The Ontario watchdog responsible for hearing freedom of information disputes is restricting the number of files it will process for some individuals with multiple appeals, a move experts say could curtail access to public records.
Twenty-three appellants with matters before Ontario’s Information and Privacy Commissioner have been singled out and their disputes put on hold, according to the watchdog. The agency says it has taken this measure to alleviate pressure on a flooded system.
In total, the agency has paused the processing of 94 files for those appellants, which amounts to 4.3 per cent of the 2,162 files before the commission.
The agency’s commissioner, Patricia Kosseim, has defended the move as a necessary step to fix an “unsustainable” situation.
Information commissions are the organizations responsible for hearing disputes about access requests. If someone disagrees with how their request has been administered – because they believe a document has been overly redacted, for example, or because a public body has violated its legal deadline for disclosure – they can file a complaint, or appeal, with the relevant federal, provincial or territorial commissioner.
Freedom of information laws exist across Canada and around the world, and enshrine into law the principle that people have a right to know how their tax dollars are being spent, how their elected officials are governing and how their public institutions are being run.
Freedom of information experts told The Globe and Mail that it was news to them that the commission has started actively identifying frequent users of the system and placing limits on the number of appeals they file.
Jason Plotz is a frequent filer of freedom of information requests who does research work on behalf of political parties and other groups. He received a letter from the commission in early November – shortly after registering his fifth appeal – advising him that he would be limited to two active cases at a time.
“I’ve never heard of this at all,” he said. “There was no advisory or warning, ‘Hey, you’re overburdening the office’ or anything like that.” The commission’s letter said that given Mr. Plotz had five appeals, it would allow four to be completed simultaneously “as a one-time courtesy.”
Mr. Plotz’s work requires him to file access requests across the country; some wind up at appeal. In total, he says he has roughly two dozen appeals spread out between Ontario, British Columbia, Alberta and the federal government.
Retired journalist Dean Beeby, known for being a frequent user of access laws, was also surprised that Ontario had a policy limiting active appeals. “I’ve never heard of this, and I have a couple of appeals with them currently,” he said.
While the total number of requests on hold may seem small, they could still be “highly relevant appeals,” he said, and pausing them because of resource constraints is a slippery slope that could eventually lead to decreased access.
Several appeals commissions across the country told The Globe that they don’t have policies limiting how many active appeals a person can have at once. Some do have file limits, however.
Saskatchewan, for example, allows up to five appeals per person, according to a policy document shared by the organization. British Columbia’s commission had a five-case limit from 2015 to 2020, but that policy was rescinded after its processing capacity increased, spokesperson Michelle Mitchell said.
The Globe’s Secret Canada project, an investigation into the state of Canada’s freedom of information systems, has found that public institutions across the country are routinely breaking these laws by overusing redactions, violating statutory time limits and claiming “no records” exist when they do.
And these organizations face few – if any – consequences for ignoring the precedents set by courts and information commissioners.
Unlike most public institutions, which are responsible for responding to access requests, appeals commissions exist to referee disputes between requesters and these groups.
In an interview, Ms. Kosseim, Ontario’s Information Commissioner, said that the current pressures on the access system are “unsustainable,” and that the policy helps the commission allocate resources.
“What’s underlying this measure is to try to alleviate the queue by giving everybody a fair and equitable shot to limited resources at the tribunal,” Ms. Kosseim said. Appellants are only limited in “rare circumstances,” she said.
Those decisions are made by “higher levels of governance” and involve looking at several factors, such as the number of appeals someone has filed, their flexibility during the appeals process and how voluminous the records at issue are.
While Ontario’s freedom of information laws say nothing about whether the commission can put appeals in abeyance, the courts have asserted that tribunals have the power to set their own policies, Ms. Kosseim said. “These are not willy-nilly decisions that are made.”
But to Mr. Plotz, the limit amounts to “another barrier to access.”
“If complaints are gonna be just stuck on hold forever, that’s going to mean much longer delays and less access,” Mr. Plotz said. Ultimately, he said he will be forced to triage his own appeals. “This is not what the access system is supposed to be – requesters self-censoring.”
In 2022, appeals in Ontario took an average of 12.5 months, according to the commission’s annual report, a 33-per-cent increase compared with 2018. (So far this year, appeals have taken an average of 10.9 months, the commission said.)
According to David Loukidelis, a retired lawyer and British Columbia’s Information and Privacy Commissioner from 1999 to 2010, the limits illustrate Ontario’s struggle to manage the appeals it is receiving.
Some “vexatious” individuals file many extremely complex, time-consuming requests or appeals, gumming up the system for everyone. But most people don’t meet those criteria, Mr. Loukidelis said, and limits on active appeals should be “applied sparingly.”
“You don’t want the regulator to then become part of the problem.”
Tom Cardoso
Robyn Doolittle