Why Torontoist is Launching an FOI Column

6 June 2016

 By Jessica Smith Cross

The author is a staff member of the Torontoist. This June 2 article is reprinted with permission from the Torontoist.

As Torontonians, we have a right to know how the Scarborough Subway ridership projections were made. We own the statistics on police carding and can demand to see them to learn what they reveal about police racial bias.

We’re even legally allowed to take a peek at the mayor’s internal office communications about that silly Kanye West video.

But to get that information, someone had to file Freedom of Information (FOI) requests.

In Ontario, the process goes like this: anyone can pay the city, or other public body in the province, $5 and make a request, in writing, for information or copies of records they believe the institution has. If it does, by the law, it must release those records—if the requester pays a fee based on the time and cost required to deliver on the request, and unless those records fall under certain exceptions outlined in legislation.

It’s a process that can be a little complicated to navigate.

That’s why Torontoist is launching a series on freedom of information requests.

We’ll take requests from readers on what FOI requests you’d like to see. We’ll file them, write updates on the progress, and publish the results.

Email jsmithcross@torontoist.com, and let us know what you’d like to see. You can also leave a comment, or tweet us @Torontoist.

See below the jump to better understand the FOI process.

Look at it like this: filing an FOI is a bit like becoming an information raccoon, rummaging through Toronto’s records.

We sniff around for juicy, tasty things we want to know—even (especially) if someone doesn’t want us getting into it. And when we smell something, we start to dig with our tiny, clawed paws.

Sniff, sniff. Dig, dig. Delicious apples cores of knowledge.

Ontario Freedom of Information Commissioner Brian Beamish oversees the (real, non-raccoon) FOI process for Ontario’s cities and the provincial government. While he believes that most of us understand our right to privacy, many don’t fully understand our right to public information in Ontario.

That appears to be true in Toronto. The city publishes the FOI requests it receives every quarter, whether or not information was disclosed, in its open data portal.

The records from 2015 show the vast majority of FOI requests to the city are from businesses or members of the public, mostly related to specific addresses or incidents in the city that relate to their private interests.

Only four of the 1,132 requests made to the City of Toronto came from academics, and only 50 from the media.

“The government is really just stewards of information, they’re not the owners of the information,” Beamish said, in a recent interview with Torontoist. “It’s the public as taxpayers who are the ones that really own the information. So that’s information, with certain reasonable exceptions, they should have a right to.”

That’s theory. But in practice, the FOI system has its problems.

One of the first that information seekers face, is not knowing what records exist in the first place.

It’s tempting to request all of the memos, emails and instant-messaging chats related to a major or controversial issue, to see how a decision was made. But those records can only be divulged if they were created in the first place.

“That is an issue—what we call the duty to document,” said Beamish.

Canada’s privacy commissioners have gotten together to request legislation that would prevent legislators from avoiding FOI scrutiny by avoiding creating records in the first place.

The commissioners believe governments need to have a legal “duty to document” any decisions that are made, to ensure there is a paper trail that would allow the public to see what information was considered and the decision-making process, he said.

The most “dramatic” failure to document a decision in Ontario was the gas plant scandal, Beamish said.

“The main issue there, I’m sure you know, is the decision by the former Liberal government to relocate some gas plants,” he said. “It came to light that individuals who should have had records, did not have records—either that the records weren’t created in the first place or they had gone about systematically deleting emails.”

Of course, that’s a highly unusual case that’s led to criminal charges and a trial scheduled for next year.

A much more routine example is officials avoiding working out important decisions in any medium that’s documented, such as emails and memos, and speaking on the phone instead.

The process can also be slow—and that’s a problem, particularly for the media, which generally wants answers on newsworthy topics as soon as yesterday. By law the public institution has 30 days to respond to an FOI request, which happens about 80 per cent of the time in Ontario, Beamish said.

That’s a huge improvement over the bad old days, 15 years ago, when the 30-day response rate was less than 50 per cent, he said.

But when you get a response, it might be to tell you that it will cost you thousands of dollars to retrieve the records. While you can contest the fees, that adds time to the slow process.

Finally, the laws that govern FOI requests made to the province and cities contain many exemptions that deny the release of records, to protect some functions of government or protect someone’s personal privacy.

Records routinely released in the U.S. aren’t legally available in Canada.

“In Canada, we have a much more developed sense of privacy rights,” said Beamish. “Just for example, there are many states that have open criminal record laws and open sex offender registries—so the fact that someone has a criminal record is publicly available, and that’s not the case here.

“On the other hand, I think the Americans have a really well-developed sense of what a public record is. If a record has been created by public tax money, there is an assumption the public has a right to see it.”

Torontoist will explore all of this, and more, in this series as it progresses, through the FOI requests we file. Many of them will lead to dead ends where there are no records, or the records aren’t legally available, or the records are released, but the contents are redacted—or just boring.

But that’s way it goes. We hope to learn more about the FOI system as we go and dig up some tasty apples cores of knowledge in the process.

Here are a few of simple FOI requests we’ve filed to kick things off:

To the Toronto Zoo

A copy of the medical files/records for pandas Er Shun and Da Mao from Jan. 1 2015, to present, and copies of the medical files/records for pandas Jia Panpan and Jia Yueyue from conception to present, in an electronic file format.

To Toronto Public Health

All records (including reports, reports from the public, communications and memos) concerning tainted opioids and/or fentanyl from January, 1, 2014 to present.

To City Hall

All communications between Justin Di Ciano (Ward 5, Etobicoke-Lakeshore) (and his staff) and other city councillors, their staff, the mayor and his staff, concerning Di Ciano’s motion concerning ranked ballots (motion #6) on vote on the Five-Year Review of the City of Toronto Act, 2006, at the council meeting of September 30, October 1 and 2, 2015, and all records related to Di Ciano’s deputation, made on behalf of the city, at the Standing Committee on Finance and Economic Affairs at Queen’s Park on May 12, 2016.

Did you think information deserves to be free, and institutions should be held accountable? Support our FOI series by funding our Patreon. Get great perks and fund local journalism that makes a difference—join Raccoon Nation now.

 

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