February 2, 2017
On Tuesday, January 31, 2017, AODA Alliance Chair David Lepofsky spent a day before Ontario’s Information and Privacy Commission. He argued his Freedom of Information appeal against the Wynne Government. This appeal garnered media coverage in the Toronto Star (see below. As well, a story ran in French on CBC Radio Canada.
Back on June 4, 2015, David Lepofsky filed a Freedom of Information application with the Economic Development Ministry. He asked for the Wynne Government to disclose various records regarding its implementation and enforcement of the Accessibility for Ontarians with Disabilities Act.
The Government demanded that David Lepofsky pay fully $4,250 for these records. He asked the Wynne Government to waive that fee, since the AODA Alliance had no money. The Wynne Government refused.
In March 2016, David Lepofsky filed an appeal with Ontario’s Information and Privacy Commission. He asked the Information and Privacy Commission to waive this fee, or to reduce it.
It is that case that was argued on January 31, 2017. After a full day of oral argument on this appeal, the Information and Privacy Commissions adjudicator reserved her decision. That means that the Information and Privacy Commission is considering this argument, and will decide later. We will let you know what the Information and Privacy Commission decides, once we know. We have no idea how long it will take to decide.
We very much appreciate that a number of AODA Alliance supporters took the time to come to this hearing, to observe the arguments. Between the apeal’s participants and the observers, the Information and Privacy Commission’s board room, where the appeal was heard, seemed quite full. The Information and Privacy Commission was very hospitable about accommodating the attendees.
The Wynne Government clearly spent far more than $4,250 to fight over $4,250. The Government sent quite an armada to this appeal, to fight over trying to get $4,250 for the time to search for the documents David Lepofsky requested.
The Ontario Government’s armada, sent to this appeal, included fully 8 people. This included two lawyers and one articling student from the Crown Law Office Civil at the Ministry of the Attorney General. Of these, the senior counsel sent to argue the case for the Government was one of the Government’s handful of General Counsel, the most senior and experienced of the hundreds of lawyers who work for the Ontario Government.
The Government also sent three additional Government lawyers, from the Economic Development Ministry and the Ministry of Government and Consumer Services. They were there to observe, though one briefly spoke at one point during the argument to assist the Government’s side.
The Government’s armada also included the Economic Development Ministry’s Freedom of Information coordinator, and a manager from the Accessibility Directorate of Ontario. The latter person was the witness who swore an affidavit to support the Government’s case, and who answered questions on the Government’s behalf at points during the appeal.
On the other side of the table sat AODA Alliance Chair David Lepofsky, a volunteer, and a volunteer pro-bono lawyer who donated his time to provide assistance to David Lepofsky as Lepofsky argued his appeal. David Lepofsky was there arguing on his own behalf. He was not serving, and does not serve as a lawyer for the AODA Alliance.
Under Ontario’s Freedom of Information legislation, the Government can estimate the fee it can charge to search for requested information. If the requester doesn’t pay, and cannot get the Government to waive the search fee, then the Government is free to not spend the time and money to collect the requested information.
In this case, back in the 2015 summer, unknown to David Lepofsky, when the Government told him it was estimating the fee to search for the information he had requested, the Government in fact spent 140 staff hours actually collecting the requested information. Yet if the fee is allowed to stand, and it is not paid, the Government is left with the documents, but has already used its staff time collecting these documents.
You can see what both sides argued, by reading the memorandum of arguments and affidavits that David Lepofsky and the Wynne Government filed.
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 in opposition to David Lepofskys 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 Lepofskys reply affidavit, that he provided in response.
To read David Lepofsky’s reply memorandum of argument that he has filed in response.
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The Toronto Star Online January 30, 2017
Accessibility advocate appeals access to information fee
Lawyer appeals $4,250 fee to access information on how Ontario’s accessibility law is being enforced.
David Lepofsky in his office at York University Osgoode Law School, in 2014. Lepofsky says the provincial government is keeping secret the details behind a promised crackdown on businesses that ignore accessibility legislation. (Andrew Francis Wallace / Toronto Star)
By Laurie Monsebraaten
Social justice reporter
Mon., Jan. 30, 2017
The Wynne government is denying Ontarians the right to know the details behind its promised 2015 crack-down on businesses that ignore their responsibilities under the province’s landmark accessibility legislation, an accessibility activist says.
Lawyer David Lepofsky asked the government for details of its plan to beef up enforcement the day after it was announced. That was in a June, 2015 Toronto Star story about the government marking the 10th anniversary of the Accessibility for Ontarians with Disabilities Act (AODA) with a 10-year provincial action plan.
It would ensure the province’s 1.8 million people with disabilities can live, work and play to their full potential by 2025 as set out in the 2005 legislation.
But in August,2015, government officials said it would cost Lepofsky’s AODA Alliance, the non-partisan advocacy group he chairs, $4,250 to cover government staff time to retrieve the relevant documents.
Lepofsky, who has been fighting on behalf of the volunteer coalition since then to have the fee waived, is making his case Tuesday, in a hearing before the Information and Privacy Commission of Ontario.
“Not only has the government already spent the $4,250 to collect this information, but they are now spending much more on lawyers and a hearing to continue to deny me — and the public — the right to know how they are implementing and enforcing this legislation,” he said in an interview.
According to the 2015 Star story, the government had planned to double compliance audits to 4,000, or 1 per cent of Ontario’s 400,000 businesses starting in 2016.
Lepofsky said he was “simply asking to see a detailed explanation of the policy” along with data and reports to back up the proposed enforcement measure and other actions on implementing the act.
In documents filed in advance of Tuesday’s hearing, government lawyers argue the fee is being charged to offset costs to the public.
Lepfosky’s request is “broad” and lists 31 questions, most of which have sub-questions that bring the total number of requests to about 84, the lawyers say.
“The user-pay system encourages requests that are reasonable in scope and offsets costs to the public in circumstances such as the present case, where ministry staff were redirected from enforcement activities to satisfy the… request,” they add.
They also argue government staff provided many documents in Lepofsky’s request for free and tried unsuccessfully to narrow the scope of the request in an attempt to lower the fee.
In a new argument, not included in the government’s refusal in January 2016 to waive the fee, government lawyers say Lepofsky’s coalition made no attempt to pay the cost through fundraising.
“I can’t believe they are suggesting people with disabilities should have to go out and beg for funds to pay for this information when the issue of fundraising has never been raised before,” Lepofsky said.
“We don’t charge for the hundreds of volunteer hours we spend responding as part of government consultations on the act,” he added. “This is outrageous.”