Municipal Freedom of Information
The recent direction by council of the Town of Fort Frances to craft a resolution calling for the province to adopt more restrictive municipal freedom of information laws is cause for alarm. It signals either the complicit or unwitting support of council for a staff-driven effort to make municipalities less transparent and accountable to the public. It also shows a lapse in council's understanding of their own role in the municipal government.
In Ontario, the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) sets out the rules by which municipalities must provide members of the public, upon request, with access to general records of the municipality and records containing their personal information. MFIPPA allows the municipality to charge prescribed fees for this service. Records can only be withheld or redacted based on a narrow set of circumstances. MFIPPA and other provincial and federal freedom of information laws are fundamental tools in a modern democracy.
These laws allow us to hold governments (including unelected bureaucrats and municipal staff) accountable to the public. For council to now do the political bidding of the municipal clerk (who holds, in law, an explicitly non-political role) and call for the province to further restrict, narrow, or drive up the cost of access to information raises disturbing questions about who they are working for. It certainly isn’t the public or their interests.
To be sure, this effort is not in council’s own interest either. That is because Ontario’s Information and Privacy Commissioner has stated that council members – outside of council meetings – are not entitled to any additional municipal information than members of the public. In effect, a council that rubber-stamps further restrictions on MFIPPA is undermining their own ability to hold to account the municipal administration they are elected to govern. That is, quite literally, their only job. To do it effectively, council members would benefit from more access to municipal information, not less.
At our firm, we use freedom of information laws to act for individuals and communities that have been treated unfairly by government officials and to expose corruption, mismanagement, and incompetence in institutions at all levels of government, including the Town of Fort Frances.
In fact, thanks to freedom of information laws, here’s what the public has recently learned about the staff and council of the Town of Fort Frances that would have otherwise been kept secret:
We know that the former CAO and former Operations Manager (now CAO) conspired to keep information about a significant donation to the municipal splash park from council, and then let council take the fall when the donation was pulled;
We know that municipal staff illegally paid tens of thousands of dollars in lawyers' fees for the former Mayor and had no authorization to do so;
We know that municipal staff ignored orders from the previous council to develop a policy on reconciliation;
We know that the former Mayor leaked privileged and confidential documents to a local realtor and then misled council about doing so;
We know that the municipality retained a high-price Toronto government relations firm to lobby their own MPP (whose office was 200 metres from town hall at the time), and now appears to have misrepresented the purpose of that lobbying in the related lobbyist registration filings;
We know that the former Mayor wrote to a neighbouring Mayor to express support (on behalf of her council) for his municipality's refusal to recognize Pride Month;
We know of the effort by numerous members of council, including the former Mayor, to stop the renaming of Colonization Road; and
We know that a senior member of staff was smearing a councillor in ongoing writings to the former Mayor, contrary to the council-staff relations policy, and that that person resigned shortly after our access request was submitted.
None of this misconduct would have seen the light of day but for MFIPPA. Notably, municipal staff unlawfully refused or partially refused access in response to several of the above requests. It required appeals to the IPC to successfully get most of this information from the municipality.
Frankly, it is telling that the municipality’s knee-jerk reaction to the growing use of freedom information laws is to try to restrict public transparency. If they were operating in the public's interest on this issue, the takeaway for the municipal administration should be that they need to do more to improve public confidence and trust in their work. Likewise, the appropriate response from council would be to ask staff whether they are engaging in appropriate and modern information management practices or have appropriate training on their legal obligations under MFIPPA. Instead, we see council planning to run interference for public servants that do not like being accountable to public scrutiny.
That both council and staff are now in cahoots to undermine municipal transparency reflects poorly on their commitment to improve the democratic governance of the municipality and to be held accountable for their stewardship of municipal resources. It also raises questions about whether council understands that they work for the public or the staff.
It is said that democracy dies in darkness. Rolling back freedom of information puts us very much in the dark about municipal affairs. We encourage community members to reject this misguided attempt to erect barriers to public accountability, and to remember those members of council who support this bad faith effort to do so.
Judson Howie LLP practices in civil litigation, municipal law, and political law. Contact us at firstname.lastname@example.org.