Ontario’s transparency watchdog says it has been forced to intervene “directly” with the solicitor general’s office after a “recent trend” in which the ministry responsible for law enforcement is defying quasi-judicial orders.
There have been several instances in recent years, including some involving Global News, where the Information and Privacy Commissioner of Ontario (IPC) has told the solicitor general’s office to release information or confirm a decision, only for the government to ignore the decree.
In one instance, the solicitor general’s office refused to send notes from Premier Doug Ford’s driver to an adjudicator at the transparency watchdog. In another, it ignored an order to render a decision on a two-year-old request.
Those two examples appear to be part of a pattern involving Ford’s solicitor general’s office, which is responsible for policing and public order.
“Recently, our office has been seeing an increase in non-compliance with our orders from certain institutions compared to historic trends,” a spokesperson for the IPC told Global News in response to questions about an order it had issued to the solicitor general.
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“In light of this recent trend, we are intervening directly with the Ministry of the Solicitor General to address this matter and secure its compliance with our orders.”
The IPC did not specify which other institutions may be failing to comply with its orders.
The Solicitor General’s office said in a brief statement that it “makes all efforts” to respond to freedom of information requests and “ensure compliance” with the law.
Critics, however, are worried the government is routinely ignoring the rules to avoid accountability and frustrate public access to information.
“The government is trying to protect itself and wants to keep their cards close to their chest and not have to disclose them unless they absolutely have to,” Ontario Liberal MPP Lucille Collard said.
“It’s a political game.”
Ministries and other public institutions in Ontario are governed by privacy and transparency rules which allow members of the public, media and opposition parties to access many government documents, decisions and communications upon request.
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When requests are denied or ignored, they can be appealed to the IPC, which is tasked with ensuring compliance.
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The watchdog can then order public institutions to provide information or decisions if they’ve failed to do so, and an adjudicator decides they should. The orders have statutory authority but aren’t legally enforceable unless someone goes to court to get a judge to tell the government to comply.
“It is an offence to wilfully fail to comply with an order of the IPC, which provides a strong incentive for institutions to meet their compliance obligations. Very serious matters can be referred to the Attorney General for prosecution,” the IPC spokesperson explained.
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Compliance is not guaranteed. On more than one occasion, the solicitor general’s office appears to have either defied or ignored orders to release records or confirm decisions.
As part of a 2023 appeal from Global News to view notes kept by Premier Ford’s drivers, the ministry refused to send the documents to an adjudicator with the IPC.
An order was issued and ignored. The commissioner met with the solicitor general’s office to “discuss the issue,” and eventually the adjudicator was forced to find a time to view the records in person instead of receiving a copy, as they had requested.
At the time, the IPC acknowledged the “inordinate delay caused by the ministry’s decision not to provide the records.”
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It did not have an alternative, however, because it is not able to enforce its own orders if a government body ignores them. Instead, applicants have to go to court to them followed.
That’s an issue the IPC said it has repeatedly asked the government to address.
“Over the years, the IPC has made recommendations to government on how to modernize FIPPA and MFIPPA, which have included the recommendation to give the IPC this explicit statutory authority,” the IPC said.
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“Unfortunately, our efforts have not been successful to date, but we will continue to advocate for this enforcement power.”
Concerns of political interference
The IPC’s statement that the solicitor general’s office is part of a trend of growing non-compliance stems from a request Global News filed almost two years ago, looking for information about expansion plans for an Ontario Provincial Police detachment in northern Ontario.
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Privacy officials with the solicitor general’s office repeatedly delayed its release, ignoring updates for months at a time. Over the summer, after an appeal, the IPC released an order telling the government to render a decision by early September.
As it had with some orders in the past, the ministry did not respond at all, missing the deadline to comply with the request.
More than two months after the deadline had passed, Global News sent questions to Solicitor General Michael Kerzner’s office, asking why the order was being defied.
Those questions appeared to trigger a cascade of actions.
The same day, privacy officials restarted work on the file, saying it had “slipped through the cracks.” Kerzner’s director of issues also called, explaining that the political office had reached out to the civil servants handling the request to get an update on the status of the request.
Kerzner himself said he didn’t know about the individual order, but said it wasn’t an issue of staffing or capacity that was behind the delay.
“No, no — but we’ll look into the matter,” he said when asked. “We’ve got a great ministry, we’ve got two super deputy ministers, deputy solicitor generals, and we’ll look into that.”
The rapid involvement of political staff in the freedom of information file in response to a media request raised concerns about potential political interference.
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Collard said she was worried that if the minister’s office could speed up a request, it could also slow down those that are politically prickly.
“It probably applies both ways,” she said.
“It’s hard to tell whether there’s any mingling from the minister’s office on those requests to (ask) a civil servant just to sit on them.”
