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Wynne Government Proposes to Charge AODA Alliance Chair $2,325 to Answer His Freedom of Information Request on Government Plans for Keeping Its Promise to Effectively Enforce the Accessibility for Ontarians with Disabilities Act

How Free is “Freedom of Information”?

October 3, 2013

SUMMARY

Ontario’s Wynne Government has told AODA Alliance chair David Lepofsky to pay approximately $2,325.00 if he wants an answer to his request under the Freedom of Information Act for information on the Government’s plans and actions to keep its election promise to effectively enforce the Accessibility for Ontarians with Disabilities Act.

“It is shocking that the Government would demand such a steep sum just to get answers that we’ve sought for months, on what the Government is doing to keep an important election promise to over 1.7 million Ontarians with disabilities – a promise that the Government made in a letter to our coalition,” said David Lepofsky, chair of the non-partisan, province-wide AODA Alliance, a volunteer community coalition that advocates to make Ontario fully accessible to people with disabilities. “This is another unfair barrier thrown in our path.”

In the 2003 and 2011 Ontario elections, and at other points along the way, Ontario’s Liberal Government promised to effectively enforce the Accessibility for Ontarians with Disabilities Act. The AODA is a law for which Ontarians with disabilities tenaciously fought for a decade from 1994 to 2005. It requires the Government to lead Ontario to become fully accessible to people with disabilities by 2025.

The AODA Alliance has been deeply concerned for some time that the Government has not kept its promise to effectively enforce the Disabilities Act. On January 22, 2013, 252 days ago, the AODA Alliance wrote the Government to find out the Government’s plans for keeping this promise. It also asked the Government how many private sector organizations with 20 or more employees had not yet filed mandatory accessibility reports, as the AODA requires –information the Government should be able to pull up from its computers at the push of a button.

The Government has never answered that letter. Exasperated, on August 15, 2013, David Lepofsky had to resort to filing a Freedom of Information Act application to get answers.

On October 2, 2013, the Government emailed Lepofsky (email set out below) to advise that to get the information he has requested, the fee would be approximately $2,325.00. That email required a down-payment up front, stating: “If you would like us to continue to process your request please provide a cheque of $1,162.50 made out to the Minister of Finance for 50% of the Fee estimate within 30 days upon receipt of this letter.”

On October 2, 2013, Lepofsky quickly responded by email (set out below), asking the Government to waive this hefty fee. Lepofsky had earlier been told that the Government has a discretion to waive any such fee. To support his request that the Government waive this fee, he emphasized that he is the volunteer chair of a volunteer public interest community coalition – the widely-recognized coalition to whom all major Ontario political parties have made election promises, and to whom the Liberal Government made the promise to effectively enforce the Disabilities Act. He urged that the information he seeks is the kind that would or should have been sought by the new Ontario cabinet minister responsible for enforcing the Disabilities Act, Dr. Eric Hoskins. It is also information that would soon be needed by Dean Mayo Moran of the University of Toronto’s Faculty of Law. The Ontario Government recently appointed Dean Moran to conduct a mandatory Independent Review of the Disabilities Act’s implementation.

Contact: David Lepofsky aodafeedback@gmail.com

KEY LINKS

To read the AODA Alliance’s unanswered January 22, 2013 letter to the Ontario Government, requesting the Ontario Government’s plans for enforcing the Accessibility for Ontarians with Disabilities Act, visit http://is.gd/XdwlVG

Learn more about AODA Alliance Chair David Lepofsky’s August 15, 2013 Freedom of Information application by visiting http://www.aodaalliance.org/strong-effective-aoda/08152013.asp

The Ontario Liberal Government’s 2011 disability accessibility election pledges, including the reaffirmed commitment to effectively enforce the Disabilities Act, are set out in former Premier McGuinty’s August 19, 2011 letter to David Lepofsky as Chair of the AODA Alliance. Former Premier McGuinty’s August 19, 2011 letter to the AODA Alliance is available at: http://www.aodaalliance.org/strong-effective-aoda/090220111.asp

At the Government’s May 10, 2005 Queen’s Park News Conference, called moments after the Accessibility for Ontarians with Disabilities Act was unanimously passed by the Legislature, the Ontario cabinet minister who shepherded that bill through the Legislature, Dr. Marie Bountrogianni, made this commitment about the enforcement of the Disabilities Act:

“Well, once a standard is a regulation, it will be immediately enforceable. Which means if it’s not complied with, there will be fines. Having said that, we do believe in an education campaign, so that there are no surprises, that people are educated with respect to what’s expected of them. That there will be spot audits very, much like the environment in the United States uses these spot audits. We’re talking about over three hundred thousand organizations, private and public, that will be affected. So can’t have an inspector going in every one every day. So there’ll be spot audits. Special technology will be used to track these audits, and where there will be inconsistencies, that is where the inspectors will go in. They will be given of course chances to remedy their situation. It’s not about punishment. It’s about doing the right thing. However if they do not comply, there is a fine — fifty thousand dollars for individuals and a hundred thousand dollars for corporations. So we’re serious. That was missing in the previous act. That was one of the things that was missing in the previous act. And without that enforcement compliance, when you just leave it to the good will of the people, it doesn’t always get done. And so we know that we know that from the psychology of human nature. We know that from past research in other areas, like the environment, like seatbelts, like smoking. And so we acted on the research in those areas.”

A transcript of the May 10, 2005 Queen’s Park News Conference celebrating the passage of the Accessibility for Ontarians with Disabilities Act, is available at http://www.aodaalliance.org/strong-effective-aoda/09272013.asp

Learn more about the non-partisan campaign to get the Accessibility for Ontarians with Disabilities Act effectively implemented by visiting http://www.aodaalliance.org and by following us on Twitter @AODAAlliance or Facebook http://www.facebook.com/pages/Accessibility-for-Ontarians-with-Disabilities-Act-Alliance/106232039438820

To sign up for, or unsubscribe from AODA Alliance e-mail updates, write to: aodafeedback@gmail.com

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Text of the October 2, 2013 Email to AODA Alliance Chair David Lepofsky from the Ontario Government

October 2, 2013

David Lepofsky

Dear Mr. Lepofsky,

RE: MEDTE 2013-34 – Fee Estimate

Thank you for your Freedom of Information and Protection of Privacy (FIPPA) access request and $5.00 application fee received by the Ministry of Economic Development, Trade and Employment on August 16, 2013 and subsequently clarified on September 19, 2013.

In response to your request, we are providing you with a fee estimate and interim access decision.

The Act contemplates a user-pay principle. Based on an initial review of the records, we estimate that the estimated fee based on search time to process your request will be approximately $2,325.00. Additional fees for preparation time may be applied once the review of the records is completed. Bear in mind this is a fee estimate only. Once we complete processing your request, we will issue a final decision and a final fee.

The cost outlined below is in accordance with Section 6 of Regulation 460, as amended, made under the Act, which states that an institution may charge for costs incurred as follows:

• $0.20 per page for photocopies and computer printouts;
• $7.50 for each 15 minutes spent by any person in the institution searching for the record. If more than one person is conducting the search, each person’s time can be charged; and
• $7.50 for each 15 minutes spent by a person preparing records for disclosure, including severing part of a record.

Thus, the following is the fee estimate for search time related to this request:

• Search Time: 4,650 minutes @ $7.50 per 15 minutes = $2,325.00

If you would like us to continue to process your request please provide a cheque of $1,162.50 made out to the Minister of Finance for 50% of the Fee estimate within 30 days upon receipt of this letter.

You may request a review of this fee estimate to 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 of this fee estimate decision, 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.

You have 30 days from the receipt of this letter to request a review from the Commissioner.

Please contact Pat Carroll-Tougas at 416-326-1344 with any questions that you may have concerning the request or fee amount. The case number MEDTE 2013-34 assigned to your file should be referenced in any future correspondence.

Sincerely,

Original signed by

David Clifford
Assistant Deputy Minister
Corporate Services Division

c. Pat Carroll-Tougas

Text of the October 2, 2013 Email Sent in Response by AODA Alliance Chair David Lepofsky to the Ontario Government

October 2, 2013

Via Email

To: Pat Carroll-Tougas
FOI Coordinator
Service Management and Facilities Branch
Ministry of Economic Development, Trade and Employment
Ministry of Research and Innovation
900 Bay Street | 3rd Floor, Hearst Block, Room 332 |Toronto, ON M7A2E1
Tel: (416) 326-1344 | Fax: (416) 325-1118
Email: patricia.carroll-tougas@ontario.ca | Website: www.ontario-canada.com
From: David Lepofsky, CM, O.Ont, Chair Accessibility for Ontarians with Disabilities Act Alliance
Re Freedom of Information Request MEDTE 2013-34

Thank you for your email of October 2, 2013, advising me that the estimate for answering my Freedom of Information application is approximately $2,325.00.

May I ask for an immediate response to the following:

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

To the contrary effect, your email implies an unfair “all or nothing” arrangement. I must either agree to pay approximately $2,325.00, or I can get access to none of this information.

May I ask you to 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 so provided. If you speak to the officials at the Accessibility Directorate of Ontario, they should easily be able to assist with identifying such readily-available information.

2. In any event, I wish to ask the Ministry to waive the fee for any and all of the items requested. I am unable to locate any information that you may have provided to me on the process and criteria for requesting a fee waiver. May I ask you to send me that information forthwith. Please also forward this request directly to whomever must consider it, and let me know how quickly I can obtain an answer. If this request is refused, I request reasons for that refusal.

I request that the fee be waived for the following reasons:

a) I make the request for information under the Freedom of Information Act request as a matter of public interest. I am the chair of the Accessibility for Ontarians with Disabilities Act Alliance, a volunteer position with a volunteer coalition. Our coalition is a non-partisan, non-profit community coalition advocating for the effective implementation of the Accessibility for Ontarians with Disabilities Act 2005. We have no funds of our own.

I made this request for information in good faith. The search fee should not become an unfair barrier to access to information for such a community group or for people with disabilities generally. The AODA Alliance has been recognized by all parties in the Ontario Legislature as a leading voice advocating for accessibility for people with disabilities in Ontario. As one illustration of this, each of the political parties has made their election commitments on disability accessibility in the form of letters to the AODA Alliance.

b) The Government promised the AODA Alliance in writing, in a letter to me from Premier Dalton McGuinty dated August 19, 2011, that the Accessibility for Ontarians with Disabilities Act would be effectively enforced. This request for information pertains to that election promise, one which the Premier and the Government had earlier made several times in the past. I should not be charged approximately $2,325.00 to get information on what the Government is doing to fulfill an election promised, made to us, in a letter addressed to me. The text of Premier McGuinty’s August 19, 2011 letter to me, on behalf of the AODA Alliance, is available at http://www.aodaalliance.org/strong-effective-aoda/090220111.asp

c) The Minister of Economic Development, Trade and Employment, Dr. Eric Hoskins, announced in the Ontario Legislature on May 28, 2013, that accessibility for people with disabilities is a “top priority” for the Government. As the minister with lead responsibility for enforcing the Accessibility for Ontarians with Disabilities Act, the information that we have requested is information that Minister Hoskins would himself need, and presumably, has (or should have) himself requested. To see Minister’s Hoskins’ declaration that accessibility for people with disabilities is a top priority for the Government, visit http://www.aodaalliance.org/strong-effective-aoda/05292013.asp

d) The Government has appointed Dean Mayo Moran of the Faculty of Law at the University of Toronto under section 41 of the AODA to conduct a mandatory Independent Review of the effectiveness of the AODA’s implementation. All the information we have requested will be very important for the Moran Review. The Government should not charge a search fee, and especially so hefty a search fee, to unearth information that this mandatory statutory Independent Review will require.

Please confirm that you received this email, and let me know how soon I can get a response.