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The Wynne Government Wants the AODA Alliance to Volunteer its Time to Give Input on its Flawed Proposal for a Private Accessibility Certification Process

but Charges $120 to Give Us Basic Information We’ve Requested About That Program that We Are Entitled to Get Under the Freedom of Information Act

Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Ontario for All People with Disabilities http://www.aodaalliance.org aodafeedback@gmail.com Twitter: @aodaalliance

April 5, 2016

SUMMARY

Here’s more Government action that contradicts Premier Wynne’s promise to ensure that hers is the most open and transparent government in Canada. The Economic Development Ministry has told AODA Alliance chair David Lepofsky that he must pay $120 to get basic information about the Government’s action on its problematic proposal that a private accessibility certification process be established in Ontario.

It is a glaring irony that the Government is eager for the AODA Alliance and its chair to volunteer hours of time to assist as volunteers, giving input on this proposal. Yet to get information that the Government should readily make public, the Government wants our coalition (that the Government knows has no funds) to pay $120 for that basic information information that the public has a right to know.

How did this issue arise? Last fall, the Government announced that it had hired the Deloitte firm, a for-profit private consulting company, to conduct a public consultation on the Government’s proposal that a private accessibility certification process be established in Ontario. We have voiced serious concerns that a private accessibility certification process is a bad idea. It would be far better if the Government concentrated its effort on finally keeping its promise to effectively enforce the Accessibility for Ontarians with Disabilities Act, especially since it knows of rampant AODA violations in the private sector.

Back on December 5, 2015, the AODA Alliance wrote Economic Development Minister Brad Duguid. We asked him for basic background on this proposal, and on its arrangements with the Deloitte organization. Fully four months later, Minister Duguid has never answered that letter.

When no answer had been forthcoming from the Government for over two months, AODA Alliance Chair David Lepofsky resorted to filing a Freedom of Information application on February 11, 2016. He sought basic information from the Government about this proposal and Deloitte’s arrangement and work on this.

On March 23, 2016, the Economic Development Ministry wrote David Lepofsky, telling him that we must pay $120 to get the information requested. The Government does not claim that this information is exempted from public disclosure. Yet it is setting up financial barriers impeding access to it. Below we set out the Economic Development Ministry’s March 23, 2016 letter to AODA Alliance Chair David Lepofsky.

On April 5, 2016, AODA Alliance Chair David Lepofsky wrote back to the Ministry. He asked the Government to give him all the requested information at no charge that the Ministry can gather with minimal effort. The Ministry did that last year in response to an earlier Freedom of Information application regarding the AODA’s implementation and enforcement. He is already appealing to the Information and Privacy Commission from the Ministry’s refusal to waive its $4,250 fee for the rest of the information he earlier requested on June 4, 2015 (not this current Freedom of Information application) information which the Ministry said it would take more effort to gather. Below we set out David Lepofsky’s April 5, 2016 letter to the Ministry.

In his April 5, 2016 letter, David Lepofsky offers a way to reduce the Government time and effort needed on one item in issue. he also asks the Ministry to waive the $120 fee in any event. He gave strong reasons supporting this request.

As yet another glaring irony here, the Government’s actions, creating this financial barrier, is no doubt taking up more staff time than it would have taken the Government to simply provide the requested information. The Wynne Government should be more willing to be open and transparent here. If it wants us, the public to volunteer our time for the Deloitte organization’s activities, it should be willing to volunteer to provide us with this information that the public has a right to know.

That Economic Development Minister Brad Duguid refused to answer our December 5, 2015 letter, and that his Ministry then spends its time creating this financial barrier, is not helpful to anyone. The Government is reportedly paying Deloitte over $400,000 for this project a fee the Government has not denied, to our knowledge.

Compounding this is the fact that as you read this, the Deloitte is busy using public funds to design a model for a private accessibility certification process. This is so despite the fact that we and others have presented serious concerns with the entire idea of a private accessibility certification process.

Here are links to the key background on this issue:

To read the AODA Alliance’s unanswered December 5, 2015 letter to Economic Development Minister Brad Duguid, visit http://www.aodaalliance.org/strong-effective-aoda/12052015.asp

To read AODA Alliance Chair David Lepofsky’s February 11, 2016 Freedom of Information application, visit http://www.aodaalliance.org/strong-effective-aoda/02122016.asp

To read the AODA Alliance’s February 1, 2016 brief to the Deloitte organization on its first phase of its work on the private accessibility certification process project, visit http://www.aodaalliance.org/strong-effective-aoda/02012016.asp

To read ‘AODA Alliance Chair David Lepofsky’s appeal to the Information and Privacy Commissioner from the Economic Development Ministry’s refusal to waive its $4,250 fee to answer Lepofsky’s earlier June 4, 2015 Freedom of Information application about AODA implementation and enforcement, visit http://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

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We encourage you to use the Government’s 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.

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MORE DETAILS

1. Text of the Economic Development Ministry’s March 23, 2016 Letter to AODA Alliance Chair David Lepofsky

March 23, 2016

David Lepofsky

Dear Mr. Lepofsky,

RE: MEDEI 2016-08 – Fee Estimate

Thank you for your Freedom of Information and Protection of Privacy Act (FIPPA) access request and $5.00 application fee received by the Ministry of Economic Development, Employment and Infrastructure on February 23, 2016 and further clarification on March 21, 2016.

The Freedom of Information process is designed to treat each request separately and to follow the requirements of the legislation. As such, in response to this request, we are providing you with a fee estimate and interim access decision. The overall fee estimate includes question number 8, per your clarification, which is attached. In reply to your clarification question to the ministry, the estimated time to search for the drafts for question number 8 is one hour.

Section 57 of the Act requires fees be charged for certain costs to process an access request and that an estimate be provided if the fee is expected to exceed $25.00. If an estimate is $100 or more, a deposit of 50% is required before proceeding with the request. The fees that shall be charged are set by Ontario Regulation 460.

The fee estimate to complete this request is $120.00 and a deposit of $60.00 is required to proceed. This was calculated as follows:

* Search Time: 4 hours @ $30.00 per hour = $120.00

Additional fees for preparation time may be applied once the review of the records is completed. Once we complete processing your request, we will issue a final decision and a final fee.

A deposit of $60.00 is required if you would like to proceed with your request. Please send a cheque or money order payable to the Minister of Finance in the amount of $60.00 to the above address. If your deposit is not received within 30 days, the file will be closed.

As you know, in keeping with the user-pay principle, section 57 of the Act requires that an institution head obtain payment from a requester for the cost of providing the requested information unless, in the head’s opinion, it is fair and equitable to waive the fees, after considering the following:

* the extent to which the actual cost of processing, collecting and copying the record varies from the amount of payment required by the Act;
* whether the payment will cause a financial hardship for the person requesting the record; * whether dissemination of the record will benefit public health or safety; * whether the person requesting access to the record is given access to it; and
* If the amount of a payment would be $5.00 or less, whether the amount of the payment is too small to justify requiring payment.

From your correspondence we understand that you are acting on behalf of a non-profit community organization, the Accessibility for Ontarians with Disabilities Act Alliance (AODA Alliance) and asked in advance that any fees required for processing the request be waived by the ministry. You have indicated that the AODA Alliance has no funds of its own. As such, your request for a fee waiver relies on the financial hardship exemption set out in section 57(4)(b) of the Act.

The ministry acknowledges your statement that the AODA Alliance has no funds of its own. Please provide any further evidence or factors set out in s.57(4) that you would like the ministry to consider in determining whether to waive the fee for this request.

The Information and Privacy Commissioner (IPC) confirmed with the ministry that you filed an appeal for a previous fee waiver related to request number MEDEI 2015-12, which is currently being reviewed by the IPC. The ministry is currently waiting for further direction from the IPC on this appeal.

You may request a review of the fee estimate, within 30 days, by the Information and Privacy Commissioner. The Commissioner can be reached at:

2 Bloor Street East
Suite 1400
Toronto, Ontario M4W 1A8
1-800-387-0073

If you decide to request a review, please provide the Commissioner’s office with the following:

* The request number assigned to the request;
* A copy of this decision letter;
* A copy of the original request that you sent to this institution; and
* An appeal fee of $25 for a request for general records under s.24 (1) of the Act.

Please contact Pat Carroll-Tougas at 416-326-1344 with any questions that you may have concerning the request or fee estimate. The case number MEDEI 2016-08 assigned to your file should be referenced in any future correspondence.

Sincerely,

Original signed by

Robert Burns
Chief Administrative Officer
Assistant Deputy Minister
Corporate Services Division

c. Pat Carroll-Tougas

Attachment

I certainly want the final product. If there also were drafts sent to the Ministry, I would also like them too. I am sure that the cost of locating them would be tiny, if the Ministry simply asked Deloitte to re-send any drafts it forwarded to the Ministry. However, if the Ministry is doing a cost calculation, please do the following:

1. In any event, send me the final report or reports. Do not hold them up pending any calculation of search time, etc. for the drafts.

2. If the Ministry is going to assert that there is a cost to searching for the drafts, please let me know what that cost is.

3. I am prepared for the Ministry to simply ask ADO staff who worked on or with the Deloitte project to make reasonable efforts to quickly find drafts, without them having to search every computer and every email to find it. That should involve minimal time.

2. Text of AODA Alliance Chair David Lepofsky’s April 5, 2016 Letter to the Economic Development Ministry

April 5, 2016

Via Email to: patricia.carroll-tougas@ontario.ca
Patricia Carroll-Tougas, Freedom of Information Coordinator
Freedom of Information and Privacy Services, Service Management and Facilities Branch, Corporate Services Division,
Ministry of Economic Development, Employment and Infrastructure 900 Bay Street | 3rd Floor, Hearst Block, Room 332
Toronto, ON M7A 2E1

Re: MEDEI 2016-08

I write in response to the Economic Development Ministry’s March 23, 2016 letter sent to me via email. It addresses my February 11, 2016 Freedom of Information application. That application relates to the Government’s project with Deloitte on the Government’s proposal regarding the Government’s proposal to develop a private accessibility certification process.

In the Ministry’s March 23, 2016 letter, the Ministry states that the fee to respond to my Freedom of Information application regarding the Deloitte private accessibility certification project is $120. Please answer the following:

1. In your March 23, 2016 letter, you do not indicate whether you are prepared to give me, at no charge, any of the records and information that I have requested in my February 11, 2016, Freedom of Information application e.g. any of the records and information that can be obtained with minimal search time.

The Ministry’s March 23, 2016 letter states that the search time for locating drafts of the report or reports on a private accessibility certification process that the Deloitte organization provided to the Government, referred to in paragraph 8 of my February 11, 2016 Freedom of Information application, would be 1our hour, and the total number of hours to fulfil my request is 4 hours. Thus, it would take three hours to answer all my other requests, combined.

I therefore ask the Ministry to now give me all the requested records and information described in my February 11, 2016 Freedom of Information application, other than the drafts referred to in paragraph 8 of that Freedom of Information application, and to do so at no charge. I address further below the proposed fee for the drafts referred to in paragraph 8 of my February 11, 2016 Freedom of Information application.

As you know, on June 4, 2015, I filed an earlier Freedom of Information application with your Ministry. It sought other items concerning the implementation and enforcement of the Accessibility for Ontarians with Disabilities Act. In 2015, your Ministry proposed a fee of $4,250 to answer that Freedom of Information application.

While I objected to that fee and asked the Ministry to waive it, I also asked your Ministry to then give me, forthwith and at no charge, any of the records and information requested in that June 4, 2015 Freedom of Information application, that involved minimal search time. In my August 31, 2015 letter to the Ministry, I wrote:

“1. As I have explained, I am aware that certain of my requests could be answered more quickly and with very little time or effort. As the Ministry knows, I have wanted the Ministry to endeavour to answer these directly and not wait for all the others.

The Government’s position implies an unfair “all or nothing” arrangement. I must either agree to pay approximately $4,250.00, or I can get access to none of this information, including information that is available with little or no effort at all.

Please immediately identify any of the requested information that can be easily provided with little if any search time, and hence, no cost. I request that any such information immediately be provided.”

In the Ministry’s September 24, 2015 letter to me, the Ministry agreed to that request, even though the $4,250 fee was then and now still remains in dispute. The Ministry’s September 24, 2015 letter stated:

“In response to your request for information that can be provided with minimal search time, we will proceed as soon as possible to issue a decision on access to records that respond to the following items in your request: 1, 2, 3, 6, 7, 8, 9, 12, 13, 14, 17, 26 and 30

The estimated search time for each of the remaining items in your request is an hour or more. A breakdown of the estimated time and fee is provided by item in the table below. This may assist you in determining options to amend the scope of the request.”

That letter then set out an item-by-item time estimate for the items that the Ministry was not prepared to give me at no charge.

Last year, the Ministry ultimately and commendably gave me, at no charge, all records and information I sought in my June 4, 2015 Freedom of Information application that the Ministry said it could get with minimal search time. I here ask the Ministry to do the same thing now for my February 11, 2016 Freedom of Information application, as it did in the 2015 fall for my June 4, 2015 Freedom of Information application. Last year, my reasons were sufficiently compelling that the Ministry agreed to this. There is no reason for the Ministry to be any less willing to do the same thing now.

I include in this request to now receive documents at no charge, any final Deloitte reports or studies referred to in paragraph 8 of my February 11, 2016 Freedom of Information application. Because the Ministry’s one hour search time for the entire paragraph 8 request only relates to finding drafts, it follows that there is likely no significant search time involved in the Ministry finding the final report or reports.

Please also provide an item-by-item breakdown of the Ministry’s time estimates for answering all items in my February 11, 2016 Freedom of Information application.

2. As for the draft documents referred to in paragraph 8 of my February 11, 2016 Freedom of Information application, I made it clear in my March 21, 2015 email to the Ministry, attached to the Ministry’s March 23, 2016 letter to me, that I was not asking the Ministry to exhaustively search for any draft reports it has received from Deloitte. I wrote:

“3. I am prepared for the Ministry to simply ask ADO staff who worked on or with the Deloitte project to make reasonable efforts to quickly find drafts, without them having to search every computer and every email to find it. That should involve minimal time.”

Respectfully, I cannot believe that it would take the Ministry one staff hour to simply ask the Accessibility Directorate of Ontario officials who were involved in this Deloitte project to pull up those drafts received from Deloitte that they can easily put their hands on. I made it clear that I was asking for drafts that can be “quickly” located.

In any event, to even further help the Ministry reduce the required staff time, I am prepared for the Ministry to simply ask Deloitte to provide those drafts that are referred to in paragraph 8 of my February 11, 2016 Freedom of Information application, that Deloitte staff, involved with that part of this project, can readily identify. To save your staff yet more time, I have composed an email which the Ministry could simply cut and paste into an email to Deloitte. It should not take the Ministry one hour to send this message and receive draft documents in response. You could write:

“The Ministry has received a Freedom of Information application from David Lepofsky, chair of the Accessibility for Ontarians with Disabilities Act Alliance, with whom Deloitte has had several conversations in connection with the private accessibility certification process activity. In it, he included, among other things, the following:

“8. When the Deloitte organization spoke with AODA Alliance Chair David Lepofsky late last fall, Deloitte’s representative advised that last summer Deloitte prepared some sort of research paper or backgrounder on this private accessibility certification process proposal, including a scan of such initiatives elsewhere. A Deloitte official again confirmed in a phone call on February 5, 2016 that such a paper had been prepared and submitted to the Ontario Government, and that its public release is up to the Accessibility Directorate of Ontario.

I request any research papers or documents that Deloitte has submitted to the Government on any aspect of the proposal to establish a private accessibility certification process. I request in advance that any future papers or documents that Deloitte submits to the Government on the results of its consultations, any research on the idea of a private accessibility certification process, and/or any recommendations be provided to us.”

To reduce the time, effort and cost of fulfilling this request, Mr. Lepofsky has told the Ministry that he would be content if the Ministry simply asks Deloitte to send the Ministry, for transmission to Mr. Lepofsky, any drafts of the documents referred to in his application’s paragraph 8, which Deloitte had previously send to the Ministry, and that Deloitt can locate without significant effort. If some drafts are easy to locate, while others may require significant effort to locate, he is content with receiving only those drafts which Deloitte can locate without significant effort.

Mr. Lepofsky is also open to speak with the Ministry and/or with Deloitte if that will assist in speeding up this process and make it easier to comply.

The Ministry would welcome Deloitte’s assistance in fulfilling this request.”

It would be quite reasonable to expect Deloitte to make at least modest efforts to find the requested drafts, without charging an added fee to the Ministry for doing so. The Ministry is reportedly paying Deloitte quite handsomely for this private accessibility certification process project. As well, Deloitte has asked me to volunteer several hours of my time to give it input and advice on this project, on behalf of the Accessibility for Ontarians with Disabilities Act Alliance. Deloitte is evidently not paying the individuals or organizations with which it consults on this project for their time.

4. In light of the foregoing, I ask the Ministry to reconsider the size of the $120 fee, and give me all of the requested information now, at no charge. If despite the foregoing, the Ministry continues to insist on a fee, and is not prepared to reduce it in light of the foregoing, then I ask the Ministry to waive that fee.

I advance here the same reasons for requesting the fee waiver as those set out in my March 10, 2016 written argument that I submitted to the Information and Privacy Commissioner in my appeal from the Ministry’s refusal to waive its $4,250 fee for my June 4, 2015 Freedom of Information application. I have provided that written argument to you promptly upon filing it with the Information and Privacy Commissioner. If you need a new copy of it please advise, or download it by visiting http://www.aodaalliance.org/strong-effective-aoda/03102016.asp

I also ask you to treat as resubmitted on this application, my affidavit dated January 15, 2016, in connection with my June 4,2015 Freedom of Information application. The statements in that affidavit apply equally here.

To summarize:

a) It is a clear financial hardship to require a fee when the AODA Alliance, the well-recognized and widely-respected community coalition on whose behalf I sought the records and information, is unincorporated, unfunded and lacking in any assets. I lead this coalition in a volunteer capacity.

As the Government has been told over and over, the AODA Alliance has no financial statements to provide. I again ask that if the Government finds the information that I have provided to date on that question to be insufficient, please explain what more the Government seeks.

b) 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. This is detailed in my March 10, 2016 written argument in support of my appeal to the Information and Privacy Commissioner, including, among other things paragraphs 49-55.

c) The Government has recognized the appropriateness of a fee waiver in the case of two earlier Freedom of Information applications that I brought on behalf of the Accessibility for Ontarians with Disabilities Act Alliance, one relating to the Economic Development Ministry and one relating to Metrolinx. The details regarding this are set out in my January 15, 2016 affidavit, referred to above, and in my March 10, 2016 written argument to the Freedom of Information and Privacy Commissioner referred to above, e.g. paras. 39-44.

d) Despite the Ministry earlier claiming that this is irrelevant, I continue to contend that the fact that this Freedom of Information application is a “public interest” application is a relevant and compelling contributing reason for a fee waiver.

e) In addition to those earlier grounds, which are ample to justify a fee waiver, an additional one arises here. This Freedom of Information application relates to the project now being conducted by Deloitte, at public expense, on behalf of the Ontario Government. Deloitte, on the Government’s behalf, has asked a good number of people, including people with disabilities like me, to volunteer our time to take part in the Deloitte consultations and working groups. As noted earlier, I, on behalf of the Accessibility for Ontarians with Disabilities Act Alliance, have contributed quite a number of volunteer hours to provide input to Deloitte, on this project. For example, I took hours to write a detailed AODA Alliance submission to Deloitte at the first phase of its work. You can find that submission at http://www.aodaalliance.org/strong-effective-aoda/02012016.asp

At the second phase of Deloitte’s work, Deloitte asked me to serve on one of its working groups. I took part in two or three of its conference calls. I was asked to take part in more, but simply did not have the time.

Beyond that, I am now invited along with the public to volunteer even more time to this project, i.e. to give input into Deloitte’s Phase 2 report. A tweet from your Ministry today reads:

“OntarioAccessibility: MT @CertForAccess: We still need feedback on the Phase 2 Report and recommendations. http://ow.ly/102WN6

It is unfair for the Government to want me and others to volunteer hours and hours to assist with this project, for which Deloitte appears to be paid quite generously, while the Government charges me $120 for all or part of the requested information. Neither I nor the AODA Alliance has asked the Ministry to pay for our time. The least the Government could do is to provide all the requested information without seeking to get money for this.

I would be pleased to provide any further information as you may require. I ask that you remember that Premier Wynne pledged that her Government would be the most open and transparent government in Canada. This fee would fly in the face of that pledge.

Sincerely,

David Lepofsky CM, O. Ont
Chair Accessibility for Ontarians with Disabilities Act Alliance

cc: Premier Kathleen Wynne, email kwynne.mpp.co@liberal.ola.org
Brad Duguid, Minister of Economic Development, Employment and Infrastructure email brad.duguid@ontario.ca
Giles Gherson, Deputy Minister of Economic Development, Employment and Infrastructure, email giles.gherson@ontario.ca
Ann Hoy, Assistant Deputy Minister for the Accessibility Directorate, email ann.hoy@ontario.ca