(Note Appendices omitted.)
INFORMATION AND PRIVACY COMMISSIONER of ONTARIO
IN THE MATTER of Appeal Number PA 16-156 under the Freedom of Information and Protection of Privacy Act
AFFIDAVIT OF JENNIFER BROWN
This affidavit was created as a result of an oral inquiry pursuant to the Freedom of Information and Protection of Privacy Act (FIPPA). Accordingly the use of this affidavit and the information contained within it is restricted by ss. 52(9) and 52(10) of the FIPPA.
I, Jennifer Brown, of the City of Toronto, MAKE OATH AND SAY:
I am the Manager of the Accessibility Policy Unit of the Accessibility Directorate of Ontario (“ADO”), a position I have held since May 2015. In my capacity as Manager, my duties have included: leading policy, legislative and regulatory development related to the Accessibility for Ontarians with Disabilities Act, 2005 (AODA) by the Ministry and across government; leading standards reviews by working with Standards Development Committees; and identifying emerging accessibility needs and trends through research and analysis.
On June 4th, 2015, the ADO received a freedom of information request from the Requester (now Appellant) that was divided into 31 subject areas, many of which were questions. These questions contained multiple parts and many did not refer to specific records. The general subject areas of the request include: levels of compliance with the AODA; the government’s enforcement of the AODA; the government budget and spending on the AODA’s implementation and enforcement; public education on accessibility; efforts to incorporate the promotion of accessibility across the Ministry’s various programs and activities; efforts to increase the accessibility of tourism or hospitality services in any part of Ontario in connection with the 2015 Toronto Pan/ParaPan American Games; consolidation of the development of new accessibility standards and the review of existing standards; and analyses of laws in other jurisdictions that address accessibility for people with disabilities.
In relation to the request at issue, I provided management oversight for the coordination of the search for records in response to the request. I was assigned to this role in June 2015 after receipt of the request, and only for this specific FOI request, due to its complex and broad nature. In this capacity, I provided direction, assistance and advice to my management colleagues in the ADO who were tasked with searching for records related to their roles and individual files. I was also responsible for providing updates to divisional leadership. I directly oversaw the work of one (at times two) coordinators in the ADO that were leading the searches within their divisions. Because of this experience, I have knowledge of the facts as set out in this affidavit.
The information in my affidavit, which I believe to be true, has been obtained by me directly or provided to me by other staff members in the ADO and the Ministry of Economic Development and Growth (MEDG) who conducted searches for responsive documents. In particular, a Team Lead/Senior Coordinator worked with me for the purposes of this project. This individual worked with staff leads in units that conducted the searches, while I worked directly with managers. Information about the amount of time employed in the search and other information related to the search was provided to us by unit leads and their managers.
Background on 2015 request
The format of the request, which was, for the most part, framed as a series of questions, as opposed to requests for specific records, increased the amount of search time necessary to identify responsive or potentially responsive records that would enable the ministry to obtain information necessary to respond to each question.
Due to the large scope of the request and to enable the Ministry to provide responsive records to the Requester in a timely manner, the Ministry worked with the Requester to divide the request into two parts: Part A, attached as Exhibit “A” to this affidavit, included questions which did not require extensive search time to locate responsive records. Part B, attached as Exhibit “B” to this affidavit, included topics or complex questions which required significant search time to locate responsive records, and/ or were likely to require review of responsive records in order to determine whether information contained in the records was exempt from release.
After receiving the request, the Ministry undertook a series of efforts to work with the requester to clarify and narrow the scope of his request. On July 7, 2015, the Ministry provided questions for clarification to the Requester in relation to questions 10, 16, 18, 28 and 29 of the request, attached as Exhibit “C” to this affidavit. The purpose of the clarification questions was to narrow the types of records the requester was seeking in response to these questions, in order to reduce the volume of records that would need to be searched in order to identify responsive records.
Further, on August 7, 2015, after receiving the requester’s response to the questions. I participated on a teleconference call with the Requester and other staff members from the ADO and the Ministry’s Freedom of Information coordinator to further clarify and narrow the scope of the request. In particular, the Requester provided some clarification on what types of records he was seeking for questions 4, 11, 16, 17, 18 & 29 of the request, but he did not propose to significantly narrow the scope or reduce the number of questions. For instance, only final drafts of documents were to be included in the records package.
Calculation of Fees
The fee estimate of $4,250.00 provided to the Requester on September 24, 2015 is based on the actual search time by ADO and Ministry of Economic Development and Growth (the “Ministry”) staff, who spent a total of 140 hours locating records in response to Part B, over a period of approximately two months, between June and August of 2015. Time estimates were tracked by number of search hours (i.e., 140) and the number of staff involved in searches for each question. Searches were conducted by staff members in different units within the ADO and the Ministry with specific knowledge of the subject area, as well as records and information that would be responsive to each question in Part B of the request.
The estimate provided to the requester included only search time. The estimate does not include other fees that could be charged under the fee regulation of FIPPA in relation to document preparation. For instance, some of the responsive records contain information that would be subject to FIPPA exemptions and would require redactions.
On December 5, 2016, attached as Exhibit “D” to this affidavit, the Ministry provided an estimate based on a preliminary review that 376 records identified in response to Part B may contain information that would subject to exemptions from disclosure under sections 12 (cabinet records), 13 (advice to government) and 19 (solicitor-client privilege) of FIPPA. The Ministry has currently located approximately 3600 pages that have been identified as responsive to the questions under Part B. While the Ministry has not yet conducted a detailed review of the records, or made a final decision regarding exemptions pending the outcome of this appeal, we anticipate that approximately 15 percent of these records (or 540 pages) likely contain information that may be exempt.
The Ministry would also incur additional costs to have the records converted into the accessible format requested by the Requester. The Ministry will be responsible for these costs. Given the number of records the Ministry has located, it is likely that the Ministry will require the services of an external vendor to convert documents, like power point presentations, into accessible MS word formats.
At this point in time, the costs of conversion of records to an accessible format are not known and will depend on the number of records that require conversion and the pricing offered by vendors. For example, following the Requester’s 2013 freedom of information request, explained in further detail below, the Ministry’s Corporate Services Division conducted a search for a vendor to obtain an estimate of the cost to convert records into accessible formats. One vendor consulted (accessibil-iT) provided an estimate of $150.00 for 1.5 hours of work to convert 5 pages text-only information. Attached as Exhibit “E” to this affidavit is an invoice for $169.50 from accessibil-IT to the Ministry for the cost of converting one 5 page test document, a Power Point presentation, into accessible Microsoft Word format.
Background on 2013 Request
The Requester also submitted a request for information to the Ministry in 2013, which was separated into 21 questions attached as Exhibit “F” to this affidavit. A fee estimate of $2,350.00 was provided to the Requester on October 2, 2013 based on an estimated search time of 77.5 hours. The estimated search time for that request was lower because there were fewer parts to the 2013 request, and fewer records and databases that required searching to identify responsive records. The Appellant also requested a fee waiver for the 2013 request.
The Minister’s office decided to provide the records, free of charge, outside of the FIPPA process. Accordingly, in correspondence dated February 13, 2014, attached as Exhibit “G” to this affidavit, the Ministry’s FOI coordinator advised the Requester that the FOI file for the 2013 request had been closed. The provision of records was in accordance with subsection 63(1) of FIPPA, which provides that a head may give access to information informally in response to an oral request. The Ministry treated the Appellant’s request as resolved, and no formal decision regarding the Appellant’s request for a fee waiver in respect of the initial FOI request was made by the Ministry in 2013.
Ministry searches in response to 2015 request
As noted above, the Ministry divided the Appellant’s request into two parts. Records that were identified as responsive to the subject areas described in Part A were provided directly to the Appellant. For the most part, these records include statistical and other information that the Ministry would make publicly available and would provide in response to an informal or oral request in accordance with subsection 63(1) of the Act. The Appellant was not charged a fee in relation to these records.
As noted above, the work involved in searching for and identifying records that would respond to the Appellant’s request in Part B was substantive. The following sets out the process that was undertaken to locate responsive records for each question in Part “B” of the 2015 request.
Question 5 related to enforcement actions undertaken under the AODA since 2014.
Locating records responsive to this part of the request required one hour of search time by two staff members in the Compliance Enforcement Unit.
The staff members searched two electronic databases, the Accessibility Compliance and Tracking System (Organization interaction and reporting database) and the ADO’s Compliance and Enforcement Database (CRIS). The Accessibility Compliance and Tracking System and the CRIS are databases that track all activities conducted between compliance staff and organizations required to comply with the AODA.
Filters were applied to the databases to isolate the number of specific activities that were requested in question 5. Additional filters were applied in order to break these activities down according to the organization’s sector and the quarter in which the activity took place. One record was located in response to question 5, which includes data extracted from the databases described above.
Question 10 was a broad request for all plans, policies, directives or instructions for enforcement of any requirement or provision of the AODA, or of any accessibility standards enacted under it.
Responding to this question required searches to be conducted by eight staff members in the Compliance and Enforcement Unit, which totaled 50 hours of search time. Staff members searched paper records and several electronic databases, including shared drives, emails, the Ontario Correspondent Management System (“OCMS”).
The Ministry was required to consult with Treasury Board and Ontario Shared Services for recommendations regarding disclosure of certain records identified in response to question 10.
Locating records in response to question 10 posed challenges for ADO staff, as the time period for responsive records was uncertain. The request was for all responsive records that had not been provided in response to the Requester’s prior 2013 request, and any records created since 2013. This resulted in significantly more search time as every potentially responsive record in the custody or control of the ADO that could be within scope had to be identified, then compared against the records disclosed in response to the Requestor’s prior request, then either included or excluded accordingly.
The records search for question 10 also involved the evaluation of a large amount of data to determine if it was within the scope of the request. Many changes and updates have recently been made to the ADO’s compliance and improvement framework, including new compliance improvement policies and procedures and updated and new inspections policies and procedures. The Compliance and Enforcement Unit also recently implemented the enforcement piece of Compliance and Enforcement Strategy. This resulted in a large volume of new policies, operational procedures, operations documents and new linkages (for example, Ontario Shared Services which collects monetary penalties, and the License Appeal Tribunal which hears enforcement appeals under the AODA). Since the requester’s previous FOI request in 2013, the ADO’s framework for assuring compliance (from providing education and assistance to auditing and enforcement) has matured and developed.
For example, since 2013 the ADO has begun issuing director’s orders to comply under the AODA, some of which have included requirements to pay administrative monetary penalties. In order to collect unpaid penalties, the Directorate had to establish protocols and procedures with Ontario Shared Services in order to provide collections services and track payments. Similarly, protocols and procedures had to be established with the License Appeal Tribunal that was designated to hear appeals under the AODA made by organizations.
For each of these new areas of business, the ADO generated new records and documents in its electronic database that had to be searched. A total of 165 responsive records were identified in response to question 10. Responsive records include: reports, briefing materials for decision makers, feedback from decision-makers, proposals, planning documents, decision notes over several years, templates, scripts, internal protocols and processes for the purposes of conducting compliance activities; Documents for appointing inspectors; and third-party terms of reference.
Question 11 was a broadly worded request for any studies, reports, option papers or other records related to options and/or policies or practices for implementing the enforcement powers under the AODA from 2013 to the date of the request.
One staff member in the Compliance and Enforcement Unit, and one from the Standards Development Unit spent 2.5 hours searching the ADO’s electronic shared drive filing system, hard copy records and email records for responsive records.
In total, 52 records were identified as responsive to question 11. Responsive records include reports prepared by external consultants, procurement process and approval documents, briefing materials for decision makers and meeting materials shared with ministry partners. These records were gathered by policy staff in the Standards, Policy and Compliance Branch and by Corporate Services Staff in the Business Planning and Finance Division of the Ministry.
Question 15 was a four-part question, related to a proposal to establish a toll-free phone number for the public to report AODA violations, which required 4 hours of search time by one staff member in the Compliance Operations Unit.
The staff member searched shared drives, emails and digital reports from ServiceOntario and the Accessibility Compliance and Tracking System (an online reporting system) to gather and review potentially responsive records.
One record was identified as responsive to question 15. The record includes data extracts in the form of excel spreadsheets from the Accessibility Directorate’s Accessibility Compliance and Tracking System and the Service Ontario Call Center database, OASIS. This data was consolidated and summarized in monthly operational reports
Question 16 was a broad request for any records regarding the Ministry’s decision-making process related to auditing obligated organizations under the AODA. This question required one hour of search time by three staff members in the Compliance Enforcement Unit and Compliance Operations Unit.
Electronic shared drive and email records were searched for responsive records. Three records were identified as responsive to question 16. Responsive records include annual planning documents outlining compliance activities and staffing action request forms.
Question 18 was a ten- part question, related to records that address the development of policies and proposals being considered by the Ministry and ADO related to enforcement of the AODA using existing resources and inspectors under other government legislation.
The records search for question 18 required 16 hours of search time by three staff members in the Standards Development Unit to locate responsive records. Policy and administrative staff searched electronic (shared drive), hard copy (paper filing system), and emails for responsive records.
The sub-questions covered a number of programs developed and administered by the ADO in partnership with several other Ministries, including the Ministry of Labour, the Ministry of Advanced Education and Skills Development and the Ministry of Transportation. The sub-questions regarding compliance outcomes also required information from other units within the ADO.
A total of 62 records were identified in response to question 18. Responsive records include reports, briefing materials for decision makers and meeting and training materials shared with Ministry partners.
Question 22 was a two part question related to the ADO’s administration of the EnAbling Change Program since 2008, which required 15.25 hours of search time by two staff members in the Public Education and Partnerships Unit.
Searches of electronic shared drive records and paper records dating back to 2008 were required to locate responsive records. Each record had to be reviewed to verify dates, funding amounts and to create project summaries.
Grants Ontario was also used in the search for documents. This database has archiving functions and reporting functions, but staff were still required to review some EnAbling Change files outside the system.
Additionally, the system was only implemented in 2012, as the request goes back to 2008, substantial time was spent looking into older files created before the system was incorporated. ADO staff consolidated all the information from the various contracts into a new spreadsheet in response to question 22.
Question 23 was a request for the text or speaking notes for any speeches by Brad Duguid, who was then Minister of Economic Development, Employment and Infrastructure, from June 2014 which address accessibility.
Searches were conducted by staff in the Ministry’s Communications Branch. Locating responsive records required 8 hours of search time, 22 responsive records were identified.
Questions 24 and 25 were requests for records related to a 2014 government advertising campaign on accessibility and compliance with the AODA, including related budgeting and costs for the campaign, records related to any plans for future campaigns, and any information the government compiled on changes in levels of compliance or inquiries received as a result of the campaign.
The search for questions 24 and 25 required a total of three hours of search time by one staff member in the Strategic Initiatives Unit. Searches of the electronic shared computer network drive and the Ontario Correspondent Management System (“OCMS”) were conducted.
Three records were identified in response to question 24, and one record was identified in response to question 25. Responsive documents included existing data analysis spreadsheets and research summaries that were validated to evaluate the success of the 2014 advertising campaign on accessibility and compliance with the AODA.
Question 27 was a request for any information related to new programs, policies or initiatives of the Ministry, or modifications to existing ones, since May 28, 2013, that ensure that accessibility is integrated into all programs and activities at the Ministry.
The searches for question 27 required 2 hours of search time, by staff in the Open for Business, Policy & Strategy, and Entrepreneurship divisions of the Ministry. A total of 52 records were identified in response to question 27. Responsive records include briefing materials and Cabinet submissions.
Question 28 was a request for any records of proposals, options, research or recommendations related to increasing the accessibility of tourism or hospitality services in any part of Ontario, from 2012 to the request date, in connection with the Pan/Para Pan American Games in Toronto.
The search for question 28 required 12 hours of search time by one staff member in the Strategic Initiative Unit.
The search time is a result of the volume of electronic records required to be searched and the time frame of the requested records (from 2012 to the request date).
The search also involved obtaining responsive records from the Ministry of Tourism, Culture and Sport (MTCS). The Ministry was also consulted with the Ministry of Transportation, Ministry of Government and Consumer Services, and other third party organizations including Ontario College of Art and Design and the Tourism Industry Association of Ontario for recommendations regarding disclosure of certain records.
In total, 55 records were identified in response to question 28. Responsive records include proposals, contracts, research, business cases and option papers over several years. This includes briefing materials for decision makers. These records were gathered by staff in the Outreach and Strategic Initiatives Branch and MTCS.
Question 29 was a request for any records from February 2010 to the date of the request that relate to the development and implementation of the government’s consolidation of the development of new accessibility standards, and the review of existing accessibility standards by the Accessibility Standards Advisory Council.
Searches for question 29 required 10.5 hours of search time by three staff members in the Standards Development Unit.
Staff searched for responsive records in emails, electronic shared drive and OCMS, as well as hard copy records.
Identifying responsive records also involved reviewing partially responsive records.
Staff identified 18 records in response to question 29. Records include: Briefing materials and Treasury Board materials including submissions, Minister’s remarks, and question and answer documents.
Question 31 was a general request for any analysis or survey of laws in other jurisdictions related to accessibility for people with disabilities, which required 10 hours of search time by 3 staff members in the Accessibility Policy Unit.
The search involved a locating records in the electronic shared drive and filing system, as well as searching through hard copy records.
Staff identified 15 records in response to question 31. Responsive records include jurisdictional/environmental scans and research summaries of accessibility laws/efforts in other jurisdictions. This includes briefing materials for decision makers.
The ADO is committed to successful implementation of the AODA through its programs, policies and hardworking staff. It also values and respects its role as a FIPPA institution enabling access to information under that Act. The impact of the extensive time and staff resources required to conduct searches for records responsive to the Appellant’s request can be offset by the fees required.
This affidavit is made in support of the Ministry’s response to Appeal No. PA16-156 and for no other or unlawful purpose.
SWORN before me at the City of Toronto,)
in the Province of Ontario, )
this 24th day of January, 2017 )
A COMMISSIONER FOR TAKING
AFFIDAVITS FOR THE PROVINCE OF