Accessing public information at the Municipal level not all that easy

By Pepper Parr

August 20^th, 2024

BURLINGTON, ON

Pot holes and recreation services are a large part of what a municipality is about – has been until population intensification got to the top of the municipal news hit parade.

The municipality you live in provides the services that matter most on a day to day basis.  And usually your municipal councillor is someone you pass on the street or see in the supermarkets – the exception for Burlington being ward 3 Councillor Rory Nisan who moved from where he was elected into ward 2.

The federal government issues your passport and collects taxes, the province is expected to ensure there is a robust economy that provides the good paying jobs that leaves enough to pay the taxes.

From time to time a citizen will have a concern with something a level of government has done and they want more in the way of information.

Freedom of Information request have been the process uses at every level of government.

A front page article yesterday the Globe & Mail published a report based on work done by the Secret Canada, Globe & Mail  national investigation on how well the Freedom of Information process was working – the consensus – not all that well.

Much like their federal and provincial counterparts, municipalities across the country must adhere to freedom of information (FOI) laws, which are intended to promote transparency by allowing individuals to request documents from public institutions. These laws require institutions to disclose requested information with limited exceptions.

A Globe and Mail audit of Canada’s 53 largest municipalities (from which most of this article was sourced) has found vast differences in how local governments perform on FOI. While they completed access requests in 25 days, on average – twice as fast as provincial and territorial ministries, and more than three times as quickly as federal departments – some cities still took much longer, including Edmonton (69 days), Hamilton (66) and Greater Sudbury (50).

The audit also reveals that some municipalities apply redactions much more heavily than others. Mississauga, for instance, released 78 per cent of its files in full – that is, without any redactions whatsoever. Halifax, by comparison, released just 2 per cent of its files in full.

To assemble this national picture of municipal access performance, The Globe filed requests to every municipality in Canada with a population of at least 100,000 people, asking for data on FOIs completed between July 1, 2022, and June 30, 2023. The findings reflect the performance of 53 municipalities across eight provinces. (Three additional cities – Thunder Bay, Lévis, Que., and Ajax, Ont. – were excluded from the analysis because they said they had no FOI tracking system, claimed they could not produce the requested information or provided incomplete data.)

Burlington ranks in the top half – doing better than Hamilton which isn’t a metric you want to be measured by.

Kevin Walby, a criminology professor at the University of Winnipeg who also studies freedom of information, said some of the audited municipalities’ performance was “just abysmal – like, their FOI offices should be put into receivership, or something like that.”

“Some of the lack of compliance is just totally wild,” he continues. “There aren’t a lot of sites where you get great compliance. Great compliance, I think, would be where you have most of the records released in full, and most of the disclosures released within 30 days, or in a reasonable time.” Prof. Walby says the findings are evidence that some municipalities haven’t adequately resourced their FOI offices. “It’s a really contradictory message for an apparatus of the state to be sending: You guys comply with all these other laws, but we don’t have to follow the laws that pertain to us.”

“How do they expect Canadians to want to believe in the legitimacy of the state and believe in these kinds of transparency initiatives when you see this kind of lack of compliance across the board?”

Kristan Cook, a former FOI director for Edmonton, says municipalities make decisions that “actually affect” people’s day-today lives. “It’s people wanting to know, why is my bus route changing? How much did this bridge cost? Why is the train going through my yard?”

Ms. Cook, who is now the director of privacy at PBC Solutions, a health benefits technology company, says that Canada has thousands of municipal governments across the country, and despite their varying sizes, they follow the same access rules as higher levels of government. “Whether you’re a government administration of three people or 300, that three-person government administration still has to provide the same service under FOI.”

Municipalities handle FOI very differently from provincial or federal governments: City clerks usually act as ranking officials on FOI matters, and local governments tend to have fewer layers of review – that is, fewer people who need to approve the release of a document – before an FOI response goes out the door, which likely speeds up the process, Ms. Cook says.

The FOI requests received by municipalities are also very different from those going to the provinces or federal government. “So many dog bites, like, an incredible number of dog bites,” Ms. Cook says. “Fire inspections, that’s a big one. And then requests about infrastructure, things like bridges and buildings and mass transit – those have a very municipal flavour.”

Ms. Cook says that these contrasts in timeliness often come down to records management practices.

“If you don’t know where your records are, then you can’t locate them and you can’t respond to an FOI request,” she says.

“Organizations of a significant size have hundreds of systems that store records. Some of these systems talk to each other, and some of them don’t. So it really depends on where the information is stored and how easy it is to gather the information and put it into the form that an applicant is seeking.”

After assembling the documents relevant to a request, FOI offices read through the records to identify information that must be redacted under access law. Some responses are released as-is, without redactions, while others can be withheld in their entirety. The final status of an FOI package, also known as its “disposition,” is a useful indicator of how much information a public institution is actually releasing.

Mississauga released 78 per cent of its FOI responses without any redactions whatsoever, the highest full disclosure rating for any major Canadian municipality. Halifax, meanwhile, released just 2 per cent of its files in full.

(Some of these disclosure statistics are complicated by the types of FOIs they are processing. Winnipeg, for instance, also processes files for the Winnipeg Police Service, and police requests often carry personal information redactions. The Globe’s analysis aimed to measure how municipalities were responding to their requests, so it kept the request data it received mostly as-is, removing only FOIs that were abandoned or transferred to another public institution.)

Ms. Cook says that the variation in how extensively local governments redact records could be read many ways. Take a city that has high full disclosure rates: “Maybe it’s an organization that believes in transparency, or maybe it’s an organization that isn’t paying attention,” she says. Meanwhile, a municipality with high redaction rates may be “more on the cautious side of releasing information.”

Over all, municipal governments outperformed federal, provincial and territorial ministries across all FOI metrics in the audit. They closed requests more rapidly – 25 days on average, compared with 47 provincially/territorially and 83 federally – and completed the lion’s share of their files within 30 days. Municipalities also released files in full much more frequently: 38 per cent of the time, compared with 20 per cent provincially and 24 per cent federally.

To Ms. Cook, these differences can be explained in large part by the complexity of a public institution’s bureaucracy. People empowered to make final FOI decisions – the ones given “delegations of authority” – often have more levels of oversight at the provincial and federal level, she says, slowing down the process considerably.

“In some delegations, the people who are actually the people that you’re talking to when you’re doing the access request, they have the authority to sign something and send it out to you themselves,” she says. “In other places, they don’t. So, any time you have that – more people, more levels – the amount of time that it’s going to take for you to get something is going to increase. That’s a really important difference between municipal, provincial and federal.”

While several municipalities fared well in this audit, some stood out for how quickly and fulsomely they responded to requests. Red Deer, Alta., and Mississauga released more than 70 per cent of their files in full, and managed to do so while keeping FOI responses to an average of 22 and 23 days, respectively.

Nearly every request completed by Longueuil, Que., within the audit window was closed within 30 days – despite the municipality having completed more than 1,500 requests during the period.

Several Quebec municipalities achieved exceedingly fast completion times. Montreal wrapped up FOIs in an average of 15 days; Gatineau closed files in 13 days, on average, and Quebec City and Longueuil averaged 12 days.

Hamilton had the second slowest average response time (behind Edmonton), but it also ranked poorly across other metrics: It closed 40 per cent of its files within 30 days (third-worst, after Richmond, B.C., and Saguenay, Que.) and released 19 per cent of its files in full (13th-worst).

In a e-mailed statement, Hamilton city clerk Matthew Trennum said the municipality “takes its role as a steward and guardian of personal and confidential information very seriously,” and that Hamilton is “looking to invest in modernized freedom of information request tracking software to assist in managing timelines and more generally for project management.”

Marianne Meed Ward made transparency the watch word that got her elected – the phrase fell out of use when she was elected Mayor.

During the 2018 municipal election Burlington Council member Marianne Meed Ward running for the Office of Mayor began to suspect some of the information that was coming their way.

A member of the campaign team filed a  Freedom of Information request related to correspondence between the then Director of Planning and to some degree the then City Manger.  Shortly after the FOI was filed the city said they required a deposit of $700 to do all the work that was required.

While stunned at the amount the individual paid the deposit. We expect to have more detail on thus later in the month – we do know that some of the deposit was refunded.

We have been advised of another Burlington situation where the person filing the FOI request was asked to pay a deposit of more than $1000. They gave up at that point.

Burlington position on the list is at about the midpoint – better that Hamilton, which isn’t saying very much.