Getting the Data

Background: rows of long numbers, some highlighted in green; Foreground: open pink padlock. Image as a whole indicates the unlocking of data.

At FactCheck Toronto, we get the data we use to hold the City of Toronto accountable from different sources. We read a lot of staff reports that go to City Council and to the committees of City Council that deal with homelessness issues (primarily the Economic and Community Development Committee and the Planning and Housing Committee). We also make freedom of information requests (FOIs) to access records that the public has a legal right to see, but that aren’t publicly available.

The Municipal Protection of Privacy and Freedom of Information Act (MPPFOIA) is the law in Ontario that sets out the right for the public to access information from all municipal governments (and their agencies, including police), and which limits the circumstances under which this right can be exercised. Each level of government has its own FOI law.

The City of Toronto says it is committed to “open and transparent government” and Open Data,1 but in practice, it makes accessing data very difficult. While the existence of a freedom of information law might be taken by some as indication that the government is practicing openness and accountability, this isn’t necessarily the case. Toronto Star journalist, Jennifer Pagliaro, writing about Toronto’s freedom of information process, has said, “the system is not actually set up for access, but rather for secrecy.”2 The Toronto Star Editorial Board has said: “The freedom-of-information system, as it stands, is too slow, too expensive and needs to be fixed.”3 But the City hasn’t been fixing the process. One of Factcheck Toronto’s founders has filed a lot of FOI requests with the City since 2017 and they have found that Corporate Information Management Services (CIMS), the City body that handles FOIs, has instead created narrower policies that make it more difficult to access information. For example, the City now limits FOI requests to 5 per person or organization (even though neither the Act nor the regulations allow the City to put restrictions on the number of request one can make) and CIMS has said that “Our office is no longer accepting records requests based on keywords,” even though asking the City for information containing specific keywords is one of the most well-established ways to obtain FOI data.4

Cost

Every FOI request costs an initial $5 deposit. Most of Factcheck Toronto’s FOIs cost only that $5 or an additional $10 to put the data on a USB key and we have gotten a lot of information without having to pay more than $15 for an FOI. Because we don’t have any funding, Factcheck Toronto had to abandon some FOI requests; a $7,050 fee estimate for one set of records meant that we couldn’t afford to move forward with the request, even though we still think the information that the request would produce might be valuable. When he was Commissioner, former Ontario Information and Privacy Commissioner, Brian Beamish said “fees can act as a barrier to people accessing information.”5 Costs can be sometimes be lowered on appeal but that can take months and the information in the FOIs is often needed much more quickly.6

Timeline

The MPPFOIA law says that the City has to respond to FOI requests within 30 days,7 however the Information and Privacy Commissioner of Ontario found that the City breaks the law 32.4% of the time.8 The City of Toronto’s compliance with the 30-day rule and the procedures to extend the time are much lower than municipal compliance overall, as the table from the Information and Privacy Commissioner of Ontario shows below. Thanks to a loophole in the FOI regulations, City staff are able to circumvent the 30-day rule; if the FOI request requires searching a lot of records, the City is permitted to extend the time it has to conduct the search and is only required to provide written notice that includes how long the search will take and the reason for the extension.10 While the extension can be appealed, the appeal process will take months, likely longer than the extension itself.

Municipal Compliance with Legal Response Times: Ten Biggest Institutions11

Penalty for Breaking the Law

There are, essentially, no consequences in many circumstances if the City or its staff break the MFOIPPA – even if it does so flagrantly. While there are many ways the law can be violated, there are only 5 offenses under the Act and none of them relate to the administration of FOI requests as is discussed here. If someone is accused of violating one of the 5 offenses (like purposefully destroying a record, or intentionally releasing someone’s private information), that person can only be prosecuted with the consent of the Attorney General of Ontario,12 which is an unusual requirement in Ontario law.13 In the Criminal Code, this condition is reserved for significant jurisdictional issues, like dangerous offender status, and genocide.14 In the unlikely event that an individual is charged under the Act, the maximum penalty is $5,000.

Notes:

  1. City of Toronto. (2020). EX20.19 Progress Report on Open Data Strategic Plan.
  2. Pagliaro, Jennifer. (2019, April 18). How the Freedom of Information System Often Results in Secrecy Instead of Transparency. Toronto Star.
  3. Star Editorial Board. (2019, April 3). Our Flawed Freedom-of-Information System Is an Obstacle to Monitoring Power. Toronto Star.
  4. If the request is not a specific keyword search, the City of Toronto develops its own keyword search and then spends time reviewing it to ensure that it is responsive to the request. A straightforward FOI keyword search request, therefore, actually saves the City time and resources, so it’s unclear why this type of search would be restricted, except as an attempt to restrict broader access to information. See: Appeal MA15-338, IPO, 30, 2016; the Information and Privacy Commissioner lists the ability to search by keyword as an advantage of electronically processing records, Ministry of Natural Resources & Office of the Information and Privacy Commissioner Ontario. (2004). The advantages of electronically processing freedom of information requests: The MNR experience; The caselaw we located with respect to keyword searches took the validity of keyword searchers as a given. E.g. Township of Clearview (Re), 2020 CanLII 72821 (ON IPC) also see: Jeske, Margo, Intahchomphoo, Channarong, Landriault, Emily and Bioni, Bruno Ricardo, 2016. The intersection of freedom of information, privacy legislation and library services in Canadian jurisdictions. Legal Information Management, 16, 14-21. Fink, Katherine. (2018). Opening the government’s black boxes: freedom of information and algorithmic accountability. Information, Communication & Society, 21(10), 1453–1471. Kirkham, Reuben. (2018); How long is a piece of string? The appropriateness of search time as a measure of ‘burden’ in Access to Information regimes. Government Information Quarterly, 35(4), 657–668.
  5. Beamish, Brian, as quoted in: Jones, Allison. (2016, June 29). Ontario government should consider cutting access to information fees: watchdog. Global News.
  6. Appeals can be dismissed or resolved at intake but, in our experience, it can take well over a month to get to intake; also see: Wallace, Kenyon. (2018, March 30). What it takes to get the results of a Freedom-of-Information request. Toronto Star.
  7. Beamish, Brian, as quoted in: Jones, Allison. (2016, June 29). Ontario government should consider cutting access to information fees: watchdog. Global News.
  8. MFOIPPA s. 19
  9. Information and Privacy Commissioner of Ontario. (2020). Looking Back, Moving Forward: 2019 Statistical Report, p. 11.
  10. The longest we have had a request extended is 90 days.
  11. Information and Privacy Commissioner of Ontario. (2020). Looking Back, Moving Forward: 2019 Statistical Report, p. 11.
  12. MFOIPPA s. 48(1).
  13. A search of E-laws Ontario, the province’s official repository for statutes and regulations, for “consent of the Attorney General” only yielded 12 hits. An additional search for “Attorney General’s consent” yielded 1 non-repeating result, for a total of 13 hits.
  14. Criminal Code, R.S.C., 1985, c. C-46.

Image: Data security breach. Blogtrepreneur