By
Shawn Jeffords, Toronto Sun
First posted: Saturday, January 10, 2015 06:12 PM EST | Updated: Saturday, January 10, 2015 07:55 PM EST
TORONTO - All Freedom of Information requests submitted by journalists, opposition politicians and anyone who might publicly discuss their findings are singled out for special treatment by the province's transportation ministry, documents obtained by the Toronto Sun show.
In the documents, meant to update incoming Transportation Minister Steven Del Duca last June and obtained through an FOI request, ministry staff deem those FOIs to be contentious regardless of what they are asking for.
“Contentious FOI access requests are defined as requests received from the media, the opposition, or any organization or individual who is likely to publicly comment about the response or disseminate the information received,” the briefing note says. “The ministry receives an average of 50 contentious FOI requests per year.”
The note says the ministry receives an average of 400 requests per year, meaning that one in eight are flagged.
The briefing note says there is a “contentious issues management process” in place to deal with the requests. The document also includes a chart which shows the ministry’s top bureaucrats, Minister of Transportation and the Cabinet Office, which houses the Premier’s Office, are tipped off to the requests as well. Five days before an access decision is sent, those same officials are again alerted.
Records processed by Metrolinx, the province’s transit agency, are also included in the process.
The briefing note goes on to give three examples of “recent contentious requests” which include access to records on the Union Pearson Express, the Windsor Essex Parkway and high occupancy vehicle/high occupancy toll lanes.
The briefing note also touts the MTO’s 94.2% compliance rate when it comes to responses to requests within 30 days. The “issues management process” for contentious FOI requests must not delay the requests beyond that mandated timelines, the note says.
Progressive Conservative MPP and transportation critic Michael Harris said the briefing note implies there is potential for political interference in access requests before the information is released.
“That drives me crazy,” he said of the briefing note. “(Requests) should be arm’s length.”
Harris said he has experienced the flagging first hand, receiving requests back only to find the government has a detailed communications strategy ready to deal with any criticisms he might make.
“I’ve got grave concerns that all of these folks are being tipped off and making us chase our tails to get information that should be at the public’s disposal,” he said.
“It’s so they can create a public relations or communications plan ahead of any possible damning information that can come out of these.”
Ken Rubin, an Ottawa-based investigative researcher and expert in access to information, said the memo is an example of the practice of so-called “amber-lighting” politically contentious requests.
“This ministry, which at least claims it’s more clean than others, is showing one-eighth of their requests get special treatment. The reason is politics. It’s nothing more or less.”
Rubin said the briefing note also makes it clear the freedom of information process, which is supposed to be information neutral, is not.
“It’s a process that’s designed to target certain people,” he said. “It’s an early warning system that defeats the purpose of easy and quick access for all equally.”
In Ontario, making a request costs $5 and then applicable search fees are assessed. In some systems, like at the federal level, five hours of search time is free.
“You don’t get a minute’s breathing point for search fees,” he said of Ontario’s FOI system. “Invariably, there are search fees. You’re not only paying for the privilege of them exempting certain records. You’re paying for the privilege of a reverse intimidation racket. What is this process that I’m paying for as a taxpaying member of the public or media?”
MTO spokesman Bob Nichols said the policy outlined in the briefing note has been in place since 1990. Its intent is to give a “heads up” to the Minister of Transportation so he or she can answer questions on the issue. The process has been acknowledged and deemed acceptable by former Information and Privacy Commissioner Ann Cavoukian a number of times, he said, citing findings in three IPC investigations.
Freedom of Information requests are processed by non-partisan public servants in the MTO, not political staff, he said.
“The public and media expect that a minister should be able to explain and answer questions about information that is released,” Nichols said.
The MTO did not say whether its policy is indicative of how FOI requests are handled across the Ontario public service.
