A response to The Toronto Star (and to “FOI reform” articles in general)

Star Article Header

News organizations such as The Toronto Star rely on the FOI process to obtain information from government institutions including at the municipal and provincial level. A few times a year, presumably out of frustration with the process, The Star will use their pages to complain about the state of the system — the delays, the high fees requested by the institutions tasked with responding to the requests, and the perceived frequent need to rely on the appeal process, which itself can take months or even more than a year.

Here are a few relatively recent examples of the kinds of articles I’m talking about:

“The high cost of accessing public records is a barrier to democracy, experts say” by Sabrina Nanji, Democracy Reporter, Toronto Star, Fri., March 30, 2018

Nanji’s article begins by shocking the reader with the proposed $31,948 price tag on an FOI request made to the Toronto Transit Commission (TTC) by Nanji’s fellow Star reporter Jennifer Pagliaro. The article then introduces Ontario’s Privacy Commissioner Brian Beamish, and notes he has called on the government to reduce or eliminate some fees charged to citizens who request public records, and quoting him describing the “magnitude” of the Pagliaro request as “highly unusual”. This is followed by assertion by Mike Larsen, head of the pro-access B.C. Freedom of Information and Privacy Association, that when fee estimates are appealed, they tend to go down, “suggest[ing] to us that the fee estimates are meant to be a disincentive”. Finally, the article notes that Ottawa’s FOI system was given an “F” by News Media Canada for being “by far the slowest government organization.” The only support for the status quo comes from Ontario’s Ministry of Government and Consumer Services spokesperson May Nazar, who notes that the fees charged typically only recover a portion of the real costs involved in responding to an FOI request, and that Ontario’s fees haven’t been raised in 20 years.

“What it takes to get the results of a Freedom-of-Information request” by Kenyon Wallace, Investigative Reporter, Toronto Star, Fri., March 30, 2018

Wallace’s article describes making an FOI request as a “usually painstaking process” for journalists, where they “first have to figure out exactly what to ask for”, often followed by “months-long — or sometimes years-long — delays and fights over the often high fees charged”. Wallace’s article again describes the travails of fellow Star reporter Jennifer Pagliaro, this time with respect to a request to the City of Toronto for “emails, memos, and other documents from the time council voted to scrap a light-rail line fully funded by the province to when council made the decision to build a subway instead.” The article describes the requested search as being for “Scarborough subway” and “Scarborough LRT”. After being told that thousands of emails would be covered by the request, Ms. Pagliaro was asked by the City if she would consider narrowing her request, but she refused. The City replied with a fee estimate of $1,755 and a nine-month time extension. Ms. Pagliaro paid the required 50% deposit on the fee estimate, but also appealed the fee and proposed delay to the Information and Privacy Commissioner of Ontario (IPCO). On appeal, IPCO upheld $1,485 of the fee, and, in response to a request from the City for even longer to respond, imposed a deadline of four months as of the date of the appeal decision (which itself came over a year after the date of the original request).

“Our flawed freedom-of-information system is an obstacle to monitoring power” by The Star Editorial Board, Toronto Star, Tues., April 3, 2018

Setting out the official position of The Star Editorial Board, and coming less than a week after the Nanji and Wallace articles above, this article notes that some FOI requests made by Star journalists have resulted in bills “running to tens of thousands of dollars”. It quotes Toronto City Hall reporter Jennifer Pagliaro dramatically musing “I am left with the question of whether this system is one set up to legislate secrecy. If so, it is operating just fine” then relates Star reporter Rob Cribb waiting “three years – and counting – for information from the RCMP”. The conclusion drawn from all of this is that “[t]he freedom-of-information system, as it stands, is too slow, too expensive and needs to be fixed.”

A response to The Toronto Star

Journalists are put in the unenviable position of “making themselves the news” when they report on the FOI process — it can be very hard to write an article that takes a balanced approach while at the same time serving as a public complaint over the experience that fellow news reporters (most often colleagues at the same news organization) seem to have when trying to obtain information through the formal FOI process.

Meanwhile, government institutions are put in the unenviable position of having to defend the current FOI system and how it is administered, or in the alternative, bowing to the pressure to restructure the system in a way that is more favourable to news organizations. Defending the current system can make the government appear as though it favours secrecy and opaqueness. On the other hand, agreeing to legislative reform to reduce timelines or lower fees may only marginally benefit requestors, while significantly increasing the costs to taxpayers and interfering with the primary (that is, non-FOI) objectives of the government institutions targeted by FOI requests. I have some sympathy for government representatives who conclude that there’s little to be gained either defending the current system or agreeing to the “fixes” proposed by interested reformers; instead, there is a strong temptation to simply let critiques pass by with little or no acknowledgement. But from a news organization’s perspective, when criticisms and accusations go unchallenged or unnoticed, there is a natural tendency to amplify the argument the next time around, leaving less room for nuance and rebuttal.

The Star articles above are just some of the more recent examples of the typical journalist’s position that “Canada’s FOI system is broken and needs to be reformed”. Over the years I have seen dozens of articles in Canadian publications which take a similar position. What I have yet to see published in a major Canadian newspaper is the other side of the story — one which points out the mistakes these articles frequently make, and details the important arguments in support of the current system which are frequently glossed over. It may be that news organizations simply aren’t interested in publishing this perspective, but just as likely, none of the people who actually get to see the system from the inside are in a position to respond with their perspective.

From my perspective, having worked managing the FOI program of an institution in compliance with Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA), here are the most common mistakes that “access-to-information reform” news articles tend to make, and a few important points that they generally fail to emphasize or even mention at all:

It’s all “the government”, right?

A common tactic in “FOI reform” articles is to conflate the different levels of government and the separate FOI systems of the various provinces. For The Star, it’s almost certainly Ontario’s provincial FOI system that they interact with most frequently and seem to care the most about, since Ontario’s system covers all of its various provincial and municipal institutions (including the City of Toronto itself, the TTC, Metrolinx, and Ontario’s other municipalities as well as its colleges, universities and hospitals). However, when it comes to citing disparaging facts about how FOI systems perform, The Star frequently switches to talking about the Federal system instead. For example, the Nanji article above, after complaining about how Ontario’s FOI system handled a request, goes on to note that Ottawa’s FOI system was given an “F” by News Media Canada — but of course, this “F” was given to the Federal FOI system, not Ontario’s. Likewise, The Star Editorial Board article implies a connection between the impressions of a city hall reporter and the delays in a request for information submitted to the federal RCMP.

This slight-of-hand makes about as much sense as criticizing the Ontario Progressive Conservatives for the price of stamps, or attacking the federal Liberals for Ontario’s education curriculum. The Federal and Ontario FOI systems are under completely separate legislation and are administered completely separately as well. Revealingly, according to the News Media Canada Freedom of Information Audit, the performance of each system is also completely different — for example, in the most recent (2017) audit, News Media Canada found that while the portion of requests that the Federal Government successfully responded to within the standard 30-day window was only 27%, the Government of Ontario’s FOI system fared much better, responding to 60% of requests submitted under the audit within 30 days. When News Media Canada described the Federal Government as “by far the slowest government organization in the audit”, this was of course in contrast to other government organizations in Canada, most of whom performed much better.

The unfortunate result is that even a well-functioning FOI system “can’t get no respect” — a 2016 Canadian Press article quotes Ontario Privacy Commissioner Brian Beamish as noting that, overall, “about 82 per cent of the Ontario requests in 2015 received responses within 30 days”. Not perfect, but not nearly as bad as the critics would have you believe.

It shouldn’t cost so much!

In Ontario, there is a basic rate of $7.50 per 15 minutes of work involved in searching for and preparing the requested records. This is the equivalent to $30.00 per hour, a rate which, as noted by Ontario’s Ministry of Government and Consumer Services spokesperson May Nazar in the Nanji article, hasn’t been raised in 20 years. At $30.00 per hour, cost estimates can quickly add up — a file which requires a full week’s worth (40 hours) of searching and preparing be expected to cost $1,200 in hourly costs alone.

Despite this apparently high cost, there are two ways in which this $30.00 rate fails to capture anywhere near the institution’s full cost of responding to a requestor. First, compared to other on-demand hourly rates in the market (where services are being purchased by the hour, rather than hiring an employee full-time or part-time), the $30.00 rate is quite low. This can be a touchy subject for government representatives to comment on, because from the perspective of a full-time or part-time hourly employee in Ontario, $30.00 per hour is a respectable wage. However, compared to standard charges for on-demand business services (rather than full-time or part-time wages), $30.00 per hour is far below any comparable rate. FIPPA requires “an experienced employee of the institution” to oversee or conduct the search. As of 2018, an auto mechanic’s rates might vary from $75-$120 an hour in Ontario; a business consultant might charge $100-$500 an hour; a lawyer might charge $200-$800 per hour; what should the hourly on-demand rate of an experienced civil servant be? If $30.00 per hour was ever the going rate, perhaps 20 years ago, it certainly isn’t now. But, most likely because of the poor optics that it would present to attempt to raise the $30.00 per hour rate, it has remained unchanged.

The second way in which this hourly rate fails to capture most of the cost involved in responding to an FOI request is that institutions are not permitted to charge for much of the time their staff spend on the file. The hourly rate is limited to searching for and preparing the requested records; it does not include the copious amounts of time generally involved in determining whether any of FIPPA’s many exemptions apply; internal time spent coordinating and seeking instructions and advice; time spent managing contentious files; the time involved in preparing fee estimates; time and costs expended on consultations with internal and external experts (such as obtaining legal advice); and the time spent tracking deadlines and reviewing files in order to ensure accurate responses are delivered in a timely fashion.

Additionally, the hourly rate clearly does not cover the fixed costs of running an FOI program, such as equipment and office space.

All of these “other costs” are still being charged to someone — if they are not paid for by the requestor, then they are being paid for by the taxpayer. If we want to keep the “whole costs” of the FOI system low (rather than just keeping the portion paid by requestors artificially low) then it makes sense to ensure that requestors are paying for at least a portion of what their request actually costs. (And of course, for requestors for whom paying the fee would cause a financial hardship, fee waivers are available.)

Just give me everything.

A common theme of “FOI Reform” articles is the four-figure fee estimate — where the government demands over a thousand dollars to process a request. But nearly always omitted from the story is the specific wording of the FOI request that led to the high fee estimate.

The details set out in the Wallace article were sufficient to identify the relevant IPCO appeal decision (MO-3353) which helpfully sets out the full, clarified FOI request that was the subject of the appeal:

1. Between January 1, 2014 and May 21, 2015: All emails, briefing notes, internal reports or presentations about the ridership projections or models for the Scarborough Light Rail Transit (the LRT) and Scarborough subway extension received by or originating from (but not limited to) the following people:

[names of the the city’s (former) City Manager (the CM), Deputy City Manager (the DCM), Chief Financial Officer & Deputy City Manager (the CFO), Chief Planner, and seven Transportation Planning staff members were omitted in the posted IPCO decision].

2. Between January 1, 2013 and May 21, 2015: Any emails, briefing notes, internal reports or presentations including mention of “14,000/14000” or “14,000 peak hour ridership or “14,000 pph [persons per household]” or a reasonable variation thereof sent or received by any of the above mentioned people.

3. Between January 1, 2013 and May 21, 2015: Any emails, briefing notes, internal reports or presentations including mention of the city’s Regional Travel Demand model sent or received by the above mentioned people

4. Between January 1, 2013 and May 21, 2015: All emails, briefing notes, internal reports or presentations about the Scarborough LRT and Scarborough subway extension received by or originating from (but not limited to) the above mentioned people.

Parts 1-3 of the request cover a wide range of documents received by or originating from seven individuals. But it’s part 4 of the request that is truly expansive — “All emails, briefing notes, internal reports or presentations about the Scarborough LRT and Scarborough subway extension received by or originating from (but not limited to) the above mentioned people.” This part of the request, read plainly, would seem to encompass records received by or originating from the seven named individuals but also any other officer or employee of the City of Toronto. So any document held by the City is potentially implicated. It seems no wonder that, according to the appeal decision, the City of Toronto staff identified “approximately 1,800 pages of physical records and 6,650 email correspondence” that they would have to go through to locate records and review them for responsiveness.

FIPPA and MFIPPA were enacted at a time when email saw hardly any use at all in government institutions (January 1, 1988 and January 1, 1991, respectively). The wording of the right of access in both FIPPA and MFIPPA states that “every person has a right of access to a record or a part of a record in the custody or under the control of an institution”. This wording seems to contemplate requests for individual records, rather than the modern practice of making requests for thousands of records that now seem to be the normal course for news and research organizations. Such organizations have a clear legal right to make such requests, but out of fairness, there must be an understanding that there will be a significant difference in the time and effort required to produce a single document vs. preparing a disclosure set consisting of thousands of documents, especially when an even larger set of documents needs to be reviewed to determine responsiveness to the request, to say nothing of the time that goes into applying the legal exemption determinations required by FIPPA/MFIPPA, preparing estimates, filing and file tracking, etc.

Narrowing a request just a little can go a long way towards significantly reducing costs, but this is never given its proper emphasis in news articles complaining about the FOI process.

Is the FOI system “too expensive”, or “too slow”?

When an article complains that FOI systems are both “too expensive” and “too slow”, this glosses over two important dichotomies: First, that making the system “less slow” usually means making it “more expensive” — by hiring more FOI staff, or by putting FOI-related work ahead of the other priorities of the institution, often to the detriment of the institution’s primary objectives. (Of course, technological innovations may enable institutions to reduce costs while also improving response time.) The second dichotomy is that reducing fees for requestors does not actually reduce the cost of responding to FOI requests — rather, what journalists are really advocating for is to have taxpayers subsidize the costs of FOI requests to an even greater degree, whether through additional FOI team staffing, or through projects to reorganize current records systems to help respond to FOI requests more quickly.

For any news article which relies on a broad FOI request involving a search through thousands of documents, Canadians pay at least twice for the story: the first time, when we pay the government to do the research, and then again when we pay the news organization for a copy of the article. Now, there is a genuine debate to be had as to how much subsidy taxpayers should be providing toward the public benefit of good news reporting, but it shouldn’t be overlooked that the FOI fees requestors are charged in the vast majority of cases function merely as a “co-pay” — as a way of charging the requestor for just a portion of what the request actually costs to fulfill. Rather than being an obstacle to democracy, this “co-pay” is actually a useful feature of the system, because it gives requestors some incentive not to put government institutions through unnecessary work and encourages requestors to narrow their requests to what is reasonably needed.

Don’t institutions often lower their fees on appeal?

In the Nanji article above, Mike Larsen argues that when fee estimates are appealed, they tend to go down, “suggest[ing] to us that the fee estimates are meant to be a disincentive”. It is true that launching an appeal frequently leads to institutions being willing to make concessions on the fees charged. But there are a number of good reasons for this, none of which suggest that the fee calculations are biased against requestors. First, any fee estimates that are too low are presumably less likely to be appealed — naturally, we don’t see appeals where the requestor is secretly delighted that the fees are far lower than they expected, because in such cases there is no issue for appeal. Second, an appeal takes a significant amount of time, energy and occasionally legal costs for institutions, none of which are recoverable as costs that can be charged to the requestor under FIPPA/MFIPPA. We tend to think of “the government” as the 400 lb. gorilla in any legal dispute, but in reality, a sophisticated news organization with in-house counsel familiar with the FOI appeals process is in a better position to fight an appeal than the vast majority of Ontario’s smaller municipalities. The temptation is strong for an institution to “cave” and reduce their fee estimate. In some cases, the lower fee estimate is justifiable as new information is uncovered — perhaps there are fewer documents to search through than originally understood — but in other cases, the lower fee estimate is simply a concession which may or may not be warranted, resulting in the taxpayer-funded institution picking up an even greater portion of the tab.

Will changes really fix the system?

Making legislative changes to “fix” a system always comes with a risk of unexpected consequences. For example, in May 2016, the federal government issued the Interim Directive on the Administration of the Access to Information Act, which waived all access to information fees, apart from the $5 application fee. Following this waiver, the volume of federal access-to-information requests skyrocketed: “In fiscal year 2016 to 2017 there were 91,880 requests received across the federal government, a 22% increase from the 2015 to 2016 fiscal year. Institutions processed 16 million pages in fiscal year 2016 to 2017, a 78% increase from the 9 million pages processed in the 2015 to 2016 fiscal year.” (Source: “Revitalizing access to information” link below). Corresponding with this higher volume of requests to be processed, the News Media Canada Freedom of Information Audit revealed that the portion of requests that the Federal Government successfully responded to within the standard 30-day window fell precipitously from 41% in the previous (2015) audit to only 27% in the most recent (2017) audit. Not likely the results that news organizations were hoping for.

Naively “staffing up” or “lowering fees” — i.e., throwing more resources at the problem while charging requestors a smaller portion of the true costs of the process — isn’t going to fix the problem. The kinds of changes that do hold promise are process and technological innovations — such as filing documents in a manner that better accommodates future FOI requests, and adopting technology that simplifies and reduces the time required for the FOI process, especially with regard to tasks that can’t be charged to requestors.

I encourage you to refer this article to a colleague, and to subscribe to the FOI Assist blog. To subscribe, simply enter your email address at the bottom of the page then click the follow button.

Links to resources:

Interim Directive on the Administration of the Access to Information Act http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=18310

Revitalizing access to information: Factsheets https://open.canada.ca/en/content/revitalizing-access-information-factsheets

News Media Canada – Freedom of Information (yearly audits) https://nmc-mic.ca/public-affairs/freedom-of-information/

“Toronto Star: Where is Ottawa’s help for Canada’s newspapers?” by John Honderich, Chair of the Board, Toronto Star, Tues., Oct. 9, 2018 https://www.thestar.com/news/canada/2018/10/09/where-is-ottawas-help-for-canadas-newspapers.html

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