Ontario passes law shielding provincial ministers’ records from information requests – JURIST

The Legislative Assembly of Ontario voted on Thursday to exempt records held by ministers from freedom of information (FOI) requests. The amendment is said to have violated the right of Ontario citizens to transparency and privacy.

Bill 97, also known as the Plan to Protect Ontario Act (Budget Measures), contains several statutes and amendments to implement its fiscal budget. Also contained in the bill is an amendment to the provincial Freedom of Information and Protection of Privacy Act, which protects Ontario citizens’ right of access to government records with limited exceptions. The amendment passed on Thursday adds subsection 65(18) to the act, excluding government records held by a minister or their office from the scope of the act. As the amendment removes records held by cabinet ministers and their offices from the legislation altogether, privacy protocols and safeguards in the legislation no longer apply to these records.

Following conservative lawmaker Steve Clark’s motion on Tuesday, the legislature skipped the public consultation process and moved to third reading on Thursday.

In March, the provincial Information and Privacy Commissioner Patricia Kosseim criticized the amendment for violating the democratic principles of transparency and accountability. The commissioner warned that the amendment would diminish her oversight role by allowing the government to oversee itself in the use of Ontario citizens’ personal data. Kosseim also highlighted that the exclusion would allow government employees to have access to government records, which contain sensitive personal information, through their personal devices. This, according to Kosseim, increases the risk of cyberattacks and data breaches.

The amendment follows a provincial court ruling that required Premier Doug Ford to produce government-related call logs from his personal cellphone to the commissioner. Global News, a Canadian news outlet, requested access to these call logs three years ago as the premier regularly publicized the number, which is not used by an official device. The court upheld the commission’s order, stating that the commission rightfully limited the order to obtain only government-related call logs such that it could review the entries before making any access decisions. The three-judge panel wrote: “This work would not have been necessary if the Premier used his government phone.” As the amendment comes into effect retroactively, the act and the court ruling no longer affect past government records held by cabinet ministers. 

In a press conference on March 16, Premier Ford said the amendment is similar to federal and provincial practices. However, according to Kosseim, Ontario’s original legislation is consistent with eight provinces and territories and the Supreme Court of Canada’s interpretation of the federal Access to Information Act.

The provincial government is currently facing controversies in the purchase of a 28.9 million CAD private jet and its reversal in less than a week after the purchase. Global News said the amendment would make it impossible to know which cabinet member is responsible for the sale.