Watch David Lepofsky Appeal to the Information and Privacy Commission to Force the Government to Disclose Records, Without Demanding that this Unfunded Coalition Pay a Hefty $4,250 Fee Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Ontario for All People with Disabilities
January 23, 2017
SUMMARY
On Tuesday, January 31, 2017, at 10 AM, come to the Ontario Information and Privacy Commission’s downtown Toronto offices at 2 Bloor St. East Suite 1400. Watch AODA Alliance Chair David Lepofsky, a visiting professor at the Osgoode Hall Law School, argue his Freedom of Information appeal against the Wynne Government’s hefty $4,250 fee to reveal key information on the AODA’s implementation and enforcement. This appeal shows the great lengths the Wynne Government will go to avoid revealing key documents and information about how it implements and enforces its 2005 accessibility law, the Accessibility for Ontarians with Disabilities Act, a law for which people with disabilities fought from 1994 to 2005. This appeal also shows to what lengths a tenacious, unfunded nonpartisan grassroots disability coalition must go to make progress on accessibility in Ontario.
This is a rare chance to watch the grass-roots campaign for accessibility for Ontarians with disabilities come face-to-face up against the Wynne Government’s lawyers, before an independent public tribunal. The Wynne Government promised to be the most open and transparent government in Canada. Yet it seems that “Freedom of Information” is far from free in Ontario!
The 19-month long saga began in June 2015, when Lepofsky, the AODA Alliance’s volunteer chair, filed a Freedom of Information application. He sought specific information on how the Wynne Government is enforcing and implementing Ontario’s accessibility law. The Government demanded $4,250 for this information. Lepofsky asked the Government to use its authority to waive this fee, because the unfunded AODA Alliance has no money. The Government can waive this fee if it would impose an undue financial hardship.
The Wynne Government refused to drop the $4,250 fee. It said Lepofsky didn’t prove that the AODA Alliance has no money. Months later in 2015, the Government backed down, but only in part. It gave Lepofsky some of the information he requested, information the Government said it could easily find. Based on that revelation, the December 14, 2015 Toronto Star reported that massive AODA violations and lax AODA enforcement had continued for years.
However, for the rest of the information Lepofsky seeks on the AODA’s implementation and enforcement, the Government took the position that he must pay $4,250 or the information stays secret. As a result, In March 2016 Lepofsky resorted to filing an appeal to Ontario’s independent Information and Privacy Commission. The public can come to watch him argue this appeal on January 31, 2017, and to hear what arguments the Wynne Government’s lawyers will present against Lepofsky.
The Wynne Government’s insistence on this $4,250 fee is especially hard to fathom since, in 2013, the Government had eventually backed down from charging him a steep fee in very similar circumstances. In 2013, Lepofsky filed an earlier Freedom of Information application about the AODA’s implementation and enforcement. In 2013, the Government demanded a $2,325 fee to answer that earlier Freedom of Information application. In 2013, Lepofsky asked the Wynne Government to waive that fee, because the AODA Alliance had no money. Initially, the Government refused to waive that fee, for the same reasons it revived in 2015.
The Government was eventually embarrassed into backing down from its earlier fee in 2013. This happened after the Government was blasted by the NDP in the Legislature, and by the Toronto Star in an editorial.
In 2013, Lepofsky made public information that the Government turned over to him. That earlier 2013 Freedom of Information application revealed an abject Government failure to enforce the law, despite its knowing of rampant AODA violations.
The Ontario Government knows Lepofsky and the AODA Alliance very well. The Government has made its election pledges on disability accessibility in letters addressed to Lepofsky as AODA Alliance chair. The Government has repeatedly congratulated the AODA Alliance for its advocacy on disability issues. Showing how relentlessly it will oppose this new Freedom of Information application, the Government refused in a recent attempted mediation of this appeal to even acknowledge that it knows the AODA Alliance has no funds.
Through these Freedom of Information applications, the AODA Alliance has already unearthed vital information. It showed that For years the Wynne Government knew about rampant private sector violations of the Disabilities Act, and did far too little to enforce this law, despite promising effective enforcement. One of the important things Lepofsky seeks is the Government’s plan for combatting this rampant disregard of the Disabilities Act, through effective enforcement.
Proof positive of how hard the Wynne Government is fighting to resist revealing the requested information is the fact that the Government must be spending far more to fight against disclosure than it would cost the Government to just give over the requested information. The public has a right to know this information, and would benefit from the Government ending this secrecy about it.
In written election promises made to the AODA Alliance, Ontario’s Liberal Government has pledged to 1.8 million Ontarians with physical, mental or sensory disability that they’d effectively enforce that law. The AODA requires the Ontario Government to lead Ontario to become fully disability-accessible by 2025, by enacting and effectively enforcing accessibility standards, rules telling public and private sector organizations which accessibility barriers they must tear down and by when. People with disabilities still face too many accessibility barriers when trying to get a job, ride public transit, shop in stores, use our health care system or get an education.
Below we set out key correspondence between David Lepofsky, the Wynne Government and the Information and Privacy Commission in connection with the unsuccessful Information and Privacy Commission mediation of this appeal between April and December 2016. Normally, information exchanged during mediations in other contexts is treated as confidential. However, the Information and Privacy Commission confirmed that anything said or shared during their mediation process is not confidential and can be shared with the public.
To read Lepofsky’s June 4, 2015 Freedom of Information application that is the subject of this appeal, visit https://www.aodaalliance.org/strong-effective-aoda/06092015.asp
To read more about the frustrating saga of Lepofsky’s efforts from June 2015 to march 2016, to unearth these documents, read Lepofsky’s written argument that he has filed with the Information and Privacy Commission, available at https://www.aodaalliance.org/strong-effective-aoda/03102016.asp
You can always send your feedback to us on any AODA and accessibility issue at aodafeedback@gmail.com
Have you taken part in our Picture Our Barriers campaign? If not, please join in! You can get all the information you need about our Picture Our Barriers campaign by visiting www.aodaalliance.org/2016
To sign up for, or unsubscribe from AODA Alliance e-mail updates, write to: aodafeedback@gmail.com
We encourage you to use the Governments toll-free number for reporting AODA violations. We fought long and hard to get the Government to promise this, and later to deliver on that promise. If you encounter any accessibility problems at any large retail establishments, it will be especially important to report them to the Government via that toll-free number. Call 1-866-515-2025.
Please pass on our email Updates to your family and friends.
Why not subscribe to the AODA Alliances YouTube channel, so you can get immediate alerts when we post new videos on our accessibility campaign. https://www.youtube.com/user/aodaalliance
Please “like” our Facebook page and share our updates: https://www.facebook.com/Accessibility-for-Ontarians-with-Disabilities-Act-Alliance-106232039438820/
Follow us on Twitter. Get others to follow us. And please re-tweet our tweets!! @AODAAlliance
Learn all about our campaign for a fully accessible Ontario by visiting https://www.aodaalliance.org
Please also join the campaign for a strong and effective Canadians with Disabilities Act, spearheaded by Barrier-Free Canada. Sign up for Barrier-Free Canada updates by emailing info@BarrierFreeCanada.org
MORE DETAILS
1. April 26, 2016 Email from Economic Development Ministry to Information and Privacy Commission
To: Mr. Lorne Swartz, Mediator, IPC
From: Pat Carroll-Tougas
Ministry of Economic Development, Employment and Infrastructure (MEDEI)
Subject: IPC Mediator Question: What further information does the ministry require the requester to provide in order to reconsider a fee waiver as set out in his request?
Date: April 26, 2016
In requesting a fee waiver, the Requester has the onus of establishing that one or more of the considerations in s.57(4) apply and that, as a result, a fee waiver would be just and equitable in the circumstances. In this case, the Requester is relying on the financial hardship (s.57(4)(a)) and public health and safety (s.57(4)(c)) considerations to justify the fee waiver request. Financial Hardship
It is our position that the requirements for establishing financial hardship have not been met, as no financial information has been provided for the Ministry to consider. The Requester has advised that no such financial records exist and that the Ministry should grant the fee waiver on the basis that the request is being made on behalf of the AODA Alliance, a volunteer organization which is not a legal entity and therefore has no assets or financial records. In past orders, the IPC has stated that the Requesters assets, liabilities, income and expenses are relevant to determining whether financial hardship would result from requiring the payment of the fee.1 Further information is required to support the claim of financial hardship.2
Additional information that would be helpful in determining financial hardship would include: – Size of organization, ie. membership
– Governance structure including articles or terms of reference – Whether there are operating costs and how they are covered?
Public Health and Safety
Previous IPC orders have established that the following considerations are relevant to determining whether dissemination of the records will benefit public health or safety:
o whether the subject matter of the record relates directly to a public health or safety issue
o whether the subject matter of the record is a matter of public rather than private interest o whether the dissemination of the record would yield a public benefit by disclosing a public health or safety concern, or
contributing meaningfully to the development of understanding of an important public health or safety issue o the probability that the requester will disseminate the contents of the record
The sorts of matters which have been found to relate directly to public health and safety issues include: records related to water quality2, nuclear power3, animal welfare4, a city plan surrounding a proposed waste management landfill5, the impacts on water quality upon the construction of a quarry6, condition of septic systems7, nursing home conditions8, physical and sexual abuse at a mental health center9, licensed child care centers10, and coroners investigation notes related to deaths at hospitals.11
The records at issue in the current request relate to compliance rates and enforcement of obligations under the Accessibility for Ontarians with Disabilities Act (AODA). The requirements under the AODA are intended to eliminate barriers to access and facilitate participation for persons with disabilities in Ontario. While this is not inconsistent with programs which are intended to address public health and safety issues, AODA standards are not intended to reduce or prevent disability in Ontario, but to create equality in public participation for persons with disabilities.
In order to reconsider the fee waiver decision in the current request, we require further detailed evidence regarding how the records sought by the Requester are directly related to one or more public health or safety issue and how the dissemination of the records would yield a public benefit by either disclosing those public health and safety issues to the public or contributing to the development of the public understanding of those issues.
Patricia Carroll-Tougas
FOI Coordinator, MEDEI & MRI
2. June 24, 2016 Email from David Lepofsky to Information and Privacy Commission
Via Email
To: Lorne Swartz, Mediator Information and Privacy Commissioner Lorne.Swartz@ipc.on.ca
From: David Lepofsky
CC: Patricia Carroll-Tougas Patricia.Carroll-Tougas@ontario.ca Date: June 24, 2016
RE: PA16-156
I am writing in response to the April 26, 2016 letter from the Economic Development Ministry regarding this Freedom of Information application. I am copying the Freedom of Information Coordinator for the Economic Development Ministry, from whom I would welcome answers.
1. Can you please clarify if communications in connection with this mediation, such as the Economic Development Ministrys April 26, 2016 letter to me, are privileged or confidential, either against disclosure during an appeal to the Information and Privacy Commissioner, or re my sharing any of that correspondence with any member of the public? It is my understanding that there is no restriction in place against my sharing any of the correspondence between me, the Ministry and/or the Commission, with the public if I wish, or with the Commissioner, should I proceed to argue the appeal before the commission on the merits.
Neither you, as mediator, nor anyone else from the Information and Privacy Commission, nor the Economic Development Ministry have suggested to me that there is any privilege against the disclosure of this information, either to the public, or to the Commissioner on the appeal itself. I have not been asked to sign any confidentiality undertaking, and I have signed no such undertaking. However, before I proceed any further with this mediation process, I would like to know if either the Economic Development Ministry or the Commission disputes my understanding.
2. Since the Economic Development Ministry wrote its April 26, 2016 letter, the responsibility for the Accessibility Directorate of Ontario has been moved out of the Economic Development Ministry in a cabinet shuffle on June 13, 2016. As such, I would like to know if the refusal of my fee waiver request might be reconsidered by the new Minister and ministry where the Accessibility Directorate of Ontario will be situated. If such a reconsideration can now quickly take place, and if the fee were to be waived, I would not need to proceed further with my appeal.
3. If the responsibility for this Freedom of Information application remains with the Economic Development Ministry despite the cabinet shuffle, I had asked you to clarify with the Economic Development Ministry that they have asked the only questions of me that they require answered in order to give them all the information that the Economic Development Ministry says it requires in order to decide on my fee waiver request. I do not want to face a series of requests and then later more requests for information. I had asked to be given a list of all the information that the Economic Development Ministry says it requires. The April 26, 2016 letter from the Economic Development Ministry does not give that assurance.
4. Can the Ministry explain the relevance of its questions of me in its April 26, 2016 letter. For example, does a fee waiver depend on how many members or supporters the AODA Alliance has, or how the AODA Alliance is organized?
5. Does the Economic Development Ministry dispute the bona fides of or the legitimate existence of the Accessibility for Ontarians with Disabilities Act Alliance, or its well-recognized public role regarding the implementation of the Accessibility for Ontarians with Disabilities Act? Since the Ontario Legislature enacted the AODA in 2005, Every Ontario Premier, every Ontario minister, Deputy Minister and assistant Deputy Minister responsible for the implementation of the AODA and for the Accessibility Directorate of Ontario has had extensive dealings with the AODA Alliance, and with me during my period as its chair. None have ever questioned the existence or bona fides of the Accessibility for Ontarians with Disabilities Act Alliance or of me as its chair.
Could you please confirm that you received this email. Please ensure that future correspondence to me is never sent in PDF format.
I look forward to responses to all of these questions.
Sincerely,
David Lepofsky CM, O. Ont
Chair Accessibility for Ontarians with Disabilities Act Alliance
3. June 27, 2016 Email from Information and Privacy Commission to David Lepofsky
June 27 2016 Email from Lorne Swartz to David Lepofsky
Mr. Lepofsky,
Thank you for your email.
I can confirm that communications related to this appeal or mediation, are neither privileged nor confidential and that you are free to share them with the public.
I have spoken with Ms. Carroll-Tougas and confirmed that she will be responding, in due course, to your other questions.
Sincerely,
Lorne Swartz | Mediator
Information and Privacy Commissioner/Ontario
Ph (416) 326-0005
E lorne.swartz@ipc.on.ca
Note: Original June 24, 2016 email from David Lepofsky, set out above, is not again reproduced here.
4. August 10, 2016 Letter to David Lepofsky from the Economic Development Ministry
August 10, 2016
Mr. Lorne Swartz
Mediator
Information and Privacy Commissioner/Ontario
2 Bloor Street East, Suite 1400
Toronto, ON
M4W 1A8
Dear Mr. Swartz
Re: Appeal PA16-156 (Ministry Request MEDEI 2015-12)
I am writing further to the email you received from the appellant on June 24, 2016. Each of the appellants five questions is summarized below followed by a response.
Question 1: Are communications during mediation of an appeal to the Information and Privacy Commissioner confidential?
You responded to the appellant with respect to this question on June 27, 2016 with the following response:
I can confirm that communications related to this appeal or mediation are neither privileged nor confidential and that you are free to share them with the public.
Question 2: Has responsibility for Freedom of Information decisions related to the Accessibility Directorate of Ontario changed following the April 26, 2016 letter from the Ministry of Economic Development, Employment and Infrastructure and changes to ministries announced June 13, 2016?
At issue in this appeal is a decision made December 22, 2015. There has been no change to decision-making responsibility for Freedom of Information requests. Questions 3, 4 and 5:
3. Will any further information be required by the ministry to decide on the fee waiver request? 4. What is the relevance of the questions in the letter dated April 26, 2016? 5. Is the existence of the AODA Alliance questioned?
With respect to the appellants questions 3, 4 and 5, in order to support a request for a fee waiver under section 57(4)(b), the appellant must demonstrate financial hardship.
Every effort is being made to ensure a fair and equitable decision, taking into consideration all of the facts, including information relevant to section 57(4)(b), which reads whether payment will cause a financial hardship for the person requesting the record. The appellant has indicated that the Accessibility for Ontarians with Disabilities Act Alliance is a volunteer organization that has no financial assets. However, he has not indicated how operational expenses, if any, are covered and whether he or his membership would experience financial hardship as a result of these access fees.
Previous IPC orders provide guidance on the basis for the appellant to demonstrate that a fee waiver under section 57(4) is justified. Information and Privacy Commissioner Orders have also determined that the onus is on the appellant to establish the basis for the fee waiver and must justify the waiver request by demonstrating that the criteria for a fee waiver exists (Order PO-2726). If you have any questions please contact me at 416-326-1344.
Sincerely,
Original signed by Patricia Carroll-Tougas
Patricia Carroll-Tougas
FOI Coordinator
5. August 18, 2016 Letter from David Lepofsky to Information and Privacy Commission and Economic Development Ministry
Via Email
To: Lorne Swartz, Mediator Information and Privacy Commissioner Lorne.Swartz@ipc.on.ca
From: David Lepofsky
CC: Patricia Carroll-Tougas Patricia.Carroll-Tougas@ontario.ca Date: August 18, 2016
RE: PA16-156
I write in response to the Economic Development Ministry’s August 10, 2016 letter to you as the Information and Privacy Commission’s mediator regarding this Freedom of Information appeal. I confirm my understanding that all exchanges in this mediation are not privileged. All can be publicly disclosed at any time.
I was surprised when in its August 10, 2016 letter, the Ministry, for the first time, asks:
“The appellant has indicated that the Accessibility for Ontarians with Disabilities Act Alliance is a volunteer organization that has no financial assets. However, he has not indicated how operational expenses, if any, are covered and whether he or his membership would experience financial hardship as a result of these access fees.”
May I respond as follows:
1. After taking almost two months to answer my June 24, 2016 letter, the Ministry has not fully answered it. It has not answered whether it questions the existence of the AODA Alliance. I still do not know if the Ministry requires any further information, beyond that requested in its April 26, 2016 letter, and that requested now in its August 10, 2016 letter, before it can decide on and grant my fee waiver request.
On the Ministry’s August 10, 2016 letter’s passage which I quote above, the Ministry has had my January 15, 2016 affidavit for some seven months. It could not be clearer. It states:
“The AODA Alliance Has No Assets
10. The AODA Alliance, just like the ODA Committee before it, has no money. It has no bank account, and has never had one. It has no assets. As an unincorporated community coalition, it does not produce financial statements. It has never filed a tax return as it has no income. It has no official charitable status as it solicits and accepts no donations of money. It has no employees and has never had any employees. All of its work and administration is performed by volunteers and voluntary community organizations. It has no membership fees.”
If the AODA Alliance has no assets, no bank account, no money and no membership fees, it is obvious that it can pay no expenses.
2. I respectfully question why the Ministry’s August 10, 2016 letter now asks for the first time about AODA Alliance operational expenses, “if any”. If The Ministry genuinely needed to know the information requested in its August 10, 2016 letter, in order to fairly and equitably assess my request for a fee waiver, it would have made that request many months earlier, when I earlier asked it to tell me what more information it needed:
In my November 4, 2015 email to the Economic Development Ministry on point, I asked as follows:
Your Ministry asks for further evidence from me, showing that the AODA Alliance has no assets and income. I have told the Government, in my June 4 and August 31, 2015 letters to your Ministry, that we have no funds whatsoever. I had previously advised your Ministry of this in 2013 in connection with an earlier Freedom of Information application. I repeat that, as an unincorporated voluntary community coalition, we have no financial statements to provide. Respectfully, I am at a loss to know how to prove to the Government that we have no property. If we have no financial statements, and no bank accounts, how can I give you the further evidence that you say is required? What further evidence does the Ministry want me to provide? Does the Ministry now dispute that we have no property and no financial statements?
In paragraph 20 of my January 15, 2016 affidavit I attested:
The Economic Development Ministry has never substantively and directly answered my question in my November 4, 2015 correspondence, quoted above. It has never told me what further information it wishes me to provide to substantiate my statement that the AODA Alliance has no funds.”
The Ministry did not ask about information requested in its August 10, 2016 letter or about information requested in its earlier April 26, 2016 letter, before or after it received my affidavit, and before it rejected my request that it reconsider its refusal to grant me a fee waiver. Instead, the Ministry, without explanation, waited months, until I launched this appeal and this mediation process was underway.
As well, the Ministry did not require the information requested in its August 10, 2016 letter, or in its earlier April 26, 2016 letter, in order to decide in November 2013 to release to me all the information I had requested under an earlier similar Freedom of Information application, without requiring me to pay the substantial $2,325 fee it had earlier tried to impose. If it did not need that information then, it does not need it now.
3. It should be obvious from the foregoing that if the AODA Alliance has no funds or assets, it does not, as an unfunded and unincorporated community coalition, have any funds or assets with which to pay any “expenses”. As noted earlier, its efforts are those which its supporters volunteer, such as the substantial time that I, as its chair conduct as a volunteer.
For example, I personally have attended dozens and dozens of meetings with Ontario Government officials at all levels, from front line staff to meetings with cabinet ministers and with the Premier. This is all done as a volunteer, as Government officials know.
4. Accordingly, may I ask the Ministry to now let me know if it disputes any of the following, and if so, why. This includes and builds on questions I asked the Ministry in my June 24, 2016 letter and in earlier correspondence. Its answers are pivotal to a meaningful effort at resolving this appeal:
a) Does the Ministry question that the AODA Alliance exists, and that it is unincorporated?
b) Does the Ministry dispute that I am the AODA Alliances chair, and that this is a volunteer position?
c) Does the Ministry dispute that I made this Freedom of Information application in good faith in my role as AODA Alliance chair?
d) Does the Ministry dispute the fact that:
i) the AODA Alliance has no funds, bank accounts, or other assets?
ii) the AODA Alliance has no membership fees?
iii) the AODA Alliance has no financial statements or financial records to produce?
The Ministry has had this Freedom of Information application before it for well over a year. It has known that I would seek a fee waiver from the start. It has very extensive dealings with the AODA Alliance.
I would hope and trust that from the Ministry’s extensive dealings with me and the AODA Alliance it would not dispute any of these facts. I therefore ask that the Ministry answer whether it disputes any of the foregoing specific questions by Friday, August 26, 2016.
Sincerely,
David Lepofsky CM, O. Ont
Chair
Accessibility for Ontarians with Disabilities Act Alliance
6. September 19, 2016 Letter from Economic Development Ministry to Information and Privacy Commission
To: Mr. Lorne Swartz, Mediator, IPC
From: Pat Carroll-Tougas
Ministry of Economic Development, Employment & Growth
Subject: Response to appellants letter of August 18, 2016
Date: September 19, 2016
The ministry writes in response to the appellants letter of August 18, 2016 regarding the fee waiver issue for this appeal. The appellant has the burden of showing financial hardship and has not provided information to support his assertions. The ministry does not dispute the commitment of the requesters organization to accessibility but is obliged by Freedom of Information and Protection of Privacy Act (FIPPA) to charge fees as prescribed.
The ministry has previously corresponded with the appellant providing guidance and explaining the type of information that would help in determining a fee waiver based on financial hardship or public health and safety under FIPPA (s.57).
The ministry has no further response and respectfully requests the assistance of the mediator to obtain information from the appellant that the ministry can consider in determining the issue of financial hardship, or to advise on next steps.
Patricia Carroll-Tougas
FOI Coordinator
MEDG & MRIS
7. October 28, 2016 Information and Privacy Commission Mediator’s Report
REVISED MEDIATORS REPORT
under the Freedom of Information and
Protection of Privacy Act (the Act)
APPEAL NO. PA16-156
INSTITUTION FILE NO. MEDEI 2015-12
MEDIATOR Lorne Swartz
PARTIES:
Appellant’s Name Mr. David Lepofsky and the Accessibility for Ontarians with Disabilities Act Alliance.
Institution’s Name Ministry of Economic Development, Employment and Infrastructure
REQUEST:
The Ministry of Economic Development, Employment and Infrastructure (the ministry) received a 31-part request under the Act, related to compliance with the Accessibility for Ontarians with Disabilities Act (the AODA). The requester also requested a fee waiver.
DECISION:
The ministry issued an interim decision and fee estimate, assessing fees for the responsive records totalling $4250.00. The ministry provided a breakdown of the fee, but did not provide any information regarding potential access to the responsive records. The ministry requested a 50% deposit of $2,125.00.
With regards to the request for a fee waiver, the ministry advised the requester that as he has indicated that his organization, the Accessibility for Ontarians with Disabilities Act Alliance (the Alliance) has no funds of its own, the fee waiver relies on the financial hardship exemption set out in section 57(4)(b) of the Act. The ministry requested that the requester provide supporting financial statements regarding the Alliances financial situation.
The requester responded to the ministry on August 31, 2015, providing them with further information regarding the Alliance and requesting a breakdown of any information which could be provided with little or no search time.
The ministry responded to the requester on September 24, 2015, providing him with a detailed breakdown of search time by item. The ministry also advised the requester that the information provided to support his request for a fee waiver was insufficient and requested further, specified information to support this request.
On November 4, 2015, the requester responded to the ministry, providing further information supporting his request for a fee waiver.
On December 22, 2015, the ministry advised the requester that he has not met the requirements to qualify for a fee waiver on the basis of financial hardship. The ministry also advised the requester that public interest was not an enumerated consideration under section 57(4) of the Act.
The requester subsequently responded to the ministry on January 15, 2016 and the ministry to the requester on January 27, 2016.
APPEAL:
The requester (now the appellant) appealed the ministrys decision on both the fee estimate and the denial of fee waiver and appeal PA16-156 was opened.
RESULTS OF MEDIATION:
During the course of mediation, the mediator had discussion with both the ministry and the appellant.
The appellant believes that the fee assessed by the ministry is excessive. The appellant also believes that he should be granted a fee waiver, both on the grounds of public heath and safety and financial hardship.
No further mediation was possible. Accordingly, this file is moving to the inquiry stage.
ISSUES REMAINING IN DISPUTE:
ISSUE: Fee or fee estimate.
SECTION(s): 57(1)
ISSUE: Fee Waiver
SECTION(s): 57(4)(b) and 57(4)(c)
October 28, 2016
Lorne Swartz
Mediator
8. December 6, 2016 Email from David Lepofsky to Economic Development Ministry
I received a hard copy letter from you today. I did not receive an electronic one from you. As you know, I am blind and have asked for all correspondence in a format I can read. Can you please email me this letter in an accessible MS Word format. Can you also explain why you sent this to me in a hard copy letter but not in an accessible format?
David Lepofsky CM, O. Ont
Chair Accessibility for Ontarians with Disabilities Act Alliance
9. December 5,2016 Letter Emailed from Economic Development Ministry to David Lepofsky
Ministry of Economic Development & Growth
Ministry of Energy
Ministry of Infrastructure
Ministry of Research, Innovation & Science
Corporate Services Division
Hearst Block, 3rd Floor
900 Bay Street
Toronto ON M7A 2C1
Ministère du Développement économique et de la Croissance
Ministère de l’Énergie
Ministère de lInfrastructure
Ministèrede la Recherche,
de lInnovation et de la Science
Division des services ministériels
3ème étage, édifice Hearst
900, rue Bay
Toronto ON M7A 2C1
December 5, 2016
David Lepofsky
(Note: address omitted)
Dear Mr. Lepofsky,
RE: MEDEI 2015-12 Interim Decision Part B records
On August 31, 2015, in response to your access request under the Freedom of Information and Protection of Privacy Act (FIPPA), the ministry provided you with an interim decision and fee estimate providing a breakdown of the estimate for search time related to Part B of this request.
The request was divided into 31 items of which the ministry has provided you with records related to 16 items (Part A) on November 25, 2015. Part B of this request contains the remaining 15 items.
Part B of the request consists of questions that are more complex and require search time of an hour or more for the ministry to locate responsive records. The breakdown for the following items was summarized in the ministrys fee waiver response of September 24, 2015: Items: 4, 5, 10, 11, 15, 16, 18, 22, 23, 24, 25, 27, 28, 29 and 31
In response to the remaining 15 items included in Part B, there are 6 items which contain 376 documents that will likely require minor redactions pursuant to FIPPA.
The following are some FIPPA exemptions that are relevant to the responsive records:
* Section 12- The records include Treasury Board submissions that contain policy options or recommendations submitted, or prepared for submission, to the Executive Council or its committees.
* Section 13 The records may contain information that is considered advice to government.
* Section 19- The records may contain legal advice that is subject to solicitor-client privilege.
The ministry has not concluded the assessment and, as such, there may be additional exemptions applied in accordance with FIPPA.
On March 10, 2016, you appealed the ministrys decision on both the fee estimate and the denial of a fee waiver. As of November 29, 2016, the Information and Privacy Commissioner moved the appeal to the inquiry stage and an oral hearing is set for January 31, 2017.
If you have any questions, please contact me at 416-326-1344 quoting the case number MEDEI 2015-12 assigned to your file.
Sincerely,
Original signed by Patricia Carroll-Tougas
Patricia Carroll-Tougas
Freedom of Information Coordinator
Cc: Diane Smith
1 Orders M-914, P-591, P-700, P-1142, P-1365 and P-1393.
2 Orders PO-2530, PO-2833, PO-2856, MO-2163, MO-2505, MO-2764 2 P-270
3 PO-1909.
4 MO-1614
5 M-408.
6 MO-2163.
7 M-1018
8 PO-2886.
9 P-754.
10 PO-2515-F.
11 PO-2971