ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE
AODA Alliance Chair David Lepofsky Files Appeal to the Ontario Information and Privacy Commissioner to Contest the Economic Development Ministryís $4,250 Fee to Fully Answer His June 4, 2015 Freedom of Information Application, Which Sought Updated Information on the Accessibility for Ontarians with Disabilities Actís Implementation and Enforcement
March 10, 2016
Premier Wynne promised that hers would be the most open and transparent government in Canada.
Here is the latest development in the seemingly-endless saga of the AODA Alliance’s efforts to get up-to-date information from the Wynne Government on its implementation and enforcement of the Accessibility for Ontarians with Disabilities Act.
On June 4, 2015, AODA Alliance Chair David Lepofsky had to resort to filing a Freedom of Information application to get comprehensive current information from the Wynne Government on the Government’s actions and plans for implementing and enforcing the Accessibility for Ontarians with Disabilities Act. The Economic Development Ministry has asked David Lepofsky to pay a hefty $4,250 to get answers to important parts of his Freedom of Information application.
David Lepofsky asked the Government to waive this fee. It refused, even though in 2013 it had eventually agreed to give him information he requested under the Freedom of Information Act at no charge, after initially imposing a $2,325 fee for that information.
The Wynne Government eventually agreed last fall to provide some of the information he requested in 2015– information the Wynne Government said needed little search time to locate. The AODA Alliance made that information public back on December 3, 2015.
That information revealed that there still persist rampant AODA violations among private sector organizations with at least 20 employees, that the Wynne Government knows this, that it is doing far too little to enforce this law despite promising its effective enforcement, and that for yet another year, the Wynne Government has had unused budget on hand, allocated to the AODA’s implementation and enforcement.
In January 2016, David Lepofsky asked the Economic Development Ministry to reconsider its refusal to waive this fee for fully answering his 2015 Freedom of Information application. He went to the unusual length of filing an affidavit to support his contention that the AODA Alliance has no money or assets.
On January 28, 2016, the Economic Development Ministry notified him that it was refusing that request. We set out the Ministry’s email, including its decision below. It said:
“We have carefully reviewed the letter and affidavit you provided. There does not appear to be any financial information that is new or more detailed than previously given.
The Freedom of Information and Protection of Privacy Act, (“Act”) and its regulations require fees to be charged for access to information. In order for this fee to be waived in full or part, certain criteria need to be met. The ministry remains of the view that your request for a fee waiver has not been supported with sufficient documentation to grant a waiver of this fee based on these factors, including a financial hardship to the AODAA.”
In this saga’s latest development, on March 10, 2016, David Lepofsky personally filed an appeal to Ontario’s Information and Privacy Commissioner from this fee. He submitted a detailed 41-page memorandum of argument to support his appeal. You can download David Lepofsky’s memorandum of argument in support of his March 10, 2016 Freedom of Information appeal, in MS Word format, with personal information deleted from it.
“It is unfair that we have to go to these lengths, just to get information from the Wynne Government that the public has every right to know”, said David Lepofsky. “Ontarians with disabilities and all Ontarians deserve better. The Wynne Government even wants us to have to pay just to get a quarterly- break-down of its AODA enforcement efforts – the kind of quarterly reports that the 2014 final report of the Mayo Moran AODA Independent Review recommended that the Government make public.”
It is more than ironic that the Information and Privacy Commission’s online appeal form is in a PDF that lacks proper accessibility.
David Lepofsky’s argument on this appeal is summarized in his memorandum of argument as follows, using the term “the appellant” to refer to Lepofsky:
“a) The appellant seeks an extension of time to file this appeal. It is being filed very shortly past its deadline. It raises important issues of principle and public interest. If no extension were granted, the appellant would have to simply refile the same Freedom of Information application, get the same refusal, and then appeal again, a waste of everyone’s time and resources.
b) The Ministry’s refusal of a fee waiver should be overturned. It is a clear financial hardship to require a $4,250 fee when the AODA Alliance, the well-recognized and widely-respected community coalition on whose behalf the appellant sought the records and information, is unincorporated, unfunded and lacking in any assets. The appellant leads this coalition in a volunteer capacity. The appellant backed his fee waiver reconsideration request with an affidavit that he affirmed, and which was unchallenged and uncontradicted.
c) This fee waiver is also supported on health and safety grounds, since AODA accessibility standards and accessibility for people with disabilities encompass health and safety considerations.
d) In any event, the $4,250 fee is palpably excessive. With due diligence, the Ministry should be able to locate the requested information with far less effort.”
The Ministry is required to grant a fee waiver where the fee would impose a financial hardship. David Lepofsky has told the Ministry that the unfunded, unincorporated AODA Alliance has no money, assets or employees, and that it is a volunteer effort. It has no financial statements to disclose. This was not good enough for the Ministry to prove the point.
He then put this evidence forward in January in an affidavit, which is evidence given under oath or affirmation. That too wasn’t good enough for the Ministry. He puts his position directly in paragraph 47 of his memorandum of argument where he said:
“On the Ministry’s meritless approach, what is the assetless AODA Alliance to do? Must the AODA Alliance parade in front of the Ministry, turning its pockets inside out? Must it hire an accountant, tell the accountant it has no money, income or assets, and then have the accountant create a document that says:
“Accessibility for Ontarians with Disabilities Act Alliance Financial Statements
And for this hollow, meaningless formalism, who is to pay the accountant for their time? All the accountant would be doing is creating a document that says what the appellant has repeatedly told the Government.”
In his memorandum of argument, he set out a point-by-point summary of the documents he is requesting, to show why the $4,250 fee for the Ministry to locate this information is so obviously over-inflated. We set that out below.
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Economic Development Ministry’s Email, Setting Out Its Refusal, After Reconsideration to Waive Its $4,250 Freedom of Information application Fee
January 27, 2016
Dear Mr. Lepofsky,
RE: MEDEI 2015-12 – Response to request for reconsideration
Thank you for your Freedom of Information response letter and affidavit received by the Ministry of Economic Development, Employment and Infrastructure on January 18, 2016.
We have carefully reviewed the letter and affidavit you provided. There does not appear to be any financial information that is new or more detailed than previously given.
The Freedom of Information and Protection of Privacy Act, (“Act”) and its regulations require fees to be charged for access to information. In order for this fee to be waived in full or part, certain criteria need to be met. The ministry remains of the view that your request for a fee waiver has not been supported with sufficient documentation to grant a waiver of this fee based on these factors, including a financial hardship to the AODAA.
As previously noted, you can appeal this decision to the office of the Information and Privacy Commissioner of Ontario. Please contact the Office of the Information and Privacy Commissioner regarding the late filing of an appeal. The Commissioner’s office can be reached at:
The Information and Privacy Commissioner of Ontario
2 Bloor Street East, Suite 1400
Toronto, Ontario, M4W 1A8
If you decide to request a review, please provide the Commissioner’s office with the following:
• Your name, address and telephone;
• The ministry name and file number assigned to the request;
• A copy of this letter, the decision dated December 22, 2015 and the original request;
• A brief explanation of the basis for the appeal; and
• A cheque for $25.00 appeal fee (payable to the Minister of Finance)
If you have any questions, please contact Pat Carroll-Tougas at 416-326-1344 quoting the case number MEDEI 2015-12 assigned to your file.
Original signed by Robert Burns
Chief Administrative Officer
Assistant Deputy Minister
Corporate Services Division
c. Pat Carroll-Tougas
Excerpt from David Lepofsky’s March 10, 2016 Memorandum of Argument, Filed with Ontario’s Information and Privacy Commission, Listing the Information He Seeks and Why It Shouldn’t Be So Costly for the Ministry to Locate
64. A closer look at each current request further shows that this fee is excessive:
a) Paragraph 4: What has Minister Duguid or his office asked his Ministry since June 2014 on levels of AODA compliance? What answers has he received?
* A small number of senior Accessibility Directorate of Ontario officials and the Minister’s policy advisors could easily be canvassed for this narrow area of inquiry. AODA enforcement is a memorable topic, having been in the news a number of times.
b) Paragraph 5: A quarterly breakdown of Government AODA enforcement action in 2014 and 2015, broken down by economic sectors?
* This request closely tracks the content of public reports on AODA enforcement that the 2015 final report of the Mayo Moran AODA Independent Review recommended that the Government quarterly provide to the public. That shows that this is a compelling “public interest” request, one which the Government will have studied as it reviewed the final report of the Mayo Moran AODA Independent Review. The final report of the Mayo Moran AODA Independent Review is publicly available at http://www.aodaalliance.org/strong-effective-aoda/Final-Report-Second-Legislative-Review-of-the-AODA.docx
Moreover, Premier Wynne promised detailed annual AODA enforcement reports during the 2014 election. Her May 14, 2014 letter to the appellant as chair of the AODA Alliance included:
“To ensure increased transparency going forward, we will make an annual report publicly available on levels of compliance including the effectiveness of our enforcement measures.”
c) Paragraph 10: Government plans since November 2013 for AODA enforcement.
* In 2013, the Ministry disclosed this information for up to November 2013. It should not take long to get the key officials in the Accessibility Directorate of Ontario to identify any new plans from November 14, 2013 to the present. With all the public and media attention on the inadequate enforcement of the AODA, the Government should easily be able to find its own 2014 or 2015 AODA enforcement plans.
Moreover, in Premier Wynne’s May 14, 2014 letter to the appellant, setting out her Government’s 2014 accessibility election pledges, she promised:
“We will make a detailed plan on all enforcement activities available, along with establishing and publicizing an accessible toll-free phone number to report violations of AODA requirements. Unfortunately, communication of the enforcement plan is on hold during the writ period. I look forward to releasing it promptly should we win the honour of re-election.”
Anything the Government has announced on point since then is very thin. It lacks the specificity here requested.
d) Paragraph 11: Any studies or reports prepared by or for the Wynne Government since November 2013 on options for AODA enforcement.
* In 2013, the Ministry provided this category of information at no charge for the period before November 2013. The management team of the Accessibility Directorate of Ontario should be able to quickly recall and identify what studies have been done since then, if any.
e) Paragraph 15: What steps has the Government taken and does it plan to take to keep Premier Wynne’s 2014 election promise to publicize the Government’s toll-free number for the public to report AODA violations? Also a request for a breakdown of AODA violations reported to the Government on that phone line.
* Again, this should be readily known to quickly-identifiable senior management within the Accessibility Directorate of Ontario, and/or the Ministry’s Communications branch. The Ministry has announced that it plans to use information received from the public on that phone line to track trends in AODA non-compliance. Unless that claim was false, this information should be right at hand for easy production. If the Ministry has done no such analysis of the calls received from the public on the toll-free number, the Accessibility Directorate of Ontario and the Minister’s office would readily know this.
As noted above, Premier Wynne’s May 14, 2014 letter to the appellant as AODA Alliance chair included:
“We will make a detailed plan on all enforcement activities available, along with establishing and publicizing an accessible toll-free phone number to report violations of AODA requirements.”
f) Paragraph 16: Records regarding the Government’s decision to cut by over one third the number of organizations it would audit in 2015 for AODA compliance.
* The Ministry knows that this was announced in a February 19, 2015 letter from Economic Development Minister Brad Duguid to the appellant as AODA Alliance chair. It was then subject to focused media attention, including a February 26, 2015 interview on CBC Radio’s metro Morning by Minister Duguid. Minister’s office officials and senior Accessibility Directorate of Ontario officials should be able to zero in on and readily get their hands on documents leading to a Ministry decision that was set out in a carefully-written Minister’s letter, and which the Minister then defended in a pre-scheduled radio interview on a high profile radio public affairs program.
Economic Development Minister Duguid’s February 19, 2015 letter to the appellant is available at http://www.aodaalliance.org/strong-effective-aoda/02252015.asp
A transcript of Minister Duguid’s February 26, 2015 CBC Radio Metro Morning interview, defending this AODA enforcement cut, is available at http://www.aodaalliance.org/strong-effective-aoda/03022015.asp
g) Paragraph 18: What action has the Government taken and what future plans does it have for keeping Premier Wynne’s 2014 election promise to explore the possibility of having government inspectors and investigators under other laws also enforce the AODA and with what results?
* The answer should be well-known to the Accessibility Directorate of Ontario senior management responsible for AODA enforcement and possibly to the Deputy Minister. Premier Wynne’s May 14, 2014 letter to the appellant included:
“With respect to additional enforcement activities, we commit to investigating the possibility of having government inspectors and investigators enforce the AODA within the context of existing resources and as training capacity exists.”
h) Paragraph 22: For the Government’s “enabling Change” grants program, a breakdown of annual budget and spending since 2008, and any readily-available listing of the projects funded each year and grants for each.
* This too should be readily at hand. The Ministry often lists Enabling Change programs in its annual Minister’s AODA Reports, required under s. 40 of the AODA. This request asks, among other things, for readily-identifiable documents. By definition, this should require little search time.
“Enabling Change” is an annual grant program. The Ministry must know in advance each year how much it has available in total to give out as grants.
i) Paragraph 23: Where available, Economic Development Minister Duguid’s speaking notes for any speeches that address disability accessibility.
* These too should be readily identifiable by the Minister’s office, senior Accessibility Directorate of Ontario officials and/or the Ministry’s Communications branch. The Minister’s and Ministry’s handling of the AODA is among the most controversial topics in his portfolio. No one needs to shake loose deeply-buried documents to find these. This request is limited to speeches by Minister Duguid. This request is thus limited to his period in this portfolio since June 2014.
j) Paragraph 24: Specifics including money spent on the Government’s fall 2014 advertising campaign on the AODA, and plans and budget for any future campaign like this.
* Again, this should be easy to find. The Minister has publicly spoken about this campaign. For example, in a major media blitz that the Ministry organized for June 3, 2015 to mark the AODA’s 10th anniversary, and in which the Minister was quite involved, the Ministry announced plans for a new accessibility public education campaign. Accessibility Directorate of Ontario senior officials should know where to find these in short order.
k) Paragraph 25: Since Minister Duguid has made public claims about the impact of the Government’s fall 2014 AODA advertising campaign, what information has the Government tracked and compiled on any changes in levels of compliance or numbers of inquiries of the Government associated with this advertising campaign?
* Economic Development Minister Duguid has spoken to the media about this topic. The appellant seeks the data on which he was relying. The Minister, his office staff or senior Accessibility Directorate of Ontario officials should know exactly to what he was referring.
For example, in Minister Duguid’s February 26, 2015 CBC Radio Metro Morning interview, referred to above, he said among other things:
“So the first thing we have to do is make them aware. So we're putting resources into, for instance in the fall we, we had a very significant campaign - publicity campaign that involved radio ads and- among other things, and that really increased our compliance significantly during that period.
We received during the course of, of that campaign about 48,000 visits to our website, 18,000 calls to our help desk, 30,000 interactions on social media.
So what that tells me, is there's, there's an appetite for businesses to understand what it is they have to do and, I think it's not fair to a small business or medium sized business to tell them that, send in an enforcement officer, write them a ticket, uh, without them knowing what their responsibilities are. It's our job to make sure they know that.”
l) Paragraph 27: What has the Ministry of Economic Development, Employment and Infrastructure done, and what new programs, policies or initiatives has it established, or existing ones has it modified, since May 28, 2013, to ensure that accessibility is integrated into all Ministry programs and activities?
* This was the subject of a clear 2014 election promise. In her May 14, 2014 letter to the appellant as chair of the AODA Alliance, setting out her Government’s 2014 election promises, Premier Kathleen Wynne wrote:
“16. The Ministry of Economic Development, Trade and Employment – as the government’s lead for the Accessibility Directorate of Ontario – has created a new position in its Ministry, a Director of Accessibility Integration and Planning, to work within the Ministry to ensure that accessibility is integrated into all business practices.”
Earlier, on May 28, 2013, to mark National Access Awareness Week, the previous Economic Development Minister Eric Hoskins said this in the Ontario Legislature:
“It means that the goal of greater accessibility must be integrated into all that we do as a ministry, and I have instructed my ministry to do just that.”
Economic Development Minister Hoskins’ May 28, 2013 speech in the Legislature is available at http://www.aodaalliance.org/strong-effective-aoda/05292013.asp
As such, it should be easy for the Ministry to identify information here sought. Although we have later been told that the staff position to which Premier Wynne referred in her May 14, 2014 letter was temporary, the results should still be readily known to senior Ministry officials. If the Ministry cannot figure out what Economic Development Ministry programs were changed to include accessibility, in accordance with an election commitment from the Premier of Ontario, that, of itself, is an important piece of information in which the public would have a compelling interest.
m) Paragraph 28: From 2012 to the present, any record of proposals, options, research or recommendations by or on behalf of the Accessibility Directorate of Ontario, on ways to increase the accessibility of tourism or hospitality services in connection with the 2015 Toronto Pan/ParaPan American Games, or to produce a legacy of increased tourism/ hospitality services accessibility as a result of the Games.
* Given the high profile of the Pan/ParaPan American Games in 2015, and the Accessibility Directorate of Ontario‘s participation in activities surrounding it, it should be readily known where to find this material.
In Economic Development Minister Eric Hoskins' December 3, 2013 statement in the Legislature to mark the International Day for People with Disabilities, the Government committed:
“Ontario will also have an opportunity to demonstrate how much we’ve accomplished in building an accessible province when we welcome the world to the Pan Am/ParaPan Am Games in 2015. That year, we will also be celebrating the 10th anniversary of the Accessibility for Ontarians with Disabilities Act. We will have a real opportunity for the games—in fact, the first fully accessible games—to leave a lasting legacy when it comes to a more accessible province. We will seize that opportunity.”
When the AODA and the Accessibility Directorate of Ontario was still housed at the Community and Social Services Ministry that Minister’s 2012 annual AODA report, posted on the Government’s website, made pursuant to s. 40 of the AODA, included:
“This past year we began working closely with the Pan/Parapan Am Games Secretariat and Toronto2015 to make sure the Games meet all accessibility standards that will be in place by 2015 and to make sure accessibility is a key legacy of this world event.”
n) Paragraph 29: Records of the Government’s deliberations and decision from 2010 to consolidate the development of all future accessibility standards in the Accessibility Standards Advisory Council.
* This initiative grew directly out of the 2010 report of the first statutorily-required Independent Review of the AODA, conducted by Charles Beer. The Accessibility Directorate of Ontario was responsible for working on that Report’s implementation.
This led to a Government news release on January 21, 2013that that announced the reform that is the subject of this request. It included:
“In response to recommendations by Charles Beer's review of Ontario's accessibility law, http://www.mcss.gov.on.ca/en/mcss/publications/accessibility/charles_beer/tableOfContents.aspx , the government is establishing the Accessibility Standards Advisory Council, http://www.mcss.gov.on.ca/en/mcss/programs/accessibility/partnerships/ASAC/index.aspx . This new council will be chaired by Jim Sanders, former President and CEO of CNIB. The immediate mandate of the new council will be to:
* Review Ontario's five existing accessibility standards.
* Develop new accessibility standards based on the advice and feedback we have received to date from stakeholders.”
o) Paragraph 31: Any analysis or survey prepared after 2013 of laws in other jurisdictions in Canada or elsewhere around the world that address accessibility for people with disabilities.
* Again, if such research were conducted, the Accessibility Directorate of Ontario senior management would know this, or know how to quickly find out what was done, and where to find it.