Comments on the proposed code of procedure for Ontario FIPPA and MFIPPA
https://www.ipc.on.ca/wp-content/uploads/2023/09/2023-09-22-code-of-procedure-fippa-mfippa_consultation-notice.pdf
These comments apply to https://www.ipc.on.ca/wp-content/uploads/2023/09/cop0001e-2023-code-of-procedure-fippa-mfippa_consulation.pdf
3.01 Definitions
Reasonable Search Appeal should also apply to searches the institution proposes to conduct in the future.
There is no definition for an MFIPPA 17(2) appeal. I.e. how does one appeal when the institution fails to provide assistance in formulating the request?
4.07 (b)
typo “he” should be “the”
5.03
If the IPC is going to effectively mandate mediation, then for redactions mediations having the unredacted records should speed up the appeal. I’m currently in a redaction mediation where the mediator has indicated they only have the redacted records which in my opinion is wasting all parties time. It looks to me that current code of procedure 10.01 already allows the IPC to request the unredacted records and that this carries over into the proposed 11.01 but it may not be happening so it may be beneficial to codify this more clearly.
6.04
I find this opaque. It doesn’t help me to know what standards to meet as an appellant. How about examples or links to Practice Directions?
6.05
How about “shall” instead of “may”? Freedom of Information deserves due process.
7.02
Who will record these meetings? Will the IPC provide recordings/transcripts? see also my comments at 8.06
7.05
If the Mediator does not amend the report, the objections should at least be attached to it for consideration by the adjudicator. This is to allow adjudicators to consider these objections before starting inquiries. Otherwise there can be irrelevant or sub optimal adjudication inquiries or it looks like 8.03 would allow adjudicators to drop inquiries entirely.
8.02
see 6.05
8.03
My informal understanding has been that mediation and adjudication are separate stages, for example in section 9 of the current code of procedure. The output of mediation is a list of unresolved issues, then adjudication proceeds from there. Mediation is designed to allow the parties to explore the issues informally without legal consequences. In my experience, mediators attempt to operate orally which could be helpful in bringing parties together. It’s not clear to me that mediators are well versed in the principles of administrative law and the requirements for judicial review even at the reasonableness standard. 8.03 seems to pretty much undo this and make mediation a formal part of the legal process. I’m not sure this is to anyone’s benefit. As an appellant, if I’m generating a legal record then I want to do it in writing so that I have a complete legal record to refer back to.
It can’t possibly be fair for the adjudicator to relay solely on the report of the mediator. The adjudicator is then going to have to look into the full record of the mediation and solicit arguments over it. How will this possibly improve timeliness?
This is also completely biased against requestor/appellants in that it doesn’t sanction intransigent institutions by having adjudicators issue orders against them based on their lack of cooperation at mediation. In my opinion Toronto has stonewalled every mediation. This will further encourage that behaviour. What possible incentive would an institution have to participate in mediation?
8.04 (g) the sole issue is reasonable search and the appellant has provided no cogent basis for believing additional records may exist;
This is unfairly biased against requestor/appellants. IPC https://www.ipc.on.ca/wp-content/uploads/2017/04/fs-access-reasonable-search.pdf states
7. Have you documented the details of your search?
In the event of an appeal, institutions are not required to prove with absolute certainty that no additional records exist. However, the institution must provide sufficient evidence to demonstrate that it has made a reasonable effort to identify and locate all of the responsive records within its custody or control. As such
institutions should document their search efforts…
Presumably institutions should be producing this documentation at intake so it goes into Early Resolution, Mediation etc. In multiple reasonable search appeals against the City of Toronto, I’ve never seen the City produce detailed documentation of their searches - at any part of the appeal process. I don’t recall seeing this in any Decision Letters from Toronto either. How about mandating that Decision Letters contain detailed search information? This could avoid appeals by allowing parties to resolve search issues before the 30 day appeal deadline.
At 8.04 (g) the adjudicator should be required to determine that the institution has met it’s burden under section 7 of the IPC Reasonable Search document weighing both evidence from the institution and appellant. The inquiry should proceed in the absence of evidence, especially absence of evidence from the institution.
The IPC notice of consultation states “Transparency and accountability are necessary for maintaining and ensuring the public’s trust in government.” It says government in general not just the IPC appeals process. The IPC is upfront and transparent about 8.04 (g) but it has the overall effect of undermining public trust in government. Every reasonable search appeal should result in a full examination of the institutions search. Institutional search techniques and databases should be public. That’s the price of maintaining public trust. period.
8.06
I find this unfair to appellants. I’m not a verbal person. The issues can get pretty complicated, pretty quickly especially on subsequent appeals with a long history. I typically cannot hold all this in my mind at once. In the case of redactions, appellants don’t even have all the information. How can appellants be expected to argue intelligently in real time when the other parties have full unredacted records? I’m not a specialist in MFIPPA, whereas an institution like Toronto will have employees that are paid to work full time on MFIPPA, including potentially lawyers.
What are the rules of procedure? Where are they documented? What about recordings and transcripts? Who is going to provide them? How much are they going to cost? If I have to pay thousands of dollars to have a lawyer present or if I have to pay hundreds of dollars for a transcript that upends the fee schedule and stacks it against appellants.
It seems to me this would be better suited to mediation. The whole point of mediation is to identify the issues. A need for the adjudicator to hold an oral hearing indicates to me a failure of mediation to correctly define the issues. How about the adjudicator being able to send items back for further mediation?
If the adjudicator is going to be able to hold oral inquiries then the appellant should have to agree. If the IPC really wants to uphold public trust in government then make your process trustworthy. Make it so that oral inquiries and their procedure actually benefit appellants, not just institutions.
8.10
In my experience Notices of Inquiry are formulaic. It looks like they are templates. However I cannot find these templates. I think they should be publicly available. I see this benefiting every party at every stage of the appeals process. It helps in writing better initial appeals. It would help to make mediation more transparent, because in my experience mediation essentially results in selecting one of the templates. I assume adjudicators are not constrained to the templates so having the templates would allow for more intelligent discussion at mediation of whether a template should be varied or not.
19.02
How about provisions for "vexatious" institutions. E.g. The City of Toronto has a "Bulk User" policy at https://www.toronto.ca/city-government/accountability-operations-customer-service/access-city-information-or-records/freedom-of-information/ Last I checked Toronto is making this up out of whole cloth. In my opinion Toronto is misinterpreting the IPC precedent they have cited to me.
The IPC needs to develop techniques to handle misbehaving institutions. As I understand it administrative decisions are not precedential. I've won an appeal against Toronto involving the "Bulk User" policy and the policy is still on it's website. Suggestions:
- the IPC to have a process for taking these issues to Judicial Review in order to set proper precedents.
- IPC could publicly list vexatious institutions and actions and subject them to Expedited Appeals. You could take fast-track appeals on these issues without requiring a decision letter. There will be no decision letter if Toronto is refusing to process an FOI...
- waive fees if the institution is found to have acted vexatiously.