information, business activity and staffing levels, and much of that information is provided to the board in accordance with subsection 97(1) of the Workers' Compensation Act.
We are concerned that the confidentiality of this information is maintained and that it is not released to competitors in the business community. We understand that section 17 of FIPPA may be interpreted in such a manner that would not extend the exemptions set out in that section to the financial information supplied to the board by employers. We believe this exemption ought to be extended to that employer information collected by the board in the normal course of business. It is our opinion that FIPPA was not intended to require such disclosure.
In addition, disclosures would serve no public interest, as the board itself provides, to groups that may require it, certain statistical data such as accident trends, total claims, the employer base and the payroll base of certain industries; all of that information is made available by the board upon request. Any requests for specific firm information, however, would likely be made by individuals seeking to gain benefit from the release of such information.
There have been several requests made for information from the Workers' Compensation Board, and one instance of that was a listing of firms that were subject to certain penalties under the Worker's Compensation Act. It was felt by many in the employer community that this request was made for business purposes by a consultant, to go out and seek business from those firms that were presently under penalty situations with the WCB.
In reviewing the exemption criteria in section 17 and section 21, names and addresses are supplied to the WCB on specific registration forms, which must be completed by all employers who fall under the jurisdiction of the Ontario Workers' Compensation Act. This is commercial information, and meets the first part of section 17.
The information supplied to the board by employers upon registration with the board is supplied on WCB form 0944A; there is a copy of that appended to the submission I gave you. The registration form requires the employer to disclose information about the firm: its location; its Revenue Canada employer number; the total number of employees it has; senior management information, including social insurance numbers and home addresses of those officers; business references, and other activity including banking.
The firm registration form provided to the board explicitly states that all information is strictly confidential. It is clear that the intention of the board is not to release this information and that such release would only prejudice the individual employer. Employers filing such information with the board do so with this written, explicit guarantee in mind. To permit the release of such information would seriously undermine the openness with which employers supply this information to the board and disturb the relationship of trust that exists between the employer community and the board on this matter.
Under the provisions of section 21, disclosure of personal information is exempt. In our submission, corporate information can be construed as personal information. Indeed, much of the information that is provided on the firm registration form is of a personal nature. Names, addresses and social insurance numbers of officers, references and banking information are all examples of personal information.
In the Interpretation Act, the word "person" includes a corporation in every act unless the context requires otherwise. In our respectful submission, corporations ought to be afforded the same protection as individuals in requiring release of information from the Workers' Compensation Board. In that regard, we support the submissions of the Workers' Compensation Board to this committee, which were approved by the board of directors of the WCB at its meeting on July 5, 1991.
In conclusion, we would like to ensure that the present access guidelines that exist within the Workers' Compensation Board are maintained. You have heard from myself and Dr Rickwood this afternoon that those procedures work relatively well, and we do not see any sense in changing them at this point. Thank you for your consideration.
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Mr Owens: Thank you for your presentation this afternoon. I guess it gives me cause for concern. I am wondering how you have heard that we may be thinking about this, or is this a hypothetical possibility that you raised here today? I have not heard of any plan to change legislation to allow this kind of information to be released. I can understand why people would want statistical information with respect to looking at accident trends, but in terms of the kinds of information that would be on the forms you have described, I see no need to release that information to the greater world. I realize that is not exactly a question, but I am just wondering how you came to present this as a concern. Has somebody told you that we are thinking about doing this?
Mr Cryne: There have been requests made under the provisions of the legislation, and there have been some arguments raised. In fact, our organization has a brief -- I can leave that with the clerk of the committee -- where we actually responded to a request where a consultant was trying to gain access to firm information. There was a legal debate as to whether or not that information ought to be released. That is the purpose of our bringing this issue forward. If you are referring to the amendments that we are contemplating under section 77 of the Workers' Compensation Act, then that is a different beast.
Mr Frankford: On page 2, about the board providing certain statistical information to groups which may require it, do you know the criteria? Can any group request this or do they ask that you show some reasonable interest in it?
Mr Cryne: It is not information about a specific firm. It would be more if I were the chair of a major trade association and I was interested in the performance of our association and the number of accidents that our association had encountered within the Workers' Compensation Board, to try to equate that perhaps to our assessment rates. Then I would be well within my rights to go forward to the Workers' Compensation Board and request that information, and in all likelihood it would release it.
Mr Frankford: I would just like to clarify what I am asking, and I will perhaps start by describing something which we had brought to us last week by the Ontario Cancer Registry. They register all individual cancer patients, so they have a great store of stuff, but potentially this is a valuable research resource. What we were given to understand is that they really control who researches it. You have to come forward and make your case as to why you should be doing that research. Just seeing here what you say about the board, I am wondering whether a similar thing occurs, that you have to show the agency, as a sort of gatekeeper of the information, or if they say, "Anyone who wants it can come forward and get that aggregate data." Maybe this is not your area.
Mr Cryne: I think the board ought to be, as you phrase it, the gatekeeper of the information that is maintained there. The board has specific guidelines it utilizes in terms of the information it divulges. Information of a personal nature or upon which a claimant would bring forward a claim to the Workers' Compensation Board -- there are provisions within the act which allow for that disclosure under certain conditions. There is no requirement upon the board to disclose information about a particular firm.
Mr Frankford: If a muck-raking journalist wanted to prove there was a high incidence of something in some particular industry, should that person have a citizen's right to go and ask for it, or should the Employers' Advocacy Council and the board have to recognize why he is asking that question?
Mr Cryne I do not see why the board would choose to restrict that information, and indeed they do not, because they do make information public about the incidence of certain types of injuries and disablements that occur within the workers' compensation system. That information is made available.
Mr McClelland: First of all, grant me a personal indulgence to welcome a former law school colleague, Dr Rickwood, to the committee this afternoon.
I would be interested in hearing Mr Frank White's comments with respect to the concerns raised by Dr Rickwood about the potential implications of section 77, if anything is coming out of that that you are aware of. This might help us.
Mr White: I am not familiar with that. You would have to get somebody from the Workers' Compensation Board here.
Mr McClelland: Okay. I just wondered if you had happened across this. I do not have anything further.
The Chair: Thank you gentlemen for coming this afternoon.
Dr Rickwood: I would like to thank your clerk, Mr Doug Arnott, for the co-operation he and his staff gave to us in facilitating the attendance here today by both our groups. He did an excellent job and the staff did as well.
The Chair: Thank you for those kind comments. We will make sure both your organizations get a copy of the committee's report and recommendations on tabling in the House in December.
REGIONAL MUNICIPALITY OF PEEL POLICE SERVICES BOARD
The Chair: At this time, I would like to call upon the witnesses from the Regional Municipality of Peel Police Services Board. Thank you, gentlemen, for coming here this afternoon. If you could both state your names and positions you hold within the organization, you have up to a half an hour to make a presentation.
Mr Obradovich I am Miles Obradovich, chair of the Regional Municipality of Peel Police Services Board.
Mr Turnbull: I am Inspector Barry Turnbull, the freedom of information co-ordinator for the Peel Regional Police.
Mr Obradovich I will begin the presentation with just a few brief remarks. Inspector Turnbull will address you with the technical concerns that we have regarding the legislation.
We thank you for the opportunity to address you in respect to those provisions of the act that are identical or very similar to the Municipal Freedom of Information and Protection of Privacy Act, because we strongly feel there are some improvements that can be made to the act. We felt that in the interest of time for the committee, while you are considering these policy matters in respect to the provincial act, there would be no reason not to deal also with the municipal act at the same time. We understand this is the basis on which we were permitted to come today.
The concern we have with the act relates in part to the cost that must be borne by the municipality in complying with certain requests for information, requests which we think are not justsified by overriding policy considerations.
We approached the act very seriously at our board and provided the service with the resources that would be required to adhere to both the letter and the spirit of the law. Those resources, in terms of setting up the bureau, are in excess of $100,000 per annum. They are actually almost double that at the outset, but we believe those costs will come down as we sharpen our ability to deal with it. But the act does require us to take into account a number of exceptions which are set out in sections 6 through 13, and as a result, we require more than just one person to review the request and the information that is available before releasing any of the information.
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By the nature of our organization, we feel we cannot go at it half-heartedly. We have to be certain that we are right in providing information or denying it, and by the nature of some of these records, the protection of personal privacy is also very important and perhaps requires more time than other institutions may be required to expend on this subject.
It is also my understanding that the Management Board of Cabinet has received a statistical report covering the municipal experience with the act, and that this report parallels the experience in our jurisdiction. In our jurisdiction we have been able to collect this year to date only $38.80 in fees, based on the tariff. We understand that province-wide, $6,000 has been collected in fees from approximately 2,000 requests, which averages $3 per request and does not reflect the true cost of the service involved.
It is our submission that this great degree of inequity -- which it is when we have to expend over $100,000 to maintain this office -- should be addressed by achieving a better balance between the cost of providing the information and recovery from the party requesting the information.
Prior to my asking Inspector Turnbull to speak, I would like to address the one reason most often given against increasing costs to requesters for information. It is argued that quasi-governmental agencies should be open and accessible in their deliberation, as it is those decisions that affect the populace that these bodies represent, and that these should not be made in private or unreasonably withheld from scrutiny.
In the Police Services Act, there is provision made with respect to actions and decisions of the board, and there is a very narrow exception as to what matters may be considered in-camera by the board and what matters must be dealt with in public. The great majority of items to be discussed by the board are to be on the regular agenda and not to be held in-camera. We had instituted such a policy, actually, even before the Police Services Act was put forward in the form of a bill, and we are presently also revising our policy in that respect to fine-tune it.
We think that because of the nature of that act with respect to police services, there is greater access by the public to the board than there was in the past, and policy interests can be served through access directly to the board.
Other requests for information generally fall within the category of requests for personal information or information that is pertinent only to the applicant. We think, in that respect, that the cost could be borne a little bit more by the applicant. We have had, actually, one request recently by a convicted murderer for information that could only be pertinent to this person, and we find, unavoidably, that the cost of servicing this request has been borne by all the taxpayers in the region. We know, in respect to smaller police services and municipalities, that they are facing the same problem, and with respect to some of the police services, the cost of providing information may turn out to be overwhelming in some cases. There is a well-known incident that I think the committee would be aware of, involving a request from Penetanguishene that is completely overburdening one of the smaller forces.
So that, in a nutshell, is our concern. I would ask Inspector Turnbull to address certain specific recommendations that we would make.
Mr Turnbull: Good afternoon, ladies and gentlemen. I am the information and privacy co-ordinator for the Peel Regional Police. I have also been the chairman of the Ontario Association of Chiefs of Police freedom of information subcommittee for the past two years, and a member of the subcommittee since 1988.
The Peel Regional Police has established a three-person bureau to handle access requests and appeals and to ensure compliance with the Municipal Freedom of Information and Protection of Privacy Act. So far this year we have handled 46 access requests, of which 28 have been for the personal information of the requester. We have also informally resolved two appeals with the Information and Privacy Commissioner's mediators. As you heard previously, we have only been able to collect $38.80 in fees. Incidentally, that is not quite correct. We have charged somebody $38.80 in fees. We expect to collect it, but they could apply for a waiver.
My comments to you today are made after having gained some experience working with the legislation, although certainly not as much as my counterparts in the provincial ministries. As Mr Obradovich stated, I will be recommending specific changes to the legislation with respect to the charging of fees that would be relevant to all institutions provincially and municipally and to several concerns that are rather specific to police.
With respect to the charging of fees, I would like to point out that a mechanism is in place within the legislation that requires the head of an institution to waive the payment of fees under certain circumstances where it is fair and equitable to do so. Several circumstances are outlined in the act. These include financial hardship for the requester, whether disclosure will benefit the public health or safety, or any other matter prescribed in the regulations. As you can see, anything can be determined as a reason for waiver. As well, if a requester is denied a waiver of fees by the head, the requester may appeal this decision to the Information and Privacy Commissioner.
This brings me to my recommendations concerning fees.
Recommendation 1: that the legislation be amended to permit the charging of fees for responding to any access request. The fee structure as it is currently set up precludes us from charging individuals who want to access their own personal information. This should be changed, in my view. Individuals who want to obtain copies of records that contain information about themselves should have to pay all reasonable costs associated with fulfilling their requests. By submitting an access request under this legislation, they are utilizing and mobilizing public resources for their own private needs. The general public, in my view, should not have to foot this bill.
Recommendation 2: that the legislation be amended to permit charging a fee for all manual search time. Currently the first two hours of search time for general records is free. Why? Why should anyone expect anything for free? Of 27 access requests in the first six months of this year, we had 18 for personal information -- no charge for anything. Of the remaining nine, in only two cases was the search time in excess of two hours. One of these was withdrawn by the requester and the other was due to improper storage within our organization, so we waived the fee. In 22 of 27 cases, the information was located in less than 60 minutes. That pretty well negates charging for search time in our organization.
Recommendation 3: that the legislation be amended to permit the charging of fees for all reasonable costs for preparing the record for disclosure. In former commissioner Linden's order 4, in relation to the Municipal Freedom of Information and Protection of Privacy Act, he ruled without any explanation that no fee should be charged for the time spent reviewing a record to determine what portions can be released. This is the most onerous and time-consuming task in the whole process. Due to the nature of law enforcement records and the possible consequences of an inappropriate disclosure, we have two people review all records. This takes a considerable amount of time. We have been fortunate in our organization so far that our largest access request has only involved 597 pages. Other police services have not been so fortunate. One recently dealt with a request that involved 11 banker's boxes of documents, and another had a request for all records pertaining to a homicide investigation. These records filled two complete vans.
Recommendation 4: that the regulation establishing the fee structure be amended to provide for annual fee adjustments. This is simply needed to protect institutions from the effects of inflation and to ensure that fees, when charged, are meaningful.
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Recommendation 5: that the legislation be amended to provide institutions with protection from frivolous or vexatious requests and those that abuse the right of access. We support Bill 120, which was introduced to the Legislature on June 6, 1991, by Mr McLean, the member for Simcoe East. We share his concern that presently individuals can flood provincial and municipal institutions with access requests. One inmate of a psychiatric hospital has submitted over 1,000 access requests to institutions, while others have repeatedly become nuisances. Without some protection in this area, institutions could be inundated with requests made for frivolous reasons. Where would we be if every crime victim submitted a request for his police occurrence report? How effective would we be at protecting the public if a number of people were to submit multiple access requests, causing us to divert our resources from other functions in order to comply with the 30-day time frame allowed for response?
The Quebec legislature saw fit to address this issue in An Act respecting Access to documents held by public bodies and the Protection of personal information. In section 126, it says:
"The commission may, on request, authorize a public body to disregard requests that are obviously improper because of their repetitious or systematic nature.
"The same rule applies if, in the opinion of the commission, the requests are made for purposes not in accordance with the objects of this act in respect of the protection of personal information."
Another way to offer some protection to institutions, at least against the idly curious and repetitious requester, would be to establish a deposit or application fee. This would be submitted along with the access request to cover the initial cost of the search and assembly and analysis of the records in order to determine a proper fee estimate.
At present, when an access request is submitted, the institution must gather the records, make a determination with respect to what portion may be released, or choose a representative sampling if it is a rather large record, and develop a cost estimate, which may then result in the requester withdrawing the request after all that work has been done. If the request is withdrawn, there is no remuneration for the resources already expended. If the waiver is granted, then no fee can be charged, and if the deposit is paid, it still does not represent anything close to the real costs associated with administering this legislation.
Under the federal Access to Information Act, a deposit is required to accompany the access request. I believe it is set at $5, and section 11 of the legislation indicates that it is not to exceed $25.
As I outlined at the beginning, a process for waiving fees is already contained in the legislation. If a deposit were to be required to accompany an access request, then I would see the waiver application becoming part of the access request form, and if claimed, it would be the first issue to be addressed by the head.
To summarize, I am suggesting that the users of the legislation should expect to pay for the service they receive, no matter what information they are requesting; that a deposit should accompany the access request; and that in calculating the fee estimate, the institutions should be able to include all reasonable costs associated with handling the request, including all search and review time.
At this point I would like to repeat some specific concerns that police have with this legislation.
Recommendation 6: that the legislation be amended to remove the requirement that severability of a record be considered for certain law enforcement records and records where the disclosure could seriously threaten the safety or health of an individual.
The law enforcement exemptions I have listed deal with protecting the safety of individuals, ensuring their right to a fair trial, and revealing intelligence information. The concern with the severing process applying to these types of information is that it is a manual process and therefore is subject to human error. An error made in the release of certain types of information could have life-threatening consequences. No comfort should be taken from the fact that, to our knowledge, no such situation has yet occurred.
Recommendation 7: that the legislation be amended to exempt a law enforcement institution from the requirement to transfer an access request to another law enforcement institution and notify the requester of that transfer.
By transferring an access request and notifying the requester, we are telling the requester that the other institution possesses the record being sought. In my view this contradicts the intentions of subsection 14(3) of the FIPPA and subsection 8(3) of the municipal FIPPA, which are supposed to give law enforcement officials the option to refuse to confirm or deny the existence of a record to which a law enforcement exemption applies.
Recommendation 8: That the legislation require all staff at the Information and Privacy Commission to be security-cleared to the level of a police officer. This would require thorough background checks, fingerprint searches and name checks on each person employed there. Since law enforcement information is generally considered to be sensitive, it is natural that we consider intelligence information, drug information, and certain criminal investigations to be extra sensitive.
The potential for harm arising from an inadvertent or deliberate leak of these types of information is our concern. The more people who have access to information, the less secure the information becomes. If we must allow staff members from the Information and Privacy Commissioner's office access to law enforcement records, we should at least be able to ensure they do not have a criminal record or a connection to organized crime that would jeopardize the security of the information.
In conclusion, I suggest that in reviewing this legislation and all the recommendations that have been placed before this committee today and before today, you consider just what proportion of the population of this province is making use of these acts and whether the costs associated with the use should be borne by all taxpayers or by those few users.
In addition, I encourage you to give consideration to the specific police concerns I have outlined, which are designed to reduce the risk of an information leak that could result in serious injury or death.
Mr Owens: I would like to thank you for your presentation. I have to state that you are the first group coming forward that has actually asked for fees to be put in place and/or increased. Most of the other presentations we have heard have found that the fees that have been suggested would be too onerous for people to continue the search and they have abandoned the search for information.
I hear what you are saying about the issue of the frivolous request coming from the Ministry of Correctional Services. This perhaps was part of residents' therapeutic programs to make requests through the freedom of information and privacy branch, and I guess we should consider all types of rehabilitation and therapy as being valid.
While there are provisions in the act with respect to waiving fees, in terms of a deposit, do you have any idea of the kind of numbers that you would be looking at? My main concern is that we, as taxpayers, already pay for police services to be provided and would be double-paying for that service if the kinds of fees you are suggesting were put in place. I would be concerned that for Joe Q. Public out there who wanted, for whatever reason, to see what kind of information the police had on him, it would act as a deterrent.
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Mr Turnbull: Mr Owens, at present there is a fee structure for certain kinds of law enforcement reports to be released. Normally we get requests from insurance companies for copies of police occurrence reports. We do not actually give them the law enforcement report that was put together at the time of the investigation. What we do is give them a synopsis of the facts. Really all they want to confirm is the fact that, yes, it was reported to the police and, yes, certain articles were reported as being lost or stolen. On that basis the insurance company will settle the claim.
I think the fee charged for that kind of document is about $15. It seems odd to me that we might be expected to provide a far more in-depth report to the actual reporter, the individual who is the victim, at absolutely no cost. They are paying for the service through their tax dollars to have a police officer come and investigate a crime against them. They are not paying in the first place to get a copy of that report.
Mr Owens: In terms of the insurance companies, you make a good point that it should be part of the settlement, that if the insurance company requires the police report it should be a part of the premium I pay to the insurance company. That should not be an issue.
I am not quite sure who would be calling the police department to ask for information on themselves and what types of requests you would actually get. You mentioned two that sound like very peculiar cases where people have had maybe less than honourable intent in trying to obtain the information. What kinds of people are contacting you folks? What sort of information are they asking for?
Mr Turnbull: Most of the personal information requests come from either employees, former employees or criminals serving time. The access requests for general information have come from members of the community who have been interested in particular statistical information. One that readily comes to mind was somebody who wanted all the salary scales for every employee in the region of Peel, the city of Brampton, the Peel Regional Police, the school boards and everything. We do not know why. We thought perhaps it was in preparation for the upcoming elections that this information was thought to be valid, but we provided that without too much problem.
Mr Frankford: Could you say a bit more about statistical and aggregates data? What can one reasonably expect and how much work is involved for you?
Mr Turnbull: Are you asking me what the average size of an access request is? The number of access requests do not mean a thing.
Mr Frankford: I will be more specific. Presumably one of the things of considerable interest around police activity is crime statistics. Could I go to you and get them or could other members of the public, and how much work is involved?
Mr Turnbull: Crime statistics are produced annually and are readily available to the public. They are submitted to the police services board in the form of a formal statistical report and they are reported in the media at great length.
Mr Frankford: If someone wanted to be more specific and say, "Okay, give me this particular type of crime in these apartment buildings" --
Mr Obradovich: I will give you an example of something that does not quite parallel that. As well as the annual report on crime, statistics that are produced for the purposes of Statistics Canada, we have our own internal statistical survey which we call status line and which in fact is filed at every regular monthly meeting on the board agenda and is available to the public. It breaks down the incidents in the region and by division according to category, whether it is an assault or bodily harm or sexual assault, and also motor vehicle offences and all that. That is run off the computer and is readily available.
One of our members inquired two months ago concerning incidents of violence in the school system. In our region we police schools a little bit differently in each division and there is a different method using school days and officers. We were interested to know what effect that program had on incidents. So we asked for a breakdown of the incidents by area according to the time prior to the introduction of the school liaison program and afterwards. In some instances that information could not be extracted. We were able to get the incidents according to the schools themselves, on-site, for the whole region globally. It required two days to produce 38 incidents, and it required someone to work two days full-time on that. That gives you an idea of the scope of time that would be required.
Mr Frankford: And the request was from an interested citizen?
Mr Obradovich: No. It was from ourselves, from the board. We had been looking at the issue of violence in the schools to determine the extent of the problem and what resources we should commit to that. Even on our own initiative that is the length of time it took.
Mr Frankford: Under present legislation an interested citizen would have the right to do the same thing.
Mr Obradovich: That is right. We would then have to commit an officer to work on this for two days when we are being pressed in other areas.
Mr McClelland: It is good to have you here from Peel. I would not want you to think, since I am known to drive my sports car a little too fast from time to time, that I am trying to flatter anybody from the Peel Regional Police.
Inspector Turnbull, on a very serious note, you raised two points that I would like to ask you to expand on somewhat. They are contained on pages 5 and 6 of your brief, recommendations 6 and 7. With respect to recommendation 6 and your concluding remarks that appear at the top of page 6, I think I would like to qualify them somewhat. I think it is a recommendation that this committee needs to look at very seriously.
I would like to remind each of us that the member for Carleton, Mr Sterling, a member of the Progressive Conservative Party, submitted evidence from the United States that indicated there were individuals who had, quite literally, used freedom of information legislation that somewhat parallels in many respects our legislation, to obtain information that subsequently resulted in -- if I can use the vernacular -- hits on individuals. Information was obtained and the contracts were put out for the murder of individuals whose names were obtained as informants and sources for police information. So I remind us of that. It is a very serious matter that has to be considered and not looked at lightly. I will leave that for comment if you wish. You may not want to comment any further but I just remind us of that.
Recommendation 7: I would like you to help me with that a little bit. I was not aware of the implications in terms of the apparent conflict that you set out here. Can you just give some meat to that to help us with the difficulties it presents to you as a law enforcement agency in working with other agencies in, I would imagine, such things as criminal investigation units particularly?
Mr Turnbull: Sure. The act requires that if someone submits an access request to our institution for records that we readily identify as belonging to the OPP, for example, or Metropolitan Toronto Police, we forward the access request to that institution and notify the requester that we have done so.
The difficulty I have with that is that by doing so we are telling the requester that the police force has in fact got the records that deal with you. The people who put this legislation together for very good reasons felt that law enforcement agencies should have the right to refuse to confirm or deny the existence of the record at all, if the entire record would fall under the law enforcement exemption. We feel that subsections 25(1) and 18(2) of the two acts contradict the purpose of the other subsection.
How can I elaborate on that? I suppose what we could do is deny that we know that the records are in fact Metro Toronto's and send the request back, but that is certainly not responding within the spirit of the legislation as it has been written. We, in law enforcement, I think have bent over backwards to embrace this legislation as best we can and to deal with it in an upfront manner. Police officers are like that.
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Mr McClelland: In your professional opinion, with your experience on the police force, does that potentially from time to time compromise investigations that are under way?
Mr Turnbull: It certainly could if there were investigations ongoing which would be brought to the attention of the requester.
Mr McClelland: In a case like that, is there no provision that you can sever that information and say there is nothing available at present? In so doing, are you tipping your hand, so to speak, in saying there is nothing available?
Mr Turnbull: We cannot sever what is not ours.
Mr McClelland: So it is a catch-22 you are in with that specific situation.
Mr Turnbull: Yes.
Mr McClelland: I want to ask one other question. I think it might more appropriately go to Mr Obradovich, the chair. We have known each other for some time, Miles. We chat from time to time, and I know of your involvement in the community. I am going to put a question to you that I would like some assistance on and I think my colleagues would as well.
I understand the difficulty police forces have in conducting investigations and the need to have strict control on their own investigations at times. I would like you to respond, because you, as chairman, represent the community and one of the -- I am not saying this in a patronizing sense -- more progressive police forces in the province. It is about balancing the need to have an investigation and to have unfettered rights, if you will, of the police officer to do his or her job as best he or she can, with the right to know. There are classic examples and very compelling cases where law enforcement agencies have refused to let information be known to members of the media, and I use that in the generic sense of the right to know.
I ask you, as chair of the police services board in Peel, what your reflection is on the right of the citizens to know, for example in the cases which have been brought to the attention of our friend from Mississauga South, cases with respect to serial rapists. There is the risk to women in particular communities and neighbourhoods when that happens, and which must be balanced against what the police officers say: "We can't let that information out; it's going to jeopardize our investigation." That example is perhaps among the more compelling anyone could give of the right of women in a given community or neighbourhood to know there is a problem and to take extra precautions. How do you respond to that? It is a dilemma. I do not think any of us has the wisdom of Solomon and we would like your assistance on that. Indeed, that is your job too, bridging the community and police in Peel.
Mr Obradovich: I think that is the responsibility of the police service, to ensure that the public is aware of those matters that affect their safety. We know there was a case recently that arose because of the action of the Toronto police force, which has resulted in a suit being permitted to go forward against Metropolitan Toronto regarding the failure of that force to provide information to a certain neighbourhood about criminal activity that resulted in a rape.
We recently had an incident in Mississauga where a lady was murdered, and our chief of police went down to the apartment building and addressed all the residents of the neighbourhood on the issue and advised them about certain facts that would be important to them.
I think that responsibility is in some ways best discharged by the service according to local needs, as opposed to their being told to react in a certain way automatically; and the onus should not be on each citizen to apply to the service for information, because you would have 250 requests all to be filled at the same time.
Our concern is in a lot of respects with the frivolous requests. You could have, for example, an author who wants research material and can submit requests that would take half a year to fulfil so that he could complete his work. According to the act, if there are no exemptions for the information sought, it would have to be provided.
You have to remember that police services are allowed so many personnel. We submit a budget requisition, and based on that budget requisition we have so many people. We have to fulfil that request with the resources we have, which means we have to take personnel away from some other task or activity to service that. We do not have the option of going out halfway through the year and adding an extra body over and above our complement. I think that is where the concern of the public would be greatest, the impact that may have. In Peel we may be able to adjust. We have been fortunate enough to have not yet been hit with the big request, but it is a problem that can impact on the smaller force quite radically.
Mr McClelland: I appreciate that, but I see a real problem that still has to be addressed with some sort of protocol or some direction from the provincial government. I will state it very plainly. We have a good police chief. We have Chief Lunney, who is a very competent, able man. Whatever man or woman succeeds him I trust will be equally competent. He or she may or may not be, may or may not exercise the same kind of judgement. You, sir, and your colleagues on the board do a good job. That may not always be the case.
That is the problem. I am not taking issue with the conduct of the Peel Regional Police force; I am talking about something that really has to be addressed by this committee and police forces across the province, because surely it is not sufficient to say that we leave it to the good judgement of the chief of police, whoever he or she is, or the policy as established by the local police services board. The right of the citizens to know, in given situations and oft-times through the vehicle of the local media, surely must remain in place.
It is easy to sit back and say what needs to be done. I do not know where that balance is, but I think that is fundamental for those of us who are charged with the responsibility of dealing with this legislation to ensure that it happens, at the same time doing it in a way that does not erode the integrity of the operation of police, which is equally important for the wellbeing of the citizens of this province.
Mr Obradovich: Okay, right on that point, I would submit that where you are dealing with items of a timely operational nature, which the public needs to know in a timely way, and not waiting while certain requests are filtered through because they impact immediately, and you are concerned about inconsistency of application or approach by different police services across the province, in that case the problem is better cured by directives issued by the Solicitor General's office and the Ontario Police Commission on those points, as opposed to asking this act, which is really struck for some other purpose, to fulfil those needs. It will not work well if you want to protect those people who need to know what is going on in their community in a timely way about ongoing criminal activity. This deals more with historical situations.
Mr McClelland: We have had 10 months now at the municipal level in the application of the act. Are you satisfied, as chairman of the Peel police services board, that there is some consistency in terms of application? Has direction been forthcoming from the Solicitor General's office that is sufficient for police? I will not talk about police forces across the province, because you cannot comment on that. Are you satisfied with the direction that has come out of the Solicitor General's office to assist Peel Regional Police to deal with how they respond to requests for information from either citizens and/or the media? Has that direction been forthcoming?
Mr Obradovich: Not to my knowledge. I know we have had direction on release of information relating to police pursuits and there have been directions regarding the retention of information and the use of weaponry, but there has not been any, to my knowledge -- Inspector Turnbull may know more -- regarding release of information to the public about ongoing criminal investigations that may impact on the public.
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Mr Turnbull: To answer your question, sir, there has been no leadership provided by the Solicitor General's office on that particular point as a sort of stand-alone direction. What has occurred is that the Solicitor General's office has provided the Ontario Association of Chiefs of Police freedom of information subcommittee with two advisers, one from the Solicitor General's FOI office and one from the policing services division, who have worked with us to develop a consistent police response to this legislation across the province. These people have been with us since the very beginning and have been of tremendous help in training police officers and police services board members across the province.
Members of our committee and those advisers also participated with Management Board and the Information and Privacy Commissioner's office to develop guidelines for police services on the release of information to the media or to anybody. Those guidelines are in writing and were distributed province-wide through the policing services division to all police forces. Some forces may have looked at those guidelines and chosen to go off on a little bit of a tangent from them; that was their decision to make, but the guidelines were distributed through the policing services division.
Mr Owens: I appreciate Mr McClelland raising the issue with respect to the release of information. It is an issue that I have struggled with in terms of the need to know versus the potential compromising of an ongoing investigation. I am not all that comfortable with leaving it up to local services to provide the information. I am wondering if you have any thoughts around perhaps defining through regulation some guidelines as to when information could be released to the media. For instance, I do not think my neighbourhood needs to know that there is an ongoing drug investigation happening, but I think they would probably want to know if there was a serial rapist on the loose. Coming from Scarborough, we already have that situation and that person has yet to be apprehended. Would that perhaps be a way of getting around that? It is a sticky problem, there is no doubt about it.
Mr Turnbull: We are talking about two different things. On the one hand, you seem to be talking about personal information. You know, should we be saying to people in the community that we are investigating the family that lives in that house, or should we be saying to the community, "We're looking for a suspected rapist described as male, white, five foot 10 inches, 180 pounds, with long, dirty hair, and here is a composite drawing of what we think he looks like"? They are two totally different things.
I think the act makes it very clear -- I only have the municipal version with me -- in subsection 5(1) that there is an obligation to disclose information to the public where there are reasonable and probable grounds that it is in the public interest to do so or where the record would reveal a grave environmental, health or safety hazard to the public. Certainly if we identify that there is a serial rapist on the loose and we make the connection that the crimes are in fact connected, then there is an obligation under that section of this legislation, in my view, to identify that situation to the public. If it compromises the investigation and lowers our chances of apprehending the individual, then so be it. On the other hand, it may very well protect some other individuals from becoming victims.
Mr Obradovich: That is one of the overriding purposes of the Police Services Act, the prevention of crime. It is really within the purview of the Solicitor General's office to set policing standards in the province and it is through that act there exists a mechanism for enforcement of those standards.
Mr Owens: Just a quick question to Mr Frank White: In terms of the current security requirements, are there any? What are they?
Mr White: Perhaps I could answer that after the minister makes his remarks following this presentation.
The Chair: Thank you. I do not think there are any further questions. I have a brief one, if I can take the intelligence of the committee for a minute. In your brief you made a reference to requiring a deposit. Are you aware of regulation 7, section 1, which basically reads that if the head gives a person an estimate of an amount payable under the act and that the estimate is $24 or more, the head may require that person to pay a deposit equal to 50% of the estimate before completing the request? Have you ever applied that regulation?
Mr Turnbull: Yes, sir. I am aware of that and I alluded to it in the brief, that the particular deposit, if you will, comes after we have done all the preliminary work to gather the record together, to analyse the record and determine what portion of it would be released to the requester.
The Chair: You would like to see that applied before rather than after.
Mr Turnbull: Yes, I think the whole issue here is that a requester should submit a deposit with his request upfront. If he feels he is justified in receiving a waiver of deposit, then he should indicate that at the very outset. Before we even gather any records, we should determine whether or not the person qualifies for a waiver, and if we say he does not and he thinks he does, he can appeal that decision to the commissioner, and we will not even have even looked for any records yet. We have not expended any manpower hours, except that someone familiar with the legislation makes that determination.
The Chair: Thank you, gentlemen, for coming along here this afternoon. We extended your period quite a bit. We had some free time. There were some very interesting and very important questions that committee members asked, and we will take them into consideration.
We could have a five-minute recess.
The committee recessed at 1700.
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MANAGEMENT BOARD OF CABINET
The Chair: At this point I would like to welcome the Chairman of Management Board, the Honourable Tony Silipo. I understand we have scheduled you in for an hour. The members would appreciate it if you left time for some questions to be asked.
Hon Mr Silipo: I think I will, Mr Chair. Let me say that it is nice to be here and to be back in a committee room. With me is Frank White, director of our freedom of information and privacy branch at Management Board, and Priscilla Platt, a legal adviser in the branch. I want to thank you for inviting me this afternoon to appear before you as a participant in your meetings to hear the public's representations and views about Ontario's access and privacy legislation.
I know you have heard from many diverse associations and individuals in the hearings you have held to date, and as a result I think you are well placed as a committee to assess what changes to the legislation might be needed to put its principles to better effect. As members of government we look forward to your recommendations, and I can tell you very clearly they will be an important guide to possible amendments we will be contemplating.
Because it is your committee's role to assess what changes could be made to the Ontario Freedom of Information and Protection of Privacy Act and recommend amendments to the legislation and to the Legislature, this afternoon I will offer some brief comments on how the legislation is working. I will also try to identify some issues I hope the committee will address in its recommendations.
First, a couple of words about some of the positive effects of the act. I know you recently heard a representation from the Ontario division of the Canadian Bar Association. I gather the association's assessment is that in general the legislation is working well and that no major amendments are required. You have also heard the Information and Privacy Commissioner express similar views when he appeared before this committee, although I also note that he did make a number of suggestions for amendments.
Between the time the provincial act came into force on January 1, 1988, until the end of June this year, over 22,000 access requests were received. This includes requests for general records of government and requests by individuals for their own personal information. Ministries and well over 200 provincial agencies were required to provide access to information in their records or justify any refusal to provide access to records under the limited and specific exemptions of the act.
Most of these requests resulted in requesters gaining access to records. Approximately 50% of the requests resulted in the full disclosure of records. An additional 21% of the requests resulted in partial disclosure. Some requests were withdrawn or abandoned, often because institutions could provide information to satisfy the requester outside the formal process of the act. In 8% of the requests, a record of information did not exist. Most requests were responded to promptly. Approximately 75% of requests were completed within 30 days.
These figures, I think, show that the act has created a significant level of access and has opened many government records to the public that may not have been available in the past. Ministries and provincial agencies continue to adapt to the requirements of the act. Each ministry and agency has designated an individual to act as its freedom of information and privacy co-ordinator. This individual plays a key role in helping the public to gain access to records and ensuring that the ministry or agency is safeguarding the privacy of personal information.
Our priority at the Management Board secretariat is to make sure the co-ordinators have information and the interpretation of the act they need to do an effective job. Unlike the access provision of the act, its privacy provisions cannot be measured by statistics. I understand, however, that the provisions of the act have resulted in changes to practices of ministries and agencies and have enhanced the protection of privacy of individuals affected by government programs.
In response to the act, ministries and agencies have reviewed what personal information they collect and how they collect it. They must meet the act's requirement about the use of personal information, and cannot disclose personal information except as the act allows. Ministries and agencies have been very active in seeking advice from Management Board concerning the privacy requirements of the act.
In my description of the positive effects of the act, I must mention the work of the Information and Privacy Commissioner of Ontario. Tom Wright and the former commissioner, Sidney Linden, have resolved many appeals under the legislation, both by mediation and formal orders. Over 250 orders have established a clear interpretation of many access provisions of the act.
The commissioner has reviewed ministry and agency interpretations of the exemptions to access. In many instances his orders have narrowed the interpretation of the exemptions so that records initially withheld by institutions were required to be released. These orders in turn result in the release of records by ministries and agencies in similar circumstances. Staff of the Management Board secretariat communicate commissioners' decisions to all ministries and agencies to promote a consistent interpretation of the legislation's provision.
For all these reasons I believe Ontario's access and privacy legislation is working and has made a positive difference for many individuals and groups in Ontario. That is not in any way to indicate that the legislation cannot be improved. In fact, I believe the legislation can be improved. You have heard many representations from the public recommending changes to both the provincial and municipal legislation. I cannot comment on all these recommendations. I believe it is your committee's role to assess this information and provide to the Legislature, and therefore indirectly to me, your views on what you have heard and perhaps what you have not heard. I would like to point to seven issues. My purpose in doing that is to ask the committee to weigh the representations it heard and, if possible, to come forward with specific recommendations in each of these areas.
First and most important, I would be very interested in any proposals you make to narrow the present exemptions in the access provisions to the legislation. The principle of the legislation is to make these exemptions as limited and as specific as possible. I would welcome and consider carefully any proposed amendments to make exemptions more limited or more specific.
Second, I hope the committee will provide recommendations concerning the proposal of the Information and Privacy Commissioner of Ontario to amend the act to include certain specific powers of the commissioner. He has asked for clarification of his powers to audit privacy practices of institutions, including powers to enter premises and compel them to release documents to conduct an investigation. He has also asked for authority to order an institution to cease a use, disclosure or retention practice concerning personal information where an institution's practice contravenes the act. I would urge the committee to reflect carefully on his proposals.
The commissioner has also suggested that a task force be established to review computer matching of personal information by ministries and provincial agencies. I would be very interested in your comments on this proposal.
Third, I would welcome your recommendations concerning the present balance in the legislation between access to personal information and the protection of privacy. Earlier this year, as the Municipal Freedom of Information and Protection of Privacy Act came into force, you heard about issues relating to access to personal information of victims of crime. Recently the committee heard concerns about municipal access to social assistance files. You may wish to address the appropriate balance between access and privacy in the act. I would welcome your comments in this area.
Fourth, you have heard, from several historical researchers, of considerable delays and frustrations in gaining access to historical records in the Archives of Ontario. It was certainly not the intent of the act to stop or hinder research that helps us to understand our social and political heritage. The legislation should accommodate the legitimate goals of historical research. There may still be concerns, however, about protecting the privacy of individuals whose information is in the very recent historical record. Because amendments may be needed to achieve a better balance, I would welcome your recommendations about access to records in the Archives of Ontario.
Fifth, you have heard from various users of the legislation that the fees for permits should be reduced or that certain users such as the media should be exempt from fees.
Although you have not heard from ministries or agencies about fees, I can assure you that the permitted fees do not cover the full cost of complying with requests. For example, in the first six months of this year, ministries and provincial agencies collected fees of approximately $43,000. The legislation does not permit fees to be charged to individuals for access to their records of personal information. Also, the first two hours of search time for a general record are without charge to the requester.
The legislation's purpose is to provide access, but the legislation recognizes that access requests for general records should not unreasonably interfere with the operations of ministries, agencies and local governments.
If the information obtained is used for a commercial purpose, should the requester bear the costs related to the request or should these costs be subsidized by the taxpayer? I would be very interested in your recommendations concerning fees. I note that in the presentation you had just before me you were dealing with that issue as well.
Sixth, you have heard that not all agencies of the provincial government are subject to the Freedom of Information and Protection of Privacy Act. While the great majority of agencies are included, some are not covered. My staff provided a list of these agencies on a previous occasion, I understand. I would welcome your recommendations concerning whether all agencies of the provincial government should be included, and I note on that point that that is something to which change could be made by regulation as opposed to legislation. For that reason also I welcome your comments on that area.
Last, I would ask you to address an important recommendation raised by a number of municipalities in their written submissions to you. Municipalities and the institutions have asked for a means to refuse to respond to frivolous or vexatious requests. At present, the legislation creates a right of access to records held by institutions, and institutions can only refuse access if an exemption applies. There is no lawful way for an institution to refuse to process a request by a requester who may be trying to hamper the institution. In other contexts, there are lawful means to address this problem.
For example, there is a means under the Courts of Justice Act to prevent frivolous or vexatious litigation, and both the Ombudsman and the human rights commissioner can refuse to deal with complaints that are deemed to be frivolous or vexatious. Such provisions are rarely used because they seriously impede rights and because courts and tribunals are reluctant on such a subjective test to make the determination that a suit or complaint should not proceed at all. Such provisions are meant only for the most extreme circumstances.
Some extreme circumstances do exist now in Ontario, it seems to me. One requester has submitted many hundreds of access requests to municipalities requesting large volumes of records. Municipalities must provide two hours of free search time for records for each request. Even where fees may be charged, it is time-consuming for municipalities to prepare fee estimates. It is obvious from looking at the requests that they are being used to hamper the operations of these local governments.
This situation is extremely costly to the taxpayers of Ontario, and I would be interested in your views on how to address the issue of requests that are clearly inconsistent with the purposes of the act and are intended to hamper the operation of institutions subject to the legislation.
In conclusion, let me say that all governments in Ontario face challenges when it comes to earning the respect and trust of Canadians. One of the ways the integrity of the Ontario government will be measured, I think, is by our relations with the people we serve. Openness in government will ensure integrity of government. One of the best ways to open up government is to ensure that our freedom and privacy acts are working the way they were intended to.
Mr H. O'Neil: Some of the delegations we had were from the press saying that they do not feel there is enough leeway in some of the information they are asking for from some of the police forces and some of their agencies. I wonder if you would like to comment on that.
Hon Mr Silipo: I will comment in a very general way. Again, it is a question of looking at how we can fine-tune the balance we have to strike between, in this case, the media having access legitimately to information and the protection of individuals, particularly in young people.
The clearer we can make the rules the better. I know part of that issue is also the concern whether the withholding of information is being done, or the perception that the withholding of information is being done, not so much because the act states it that way, but because, in fact, people are choosing to interpret provisions of the act in a particular way perhaps for other reasons.
I am not saying I believe that or that I agree with that perspective, but certainly the perception is there. I think the clearer we can make the ground rules the better, and I would welcome your comments as a committee in that area.
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Mr H. O'Neil: Is it your feeling and your staff's feeling that the rules, as they are currently set up, cover that sufficiently, that the safeguards are there?
Hon Mr Silipo: I am going to ask Frank White to comment further on that.
Mr White: I think there are criteria that one can assess whether information is going to be disclosed in the act. A lot of the time there is the question of judgement when a person is making that decision. As the previous presenters discussed, there were guidelines developed, for instance, that go through the act so that one could determine when personal information about a victim might be released to the media.
The information is all there if you want to go through it. I would hope it is clear but, again, it takes an exercise of judgement in many cases, because you are reading words on a piece of paper and you have to say, "Is this a situation where, for instance, it would harm someone's safety?" That is judgemental. You have to look at the information and come to some kind of conclusion on your part whether release of that information would result in a harmful situation.
Mr H. O'Neil: With the guidelines you feel are there and the process that we are presently going through, you feel that those safeguards are there?
Mr White: Yes, I think the information is there. I also think though, and I think the minister said, that if the committee feels from what it has heard that there are places where it could be made clearer, certainly the minister would welcome that. For instance, if you are dealing with information about a victim -- I think that was an essential part of the media's representations -- the release at all times of information about victims and witnesses to the press is something they are interested in.
Mr H. O'Neil: I wonder if you would also touch on the cost, as was mentioned by some of the presenters this afternoon, of people putting in so many applications. I have to agree with that too. Are you saying that there is a process or an appeal basis there if somebody is turned down, or can they actually be turned down now?
Hon Mr Silipo: My understanding, and I would ask Mr White to correct me if I am wrong, is that it is very difficult, I think it is impossible actually, for people --
Mr H. O'Neil: To turn somebody down?
Hon Mr Silipo: -- to be turned down unless one of the exemptions applies. You can very easily have the situation where people are making hundreds of requests at whim and institutions are required to reply to those requests.
Mr H. O'Neil: It is likely something this committee will have to deal with in some of the recommendations that we make, but it is also a very difficult area. Certain accusations can be made and we may have to rely on some of your staff to make some suggestions as to how we can best formulate what we have to do, so that we are preventing some of these frivolous applications. Yet we have to be very careful that when people feel they have a very good reason to ask they are not turned down either.
Hon Mr Silipo: That is the terrific balance we have to try to find. I agree with you that, in order to deal with what we term vexatious requests, we do not want to put in a rule that is so rigid it would in fact prevent legitimate requests from being made.
Mr Owens: I appreciate your taking the time today to come down and speak with us. I think your presentation raises a number of points this committee has been concerned about during the process. Mr O'Neil just raised the point with respect to frivolous requests and where one should look at drawing the line so as not to hamper the rights of an individual but, on the other hand, not to encumber the institution or the facility with such a workload that it would be impossible to get on with the regular conduct of business.
The issue with respect to computer matching, I think, is an excellent issue that we need to pursue. One of the concerns I developed as we went through these hearings was the incredible lack of protection of privacy for individuals with respect to their personal information, whether it be in the records that the government holds or perhaps, more importantly, in the private sector. Understanding that FIPPA does not extend to the private sector, I think we need to start looking at developing protection for that information in the private sector.
A couple of presenters have talked about the reporting of communicable diseases to emergency services personnel. I am wondering if you have had any thoughts about that or discussions with some of your colleagues in cabinet as to how we can get around what I think can be a reasonable request, but also protect the dignity and the human rights of both parties who are involved in this situation.
Hon Mr Silipo: I do not have a specific answer for you, although I will again invite my staff to comment in addition to what I am going to say. As I indicated, it is an area that we are very concerned about and I can tell you that even outside the review of this legislation it is something that we are looking at, because clearly, as government, we have at our disposal a great deal of information about individuals.
As we expand our ability to retain and transfer that information, one of the issues that we need to be concerned about, I think, is how people can have access to that information and how we can indeed ensure that we protect individuals' privacy. As I said, that will be there as an issue of some importance to us in reviewing this legislation. I do not have a more specific comment than that in terms of your question except to say that it is an issue that we know we need to address.
Mr Owens: In terms of probably another unfair question, a presenter came forward to us on two occasions to discuss a fairly horrific situation that took place in her family. The upshot was that she was initially unable to get copies of records from the children's aid society. When she was able to obtain a sanitized version of the records, it turned out that there were inaccuracies in the records and there also was information that would have perhaps proven helpful to this parent to have knowledge of.
She made recommendation to a task force of persons outside the social services to take a look at the state of social service records as they exist now, to make comment on the standards of practice with respect to recordkeeping and, further to that, perhaps some kind of a panel at the end of this review period to take a look at how we can in some situations make records available to parents and/or children who are wards of the children's aid society. I am wondering if you have any comment on that.
Hon Mr Silipo: My general attitude is that people should have access to information that is being kept about them, and I say that in a general way because there may very well be some legitimate exceptions to that. That would be, I think, my approach to that issue. The kind of suggestions you are making would be useful and worthwhile avenues for us to explore and perhaps for you, as a committee, to explore as you put together your report.
Mr Owens: Mr White was going to answer my question around the types of security clearances that are required for staff coming on board with the FIPPA folks.
Mr White: I believe actually that the individual from Peel was talking about the Information and Privacy Commissioner's office, and I am not sure if they even take an oath. There may be some oath of office they take, but I do not believe there are any general security measures taken that would be different than any public servant. I know there have been some discussions with the Information and Privacy Commissioner and the Ontario Association of Chiefs of Police to see if they could resolve that situation.
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Mr Frankford: I want to ask you about a couple of things that came up last week with the Ontario Cancer Registry. First, I asked whether I could check whether I was registered there, which I should be, and they said no, I cannot check. Second, talking about using that information, they also said that, doing studies on it, they really act as gatekeepers. So you have to show that you are a bona fide researcher, that you have a legitimate medical project, to do it. They can approve or disapprove of your getting there. I guess I would just like to make you aware of that, and I think there is some inconsistency with some of the other approaches you mentioned.
Hon Mr Silipo: I understand the registry is not covered by the act, so that may be one of the issues that needs to be addressed both by you and by us in reviewing the legislation. In the example you have given, obviously there is a legal answer to that, but if the registry is not covered by the legislation, then the question is just whether it should. My tendency would be to take a look at that and say perhaps it should be.
Mr McClelland: Minister, there are a couple of things I would like to run through very quickly. At the outset of the enforcement of the municipal conflict of interest and protection of privacy legislation, there was considerable controversy, as you will be well aware, about the issue that has been raised in terms of disclosure of information by police forces. I think my colleague Mr O'Neil touched on it.
Quite frankly, at that point there was very clearly a little political controversy too. The then Solicitor General said, "Well, after all, I'm just subject, as my police forces are subject, to the provisions of the act which fall under the purview of my colleague, the Chairman of Management Board." At the same time, there was an obvious need for real direction from the Solicitor General's office to assist police forces.
One thing I am going to ask is that at some point in time, when this committee meets, we discuss very clearly who has clear responsibility for that. It seems to me, quite frankly, that in the current climate there is apparently no difficulty on a mass scale, although there are people in the media and the publishers' association and others who have been in touch with me from time to time and said, "Look, there are still problems out there in various locations," and they have a number of very compelling anecdotes to suggest that there is a problem there.
I would suggest with great respect that somebody is going to have to take leadership on this issue. I would ask that the committee come back with a recommendation that very clearly states that either it falls with you in your responsibility as Chairman of the Management Board of Cabinet or with the Solicitor General to provide some consistency from place to place across the province. That may or may not evoke a response from you.
Another thing I would like to touch on -- I will just run these through and you may want to respond, Minister -- is the issue of the parents' right to know when people who have not reached the age of majority are under the care and control of a person who has not reached the age of majority, and they are in their home. There is a real policy issue that needs to be addressed within the scope of the legislation in terms of the right of those young men and women, as individuals and as citizens of this province, as well as the right of parents who are ultimately responsible for the care of their children, and those children who remain under their care and control at home. That will be the second point.
The other one is really on the administration of the office. I would like to hear your comments on: (1) with the increased capacity or the increased demand for the services of the commissioner and the commissioner's office, are you considering having more than one individual, in other words a body of commissioners? And (2) which is I suppose somewhat related, although I think could be dealt with distinctly, have you considered and what is your view on the possibility of severing off, as the federal legislation has, the privacy office or the privacy portion of the act, which is from time to time quite clearly opposed to or in apparent conflict with the freedom provisions? Those are four things I would ask your comments on.
Hon Mr Silipo: Let me start with the last point and work my way back. In terms of the administration of the office, as far as I know there are not any plans to expand the staff of the commissioner, but I say that without knowing what discussions, if any, there are. That is clearly something we would have to look at if there is a sense that the workload is not being delivered properly or that it is too heavy, although it is clearly an issue for the government, as a whole, in everything else we do. That is a concern as we try to continue to do everything we need to do within the kind of fiscal problems we are all living with.
As for the question of severing the two aspects of the legislation, and therefore possibly having two commissioners to deal with those, that is something I really would be interested in hearing the committee's views on. I do not have a predetermined point of view on that. I will tell you what my concern would be. It would be whether in splitting there might be more of a possibility for an inconsistency in approaches. That, I suppose, is something that could be addressed. It is something I would want to discuss in fair detail, clearly, because it would be a major departure from what we have now.
If the committee is interested in pursuing that avenue, I can say very clearly that I would look with great interest at the committee's views and ask the committee to consider whether the same objective may not again be served, however, with a higher degree of clarity with the guidelines. I would just ask you to take a look at both of those possibilities if you are contemplating that as a possible area for discussion.
As for the parents' right to know, that has to be one of the most sensitive areas in terms of trying to balance the parents' right. You did not specify, but I presume you were talking about young people who are perhaps just under the age of majority and at the point where they might wish that certain information not be available to parents.
Mr McClelland: Precisely. That is the kind of situation.
Hon Mr Silipo: It is a really difficult balancing act. I would probably come down on the side of saying that the parents do in fact have that right. But again, I do not have a fixed view on that and I would be interested in hearing what the committee has to say.
Mr McClelland: It would require some amendment, and that would need to be addressed fairly directly.
Hon Mr Silipo: Yes. On your first point about clarifying responsibilities, I think again it is a question, first of all, of trying to make the provisions of the legislation as clear as we can make them. I take your point that once the legislation is there, there has to be some clarity in terms of the day-to-day application of the legislation, the responsibilities that ministers have and how that overlaps with other responsibilities. Clearly the responsibilities for the legislation rest with Management Board, but obviously in terms of the specific example you gave, because it involved a police force, questions were directed to the Solicitor General.
I am not sure there is a clear-cut responsibility in that aspect of it that can be delineated, but I do think there may be some other things we can be doing in terms of looking at how we can consistently apply the legislation once we have hopefully developed it a little bit more clearly.
Mr McClelland: Those are some points, among others, I am sure, that will come forward, that I wanted to draw to your attention at this point from our party and certainly from myself. I want to thank you for welcoming our input and I look forward to being a part of that.
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Mr H. O'Neil: I would be interested in getting your views, and maybe Mr White's and the staff's, on a little something I have run into as a provincial member of Parliament. Just as one example, for years we have sent out letters of congratulations to students who are graduating from -- it used to be grade 13 -- grade 12, or whatever it is now. The school boards are refusing to supply the names and addresses of those students under freedom of information. I am just wondering what your views on that would be, either in your capacity as minister or as an MPP.
Hon Mr Silipo: I remember this problem in a small way in my previous life. I hope we can find a way to rectify it. It seems to me that members of this Legislature should have access to that kind of information. By virtue of being elected, we hopefully passed at least some kind of test in terms of our ability to deal confidentially with that kind of information.
Mr H. O'Neil: Would you mind if I took the minutes from today and sent them out to my school board?
Hon Mr Silipo: For whatever my opinion is worth, Mr O'Neil --
Mr H. O'Neil: It is just a little point, sort of an aside.
Hon Mr Silipo: If it is of any help, I think school boards in that case apply those same rules to school trustees as well.
Mr H. O'Neil: They are changing that every year.
Hon Mr Silipo: Different approaches, I gather, have been used in different school boards on that.
Mr H. O'Neil: Did I get a clear answer then? You do not see any problem, or is that a definite maybe?
Mr McClelland: It is a definite maybe.
Hon Mr Silipo: Personally, I do not see any problems, but again, I think it is something we should take a --
Mr H. O'Neil: Can we get a ruling from the staff? At a later time I do not want you to disagree.
Mr White: I think if you want a ruling, you have to make a request, and if it was denied, go to the Information and Privacy Commissioner. One thing I might mention is that we do send out what is called "questions and answers" to municipalities and local boards, the common questions we get, so that we can try to get some consistency in the actions they are taking. Some examples like this have come up: for instance, putting pictures in the local newspaper of someone who has won an athletic event, where some boards unfortunately at the beginning were refusing to disclose the name of the student. We have given our advice that this would not be an invasion of anyone's privacy. They are representing the school publicly, and we obviously want to know who is representing the school. That information is going out to boards to try to get consistency in some of the privacy decisions they are making.
Mr H. O'Neil: I still do not have a clear answer.
Hon Mr Silipo: I am not sure we can give you a clear answer because I am not sure it is the kind of thing we can decide under the present legislation, to say you should be able to do this or not.
Mr H. O'Neil: So what do we do?
Hon Mr Silipo: We take a look at whether there is a way to get a different interpretation or indeed whether it is the kind of thing that might require some changes to the legislation.
Mr H. O'Neil: Can you put that on the list, Mr Chairman?
Hon Mr Silipo: You may not be able to do it for this year, Mr O'Neil, but maybe for next year.
The Chair: We will make sure that is on the list for consideration. I would like to thank the Chairman of Management Board for coming along here this afternoon and making the presentation. Certainly the seven areas you have indicated to us give this committee a lot of latitude to think about and deal with. I hope the committee will do that. Again, thank you for coming.
Hon Mr Silipo: Let me just say, as I have tried to indicate, that we are approaching this with a fairly open mind. On any of the issues we have touched upon, or indeed any others that we have not touched upon, I am certainly very interested in hearing from the committee and will take your report very seriously under consideration in drafting any amendments to the legislation.
Mr H. O'Neil: Just another point while the minister and the staff are here. Over the next few weeks we are going to be having another look at this, along with our staff. I know the minister's staff have been in attendance here every time, but I think we are going to need a little bit of advice and a little bit of help. I just wondered if they would be part of those deliberations when we are looking at these different sections.
Hon Mr Silipo: They will be here with my full blessing if you want them.
Mr H. O'Neil: They have been very helpful.
The Chair: That concludes the public review of the Freedom of Information and Protection of Privacy Act, 1987. Starting next Wednesday we will begin our deliberations on putting together our report and recommendations to the Legislature. The committee stands adjourned until next Wednesday.
The committee adjourned at 1745.