Ontario government must hand over information to accessibility advocates, commission rules

The commission's decision says the government tried to charge the group $4,200 for a sweeping access to information request seeking details on many issues.

Thestar.com
July 31, 2017
By Michelle Mcquigge

Ontario's privacy commission says the provincial government significantly overcharged an advocacy group fighting for information on accessibility law compliance in the province and must now hand over the material.

The commission's decision says the government tried to charge the Access for Ontarians with Disabilities Alliance $4,200 for a sweeping access to information request seeking details on many issues, including plans to make sure private businesses are complying with accessibility laws.

The alliance says it tried to get the fee waived and says the government enlisted five lawyers in its fight to uphold the pricey charge.

The government's argument included the assertion that the issues the alliance was seeking information on did not have to do with public health or safety and were therefore not subject to a fee waiver.

The commission disagreed, stating compliance with provincial accessibility legislation did have significant health and safety impacts for residents.

It ordered the government to provide much of the information in the request free of charge and knocked the fee for the rest down to $750.

A spokesperson for Ontario's minister responsible for accessibility said the commission had confirmed that it was appropriate to charge for some of the information requested by the alliance.

Alliance chair David Lepofsky welcomed the commission's ruling, saying the case had raised questions about the government's commitment both to transparency and to accessibility as a whole.

"They're trying to take as suffocating and narrow and impoverished an approach to openness and freedom of information as possible," he said. "What have they got to hide?"

Lepofsky has previously filed requests under Ontario's Freedom of Information and Protection of Privacy Act in a bid to keep tabs on the province's efforts to comply with the Accessibility for Ontarians with Disabilities Act.

At the time the law - known as AODA - came into effect in 2005, the government stated it aimed to have the entire province completely accessible by 2025.

In June 2015, Ontario announced a renewed focus on accessibility as the law marked its 10th anniversary. Brad Duguid, the minister responsible for the act at the time, conceded the effort had lost momentum and announced a number of ventures aimed at kick-starting it again.

The measures included a $9-million project to help businesses become more inclusive, a promise to introduce a third-party certification program to recognize accessible businesses, and a partnership with an undetermined private sector company to at least triple accessibility compliance audits.

The day after Duguid announced the various measures, Lepofsky filed a 31-point access to information request seeking details on subjects that included the government's plans to ramp audits back up, their promised outreach efforts and a number of compliance and enforcement-related statistics.

The government provided some of the information immediately and without cost, but estimated the rest would require 140 hours to track down and told Lepofsky to pay $4,200 for the information.

He appealed the fee, arguing the government had previously waived charges on similar requests. He also argued that releasing such information was in the public interest and highlighted the potential health and safety benefits of ensuring compliance with accessibility standards.

Documents filed by the government in favour of maintaining the fee included a different position on health and safety.

"The goal of accessibility programs ... while certainly not inconsistent with programs related to public health or safety, is to facilitate the participation of disabled persons in society on an equal footing with those not suffering from disabilities," it said in its memorandum of argument, noting that details Lepofsky was requesting were in line with accessibility issues, not health and safety concerns.

Privacy Commission Adjudicator Diane Smith disagreed.

"Dissemination of the information ... would benefit public health or safety by disclosing a public health or safety concern about the enforcement or compliance with the AODA or contribute meaningfully to the development of understanding of this important public health or safety issue," she wrote in her July 27 decision.

Smith ordered the government to provide much of the information to Lepofsky free of charge, including its plans and policies for AODA enforcement and details of its spending on education and outreach efforts.

The government now has until Aug. 28 to release those documents.