Opening the door: Access to government records A presentation to Media students at Mohawk College Nov. 18 , 2009

1. Opening the door:Access to government recordsA presentation to Media students at Mohawk CollegeNov. 18, 2009 Bob Spence Communications Co-ordinator Office of the Information and Privacy Commissioner/Ontario

2. What an FOI request can lead to • One access to information request started a reporter on a trail that ended with a government being toppled. • Do you know what that request was for?

3. One balloon, one curious reporter - and FOI • Daniel Leblanc of the Globe’s Ottawa bureau was at an event in Quebec when he noticed a giant hot-air balloon in the shape of a Mountie. • He was curious, so he filed an access request, asking how much the federal government had paid for it.

4. What the reporter discovered • He learned that the government was paying a company $300,000 to rent a $100,000 balloon. • Daniel decided he would start watching this “sponsorship program.”

5. The end results of what started with one request • The stories soon became much more serious. • After the media and the opposition repeatedly cited the “sponsorship scandal,” and a Royal Commission looked into the controversy, the Liberals lost the next election, • Daniel Leblanc and another Globe reporter won several of Canada’s top journalism rewards.

6. Today’s presentation • Introduction to the IPC/Ontario • Access under FOI • Appeals to the IPC • Privacy

7. Role of the IPC • The Office of the Information and Privacy Commissioner of Ontario. • Who • What • Why

8. Mandate and role • For Freedom of Information and Protection of Privacy legislation to be effective, you need an independentoversight body. • In Ontario, the IPC is that body. • The Commissioner is appointed by and reports to the legislative assembly; she remains independent of the government of the day to ensure impartiality.

9. Mandate and role (Cont’d) • The IPC has seven key roles: • Resolving appeals when government organizations refuse to grant access to information; • Investigating privacy complaints; • Ensuring that government organizations comply with Ontario’s access and privacy laws; • Conducting research on access and privacy issues and providing advice on proposed legislation and programs; • Educating the public about Ontario’s access, privacy and personal health information laws and access and privacy issues; • Investigating complaints related to personal health information; and • Reviewing policies and procedures, and ensuring compliance with PHIPA.

10. The Acts • The Freedom of Information and Protection of Privacy Act (1988); • The Municipal Freedom of Information and Protection of Privacy Act (1991); and • The Personal Health Information Protection Act (2004).

11. What do the Acts cover? • The two public sector Acts provide the public with a right of access to information held by the government in accordance with the following principles: • Information should be available to the public; • Exemptions to the right to access should be limited and specific.

12. What do the Acts cover? (Cont’d) • The other key purposes of these two public sector Acts are to protect the personal information held by government organizations and to provide individuals with a right of access to their own personal information.

13. What organizations are covered by the public-sector Acts? • FIPPA (the provincial Act) • Provincial ministries; • Most provincial agencies, boards and commissions; • Community colleges; • Universities (as of June 10, 2006). • MFIPPA (the municipal Act) • Municipalities; • Police boards; • School boards; • Boards of health, transit commissions and most other local boards.

14. FOI Requests There were 37,933 FOI requests filed across Ontario in 2008 – the second highest total ever. (The record – 38,584 – was set the previous year.) • Provincial government organizations received 13,451 FOI requests in 2008, down nearly six per cent from the previous year. • Local government organizations received 24,482 requests, an increase of nearly one per cent.

15. Before you start preparing that FOI request • There are three things you need to consider: - Fees - Exemptions - Timing

16. Access fees • In addition to the $5 request fee, there can be a number of other administrative fees: • Photocopying (20 cents/page); • Floppy disks ($10/disk); • Manually searching for a record ($7.50/15 minutes); • Preparing a record for disclosure ($7.50/15 minutes); • Developing a computer program or other method of producing a record from machine readable record ($15/15 minutes).

17. Average Cost of FOI Requests • AVERAGE COST OF PROVINCIALREQUESTS 200620072008 $11.55 $10.54 $11.26 Personal Information $51.11 $50.54 $42.74 General Information • AVERAGE COST OF MUNICIPAL REQUESTS 200620072008 $8.64 $ 9.67 $ 8.82 Personal Information $21.04 $23.49 $23.54 General Information

18. Cabinet records; Personal information; Third party business information; Draft bylaws, records of closed meetings; Defence; Advice or recommendations; Law enforcement; Relations with other governments; Solicitor-client privilege; Economic and other interests of a gov’t organization;; Danger to safety or health; Information soon to be published; Limitations on access to own personal information. What information is exempt? A few exemptions are mandatory, if conditions are met; most exemptions are discretionary.

19. Pistol or shotgun? • If you are seeking very specific information but submit a rambling FOI request that asks for far more than you actually need, you will usually end up waiting for a longer period, and paying more money. • You need to choose between the pistol approach – seeking very specific information – and the shotgun approach – where you are trolling for revealing facts buried somewhere in a large number of records.

20. Pistol • If you know exactly what you are looking for (ie: a report of X committee on Y date), then use the pistol approach. Don’t make a vague, wide-sweeping request.

21. Shotgun: When looking for an edge • Some reporters use FOI to try to get an edge on the competition. This is often where the shotgun approach comes in. A reporter looks at everything that is known about a particular story, then files a wide-sweeping FOI request trying to find new information that would help him or her break new ground.

22. Not taking things for granted • Another common use of the shotgun approach is using FOI to collect seemingly routine government records. Then you go through the records looking for a lead that may end up as a front -page story or one that will lead the newscast.

23. Call first • If you are not sure what you want, or you would like a general idea of what the scope would be if you file a very general request, consider calling the government organization’s freedom of information co-ordinator first.

24. Consider size and time • If you need extensive information, you may have to make a request that covers many topics, sources or years. But before putting in such a request, consider breaking it into several requests (organized by priority).

25. Making your request • Determine which government organization has the information you want; • Send a written request to that organization’s Freedom of Information Co-ordinator; • Include the $5 application fee.

26. How should the government organization respond? • Government organizations must respond within 30 days, unless: • A large number of records have been requested; • A search through a large number of records is necessary; or • Consultations with one or more people outside that organization are deemed necessary.

27. If they say no…. Call the freedom of information co-ordinator: • Would it make a difference if you rephrased your request? • Does he or she have any suggestions?

28. Who, What, Where, Why, When • Before we move on to Appeals, let’s look at why a trio of veteran journalists use FOI/access to information, and some sharp comments in a column by another veteran journalist.

29. Why use FOI or ATI? • Jim Bronskill, a Canadian Press reporter based in Ottawa, explained at a conference that he usually files a couple hundred FOI/ATI requests a year. • “They are a way of getting beyond the daily agenda.” • “I used FOI to figure out what the government is doing … and to keep them on their toes.”

30. Going beyond government statements • Daniel Leblanc of the Globe said he uses access to information/FOI requests to “give government a sense that people are watching.”

31. What FOI represents • “It is the one piece of legislation establishing the right of individuals to ask questions of their government regarding how public officials have conducted themselves in our name.” • “While the process can be lengthy, messy and adversarial, the results have inspired vigorous public debates, changed laws, transformed public policy and enlightened us all. Much of the most important knowledge we have about how we are governed has come as a result of hard-fought victories under FOI legislation.” - Rob Cribb, Toronto Star

32. What FOI can do • And, here’s a quote from a September 2009 column by Sun columnist Christina Blizzard

33. ‘The only reason these …came to light was because of FOI’ • “The picture you got from the … expenses released Monday was of bloated bureaucrats sticking it to taxpayers for everything from big-ticket hotel rooms to piddly little cups of tea….” • “The only reason these disgusting excesses came to light was because of freedom of information requests.” Christina Blizzard, Toronto Sun

34. APPEALS

35. Appeals • If you are not satisfied with a government organization’s response to your FOI request, you can appeal this decision to the IPC. • The IPC first attempts to settle appeals informally. If all issues cannot be resolved, the IPC conducts an inquiry and (after most inquiries) issues a binding order – which can include requiring a government organization to release all or part of the information sought.

36. Reasons to file an appeal include: • You were denied access to some or all of the information sought; • You disagree with the fee being charged; • You did not receive a response within 30 days and/or disagree with the reason given for a time extension; • Your request to have personal information corrected was denied.

37. How to lodge an appeal • Within 30 days of receiving the decision, you must: • Write a letter* to the IPC explaining why you disagree with the decision; • Include a copy of your original request, and the government organization’s response; and • Include the appeal fee ($10 if the appeal relates to personal information; $25 if it concerns general information). * There is an appeal form on the IPC website (www.ipc.on.ca) that can be used. (This is not mandatory.)

38. FOI Appeals • There were 919 appeals submitted to the IPC in 2008, a slight drop from the previous year. • That number represents less than 2.5% of the number of FOI requests made in 2008 – less than one in 40.

39. PRIVACY

40. What is personal information? • Information about an identifiable individual. • Government organizations often need to ask for individuals’: • Name; • Address; • Sex; • Marital status, etc. • Both public sector Acts require that government organizations protect the privacy of the individuals whose information they hold.

41. Privacy complaints filed with the IPC • 223 privacy complaints were opened under the two public sector Acts in 2008 – a five per cent increase from 2007. • Another 284 complaint files were opened under the Personal Health Information Protection Act by the IPC. • Privacy complaints follow a similar procedure to that of FOI appeals. Mediators investigate complaints and propose solutions.

42. Examples of IPC privacy investigations • Following an IPC investigation into the theft from a doctor’s van of a laptop computer containing the personal health information of 2,900 patients, Information and Privacy Commissioner Ann Cavoukian ordered Toronto’s Hospital for Sick Children to take a number of very specific steps. Among these: Any personal data taken out of the hospital on a laptop or other remote computing device must be encrypted.

43. Investigation led to province-wide changes • After media reports about Crown attorneys collecting extensive personal information on prospective jurors in several areas of Ontario, Commissioner Cavoukian launched a sweeping province-wide investigation to determine if privacy laws were being contravened. She ultimately ordered Crown attorneys to cease collecting any personal information of potential jurors, beyond that which is necessary under the Juries Act and Criminal Code. • She also proposed a fundamental shift in the way that prospective jurors are screened, calling on the Ministry of the Attorney General to implement a single, centralized juror-screening process through the existing Provincial Jury Centre, minimizing the need for numerous background checks to be conducted across multiple offices. The Attorney General quickly approved the implementation of that process.

44. Personal Health Information Protection Act, 2004 • This is Ontario’s health privacy legislation; • It governs the manner in which personal health information may be collected, used and disclosed within the health-care system; • The IPC is the oversight body responsible for administering and enforcing PHIPA.

45. PHIPA’s underlying principles • PHIPA is guided by the 10 principles set out in the Canadian Standards Association’s Model Code for the Protection of Personal Information: Accountability; Identifying Purposes; Consent; Limiting Collection; Accuracy; Safeguards; Openness; Access; Challenging Compliance; Limiting Use, Disclosure & Retention;

46. One last pointregarding privacy • How many of you have joined Facebook or another online social networking site?

47. Social Networking Sites & Privacy • The IPC has produced several publications related to Facebook. • Among these are: • When Online Gets Out of Line: Privacy – Make an Informed Online Choice (produced jointly with Facebook), and • How to Protect your Privacy on Facebook. These publications, a video produced jointly with Facebook, and other resources are available on our website, www.ipc.on.ca.

48. Contact Information Bob Spence Communications Co-ordinator Office of the Information and Privacy Commissioner of Ontario bob.spence@ipc.on.ca 416-326-3939 www.ipc.on.ca