Breaking Down Doug Ford’s Latest Attack on Public Scrutiny

The Ford Government announced it will prevent journalists and the public from submitting Freedom of Information (FOI) requests for decision-making records of government politicians and their staff.

This week, the Ford Government announced it would introduce legislation to prevent journalists and the general public from submitting Freedom of Information (FOI) requests for decision-making records created by the Premier, cabinet ministers, parliamentary assistants, and their staff.

If you’re unfamiliar with them, FOIs help the public to understand why a government decision was made, who it was made by, and who, if anyone, influenced the decision-making process. While journalists are usually the ones who make FOI requests to aid their reporting on the government, any citizen can make one. This government accountability lever has existed for forty years since the passage of the Freedom of Information and Protection of Privacy Act (FIPPA) in 1985.

In all the decades since, no government has moved to gut the original provisions of this legislation. Yet Public and Business Service Delivery and Procurement Minister Stephen Crawford actually claimed the Ford Government is “one of the most transparent governments in the history of Ontario,” even as he argued to erect new barriers between the public and the decision-makers they elect.

The Ford Government’s Arguments for Gutting Accountability

The government has argued that FOIs endanger the cabinet’s confidential discussions, as cabinet ministers would be less forthcoming with their advice if they knew it would eventually become public. Ford made the same argument when he spent five years fighting the release of his instructions to cabinet ministers in the form of mandate letters. He ultimately won that argument after taking his case all the way to the Supreme Court. But government transparency and accountability took a major hit as a result.

The government has also argued that FOIs put constituents’ personal and private health information at risk because they would be less forthcoming about the issues they face if they knew their feedback might later become public. Never mind that the Premier already regularly reveals the content of his conversations with constituents during his impromptu press conferences. In any case, that information is already protected from public disclosure under the very legislation the government is looking to change.

Finally, the Ford Government has argued that the existing legislation predates the digital age and therefore needs to be updated to account for email, texts, and smartphones. As with other areas of government, it is important to stay responsive to technological change. But what the government hasn’t made clear is why advances in technology should somehow free the government from its duty to be accountable to and transparent with the public.

Backlash from the Opposition and Beyond

The backlash has been swift. Official Opposition and NDP Leader Marit Stiles called out the government, saying, “An honest government doesn’t change the rules to hide from the public. But Doug Ford’s government does.”

The Liberals’ Critic for Ethics, Integrity, and Accountability Stephanie Smyth added, “It’s freedom of information, not freedom from information. Today, Doug Ford told the people of Ontario something startling: that he doesn’t think he owes them transparency, accountability, or even the truth.”

And Green Party Leader Mike Schreiner concluded, “We need more honesty, accountability and transparency from this government, not less. Ontarians have a right to know how decisions are being made in their own government.”

Backlash over the government’s proposed changes also extended beyond the walls of Queen’s Park. “Premier Doug Ford is trying to hide records from the public and roll back the ability of everyday taxpayers from holding the government accountable. What is Ford and his cabinet trying to hide?” said Noah Jarvis, the Ontario Director for the Canadian Taxpayers Federation.

“The fact that other provinces and the federal government have excessive secrecy loopholes that deny the public’s right to know does not justify the Ford government adding an excessive secrecy loophole and layer of secrecy,” added Duff Conacher of Democracy Watch in an interview with CTV.

Making Ontario an Outlier on Transparency and Accountability

While it may be easy to brush off Ford’s political detractors on this issue, the government is also facing pushback from the Information and Privacy Commissioner of Ontario, Patricia Kosseim, who oversees the enforcement of the legislation that the Ford Government is proposing to change.

“If records about government business can be shielded from scrutiny simply because they sit in a minister’s office, on a staffer’s device, or within a political account, public accountability is eviscerated.” - Patricia Kosseim, Information and Privacy Commissioner of Ontario

The Commissioner issued a rare scathing statement, saying, “Freedom of information laws exist to provide Ontarians with vital information about how government decisions are made, on what basis, who influenced them, and whether the public interest is being served. If records about government business can be shielded from scrutiny simply because they sit in a minister’s office, on a staffer’s device, or within a political account, public accountability is eviscerated.”

The Commissioner took issue with the government’s rationale for the changes, arguing that the existing legislation “already protects personal, cabinet, and constituency records from disclosure.” In a statement to The Trillium, she also argued that current rules in Ontario already align with those in most other provinces and with the federal Access to Information Act (ATIA) and that federal ministers, parliamentary assistants, and their offices “are subject to the right of access.”

While Ford and his government flip between different rationales for the legislative change, it’s important to note that he is also currently facing a legal order to produce cell phone records for his personal phone.

Dogged investigative work by Global News reporters Colin D’Mello and Isaac Callan, among others, revealed that Ford does not use a government-issued phone, preferring to conduct business on his personal phone. That led to an FOI request for his personal phone records – but only those related to government decision-making.

You can learn more about this investigative journalism in this week’s episode with Colin and Isaac, recorded just days before the proposed changes were announced:

Instead of complying with the legal order, Ford is simply changing the law that made it possible. He is weakening transparency legislation in the province, limiting the public’s ability to hold top government officials to account, and making these changes apply retroactively.

Making the legislation apply retroactively would jeopardize multiple existing FOI requests and government accountability investigations, including those related to the Greenbelt land-swap and the Skills Development Fund, which focused on the decision-making records of the very political staff who are now being exempted.

As Commissioner Kosseim has argued, “By changing the law retroactively, the government’s message is plain: if oversight bodies get in the way, just change the rules.”

Ontario’s Original Government Accountability Legislation

Before entering politics, Attorney General of Ontario Ian Scott was a well-respected constitutional lawyer and former instructor of civil procedure at Osgoode Hall Law School. In short, he knew his stuff. When the Peterson Liberals finally brought an end to 43 years of Tory rule in Ontario in 1985, he was quickly tapped to serve as Attorney General.

Within two weeks of being sworn in, Scott rose in the legislative chamber and introduced a landmark piece of legislation that has, until now, stood the test of time: the Freedom of Information and Protection of Privacy Act. He pointed out that the Tories had been promising such legislation for six years but had not acted. He also argued that such legislation was essential to holding the government to account and protecting the rights of the people it governed.

“We do not now and never will accept the proposition that the business of the public is none of the public’s business,” Scott told his fellow MPPs. Then he laid out the key principles of the legislation:

1. Government information should be more readily available to the public.

2. The necessary exceptions to access to government information should be limited and specific.

3. Decisions by ministers and government officials on what information will be disclosed should be reviewed by an independent commissioner accountable only to the Assembly.

As we look back on this legislation 40 years later, these principles still hold up. Government should be open by default. Information about its decision-making should be protected only when absolutely necessary to prevent harm to the public interest. And the decision on which information falls into that protected category should be made by an independent figure accountable to all MPPs in the Legislative Assembly, not by whoever currently holds power.

Scott would later speak about the priority the government had placed on this legislation, saying, “We brought it in first because we believed it was the right thing to do: in a democracy, citizens have the right to know what information the government uses as the basis for its decisions.”

This sits in stark contrast to the Government of Ontario today. The only rationale that makes any sense for the specific, self-serving changes the Ford Government wants to make is that the government has grown uncomfortable with scrutiny and wishes to operate in the shadows.

“At some point in the future, information may be made public under this new bill that could embarrass or harm the political fortunes of the government of the day. We recognize that possibility; however, it is a fact of life and a natural consequence of an open, consultative government.” - Ian Scott, Former Attorney General of Ontario

Ian Scott clairvoyantly raised this very scenario when he first introduced the legislation to his fellow MPPs: “At some point in the future, information may be made public under this new bill that could embarrass or harm the political fortunes of the government of the day. We recognize that possibility; however, it is a fact of life and a natural consequence of an open, consultative government. It will achieve the greater good of parliamentary democracy, open administration and thus the good of society as a whole.”

Scott continued, “That potential risk, that potential cost, can and must be borne in the interest of freedom. When there is true openness in government, we will have a society that is trustful of its government, not fearful of it. We will have a society that is enlightened by information and able to make thoughtful choices as to the future shape of our society.”

Scott based much of the legislation on a bill previously introduced in 1983 by former Liberal MPP and then Chairman of the Ontario Law Reform Commission, James Breithaupt. He also drew inspiration for the bill from the 1977 Commission on Freedom of Information and Individual Privacy, chaired by Dr. Carlton Williams of the University of Western Ontario.

“The democratic society relies on publicity as a control over government and on privacy as a shield for group and individual life.” - Dr. Carlton Williams, The Report of the Commission on Freedom of Information and Individual Privacy

The Government of Ontario established the commission to examine ways to improve public information policies and privacy legislation. It would later be known as the Williams Commission and, in 1980, released an influential final report entitled “Public Government for Private People, The Report of the Commission on Freedom of Information and Individual Privacy.”

Scott closed his opening speech on the legislation by quoting the opening words of the Williams Commission report: “The modern totalitarian state relies on secrecy for the regime but high surveillance and disclosure for all other groups. The democratic society relies on publicity as a control over government and on privacy as a shield for group and individual life.”

Updating Government Accountability for This Century

While the Ford Government claims legislative updates are simply overdue, they are forgetting or choosing to ignore the fact that major updates were made by the government that immediately preceded them in office.

In 2014, in response to the gas-plant scandal that rocked the McGuinty Government in its dying days, the new Wynne majority government set out to revise government record-keeping and accountability rules to close loopholes and set out clear guidelines for politicians and their staff in the digital age. That legislation was called the Public Sector and MPP Accountability and Transparency Act, 2014.

As in the Peterson years, the bill was one of the first pieces of legislation introduced by the Liberal government in the July session after the election. And like Scott’s bill, this legislation had also been based on legislation introduced in the previous session that failed to pass before the election was called.

At the time, I was the Executive Assistant to the Parliamentary Assistant to the President of the Treasury Board Secretariat (TBS) (no, that title did not easily fit on a business card). The President of TBS at the time would also later become my boss, MPP and Deputy Premier, Deb Matthews. She, her office, and our office were tasked with shepherding this new legislation through the legislature.

The legislation had several aims. It sought to expand the existing powers of the Office of the Ontario Ombudsman to include oversight of municipalities, universities, and school boards. It also created a new watchdog, the Patient Ombudsman, to oversee public hospitals, long-term care homes, and home care delivery.

The legislation sought to expand the mandate of the Provincial Advocate for Children and Youth, granting the Advocate investigative powers over matters related to services provided by the children’s aid societies. And it strengthened the Lobbyists Registration Act, giving the Integrity Commissioner the power to investigate alleged violations and to act as the province’s Lobbyist Registrar.

Strengthening these watchdog offices was important to me as a citizen. But it was also relevant to my work supporting a member of the Board of Internal Economy (BOIE), the legislature’s decision-making body, chaired by the Speaker and composed of MPPs.

The BOIE reviews the annual budget of the Legislative Assembly, sets rules on what MPPs may spend money on, acts as the employer of the non-partisan staff at the legislature, and approves the budgets of the independent officers of the legislature, such as the Ombudsman and the Information and Privacy Commissioner. The Board gave us direct insight into the tools the watchdogs needed to successfully act on behalf of Ontarians and to apply those insights to the accountability legislation.

Beyond empowering legislative watchdogs, the bill also addressed public-sector compensation. The legislation authorized the government to establish compensation frameworks and hard caps on the salaries of senior executives at organizations such as hospitals, universities, and school boards. The goal was to help reduce government costs while lowering the temperature on negotiations to avoid disruptive labour disputes.

At the time, the government was steering the province out of the Great Recession and was trying to rein in spending. TBS was tasked with leading a process called Program Review, Renewal, and Transformation (PRRT) to evaluate the government’s multi-year planning and budgeting and identify efficiencies. The government saved over $200 million in the first year of these efforts alone.

In the same vein, the legislation also took aim at MPPs and their expenses. It required travel, meals, and hospitality expenses for MPPs, cabinet ministers, and opposition leaders to be posted online for public viewing. It also gave the Integrity Commissioner the authority to review the expenses of 197 provincial agencies.

All of these were important steps forward, but the headline reform was the new requirements introduced by the legislation for government records management. The bill amended the original Freedom of Information and Protection of Privacy Act by creating a legal requirement for institutions to securely retain records and making it a provincial offence to wilfully alter, conceal, or destroy a record with the intent to deny an FOI request. These updates applied to a record, whether physical or digital, and whether it was created on government devices or not.

When the legislation reached the committee stage, the opposition parties tabled over 400 amendments to the bill. MPPs on the committee (and the weary staff who supported them) worked through every amendment until a final draft of the bill was returned to the whole assembly for a vote.

In a rare showing of cross-party collaboration, the legislation passed 77-17. Among those who voted in favour of the new, more robust government transparency and accountability measures were current PC MPPs Bob Bailey, Steve Clark, and Ernie Hardeman, as well as Ontario’s current Deputy Premier, Sylvia Jones.

Digital Record-Keeping in Practice

After the passage of the legislation, political staff in the offices of Ministers, Parliamentary Assistants, and MPPs received government record-retention training specifically focused on how to retain and file government records of directions and decision-making created via briefing notes, meeting decks, emails, text messages, and other tools of the digital age. Staff were instructed that they were legally required to retain any content containing a government decision and file it in a manner that could be easily accessed should a FOI request be made about that topic.

It was made very clear that the device used to create a record mattered less than the record being created. While politicians and staff were required to use their government-issued cell phones and email accounts to conduct government business, it was made very clear that personal phones and email addresses were also subject to FOI requests if government business was conducted on them.

In short, longstanding government recordkeeping rules have always held that the public’s right to know what the government does on its behalf trumps any technical workarounds that politicians and their staff might hope would let them off the hook for being accountable to citizens.

This highlights two things. The first is that the Ford Government has not lived up to its existing legal obligations, with repeated investigations finding many members of the government, including Ford himself, regularly use personal devices and emails to conduct government business.

Second, the government’s claim that digital technology is the rationale for its assault on accountability rules does not hold water historically. Rules around the use of these technologies have existed for over a decade, and the Ford government has actively chosen not to comply with them. If they want better digital recordkeeping in government, they can simply do their jobs as they have always been legally required to do them.

What’s At Stake

Recordkeeping isn’t exciting. But it’s how the public keeps the “receipts” for their government’s actions on their behalf. By rewriting the rules to kill ongoing investigations into the Greenbelt and his own personal communications, Ford is effectively declaring his government above the reach of independent and public oversight.

If we allow the government to continue down this road, we won’t just be losing access to important government documents. We will also lose our ability to know what is being done in our name, with our money, and on our behalf. Once we lose these basic checks and balances, the government will have free rein to act in its own interest instead of ours.