Here We Go Again – Premier Kathleen Wynne Promised The Most Open Government In Canada, But Her Economic Development Ministry Asks AODA Alliance Chair to Pay $4,200 To Fully Answer His June 4, 2015 Freedom Of Information Application On The Implementation And Enforcement Of The Accessibility For Ontarians With Disabilities Act – And – Other Accessibility News

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United for a Barrier-Free Ontario

November 5, 2015

SUMMARY

1. History Repeats Itself Again in Ontario… Unfortunately!

Back on June 4, 2015, AODA Alliance Chair David Lepofsky had to resort to filing a Freedom of Information application to get comprehensive current information from the Wynne Government on its actions and plans for implementing and enforcing the Accessibility for Ontarians with Disabilities Act. Premier Wynne has promised that hers would be the most open and transparent government in Canada. Despite this, the Economic Development Ministry has asked David Lepofsky to pay a hefty $4,250 to get answers to important parts of his Freedom of Information application. David Lepofsky has asked the Government to waive this fee. To date, it has declined to do so.

The Government’s conduct is hard to understand and even harder to justify. Two years ago, David Lepofsky filed his first Freedom of Information application, to get information on the AODA’s enforcement. The Government tried to charge him $2,325 to answer that application. After we made this fee request public, the Government was blasted in the Ontario Legislature on October 29, 2013 and in an October 31, 2013 Toronto Star editorial. In the face of this, the Government backed down, and gave him the information without charging any fee.

The story then continued. One year ago, David Lepofsky filed a second Freedom of Information application. He sought information from Metrolinx on its plans to incorporate accessibility and safety problems in many stations along the new Eglinton Cross-town subway line. Metrolinx told David Lepofsky he’d have to pay $250 for that information.

We made that proposed fee public. Within two hours of our doing so, Metrolinx backed down and agreed to waive the fee.

Back to his current Freedom of Information application. David Lepofsky again asked the Government to waive this fee, both because the AODA Alliance has no funds at all, and because the Government had twice earlier waived Freedom of Information fees, in the face of identical reasons from David Lepofsky. So far, the Government won’t say yes this time. Instead, it wrote David Lepofsky on September 24, 2015, saying that it needs more information to prove that the AODA Alliance has no money. The Government also seems to think that the same Ministry’s giving him requested information on the AODA’s enforcement two years ago, without charging the fee it initially stipulated, wasn’t in fact a waiver of that fee.

As a result, on November 4, 2015, David Lepofsky again wrote the Economic Development Ministry, to ask it to waive the $4,250 fee for getting the information to which it pertains. He again explained that the AODA Alliance has no money, and no financial statements to hand over.

He asked the Government what more evidence he is expected to provide before it will accept this fact – a fact the Government twice earlier accepted in the case of both of his previous Freedom of Information applications. He explained that the Government’s twice handing over requested information to him, without charging a fee that it initially stipulated, cannot be sidestepped by bureaucratic double-talk.

Below we set out the chain of key correspondence with the Economic Development Ministry since David Lepofsky filed his June 4, 2015 Freedom of Information application. You can read David Lepofsky’s June 4, 2015 Freedom of Information application.

2. Other Accessibility News

* Yesterday, the newly-elected Government of Canada under Prime Minister Justin Trudeau swore in its new cabinet. This included two cabinet ministers with disabilities. One of these, Carla Qualtrough, a person with low vision, was appointed as the Minister of Sport and the Minister for People with Disabilities. In her first scrum with the media, right after the first cabinet meeting, she briefly voiced her excitement about this portfolio and about the Trudeau Government’s election promise to enact the Canadians with Disabilities Act.

It is great that the Government of Canada now has a Minister for People with Disabilities. It is wrong that the Ontario Government still has none. Fully two Independent Reviews under the AODA have urged the Ontario Premier to appoint one, the 2010 Charles Beer AODA Independent Review and the 2014 Mayo Moran AODA Independent Review. The Government has given no reason for disregarding these recommendations. These recommendations were part of those Reports calls for the Ontario Government to show revitalized and strengthened leadership on disability accessibility.

We urge Premier Wynne to follow the lead of Prime Minister Trudeau, for whom she has such respect. Ontario has ministers responsible for women’s issues, for seniors, for francophones, etc. There is no reason why we have no minister responsible for people with disabilities.

Right now Economic Development Minister Brad Duguid has a huge volume of other issues on his plate apart from the AODA. A good part of the year he is travelling to and from other countries. The Government cannot claim he is somehow fulfilling a role now as minister for people with disabilities. Moreover, he doesn’t have that title.

* Last week, a fantastic new grassroots coalition was formed in British Columbia to advocate for a British Columbians with Disabilities Act. The BC Government has said that it is considering whether to enact one, but has not yet committed that it would do so.

At the founding meeting of Barrier-Free BC on October 28, 2015, AODA Alliance chair David Lepofsky was the keynote speaker. The AODA Alliance wishes Barrier-Free BC well in its work. We have offered to give any advice and assistance that they may need.

Barrier-Free BC will also serve as the BC affiliate of Barrier-Free Canada, in its efforts to win enactment of the promised Canadians with Disabilities Act. The AODA Alliance will similarly serve as the Ontario affiliate of Barrier-Free Canada.

If you know anyone in BC who may want to get involved, or if you are part of an organization that also operates in BC, urge them to sign up with Barrier-Free BC by emailing barrierfreebc@gmail.com and on Twitter following @barrierfreebc

* Today, November 5, 2015, is another one of those memorable days in Ontario accessibility history. Fourteen years ago today, the Ontario Government under Conservative Premier Mike Harris introduced Bill 125, the proposed Ontarians with Disabilities Act 2001, for First Reading in the Ontario Legislature. That law was passed six weeks later, as the last legislation enacted under Mike Harris.

It was a weak law, which was insufficient to meet all the accessibility needs of Ontarians with disabilities. However, its enactment helped boost our efforts forward over the next years, culminating with the enactment in 2005 of the stronger Accessibility for Ontarians with Disabilities Act, under the Liberal Ontario Government of Premier Dalton McGuinty.

To learn about the events fourteen years ago today and over the following six weeks surrounding the introduction and enactment of Bill 125

Send your feedback to us at aodafeedback@gmail.com

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We encourage you to use the Government’s toll-free number for reporting AODA violations. We fought long and hard to get the Government to promise this, and later to deliver on that promise. If you encounter any accessibility problems at any large retail establishments, it will be especially important to report them to the Government via that toll-free number. Call 1-866-515-2025.

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Learn all about our campaign for a fully accessible Ontario by visiting http://www.www.aodaalliance.org

Please also join the campaign for a strong and effective Canadians with Disabilities Act, spearheaded by Barrier-Free Canada. Sign up for their updates by emailing info@BarrierFreeCanada.org

MORE DETAILS

June 4, 2015 Email from AODA Alliance Chair David Lepofsky to Economic Development Ministry

From: David Lepofsky
To: Carroll-Tougas, Patricia (ENERGY/MEDEI/MRI)
Subject: June 4 2015Freedom of Information Application Attached

I am emailing a Freedom of Information application. It is going in the mail to you now in hard copy, along with a $5 cheque. Please let me know when it arrives.

June 6, 2015 Email from Economic Development Ministry to AODA Alliance Chair David Lepofsky

Good afternoon Mr. Lepofsky,

Thank you, the ministry received your FOI Access request and application cheque of $5 dollars today. The official date to commence processing your request is Tuesday June 9, 2015.
We are currently reviewing the contents of your request and will update you accordingly.

Regards,

Patricia Carroll-Tougas
FOI Coordinator

June 9, 2015 Email from AODA Alliance Chair David Lepofsky to Economic Development Ministry

Thank you. And as in the past, if there are ways I can reduce the search time by clarifying anything, just let me know and I am happy to help out.

July 7, 2015 Email from Economic Development Ministry to AODA Alliance Chair David Lepofsky

Good Afternoon Mr. Lepofsky,

RE: FOI MEDEI, AODA

Thank you for your response of June 9, 2015 with respect to the search and clarification of this request.

As you may be aware, In general, access requests must be responded to within 30 calendar days from the date a complete request is received. A complete request is one which has been clarified or one which provides sufficient detail to allow the institution to understand what information is being requested. Please be reminded that the 30-day time period starts the day the institution receives a complete request or final clarification of a request.

The ministry has been working attentively on reviewing the points itemized in your request and it has been determined that there are portions of the request that require clarification. The assumptions indicated in the clarification questions are intended to direct searches so that the most relevant records are provided, while also reducing the amount of search time/fee estimate since, as worded, the requests for “any record” would result in undue search time and require extensive review of records and would result in a potentially longer extension of time to provide the records.

Please see attached the points that require your clarification and response.

Once the clarification is finalized, the ministry will determine if there are additional costs and provide a fee estimate. The ministry will take into consideration your advance request and justification to waive any additional fees associated with this request and provide you with a decision on whether or not the waiver is granted. In keeping with the FOI process the ministry will provide you with a letter outlining the estimated fee amount for this request and the guidelines.

Subsequent to the fee estimate letter being sent, if an extension of time is required (e.g. to search for records, or to undertake consultations), a letter identifying the extended due date will be provided to you.

If you should have any questions please don’t hesitate to contact me.

Best Regards,

Pat Carroll-Tougas
FOI Coordinator
Service Management and Facilities Branch
900 BayStreet | 3rd Floor,Hearst Block, Room 332 |Toronto,ON M7A2E1
Tel: (416) 326-1344 | Fax: (416) 325-1118
Email: patricia.carroll-tougas@ontario.ca | Website: www.ontario-canada.com

Ministry of Research & Innovation
Ministry of Economic Development, Employment & Infrastructure

July 7, 2015 List of Clarifications the Economic Development Ministry Requested of AODA Alliance Chair David Lepofsky

Clarification Requirements

Q10 – If not already disclosed as a result of my August 15, 2013 Freedom of Information application, any plans, policies, directives or instructions for enforcement of any requirements or provisions of the AODA or of any accessibility standards enacted under it, including for example, for conducting any audit or inspection of that organization:

In the case of any private sector organization with 20 or more employees that has not filed the required accessibility report under section 14 of the AODA.
In the case of any private sector organization with 20 or more employees that has filed a required Accessibility Report under s. 14 of the AODA.
In the case of any private sector organization with fewer than 20 employees.
In the case of any public sector organization.

Clarification: The ministry assumes you are seeking any updated versions of documents that were provided in 2013 along with any net new, final documents. Is that correct?

Q 16, 18b and 29-

Clarification: For each of these questions, the ministry seeks clarification of your use of the term “records.” The ministry assumes that you are asking for approved documents such as: briefing decks, decision notes, information notes. Is this correct?

Q28 – From 2012 to the present, any record of proposals, options, research or recommendations produced by or on behalf of the Accessibility Directorate of Ontario, on ways to increase the accessibility of tourism or hospitality services in any part of Ontario in connection with the 2015 Toronto Pan/ParaPan American Games, or to produce a legacy of increased tourism/ hospitality services accessibility as a result of the Games. Without limiting the generality of this request, tourism and hospitality services includes restaurants, stores, public transit, taxis, hotels, and other such services available to the public.

Clarification question: The ministry assumes you are not seeking documents related to the Canadian Paralympic Committee (CPC) as these are related to sport and not accessible tourism.

July 29, 2015 Letter from AODA Alliance Chair David Lepofsky to Economic Development Ministry

Patricia Carroll-Tougas, Freedom of Information Coordinator
Freedom of Information and Privacy Services, Service Management and Facilities Branch,
Corporate Services Division,
Ministry of Economic Development, Employment and Infrastructure
900 Bay Street | 3rd Floor, Hearst Block, Room 332
Toronto, ON M7A 2E1

July 29, 2015

Re: Freedom of Information Application – Government Request for Clarification

Thank you for re-sending your July 7, 2015 letter to me in a file that opens. Here are my responses to your request for clarifications:

1. Re my Q. 10

Clarification Requested: The ministry assumes you are seeking any updated versions of documents that were provided in 2013 along with any net new, final documents. Is that correct?

My Response: I am seeking any updated versions of documents that were provided in 2013, as well as any new documents, whether or not they are “net new” or “final.” I do not know what you mean by “net new” and as such, I do not include it in my clarification. I am happy to discuss this with you on the phone if that would help.

2. Re Q 16, 18b and 29-

Clarification Requested: For each of these questions, the ministry seeks clarification of your use of the term “records.” The ministry assumes that you are asking for approved documents such as: briefing decks, decision notes, information notes. Is this correct?

My Response: I am not sure what you mean by “approved documents.” I am not limiting this request to documents which were approved by a high official, such as the minister, deputy minister, or assistant deputy minister. I include in this part of my application, for example, such things as memos e.g. within the ADO, discussing how the related topic might be addressed, whether or not that memo ever was formally approved by anyone other than its author. It might be best to discuss this requested clarification on the phone further, in the event that I could reduce and simplify your efforts beyond what I have written here.

3. Re Q28 – From 2012 to the present, any record of proposals, options, research or recommendations produced by or on behalf of the Accessibility Directorate of Ontario, on ways to increase the accessibility of tourism or hospitality services in any part of Ontario in connection with the 2015 Toronto Pan/ParaPan American Games, or to produce a legacy of increased tourism/hospitality services accessibility as a result of the Games. Without limiting the generality of this request, tourism and hospitality services includes restaurants, stores, public transit, taxis, hotels, and other such services available to the public.

Clarification Requested: The ministry assumes you are not seeking documents related to the Canadian Paralympic Committee (CPC) as these are related to sport and not accessible tourism.

My Response: If the Accessibility Directorate of Ontario made any proposals regarding accessible tourism and hospitality services to CPC, then I do not exclude these from my application. While I doubt the Ministry made discrete proposals on this topic to CPC alone, it may be that the Ministry presented some ideas to a meeting somewhere at which CPC was present, e.g. one which may also have been attended by the Toronto 2015 Games Ministry and/or the Toronto 2015 organization. I would not exempt any such records from my application. Here again, I am happy to discuss the requested clarification on the phone, if that would assist you.

Please confirm that you received this email. Thanks.

David Lepofsky

August 31, 2015 Letter from Economic Development Ministry to AODA Alliance Chair David Lepofsky

August 31, 2015

David Lepofsky

Dear Mr. Lepofsky,

RE: MEDEI – Fee Estimate

Thank you for your Freedom of Information and Protection of Privacy (FIPPA) access request and $5.00 application fee received by the Ministry of Economic Development, Employment and Infrastructure on June 9, 2015 and subsequently clarified on August 7, 2015.

In response to your request, we are providing you with a fee estimate and interim access decision.

The Act contemplates a user-pay principle. Based on an initial review of the records, we estimate that the estimated fee based on search time to process your request will be approximately $4,250.00. Additional fees for preparation time may be applied once the review of the records is completed. Bear in mind this is a fee estimate only. Once we complete processing your request, we will issue a final decision and a final fee.

The cost outlined below is in accordance with Section 6 of Regulation 460, as amended, made under the Act, which states that an institution may charge for costs incurred as follows:

$0.20 per page for photocopies and computer printouts;
$7.50 for each 15 minutes spent by any person in the institution searching for the record. If more than one person is conducting the search, each person’s time can be charged; and
$7.50 for each 15 minutes spent by a person preparing records for disclosure, including severing part of a record

Thus, the following is the fee estimate for search time related to this request:

Search Time: 8,500 minutes @ $7.50 per 15 minutes = $4,250.00

If you would like us to continue to process your request, please provide a cheque of $2,125.00 made out to the Minister of Finance for 50% of the Fee estimate within 30 days upon receipt of this letter.

As you know, in keeping with the user-pay principle, section 57 of the Act requires that an institution head obtain payment from a requester for the cost of providing the requested information unless, in the head’s opinion, it is fair and equitable to waive the fees, after considering the following:

the extent to which the actual cost of processing, collecting and copying the record varies from the amount of payment required by the Act;
whether the payment will cause a financial hardship for the person requesting the record;
whether dissemination of the record will benefit public health or safety;
whether the person requesting access to the record is given access to it; and
if the amount of a payment would be $5.00 or less, whether the amount of the payment is too small to justify requiring payment.

From your correspondence we understand that you are acting on behalf of a non-profit community organization, the Accessibility for Ontarians with Disabilities Act Alliance (AODA Alliance). You have indicated that the AODA Alliance has no funds of its own. As such, your request for a fee waiver relies on the financial hardship exemption set out in section 57(4)(b) of the Act.

To support your statement that the AODA Alliance has no funds of its own and to determine whether it is fair and equitable for the Ministry to waive all or part of the estimated fees on the basis of financial hardship, the Ministry requests that you provide supporting financial statements regarding the AODA Alliance’s financial situation.

You may request a review of this fee estimate to the Information and Privacy Commissioner. The Commissioner can be reached at:

2 Bloor Street East
Suite 1400
Toronto, Ontario M4W 1A8
1-800-387-0073

If you decide to request a review of this fee estimate decision, please provide the Commissioner’s office with the following:

The request number assigned to the request;
A copy of this decision letter;
A copy of the original request that you sent to this institution; and
An appeal fee of $25 for a request for general records under s.24 (1) of the Act.

You have 30 days from the receipt of this letter to request a review from the Commissioner.

Please contact Pat Carroll-Tougas at 416-326-1344 with any questions that you may have concerning the request or fee amount. The case number MEDEI 2015-12 assigned to your file should be referenced in any future correspondence.

Sincerely,

Original signed by

Robert Burns
Chief Administrative Officer
Assistant Deputy Minister
Corporate Services Division

c. Pat Carroll-Tougas

August 31, 2015 Letter from AODA Alliance Chair David Lepofsky to Economic Development Ministry

August 31, 2015

Via Email

Pat Carroll-Tougas, FOI Coordinator
Service Management and Facilities Branch
Ministry of Economic Development, Employment and Infrastructure
Hearst Block, Room 332
900 Bay Street
Toronto, ON M7A 2E1
Tel: (416) 326-1344
Fax: (416) 325-1118
Email: patricia.carroll-tougas@ontario.ca

From: David Lepofsky, CM, O.Ont
Chair
Accessibility for Ontarians with Disabilities Act Alliance

Re: Freedom of Information Request MEDEI

Thank you for your email of August 31, 2015, advising me that the estimate for answering my Freedom of Information application is approximately $4,250.00.

May I ask the following:

1. As I have explained, I am aware that certain of my requests could be answered more quickly and with very little time or effort. As the Ministry knows, I have wanted the Ministry to endeavour to answer these directly and not wait for all the others.

The Government’s position implies an unfair “all or nothing” arrangement. I must either agree to pay approximately $4,250.00, or I can get access to none of this information, including information that is available with little or no effort at all.

Please immediately identify any of the requested information that can be easily provided with little if any search time, and hence, no cost. I request that any such information immediately be provided.

2. In any event, and as your email acknowledges, I wish to ask the Ministry to waive the fee for any and all of the items requested. I request that the fee be waived for the following reasons:

a) I make the request for information under the Freedom of Information Act request as a matter of public interest. I am the chair of the Accessibility for Ontarians with Disabilities Act Alliance, a volunteer position with a volunteer coalition. Our coalition is a non-partisan, non-profit community coalition advocating for the effective implementation of the Accessibility for Ontarians with Disabilities Act 2005. We have no funds of our own.

I made this request for information in good faith. The search fee should not become an unfair barrier to access to information for such a community group or for people with disabilities generally. The AODA Alliance has been recognized by all parties in the Ontario Legislature as a leading voice, advocating for accessibility for people with disabilities in Ontario. As one illustration of this, each of the political parties has made their election commitments on disability accessibility in the form of letters to the AODA Alliance.

b) The Government promised the AODA Alliance in writing, in a letter to me from Premier Dalton McGuinty dated August 19, 2011, that the Accessibility for Ontarians with Disabilities Act would be effectively enforced. This request for information pertains in no small part to that election promise, one which the Premier and the Government had earlier made several times in the past. I should not be charged thousands of dollars to get information on what the Government is doing to fulfil an election promise, made to us, in a letter addressed to me. The text of Premier McGuinty’s August 19, 2011 letter to me, on behalf of the AODA Alliance, is available at http://www.www.aodaalliance.org/whats-new/new2011/read-the-ontario-liberal-partys-august-19-2011-letter-to-the-aoda-alliance-setting-out-its-2011-election-commitments-on-disability-accessibility/

c) The previous Minister of Economic Development, Trade and Employment, Dr. Eric Hoskins, announced in the Ontario Legislature on May 28, 2013, that accessibility for people with disabilities is a “top priority” for the Government. To see Minister’s Hoskins’ declaration that accessibility for people with disabilities is a top priority for the Government, visit http://www.www.aodaalliance.org/whats-new/new2013/minister-hoskins-first-major-speech-on-disability-accessibility-in-the-ontario-legislature-and-responses-in-question-period-some-news-is-encouraging-and-some-is-not/

3. The Government has twice in the past tried to charge me a fee for a Freedom of Information request, made on topics of accessibility for people with disabilities. In both cases, it eventually agreed to waive that fee. The case for a waiver of this fee is as compelling as it was in the two prior instances.

Your August 31, 2015 email asks for financial statements of the AODA Alliance to demonstrate that we have no funds. Your August 31, 2015 email states:

“From your correspondence we understand that you are acting on behalf of a non-profit community organization, the Accessibility for Ontarians with Disabilities Act Alliance (AODA Alliance). You have indicated that the AODA Alliance has no funds of its own. As such, your request for a fee waiver relies on the financial hardship exemption set out in section 57(4)(b) of the Act.

I respond as follows:

1. As the Government knows, the AODA Alliance is an unincorporated, volunteer community coalition. We have no money. We have no real or personal property. We have no bank accounts. We charge no membership fees.

Because we are unincorporated, we have no corporate documentation. We have no financial statements to provide.

In October, 2013, you made the same request for financial statements in response to an earlier Freedom of Information application by me. At that time, I gave the Government this same information. Our circumstances in this regard have not changed in the past two years, as the Government knows.

2. Your Ministry should not need financial statements to support what I have told you about this Freedom of Information application. We have had a very extensive working relationship for years with the Ontario Government, and especially with the Accessibility Directorate of Ontario. The Government and opposition parties have each made election commitments to us over the years, and have praised our efforts in support of accessibility for people with disabilities.

You can learn all about us by visiting www.aodalliance.org

3. Contrary to the thrust of your August 31, 2015 email to me, my request for a fee waiver is not only based on the financial hardship criterion for waiving such a fee. As in the past, this fee waiver request is also based on the fact that my Freedom of Information Act application is clearly a “public interest” request. I hope and trust that the Government in general and your Ministry in particular, are sufficiently familiar with my public interest activity, and that of the AODA Alliance, in the area of disability accessibility, to lay that question to rest. If your Ministry has any doubt about this, or questions whether I have a genuine public interest motivation in mind in seeking this information, please let me know, and tell me what further I can provide.

Please confirm that you received this email, and let me know how soon I can get a response.

September 24, 2015 Economic Development Ministry Letter to AODA Alliance Chair David Lepofsky

September 24, 2015

David Lepofsky
Dear Mr. Lepofsky,

RE: MEDEI – Fee waiver response

Thank you for your response of August 31, 2015 to the notice of a fee estimate in the amount of $4,250.00.

In response to your request for information that can be provided with minimal search time, we will proceed as soon as possible to issue a decision on access to records that respond to the following items in your request: 1, 2, 3, 6, 7, 8, 9, 12, 13, 14, 17, 26 and 30

The estimated search time for each of the remaining items in your request is an hour or more. A breakdown of the estimated time and fee is provided by item in the table below. This may assist you in determining options to amend the scope of the request.

With regards to the search time associated with Item #10 of your request, this item requires an extensive documents search of four record sources (i.e. Shared Drives, Emails, Case Management System, Paper Records) to locate responsive records related to the implementation of a compliance and enforcement strategy.

Item #	Estimated Search Time	Fee estimate ($)
5	1 hour	30.00
10	50 hours	1500.00
11	2.5 hours	75.00
15	4 hours	120.00
16	1 hour	30.00
18	16 hours	480.00
19	1.5 hours	45.00
20	1.5 hours	45.00
21	2 hours	60.00
22	15 hours	450.00
23	8 hours	240.00
24	1.5 hours	45.00
25	1.5 hours	45.00
27	2 hours	60.00
28	12 hours	360.00
29	10.5 hours	315.00
31	10 hour	300.00
Total =	140 hours	4,200.00

In our previous correspondence of August 31, 2015, you were provided with an overview of the considerations to determine if a request for a fee waiver meets the requirements of section 57(4) of the Freedom of Information and Protection of Privacy Act (the Act). Fees required by section 57(1) of the Act are mandatory unless it is determined that it is fair and equitable to grant a waiver of all or part of the fee, taking into account the considerations set out in section 57(4).

Your response of August 31, 2015 did not provide sufficient information to determine whether any of the requirements described in section 57(4) of the Act have been met in the circumstances. Your response indicated that a fee waiver should be granted on the grounds that payment of the fee would result in financial hardship, and that the disclosure of the records would benefit the public interest. While financial hardship is a consideration for granting a fee waiver, a potential public interest in the records is not a consideration under section 57(4) of the Act.

In order to make a recommendation on whether a fee waiver would be fair and equitable in the circumstances, the Ministry requires further evidence to support the claim of financial hardship. To determine if it is fair and equitable to grant a fee waiver, the onus is on the requester to establish the basis to support a fee waiver by demonstrating that the criteria for a fee waiver are present. You may wish to consider orders of the Information and Privacy Commissioner in determining where a fee waiver is justified.

For the purposes of establishing financial hardship, financial information that may be provided to support a fee waiver request includes the assets, income, expenses, and liabilities of the individual or group making the request in order to demonstrate why the payment would cause financial hardship.

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. A copy of the letter closing that request is attached.

If you have any questions, please contact Pat Carroll-Tougas at 416-326-1344 quoting the case number assigned to your file.

Sincerely,

Original signed by Robert Burns

Robert Burns
Chief Administrative Officer
Assistant Deputy Minister
Corporate Services Division

c. Pat Carroll-Tougas

Attachments:
MEDTE: Letter dated February 13, 2014

Enclosure with September 24, 2015 Letter from Economic Development Ministry to AODA Alliance Chair David Lepofsky

February 13, 2014

David Lepofsky
Dear Mr. Lepofsky,

RE: MEDTE

This is a follow up to your Freedom of Information and Protection of Privacy access request and $5.00 application fee received by the Ministry of Economic Development, Trade and Employment on August 16, 2013 and subsequently clarified on September 19, 2013.

It is my understanding that you have received the requested information. I will therefore consider your access request to be closed.

Please contact Pat Carroll-Tougas at 416-326-1344 if you have any questions in this regard.

Sincerely,

Original signed by David Clifford

David Clifford
Assistant Deputy Minister
Corporate Services Division

c. Pat Carroll-Tougas

November 4, 2015 Letter from AODA Alliance Chair David Lepofsky to Economic Development Ministry

November 4, 2015

Via Email

From: David Lepofsky, CM, O. Ont
Chair
Accessibility for Ontarians with Disabilities Act Alliance

Re: Freedom of Information Request MEDEI

Thank you for your Ministry’s September 24, 2015 letter to me. It responded to my request for a fee waiver in connection with my June 4, 2015 Freedom of Information application. My application seeks to make public important information regarding the implementation and enforcement of the Accessibility for Ontarians with Disabilities Act. May I answer your letter as follows:

1. Your Ministry’s September 24, 2015 letter clearly indicates or implies that your Ministry will not charge a fee to provide information requested in paragraphs 1, 2, 3, 6, 7, 8, 9, 12, 13, 14, 17, 26 and 30 in my June 4, 2015 Freedom of Information application. Your September 24, 2015 letter specifically commits:

“In response to your request for information that can be provided with minimal search time, we will proceed as soon as possible to issue a decision on access to records that respond to the following items in your request: 1, 2, 3, 6, 7, 8, 9, 12, 13, 14, 17, 26 and 30”

Since your letter, I have heard nothing further regarding the decision on those items which your Ministry committed to make “as soon as possible.” Why has that been delayed to this date? When will that decision be made? When will your Ministry be providing that requested information, which your letter signals would require minimal search time?

2. As I understand your Ministry’s September 24, 2015 letter, the Government proposes to charge me $4,200 for the remaining items in my June 4, 2015 Freedom of Information application, unless the Government waives the fee or I somehow narrow the information I have requested. I repeat my earlier request that the Government waive its fee for providing this information. Your September 24, 2015 letter gives two reasons for the Government’s not having yet agreed to waive its fee. Respectfully, neither makes any sense.

First, your Ministry’s September 24, 2015 letter yet again asks me to provide financial information about the Accessibility for Ontarians with Disabilities Act Alliance. Your September 24, 2015 letter states:

“In our previous correspondence of August 31, 2015, you were provided with an overview of the considerations to determine if a request for a fee waiver meets the requirements of section 57(4) of the Freedom of Information and Protection of Privacy Act (the Act). Fees required by section 57(1) of the Act are mandatory unless it is determined that it is fair and equitable to grant a waiver of all or part of the fee, taking into account the considerations set out in section 57(4).

Your Ministry asks for “further evidence” from me, showing that the AODA Alliance has no assets and income. I have told the Government, in my June 4 and August 31, 2015 letters to your Ministry, that we have no funds whatsoever. I had previously advised your Ministry of this in 2013 in connection with an earlier Freedom of Information application. I repeat that, as an unincorporated voluntary community coalition, we have no financial statements to provide.
Respectfully, I am at a loss to know how to prove to the Government that we have no property. If we have no financial statements, and no bank accounts, how can I give you the further evidence that you say is required? What further evidence does the Ministry want me to provide? Does the Ministry now dispute that we have no property and no financial statements?

Second, your Ministry’s September 24, 2015 letter wrongly dismisses as irrelevant the Government’s treatment of my two earlier requests for fee waivers. The Government has twice in the past two years tried to impose a fee on me for fulfilling Freedom of Information requests concerning the Accessibility for Ontarians with Disabilities Act and disability accessibility. In both cases, the Government eventually agreed to provide the requested information without insisting on the fee it initially demanded. My present request for a fee waiver is identical here. It is requested on the same grounds as it was in those two earlier instances.

Your Ministry’s September 24, 2015 letter rejects this, stating:

“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. A copy of the letter closing that request is attached.”

Your Ministry’s response provides no compelling answer. Here is a closer look at what happened.

Two years ago, on August 15, 2013, I submitted an earlier Freedom of Information application to your Ministry, regarding its enforcement of the AODA. It raised several questions that are similar to a number of questions on which I seek updated information in my June 4, 2015 Freedom of Information Application.

In its October 2, 2013 letter to me, your Ministry tried to insist on a fee of $2,325 to fulfil that earlier Freedom of Information application. I asked for the requested information to be given to me without my having to pay that fee, on grounds that are identical to those I advance here. On October 29, 2013, the Government was criticized on the floor of the Ontario Legislature for insisting on a fee. In Question Period, NDP MPP asked the Government: “…Why does the government believe it is acceptable to demand such an unreasonable sum from a volunteer organization that has no disposable funds? How free is freedom of information?” The Government was also blasted in a Toronto Star editorial for withholding the information I requested.

In the wake of these public events, your Ministry decided to give me all the information I had requested in my August 15, 2013 Freedom of Information Application. It did not require me to pay any fee. If that is not a fee waiver, I do not know what is.

Your Ministry’s September 24, 2015 letter to me relies in support of its position on the February 13, 2014 letter to me from your Ministry, which merely said:

“It is my understanding that you have received the requested information. I will therefore consider your access request to be closed.”

That February 13, 2014 letter was written to me some two months after the Government gave me all the information I sought, without charging me a fee. It does not show that the Government did not waive its fee before giving me that information.

Several months later, on October 22, 2014 I filed another Freedom of Information application, this time with Metrolinx, regarding accessibility problems with the new Eglinton Crosstown Subway under construction in Toronto. Metrolinx is an agency of the Ontario Government.

On October 3, 2014 Metrolinx wrote me, insisting on a $250 fee if I was to get the information I sought. On October 14, 2014, we made public the fact that Metrolinx attempted to insist on that fee. Within two hours, Metrolinx called me to advise that the Metrolinx president had decided to waive that fee. I was given the requested information. I was not charged a fee. If that is not a fee waiver, I don’t know what is.

We made this fee waiver public on October 20, 2014 in an AODA Alliance Update. Our Update referred to this as a fee waiver. No one from the Government contacted us to deny that this was a fee waiver. That Update’s headline included, among other things: “Metrolinx Backs Down! It Waives Its Proposed $250 Fee for Answering the AODA Alliance Chair’s Freedom of Information Application Regarding the Creation of New Accessibility/Safety Barriers on the Eglinton Crosstown Subway – Within Two Hours of Our Publicizing Metrolinx’s Attempt to Extract That Fee …”

The Government closely monitors our Updates. It is not shy about pointing out when it disputes something in them. It never denied the accuracy of that Update. The October 14, 2014 AODA Alliance Update.

In both earlier instances I was able to get the information from the Government that I requested in Freedom of Information applications. In both cases the Government did not ultimately insist on my paying the fee it initially demanded as a pre-condition to its giving me the information I requested. The same should hold true here.

If the information I gave the Government to support my request not to pay the fee was sufficient in both earlier cases, it should equally be sufficient here. Whatever internal bureaucratic machinations went on within the Government leading to that result is, for all practical purposes, irrelevant.

3. Your Ministry’s September 24, 2015 letter raises the possibility of my amending my requests for information to reduce the search time required to fulfil it. I am always open to clarifying what I seek, if needed, as you know. By phone, I have given you and the Ministry detailed guidance to enable it to focus its search efforts. It is far from clear to me that your proposed fee takes into account that guidance.

For example, your Ministry’s September 24, 2015 letter to me states:

“With regards to the search time associated with Item #10 of your request, this item requires an extensive documents search of four record sources (i.e. Shared Drives, Emails, Case Management System, Paper Records) to locate responsive records related to the implementation of a compliance and enforcement strategy.”

My Item 10 in my June 4, 2015 Freedom of Information application asked for the following:

“10. If not already disclosed as a result of my August 15, 2013 Freedom of Information application, any plans, policies, directives or instructions for enforcement of any requirements or provisions of the AODA or of any accessibility standards enacted under it, including for example, for conducting any audit or inspection of that organization:

a) In the case of any private sector organization with 20 or more employees that has not filed the required accessibility report under section 14 of the AODA.

b) In the case of any private sector organization with 20 or more employees that has filed a required Accessibility Report under s. 14 of the AODA.

c) In the case of any private sector organization with fewer than 20 employees.

d) In the case of any public sector organization.”

This simply sought to update the enforcement plans information the Government gave me at no charge in November 2013, in response to my August 15, 2013 Freedom of Information application. My August 15, 2013 Freedom of Information application requested, among other things the following:

“5. Any past or current plans, policies, directives or instructions for enforcement of any requirements or provisions of the AODA or of any accessibility standards enacted under it, including for example, for conducting any inspection of that organization:

a) in the case of any private sector organization with 20 or more employees that has not filed the required accessibility report under section 14 of the AODA.

b) In the case of any private sector organization with 20 or more employees, that has filed a required Accessibility Report under s. 14 of the AODA.

c) in the case of any private sector organization with less than 20 employees.”

If your Ministry could provide that very information up to date as of November 2013 in response to my earlier Freedom of Information application without insisting on a fee, it should be able to update that information from November 2013 to the present without insisting on a fee. The search time for the current request should be less than it was for my 2013 request, which your Ministry was readily able to fulfil.

In conclusion, may I please receive all the information I have requested without paying a fee. Premier Wynne has pledged that hers would be the most open government in Canada. Please act in accordance with that pledge. Please confirm that you received this email, and let me know how soon I can get a response.

Sincerely,

David Lepofsky CM, O.Ont
Chair
Accessibility for Ontarians with Disabilities Act Alliance

cc: Premier Kathleen Wynne, email kwynne.mpp.co@liberal.ola.org
Brad Duguid, Minister of Economic Development, Employment and Infrastructure email brad.duguid@ontario.ca
Giles Gherson, Deputy Minister of Economic Development, Employment and Infrastructure, email giles.gherson@ontario.ca
Ann Hoy, Assistant Deputy Minister for the Accessibility Directorate, email ann.hoy@ontario.ca