How the freedom of information system often results in secrecy instead of transparency

Thestar.com
April 24, 2019
Jennifer Pagliaro

During the nearly five years that I’ve been covering city hall and filing freedom of information requests, many of the access fights I’ve had have led me to conclude the system is not actually set up for access, but rather for secrecy.

The freedom of information (FOI) system is meant to benefit all of us, the public. It’s supposed to be there so we can know what data our government is collecting and provide transparency about the inner workings of democratic institutions. It’s our job as journalists to act as the conduit for things government officials aren’t necessarily saying out loud, for example, about major infrastructure projects costing billions of taxpayer dollars.

Laws governing freedom of information in this country have a common three-part purpose enshrined in legislation: that information should be available to the public by default; that any exemptions to that access must be “limited” and “specific”; and that decisions on the release of information should be “reviewed independently of the institution controlling the information.”

Accessing government information is similar to the open court principle. In a democracy such as Canada’s, we’ve decided that, generally, any member of the public should be able to go into a courtroom and watch justice being done. But most people don’t actually do that, understandably, because they are busy living their lives. It’s journalists who go and tell you what happens. The same is supposed to be true of access requests.

The system is also there to allow any member of the public or businesses to access government information for their own use.

These crucial tenets of the system are frequently not being followed.

A matter of time

In November 2017, I filed a request to the city for two-and-a-half years’ worth of records from senior staff regarding the Scarborough subway, covering the time period when I knew those officials were involved in developing a revised plan for a one-stop extension.

The city’s FOI office sent me a fee estimate on Feb. 1, 2018 saying that processing my request would likely cost $1,875, on which I would have to pay a 50 per cent deposit to proceed, as per provincial access laws. After discussing the importance of this request and the costs with my editors, on March 9 the city’s records show they received the Star’s deposit.

The FOI office then followed up to say they’d be extending the time required to respond to my request -- by 380 days, until this February. The legislated standard is for governments to respond to an access request within 30 days. However the legislation allows institutions to make extensions if the request potentially involves a large number of records or requires consultation with a third party.

The only recourse for this lengthy delay is to pay $25 to appeal to the office of Ontario’s information and privacy commissioner (IPC), which handles disputes over access. Despite the endless patience and professionalism of mediators at the IPC office, it is, in my experience, a gamble as to whether the appeals process will take less time and energy than just waiting out a time extension. I decided to wait it out.

Time is a major killer of stories for those of us in the news business and those who care about current issues. I’ve received documents, for example, years after they would have been relevant to a debate at city council.

Kelly Grant from the Globe and Mail has my favourite story. She tweeted in May 2018 that she received an unexpected completed request from the federal government after she’d returned from maternity leave. She’d filed the request before she’d gone on an earlier maternity leave.

“In the time it took to fulfill that request, I made two human beings,” she wrote.

Since this time last year I’ve been curating a list of tweets like Grant’s from reporters across the country who have documented their own fights and have similarly been frustrated by the system. Sometimes we joke about how bad the responses from governments are because, honestly, it’s easier to laugh than be overwhelmed by how much the system is failing.

The trouble with searches

City staff who were the subject of my Scarborough subway request were asked by the FOI office to start searching their own records for relevant files.

To be clear, this is how the city’s FOI system, and others I’ve used, work as a rule. The people who are the subject of a request search their own records and hand over to an FOI co-ordinator -- someone hired by the city to handle requests -- whatever they feel is relevant. That leaves what gets handed over largely up to the interpretation of that employee. Then the FOI co-ordinator goes through the records provided for anything that may need to be censored based on a range of sometimes vague exemptions provided for under the legislation and blacks out passages or entire pages. This initial combing of records by those subject to the request is actually what’s recommended by the IPC, city spokesperson Brad Ross pointed out to me.

In an email, Ross said the “the city, and the city clerk’s office in particular” take its obligations under the legislation “very seriously.” FOI co-ordinator Denise Stuckless gave this explanation to the Star by email:

“City divisions are the most familiar with their own records, therefore searches (including a responsiveness review) are always conducted by the divisions,” she wrote in an email. “Additionally, there are city policies in place governing all city staff’s responsibilities around managing their records and producing them in response to FOI requests. Furthermore, occasional personal use of city email accounts is permitted, therefore, for privacy reasons, Access & Privacy staff cannot have access to other city staff’s email.”

I have received a number of records from this request, which led to two recent stories published in the Star.

But records from three key city planning officials related to my Scarborough request have still not been provided.

In the case of two officials, according to the city’s FOI office, it took between the end of March 2018, when my deposit was received, and mid-November for the planning division to search and forward records. Nearly eight months. Those records belong to director of transit and transportation planning James Perttula and program manager for transportation planning Mike Logan.

The FOI office received a combined 30,000 pages of records for both staff, they told the Star.

Upon review, FOI co-ordinators realized a very primitive search had been conducted and that the incredibly large volume of records contained information that had nothing to do with my request. For example, the city’s FOI office explained, records appear to have been returned for the search term “Scarborough” instead of “Scarborough subway.”

Staff have since been reviewing thousands of pages instead of simply performing a new, proper search for relevant documents.

Relevant records from a third member of the city planning team could not be located “despite a thorough search,” the FOI office originally told me. But in the package they did send me, several emails were clearly copied to that staff member, Mike Wehkind. When I pointed this out, the FOI office said they would ask planning to conduct another search. I still don’t have those records.

In an email, Ross acknowledged the response to my request has been “regrettably” delayed, but blamed it on “conflicting business priorities.” He said they will review the process and resources required for managing requests.

I also have concerns about the extent to which FOI requests are discussed among staff members before records are handed over.

In the new batch of documents on the Scarborough subway I recently received, there was an email that caught my attention -- a meeting request sent in October 2015 on behalf of then director of transportation planning Tim Laspa to several city staff. The stated reason for the meeting was “FOI follow up.”

The invite contains the text of a much earlier FOI request I had made about the subway. All of the requested attendees visible on the email were subjects of the request, including Laspa.

Attached to the invite were instructions from Laspa directing his colleagues to bring “emails, reports, etc. for item #1 of the FOI request ready for this week. Please bring your materials to this meeting,” the email reads. The last part is highlighted.

Excessive costs

The Globe’s enterprising Carrie Tait asked me once what my record was for fees requested by an institution. She had just gotten an estimate for $410,739. (This far exceeded my personal record of $32,000).

These are just two examples, but my colleagues and I often get charged several hundred or several thousand dollars per request.

Charging these kinds of fees to even proceed with a request is one way of keeping government information secret, as it creates a barrier to access even for major publications like the Star.

Censored records

When the time was up on the more than yearlong extension on my Scarborough subway request this February, I emailed the city’s FOI office to ask about my file, having heard nothing. Staff told me records would soon be available and on Feb. 15, I received 1,757 pages. Another 223 pages were removed, exempted from disclosure by the FOI office for various reasons.

Under access legislation, officials can censor information for reasons such as personal privacy or because it is protected by solicitor-client privilege. But many of the exemptions are very broad, like the one that allows information to be withheld “if the disclosure would reveal advice or recommendations of an officer or employee of an institution or a consultant retained by an institution.”

Both of those and others were applied to the records I received.

Other journalists in my list have shared entire pages liberally blacked out so there is no way to know if what’s behind it is an email response, a memo or a recipe for dinner sent to a partner waiting for them at home.

“Happy #FOIFriday,” CBC investigative journalist Karissa Donkin captioned a batch in March 2018 where every page was completely blacked out.

In Ottawa, the Star’s own Alex Boutilier has remained persistent in his document quest despite the time he received censored pages where the public wasn’t even allowed to know the titles of briefing notes to a federal minister.

Outside the law

In January 2016, our city hall bureau chief David Rider filed two requests to Toronto Hydro after his own reporting revealed talks about privatization were underway. He asked to see all internal communications about the possibility of a sell-off and for the cost of work done by consultants related to the sale -- consultants connected to Mayor John Tory’s 2014 mayoral campaign.

Hydro, a public agency whose sole shareholder is the City of Toronto, refused to even process his request, hiring Bay St. lawyers and paying for third-party evidence from a University of Toronto professor in order to fight his appeals -- an endless exchange of written submissions which dragged on for more than two years at the IPC.

In the spring of 2018, the IPC ruled the public had no right to the records in this case -- where privatization talks may have been ongoing, financed by taxpayers.

Rider has filed requests to find out how much it is costing taxpayers for Hydro to fight his quest for the still-secret information.

They’re fighting him on that too.