Two weeks ago, in a press conference at Queen’s Park, I announced my Charter challenge against the Ontario government’s amendments to the Freedom of Information and Protection of Privacy Act (the FIPPA).
Together with my co-applicants, the Association for Reformed Political Action (ARPA) Canada, we will argue that our Charter right to freedom of expression, which includes freedom of the press, is violated by this Act.
Some information is routinely made public by the government, and some of it is not. In order to protect citizens’ rights to see information that isn’t publicly available (e.g., communications between government officials on how they came to a decision, or how much they spent on a particular project) we have access to information laws.
In Ontario, the purpose of this law, (called the Freedom of Information and Protection of Privacy Act or FIPPA), is twofold. It protects citizens’ privacy. It also stipulates under what conditions information must and must not be made available to citizens.
Access to information requests are an extremely important mechanism to hold governments accountable to the electorate. As Pierre Trudeau once said:
“Democratic progress requires the ready availability of true and complete information. In this way people can objectively evaluate their government’s policy. To act otherwise is to give way to despotic secrecy.”
The media regularly makes Freedom of Information (FOI) requests to break stories on government spending, decision-making or other action.
Anyone who reads this blog knows that I also make FOI requests regularly and that I can’t do that anymore in Ontario. Because in 2012 the Ontario Government changed FIPPA to exclude one medical service from FOI requests, and one medical service only: abortion services. They added clause 65(5.7)
“This Act does not apply to records relating to the provision of abortion services.”
(I only ever ask for aggregate numbers, and never ask for personal information, like doctor’s or patent’s names.)
So I can’t comment anymore on doctor’s OHIP billings for abortion services.
I took the government to court, and after two and a half years, they released the two page document I was looking for. So I should be happy right? Wrong. Because they released the document outside the Act, I was not protected by the Act. It also means that although in theory I may still be able to obtain information on abortion, there is no guarantee of my obtaining such information. The government can arbitrarily refuse me.
It is far preferable that information be released through the Freedom of Information and Protection of Privacy Act. That’s because the government must follow its own rules in releasing information. But there are no rules for releasing abortion information outside the Act. And if they refuse to give me the information I am looking for, I have no recourse.
When information is subject to FIPPA, not only do I have recourse (for instance if I am refused information), but the act also offers guarantees of response rates (like 30 days), etc. And if information is not released within the required 30 days, they must tell me why there is a delay.
So the Act protects my rights. When information is released outside the Act, I am literally at the mercy of the government. They can just say “no”, with no explanation, since no reason is required. When information is refused inside the Act, I must be provided with an explanation as to why it was refused. For example, cabinet confidences, or legitimate privacy concerns.
Releasing information inside the Act, although far from perfect, does ensure a lot more accountability from the government, and more protection for me.
FIPPA ensures that the government is accountable to all of us, and that includes the media, with the information it holds on our behalf. This clause is a bad law and it must be struck down.
The ARPA Canada FIPPA challenge – FAQs
By Pat Maloney who blogs at Run With Life.
This article has been republished here with the author’s permission.