January 30, 2017
INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO
In the Matter of an Application under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 dated June 4, 2015, directed to the Ministry of Economic Development, Employment and Infrastructure, for the Disclosure of Records Regarding the Implementation and Enforcement of the Accessibility for Ontarians with Disabilities Act Bearing Ministry File Number MEDEI 2015 -12
– and –
In the Matter of an Appeal to the Information and Privacy Commissioner from a Refusal of the Ministry to Waive Its Fee Estimate at $4,250 for Disclosing Requested Information and Records
Reply Memorandum of Argument of the Appellant David Lepofsky
1. This memorandum of argument answers the Ministry’s affidavit and memorandum of argument. The appellant encourages the adjudicator to read the appellant’s reply affidavit before reading this memorandum of argument. The appellant’s reply position is summarized as follows:
a) By conceding now that the AODA Alliance has no money, the Ministry has in effect conceded that a fee waiver is warranted here.
b) The Ministry’s last-minute position that the AODA Alliance should have engaged in private fund-raising should be rejected in this case’s specific facts, due to the AODA Alliance’s distinctive circumstances on this issue, to which the appellant’s reply affidavit attests.
c) The Ministry wrongly dismissed out of hand as irrelevant the important consideration that the Ministry gave the appellant similar information in 2013 in response to his earlier Freedom of Information application for similar (though not identical) information, after he pressed that the AODA Alliance had no money to pay a fee for it.
d) The Information and Privacy Commission should reject the impoverished approach that the Ministry urges for the interpretation of Ontario’s Freedom of Information legislation.
e) A fee waiver on grounds of public health and safety is also warranted here. The Ministry calls on the Information and Privacy Commission to draw an unjustified and unprincipled legal line to differentiate between accessibility on the one hand, and public health and safety on the other. Yet the two often overlap, coincide, and are inextricably intertwined.
f) The Ministry’s $4,250 fee is excessive. The Ministry’s arguments to the contrary should be rejected.
g) A fee waiver would be fair and equitable here.
h) The appellant offers several reasons why an adverse inference should be drawn against the Ministry here.
i) The fact that unbeknownst to the appellant, in the 2015 summer, the Government searched for and gathered the requested information before the appellant ever agreed to pay the fee, supports a strong inference that the Ministry was willing and able to do this work, with no assurance that it would ever be paid.
j) The Ministry has rallied a battle against disclosure here that is disproportionate to the $4,250 in dispute and the case’s issues.
k) Given the long, protracted ordeal to which the appellant has already been subjected, the appellant asks the Information and Privacy Commission to ensure that all issues regarding disclosure of the requested information are dealt with at once on this appeal, so that the appellant does not have to face yet more delays, and a possible second appeal to this commission. The Ministry waited 18 months to first let the appellant know it would claim that some information or records, or parts of records he has requested may be withheld from him, on grounds that they are protected by exemptions in the Freedom of Information legislation.
l) The appellant’s reply affidavit and memorandum have had to be so extensive, because the Ministry did not reveal key elements of its detailed position before filing the Ministry’s appeal materials, five days ago.
2. The appellant’s claim falls directly within the FIPPA’s core purpose of buttressing our democracy, by helping ensure citizens have information needed to participate meaningfully in the democratic process and by holding politicians and public servants accountable. The appellant leads a non-partisan community coalition which seeks to hold the Ontario Government accountable for action on its commitments on disability accessibility which were made directly to this public-spirited coalition.
Dagg v. Canada (Minister of Finance),  2 S.C.R. 403, at para. 61, per La Forest, J, dissenting but not on this point)
2. Undue Financial Hardship – the Ministry Makes a Concession Fatal to Its Case
3. The Ministry’s memorandum at last made a concession the appellant has sought from the outset. It proves the appellant’s case. The Ministry’s para. 3, concedes for the first time: “It is accepted that the Alliance does not have money or bank accounts.” This proves the $4,250 is an undue financial hardship. The Ministry without justification refused to concede this until the eve of this appeal.
3. Fund-Raising Issue No Bar to a Fee Waiver Here
4. The appellant disputes the Ministry’s claim that FIPPA requires an applicant to show that they did fund-raising, before a fee waiver can be considered.
5. Fee waivers are discretionary. It would be wrong to impose an inflexible categorical rule that a penniless applicant must prove efforts at fund-raising before a fee waiver can be considered, as a mandatory condition precedent, regardless of a case’s specific circumstances. FIPPA imposes no such condition precedent.
6. A mandatory requirement that a fee waiver is unavailable unless an applicant can show that fund-raising has been exhausted threatens an unfair barrier to access to information, especially for the poor and disadvantaged – those who need freedom of information fee waivers the most. The Government could always turn to an impoverished applicant and in effect say: “Go out on the streets and beg!”
7. A strong adverse inference against the Ministry’s claim of this factor’s pivotal importance arises from the Ministry’s failure to raise this in either the appellant’s 2013 or 2015 applications, including during the Information and Privacy Commission’s 2016 mediation. In written exchanges between the Ministry and the appellant on his 2013 and 2015 Freedom of Information applications, the Ministry’s focus was on whether the appellant had proven via financial statements or otherwise that the AODA Alliance had no funds. The Ministry did not raise the fund-raising issue, even though the appellant asked the Ministry what more the Ministry needed him to provide. Financial statements don’t prove an organization’s fund-raising activities. They prove an organization’s assets and income.
8. Even if it were assumed that the Information and Privacy Commission must consider fund-raising in some cases, despite the foregoing, this factor should not be a bar to a fee waiver here, for the reasons supra, and because:
a) The appellant’s reply affidavit details how fund-raising activity would work against this unusual coalition’s important public-spirited work. Its being an unfunded coalition has enabled it to more effectively rally its supporters to advocacy action on accessibility. Being an unfunded coalition has reinforced its credibility in its important advocacy work. Fund-raising would violate a commitment it has made for years when recruiting people to get involved in the AODA Alliance. It has no existing fund-raising capacity. These features distinguish this case from authorities on which the Ministry relies.
b) In a world which too often associates people with disabilities with charity and begging, the very Ministry that is charged with promoting the dignity and inclusion of people with disabilities should not so vigorously seek such a restrictive approach to the FIPPA’s fee waiver provision, a provision which the Legislature enacted to ensure that money not become a barrier to freedom of information.
c) Where, as here, an individual submits an access request on behalf of an unincorporated community group, the financial hardship analysis focuses on the financial position of that group, not the individual requester.
(Ontario (Environment), Re, PO-2514).
9. The Ministry’s case law does not support this fee waiver refusal. While an organization’s ability to raise funds to pay a fee may in some circumstances be a relevant factor in assessing whether a fee request would pose a financial hardship (a proposition on which there need be no ruling here), there is no authority for the proposition that attempts to fundraise are a mandatory prerequisite for a finding of financial hardship. Ontario (Environment and Climate Change), Re, PO-3602), on which the Ministry relies, involved a more modest $968 fee, less than one-quarter of the fee here. There, the organization, unlike the AODA Alliance, maintained bank accounts and an operating budget. It actively solicited donations from its 13,000 members and through its website. Adjudicator Shaw made a fact finding based on the evidence that the organization could probably raise the required amount of money (paras. 51-52 and 55). There was no finding that to fund-raise would violate a commitment to the organization’s supporters, or work against the organization’s effectiveness.
10. In contrast, supporting the appellant’s position, in Municipality of Kincardine, Re, MO-1895, Adjudicator Haly rejected a claim that the applicant group must try to raise funds to establish financial hardship. This was so, despite evidence that the group in question did in fact raise money from its membership for the project in respect of which it sought the records. She did so, based on a factual finding that the group wasn’t able to raise the amount requested from its membership without hardship.
11. The appellant disputes the claim (Ministry memorandum para. 10) that the appellant must prove this fee would cause “severe suffering or privation.” The authority on which the Ministry relies for its suffocating definition of “hardship” quotes a dictionary definition. (See PO-2514)
12. The Ministry urges impoverished approach to FIPPA’s open government objectives. Yet the rights which FIPPA guarantees to the public must be liberally construed. Exceptions should be narrowly construed, so they don’t suffocate FIPPA’s important purposes.
13. For a respected community coalition with no money, FIPPA’s fee requirement operates as an exception or bar to freedom of information. Hence, it should be narrowly construed. The provision permitting a fee waiver should, in these circumstances, be given a liberal and purposive construction. The test which the Ministry urges is the opposite. It would make fee waivers on undue financial hardship grounds as hard as possible to qualify for. Section 64 of The Legislation Act S.O. 2006, c. 21 provides:
“64. (1) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.”
Dagg v. Canada (Minister of Finance), supra at para 61; Ontario (Public Safety and Security) v. Criminal Lawyers’ Association,  1 S.C.R. 815 at para. 1; Ontario Human Rights Commission et al. v. The Borough of Etobicoke (1982), 3 C.H.R.R. D/781 (S.C.C.)
14. The “undue hardship” exception to the Ontario Human Rights Code‘s duty to accommodate people with disabilities is not as narrowly construed as the Ministry here urges for the FIPPA fee waiver provision. This is so, even though it, unlike FIPPA’s “undue financial hardship: clause, must be construed narrowly.
Central Okanagan School District No. 23 v. Renaud 2 S.C.R. 970
4. Estoppel, Precedent and Other Like Considerations
15. The Ministry memorandum para. 22 argues that the fact that the Ministry fulfilled the appellant’s 2013 Freedom of Information application, without insisting on the fee it estimated, does not create an estoppel or precedent here. This is a red herring. The appellant does not claim that this is a legal estoppel, or that the Ministry is mandatorily obliged to waive the fee here, just because it did not in the end insist on the appellant paying the 2013 fee.
16. Rather the appellant submits that the fact that the Ministry ultimately agreed in 2013 to give the appellant the information he sought in his 2013 Freedom of Information application, invites a clear inference here, absent compelling evidence to the contrary, that a fee waiver is appropriate. It is a relevant factor that weighs in favour of a fee waiver here. It cannot be simply shunted aside as irrelevant, as the Ministry did.
17. The appellant is the same applicant. The subject matter is the same. The kind of information sought is in key respects similar, though not identical. The request’s purpose is the same. The fees, though not identical ($2,325 in 2013; $4,250 in 2015) are within the same ball park. In both cases, the appellant sought a fee waiver because the AODA Alliance had no money. In both cases, throughout, the Ministry took the position that it needed more proof that the AODA Alliance had no money. In 2013, the Ministry seemed ultimately satisfied that it should give over the information without insisting on the fee. In this appeal, the Ministry is finally ready to concede that the AODA Alliance has no money.
18. Jennifer Brown’s affidavit should be rejected on this point. It does not show she worked at the Accessibility Directorate of Ontario in 2013. She demonstrates no personal knowledge. As of the time of writing, the Ministry has refused to disclose any written records regarding its 2013 decision on which Ms. Brown purports to speak. An adverse inference against the Ministry on point is warranted.
19. The appellant does not take the position that because the Ministry ultimately didn’t charge a fee in 2013, it mustalways and automatically give over anything that the appellant ever seeks in the future, no matter how often he asks, or how large be any future requests, and no matter the request’s subject matter, and no matter the request’s purpose. However, if the circumstances of the current request are significantly similar to the appellant’s 2013 request, the Ministry should be able to offer a genuine and convincing non-bureaucratic reason for treating the two in contradictory ways.
20. It was erroneous in 2015 for the Ministry to in effect dismiss as irrelevant the fact that in 2013, it had earlier gave the appellant what he sought without charging a fee, in such similar circumstances. The Ministry took that erroneous position in its September 24, 2015 letter to the appellant:
“Regarding your previous access request in 2013, the FOI file was closed when you obtained information outside the FOI process. As such, a fee waiver in accordance with the Act was not considered at that time.”
21. That bureaucratic position is the kind of heartless, hollow technical formalism that sadly can bring the Public Service into disrepute. What the Ministry did in 2013 was for all practical purposes, a fee waiver. in 2013, the Ministry demanded a $2,325 fee, for information the appellant requested under FIPPA regarding the AODA’s implementation and enforcement. The Ministry estimated a $2,325 fee. The appellant asked the Ministry to not charge the fee, because the AODA Alliance has no money. Initially the Ministry asked for the AODA Alliance’s financial statements. It had none to give. Eventually, the Ministry backed down, and agreed to give the appellant all records and information that the appellant sought, without insisting that the fee be paid. The Ministry’s decision was conveyed to the appellant in the presence of the then Economic Development Minister, deputy minister and some other senior ministry officials.
22. From the perspective of the public and the FIPPA’s important democratic accountability purposes, the technical “inside baseball” of whether this was decided by the minister or other ministry officials, and whether information was provided under one section of FIPPA or another, or whether it or not it is given the legal label “fee waiver” is immaterial. What is pivotal is giving the appellant the information he requested without charging a fee the Ministry initially demanded. To analogize to what the Supreme Court of Canada has said about the Charter of Rights, the FIPPA’s fee waiver provision here deserves a generous, and not a legalistic interpretation.
R v. Big M Drug Mart,  1 S.C.R. 295, per Dickson, C.J.C.
23. It would similarly be wrong to refuse a fee waiver here, out of a concern that that would oblige the Government to always waive any fee for any applicant, no matter who they are or what information they requested, as long as they say they have no money. Each case’s distinctive circumstances must be appraised. The appellant’s request here has very distinctive features:
a) The Ontario Government has publicly acknowledged the important role that the AODA Alliance plays on accessibility issues. On the issues to which this FIPPA application pertains, the AODA Alliance is a leading community voice.
b) Since 2005, the Ontario Government and opposition parties have made their election commitments on accessibility in the form of letters to the AODA Alliance.
c) The Government often turns to the appellant on behalf of the AODA Alliance for input, advice and feedback, including on topics covered by this Freedom of Information application.
d) The requested information relates to key Government commitments on accessibility, readily linked to fostering FIPPA’s core democratic goals.
e) This is not a case of a private company seeking Government information, financed by the taxpayer, to aid private pursuit of profit.
f) the appellant’s reply affidavit identifies unusual circumstances that show why fund-raising is not a fair and workable option here.
5. Public Health and Safety
24. The appellant disputes the claim (Ministry memorandum para. 13 and following) that a fee waiver is unjustified based on public health and safety.
25. The appellant’s original memorandum of argument para. 50 and following, shows how AODA accessibility standards repeatedly address health and safety considerations by name. The appellant’s reply affidavit gives illustrations of how accessibility requirements can bear directly on public health and safety, even when the regulatory provision does not use the word “health” or “safety.” For example, s. 80.13(6) of the Integrated Accessibility Standards Regulation requires that an outside ramp have hand rails on both sides of the ramp. If a public ramp lacks a required handrail, this poses an obvious risk that someone can fall over the side and be injured. For an example of a missing handrail in obvious contravention of this AODA requirement in a brand-new public building on the Centennial College campus, see the AODA Alliance’s public video in which the appellant appears, available at http://www.www.aodaalliance.org/strong-effective-aoda/11292016.asp
26. The appellant disputes the claim (Ministry memorandum para. 14 and following) that health and safety is too remote here. If the Ministry does not effectively enforce the AODA and educate the public on the AODA, the consequent lack of accessibility can in so many contexts create a direct risk to public health and safety. Some 1.8 million Ontarians now have a disability. All Ontarians eventually get a disability as they age. People with disabilities are a large part of the public, and ultimately the public all end up being people with disabilities. Denials of accessibility eventually can directly impinge upon everyone’s health and safety, even if some specific accessibility requirements, in isolation, are more remote. It is troubling that the Ministry responsible for leading on accessibility would urge a contrary position.
27. The appellant disputes the claim (Ministry memorandum para. 15-18) that an arbitrary bright line must here be drawn between a Government effort aimed at accessibility on the one hand, and one which serves health and safety on the other. Again, the Ministry urges an impoverished approach to FIPPA and the AODA. The Ministry’s memorandum para. 15-18 relies on PO-2686, a decision on whether a fee waiver relating to accessible parking spots is warranted on health and safety grounds. Adjudicator Corban found that the availability of accessible parking spots to those who have demonstrated a medical need for them is not a matter of public health and safety. The appellant submits:
a) Even if that case were assumed to be correct (which the appellant disputes), a single case dealing with disability parking permits should not be treated a priori as dispositive of any Freedom of Information request having to do with any aspect of accessibility.
b) That case lacks precedential value and is distinguishable on its facts. The appellant respectfully urges the Information and Privacy Commission to distance itself from its finding, as wrongly decided and discordant with Charter s. 15’s disability equality and similar Ontario Human Rights Code values. People with disabilities are members of the public. If required to travel greater distances than they are medically able from their cars to public premises, their health and their safety are clearly compromised.
28. In contrast, in PO-1962, a more commendable approach to a health and safety claim was adopted. The requester sought serious occurrence reports (SORs) and annual summaries created through the Ministry of Community and Social Services community agency program for providing services to people with developmental disabilities. The services included in those reports and aggregating summaries included some that were not related, such as employment services. Others related to accessibility. Associate Commissioner Mitchinson found that a health and safety fee waiver was justified. The records concerned these services:
• in-home and out-of-home respite;
• specialized community supports which assist people with developmental disabilities to remain in the community;
• community participation supports which provide people with developmental disabilities support for both competitive and non-competitive employment opportunities;
• community living supports and residential services which include supports to assist individuals to live independently in the community, 24-hour group living situations, and associate living arrangements;
• Special Services At Home (SSAH), a program focused on supporting families in caring for a family member within their home; and
• three provincially operated facilities that provide supervised living and day programs for adults who require specialized care.
29. The Ministry’s memorandum para. 13 raises the issue of whether the appellant is likely to disseminate the information, if released to him. As his reply affidavit demonstrates, the Ministry need not worry about whether the appellant is willing to publicly disseminate Government information on the AODA’s implementation.
6. Fee Estimate is Too High
30. The Ministry has not sufficiently justified the proposed $4,250 fee, for the reasons in the appellant’s original memorandum, and for these reasons.
31. The appellant’s reply affidavit shows the Ministry did not tell the appellant it was gathering the requested information in the 2015 summer, before formulating its fee estimate and asking him to pay it. The appellant genuinely thought that in the 2015 summer, the Ministry was just trying to estimate the search time that would be involved. Ms. Brown’s affidavit asserts difficulties that the Ministry had, when trying to gather the requested information. The appellant’s reply affidavit attests that the Ministry did not tell him about those specific difficulties and seek his help. He would have been prepared to offer further help to try to reduce the search time. His reply affidavit gives examples. The Information and Privacy Commission should thus treat this fee estimate as substantially over-inflated.
32. A real benefit accrues to the Government and public from collecting this information. This information concerns topics that come up time and again in the Legislature and media. This information can assist the Ministry in advising the Minister, senior ministry staff, and other key players, organizations e.g. the Government-appointed Accessibility Standards Advisory Council. It is submitted that this is information which in no small part should be eventually gathered to assist those officials. It may well have later been used to brief them at some time. Neither the appellant nor the AODA Alliance should be expected to finance that.
33. One of the appellant’s important information requests, in issue on this appeal, illustrates both that the information should have been easier to find than the Ministry claims, and that gathering this information otherwise benefits the Ministry and the public. This example is the appellant’s request for the Ministry’s post-November 2013 plans and policies, for enforcing the AODA. In November 2013, the Ministry had given the appellant such records up to that date in his 2015 Freedom of Information application, The appellant merely sought to get these updated.
34. Showing that this should be easier to find and otherwise beneficial to the Ministry and the public, than the Ministry memorandum and affidavit urges, are two documents which the appellant has already filed with the Information and Privacy Commission. In 2015, the Ministry made two major announcements of new plans for AODA enforcement. Both were sufficiently high-profile to involve the Minister’s office.
35. First, on June 3, 2015, the Ministry made a major announcement to mark the 10th anniversary of the AODA’s enactment. The Minister’s office fed the Toronto Star a story on the Ministry ‘s new plans for AODA enforcement, that was published on June 3, 2015, garnering the headline ” Ontario to crack down on accessibility violators.” The article stated in part:
“Queen’s Park is beefing up compliance and enforcement measures in response to criticism that it has been treating accessibility scofflaws with kid gloves.
Starting next year, Ontario’s economic development ministry will move to double compliance audits to 4,000, or 1 per cent of Ontario’s 400,000 businesses.
Under the province’s Accessibility for Ontarians with Disabilities Act, businesses with 20 or more employees were supposed to have filed customer service plans with the government by the end of 2012. But to date, only about 40 per cent have submitted the necessary reports on how they accommodate customers with disabilities, train staff and receive customer feedback.
Accessibility advocates have criticized the government’s weak response to businesses that continue to flout the law.
A recent legislative review of the act also urged the government to step-up enforcement. The new enforcement measures are part of the Liberals’ 10-year accessibility action plan to be released Wednesday. It is aimed at ensuring the province’s 1.8 million people with disabilities can live, work and play to their full potential by 2025, as set out in Ontario’s groundbreaking 2005 accessibility act.
“Enforcement is part of our efforts to move toward greater compliance,” said Economic Development Minister Brad Duguid.
“We’re not here to pound on them. We’re here to work with them to actually build a stronger economy,” he said in an interview.
“But we are going to enforce the regulations.”
To ensure the 1-per-cent target is reached, the ministry will hire an outside audit company to work with government staff. If successful, all future audits will be conducted by a third-party firm on behalf of the government, a ministry spokesperson said.
As recommended in February’s legislative review, the ministry will begin releasing annual compliance reports next year with information on complaints, fines and other enforcement measures along with action plans for improvement. (Fines for non-compliance range from $200 to $2,000 for individuals and from $500 to $15,000 for corporations.)
The government is also simplifying its complaint hotline to make it easier for the public to give feedback. New monthly reports to the minister’s office on complaints will ensure systemic problems are addressed promptly, officials say…”
36. The appellant’s Freedom of Information application is dated the next day, June 4, 2017. If the Ministry had such a brand-new major announcement of its new enforcement plans, this would presumably be quite easy to find the next day. Moreover, in preparation for that major new policy announcement, public officials would have been ready to brief the Minister and senior ministry staff on its pre-existing policies and plans on AODA enforcement. The appellant’s Freedom of Information application on point should not have required much digging.
37. Second, three months later, the Ministry issued another major announcement on AODA enforcement. Its October 5, 2015 news release bore the headline “Ontario Ensuring Workplaces are Accessible by Launching Compliance Audits.” The news release stated in part:
“Ontario is conducting targeted audits of retail companies with 500 or more employees to ensure workplaces and employee practices are accessible during a three-month audit blitz this fall.
The Ministry of Economic Development, Employment and Infrastructure is leading the audits, with the goal of ensuring that employers are making accessibility a regular part of recruiting and supporting employees with disabilities.”
38. That news release quoted the Economic Development Minister:
“I am excited by the progress Ontario has made towards its goal of becoming an accessible province by 2025. But it’s clear we still have work to do, so we’re working to increase awareness among businesses and provide them with the resources and support they need to comply. For those who continue to fail to comply, we will take steps to enforce the law. We all have a role to play in embracing accessibility and promoting a cultural shift in Ontario so that it becomes embedded in everything we do and is recognized for what it is — an essential part of our future economic competitiveness in a dynamic economy and an inclusive society.”
39. The information on AODA implementation and enforcement that the appellant requested would again be helpful to prepare this new policy and this new announcement e.g. for briefing the Minister and/or other senior officials. The new enforcement plan, there announced, should be easy to find.
40. Perhaps to make this Freedom of Information application look terribly burdensome, the Ministry’s memorandum claims the appellant made fully 84 requests. A fair list of the 15 items that remain in issue is in the appellant’s original memorandum para. 16.
7. Is a Fee Waiver Fair and Equitable Here?
41. The appellant disputes the claim (Ministry memorandum para. 21 and following) that a fee waiver isn’t fair and equitable. The Ministry’s conduct flies in the face of its claim, since:
a) The Ministry is marshalling more effort to obstruct this access claim than to trying to resolve it, substantially disproportionate to the $4,250 fee. It is therefore open to the Information and Privacy Commission to draw an adverse inference against the Ministry on this issue.
b) The Ministry invested staff time to collect the records in the 2015 summer, without telling the appellant it was doing so. It then spent all this time in contention over whether the Ministry should be spared incurring an expense that the Ministry had already unilaterally chosen to incur.
c) The Ministry refused for 18 months, right up to the eve of this appeal, to accept the core fact that the AODA Alliance has no money. It ambushed the appellant, at the last minute, with its new demand re fund-raising. It shifted its entire core focus. The Ministry has offered no responsible public policy reason for keeping this issue from the appellant until the last minute, despite his earlier inquiries to learn what more the Ministry wanted from him.
d) The appellant was willing to help the Ministry focus its efforts, when asked. As the appellant’s reply affidavit shows, the Ministry did not seek his further assistance, as it should have, while searching for records, to alert him to further difficulties assertedly encountered, and to seek further guidance.
e) As submitted above, this is not a request for documents and records by a private for-profit company, seeking Government information to boost its profits. This is a publicly-spirited request by a volunteer disability rights advocate on behalf of an admittedly-unfunded community coalition, to help ensure that Ontario reaches full accessibility by 2025, a goal that will benefit all Ontarians.
f) The appellant has had to devote a significant amount of volunteer time in an effort to pursue this Freedom of Information application and appeal. Such institutional opposition and delays that the appellant has faced should not be rewarded, lest it deter others from exercising their rights under FIPPA.
g) It is commendable that the Ministry eventually agreed to release some of the requested information in the 2015 fall without insisting on a fee, i.e. information it said it could quickly locate. However, at first, the Ministry did not offer to do so. Its initial position was a simple $4,250 fee for the entire package of information.
42. The Ministry’s affidavit and memorandum raise a troubling red herring, the spectre of the Government having to incur substantial costs to convert the requested records to an accessible format, so that he, a blind person, can read it. The Ministry may imply that the appellant has made a very burdensome request, and that the Ministry is generous by not including this in its FIPPA fee. The appellant submits that the conversion cost doesn’t help the Ministry because:
a) The Ministry never raised this with the appellant, over the past 18 months. It clearly knew of this issue, when gathering those records in the 2015 summer.
b) As the appellant’s reply affidavit shows, the Ministry raised the cost of document conversion to an accessible format in 2013, after it decided to release the records the appellant requested in his 2013 Freedom of Information application. At that time, the appellant relieved the Government of that document conversion. He instead had sighted volunteers review the 2013 documents for him. The Ministry’s affidavit and memorandum don’t let the Information and Privacy Commission know about this important additional fact, which is needed to ensure a fair assessment of the whole picture. That invites an adverse inference against the Ministry.
c) This reveals that the Ministry knows that so many important of its own records are inaccessible. Blind people would have to face dealing with such inaccessible documents if they wanted to work at the Accessibility Directorate, the Ontario Government’s flagship office for leading Ontario to full accessibility. The Government has said it aims to lead by example on accessibility.
43. The Ministry’s memorandum para. 7 contends that “Ministry staff were redirected from enforcement activities to satisfy the FIPPA request.” Blaming the appellant for reducing Ministry’s AODA enforcement is unfounded, if not Kafkaesque:
a) Ms. Brown’s affidavit does not show that anyone who worked on this FIPPA application would otherwise have worked on taking enforcement action against any of the many private sector organizations that the Government knows are violating the AODA.
b) The appellant’s reply affidavit shows based inter alia on information his 2013 and 2015 FIPPA applications unearthed, that in every year from 2005 (when the AODA was enacted) up to and including 2014-15, the Accessibility Directorate was under budget. For the decade ending with the end of fiscal year 2014-2015, the Accessibility Directorate’s total allocated but unused budget was $27.5 million. In Fiscal 2014-15 alone, the Accessibility Directorate left $1.3 million unspent. A strong inference is open that the Ministry did not face the Sophie’s choice in the 2015 summer of either taking more action to enforce the AODA or answering the appellant’s Freedom of Information application. The appellant does not suggest that one year’s unused budget remains available to the Accessibility Directorate in the next year.
8. Concluding Submissions
44. The Information and Privacy Commission should draw a significant adverse inference against Ms. Brown’s affidavit, because:
a) It appears to be largely based on information from other people, not her personal knowledge. While that is no bar to its admissibility, it here serves as a major bar to its deserving much weight;
b) The Ministry failed to share its substantive contents with the appellant at any time, including during the mediation, and up until the Information and Privacy Commission filing date.
c) As noted earlier, on facts concerning the appellant’s 2013 Freedom of Information application, on its face, Ms. Brown was not even there.
d) As of the time of writing, and with this appeal’s oral argument one day away, the Ministry has not disclosed to the appellant the relevant documents on which Ms. Brown relied, or to which she had access, or that are readily available within the Ministry, or which bear on her evidence, with a couple of exceptions. The appellant asked for such to be disclosed, shortly after receiving and reviewing her affidavit. It would be fundamentally unfair for the Government to be able to cherry-pick what it chooses to reveal in such an affidavit, and to preclude a fair testing of its completeness and accuracy. The Ministry claims that the appellant’s request for these records is disproportionate to the $4,250 fee and this appeal’s issues. With respect, the Ministry’s entire position to the appellant has been disproportionate to this appeal’s amount and issues.
45. It is unfair for the Ministry to now, for the first time, assert claims to exemptions to disclosure for some records. The Ministry first revealed it intended to assert exemptions in a December 5, 2016 letter. It claimed no exemptions in 2013. It is something of a cruel irony that the Ministry first told the appellant about this issue at the 11th hour, in an inaccessible print letter. This case is all about implementingOntario’s accessibility legislation. The appellant has repeatedly asked the Ministry to communicate using accessible documents.
a) The Ministry says it revealed its intent to claim exemptions, because the Information and Privacy Commission asked about this. It is fair to infer that if the IPC hadn’t asked, the Ministry would have kept the appellant in the dark even longer. Openness and fairness to a member of the public suggests that the Ministry should not conceal such intentions for a year and a half, especially if it already gathered the requested records 18 months ago.
b) This risks the appellant having to come back to the Information and Privacy Commission on yet another appeal, if exemptions need to be contested. The appellant should not now face such added unfair burdens, barriers and delays of possible multiple appeals. Administrative tribunals are designed to give the public a fast, fair and efficient way to resolve disputes. The appellant respectfully requests the Information and Privacy Commission’s assistance in having all issues regarding this FIPPA application resolved at once.
46. The Ministry’s memorandum para. 5(a) contends that the appellant is entitled to ask for records, but not for information:
a) The appellant’s reply affidavit explains that he at points asked for information rather than records, to make things easier for the Government. The Government never told him that it made things more burdensome so he could adjust his request. The Government never took the technical position, before the Ministry’s memorandum, that he cannot seek information, as opposed to records.
b) This law is called, inter alia, the “Freedom of Information …Act“.
47. The fact that the Government gathered the requested information before the appellant ever agreed to pay the fee, supports a strong inference that the Ministry was willing and able to do this work, with no assurance that it would ever be paid. It did this work knowing the appellant sought a fee waiver, and got requested about AODA implementation and enforcement in 2013 without paying any fee. It knew the AODA Alliance had no money. It then had no reason to expect that the AODA Alliance would or could pay the fee. This case is not about public servants responsibly trying to save public money by avoiding doing a search until and unless it would be paid for the work. Had the Ministry devoted as much effort to resolving this case as it has to putting barriers in the appellant’s path, it would have saved the public much more than $4,250, and the appellant a great deal of time and effort.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
DATED this 29th day of January, 2017.
David Lepofsky, CM, O.Ont, the appellant in Person on his own behalf.