August 1, 2017
August 1, 2017 Toronto: On July 28, 2017, David Lepofsky, The chair of Ontario’s widely-recognized non-partisan AODA Alliance and a visiting professor at the Osgoode Hall Law School, won key parts of his appeal to Ontario’s Information and Privacy Commission, against the Wynne Government’s refusal to waive a hefty $4,250 fee to get access to information he seeks on the Government’s implementation and enforcement of Ontario’s landmark Disabilities Act, though it was not a hundred percent victory for him. He’s studying the decision and considering options for next steps. The Information and Privacy Commission’s 67-page ruling.
The tenacious, non-partisan volunteer AODA Alliance has campaigned for years to get the Wynne Government to keep its election promise to effectively enforce the Accessibility for Ontarians with Disabilities Act, a law for whose enactment Lepofsky led the decade-long campaign from 1994 to 2005. His June 4, 2015 Freedom of Information application tried to unearth what the Wynne Government is now doing to keep that election promise.
In his appeal to the Information and Privacy Commissioner, Lepofsky argued last January that the Wynne Government should waive the fee as an “undue financial hardship” on the unfunded coalition he leads and that disclosure of the information he sought would in important ways help serve public health and safety. The Wynne Government fought him every step of the way.
“Premier Wynne commendably promised the most open and transparent Government in Canada, but her Government then mounted a formidable effort against me,” said Lepofsky. “In 2013, the Government backed down from charging a similar stiff fee to answer my earlier Freedom of Information application, only after it was blasted in a Toronto Star editorial(set out below) and in the Legislature. The Government promised to effectively enforce the Disabilities Act. I have been trying to get up-to-date information on what they’re doing to implement and enforce that law.”
In its July 28, 2017 decision, the Information and Privacy Commission ruled against the Wynne Government on several key points:
* On a pivotally important point, the Information and Privacy Commission rejected the Government’s efforts to charge Lepofsky any fee to get copies of the Government’s actual policies on how it will enforce the Disabilities Act.
* The Information and Privacy Commission ordered the Government to disclose at no charge the details of its spending on public education campaigns on disability accessibility, called the “Enabling Change” program.
* The Information and Privacy Commission found the Wynne Government failed to justify more than 80% of the $4,200 fee that the Government tried charging Lepofsky for the information he requested two years ago. The Information and Privacy Commission knocked the fee down from $4,200 to $750, a reduction of over 82%. In other words, the Government tried to charge Lepofsky over five times the fee that the Government actually justified.
* The Information and Privacy Commission did not rule on whether the Government should have waived the original $4,200 fee. However, it ruled that it would not order the Government to waive the reduced $750 fee. The Commission went with the Wynne Government and against Lepofsky on that issue, even though the Information and Privacy Commission made four powerful findings against the Government:
1. Rejecting the Government’s contrary claim, the Information and Privacy Commission agreed it would be a financial hardship to charge the fee to the grassroots non-partisan disability coalition that Lepofsky leads, which the Government eventually admitted has no funds or bank accounts. Under Ontario’s Freedom of Information law, when deciding whether to waive a fee, the Government and the Information and Privacy Commission must consider if it is “fair and equitable” to waive the fee, considering, among other things, if the fee imposes a “financial hardship.”
“192] Overall, I find that the payment of the fee would cause the appellant financial hardship and this factor weighs in favour of the appellant.”
2. The Information and Privacy Commission rejected the Government’s claims that nothing in Lepofsky’s Freedom of Information application bore on public health and safety, and that the public interest in the information Lepofsky sought was completely irrelevant. To decide whether to order the Government to waive the fee, the Information and Privacy Commission must also consider if that would be “fair and equitable,” having regard to whether disclosing the information would benefit public health and safety.
“ I do, however, find that dissemination of the information related to items 5, 11, 15, 16, and 18 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. I agree with the appellant that proper enforcement of the AODA benefits the health and safety of those who require accessibility to access goods and services, including health care services.”
3. The Information and Privacy Commission found that when deciding whether it is “fair and equitable” to waive a fee, it is relevant to consider if the request for information is in the public interest. The Government had argued that the public interest was totally irrelevant, even though the Government conceded that the AODA Alliance’s goal of improving AODA compliance is in the public interest (para. 165 of the ruling).
“ Nevertheless, since the findings in the Mann case that the sole test is whether any waiver would be fair and equitable, the presence of a public interest in the subject matter of a request is a possible consideration in the determination as to whether a fee waiver is fair and equitable.”
4. The Information and Privacy Commission made several strong findings against the Government, showing Lepofsky was always willing to try to resolve this dispute, while the Government did not take several steps it should have, to be cooperative with him. (See e.g. paras. 15, 20, 22-25, 28-35, 51-59, and 85-90 of the decision)
“On this appeal, the Wynne Government sent an armada of five lawyers against me, to try to force our unfunded coalition to pay $4,200, only to find that their legal armada could not even justify the vast majority of that overinflated fee,” said Lepofsky. “So massively overinflated a fee is just one big barrier thrown in our path. But as the Government admits and the Information and Privacy Commission ruling reaffirms, our unfunded coalition has no money. That shows we have no money, whether this fee is $4,200 or $750.”
The Government’s conduct has been inexplicable from the start. When the Government gets a Freedom of Information application, it’s supposed to estimate how long it will take to search out the requested information, and give the applicant a fee estimate. If the applicant won’t agree to pay, and the Government won’t waive the fee, the Government doesn’t search for the documents. The Government only searches for the documents if, either the applicant agrees to pay the fee, or the Government waives the fee (e.g. if the fee is not fair and equitable due to considerations like financial hardship and public health and safety).
Unknown to Lepofsky until the eve of this hearing, the Wynne Government actually searched out and gathered all the documents Lepofsky requested two years ago. It did so even though Lepofsky had not agreed to pay any fee, and had told the Government in advance of its search that he would ask for the fee to be waived. Therefore, the Government is not saving the public any money by mounting this legal barrage against Lepofsky. Much the reverse. Even worse, the Government is acting contrary to Premier Wynne’s commitment to run the most open and transparent government in Canada.
“Since they already did the search for the documents I requested, since the Information and Privacy Commission ruled this fee is a financial hardship, and since this is all about the public interest and public health and safety, it’s time the Government stopped throwing barriers in our path and simply gave us the information we sought and which they already gathered,” said Lepofsky.
“What possible public interest can the Government serve, by keeping secret the information already collected on a Government computer, waiting for the Government to simply hit the `send’ key?”
Over 1.8 million Ontarians have a physical, mental, sensory or other disability. They still face too many accessibility barriers when they try to get a job, ride public transit, go to school, or use our health care system. Ontario’s Disabilities Act requires the Ontario Government to lead Ontario to become fully disability-accessible by 2025, less than 8 years from now.
Ontario lags behind schedule for full accessibility by 2025. Premier Wynne promised the AODA Alliance she’d ensure that Ontario is on schedule for full accessibility by 2025. Lepofsky’s Freedom of Information application sought records to see what’s being done to get Ontario back on schedule.
Lepofsky’s past efforts under the Freedom of Information Act, as the AODA Alliance chair, revealed that there have been rampant private sector violations of the Disabilities Act as far back as 2013, that the Wynne Government knew it, that the Government has taken insufficient action to enforce the law, and that the Government had ample unused funds on hand that it could have used to beef up this enforcement. These led to headlines in the media, and calls for strengthened Government action on accessibility.
Contact: David Lepofsky email@example.com or Twitter @davidlepofsky
To read the July 28, 2017 Information and Privacy Commission ruling on David Lepofsky v. the Ontario Government.
To read David Lepofsky’s June 4, 2015 Freedom of Information application which is the subject of this appeal.
To read David Lepofsky’s memorandum of argument, filed on this appeal last March.
To read the January 24, 2017 affidavit which the Ontario Government filed (appendices excluded) in opposition to ‘David Lepofsky’s appeal.
To read the January 24, 2017 memorandum of argument that the Wynne Government filed with the Information and Privacy Commission in opposition to David Lepofsky’s appeal.
To read David Lepofsky’s reply affidavit, that he is providing in response.
To read David Lepofsky’s reply memorandum of argument that he has filed in response.
For more background on the AODA Alliance, visit www.www.aodaalliance.org
The Toronto Star August 1, 2017
Advocacy group wins commission ruling; Alliance fought government’s $4,200 bill for sweeping access-to-information request
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.
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 to keep tabs on the province’s efforts to comply with the Accessibility for Ontarians with Disabilities Act (AODA). At the time the law 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 day after Duguid announced the various measures, Lepofsky filed a 31-point access to information request for details on several subjects.
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.
The government now has until Aug. 28 to release those documents.
The Canadian Press
Toronto Star October 31, 2013
The government is refusing to give details on the success or failure of accessibility standards for the disabled.
NATHAN DENETTE / THE CANADIAN PRESS
Ontario Premier Kathleen Wynne has promised “open and transparent.” Now’s her chance to fulfil that promise.
Premier Kathleen Wynne has promised an “open and transparent” government more times than it’s possible to count.
So it’s particularly perplexing that Ontario’s Ministry of Economic Development has refused to give a volunteer group for the disabled important information on hard-won rights for equality. They’re looking for details on the compliance and enforcement of the province’s standards for accessibility in private businesses and organizations.
In other words, the very information that would prove whether the Accessibility for Ontarians With Disabilities Act is actually working — or not.
The government’s response so far isn’t anywhere close to “open and transparent.” That’s a shame. Wynne must prove her promises of accountability are principled and not just empty words.
The information should be provided as soon as possible, for the benefit of all Ontarians who are disabled. The public should not be kept in the dark about the successes or failures of the law. Since the roll-out of the new rules won’t be completed until 2025, it’s especially important to keep a close watch on the system.
Problems — like lack of compliance and enforcement — should be fixed as soon as possible. If the act fails to embrace the needs of the disabled in everyday life — something as simple reaching an office in a wheelchair — then what’s the point of moving forward with new rules that don’t work?
The obfuscation began in January when David Lepofsky, chair of the volunteer group Accessibility for Ontarians With Disabilities Act Alliance, asked the ministry for information that would determine if the new standards were having any effect.
Lepofsky, who is blind, wanted to know how businesses had to file the new online compliance reports; how many actually did file; and what, if any, enforcement action, including hefty fines, was taken against those not following the new rules.
“They made a fundamental commitment to us and we want to know what they’re doing about it,” Lepofsky says. It’s a reasonable request for accountability.
Companies with 20 or more employees are among those that are now supposed to fill out these online reports. They must state whether they comply with the act’s accessibility standards, which focus on areas like employment, transportation and customer service. One question, for example, asks if service dogs are allowed on the premises.
The ministry’s response was unfortunate. Lepofsky said he received no response despite months of requests for the electronic data. He gave up in August and filed a freedom of information request. Instead of getting the files, he received a letter informing him of a $2,325 charge to process his request — an impossible amount for his small volunteer group to pay.
On Tuesday, NDP MPP Cheri DiNovo asked about the request in the legislature and received a similarly opaque answer from Economic Development Minister Eric Hoskins, who said a five-year routine review of the act is underway. Unfortunately, that response doesn’t meet the premier’s new transparency standards.
As DiNovo says, “It’s egregious that no one knows whether the law is being enforced.” She’s right.
Since DiNovo raised the issue, the government has offered to lower the freedom of information processing fee. That may be well-intentioned but it’s an insignificant development, to say the least. Ontarians have a right to scrutinize the implementation of important standards that — on paper — support the basic rights of so many.
It’s a sad statement that a government that uses transparency as a slogan won’t allow disabled citizens to see whether there’s any truth to the act’s promise for change.