COLLEGE OF PSYCHOLOGISTS OF ONTARIO
OPS BLIND AND VISION IMPAIRED ISSUES WORKING GROUP
CONTENTS
Tuesday 18 January 1994
Subcommittee report
Municipal Freedom of Information and Protection of Privacy Act \ Loi sur l'accès à l'information
municipale et la protection de la vie privée
Information and Privacy Commissioner/Ontario
Tom Wright, commissioner
College of Psychologists of Ontario
Dr Catherine Yarrow, registrar
John Creelman
David Helwig
Regional Municipality of Peel
Deborah Trouten, regional clerk and director of administration
Robert Candy, supervisor, corporate records
OPS Blind and Vision Impaired Issues Working Group
John Rae, representative
STANDING COMMITTEE ON THE LEGISLATIVE ASSEMBLY
*Chair / Président: Hansen, Ron (Lincoln ND)
*Vice-Chair / Vice-Président: Wessenger, Paul (Simcoe Centre ND)
Dadamo, George (Windsor-Sandwich ND)
Johnson, Paul R. (Prince Edward-Lennox-South Hastings/Prince Edward-Lennox-Hastings-Sud ND)
MacKinnon, Ellen (Lambton ND)
Mathyssen, Irene (Middlesex ND)
*McClelland, Carman (Brampton North/-Nord L)
*Morin, Gilles E. (Carleton East/-Est L)
*Sterling, Norman W. (Carleton PC)
Sullivan, Barbara (Halton Centre L)
Sutherland, Kimble (Oxford ND)
Villeneuve, Noble (S-D-G & East Grenville/S-D-G & Grenville-Est PC)
*In attendance / présents
Substitutions present/ Membres remplaçants présents:
Cooper, Mike (Kitchener-Wilmot ND) for Mr Dadamo
Elston, Murray J. (Bruce L) for Mrs Sullivan
Hayes, Pat (Essex-Kent ND) for Mr Paul Johnson
Hope, Randy R. (Chatham-Kent ND) for Mrs MacKinnon
Lessard, Wayne (Windsor-Walkerville ND) for Mrs Mathyssen
Tilson, David (Dufferin-Peel PC) for Mr Villeneuve
White, Drummond (Durham Centre ND) for Mrs Mathyssen
Wiseman, Jim (Durham West/-Ouest ND) for Mr Sutherland
Clerk pro tem / Greffière par intérim: Manikel, Tannis
Staff / Personnel: Swift, Susan, research officer, Legislative Research Service
The committee met at 1011 in the Trent Room, Macdonald Block, Toronto.
SUBCOMMITTEE REPORT
The Chair (Mr Ron Hansen): I bring to order the standing committee on the Legislative Assembly reviewing the Municipal Freedom of Information and Protection of Privacy Act. We'll start off this morning with the report on the subcommittee meeting that took place last night. I'll read into the record the recommendations from the subcommittee.
"Your subcommittee met on Monday 17 January 1994 and agreed to recommend the following:
"On the review of the Municipal Freedom of Information and Protection of Privacy Act:
"(1) The research officer should contact legislative counsel to determine whether the act may be amended to include the hospitals, children's aid societies and universities and whether the clinical records may be sectored out.
"(2) The research officer will prepare a summary of the presentations received during the hearing.
"(3) The clerk will schedule the people who called in for appointments on Monday 17 January.
"On the interviewing process of the Environmental Commissioner:
"(1) The draft advertisement prepared by human resources was amended to include `The knowledge of French language would be an asset' and `A copy of the job description is available upon request.' The draft ad, as amended, was approved.
"(2) The ad will be published in Ontario papers only.
"(3) The deadline for application is 11 February 1994.
"(4) The applications will be available to all committee members for review.
"(5) The committee should establish a subcommittee to select the candidates and to conduct the interviews and to report to the committee with its recommendation."
Do I have the endorsement of the committee on this report?
Mr Wayne Lessard (Windsor-Walkerville): With respect to point 5 on the interviewing process for the Environmental Commissioner, I can indicate that there wasn't unanimous agreement with respect to that. It was my position that we shouldn't establish a subcommittee.
The Chair: First we'll move the adoption of the committee report and then we'll get into your concern, Mr Lessard.
Mr Jim Wiseman (Durham West): When you adopt the report, do you not also adopt number 5?
The Chair: No. What we'll do is move for adoption of the report and then there can be an amendment.
Mr Murray J. Elston (Bruce): Just to make things a little bit easier, I move that the first item, "On the review of the Municipal Freedom of Information and Protection of Privacy Act," the report of the subcommittee be received and adopted by the committee.
The Chair: All agreed? Agreed.
Mr Elston: I secondly move that the second item on the report of the subcommittee be adopted, as recommended by the subcommittee to the committee.
Mr Lessard: As I indicated, there was a meeting of the subcommittee with respect to the appointment of the Environmental Commissioner, but there wasn't an agreement with respect to point number 5 about the establishment of a subcommittee to select candidates. It was my position that the full committee should be making a short list after being provided with the names of all of the candidates and that the interviews themselves be conducted by the entire committee as well.
The legislation provides that the appointed person, the Environmental Commissioner, is an employee of the Legislative Assembly. They're responsible to report to the Legislative Assembly. It's important that all the members of the legislative committee take part not only in the short-listing process, in reviewing all the applications, but also in conducting interviews and making a recommendation to the assembly.
Mr Elston: When you've already chosen --
The Chair: Excuse me. Mr Sterling.
Mr Norman W. Sterling (Carleton): This will be a departure from the normal route this committee has taken in picking people for these kinds of posts. I see Tom Wright, the Information and Privacy Commissioner. The choice was a unanimous choice by a subcommittee, by all three parties, which was done also with the director of the library and the legislative research area by this committee. I served on both of those committees as well.
It's my view that in order for an officer of the Legislative Assembly to have the support of the Legislative Assembly, that person should be chosen by consensus by all three parties. It should not be put in by the will of the government. It is my view that perhaps at this point in time, the government has already made its choice as to who the Environmental Commissioner shall be.
When this motion was referred to the committee, I assisted our House leader, Mr Eves, in redrafting the motion, because at that point in time the Minister of Environment and Energy wanted to have the right to recommend people to this committee to be considered. In other words, it appeared from the motion that he wanted at that point in time to control who might or might not be the Environmental Commissioner. Therefore, it seems to me that the government is trying to railroad its own appointee into a position which heretofore, in terms of the practice of this committee in picking these kinds of people, has been done by consensus, by a vote, basically each party having one vote.
The idea that a commissioner be chosen by one party, perhaps being opposed by the other two parties, is going to lead I think to a weakening of the role of the Environmental Commissioner if he wants to have the support of the Legislative Assembly in what he or she may do.
It was made clear yesterday in the subcommittee by Mr Lessard that he'd been given his marching orders by the Ministry of Environment officials, or by the minister's officials, I'm not sure which, to come into the committee and make certain that this commissioner was going to be chosen by the committee as a whole and therefore give the government complete control over who shall or shall not be that Environmental Commissioner. I think it's wrong. I think it's going to lead to a bit of a farce over the process, because it appears now that the government has already made its choice as to who this person must be or might be. Therefore, I think we're getting away from the whole idea that these are people who are going to act independently of the government and perhaps tainting the whole office before we even begin.
Mr Elston: I agree that we should have a consensus around the choice of people to be interviewed and ultimately a consensus among the three parties of the person to be appointed to the position. Once the government chose to have this person, through its legislation, an officer of the Legislative Assembly, it seems to me that all three caucuses must therefore be in agreement with the selection and the manner in which it's done.
It's obvious to me what's happening here. Mr Lessard was very forthright yesterday, indicating that he was unable to change his position, upon direction from others, that he had been advised he must have the committee as a whole to make the choice. It's obvious, the reason for that. There are six government members voting; there is a maximum of five opposition people voting. If there is a split and the government wants a particular person, it can have its way in full committee. It doesn't require any kind of consensus on their part. From that point of view, as Mr Sterling has just said, it makes the whole process of saying that this is an officer of the Legislative Assembly a farce to say the least.
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I'm concerned that the government has chosen to make this person a person who is responsible to the Legislative Assembly if it didn't have the intention of allowing the Legislative Assembly the greatest leeway in making the choice. I'm also concerned with reports which have come to us indirectly, stating that the individual who is to become the Environmental Commissioner has already been interviewed and has been chosen by the government and is now just awaiting the answer to the process which will act, if the majority in this case has its way, as a rubber stamp to the Ministry of Environment's choice.
Interjection.
Mr Elston: Well, you don't have applications, Mr Hope, and that is the whole problem, that the Ministry of Environment has already chosen the people. The Ministry of Environment has already chosen its short list. They have already selected the person on whom they have placed their stamp of approval, and they're now asking the members of the committee, through the government majority, to rubber-stamp their choice. The Ministry of Environment is not part of the Legislative Assembly; it is part of the government administration.
My view in that regard is that for us then to go out and advertise is a waste of money. It's time consuming. It's going to be nothing more than a front for a charade. I don't understand why you would even come here and ask us to do that if in fact you have confidence in the quality and calibre of the individual who has already been pre-selected by the Ministry of Environment.
If that person is really good, if that person is really beyond partisanship -- I won't say "non-partisan" because there are people who have political allegiances who can rise above those and become perfectly good public servants; I understand that -- if that person were really good and you were confident in them, then perhaps you would be able to convince the members of the Liberal Party and the Conservative Party who form part of the subcommittee in doing the review that this person had merit and was able to carry out the tasks which the commissioner is going to be engaged in.
I don't understand why you want to play this power politics on the first day we are back in 1994. I don't understand why you want to play this power political game with respect to the Environmental Commissioner's position when you are asking the public to believe that you have the broadest public interest in mind by appointing this person.
At the end of the day, this person is going to be noted for being a partisan, for being a person who is carrying out the will of the New Democratic Party, if no one else, and for being tainted by a process that is being manipulated by the large government membership on the committee. Why are you doing it if this person is so good? Why don't you have enough faith in the integrity and the characteristics of the individual you're putting forward to allow a small group and a consensus to form among that group to recommend the person's appointment? That's what's in the back of my mind as we go through this power play that has been pushed on our friend from Windsor-Sandwich. It's not his character to do this, but he is none the less carrying out the orders he has received from above.
From my point of view, Mr Chairman, there is not a good reason for changing from the subcommittee's report. However, I speculate that you will find there will be at the moment, if the vote were to be taken, a 6 to 4 win by the government members, and I speculate that same six will ultimately choose the Environmental Commissioner.
Mr David Tilson (Dufferin-Peel): Any bets?
Mr Wiseman: I'd like to make a few comments and I'm particularly disturbed by the tone of the opposition on this.
I have been involved with the Environmental Bill of Rights for a long time. It is one of those bills that I have pushed and have supported and have talked about, and it's one of those bills that in my riding and with my constituents at any rate, there is a great deal of interest and a great deal of concern. I believe my constituents would want their elected representative to the Legislative Assembly to participate in all processes around this bill, given the degree of significance that it holds for my community. I therefore do not want to be excluded from the process of choosing who the Environmental Commissioner is going to be.
Mr Elston: You're already too late.
Mr Pat Hayes (Essex-Kent): He's had his turn, Mr Chair.
Mr Wiseman: I would also like to point out that the amount of time that was spent on the Environmental Bill of Rights in the other committee that reviewed it before Christmas -- at every subcommittee turn of that committee, we were met with hostility, with delay.
Mr Elston: That is not true.
Mr Wiseman: We spent an hour and three quarters discussing whether or not we were going to hear from the Minister of the Environment people on a silly debate about what was on the subcommittee.
Mr Elston: Mr Chair, that is just not true, what he is saying.
Mr Wiseman: If you're talking about power plays within the committee and about the numbers, the opposition holds the balance of power in the subcommittee, and my experience leaves me with no confidence whatsoever that there is goodwill on the part of the Liberals and the Tories to move forward with the Environmental Bill of Rights and that the Environmental Commissioner, who is pivotal to the implementation of the Environmental Bill of Rights, would be -- I wouldn't see any kind of different action than what I saw in the previous committee. Therefore, my own position, as the member for Durham West in the Legislative Assembly, will not be --
Mr Elston: As a New Democrat; that's your position.
Mr Wiseman: As an environmentalist and as somebody who has a good track record in worrying about the environment and implementing environmental change --
Mr Elston: Worry? Your only worry is how you're going stand up to your constituents who are losing the battle of the dump. That's your only worry.
The Chair: Order.
Mr Wiseman: I have no confidence in the majority on the subcommittee, and therefore I would not want to see anything less than the full committee involved with the process of picking the Environmental Commissioner.
Mr Randy R. Hope (Chatham-Kent): Just a couple of comments made first as to the committee and the subcommittee: There was indication made about the number size of the committee that sits here. It must be indicated also that in the subcommittee it is the opposition that rules the subcommittee where there is only one government member.
The concerns I have, in expressing my viewpoint: I've heard about prejudgment that's already been given about individuals who have already received the job. I look at this from a perspective that I believe, as a committee member, in looking at all candidates who have made application to the job. I believe in doing an interview process as a whole committee, because there were some of us in parts of this province who were very concerned about the environment and wanted to see progress and rights of individuals being upheld. I use the reference of the individuals who are downstream from the St Clair River who have been contaminated for years with their water and everything else, who would like to make sure that their member, who has been very strong, both when the Liberals were putting -- and Murray, I know you're ready to make some concerns --
Mr Elston: Why did you vote for 143?
Mr Hope: -- but let's look at what all has happened through the process when the Liberals were in and trying to deal with the problem that is faced by my constituents today.
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All I'm saying is that I believe that as a committee we should have an opportunity -- more than three -- to participate in a process that conducts interviews and also have all candidates, all applications, and then make a recommendation to the Legislature. I believe that the more members we have participating, especially in this committee, the members of this committee participating, in that process allows us an opportunity to address a number of concerns that are faced throughout this province.
I know I went through the interview process, looking at applications. I would be looking at an individual who has certain qualifications in an area that I believe is of particular interest for the people I represent, agriculture being one, downstream from the St Clair River being another. Those are issues where my constituents are asking, if there's a commissioner to be appointed, then those concerns that they've had for a number of years and by previous governments must be addressed.
I don't support the report that is being put forward today as it appears in number 5, and I believe the committee here ought to be a part of that process.
Mr Hayes: The two previous speakers touched on most of the things we talked about. I know the opposition continually talks about the government side having the majority on the committee, but as Mr Hope and Mr Wiseman had indicated, on the subcommittee that is weighted in the other direction. Especially on an important position such as the Environmental Commissioner, I feel as a member of this committee that I certainly want to be able to see all the applicants. I certainly feel that on this important issue I should have a right, as a member of this committee, to make that decision. There are two members from the opposition who I don't feel should be making the decision for me or the rest of the members on this committee, and if I don't have the input, I really feel that my rights are being violated as a member of this committee. I do not support number 5 on this list.
Mr Paul Wessenger (Simcoe Centre): I'd just like to add the aspect that where you're appointing a member who is going to have a very public role such as, for instance, the auditor or Environmental Commissioner, I think it's very important to have a broader selection process and more people involved in the selection process.
In the case of the appointment of the auditor, I believe I'm correct that the committee itself did the interview process and the selection; not this committee, I think it was the public accounts committee that did that. I don't see why this should be treated in any way differently than the situation of the auditor, because this again is as important or maybe even more important with respect to the question of the way the government operates. I think it's very important that everyone has an opportunity to participate.
I would also hope that the committee would come to a consensus with respect to the person to be appointed. I think it's fair to say that I understand from discussion of the selection of the auditor that there was perhaps not a unanimous decision in that aspect, but certainly the unanimity didn't fall along partisan lines. It was, I gather, otherwise.
I think it's also important that we expand the powers of committees in general. I think they should have more role in the legislative process, and for that reason alone I would like to see the committee do it.
Mr Hayes: Open government.
Mr Wessenger: That's an interesting question, whether we might consider at some stage whether we could move to the situation of, I suppose, some sort of open process with respect to confirmation of appointments or something of that nature. I know it might be a difficulty for our system, but certainly opening the process is, I think, to the advantage of the system. So I would certainly like to see as many members as possible participate in this process.
Mr Lessard: I know that we have people we've invited here before this committee with respect to the freedom of information hearings. I hope that we can conclude our discussion expeditiously with respect to this issue.
I'd like to move that recommendation 5 be amended to state:
"That the full committee meet in camera to review the applications received for the position of the Environmental Commissioner and determine a short list of candidates to be interviewed during the week of March 7 to 10, 1994; that the committee request one or two additional days to meet prior to March 7 to decide on the short list; and that the full committee meet to interview in camera the short list of candidates and make a recommendation to the Legislative Assembly."
The Chair: Debate? Mr Sterling and Mr Elston.
Mr Sterling: I only say to the members of the government that you risk forcing a division in the House on this Environmental Commissioner if in fact what appears to be happening happens. I want to warn you that because of the signals you have sent through the process, it may be the first time when you will have members of the House voting against an appointment.
Mr Elston: I wonder why the committee members who have spoken so eloquently about the role of the individual member are not suggesting that the entire Legislative Assembly sit to review all the applications and make the choice in camera. They should. If you hold the logic of the argument by Mr Hayes and Mr Wiseman, Mr Hope, Mr Wessenger and Mr Lessard, it seems that we are making a very difficult situation for the people who do not sit on our committee.
I'm surprised Mr Lessard didn't say that all the members of the Legislative Assembly will receive all the applications and will be able to sit and go through the entire interview process for all the candidates, because, you see, if they are right that a subcommittee of the Legislative Assembly committee is not entitled to sit in this selection process, because they want to be involved, then so do a whole pile of other of the members, and in fact perhaps --
Mr Wiseman: They can come on down.
Mr Elston: But they cannot choose in the committee; they cannot choose in the committee because there are only 11 of us who are able to vote on the committee. That means that the Legislative Assembly members who are interested in the environment are being excluded from the process.
Mr Hope: They can come on down, though.
Mr Elston: It seems to me, Mr Chairman, that these people's logic has persuaded me that this entire process should be put in camera in the Legislative Assembly so that every member can question and ask and then account back to their constituents about the choice of the Environmental Commissioner.
When I suggest that the rights or privileges which these people are asking for themselves be extended to the rest of the Legislative Assembly, they say, "No, that isn't possible." You can see that there are only 11 of us who will participate in the selection process under the motion put by Mr Lessard. For heaven's sake, with the very strong arguments made by all of those New Democrats over there, everybody should be able to vote on the selection of the short list and of the final candidate, not just vote on the recommendation of this committee to the Legislative Assembly. That's how this argument would go, ultimately, if you followed the logic of all those people.
We might very well need to have a referendum. You folks are just so good on these things, including people but having your way, that I'd be prepared to support a motion for a referendum. If you want to move it, I'll support your referendum motion.
Mr Chair, I just wanted to point out the sense that we have that these folks are not looking at expanding participatory democracy in the choice of this at all. They are looking to make sure that the candidate who has already been selected by the Ministry of Environment and Energy will be the person who receives rubber-stamp appointment.
Mr Sterling has already noted the change in the motion that said the Ministry of Environment would pick the short list. That is being reinstituted by the committee, making sure they have the numbers here.
I won't say more about it. I think we should vote on it. I think Mr Sterling's warning is quite appropriate that this is risking a vote in the Legislative Assembly itself with respect to the public role of a person who is not supposed to just represent the New Democrats but is supposed to represent all the members of the Legislature plus all the members of the public. It may very well be a most difficult position in any event, but it will be much more difficult if there is a split House on the appointment of this individual.
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Mr Tilson: I have a question to the mover of the amendment, but could I have it read again, please?
The Chair: Mr Lessard moves that the report of the subcommittee be amended by striking out point 5 and substituting the following:
"That the full committee meet in camera to review the applications received for the position of Environmental Commissioner and determine a short list of candidates to be interviewed March 7 to 10, 1994;
"That the committee request one or two additional days to meet, from the House leaders, prior to March 7 to develop the short list;
"That the full committee meet to interview in camera the short list of candidates;
"That the committee make a recommendation to the Legislative Assembly."
Mr Tilson: Thank you. I have a question to the mover. My understanding is that the government members of the standing committee on government agencies have informed that committee that they would be approving this appointment, or reviewing the appointment. Perhaps you can tell me what coordination the government is setting up with the agencies committee as to the approval of this appointment.
Mr Lessard: I can't answer that question.
Mr Tilson: I guess that's the point I'm trying to make, that I believe there is a plan. That person already has been chosen, presumably by the Minister of Environment, that we're going through a complete farce and that the farce will continue through the agencies committee. It's regrettable that the so-called open process that was promised by this government is not an open process, and so much for employment equity.
Mr Sterling: I'd like to ask the clerk how much it's going to cost us to advertise for this position.
Clerk Pro Tem (Ms Tannis Manikel): I haven't been able to talk to the director of human resources this morning, and so I didn't get a figure from her on what it would cost to advertise within Ontario, as the subcommittee had discussed yesterday. I'm guessing from other ads that committees normally run that it would be about $15,000.
Mr Sterling: I think the government should come clean and save the taxpayer at least $15,000.
Mr Tilson: Just tell us the name.
Mr Sterling: Just tell us the name and let's forget about advertising.
Mr Wiseman: I haven't got a clue.
Mr Tilson: Oh, come on. You know who it is.
Mr Sterling: This is a joke. We're going to waste the time of the committee and we're going to waste taxpayers' money by advertising for a position that's already been filled.
Mr Elston: There goes the dedication of the constituents already, Jim.
Mr Tilson: Ask your staff who they've appointed.
The Chair: Does anybody want the amendment read again before we have a vote on it?
Mr Tilson: We've all heard it enough.
Mr Chairman, I would request a recorded vote on this motion, please.
The Chair: All those in favour of Mr Lessard's amendment to number 5?
Ayes
Cooper, Hayes, Hope, Lessard, Wessenger, Wiseman.
The Chair: All those opposed?
Nays
Elston, McClelland, Morin, Sterling, Tilson.
The Chair: The ayes are 6 and the nays are 5. I declare the motion carried.
Shall Mr Elston's report on the subcommittee report, as amended, carry?
Interjection.
The Chair: This is the second part.
Mr Hope: You said something about Mr Elston --
Mr Elston: I moved it.
The Chair: He moved it originally.
All those in favour? There are 6. All those opposed? There are 5.
Mr Elston: Mr Chair, can you advise if it is a recorded vote? If it is not a recorded vote, can you can tell us the result of the voting numbers?
The Chair: The result was 6 for and 5 against.
Mr Elston: Is it true that Mr Cooper, Mr Lessard, Mr Wessenger, Mr Hope, Mr Hayes and the member for Durham West, Mr Wiseman, voted in favour, and that Mr Sterling, Mr Tilson, Mr Elston, Mr Morin and Mr McClelland voted against?
The Chair: I counted hands.
Mr Elston: Is it true that those were the hands you counted for and against?
Mr Hope: No, he counted everybody's hands.
The Chair: I just counted hands.
Mr Elston: I noticed that you nod in approval with the names that I've listed for the record.
The Chair: I didn't take fingerprints.
Mr Elston: Did you notice anyone on this side, on your left side, who voted in favour of the motion, Mr Chair?
The Chair: To my left or my right, yes. I guess that covers it.
Mr Elston: I have a question, Mr Chair. We had a circulation of materials prior to the committee and one of those items was from the Atikokan Board of Education. My copy didn't turn out real well and I suspect it's because the one that came to the clerk is not real good. Is there a chance it could be a little bit better? There are parts of these paragraphs that are not readable.
The Chair: We'll try to see if we can get a clearer copy, Mr Elston.
MUNICIPAL FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT LOI SUR L'ACCÈS À L'INFORMATION MUNICIPALE ET LA PROTECTION DE LA VIE PRIVÉE INFORMATION AND PRIVACY COMMISSIONER/ONTARIO
The Chair: I'd like to call forward Mr Tom Wright, the commissioner. Welcome to the committee. Sorry for the delay. We had two hours here from 10 till 12 o'clock. I see that you've left us a fair amount of information and quite a few recommendations, so it's either how fast you can talk or how much you can condense it in a short period of time. Welcome. You may begin.
Mr Sterling: Before you start, could I ask the freedom of information commissioner what you thought of the Legislative Assembly's process in picking the freedom of information commissioner?
The Chair: I don't think that's relevant to his presentation, Mr Sterling.
Mr Elston: I think he might be fairly positive on it.
The Chair: Carry on, Mr Wright.
Mr Tom Wright: Thank you. I'm pleased to have the opportunity to participate in the committee's three-year review of the Municipal Freedom of Information and Protection of Privacy Act. We feel the review process will help ensure that Ontario's access and privacy legislation keeps pace with a rapidly changing environment.
In many ways that is the core message which I would like to leave with the committee, and that is a matter of looking at the act, both the municipal and provincial acts, for purposes of having it keep pace with the changes that have taken place, both since the implementation of the provincial legislation in 1988, as well as the introduction of the municipal act in 1991. Our remarks, although they are specifically directed mainly at the municipal legislation, do have application to the provincial Freedom of Information and Protection of Privacy Act.
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Mr Chair, you've made mention of the resource materials that we've provided, which we hope will be of assistance to the committee. In addition to the submission that we have made, there will be a copy of my remarks that I'm about to embark upon, and the two binders contain further background information on various issues. What they do largely is an attempt to distil six years of experience with the legislation. They reflect a large amount of work on the part of the staff of our office and I would like to take this opportunity to publicly thank them for putting them together within a very short time frame.
I notice that the membership of the committee has changed quite a great deal since the first review was done, so I thought I'd take a moment to provide a brief overview of what we do at the information and privacy commission. Through the course of my remarks, I'll call that the IPC which is the acronym for the Information and Privacy Commissioner.
In may ways, Ontario moved to the forefront when it combined access and privacy in a single piece of legislation, with a single agency reviewing government decisions regarding access to information and government practices concerning protection of privacy. The independent review function is performed by the IPC. As has already been referred to in a slightly different context this morning, the Information and Privacy Commissioner is appointed by and accountable to the Legislative Assembly, not the government of the day, and the commissioner is an officer of the Legislative Assembly. I was appointed in April 1991, again, as mentioned, on the recommendation of an all-party committee following an open, competitive selection process.
We have four roles to play in connection with the legislation: We resolve appeals from the refusal of government organizations to grant access to information; we investigate privacy complaints involving government-held personal information; we educate the public about the access and privacy laws; and, lastly, we conduct research on access and privacy issues and offer advice and comment on proposed government legislation and programs. Fundamentally, what we do is promote the concepts and principles of open government and the protection of personal privacy that underpin the acts.
Again, the message I would like to leave with the committee today is that government is the custodian, not the owner of the information it possesses. The true owner of government information is the public. The overriding objective of freedom of information legislation is to translate this principle into everyday practice by fundamentally altering government attitudes.
The ultimate goal is to modify the culture of government organizations, to foster a spirit of openness and a willingness to share information with the public. We are working towards the day when government organizations provide easy access to the non-personal information under their control, not just as a reaction to formal requests but as an ongoing mode of operation.
Today, access to government information is critical if public institutions are to be held accountable for their actions. Access to information can help restore the balance between government, with its vast array of information resources, and the individual citizen.
The second part of the mandate deals with privacy, another cardinal value. In an age when data move at the speed of an electron, we treasure more than ever the right of individuals to determine when, how and if information about themselves is to be communicated to others. I think again, in terms of sharing with the committee what is going on as far as privacy issues are concerned, they're rapidly moving up the scale of importance on the public agenda.
Just over a year ago, business and government organizations sponsored a nation-wide privacy survey and the study found that nine out of 10 Canadians were at least moderately concerned with their privacy, with 52% indicating that they were extremely concerned. Interestingly enough, this latter figure was comparable to the 52% who were extremely concerned about the environment and the 56% who were extremely concerned about unemployment. The researchers concluded that Canadians believe their personal privacy is under siege and that they want something done about it.
The municipal legislation, as you know, has been in force for three years and the provincial act for six, and during this period we have had an opportunity to closely observe the use, application and operation of these statutes.
I'd like to provide some indication to you of how we feel the laws are working, and I'd like to talk about a few, and I emphasize "a few," statistics.
We don't have the request figures for 1993 as yet, but we do know that from 1988 through 1992, provincial organizations received 35,500 formal requests for personal or general information, and in 1991 and 1992, municipal organizations received a total of 11,200 formal requests, for a combined total of almost 47,000 requests under the acts.
I think if you were to speculate as to what the figures will show for 1993, even using 1992 statistics, we're looking at in excess of 60,000 requests that will have been made under these acts since the first act came into effect in 1988.
In each year, in more than half of all requests, in terms of how they were responded to, the requester obtained all the information sought, and more than three quarters of all requests were acted upon within 30 days.
In terms of 1993 figures, we do have figures relating to the appeals process, a process, of course, which is administered by our office. Over the past six years, more than 3,100 appeals have been filed under the provincial act, and in the past three years, almost 1,500 appeals have been lodged under the municipal act; again, a total of just over 4,600 appeals received by our office since 1988.
During that time, we have resolved almost 2,900 under the provincial act and more than 1,200 under the municipal act, for a total of over 4,100 completed appeals in that time frame.
I'd also like to mention that both pieces of legislation specifically talk about how our office should go about resolving appeals. There's a very direct focus on use of mediation in order to resolve appeals, and it's something we have taken to heart in terms of how we go about our business. In fact, a large majority of appeals are resolved by way of mediation, working out this satisfactory resolution or arrangement between the appellant and the government organization. In fact, since 1988, over 70% of all the appeal files we closed were closed through the mediation process.
But the act also goes on and provides for what happens when mediation hasn't worked. It gives the commission an order-making power, an ability to require that either the decision is upheld or not upheld. We've issued, under the provincial act, over 600 orders, and 240 orders in municipal appeals, again for a total of around 850 orders since 1988.
The other part of our mandate that we talk about is privacy. In carrying out that mandate, we conduct privacy investigations. There have been about 600 done, again since 1988, close to 360 involving provincial organizations and over 230 involving municipal ones.
I'd also like to mention, in terms of our own processes under the act, that we have taken great strides over the past two years to streamline the processes that we follow, and as a result, appeals closed and investigations completed in 1993 were more than double the totals recorded in 1991.
I mentioned one of the other parts of our mandate, which is public education. We have a province-wide outreach program which we feel does assist in increasing the awareness of the acts among both public and government organizations.
For example, in 1993 alone, my staff and I completed more than 60 speaking engagements and gave 30 media interviews. For a number of years, working with provincial and municipal partners, we have organized a fall workshop for information and privacy coordinators. Our office produces three publications to keep the key players in the access and privacy system informed: a newsletter, a quarterly summary of orders and investigations, and guides on practices and procedures.
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By way of a conclusion in terms of where we stand today, I think the record over the past six years leads us to conclude that access and privacy are becoming a standard part of daily business for government organizations in Ontario. There is a solid sense of responsiveness to access requests and a heightened sensitivity to individual privacy.
Having said this, we do feel that there are major opportunities to further advance the objectives and principles of the legislation and to make the system more workable and understandable for all concerned. We are therefore proposing a series of amendments to one or both of the acts for the committee's consideration. As you know, you have the submission that we provided to you today.
We hope that the committee's review, after it's heard the various presenters, will result in legislative changes which will accomplish four specific goals: (1) expanded access to government records; (2) stronger privacy protection; (3) improved customer service; (4) clearer powers and improved processes for the IPC.
I would like to take a moment to highlight just a few of the 53 amendments. I assure you I will not be going through them item by item, even if you had the time. I'd like to talk along the lines of the objectives that I just described, and initially I'll refer to amendments intended to both expand access and strengthen data protection.
The first proposal, and it's a major proposal and it's one, I believe, that your subcommittee considered earlier this morning, is that we feel the legislation should extend to a wider range of public organizations, specifically, hospitals, universities, social service agencies and professional governing bodies. All of these organizations perform important public functions and many of them receive substantial government funding. It is in the public interest, I submit, to make them more readily accountable. At the same time, these bodies often hold sensitive, personal information which requires legislated privacy safeguards.
In addition, we've included proposals which we feel meet the access and privacy challenges of the electronic age.
Mr Sterling: Could we ask questions as you go through these proposals, just brief questions at this time rather than going back?
The Chair: Just a clarification?
Mr Wright: If I could, I would ask that I be permitted to finish the remarks, if that's all right.
Mr Sterling: Okay, go ahead.
Mr Wright: In terms of the electronic age, which I was referring to, I think that is one of the big differences we have today from what the situation was when the committee last looked at the provincial legislation. We have moved much further into the electronic age. As a result, some of the recommendations that we're putting forward are a little more specific in terms of their direction and how they focus on these changes.
What we're proposing is that access and privacy concepts be built into emerging systems as they are being designed, that as these electronic information systems are being created, thought be given at the outset to what the implications are for public access to electronic records, as well as the privacy considerations.
I understand from the people who know far more than I about these kinds of issues that it's much easier to build something into a system or a program, the software that runs these kinds of systems, before than it is to go back in and do a lot of reprogramming. We certainly have seen examples, particularly in the US, where thought has not been given to the access and privacy considerations, and the implications are and can be quite significant in terms of the requesters as well as for personal information.
One area particularly that comes to mind is the impact it could have on fees if proper provision is not made for access to electronic records. The cost can be -- and it's strange for me to be saying this. I would think sort of almost by definition that if information was recorded electronically, it should be cheaper, that it should be easier to get. If these kinds of things aren't built into the systems initially, you have situations such as existed in Florida, where records that were readily available and easily available in paper format at very little expense -- because the electronic system had not been created with access in mind, the newspaper that was asking for the same information was quoted a fee of $350,000 in order to get information that was previously easily available in paper format.
In that context, as I say, it's almost against the grain to think that if it's electronic, it would cost more. One would think, by assumption, it would indeed be easier, and this is what we're proposing that government organizations be required to do: to give thought to these issues.
The other cluster of proposals in which we focus on wider access includes the disclosure of the actual salaries, not merely salary ranges, of all government employees, and I stress the word "all" government employees.
We are also urging the provision of records in alternative formats to overcome barriers facing visually impaired and hearing-impaired persons.
We are recommending that the disclosure exemption for cabinet records be reduced to 15 from 20 years. The exemption for advice to municipal government, records of closed council meetings and draft bylaws should also be reduced to 15 years.
Very importantly, we are proposing what we feel is a more effective and in some ways stronger public interest override clause. There is a clause in the present act, but it has proven hard to apply; in fact, so hard that it has never been used in an order that's been issued by our office. We feel the revised wording would permit increased access to government records which would otherwise be exempt from disclosure where there is an overriding public interest.
The other new development which has arisen over the past three years deals with the distribution of government information through the private sector. We're calling for safeguards to ensure that when the private sector distributes information on behalf of a government organization, the public access to the information will not be impaired; that is, data users should not have to pay fees greater than those under the usual access system in order to obtain basic government information.
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Turning just for a moment to the area of privacy protection, we have what I would describe as a major concern with respect to the ability of government organizations to designate records containing personal information as public records. We feel this should be permitted only if authorized by statute.
The situation, as it's turned out today, is that the government can classify records as publicly available -- and I'm talking about records containing personal information, information about me or individuals -- by way of policy decision as well as by statute. The important point in terms of the ability to do this is that as the personal information which is contained in public records is exempt from privacy protection requirements, we therefore feel that the current practice allows just a bit too much discretion in terms of the designation of public records. We also feel that there should be a specific provision dealing with the security of personal information that is held by government organizations.
I mentioned a third goal of the review, and that is customer service. As I'm sure you may be aware, there was a customer service task force in 1992 which basically looked at the attitudes of the public towards the kind of government service they were receiving for their tax dollars. It's fair to say once again that customer service has become a key priority. In that light, we're offering an array of changes to the acts which we feel will make them more understandable, firstly, and more workable for the public, resulting in better customer service.
Just as a flavour of these kinds of recommendations, they range from restructuring of the section of the act on the non-disclosure of personal information held by government to the introduction of incentives to encourage government organizations to comply with the time limits for responding to an access request.
Our final priority which I'll refer to is the ability for our office, the IPC, to do our job better. One difficulty we face is that a number of the functions we must perform to meet our responsibilities are implied rather than spelled out in the acts. We recommend amendments to expressly give the IPC the power to review a number of matters: review access procedures of a government organization outside the context of an appeal; review records of personal information held by government organizations; and to investigate an act or practice of an organization that may breach a privacy principle under the law.
What it has meant for us in terms of the, at times, uncertainty that exists with respect to these powers is that we've had to rely on the goodwill of government organizations to carry out some of the functions with which our office is entrusted. I should add that this goodwill has largely been forthcoming, which I think again shows what I mentioned earlier about the willingness to comply with the purposes, both access and privacy, of the legislation.
However, clarifying and in fact including in the law the fact that these powers exist I think will make everyone's job a little more straightforward. It does not represent in any fashion a desire on the part of the IPC, and I'd like to stress this, for more power. We're simply reflecting changes that relate to work that we already do and have been doing since 1988.
In deference to the time constraints the committee is under this morning, I'll touch on three other points. They relate to the function that we perform as a matter of policy. They don't directly relate to the review that the committee itself is undertaking but I do feel they can give you a bit of a flavour for the context in which access and privacy is developing, not only in Ontario but in Canada and in fact across the world.
One of the things we have dealt with recently is that in November 1993 we released a report on workplace privacy. The report was called Workplace Privacy: A Need for a Safety-Net, and contained a number of recommendations. They related to practices in the workplace such as electronic monitoring of employees, testing of employees -- genetic testing, drug testing, this kind of testing -- as well as the misuse of employment records in the context of the workplace. Basically, we're asking that there be some ground rules around workplace privacy: the rights of the individual and also a recognition that there's no question that the employer has rights in the context of the workplace.
There are two other issues which I will mention, and I will be very brief. One concerns health care information. Our office has for some time been calling for comprehensive health care information. We made this comment at the submission to the committee in 1991 and I simply would repeat the comment. It's referred to in this submission. The Ministry of Health has in fact been working for some time on developing access and privacy legislation; in fact, it's gone as far as to release a paper of principles for draft legislation in late 1991. However, we understand that all work has stopped on that. We feel it's one of those issues where you're dealing with the most sensitive type of personal information imaginable and simply would ask the committee to encourage the development of this kind of legislation.
Another thing I think the committee should be aware of in the area of privacy is the developments that are taking place both internationally and within Canada. Internationally we have an EC directive: The European Community is dealing with controls around personal data. Clearly, it applies only to the countries that form the community, but the directive talks about the ability to disclose information to countries which do not have adequate privacy protection.
The main feature that would cause concern in terms of the Ontario situation is the fact that the legislation internationally covers both public and private sectors, whereas in Ontario and federally we have privacy legislation that affects only government organizations. Of course, the big question that raises is what effect, if any -- and I'm not in a position to speculate on it -- will this directive have in terms of the ability of not only Canada as a country but also the province of Ontario to do business with EC countries?
The other example we have is right next door. The province of Quebec, on January 1 of this year in the form of Bill 68, now has privacy legislation, data protection legislation which covers the private sector. Obviously, our office is watching with great interest how this works, but it's a move that is a first in North America. I think we will be able to learn from the experience of Quebec, and we have urged, and will continue to do so, that Ontario move in the same direction.
In terms of a broader issue, which again is along the lines of making the legislation work better, we have been working with Management Board secretariat to develop what I would describe as practical guidelines around the routine disclosure or active dissemination of government records.
The reason we're doing this kind of project is simply because of the reality of today's fiscal environment. I would be the first to admit that a system that requires formal requests, requires appeals, can require ultimately going to court, is not necessarily the most effective way to achieve the ends of the legislation. We are looking for alternatives to promote so that this whole notion of government as the custodian, not the owner of information it holds, really sinks in. In fact, the ultimate goal would be that we no longer require freedom of information legislation because what the first reflex of people who receive requests for information indeed becomes disclosure and not secretiveness.
As I mentioned, what you have before you is our effort to translate what we have learned over the past six years into what we feel are practical, commonsense changes to further the purposes of the act. I would ask the committee to evaluate our recommendations carefully in light of your own perceptions and the input you will receive from other groups and individuals during the course of your hearings. We hope that members of the committee share our convictions on access and privacy, and we are certainly prepared to assist with your deliberations in any way we can. Thank you very much.
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Mr Elston: Thanks very much, Tom. It's interesting to see the number of applications in the municipal sector. I suspect that probably that will be the area in which you grow most steadily over the next few years, that the potential is probably bigger there.
I raised a question yesterday about disclosure of the salaries, per diems, what ultimately amounts to the full pay available to reeves and council members, because I understand in some places they are not allowing that information out. Your recommendation for the salaries of all provincial fields to be made available would extend as well to all municipal councils and school boards? It applies to everybody right throughout the province?
Mr Wright: Yes, it would be a general requirement. Our proposal contains no exceptions.
Mr Elston: Is there a jurisdiction somewhere now that allows that information to go out?
Mr Wright: Yes, British Columbia. The legislation came into effect on October 1, 1993. It provides for full salary disclosure. Saskatchewan has the same requirement. Alberta is presently considering access and privacy legislation, but I don't recall whether they have it or not. Quebec has a model whereby salaries above a certain level, I believe $50,000, are required to be disclosed, and a salary range below. I think it's fair to say that the experience in other jurisdictions, both BC and Saskatchewan, as I mentioned, would indicate that there are others who are doing something along the lines of what we are recommending.
Mr Elston: And that would extend to corporations like Ontario Hydro or the Stadium Corp or any of those organizations as well.
Mr Wright: Whatever organization is covered by the legislation, that kind of requirement would exist, yes.
Mr Elston: Another question with respect to your experience so far: Have you found, as was suggested originally when we put the municipal information act together, that there is any difficulty for the small municipalities to meet requirements? Some said this would be too expensive an ordeal to undertake, to organize, to make effective. Have you found any problem areas in relation to implementation?
Mr Wright: I think, as with any other new type of legislation, there are growing pains. We've had a number of situations, particularly with the small municipalities that aren't equipped to deal with, say, a high-volume requester, where an appeal, for example, has come to our office, and our approach is to try to make it work for all concerned. We've been able to effect solutions, once again, in terms of allowing the municipality to carry on its fundamental business as well as to comply with the requirements of a requester who is seeking to exercise rights under legislation. I think that, by and large, through the combination of efforts and also the goodwill of the organization receiving the request, those problems which may have existed initially have been overcome. I'm sure some experience problems, but I don't think it's a general comment. I find that most are able to deal with it.
I would add, Mr Elston, that in some ways some of the smaller municipalities in particular are perhaps more familiar with the idea of giving out information. They did so before the act, and in many ways they are continuing those kinds of practices, so in a sense they are able to deal with it.
Mr Elston: I raised yesterday the issue as well about the access by parents to their offspring's school performance records. I would even go to attendance and other things. Have you got a commonsense approach? I'm the father of a 16 1/2-year-old who is now in secondary school. Technically, I understand that my inquiries about her performance at school, or even her attendance, might be embargoed by her if she chose to tell the school not to release that information. I'm interested in her future and not interested in giving her difficulties, but how does a parent actually get to know what is going on at the school with their offspring if they are embargoed from getting access to the school performance records?
Mr Wright: I share your concern; I also have two children. But I don't see the act providing --
Mr Elston: It has been used. It has been brought to my attention by others, and that is my concern.
Mr Wright: That's fair, and I share your concern. I have two children who are also in school and I am interested in how they're doing. But I think the act in many ways does permit the kind of disclosure you're talking about; granted, within limitations. For example, the act talks about the age of 16 in terms of a sort of cutoff date, whereas the Education Act talks about the age of 18. There has certainly been a lot of discussion about this disparity and which rules, but in terms of what I understand are described as Ontario school records, certainly there is a right of access by the parent, under the Education Act, up to the age of 18. The way the access to information legislation works, if that kind of access is permitted in another statute, then it's not prohibited by the access to information legislation.
Once you reach age 18, you're correct. I think this is an issue that transcends the access to information legislation and becomes a societal issue. At age 18, you have the right to vote. You're really talking about people who in many ways are seen by society in general as adults. Yes, you're right, at that point there is the potential that the rights given to the individual, when that person is now seen as an independent individual in many ways, come into conflict with what are seen as parental rights.
I don't think the access to information legislation can really address that larger issue. At the same time, within confines, I think it can be made as workable as possible. This concern, although by no means has it disappeared, I think has lessened. Management Board issued a directive, a bit of guidance on the Education Act and the Municipal Freedom of Information and Protection of Privacy Act, which I think went some way to clarifying some of these initial concerns. How it's actually put into effect in an individual school or school board is another area of concern, but I think it can be addressed in practical ways.
Mr Elston: Just two more quick questions to highlight concerns where information on us can get out: first, maybe your comments on public officials' use of cellular phones or car phones, which I understand are now probably the biggest problem for security of personal information. Let's say a physician was talking about a patient from his or her car, or a deputy minister was talking about a file from his or her car. Those are, almost as a rule now, subject to be monitored by somebody at some point. Basically, it's air wave monitoring or mining, or however you might describe it, for information purposes.
Is there anything in your recommendations that would cover the requirement for guideline implementation for use of transmitted information? Ought we to think about making our public institutions more secure with the use of those? What are your thoughts on that?
Mr Wright: The first answer I would give you is no, there is nothing in the recommendations specifically addressed to that.
The point you make, though, is a very good one, one that's consistent with all types of new technology. In many ways, the understanding of what the technology means simply isn't there. For example, I don't think a lot of people understand that when you're using a cellular phone you're broadcasting, which of course is quite different from the dedicated line approach with telephones that perhaps we're all familiar with. What it requires is a change in what you do by using cellular phones.
Very early on, shortly after the commission came into existence, as a result of an experience an organization had in using fax to transmit confidential information, our office prepared fax guidelines which were designed to alert the institution to the issues around what happens when you dial the wrong number on a fax and confidential personal information which could be very sensitive goes to the wrong place. The unfortunate thing is that you can't get it back. You can sit there and say, "Oh, my gosh," but it's gone.
Janet Gore is our senior policy adviser. I am going to ask her a question, if I may, in order to further respond.
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Janet has just very kindly pointed out to me the fact that the federal government has produced a set of telecommunication privacy principles. Obviously, the broadcasting issue falls under the federal jurisdiction, so steps have been taken at the federal level. There has also been talk about the prohibition of scanners and things like this as another means of dealing with this kind of situation, which, practically speaking, may not have the effect you're really looking for.
Mr Elston: The technology issue goes to the second part of my question, and I think you've talked about it a bit: the security of computer and other data banks in both the municipal and provincial fields; technically, under our review here, I guess the municipal field.
The danger of the hacker, an individual who's having fun breaking into and accessing information in public directories and that sort of stuff, I think is known to individuals. What, if anything, are we to require of data bank caretakers, if we can describe them as that, under municipal freedom of information?
Mr Wright: We talk about that very issue in a couple of recommendations. I did mention in my remarks the idea of requiring that there be a specific provision as far as maintaining security of personal information is concerned. In my view, that would extend to information that's maintained in an electronic record format.
The other thing we have talked about is the introduction of a regulation-making power which would set standards for electronic information systems. These kinds of concerns, which I think are very valid, could be built into the legislation through the use of regulation-making power, which I think in that sense is a more effective way of dealing with it in that it allows the flexibility to try to keep up, to some degree, with everything that happens so quickly when you talk about electronic information.
The Chair: The Conservatives are next.
Mr Tilson: How much time do we have?
The Chair: Thirteen minutes; that's for each party.
Mr Tilson: Okay. I have a couple of questions, then Mr Sterling has some.
I appreciate the work you've been doing. It seems you've appeared at a number of committees I've sat on, health cards and the other committees you've come before. Certainly the work you're doing is expanding. My question is with respect to the commissioner's office itself. I'm sure your office has expanded substantially since you first started, just to do all these things you're doing. With the recommendations you're proposing, have you any estimate about costs specifically for your office, in terms of size of staff or contracting out to assist you with all these various and certainly very worthwhile things you're doing? You've listed the four points, and I appreciate that.
Mr Wright: If you're talking about expansion, the only area in which we're really making any change at all from where we are today would be the broader coverage of the legislation, and we have not gone through the cost implications of what that would mean for our office. But I think something that has happened over the years of the office is that we have learned to do our business better and have built in these kinds of efficiencies. Although I think I would be inaccurate to say it doesn't have cost implications, I don't see them as being significant enough that they would prevent a step from being taken.
Mr Tilson: I look forward to reading the materials you've given to us. One topic I've had concern about is that this government and perhaps other governments, whether municipal or others, have developed this word "partnership" in terms of, for example, the casino operations. Teranet is another example where contracts are entered into between a government and a private firm or firms, and I suppose the road thing, this new road they're putting in north of Toronto, is another one. I'd like you to elaborate on that issue, because I understand that if you try to receive information about those private firms dealing on those, you can't get it. You've touched on it in your recommendations. If this process continues, the taxpayer simply will not have access to those things, and I've listed only three examples.
Mr Wright: I think it's a very accurate comment. In fact, our office was involved with an appeal -- and as this is a matter of public record I have no hesitation in sharing it with the committee -- involving Teranet and the various kinds of agreements that were entered into between various groups. This was a matter that caused me great concern and I actually issued the order at the end of the day.
You're quite correct that one of the issues we had to look at is an exemption that deals with commercial information, financial information, of private sector organizations, and there is an exemption in the act that permits this.
At the end of the day, when I made the actual order I did, I included a comment in the order which said that I felt as a matter of general practice that government, or the particular ministry or organization, had to develop a process whereby there was more voluntary sharing of information on these agreements. I suggested that they use the example of Teranet, in terms of the disclosure that took place over time, as a model for what they should be disclosing as a matter of routine. I agree with you: Fundamentally, the public has a need to know when public funds are involved in these kinds of initiatives.
Mr Tilson: If I can just stop you there, how far would you go, though? Because if it weren't for the pressure of the media on Teranet, those clauses would never have been seen; they never would have reached the attention of the public. I don't know what the implications are of Highway 407 or whatever the new road is, and the gambling casino is another. I don't know what's being kept secret.
Mr Wright: To go back, if I may, the fact we begin with is that there is an access to information act which does permit the request to be made, that sort of gets you in the door, if you will, and gives you the opportunity and right to ask for the information. If the information is not forthcoming, then there is the appeal mechanism available through the commissioner's office.
The other thing I was going to mention is that one of the recommendations we made is a reworking of the public interest override section in the act so that if you have situations such as you describe where it's clearly in the public interest, there is an ability, even if it is commercial information and even if an exemption applies, for the information to go out. In a sense, I think that just rounds out the act and allows it to work. It allows it to work in more situations and allows it to better address the accountability issues which you raise, because I think they are very real.
Mr Tilson: One brief question, and then Mr Sterling will have some questions. References to Management Board secretariat seem to pop up periodically; I know it did during the health cards debate. Should this committee, before it reaches its conclusions in deliberations on these pieces of legislation -- is it two bills? I don't know whether it's only the municipal or the provincial as well -- be talking to representatives from that secretariat? They seem to be getting involved more and more in privacy issues. I'm thinking specifically of the health card issue as one that comes to mind.
Mr Wright: Are you speaking about sort of beyond the freedom of information and privacy branch of Management Board?
Mr Tilson: Except that we're talking about privacy matters the secretariat seems to be dealing with.
Mr Elston: They were here yesterday. That was Frank White.
Mr Wright: That's why I asked the question. I understood that Mr White was here yesterday, and he represents that branch.
Mr Tilson: I'm sorry, I didn't know that.
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Mr Sterling: I just have a few questions. First, you mentioned that we should consider bringing hospitals, universities and social service agencies under the act. In a technical sense, how appropriate is it to bring these agencies under the existing act?
Mr Wright: The best answer I can offer to that is that it happens in Quebec and it happens in British Columbia.
Mr Sterling: I know it happens. I'm asking, should we be writing a new act? Will it require substantial amendments to this act or can they just say it covers these agencies? Will the language of the act be appropriate to these kinds of institutions?
Mr Wright: My impression is that you would not need separate legislation, that in fact what we have in the present acts, depending on municipal or provincial, would permit the addition of these types of organizations to the legislation. I would certainly agree with you that you would need to take a look at whether the exemptions and other considerations that exist address the kinds of concerns these organizations might have. But when I compare, for example, the British Columbia legislation, which is modelled very closely on the Ontario legislation, they were not required to make many changes to permit a comprehensive piece of legislation that extends to the kinds of groups you've just referred to.
Mr Sterling: Thank you very much on that one.
I was very interested in your statements on the electronic systems because it's something I'm concerned about and I think should be addressed as the government goes into implementing computer and electronic data protection kinds of things. There's a question I have, and it's a departure from the freedom of information legislation as we know it: Save and except for I guess one section in the act which is a positive duty on the government to disclose, all the rest is reactive. The problem is, what does a government disclose in terms of electronic information? Rather, how does it account to the public? There's no process within our structure that they must come to the Legislature and say, "The Ministry of Transportation is going to implement a new program."
In the United States, because of the different mix in terms of responsibility for budget, financial responsibility, which is shared by the Legislature, the state Senate and the Governor in different pieces but they all have responsibility for it, the state legislatures, particularly in states like Minnesota, have implemented quality or accounting programs so that the state legislators will know whether a program is reaching the target it was intended for. They have implemented different systems of measuring that.
I would suspect, given our parliamentary system, that the nature of government would be to disclose as little as possible. In other words, you set up a program and you want as much flexibility as possible in how you measure whether it is successful or not successful. In fact, during my experience, we have had a number of programs set up for intention A, but intention A sort of falls by the wayside and the people running the program eventually are satisfying another need that is perceived or dreamed up or whatever, and therefore the resource or the money is in effect wasted in terms of meeting what the original intention of the bureaucrats and the politicians might have been at the beginning.
I guess my question is, who sets the parameters for what is disclosed and what isn't, and how it is disclosed? One of the problems is also how the information is presented. I've just returned to Queen's Park after a brief holiday and I'm inundated with information; I've got information coming out my ears. It's not so much that the information is lacking or whatever; it's the organization of that information and how it's presented.
What do you think about putting in legislation the requirement that a government, when it implements a program, or goes about buying new computers, I guess -- I'm not sure which -- has to come to a committee of the Legislature and say, "This is our program, this is our intent, and this is the way we think we should be measuring whether it is successful or unsuccessful"? You and the Provincial Auditor would sit in on that particular meeting and make recommendations to a legislative committee and say, "Yes, this is fair" or "This is not fair" in terms of how the accounting should be set up and how the reports should come out and their timeliness.
With electronic information able to be collected much faster, I don't think it's acceptable any more for a government to say, "You've got to wait a couple of weeks for the report." If the information is flowing in, then I think I, as a legislator representing the public interest, should have access to that immediately, as fast as the government gets it.
What I'm asking for is some kind of idea from you about how we set up the structure of what information should be flowing out. Do you think that should just be a government's prerogative by regulation, as you said before, or do you think the whole Legislature and the Provincial Auditor should be involved in it?
Mr Wright: It's difficult. I think I understand the question itself, but I would say this by way of response: It's true that electronic access does permit a more informed public and provides opportunities for the public to get access to information. We have a situation, again by example, because the United States tends to be ahead of us in certain areas, that the General Accounting Office in the US at the end of every week has a list of the reports, studies etc that have been prepared and released during that week, and I, in Canada, through Internet, can make a request for that kind of information and I have it readily available to me. These are the kinds of things the electronic format permits to happen, just a generally broader dissemination of information. But as to going into the merits of who should review the program and the disclosure -- or not -- of records out of that program, it's difficult to try to sort out where you should go with that.
Our office is consulted many times on new programs being developed, and we offer comments, suggestions, advice, whatever we can, to help. A lot of it has resolved itself, mostly in the privacy area. You mentioned the Ministry of Transportation. We've had a lot of interaction with them, and we're continually involved with various ministries on issues arising out of electronic access.
I simply don't feel able to comment in terms of the role of a member or the Legislative Assembly.
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Mr Hayes: There's been a lot of discussion of the issue of frivolous or vexatious requests or nuisance requests. Of course, the committee has made some recommendations, but I would like your opinion. Are there any guidelines or rules you may go by, or the various institutions or ministries? Mr Elston and many of us also feel that sometimes a request may be frivolous to you but not necessarily to me. I'd like to know how you deal with that at the present time, and if these recommendations would actually assist in dealing with that issue.
Mr Wright: As a starting point, I think the words themselves, "frivolous or vexatious," are a little troubling. As you say, what's frivolous to me or to you may well not be frivolous to someone else, and however you wish to try to define "vexatious" again is a bit of a problem. I think it's fair to say that there have been concerns at the municipal level in particular around what are seen to be frivolous or vexatious requests.
The other cautionary note I would sound is that it is difficult to come up with a workable clause that would address this kind of issue. Again I would refer to both Quebec and British Columbia. Their legislation does contain clauses that I think address the kind of problem.
But for me, in terms of our commission, I find it worrisome that we would be spending time -- and ultimately the various proposals all seem to work their way to the commission deciding whether or not their requests are frivolous or vexatious under the right of appeal -- and spending resources of the commission to focus on sort of mechanical issues whereas what we're really talking about is access to information. We're spending a tremendous amount of time and resources not only for ourselves but for the institution involved in the appeal process to end up with a conclusion: Is something frivolous or vexatious, yes or no? If we conclude it's not, then the process kicks in and away we go.
There already has been a very significant expenditure of fiscal resources on the parts of several parties in order to deal with this situation, and you're going to hear, I'm sure, from other organizations that feel very strongly about the need for this kind of clause. If you were interested in moving in that direction, then I would recommend that you might want to take a look at the British Columbia legislation. I think it's around section 43 or so of the BC legislation that it talks about requests which are repetitious or systematic as being the test.
As I say, I think the words "frivolous or vexatious" in themselves raise a lot of concerns. There's a provision available today in terms of litigation in court around frivolous or vexatious claimants. I stand to be corrected, but I think that in the history of that kind of provision it's been used perhaps once or twice. It's not something I would see as being an answer in and of itself. I think there are other ways that can be used to address these kinds of concerns.
I also feel that the major concern, speaking from the commission, is that rather than spending time in dealing with the fundamentals of the legislation, we are dealing with some of the corollary issues, time which could be better spent in other ways.
Mr Hayes: You've given us a list of how many cases or requests you've dealt with. Do you have an indication of how many times you have actually said to people, "Sorry, you really don't have any grounds," or that it's not reasonable? Maybe you wouldn't call it frivolous, but have there been some where the commission has said outright that a request is unreasonable, or there are no grounds, that it's just trying to get at an individual personally or whatever?
Mr Wright: Again, if I may, the request is dealt with by the institution. The only time it gets to us is if there is an appeal from the decision made by the institution. By the time it gets to us, we're sort of at a different level.
I think the numbers I provided by way of mediation would include our attempts to deal with requesters. We provide them with information about early decisions we've made involving the same kinds of records so that they understand they're unlikely to get that kind of information if they proceed with their appeal. We come in a little later on in the process, as opposed to at the request stage.
Mr Wiseman: I'd like to have some of your comments on an issue that seems to be developing, that is, an industry that could be developing in terms of charging people for the right of privacy. For instance, with the call display telephones now, your non-listed number could become public knowledge; also, if you want your name to be removed from lists that will be sold for marketing purposes, you have to pay. I see this as perhaps a challenge to people's privacy. How do we balance this cost versus the right to know, the free market versus what I believe should be my own private information base in that no one else should have it under any circumstances?
Mr Wright: The best response I can make is that you give very good example around of what are called call management services: call display, and there is presently a proposal before the CRTC about call display/name, so that not only will the phone number of the caller be displayed but the name as well. Our office made submissions to the CRTC at the time of the consideration of both those types of changes, on the very point you make that there should not be a price to maintain the level of privacy you presently enjoy.
In fairness, the CRTC is moving in a direction where there will be a mechanism available, a call block mechanism, so that if I do dial out I have the ability to block the display of my name and there's no charge. They're also talking, with call display/name, about the availability of per-line blocking. In other words, I don't have to think before I dial that I've got to hit the star, I think it is, on the telephone number pad in order to block the call; I will have the ability to get in touch with Bell or whoever the provider might be and say, "I want my line permanently blocked in terms of any information going out." Again, at no cost is how we feel.
I think that has to be the point from which you begin. If you're advancing on these new technologies, privacy considerations are a very fundamental concern. As a premise, you shouldn't have to pay to maintain the level of privacy you enjoy. As a starting point, that's where we begin.
Mr Wiseman: Safety versus privacy: public safety and the right to know about released prisoners; teachers and school management perhaps knowing what young offenders are there and what their crimes have been. This is always a controversial issue. It's raised on a regular basis in just about every staffroom across the province in institutions where there are young offenders and people being put in. Perhaps you could give us some comments on that, because public records, safety and privacy, safety of other kids, is something schools have been wrestling with for a long time.
Mr Wright: And it is. You've identified the fact that there is a very important balance to be resolved in terms of where the individual rights of one conflict with the rights of the other.
To me, it's been interesting, because we have followed the kinds of discussions you've just outlined very closely, and I think the act itself has worked. There's a provision in there that permits the disclosure of information when issues of public safety are involved. In fact, it has been used on a number of occasions over the last year by police departments when they've felt they needed to advise the public about the release of a particular individual into the community.
Once again, part of the problem -- and this is the hard thing for us to deal with -- is that the act, if it's understood and the time is taken to look at it, I don't think prohibits the kinds of balancing that have to take place. Admittedly, the balancing is necessary, no question about it, but I think the act has enough flexibility, certainly in the area you're mentioning, to permit the interests of both to be met. That's how I would respond. I don't think it acts as a prohibition.
The Chair: Any questions from the government? Mr Wright, I would like to thank you for appearing before the committee this morning.
Mr Hope: He is returning?
The Chair: Yes, on January 25, I believe.
Mr Hope: He has so much information.
The Chair: I imagine he's got a telephone number too and that you can contact him there.
Mr Wright: I certainly do.
Interjection: With call display.
Mr Wiseman: And is that number public?
Mr Wright: Oh, it certainly is, yes, but no call display or anything like that.
The Chair: We'll see you back here on January 25. This committee is recessed until 2 o'clock.
The committee recessed from 1201 to 1404.
The Chair: I'd like to welcome everyone to the standing committee on the Legislative Assembly. We're going to be reviewing the Municipal Freedom of Information and Protection of Privacy Act, section 55.
COLLEGE OF PSYCHOLOGISTS OF ONTARIO
The Chair: Our first presenter this afternoon is Ms Yarrow, the registrar of the College of Psychologists of Ontario. Welcome. We have half an hour, and perhaps make your presentation and leave some time at the end for questions from the committee. You may begin.
Dr Catherine Yarrow: Thank you very much for the opportunity to speak to this committee. I had hoped to be accompanied today by one of our consultants as well, Dr Bruce Quarrington, who has contributed in large measure to our written submission. He is ill, unfortunately.
This opportunity has been a very timely one for our college, as we've become aware of a particular concern with respect to the Freedom of Information and Protection of Privacy Act with respect to its provisions for release of information and exemptions respecting the release of information.
As you know, the role of the College of Psychologists is the protection of the public in its receipt of services from members of our profession. We are responsible for ensuring that services are provided competently and ethically and for establishment of standards.
One area of particular concern to our college and to our profession is the area of appropriate release of information. Certainly the maintenance of confidentiality of client records is critical, but on the other hand, the release of information and the appropriate release of information to clients is also important so that clients may be appropriately informed of what decisions are being made respecting their own interests.
However, we as a profession have at least two concerns about information which we believe should not be released. The act addresses one of those, and that is certainly the provision for non-release of information which could cause harm to the client or to anyone else. The other area where we have concern is not, in our opinion, well addressed by the legislation and has become an issue of increasing concern as we've had some experience with its implications.
In particular, our concerns revolve around psychological test information. As it stands now, in the act itself and in some other court decisions, there is not a clear exemption to prevent release of psychological test data. In particular, we are concerned not just about the answers an individual may give to a psychological test but information which either directly or indirectly might permit the individual, and hence the public at large, to deduce or indeed to actually determine what the specific questions and content and tasks are in psychological tests.
Briefly, I'd like to digress to speak about the nature of psychological tests and how they differ from examinations and so forth. As you are probably aware and as you may know from a submission which I believe you've received from the test publishers themselves, psychological tests are the result of years of research, sampling and standardization. They are not like school examinations, where you may develop a set of questions and then replace them with another set of questions if someone discovers the first set and invalidates the examination. Rather, scores of samples are taken from the population at large. Thousands upon thousands of individuals are tested, the goal being to develop a set of test questions, a set of test tasks, which will distribute the performance of the population in what's called a normal distribution, that is, most members of a particular population would score around the median, around 50%, correct on any particular test or would score around 50% in answering in a particular way on a test, and a few, a small percentage of the population, would score relatively high or relatively low on the test. Having standardized the test, it then allows for comparison of the performance of any one individual to the population at large. Hence the normative data.
In addition, standardized tests permit research and allow the profession of psychology, the field of psychology, to make predictions, on the basis of certain types of test scores, how someone might behave, how someone might perform in a learning situation. The tests can cover everything from intelligence tests respecting learning potential to tests for neuropsychological problems, personality characteristics, psychopathology and so forth.
As you might imagine, anything which might result in members of the public having access to the specific test questions or test protocols in advance invalidates the value of the test. The tests are standardized on the presumption that the individual has no specific knowledge or exposure to the actual format of the test and to the actual content of the test.
Where our concern arises is in the provisions in the legislation respecting release of information. As I've said earlier, we quite endorse the ability of clients to access publicly held information about themselves. The concern arises when someone requests a file which contains psychological test data.
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To obtain simply a score, an indication of how an individual performed in a test, is quite appropriate and we certainly have no concerns about that, but the nature of many psychological tests is that the scoring is done on an answer sheet. The answers themselves may be written in by the test administrator on what's called a test protocol. The test protocol may or may not contain the actual questions or an actual description of the task when the test is administered. So it may be possible if someone were to be released a copy of their test answers, with or without the scoring, that the person might either deduce from the nature of the answers what the original task was or what the question was or there may be sufficient descriptors right on the answer sheet to give away what the test question was.
If a member of the public has that information and then is retested, that reduces the likelihood that they will be relatively naïve to the test over and above whatever they would've remembered anyway, and if that information is then disseminated, either by chance or wilfully, by that individual to other members of the public so that the public gets more and more information respecting the content of the test, the test then becomes invalid and can no longer be used in the service of the public in assisting in assessing needs for specific educational programs, in the case of their use in education; in the case of corrections, in making recommendations and decisions respecting parole or treatment in corrections; in working with individuals in community and social services respecting any particular needs someone might have for service. It won't be possible to do adequate assessments and to make adequate recommendations. Therefore, there's a considerable loss to the public.
In actually reviewing the provisions of the act itself, section 10 provides for specific exemptions where it speaks to "a head shall refuse to disclose a record that reveals a trade secret or a scientific, technical, commercial, financial...information." It's arguable whether a test protocol is a trade secret. I think you may find that the test publishers will say that it is. The result of that dissemination might be that such information is no longer available to the institution -- for instance, in the extreme case, I suppose, that the test might not be made available to the institution -- or an undue loss or gain to any person, group, committee or financial institution or agency. I would put to you that that is probably more the concern of the test publishers, and you will hear from them about that.
The matter we would like addressed, that is to say, the invalidation of these tests and the removal of these tests from the repertoire of professional psychology for providing adequate services to the public, is not adequately addressed in this set of provisions.
In section 11, it speaks to the discretionary ability of a head to refuse to disclose a record. A head may refuse to disclose a record that contains, again, trade secrets or financial, commercial, scientific or technical information in clause (a).
The only other provision that comes close is clause (h), which speaks to questions that are to be used in an examination or test for an educational purpose. Again, the use of psychological tests is much broader than for an educational purpose, and I suspect that clause (h) may be largely addressed literally to examination questions that are used for providing grades for performance in particular courses or programs. Psychological tests, as I've already said, are used in a much wider variety of settings for a wider variety of purposes, the educational domain being only one area, and certainly in corrections, Community and Social Services, Health and so forth, even in employment assessment and so on. So there are many, many more situations in which these tests are used.
To summarize, psychology is a profession which has been recognized in the Regulated Health Professions Act as having the skills and the expertise to perform the controlled act of communicating a clinical diagnosis. Part of the tools used by the profession of psychology are these well-standardized psychological tests. Our concern is that the Municipal Freedom of Information and Protection of Privacy Act does not adequately protect these tests, does not adequately protect their integrity and therefore their validity, and they are at risk of being lost as a useful tool in the provision of services to the public should the act remain in its present form.
I won't speak to the specific situation, but there is even currently now, I believe, a hearing coming up to address this issue in a situation where there has been a request for release of information which, if released, would jeopardize the validity of one particular, well-standardized intelligence test that's been used not only throughout North America but in many areas of the world.
I believe you've received submissions from the Canadian Psychological Association as well as the Ontario Psychological Association, and we've had concern about this particular issue from the American Psychological Association as well, as this will affect all of us. These tests, as I say, are used throughout North America and throughout much of the world. There is concern that if in Ontario we expose these tests to invalidation, there will be significant repercussions.
I would like to stop here and entertain questions.
Mr Tilson: I saw a movie on this very topic, where somebody studied all kinds of tests -- they knew they were going to be tested -- and they fooled everyone. Of course, that's Hollywood, but I understand the issue.
You specified the non-release of information that could cause harm. Could you elaborate on that point? Who says it could cause harm?
Dr Yarrow: Usually, when these types of requests come through a public agency, the individual in that agency in a position to make decisions about release may well consult with the professional who prepared the report or a professional who has the expertise to interpret a particular report or information on a particular file.
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For instance, in the case of psychology, if there were information on a file which, if it were provided to the client, if the client were unstable, suicidal, homicidal, had some potential for some type of violent acting out against either him/herself or a member of the public, and if release of the opinion of, say, the assessing psychologist might inflame that individual to some type of action, either to harm him/herself or a member of the public, that would be a case in which, arguably -- actually, not even arguably -- the exemption is provided that that material might be withheld from someone seeking it.
Mr Tilson: Then, of course, there would be the usual appeal process if someone didn't like that decision.
Dr Yarrow: Yes.
Mr Tilson: All right. In terms of keeping tests confidential, I had never thought of the issue you raised, other than seeing this Hollywood movie. Aren't all these tests available through textbooks?
Dr Yarrow: No. In fact, that's a point I should have made, and I'm glad you brought it up. The test publishers themselves require the completion of a form which indicates the eligibility of the purchaser to acquire the actual test protocols, the questionnaires, the booklets and so forth. At a minimum, master's level training in psychology is typically required, even for the purchase of these tests. In many cases the test publishers will require evidence of not only graduate level training but, in some cases, of professional certification in the field.
Mr Tilson: As to those specific tests, I can understand that. But before you even get to that stage, aren't there basic tests written to assist people who are qualifying through their master's or their doctorate? It would seem to me that there are basic tests to reach the point of the tests you're speaking of.
Dr Yarrow: Are you speaking of tests which give examples to these trainee psychologists or whoever?
Mr Tilson: Yes, the basis that develops these tests that you wish to be excluded.
Dr Yarrow: I'll speak particularly to the training of, say, psychology students. When they are taught courses in ethics and psychological assessment, at the same time they are also taught about the necessity to keep these tests confidential, if you like, to maintain the validity.
Mr Tilson: I'm not challenging that. I'm not challenging the professionalism of students or whoever may have this training. I'm asking, is not that information, or the basic information, available at your local library or your university library?
Dr Yarrow: No, it's not, and it should not be. It's available in restricted ways only to people who are eligible to actually see those tests. This is a subject that comes up for some debate and that's been challenged in a number of library systems.
Mr Tilson: If I wanted to go to my local library -- not my local library perhaps, but an academic library, are you telling me that the academic library won't allow me to see certain books?
Dr Yarrow: It shouldn't, that's right.
Mr Tilson: Is there legislation that precludes that or is that what you want to be?
Dr Yarrow: That's policy at this stage. I don't know that there's legislation to preclude it, but it's policy, it's part of our own standards. Any university library with this kind of information must keep it separately in a test library which should be accessed only by qualified individuals.
Mr Tilson: What if I want to get that information. How do I get it?
Dr Yarrow: You'd have to qualify to obtain it.
Mr Tilson: But there's no law you know of that precludes someone like me from getting that information.
Dr Yarrow: Yes, I don't know of it being law. It's simply a standard practice and policy.
Mr Tilson: It's simply policy of the specific library.
Dr Yarrow: That's right, yes.
Mr Drummond White (Durham Centre): There are tremendous issues that come out of this. Frankly, as Mr Tilson was illustrating, we're talking about a closed circle. The people who have a right to make a decision about what information should be disclosed are most likely the very people who put that information in the file to start with, or their colleagues, their immediate colleagues. It's very much a self-protecting circle.
I'm curious about which professions should have the right to not disclose information, not to enter them into common files, whether it's in a school board or a children's aid society file or whatever. In your opinion, which professions should have that right?
Dr Yarrow: I'd like to address your first comment before I come to your question. It sounds like a closed circle, possibly. However, a regulated profession is a profession which is accountable by statute, and a member of that profession is accountable for the judgements and decisions that are made, so a member of the public who may be concerned that a decision is an inappropriate one or that the service provided has been somehow inadequate or inappropriate has recourse. That recourse can be legal recourse, in many cases. There is nothing inappropriate from the point of view of our standards to request that the confidential test material be referred to an independent professional for assessment and reinterpretation and re-evaluation. The client can certainly seek another opinion about whether or not these tests administered were administered appropriately and interpreted appropriately and the information used appropriately.
So there is recourse. It's not completely closed, in that regard. If there were ever any indication, that the professional originally providing the service had done so inappropriately, there would be recourse to the college itself.
Mr White: I appreciate that there would be recourse through a self-regulatory body, but that self-regulatory body also is composed primarily of psychologists and some lay members.
Dr Yarrow: Just under 50% lay members.
Mr White: But it would be, like the legal profession, a body. It would to a great degree be informed by its own practices and by its own ethics.
Dr Yarrow: That's quite true. There are standards of practice in the profession that are held to be very important.
Mr White: And I would doubt that that recourse would very frequently be drawn upon. If we could, though, what in your opinion would be professions that should be withholding information from a common file in a public institution such as a school board or a children's aid society?
Dr Yarrow: In my opinion, the question is rather broadly stated. I'm not for a moment suggesting that a profession should withhold information in the sense that all psychological information be withheld. We are particularly addressing subsets of information.
Mr White: Well, given the same criterion in terms of the mental health stability of the patient, client, whatever.
Dr Yarrow: I'm not sure which other professions would utilize tests of the nature that we are speaking to.
Mr White: Information.
Dr Yarrow: But I'm talking particularly about the test protocols themselves; not information about performance of an individual, but a test which is a standardized test which could be invalidated with practice, if you like, with familiarity and with practice. I think this is something that tends to be particular to our profession. It's difficult to imagine another profession with exactly those same requirements, so I'm not sure I'd want to make that type of generalization.
The Chair: I'm sorry, we're going to have to go on. Mr White has taken up Mr Wiseman's time for questions. We go to Mr Elston.
Mr Elston: If Mr Wiseman has a brief question, I don't mind him putting it in my time.
Mr Wiseman: Thank you, that's very kind.
My question has to do with balance. This legislation strikes me as being the kind of legislation where we have to balance certain factors. In this case, I'm wondering how we can balance the right of the individual to face the accuser, which of course is the test and the interpretation of the test with respect to cultural biases, experiential gaps: parole officers or whatever, or even employers saying they're not going to hire somebody on the basis of the tests that have been done. We have to balance that in terms of what we put in the legislation and I think we need some idea of this balance from you.
Dr Yarrow: Surely. As I mentioned earlier, we certainly anticipate, if someone feels they've been tested inappropriately or assessed inappropriately or even that there's been bias in a procedure, that that individual have recourse and can certainly have recourse to a second opinion and have all of the original data transmitted to someone for review, with the permission of the client, for a second opinion. I'm not sure of the main thrust of your question, though. Is it really what recourse exists or --
Mr Wiseman: When the IQ testing was done in the late 1920s and early 1930s, that was held as gospel, and then they found out that there were cultural problems, learning gap problems, and that a person who could be extremely bright in one context would wind up being not so bright in another context. How would you be able to weed out those kinds of scenarios within a test? If we were to put into the legislation the kind of protection you're asking for, who would be the challenger of that kind of problem that may slip into the testing, in all good faith, without people really recognizing the problem?
Dr Yarrow: I'll go from the individual case to the more general case. Any individual would know which specific tests had been administered. The profession at large is certainly responsible to make itself aware, to inform itself about any existing or known biases, cultural or otherwise, in the tests. Research continues to be done, both in the academic setting and in the applied professional settings, respecting many of the tests to evaluate the bias. As you say, we've become more aware in our multicultural societies in North America that members of different cultural groups may score differently.
In response to that, there are two areas of responsibility. One is in the basic research, which can be conducted in the academic setting but which can certainly be driven and the questions raised by members of the public, by public representatives in the legislatures, by inquiring professionals and academics and so forth. Then it's the responsibility of the practising professionals to be aware of that information, if there is bias, and to apply appropriate discretion in administering tests. Many tests already have different norms developed for different cultural groups, recognizing that different groups do perform differently on particular tests. The professional applying the test is responsible to know about those and to use the appropriate comparison group when interpreting tests.
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Mr Elston: Basically, isn't this issue really about proprietary rights as opposed to -- if I make one of these tests up and somebody divulges it to the public, my work is gone, right? Basically, the saleable market for my product is no longer in existence because it's not a clean, fresh instrument for testing the student. Isn't that really a big part of the issue?
Dr Yarrow: That's a fact. It's not the issue for us. It would certainly be an issue for the test publishers, for whom this is their livelihood. For us, there are only, in the field of intelligence testing, two or three major tests utilized, and those have been well standardized and well researched over the years. Of those tests, if any one of those were lost to the public domain, that is, were no longer available to be utilized, that greatly restricts the objective testing that can be conducted in order to assist individuals in making recommendations for educational placement, in order to assess neuropsychological deficits, in order to assist in placement for job training and so forth. It would be a significant compromise to what could be done for the --
Mr Elston: Basically, isn't what you're asking the public to do, by agreeing that there should be no access to these, just to trust the College of Psychologists and the profession itself to do the best job possible, without giving the broadest public the satisfaction of being able to make an inquiry behind that trust? Isn't that really the conundrum we have?
Dr Yarrow: That's certainly a part of it, and we are responsible for that trust already by statute. We are responsible to do that. As I said, the other side of the concern is whether there is some intermediate compromise, and I don't know how it would work, in which if you allowed an individual to see the test protocol or sufficient information for the individual to become fully aware of the test content, it would invalidate future applications for that individual. One might argue that the individual might be required, through some mechanism, to give his or her word not to transmit that information anywhere else and to contain the knowledge of that information. Whether that's a reliable means and compromise, I really don't know.
I guess we're erring on the side of conservatism: not to place that trust in the hands of individual members of the public but rather to ensure that we protect the test.
Mr Elston: Just one last quick question, real short: How do you make the sale of this test for use in a secondary school or elementary school or post-secondary education facility if you don't have to divulge the way you do the test and the things behind the test to the individuals who have to buy into agreeing that it be used as a tool in their system, or to school trustees? How can they be asked to purchase on behalf of the public an instrument about which they have no understanding or in-depth knowledge? I just don't understand how you can ask them to do it without asking for some kind of almost theological belief in psychological testing.
Dr Yarrow: We may be speaking to two slightly different things. I am addressing myself particularly to psychological tests, which should be purchased only by qualified psychological practitioners employed by the school boards.
Mr Elston: For use in, and that psychological tester has to be getting permission from her or his supervisors or directors --
Dr Yarrow: To conduct the testing.
Mr Elston: -- or superintendents to actually do something. Otherwise, they could be doing almost anything and saying, "You can't ask me what I'm doing, but I'll give you scores for everybody."
Dr Yarrow: It still does not preclude information about the general nature of the tests, the rationale behind the tests, the overall procedures for administration, without giving away specifics. It's really the specifics which would affect the ability to keep an objective score on the test that we're addressing. We're not looking to keep deep, dark secrets about what we're really after or what we're really trying to get at in these tests. That's not really our issue.
The Chair: Ms Yarrow, I'd like to thank you for appearing before the committee today. I think we could go on for another half-hour with no problem.
Dr Yarrow: Thank you for the opportunity.
JOHN CREELMAN
The Chair: Mr John Creelman, come forward, please. Welcome. We have half an hour, and we hope you can make your presentation and leave some time at the end for questions. As you were sitting back there, you saw that many members are anxious to ask questions about your presentation. You may begin.
Mr John Creelman: Thank you, Mr Chairman, members of the committee. My name is John Creelman and I am a municipal councillor in Mono township, which is situated in Dufferin county. I am here today, however, in my personal capacity.
My interest in freedom of information goes back to the late 1970s when, as senior researcher for the Liberal Party, I helped prepare a portion of its submission to the royal commission established to examine the matter. Some members may also recall that I appeared before a legislative committee when this act was originally under consideration. As contributing editor at that time of our weekly newspaper, the Orangeville Citizen, I was concerned that access to information and records would be meaningless without a corresponding opening up of the business of municipal councils and their committees. Despite a different vantage point today, I still have that concern.
More recently, I assisted our local MPP, Mr Tilson, to establish his office here at Queen's Park.
As I prepared this submission, it became apparent that almost anything I could say about the municipal act could also be said about its provincial counterpart. While I realize the provincial statute has recently undergone a similar review, I would hope that your report will urge parallel changes to that act where appropriate.
First and foremost, and I can't stress this too strongly, we can ill afford to become complacent or self-congratulatory over the existence of FOI legislation or its apparent success in opening up government to greater scrutiny. Indeed, some might argue that we have only a veneer of openness, that with all the various exemptions, the public still only finds out what we in government want them to know.
Second, I am particularly alarmed that a fee-for-information philosophy threatens the entire premise behind both acts. Under the guise of cost recovery, a popular concept these days, government could be tempted to effectively shut down the flow of embarrassing information through the persistent and systematic imposition of unreasonable fees for the recovery of information which in many cases ought to be freely available. Let's not forget that the public has already paid once for the information it seeks through these acts. Further, we should not be asked to finance the reorganization of government information into a form which reasonable people might expect to find for purposes of accountability, cost control, normal accounting and information management. It should be in that form to begin with.
Third, I believe the public's right to know how its money is spent by government must be the transcending principle behind all FOI legislation. It is therefore inconceivable to me that any statute that purports to ensure that right also exempts public servants' remuneration from proper scrutiny. We elected officials take for granted the right of our constituents to know how much we're paid. Why should it be any different for public servants, whose salaries come from the same source?
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It should be noted here that we aren't talking about a long-standing right to privacy. Exact salaries of municipal officials were routinely recorded in bylaws passed in open session by municipal councils. Public servants at the provincial level earning over a certain amount had their salaries and expenses published annually in public accounts. Suddenly, and coincident with the breaking of the $100,000 salary level at the provincial level and the $50,000 level municipally by more and more employees, the public was denied specifics. Instead, with the passage of these two acts, we were offered salary ranges which were and are so broad as to be utterly meaningless.
I would suggest there is a further problem with the two acts. They don't differentiate between elected and non-elected public servants. One can be excused for wondering whether that means that disclosure of elected officials' salaries should be treated in the same way as disclosure of public servants' salaries.
I recently wrote to Commissioner Tom Wright about this and other questions I have regarding the acts. In his response dated December 22, Mr Wright admits that neither act makes a distinction between the salaries of elected and non-elected officials, although, and I quote from his letter, "The acts work in a way that there is a distinction in outcome, ie, the total remuneration of elected officials is disclosed." With due respect to Mr Wright, I'm not so sure there still isn't a problem here.
Mr Wright went on to tell me that nearly a year ago he wrote to the then Management Board chair Tony Silipo, urging the amendment of both acts to permit the disclosure of actual salaries of public servants. Sadly, he also indicated that he didn't know whether the government intended to proceed with amendments to the acts in the area of salary disclosure.
Frankly, I can't see how this committee can do anything other than concur with the commissioner's desire to see amendments to the acts. Here we are nearly a year later, and several private members' bills and resolutions calling for the same sort of action have since been tabled in the House. The government has recently required disclosure of pay packages of senior executives of public companies, a move I applaud, but unlike investors in certain companies, the government's "shareholders" are still without the fundamental right to scrutinize how their employees are paid.
Another issue which I raised with Commissioner Wright, and I realize this may be outside the purview of this committee today, is the fact that the Legislative Assembly is not covered by the provincial freedom of information act. When I decided to test my theory that employees of MPPs, cabinet ministers and party caucus staff have something closer to a contract-for-personal-services arrangement than a regular public servant relationship with their employer, I found out there was no head, for purposes of the act, at the Legislature to whom I could make an FOI application. If my theory is correct, these employees' remuneration is not covered by protection-of-privacy provisions of the act. I raised this matter with the commissioner in my letter, but prudently he didn't deal with it in his response. I hope this committee will consider the irony of the Legislative Assembly's exemption from the provisions of the provincial act.
Thank you. I would be pleased to answer questions.
The Chair: We'll start off with questions from the government party. Do you want me to come back? Okay, I'm going to go to the Conservatives. Mr Tilson.
Mr Tilson: Never turn down a question, particularly from a member of the great riding of Dufferin-Peel.
As to the whole issue of accountability and salaries, your theory about caucus staff and indeed MPPs is an interesting one, and I'm sure the committee will be looking at that more carefully.
I'd like you to talk in your capacity as someone who's had some experience in municipal politics -- and I've indicated that I have, as I know other members of this committee have -- dealing not only with salaries but with allegedly confidential information. In other words, there's a resolution to move into private session just to discuss property and personnel matters, I think the terminology is. Then you get in there and all of a sudden someone starts to talk about something else. Has that happened frequently in your experience?
Mr Creelman: Actually, it happens all the time. My concern when I last appeared before a legislative committee was that there was a discrepancy between the policy of the then government to open up records and documents to scrutiny but not do anything to amend the Municipal Act to ensure that municipal councillors abided by some reasonable rules regarding in camera sessions. I realize there has been draft legislation which will touch on that. It is pending, as I understand it. It's tied up with municipal conflict-of-interest matters as well.
I've had experience as a journalist, a consultant and a municipal councillor. I've probably filed a good half-dozen FOI applications; I've successfully appealed one as well. I guess my concern is that we're very happy to say, "Yes, these various documents are available," but the actual mechanical workings of municipal councils are still shrouded in a certain amount of secrecy.
Let me give you one clear example that is of particular concern to me right now. Under the act, there is an exemption for documents related to annexation matters. Here is an event in the life of the municipality that I think has no equal, whereby a municipality is either annexing an adjacent municipality or is the subject of an annexation attempt by an adjacent municipality.
The public really doesn't find out anything through this legislation and it doesn't find out anything about it through the municipal boundaries legislation, or indeed through the activities of its own municipal council until such time as basically the deal is done and the storyboards go up on the wall and open houses are organized. The whole process of disclosure of that is, I think, contrived and designed to ensure a minimum of public participation. That's just one area that is of some concern and an exemption that's contained in this act.
Mr Tilson: The real problem is that you start talking about what a "meeting" is. Whether you're talking about meetings between municipalities over annexation or waste management or -- I can't think of any other examples, but those are two specific examples. What's a meeting? What about municipal councillors meeting outside the purview of their municipal councils as such, meeting with other municipal councils to discuss matters that may have been in open session in their own meetings, but because they're not meetings, they can really do anything they like? Have you had much experience with that? Annexation obviously may be one.
Mr Creelman: Yes. There are meetings and then there are meetings. The Municipal Act, as I understand it, is very explicit inasmuch as it demands the passage of a bylaw or a resolution to enact the will of council. I've found it ironic that prior to this legislation, as an example, we would pass a bylaw that would set out the specific remuneration of employees, but after this act was brought in, we would pass a bylaw that would vaguely allude to the existence of a pay grid that, to interpret, you'd need a couple of other documents which were not in bylaw form.
On the document side, there are some things going on that are not really very straightforward. On the procedural side at the municipal level, I think it's the same thing. A few of us who've gotten into municipal politics with a background in political work and a background in journalism are very conscientious about reminding our colleagues that maybe what they're doing is not on the up and up. Unfortunately, there are too few of us around, and I have to say that at times you feel like you get a bit co-opted as well.
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Mr Tilson: How do you know whether the salaries you may be paying the staff at Mono township are reasonable?
Mr Creelman: That's a good point as well, because we really can't compare with anyone else either. We hire a consultant who comes in and does a pay equity study or we hire a consultant who comes in and says all the salaries are too low in their experience. They of course are precluded from giving us specifics; we simply have to take their word for it. Everybody is acting in isolation of everyone else under this legislation, and I think that's very regrettable.
We had a case in Dufferin county that was really quite incredible a number of years ago. The paper I work for made application to the county for the percentage increases that staff had received over a period of time; I think it was three years. The paper knew it couldn't get precise salaries, so it was content to simply look at the percentage increases. The municipality, I think wrongly interpreting the act, said the paper was not entitled to it. It took a change in councils and a municipal election for a decision to be made to release percentage increases, which in no way compromised the actual salaries of the individuals being paid by the municipality.
Mr Hayes: Mr Creelman, in your second-last paragraph, you talk about your theory "that employees of MPPs, cabinet ministers and party caucus staff have something closer to a contract-for-personal-services arrangement than a regular public servant relationship with their employer." Maybe you can be a little more specific. I'm looking at employees, for example, of our party, the New Democratic Party, where most of them actually have collective agreements which spell out what their salaries are. There isn't any real secret there. I don't know what arrangements the other parties have, whether they pay higher or lower. Maybe you could be a little more specific about what you mean here, because to me it is a little vague. What more are you asking for here?
Mr Creelman: I threw this in only to point out that in the absence of being able to get at real salaries, one becomes very inventive in trying to find ways around the act. I've noticed, for instance, that a disclosure does not constitute an unjustified invasion of privacy if -- and then there are three items. One of them has to do with disclosure of the financial details or other details of a contract for personal services. In my experience at Queen's Park in the 1970s and more recently, while I wasn't asked to sign what might be described as a personal services contract with my employer, it was made fairly clear that I was not in the same category as a regular public servant. I think we fall into some kind of position in between.
What I was looking at was to make an application to the Legislative Assembly for information, which in all probability would have been turned down and then I would have appealed this question to the commissioner. I ran into the problem that there is no head to whom I can make an application and therefore no opportunity for an appeal to be launched to settle the issue as to whether these are contract employees or regular public servants as contemplated by the act. Then I was told that the Legislative Assembly is in fact exempt from provisions of the provincial act.
Mr Hayes: What is Peregrine Farms?
Mr Creelman: That's just the name of my farm north of Orangeville.
Mr Wiseman: You raised an interesting point a little earlier, and I think Mr Tilson was going down that road as well; that is, a bunch of councillors who get together and have dinner together and do all their horse-trading, "If you give me this, I'll give you that," and so on, and then they go into council the next day and the motions just come up, "All in favour?" and everybody's hand goes up. Give us something we can hang our hat on in terms of trying to put an end to that kind of dealmaking so that everything is done on the council floor.
Mr Creelman: I understand that process and I see nothing necessarily wrong with it. That happens in the Legislature; House leaders' meetings as a case in point. But what concerns me, and I get back to the boundaries negotiation process as my example, is that that's a whole process that goes on for a very long period of time outside the view of the public and the press, and that's really when the decisions are made. It's presented as a fait accompli, and we've all seen the consequences of that. I'm convinced that bad decisions get made behind closed doors more often than not.
Mr Wiseman: But in the instance where you're talking about the House leaders, if a House leader goes back to his caucus with a bad idea, surely there's going to be some noise made -- maybe not in Mr Elston's caucus, where everybody just toes the line.
Mr Elston: We have a very persuasive House leader.
Mr Wiseman: But I can tell you that with the rugged individuals in our caucus that's not the case. But where is the opportunity for the public to make presentations to council on the issues when they're being delivered and discussed at the local restaurant or someplace and then they just go into council the next day and go one, two, three, and it's gone? You see, there is a distinction between these, where this horse-trading going on doesn't take place on the council floor and there is no debate. The individual who has an argument with what's going on very rarely has opportunity to make any kind of presentation at council because it can be all done.
Mr Creelman: Again, those of us who come at municipal politics from a different direction than some are on guard for abuses of the horse-trading over the dinner table.
Mr Wiseman: But you're rare.
Mr Creelman: We're rare; I think we're fairly rare. The other thing is that we have, at least in our municipality, tried to build in safeguards in our own procedural bylaw -- and we are a municipality that has a procedural bylaw; a great many don't. One of the aspects of our procedural bylaw is a question period for the public, and that goes ahead every single council meeting.
Mr Elston: John, I'm sorry I had to step out for a couple of minutes. I'm interested in your taking issue with the idea of a fee for information, on the first page, and if somebody's already asked this question, let me know. It seems to me that while we may have paid for the accumulation of that information on one level as a public, I may not want to pay for your accessing that information for the purposes of your job at the Orangeville Citizen, for instance. How do you put the balance? Your argument is okay as far as it goes, but why should I pay the cost of having public officials run through the records so that you can write an editorial or a book or so you can politically undertake some criticism of government activities. Could you respond to that issue?
Mr Creelman: It's a fair question, and I try to deal with it in the sentence that follows; that is, I think there should be an expectation that information is found in a reasonable, organized form, that one shouldn't have to spend thousands of dollars in order for government to sort through information and organize it in a fashion that a normal person would expect it to exist in in the first instance.
Some of the cases that have caught media attention have had to do with the disclosure of public servants' restaurant bills and things like that, and there have been a number of them over the years. The fees that have been requested for that kind of information have, in some instances, been absolutely outrageous. I remember McAuliffe's fight with the CBC, when he was working for the CBC, over that matter.
Mr Elston: He doesn't fight with the government any more.
Mr Tilson: He's on side.
Mr Creelman: I realize that.
Mr Elston: In fact, somebody should ask for his expenses, if they haven't already.
Mr Creelman: What he was asking for in that case was nothing more than what an auditor would walk into the same office and ask for.
Mr Elston: And get.
Mr Creelman: And get, and get fairly quickly and with a limited amount of hassle. I don't know how you'd legislate it, but I think there should be an expectation that the material is in a reasonable form and that we're not subsidizing the reorganization of it.
Mr Elston: John, another issue that strikes close to municipal politicians but is actually headed by the province now is assessment. I've had a number of complaints from individuals whose properties have been assessed and have been told, "We've reassessed you because we've got three other comparable properties," and they say you should be charged more on your assessment notices. Then when you ask the question, "Which properties are they?" you are told, "We cannot tell you, because that is in violation of the privacy of those other people." Have you ever had that as a problem municipally, addressed to you from one of your ratepayers who feels restricted by that policy, and would you make any suggestion about what should be done about that as a problem?
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Mr Creelman: I haven't personally had that issue raised, but there are ways of doing assessments and valuations that could rely on publicly disclosed trades of real estate in the local area, and I don't really think that anyone's aggrieved by that kind of disclosure.
Mr Elston: It seems interesting, though, that before you could find out who the comparator is you'd have to find out which properties the assessor used, and they say they're not at liberty to disclose it. From my point of view, I don't think it's fair. It's the same point as Mr Wiseman used with respect to the previous presenter. You have a right to know what the case is that really establishes your position, I suppose, to use it in the broadest sense.
It seems to me that in some cases the freedom of information act indeed is being used as a barrier to what normally was routinely disclosed. You used to get the information disclosed about whose properties were being used to compare to yours. Then people found out that if you disclosed that, people would go out and say on appeal, "My house is only 2,200 square feet instead of 2,450 and my garage is not enclosed" and a bunch of things like that. It seemed to me that the freedom of information act may be used as a shelter.
Mr Creelman: Yet there's language in here which says, and somebody can correct me if I'm wrong, something to the effect that the act should not be used to suppress information which historically has been available, except in the case of privacy issues. Quite frankly, I think both acts have gone overboard in the area of privacy. I know of very good cases where there shouldn't be disclosure of private information, but in trying to achieve this balance that people talk about, I think the balance has become skewed somewhat and has got to be righted again in light of people's increased demands for accountability.
The Chair: Mr Creelman, I'd like to thank you for your presentation before this committee.
Mr Hope: Mr Chair, I have a couple of things: This morning during the presentation, a lot of reference was made to the BC act. I'm wondering if it would be possible to get a copy of the BC act.
Interjection: Saskatchewan and Quebec too.
Mr Hope: Mostly BC, because I've seen a lot of BC reference, so I'm going to use BC, to limit the amount of staff work.
Ms Susan Swift: Did you want the whole act or the sections the commissioner referred to this morning?
Mr Hope: My own preference would be the whole act. It's probably easier to get the whole act than to get specific areas of it.
Another question: I notice that we're going to have a number of councils in presentations to this committee, and I'm hearing about openness etc. I'm wondering, if it's available, how many councils hold their meetings during the daytime without public access, like television or whatever. We're talking about the public not knowing until something happens. That came up in a presentation, but I never had an opportunity to ask my question because time was used up.
If we're talking about openness, not only through legislation but openness to the general public, information is very important. I can go into more detail with you later, but we're going to hear from councils saying "openness," yet their meetings are conducted at a time when the general public, who are working, has no access to the general information being shared. I know I have that in my own county council. I would like to try to find out what information is around there. Maybe there's something we ought to do to make sure that council meetings are conducted during certain hours to allow more openness for municipally affected issues to be brought forward.
DAVID HELWIG
The Chair: We have Mr Helwig from the Business Times. Welcome. We have half an hour, and we hope you can leave some time at the end for members questions.
Mr David Helwig: London Magazine, a publication in London, England, wrote 247 years ago that "Every subject has not only the right, but is duty bound, to inquire into the public measures pursued." That phrase, "public measures," became the working title of a two-year investigative journalistic endeavour which I conducted shortly after the Municipal Freedom of Information and Protection of Privacy Act came into effect in January 1991. So I appear before you as a user of the legislation, as a journalist, and as editor of a small business publication in the city of London, Ontario.
This investigation, which made extensive use of MFIPPA, if I can refer to the statute in that way, is believed to be the most rigorous and intensive ever conducted into secrecy at the municipal level anywhere. Using the access provisions contained in this new law, I was able to shed light on a wide range of previously secret activities of a municipal council in St Thomas, Ontario, to such an extent that this project has been recognized by six national and international awards for investigative journalism, including a citation for meritorious public service from the Governor General of Canada.
Based on this very enlightening exercise, I wish to make a number of observations and a number of recommendations to this committee; first, an observation that this law, although by no means flawless, has actually been a very useful and beneficial first step towards opening public business to the public. I think it's important that it be recognized in that way. I am aware that this legislation has received criticism, some of it from journalistic colleagues, but I think it's very important to look at what rights of access existed previously.
Except for limited access to documents in the possession of municipal clerks -- at the time, that was subsection 78(1) of the Municipal Act -- there was virtually no right of access for journalists and other ordinary members of the public. If what I wanted was in the city engineer's office, if it was in the city treasurer's office, if it was in the administrator's office, I could be lawfully denied access.
All that, of course, has changed under freedom of information. Using this powerful new law, I discovered that local municipal politicians were routinely, in my municipality, dealing with contentious issues in secret meetings. This was a routine practice; it was not an exception. This was based on something like 18 months of detailed surveillance using this legislation.
I can tell you we used this legislation perhaps in a way in which it was never intended. We used it as a legitimacy test for closed meetings. I didn't really come here to discuss the broader issue of the Municipal Act and informal meetings and the like, closed meetings, but it's interesting that we used the legislation in that way. What we did was that every time we learned that this particular municipality had held a closed meeting, we ordered the minutes of that under the municipal freedom of information act.
Our rationale was that this legislation contained exemptions for almost anything conceivable in terms of a legitimate reason for holding a closed meeting. If we got anything in terms of documents, it was immediately suspicious: Why did we get anything? We found that massive amounts of documentation came out of these closed meetings and we found it very, very hard to justify in terms of the public interest the sorts of things that were going through. Let me give you some examples.
We found city council in one case using a closed meeting to approve the purchase of new firefighting suits for every firefighter in the municipality. It waived its own tendering bylaw, which is supposed to safeguard the integrity and impartiality of the purchasing process. They waived it. What was the rationale for that? We will never know, because it happened in a closed meeting. All we have is the result.
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We found the local police services board secretly bullying a local author, who'd been commissioned to write a history of the St Thomas police. What happened was that they got a little more than they bargained for. It was supposed to be a nice, benign little history for school children and they got instead a rollicking account of cops indulging in booze and bribes and brothels. I'll spare you the details, but when I caught up --
Interjection.
Mr Helwig: I'm sure you'd enjoy it. When I caught up with the story, the board was actually trying to confiscate all copies of this manuscript to stop the individual from publishing. When we went with the story, it ended up being picked up across the country and a local newspaper published the entire manuscript word for word, so their efforts at suppressing publication went for naught.
Perhaps a more serious example is that we caught city councillors secretly voting to change the eligibility criteria for welfare, a decision that affected many people in the municipality and had the potential of seriously affecting the bottom line of the municipality. The point is that at no point was this decision ever disclosed to the public. You're aware that municipal law requires actions of a closed committee meeting to be ratified at a public session of city council, so how did they get this through without it ever coming to public notice? It was done through a catch-all clause.
Here's the motion they presented at the public council meeting approving that decision: "That the recommendations, directions and actions of the...social services committee as set out in the minutes...be confirmed, ratified and adopted." They never released the minutes because it was a closed meeting. The public had no idea what was going on. A very significant decision was made that affected many people in the municipality, and the taxpayers were completely ignorant.
It was only through the Municipal Freedom of Information and Protection of Privacy Act and the process of investigative journalism that this fact came out. There were something like 18 or 20 stories about matters of public interest that we produced in the course of this investigation. The bottom line was that if it was contentious, it went through in a closed meeting.
I am convinced through my reading of the literature on this, my reading of the case law, that it is not limited to small communities like St Thomas. As a matter of fact, most of the case law deals with larger municipalities. It is a pervasive problem in this province, by no means limited to the city of St Thomas.
The particular strength of this piece of legislation, which I again stress is not flawless, lies in its underlying principle, that municipal governments should be generally open, with secrecy the exception that must be justified and strictly limited in law.
The Business Times fully concurs with the view that confidentiality is an important, indeed an essential, part of good government. We stress that. We're also concerned that while this legislation allows for penalties for those who violate its privacy provisions, it contains no penalties whatsoever for those who blatantly and without cause deny access to information that clearly ought to be released.
Is non-compliance a problem? I refer you to the most recent annual report from the Information and Privacy Commissioner, in which he reports that on appeal only 31% of decisions by MFIPPA heads were upheld, 29% not upheld and a further 24% only partly upheld.
Those numbers and also our own experience strongly suggest that there is an unacceptable level of non-compliance with the access provisions of this legislation. It bites solely on the side of privacy. That is where the penalties are; that is where the bureaucrats are concerned. There is no penalty for erring on a matter of access, and so I suggest to you that there's a non-compliance problem there that needs to be addressed.
The solution is simple. The Business Times calls on you to give freedom of information some teeth: Allow the commissioner discretion to impose fines for blatant withholding of public information in the most serious of cases. If our two-year investigation proved anything, it's that unnecessary secrecy is a deeply rooted, pervasive problem in Ontario municipalities. It will not be eliminated by gumming it to death.
The Business Times further asks this committee to do everything it can, as has already been mentioned, to preserve the ability of ordinary people to use this legislation without prohibitive fees. We are fully supportive of paying our way if we are making unreasonable requests or putting civil servants through a great deal of difficulty. We support that.
On the other hand, I find increasingly, everywhere I turn, that there seems to be a tendency of government turning to information as its new source of revenue. It may be legitimate, it may be fiscally responsible, but we ask you to also remember the need of government to be open and accountable to ordinary citizens who need sometimes to access small amounts of information without prohibitive expense. With certain agencies now, I'm after one tiny piece of information and they want to sell me a $300 annual subscription in order for me to get that, and I have a problem with that. I think it's important that we not lose sight of the need for the little guy to get access to small bits of information without breaking the bank.
As has already been mentioned as well, in view of the government's recent decision to compel disclosure of individual salaries of senior executives of publicly traded companies, the Business Times calls for amendment of subsection 14(4) to allow similar disclosure for senior public servants, at least senior public servants. In our view, the onus for disclosure by government should be equal to or greater than the onus on corporations and the private sector.
Mr Tilson, we've never met, we've never corresponded, we've never talked, but I applaud your efforts to try and get this through. It's important that there be consistency on this point. A year or so ago, frankly, it's not a point I would have pressed, because I do respect the need for privacy. But now that we're compelling the private sector to do this, I think it's important that the onus on government be at least equal to or greater.
Finally, we point out that notwithstanding the progress made by this legislation, generally the statutes of Ontario continue to allow many local institutions to cloak themselves in secrecy. So-called public hospitals, for example, are covered by neither the municipal nor the provincial freedom of information acts. They consume vast amounts of public money, yet access to their administrative records, which is all I seek -- not the medical records; that's an entirely different and very complex area -- is largely governed by the Corporations Act, the same legislation that governs the private sector. Why? There's a problem there.
The statutes of Ontario are a dog's breakfast of inconsistency on the issue of access to government documents and meetings. The matter of informal meetings has already been raised. That is an area of particular interest of mine, and I would volunteer to supply any member of this committee with three years of so-called caucus minutes from the city of St Thomas.
"Caucus" is an unfortunate term, because it means something completely different at the municipal level. I don't have a problem with it so much at the provincial level. It is the members of one party solely. Municipally, "caucus" is a gathering of the entire decision-making body. Provincially, it would be tantamount to the entire Legislature meeting behind closed doors at a doughnut shop, if that were possible, and ironing out decisions. This is what happens at the municipal level. Rest assured, it does happen.
Our municipality was foolish enough to maintain minutes of these things. We've got them, under the Municipal Freedom of Information and Protection of Privacy Act, and again I'll make this offer to any member to supply you with three years' worth of the minutes of these things. The municipality's position was that they reached no decision at these things and therefore they were legal. We found repeated decisions made, recorded in their own minutes.
We believe that informal meetings -- caucuses, workshops, retreats, whatever -- are a very, very serious problem. One potential way of addressing that would be to simply put within the Municipal Act, wherever there's a reference to "meetings," a reference to "meetings, informal or otherwise." Our problem is not so much with two or three individuals meeting to discuss matters of public interest. Our problem is with the entire decision-making body getting together and ironing things out before it comes to public attention. That is happening. Rest assured, our investigation has documented that very well, and I encourage you to try and address that.
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Our bottom line: We believe at the Business Times that the time has come for a review of all Ontario statutes to make them consistent with the very commendable and useful principles of the Municipal Freedom of Information and Protection of Privacy Act. We ask you to ensure the unhindered right and responsibility of the people of Ontario to inquire into the public measures pursued in their cities, towns, villages and other municipalities.
Mr Elston: A very interesting presentation. I want to thank you for appearing with us today. It seems like there is a consistent request here for us to report that we should disclose public servants' salaries, that we should include hospitals and other things, so I suspect that we are probably moving ourselves at least partly towards those as recommendations. But I'd be interested in the hospital issue, because hospitals actually were to become part of this bill until there was an undertaking from the Ministry of Health that there would be a separate bill to cover access.
While you have spoken about the dichotomy of areas for inquiry, one for medical records and the second purely administrative, in some cases some of the administrative records that you may be seeking could be construed as partly dealing with medical information in the sense of the use of equipment and how it's used, the role of the people behind the use of the equipment as an administrative factor. Have you thought your way through how we might make a provision that would sever reasonably or logically those two parts of the hospital's records?
Mr Helwig: A big start, I think, would be to sever the board of governance that governs its documents. We found that one way of obtaining access within the city of St Thomas was to buy a membership in this particular board, which provided under its procedural bylaws an additional amount of access.
I've gone through a fair number of their minutes and records, the sort of thing I was seeking, and found very, very little of the sort that you were referring to. That medical information that might be confidential as personal, private medical information simply does not go to that level, to the board of governors. That might be a good way of starting somehow to sever the board of governors and insist that there be accountability there.
Mr Elston: Even with the chief medical person reporting to the board, there was very little, if any, personal information?
Mr Helwig: There was a medical advisory committee, and I don't recall the degree to which I got access to its materials. I was more interested, frankly, from my standpoint initially, in simply getting access to the governance --
Mr Elston: And the manner of expenditure and the money issues, inside allocations and otherwise?
Mr Helwig: Yes.
Mr Elston: I think it's an important step. Have you thought about universities at all, being that you're relatively close to a large university in London? It is also one of the places that has been recommended for coverage by both Mr Charlton and Mr Wright as earlier presenters. Had you thought about that one at all?
Mr Helwig: That's one area I haven't worked on yet, but I certainly concur there are massive amounts of public funding going into that.
Again, I think the statutes need to be gone through entirely. There are all sorts of little cracks. One that we found in our municipality was the economic development corporation. It functioned as a virtual department of the city. It was so tight that when the mayor's secretary was gone, this department's secretary picked up the phone and answered for the mayor, and yet they claim to be exempt under municipal freedom of information because of their board structure.
Mr Elston: So you would recommend that perhaps we should check the definition of the organizations covered under this to ensure that that second level of local government, the economic development corporation or whatever they might be called, are covered by this? You haven't said that specifically, but I suspect --
Mr Helwig: We're asking for a sweeping review of all provincial legislation that deals with institutions and access to documents and access to meetings, to bring it into consistency with the principles here.
Mr Elston: So would that result in any type of organization that would report to a public council that might have an influence on a public decision, or what decision ought to have been public at any rate?
Mr Helwig: There's a fine line there. There are many organizations that deal with municipalities and that receive funding from municipalities, and I'm not exactly sure where to draw the line in every case. I am aware of numerous institutions that are -- I gave you one example, a virtual department of the municipality that's in city hall and functions as a department within the city and yet claims administratively that it's not. Things like that need to be clarified.
Mr Elston: If it looks like, sounds like and is located like, it ought to be treated like part of the council. Thank you.
Mr Tilson: I was interested specifically -- sometimes you were referring to notes and sometimes you weren't. Do you have any notes that you could give us?
Mr Helwig: I apologize for not bringing full copies, but I can supply the committee with at least one copy of what I've got.
Mr Tilson: I do appreciate many of your remarks, specifically the two remarks on the problem of revealing -- I've asked this question of some of the people who have been before us so far, having had some experience in municipal council.
You get in there, you go into private session generally for general words and then you're there and someone starts talking about something. You have a choice: You can blab to the media and run the wrath of your fellow councillors. That seems to be all that's at risk, because no one's going to talk.
If some council's foolish enough to write it all down -- the council that I was in certainly didn't, and I haven't heard of many others that did. It's remarkable that you found what you did. But your comments about penalties are certainly worthwhile and I think something that the committee should look at.
I gather what you're also saying is that perhaps we should have a look at what "meetings" mean, informal or otherwise. I enjoyed those words and perhaps we should look at that.
But I can't resist, when a member of the media comes forward to talk, getting your thoughts specifically on the subject of court actions. There seem to be more and more situations. This is probably off the topic a little bit, Mr Chairman, but the speaker did refer specifically to all institutions.
The comments from you in your capacity as a medium where the courts are more and more excluding members of the public or the media from reporting on specific cases -- there's an obvious one that comes to mind, and I don't know whether it's appropriate to discuss that here, but perhaps in general terms you could give your thoughts from the media's point of view or just from your own personal point of view as to how far the courts are going.
Mr Helwig: I have had some experiences along that line, not specifically with bans on publication, and I can advise the committee that there are problems at the bureaucratic level with obtaining access to simple housekeeping records. There is caselaw up to the Supreme Court level that provides journalists with access to housekeeping court records. We're allowed to see certain information in criminal cases, and I can tell you that I've had to threaten court officials with court action in order to get bureaucrats to supply the information.
Ultimately I have been successful, but I think my experiences that way have indicated a very strong need for training within the bureaucracy and not just in the courts in terms of information access, that the public in many cases does have a right to access information and it is important that the bureaucrats who are dealing with the public understand exactly what those limitations are so that they can make intelligent decisions. Some of the decisions I have encountered have been absolutely bonehead decisions.
Mr Tilson: I'm not so much thinking about having access to court records. I defy any court official not to allow anyone to have access to court records. I'm looking specifically, on the issue of reporting of decisions, as to how far the line of cases seems to be moving. The obvious case is the St Catharines case, whether there should be legislation from a provincial or federal jurisdiction that deals with that subject.
Mr Helwig: The issue generally being that of bans on publication, you mean?
Mr Tilson: Yes.
Interjection.
Mr Tilson: Well, I qualified my remarks. The fact of the matter is that the speaker has referred specifically to going on all institutions across our province. It seems to me one of those institutions is the subject of the courts, so hopefully you'll allow me to pursue that.
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The Chair: You haven't got much time, about 30 seconds to get a reply.
Mr Tilson: Well, 30 seconds to a great answer.
Mr Helwig: I didn't come prepared to discuss that at all, but I do concur with those who feel that the status quo is indicating a very serious problem within the province of Ontario. The particular case to which Mr Tilson is referring -- it's simply not acceptable the way it is. The whole issue needs to be looked at.
The Chair: Mr White, Mr Cooper and Mr Hayes.
Mr White: You should tell me when my time is up.
The Chair: You've got five minutes to share with your colleagues.
Mr White: First of all, if I could, as quickly as possible, get from you a couple of comments here. Mr Helwig, I was very impressed with your comments. Here you were dealing with the Municipal Freedom of Information and Protection of Privacy Act and yet there was a large amount of information that was being withheld from a public body. You're suggesting that the freedom of information and privacy provisions should include a number of other public institutions such as hospitals and universities, which are publicly funded. You're suggesting they should be dealt with as public institutions just as municipalities and the provincial government is and not as private corporations, correct?
Mr Helwig: Based on the amount of public funding they receive.
Mr White: You're also suggesting there should be a proactive approach in a sense that if there is to be information which is withheld, where people's rights are being impinged upon, there should be a straightforward declaration of that, a prior rationale for why a closed session should be occurring.
Mr Helwig: I'm not sure I've considered that or that's what I'm recommending.
Mr White: But what you are saying is that issues of confidentiality were used as the excuse for a private meeting, but were not effectively the actual reasons.
Mr Helwig: Yes.
Mr Mike Cooper (Kitchener-Wilmot): I read through the original review of the freedom of information and protection of privacy. At that time it was stated that legislation should have built-in allowances so that legislation is reviewed. That's why we're here today, because it's built into the legislation and we have to review it. This would be a good thing, because if you look at what we're doing presently, some of the legislation we've been dealing with in the past couple of years has been basically not touched in 15 or 20 years and it's so outdated, substantially changed.
These are some of the things we've done. We have to admit that the reason for this legislation was the fear, because of the technological advances about protection of privacy and with the review built in then you can start working on what we can loosen up and allow. But there are still more people who are asking for a greater protection. I know you'll have the police coming forward and making their comments about what should be released to the media, especially on the rights of victims and whether that should be loosened up or tightened up.
This is a perspective I'd like you to address. Should this be loosened up so the media have total access and then you forget about the rights of the victims or should it be tightened up so they're more protected?
Mr Helwig: It's not a question I've given a lot of thought to, particularly now that I'm involved with more of a business publication which does not often deal itself with the sort of criminal matters that -- I just don't think that's the sort of thing I can give you an intelligent opinion on on the spot.
Mr Cooper: But you can understand where, with the piece of legislation, by having the review you can either tighten up or loosen up. If that's built into most legislation, that would address a lot of the concerns.
Mr Hayes: Are you familiar with the Sewell report dealing with open local governments?
Mr Helwig: Not as well as I should be. I'm familiar with some of the provisions, yes.
Mr Hayes: Maybe you haven't read too much of it, but some of these issues about council meetings are actually being addressed and will be addressed in that particular report and legislation to follow. I just wanted to get your opinion as to whether you felt that would actually complement the freedom of information act or whether it wouldn't, I guess.
Mr Helwig: I wasn't aware that the Sewell report impacted on the issues I'm referring to --
Mr Hayes: It does deal with the municipalities.
Mr Helwig: -- so I can't express an opinion on that.
Mr Hayes: I see. How long have you been having these problems trying to get information from the municipalities?
Mr Helwig: Very shortly after the act came into effect, it became an interest to me.
The Chair: Mr Helwig, thank you for taking the time to come with the information that you have given us on different aspects of the act.
REGIONAL MUNICIPALITY OF PEEL
The Chair: That the next group is from the regional municipality of Peel.
Ms Deborah Trouten: I'm going to be making the presentation. My name is Deborah Trouten, I'm the regional clerk, and I have two people with me whom I will introduce.
Mr Chairman and members of the committee, good afternoon and thank you for this opportunity to provide our feedback on the Municipal Freedom of Information and Protection of Privacy Act, which we affectionately refer to as MFIPPA. You'll hear me say that a fair amount: FIPPA or MFIPPA.
My name is Deborah Trouten. I'm the regional clerk and director of administration for the region of Peel. We are here in our role as administrators of the legislation on behalf of the region. With me are Michael Proudlock, who acts as our deputy clerk, and Robert Candy, who is the supervisor of corporate records and our MFIPPA coordinator for the region.
The submissions we are presenting today are the result of a staff review of this act. Many of the recommendations we are making today have been dealt with by our council but not in a formal, concise mechanism. Many of the observations are from a staff point of view. I am the delegated authority to administer the act for the region, so I speak with some experience in administering the act.
I think it's fair to say that during the three years that this act has been in force it has increased access to government records and privacy of personal information. However, achieving these purposes requires the allocation of public funds at a time when the public is demanding better service at a lower cost. The objective of our submission is to identify ways in which the act can achieve its main purpose at a lower cost to the public and with greater efficiency.
We have five main recommendations and I'll conclude my remarks with some comments on the provincial act governing the same issue.
Our first recommendation relates to the requirement for a directory of records and personal information banks. The research, maintenance and duplication and printing costs of these publications are expensive. Perhaps the most costly requirement is that of identifying the legal authority for each collection of personal information, which involves many hours of legal research and advice.
As most municipal services are mandated by provincial legislation, municipalities retain very similar records across the province, with the main differences being between the upper and the lower levels of municipalities. This results in every municipality reinventing the wheel at tremendous cost to the taxpayer. By contrast, here at the province, Management Board maintains the directory and index for ministries, colleges and other provincial institutions.
We believe that the same service could be provided to municipalities and local boards covered by MFIPPA and we recommend that Management Board be responsible for publishing a province-wide directory of municipal records with the assistance and cooperation of municipal institutions. As municipal institutions can readily supply information for such a directory, it would be, in our view, a simple and cost-effective joint effort.
Our second recommendation is for more routine access to information. The act does not contain any provision to encourage municipal institutions to provide access to information to the public on a routine basis, outside of making a request under the act. As municipalities are subject to the direction of the province with regard to their powers and duties, this results in unnecessary caution about releasing information to the public that should be routinely provided.
Some municipalities have interpreted this lack of a routine access provision to mean that all requests for information from the public must be made under the procedures of the act, despite the act's principle that information should be made available to the public. Requiring the public to request information under the act rather than providing routine access is not an efficient way of conducting business. It's more expensive to administer and results in delays to the public.
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The act contains some provisions intended to provide routine access to information, but in our view they do not go far enough.
Section 50 refers to access in response to oral questions but does not define what procedures should be used. This section also preserves access to general information that was available before 1991 but does not recognize practices established after 1991 explicitly. Section 50 also excludes routine access to personal information even to the individual to whom it relates. Members of the public are often required to make a request under the act for their own personal information despite the right of access.
Section 27 refers to maintaining a record of personal information "that is available to the general public," but does not authorize municipalities to create such public records or offer any criteria for determining what should be public.
We recommend that changes be made to section 50 to include routine access practices after 1991 as well as routine access to personal information by individuals to whom the information pertains.
We also recommend that a new routine access provision be added permitting and encouraging municipal institutions to disclose records more readily and efficiently.
Our third recommendation relates to access to personal information by elected officials on behalf of their constituents. Our Peel representatives on this committee will be very familiar with this issue.
Section 32 outlines the rules for disclosing personal information and is almost identical to section 42 of the provincial act. The key difference is in access to personal information by elected officials. Clause 42(j) of the provincial act allows personal information to be provided to a member of the provincial Parliament who is authorized by a constituent to make an inquiry on that constituent's behalf.
This same provision is missing from the municipal version of the act and, as a result, elected officials including yourselves as members of the provincial Parliament, as well as municipal councillors, are not afforded an equal right to obtain information on behalf of constituents. This results in delays in responding to inquiries from constituents, while we as municipal staff obtain consent directly from the constituent.
We recommend that section 32 be amended to add the same rule found in clause 42(j) of the provincial act in the interests of fairness, consistency and efficiency.
We also suggest that privacy be enhanced by requiring that any personal information disclosed is relevant to the inquiry.
We also have concerns with the notice-of-collection requirement. Section 29 requires that institutions notify individuals when collecting personal information of their legal authority, the purpose and the name or position of an employee who can answer their questions about the right to collect the information.
Most of the information provided in this notice of collection is already available in the index of personal information banks. Providing a notice to individuals at the point of collection is therefore a duplicative effort in our view, resulting in additional costs in redesigning and printing forms, employment advertisements and other such collection mechanisms.
In our experience over the past three years, the public has never inquired about the notices of collection which have been placed on all of our regional forms and advertisements. In our municipality alone, we have in excess of 3,000 forms, so you can imagine the effort, the labour and the cost of making those changes. A more efficient approach would be for institutions to have this information available in the index of personal information banks at the request of the interested individuals, eliminating the additional unnecessary expense.
We recommend that section 29 be amended so that the notice is provided on request and that the matters covered in section 29 be included in the index of personal information banks therefor.
As you know, the field of access and privacy is changing rapidly with the continuous development of new and pervasive systems technologies that will have a radical effect on information issues. In order to monitor the effectiveness of this and the provincial act and to continue its improvement to deal with these changes, we believe that this committee should review the act's operation every three years and consider comments from all interested parties. In fact we recommend that both acts be amended to require further reviews every three years due to rapidly changing technologies.
In 1991 the standing committee on the Legislative Assembly reported on its review of the provincial version of this act. Because many of the amendments to the provincial act may also result in amendments to the municipal act, we offer the following comments on that report.
Let me say at the outset that we support most of the recommendations in the report and we are highlighting here only those which we especially support or oppose.
We support recommendations to simplify the rules for disclosure of personal information. We also recommend that consideration be given to combining section 14 of the municipal act with section 39, to create one set of rules for disclosure of personal information -- presently we have to rely on two sections within the same act -- with clear examples of records that should and should not be released.
The rules for disclosure of personal information are extremely complex. To add to the confusion, there are two sets of rules for disclosing personal information, with ample room for conflict and misunderstanding between them. This is difficult to administer from our point of view, it's difficult for the public and other employees to understand and results in too many decisions about disclosure of personal information being referred to specialists in the legislation, at greater cost and delay to the public.
We oppose recommendations to require written consent to disclose personal information and to prevent consent-to-release forms. Currently institutions can rely on the consent of an individual, obtained orally or in writing. Eliminating the option of oral consent to disclosure will result in greater delays to the public in obtaining access to information. I'm sure all of you can identify that as advocates on behalf of your constituents.
There are many cases where a client is not able to provide written consent, for a variety of reasons, or where the urgency of receiving the information makes waiting for written consent unacceptable to the client. Sometimes clients prefer to work through advocates -- either yourselves, friends or family members -- and they expect to do business over the phone today without delay. Insisting on written consent for all such inquiries would be poor customer service and would not be welcomed by the public, in our view.
Consent-to-release forms have their legitimate uses in many programs, such as housing placement or social services, where staff must make a number of inquiries of agencies over a period of time to verify information provided by clients and place clients with other agencies. Banning the use of such consent forms would mean that written consent of the client would have to be obtained for every single contact with another agency on the client's behalf. We believe the public would view that as being overly bureaucratic.
In its place, we recommend a different option be considered by yourselves, and that is that consent to disclosure be obtained at the time the personal information is collected and that a definite time period or expiry period be established, such as six months, upon which point it would be renewed. This would be a practical solution to address any privacy concerns over open-ended consent-to-release forms.
We oppose recommendations to require institutions to consider all reasonable alternatives to proposed uses or disclosures of personal information without consent. The gist there is that we would have to go for the personal consent first as an option.
Sections 31 and 32 of our act, 41 and 42 of the provincial act, outline the restrictions on the use of disclosure of personal information. All such uses and disclosures are legitimate and proper; otherwise they wouldn't have been included in the act by the authors. Requiring institutions to favour obtaining consent over all other legitimate options, in our view, is unreasonable and again would result in more administrative costs.
We oppose recommendations to define municipal social service departments as separate institutions and to designate employees who have a need to know about social assistance recipients. These recommendations, in our view, are related to a court case in which a municipal council sought to obtain county welfare rolls, which was going on at the time of the 1991 report and was resolved in 1992 by the courts.
Legislating that a municipal department be considered separately from the rest of the municipality could interfere significantly with local accountability. It would also raise the question of who would serve as the head of the social services department for the purposes of the act. Replacing council as the head, for example, could weaken the accountability of council to the public for providing welfare services at the local level.
This recommendation would also impose additional administrative costs on the welfare system by requiring each municipal social service department to have its own MFIPPA staff rather than using municipal MFIPPA staff.
The need-to-know recommendation for social services would require greater protection for information about social assistance recipients than for information about other members of the public, such as medical or employment information. By requiring special protection of social assistance information, other sensitive information might receive lesser protection.
Restrictions on internal use of social assistance information, particularly when combined with the designation of social service departments as separate institutions, may also impair the ability of municipalities to verify eligibility, audit social service programs, prepare cases for courts and tribunals, detect fraud and conduct other proper business.
We support recommendations allowing the commissioner to extend the appeal period in special circumstances, provided that the extended time period is limited to a reasonable time frame, such as a further 90 days. The time should be limited, in our view, so that institutions are not left on the hook, as it were, about whether or not an appeal might arise at some indefinite point in the future.
Institutions often must compile large volumes of documentation to respond to requests, and the costs of storing and retaining these documents for an indefinite period of time, in the case of an appeal, would soon become overwhelming. Appeals, in our view, should be resolved efficiently and in the shortest period of time for all parties concerned.
We support the recommendation to apply fees to personal information where requests involve extensive searches. We also recommend that fees be chargeable for copies of personal information.
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Currently the act prevents municipalities from charging any fee for access to personal information. The Information and Privacy Commissioner has commented that the legislative intention to include a user-pay principle in the act is clear. We believe it is reasonable for the public to expect basic fees for access to records, whether the records are general or personal.
Until 1991 municipalities were permitted to charge for copies of records by passing a bylaw under the Municipal Act, a right which was taken away from us. This legitimate cost-recovery practice was banned by the act with respect to personal information. In situations of genuine hardship and inability to pay the fees, the act provides that the fees can be waived. This eliminates, in our view, any barriers to access created by imposing fees on personal information.
We support recommendations that requesters of information to be used for commercial purposes be required to pay the full costs associated with such requests. Businesses in our experience now use the low fee scale of the act to gain access to mailing lists and other commercial information that would cost them considerably more to compile themselves. The act is intended to provide information so that the public can be better informed about government activities, not to provide inexpensive marketing information to be used against business competitors.
We support the recommendation from the Archives of Ontario that general records in the archives be made available to the public after 20 years and personal information after 100 years. We recommend that this rule apply to municipal archives as well. This recommendation would improve access by the public to government records held in municipal archives. It would also simplify the administration of the act for municipal archives and reduce costs through setting precise time periods for public release of archival records.
Another archival concern is whether the act applies to records transferred from other institutions, such as boards of education, area municipalities and police services boards, or I might add, children's aid societies. Our archive service in Peel is the repository for records from all of these institutions.
The provincial act applies to records placed in the Archives of Ontario by other institutions while the municipal version only applies to records placed by the institution which operates the archives. As a result, records received from other institutions may not be covered. We recommend that the act be clarified to address this ambiguity.
We support recommendations permitting institutions to disregard frivolous and vexatious requests. There have been many instances where municipalities and local boards have been requested to provide information by individuals who have made it public knowledge that they are abusing the act. The time spent in responding to such requests, as required by the act, in calculating fee estimates, locating documents and resolving appeals is a waste of scarce public resources.
We oppose recommendations requiring institutions to publish in advance of any request being made and on a periodic basis a list of all studies and policy documents that are available to the public. This new requirement would impose an additional cost burden on institutions to research and prepare this list. We believe that the additional cost to generate such lists for every provincial and municipal institution across Ontario would in a time of fiscal restraint be unacceptable to taxpayers.
In conclusion, we wish to emphasize that the act is positive legislation with benefits in opening access to government information and enhancing privacy. Its disadvantages in our view are its many complex rules and regulations which are often difficult for us to administer and for the public to understand. They all too often result in increasing the cost of government instead of reducing the cost of government.
All too often as well this has resulted in a chilling effect in terms of getting the public to utilize the act. Where municipal staff were once willing to provide access to information to the public routinely, many are now overly cautious about releasing documents. This causes delays and understandable frustration to the public as well as a higher cost in processing requests formally.
We believe then that the solution to this dilemma is to simplify the rules in the act to achieve the greatest efficiency at the lowest cost to the public while preserving fairness. The focus of any reforms to the legislation should be on fulfilling the main purposes of this act through making it simpler and with fewer administrative requirements. Imposing additional administrative requirements which are not central to the act's purpose should be avoided, because they will impose additional costs to the public.
We believe that the recommendations offered in this submission will help to make the act more efficient and effective for us to administer, and we would be pleased at Peel to offer our assistance in developing these and other recommendations further. I thank you for your attention.
The Chair: We have three minutes per caucus.
Mr Tilson: One comment you made is that you're opposing the publication, in advance of any request being made and on a periodic basis, of a list of all studies and policy documents that are available to the public. You say the taxpayer won't like that because it will be costly. How would providing a list be costly?
Ms Trouten: The time spent gathering the information, searching through all the departments about proposed policy documents that are underdeveloped, I think you have to realize --
Mr Tilson: Wouldn't all that be on a machine?
Ms Trouten: Not necessarily, if it's under development. I think it's important to realize -- I know you've heard from other representatives of municipalities that a large portion of our business is dealt with in public. Our in camera session at the region of Peel complies specifically with the MFIPPA legislation. As a result, all of these policy documents and papers are public anyway. To add an extra step of having to list them in a separate document in our view is wasteful.
Mr Tilson: So you're saying it's simply impossible to provide that without a great cost, because -- my voice is gone. Are you telling me this is not on a word processor or some computer, where all of this information could be made available?
Ms Trouten: It's not impossible to provide it. What it does is add an additional step to something that's already available through the public documents of council agendas or is available over the counter from the individual department. It's not impossible it is on a word processor, but it's not in the format that the recommendation is recommending.
Mr Tilson: What does it cost to administer the freedom of information legislation in the region of Peel annually?
Ms Trouten: Roughly $40,000 at the region of Peel.
Mr Tilson: With what you're proposing, what will the cost be?
Mr Robert Candy: We haven't calculated any specific cost reductions based on this proposal, but some of the main costs that would be reduced would be printing costs. There's a lot of printing costs in terms of forms and reports and things like that, in terms of the notice of collection. That would certainly save many thousands of dollars.
The key thing would be staff time. Staff time is paid by the public and the requirement to go through a lot of these administrative loopholes which provide access to the public is costly. If we could reduce some of the requirements, then that'll clearly reduce costs.
Mr Wiseman: Just to carry on from what my colleague asked earlier, what part and time of the day are most of the meetings held at the region of Durham?
Ms Trouten: The region of Peel.
Mr Wiseman: Peel, sorry. I come from Durham. It just slips.
Ms Trouten: Our meetings are held during the day, but let me go on in answering that question to point out that there are many ways to communicate with the public other than a council meeting. In our own jurisdiction, we have a policy of public consultation on most of what we do. We provide publications after the meeting with regard to the decisions. We have a section on the agenda for the public to ask questions for delegates to appear.
When we're dealing particularly with issues that have a wide public interest, council has, on several occasions, held a special meeting in the evening. Many of the issues we're dealing with are largely routine and we do consult widely on these issues. So the timing of the council meeting is not the only issue that this committee should look at when addressing.
I don't believe this legislation is the place to address openness of council meetings. There was a draft piece of legislation -- I believe it was called open local government bill -- which addressed these issues. I would suggest that the committee or this government look at the appropriate piece of legislation to address openness of council meetings and what is held in camera and what is not.
Mr Wiseman: I just want to get a quick question in. In terms of the publications and the information that you do provide, do you charge for them and what is the range of cost?
Ms Trouten: I can't say categorically. I'm going to defer that one to Rob.
Mr Candy: In terms of publications, if people make a request under the legislation, we provide them with the fees for photocopying under the legislation. For copies of most publications, they're available to the public. There's very little cost. A lot of things are provided at no cost by our communications services.
Mr Wiseman: Does Peel have an official plan?
Ms Trouten: No, we do not have an official plan. We're 20 years old this year and we're working on our official plan. Soon. Our goal is September. I think we're the last of the regions to have an official plan.
Mr Elston: A couple of points: I was just interested in the province-wide directory for municipalities. I come from Bruce county, which is slightly smaller than Peel and probably doesn't have the same list of records available. I was kind of wondering if there was a practical way of making sure that a province-wide listing would be reasonably interpreted by someone in Mississauga or Peel and someone in Wiarton, for instance, because you might have an expectation that if they can get it in Peel, then, by God, you should get it in Bruce.
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Ms Trouten: I'm not as familiar with Bruce county as I am with the region of Peel and some of the regions in the greater Toronto area, but I think if you looked at the services delivered at the county and at the local level, a lot of the same services are provided at either level. What we're proposing is to look at those common records or collections of records that would be held.
Because of the nature of the services that are delivered at the municipal level, there will perhaps be sections of that directory that are unique to Peel or unique to Bruce county, but by and large, because our services are delegated by the province, there is some consistency in terms of the level and the types of services that are provided by municipalities, be they upper or lower tier.
Mr Elston: Some of the other presenters have spoken to us about listing the salaries of employees of municipalities and otherwise. I know you've heard the presentations. Have you had much discussion around the issue in Peel? If you have, fine; I would like your comments. If not, it's fine as well.
Ms Trouten: I feel almost as if I should declare a conflict of interest as a civil servant who feels it's personal information. Certainly what's available in our municipality, and I can only speak to our municipality, is a range for the position, largely because people move through that range based on their personal performance. We have had, to date, a personal performance review, and that is conducted by our superior. In my case, I report directly to the chief administrative officer and to the council as a whole in my role as clerk.
We haven't formally as council had much discussion. We do make the ranges available and the policy by which people receive increases. To that extent, that's about all I could say on the matter. We haven't had a discussion or compared it to private sector organizations and what we'll do. We do make the ranges available.
Mr Elston: Just one last question perhaps: Could you tell us some of the inquiries you have had for freedom of information, how many you have complied with, how many you have refused or partially refused and then how many fees you've collected, really just the statistics?
Ms Trouten: I'll have Rob answer that.
Mr Candy: What we've been trying to do over the past year particularly is increase the routine access provisions within the municipality, so our actual formal request rate has declined quite a bit. It was only at 49 last year. Prior to that, it was about 80 in 1992. We haven't had any appeals of any of our decisions.
We have refused access on some occasions, particularly when it comes to personal privacy. I think people understand that. We're fairly upfront with our reasons, so people understand the reasons we're exempting access. I think the fact that we have an appeal-free record is proof that the act seems to be working. People are satisfied with what we're doing.
The Chair: Time has expired and I'd like to thank you for coming before this committee today.
OPS BLIND AND VISION IMPAIRED ISSUES WORKING GROUP
The Chair: Mr John Rae, welcome. OPS stands for Ontario public service, or am I wrong?
Mr John Rae: It does indeed; you are quite correct.
Thank you very much, Mr Chairman and members of the committee, for the opportunity to come before you. I appear on behalf of the OPS Blind and Vision Impaired Issues Working Group. You may be a bit surprised at a group such as ours wanting to address you. I think our reasons will become evident as I make what will be for me an uncharacteristically brief presentation.
Our group was established in 1992, and we are, as our group's name implies, a network of blind and vision-impaired individuals who do work in various ministries, boards and commissions within the Ontario public service. Our group meets about every six weeks and since our inception has discussed about 30 issues. These include accessing necessary technology, who gets training, space, the effectiveness or lack thereof of the government's employment equity program and a myriad of other issues.
Of greatest concern to us so far has been the issue of gaining access to information in a form that we can directly use. Most documents, as you know, Mr Chairman, are produced today only in printed format. When I say we are looking for access to documents in a form we can use, I refer to formats such as Braille, large print, computer diskette and audio cassette, and I mean being able to access a document at the same time in my preferred alternative format as you access that document in your preferred format, namely, print.
With that background in mind, we have asked for this time in order to discuss one specific aspect of your act, namely, subsection 37(3), which speaks to the provision of information "in a comprehensible form." After the many years I've been involved in fighting to gain access to documents in alternative formats, I have a little difficulty getting my tongue around this term "comprehensible form." It's a little new to me.
Just to review, the section says: "If access to" private "information is to be given, the head shall ensure that the" private "information" be "provided to the individual in a comprehensible form and in a manner that indicates the general conditions under which the" private "information is stored and used."
I think today the right for those of us who require alternative formats to obtain our information in alternative formats is becoming increasingly recognized, but I also think it's fair to say that we have a long, long way to go. The federal and provincial governments are currently becoming increasingly active in responding to what we believe are their legislative requirements to provide access in a person's preferred format.
If you look at section 17 of the Human Rights Code, it speaks to the whole concept of accommodating a person's needs short of undue hardship. What we are coming before you to ask is that this act be amended to clarify a person's right to receive information in one's preferred format.
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I would ask you, Mr Chairman, if I can give you this to read into the record, please, section 12(3); this is from federal legislation, which I believe is directly germane to the issue that we are raising.
Mr Hope: It's on page 22 of the report this morning that the commissioner provided.
The Chair: Okay, section 12(3) of the federal Access to Information Act provides:
"Where access to a record or part thereof is to be given under this act and the person to whom access is to be given has a sensory disability and requests that access be given in an alternative format, a copy of the record or part thereof shall be given to the person in an alternative format."
Did you want me to read the whole act or was that the main part?
Mr John Rae: That's the main point I want to refer to, thank you. I believe that provision would be an adequate wording when you come to legislative drafting of amendments to the municipal act. You may want to consider other wording, but I think that wording we've tabled here would be an excellent guide.
Let me comment on just a couple of other matters, because that one is our primary recommendation we want to make.
In terms of municipal documents -- and I gather there is some debate before this body as to how far this committee should consider other kinds of municipal documents -- we think there is a chronic need for municipalities to develop plans for providing documents, bylaws, reports, to the vision-impaired community and at the same time as they're released in the print format.
I think both the federal and provincial governments are making significant progress in responding to their responsibilities. I think municipalities as a whole are way behind.
Finally, the issue of fees, obviously a difficult matter in these times of constraint. I guess the point we would want to make is that if fees are going to be instituted, and fees for a group such as ours which tends to subsist within the lower socioeconomic levels are clearly a problem, fees for providing alternative formats must never exceed those for providing the print alternative, even if the costs incurred by the municipality to do so are somewhat higher.
In conclusion, I think the legal requirement is clear. The Ontario Human Rights Code is very clear on the issue of accommodation. The Ontario Human Rights Code has primacy. I urge that you recommend this change to the municipal act, which we hope, as citizens of this province, will affect our lives at the municipal level. I think bringing about the changes we propose municipally might very well act as a good lever for further amendments to the provincial act. Thank you. I'd be happy to respond to any questions you may have.
Mr Hope: Thank you very much. I've had the extreme pleasure of working with Dick Santos as my executive assistant before his moving on to his job that he is in today, and it was a change of my life too when I was working with Dick.
One of the issues that I wanted to raise is that you talk about alternative formats, using tape. Would it be that requesting tape or audio-visual or audio and also paperwork to follow, or would it be just one or the other? The question would be, as you're doing research or whatever, for whatever purpose, the information is required as a backup, some type of backup to verify, whether that be through a reader or whatever else you might have available to your services. I'm just wondering, is it one or is it supplying both, the audio aspect or also print form?
Mr John Rae: Each of us who must deal with that cursed matter of print has his own approach. Some of us feel that being encumbered with the printed equivalent is just a nuisance that is only going to get in the way of our lives. Some of us will be able to read some amount of print and might want the alternative format to make their research simpler.
Many of us use a combination of methods for accessing print. I myself am a Braille user, as you've seen. I generally prefer audiotape except when it's a complicated document like a statute or perhaps a part of a personal record. I might prefer to have it in Braille. I also use the services of a personal reader and make my own notes in Braille from that. So I use a combination in order to be able to use the document in pursuing whatever issue I might be pursuing.
I suspect that you might get a request for the print equivalent as well, because if I have only the Braille version, and I say, "Now, if you would like to turn to page 23," that's not going to do you a lot of good, right?
Mr Hope: Right.
Mr John Rae: So in order really to function in what we recognize as a very print-oriented world, I might very well request both. It's very much an individual preference, the way each person approaches gaining access to print material.
Mr Hope: The only reason I raised the question is because if we were to go through this process and clean it up, if we only said one or the other, it would create difficulty for individuals.
I heard you talk earlier about the fee aspect. Maybe the one might be free and the other might be at a cost, whatever is decided. I just wanted to make sure that when we look at this approach we look at an approach that we could probably -- somebody who would request either audio or another source, to provide the information, it could be more than one copy?
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Mr John Rae: The good news in all of this consideration is that I doubt that any one municipality, or the provincial government for that matter, is likely to be inundated at any one point in time by such requests. So I submit that the cost factor in terms of providing even both a print version and an alternative format version in most instances will not be excessive.
Mr Elston: Just to follow up on Mr Hope, in terms of production of Braille as the format, I'm thinking about someone who is asking for a substantial report. I would think that for someone like you, who has indicated a preference for Braille, you would probably want the report in Braille as opposed to having an audio tape of somebody reading through that for you, or something. I wonder, how does a municipality or any institution prepare itself for a request from someone who may request in an alternative format, or whether or not we should be providing extended time for answering or replying to the request.
Mr John Rae: If you're speaking about the availability of reports and that sort of thing which one requires as a citizen, as all of you know, better than most of us, when a report is released, the media and the public debate on such a new report will focus the day it's released, maybe the second day, and maybe, if you've really got a hot issue, the weekend newspaper might follow up. That's why I really referred in my comments to the need for simultaneous production.
We aren't suggesting that either a municipality or the provincial government automatically make available each and every document that it puts out. I think what would be useful and what we would recommend is that municipalities put together a committee of users in the community to go over what kinds of documents are routinely produced by the municipality. I think that group would identify a number that probably ought to be made available routinely, things like reports that cover people with disabilities. I would suggest things like official plans, critical documents. Then there would be those other documents, namely, the rest, which would be made available upon request.
I think there needs to be an onus upon the municipality to take some proactive steps, because part of our problem is that it's difficult for us to ask for a report if we don't know it's there. If it's a document that receives fairly minimal coverage in the media, I very well may not know that it happens. I really think that municipalities, especially major municipalities, should be developing a committee and developing a plan, because at the moment we are shut out of that initial public discussion, and I think that violates our human rights.
The only recourse that we really have at the moment in terms of getting some of this material made available, and it's made available at some point down the road, is really to file a complaint with the Human Rights Commission. I must say that filing a complaint with the Human Rights Commission does get people to sit up and take notice, but I would really rather not do that. I would prefer to spend my time and energy as a citizen working with a community or even with the association of municipalities to try to develop some standards to help them so that we can be brought into the mainstream debate at a much earlier time in the process.
Mr Elston: So you're really suggesting what I might describe as sort of base documents for municipal work, perhaps budgets, official plans. A good example here might be the index to documents available for freedom of information, I presume, so that you actually know what is available or might be available from the municipality.
Mr John Rae: That sort of listing would be a windfall for us, especially if we had that in an alternative format, because then really the world of information would very much open up to us because, as I said earlier, it's hard to know what to ask for if you don't know it's there.
I should make one other point in this context. People will say that some of the documents that get produced, like official plans, are long and thick and fat. I know that too. Write shorter, more concise documents, is my response to that. I think we would all benefit from the use of plain language and more concise writing.
Mr Tilson: I'm interested in some of your remarks, specifically one of your last remarks, when you said it's difficult to know if a report is even there. I understand that, and of course the last delegation which was here from Peel commented on the difficulty of the cost, listing off documents, whatever they may be, reports or otherwise, that are there. They indicated that the cost would be prohibitive. That's my word, that wasn't her word, but that it would be rather high.
I represent a riding which actually is the north half of the region of Peel geographically but which also includes the county of Dufferin. It has a slew of small municipalities whose budgets are rather minimal compared to the federal government, the province of Ontario.
This committee is looking at possibly expanding these pieces of legislation to other groups. I guess I look at the whole issue of whether or not your request is almost impossible financially, specifically to the groups that this committee -- and we really haven't made any decisions or recommendations, but the consideration of expanding -- or indeed to the small municipalities such as the ones that I represent.
Mr John Rae: Some of the municipalities in your area, sir, I would imagine would produce far less material. Maybe they would be a good model for the rest of us. The Human Rights Code speaks about undue hardship and when we think about undue hardship, I think of it in terms of the entire ability of the corporation or the organization or the employer or whatever to provide those accommodations. I suggest that the same test need be applied in this instance.
I don't anticipate that you're likely to be swamped with requests. I rather wish my community was a bit more active in its demand for documents in alternative formats than it is. I simply would suggest to you that the issue of cost is one that cannot be thrown up against a group that's attempting to participate equally in the life of your community, that some method has got to be found for making our access to information more equitable.
I think nowadays a lot of documents are produced in the first instance on computer disc. It's very inexpensive to make a copy of a disc. That would not satisfy my personal needs because I'm not a computer user, but a growing number of our constituency are. So there are various ways of making material accessible. I would not anticipate that you would be flooded with requests. As I said, I wish our constituency was more active that it is.
Mr Tilson: That leads to the second question I have and that is, it's a question that doesn't only apply to individuals such as yourself who have the difficulties that you have but to everyone, and that is the abuse of process. The Chair of the board has come forward and has given examples, as has his staff, that there are people out there who simply abuse the process. They do a whole list of freedom of information applications, for example, demanding documents.
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Naturally, members of the committee get into the difficulty of what is abusive process, what is frivolous, what isn't frivolous, that whole area. But notwithstanding that, I guess this question is really related to the first question as to the issue of cost and whether you have, in your request to the committee or your suggestions to the committee, canvassed that issue with your group, which not only would apply to -- it would apply to everyone; in other words, the issue of the frivolous application.
Mr John Rae: I would submit that one ought not to tie those two issues together. I think they are separate, by which I mean there are, I gather, standards and criteria within the act that determine what is and what is not a frivolous request. I think a request from a person or a group should be dealt with in the same light. But having come to the conclusion that the request is a bona fide request based on the provisions of the act, then we come to the question of how that record or that piece of information ought to be provided.
Mr Tilson: My question is, before you get to that stage, whether your group has directed your attention as to how to deal with the frivolous applicant. And indeed, what does "frivolous" mean? I'm not so sure I know what "frivolous" means.
Mr John Rae: Specifically, no, but I assume that you have standards and provisions within the act. I think whether or not a record or a request is granted is one thing. The fact that the person asks for that document in a format they can use -- I think there's an immense danger in any suggestion that would join those two issues. I think they are separate.
I think the decision of whether to provide a requester's document is one thing. Having decided that, yes, there is justification for the individual to have access to that record, after that our position is that it should just logically flow that the individual's preferred method of accessing that document should then be provided, once the decision has been made under other provisions of the act that it's a reasonable request. I would not want you to join those two issues. I think they're separate.
The Chair: Mr Rae, thank you for comingtoday, and I think you've thrown a different perspective on it.
Mr Hayes: Mr Chair, can I just ask a short question, please, of Mr Rae or anyone else on the committee? Do we have any idea of what the actual cost would be to translate a document into Braille? Maybe Mr Rae would know that. I'm sure you've had this done.
Mr John Rae: I can give you some notions about alternative formats. It depends upon the size, the complexity, the content of a document. It's easier and cheaper to translate an item which is just straight text versus one that has complicated tables and charts and graphs. For conversion into audio tape, you can either have a staff person do it or you can send it out to a supplier who will charge in the neighbourhood of $45 per transcribed hour.
For Braille, that does get more expensive because presumably the document is probably only in print format. So the document would first have to be scanned into a computer, onto a disc, and then that disc used to produce Braille output in a somewhat similar manner to that by which you would regularly produce print output.
I think Braille output tends to be $2 or $3 per Braille page, but you've got to also take into account the time for converting the initial print document into an ASCII file within a computer. I understand the process somewhat. I am not a computer expert, so I can tell you only in general terms.
Again, the test of undue hardship has to come into play, because only some people will want Braille. I think the largest number of people would prefer audio tape. But what we're saying is that if a person's preferred format is Braille, they must have that opportunity.
The Chair: Thank you again, Mr Rae.
Mr Hope, you have a question of the researcher?
Mr Hope: Yes. In this morning's presentation that was given as pages 21, 22, 23 and 24, the commissioner's report did talk about the visually impaired and access of information. I believe, and I could be mistaken, we also talked about technology and format. I'm wondering, and I guess it's more of a question to the commissioner, if he has considered, in the format or computer aspects of it, information intake, if through the technology that we have today there isn't some way of expediting the process so it does make accessibility easier and quicker and cost-effective for municipalities and others around a computer system format that might be a translator or whatever to deal with it.
I know he's done a good job, at four pages, of identifying it for us in the report. I'm just wondering, around the technological end of it, if they've looked at it in that perspective, because he has addressed it, the province, through a mandate as in direction for audio tape, large-print, Braille and reading services. But I'm just wondering, under the input information and the technology, if they've addressed and looked at that avenue, if there's a possibility of incorporating Braille or a translation or whatever.
Ms Swift: I'll relay that request to him.
Mr Hope: Just so when he comes back, we can have a discussion about it versus me asking the question and waiting for an answer.
The Chair: This committee is adjourned until 10 o'clock tomorrow morning.
The committee adjourned at 1637.