What is Doug Ford trying to hide? More than ever before

"Shocking announcement."

"A recipe for a more corrupt government."

A "bullshit" move that will "gut public trust."

That was just some of the reaction to today's sudden news that the Ford government plans to overhaul the province’s freedom-of-information law to deny the public access to documents held by the offices of the premier and his ministers, and their parliamentary assistants and staff.

The change would undo more than 35 years of lawful access to those records — and apply retroactively, which means it would impact all in-process requests, including FOIs for documents related the Greenbelt scandal, the Skills Development Fund controversy and Ford's personal cellphone records.

In a statement released late this afternoon, Patricia Kosseim, Ontario's Information and Privacy Commissioner, called on the government to withdraw the proposed changes.

“Freedom of information laws exist to provide Ontarians with vital information about how government decisions are made, on what basis, who influenced them, and whether the public interest is being served,” Kosseim said. “If records about government business can be shielded from scrutiny simply because they sit in a minister's office, on a staffer's device, or within a political account, public accountability is eviscerated.”

Our guest on tonight's episode of Closer Look is Jessica Smith Cross, editor-in-chief of The Trillium, Village Media's news source at Queen's Park.

Transcript

SPEAKER_01 0:17

Back to wrap the week on closer look with Michael Friscolenti, our editor-in-chief here at Village Media. I am Scott Sexmith. It is Friday the 13th. Yes, two months in a row. It is. If you're scared of Friday the 13th, that's what you suffer from. What's it called? Triskadecophobia. Oh, not Friscodephobia. Well, I am scared of you, so maybe that is the affliction. You should be. You scared of anything? No. No. Well, I'm sure I'm scared of some things, but not on Friday the 13th. It would appear as though the uh provincial government under uh Premier Doug Ford uh may be scared of some documents getting out because now they're proposing changes to the uh freedom of uh information laws. That was a great segue. Good thing. Thank you.

SPEAKER_02 0:59

We worked all morning on that. Very press conference. Very testy press conference this morning at Queen's Park. Um uh Cabinet Minister Stephen Crawford, who's the Minister of Public and Business Service Delivery and Procurement, um, announced some sweeping changes to some legislation, including how FOI is going to work. Um, for three, four decades we've had FOI legislation that allows you uh journalists, members of the public to ask for documents from ministers' offices, from the premier's office. Right. And there was always a clause that if it had to do with cabinet confidentiality, you're not gonna get that. It's the same with the federal government and every provincial government. But now they're gonna change it so that you can't it sounds like you can't get anything from those ministers' offices at all. Yeah. Which is a huge change. And more importantly, it im it's going to be retroactive. Trevor Burrus, Jr. Right. And that's key. It's crazy, yeah. So it's gonna impact long-standing um battles over public documents, including our team at the Trillium has been fighting for Skills Development Fund documents. For sure. Uh issues with still the greenbelt scandal that are over, and uh, I know one news organization is fighting for the premier's cell phone records. Absolutely. So all those things are gonna do. There's no better person to talk about this than Jessica Smith Cross. She's the editor in chief at our Queen Tart Bureau at the Trillium. She is uh an expert at FY um uh uh requests, just like the rest of her team is. For sure. She's done a ton of this great work that we've been talking about, and uh, I don't want to spoil it, but she's pretty upset. So we're gonna uh talk to Jess about uh what's going on and break it all down first.

SPEAKER_01 2:24

For nearly four decades in Ontario, freedom of information laws have given journalists and the public a window into how government really works. But now the Ford government says it plans to change those rules in a way critics warned could slam that window shut. The province wants to rewrite the laws so records held in the offices of the premier and cabinet ministers are no longer accessible through FOI requests, and the change could even apply retroactively, affecting ongoing battles over documents tied to issues like the Greenbelt Scandal, the Skills Development Fund, and even the Premier's personal cell phone records. So, what's the impact? What does it all mean? Our editor-in-chief at the Trillium, Jessica Smith Cross, joins us tonight from Toronto. Uh Jess, welcome to the show. Good to see you.

SPEAKER_00 3:10

Always good to see you, Scott.

SPEAKER_01 3:12

Okay. Uh not Frisco. You took the words right out of my mouth, Jess. All right. Uh hectic day uh at the ledge. Uh uh, let's start with uh what a freedom of information request is, what it does, why, as journalists, it's an important tool in our toolkit, and maybe what that process uh looks like when filing one, Jess, if you could.

SPEAKER_00 3:35

Sure. So this is a process that's open to anybody, not just journalists uh and opposition parties and activists who are the people who probably use them the most. Uh all you do is you go online and there's a form that you fill out. You pay$5 right now, and you describe the record or records that you're looking for and where they're held. So that could be the minister's office, the ministry, it could be a university or publicly funded college. There are a lot of institutions that are respond that need to respond to these requests. And you describe what you're looking for, you pay your fee, and then people will go through and look for those records and then just make a decision about whether or not they can be released under the Freedom of Information Law. And if they can be, sometimes they're released with redactions, and you usually have to pay a fee uh for the processing time. So if you're looking for a single record that's easy to find, it actually might not cost anything. Um, but if you're asking for big, broad requests, you know, all the emails sent by people on this issue within the government, which you can ask for. Uh you could be talking hundreds like thousands, hundreds, thousands of dollars. We have some requests out on behalf of the trillion that have been giving thousand dollar plus price tags.

SPEAKER_02 4:53

Yeah, that's for sure. Sorry, go ahead, yes. Keep going.

SPEAKER_00 4:56

So we've used this for a long time, right? This has been well before I was a journalist, more than 30 years. This this regime has been in place. Today's change is that ministers' offices and the premier's offices are going to be exempt. Now, this isn't a change that's happened yet. The province just announced that it's going to table some legislation that, when passed, will do this. Um, I'm going to get into the weeds a little bit here. I hope that's okay.

SPEAKER_02 5:22

We love weeds. We love weeds.

SPEAKER_00 5:23

All right, here are the weeds. It's always been off limits to get uh documents related to cabinet decisions. The idea behind that is that when the premier and cabinet ministers get together to make big decisions about government policy, they should be able to speak their minds freely and disagree with each other. And nobody gets to know what goes on behind the closed cabinet doors. And that extends to records that would show those deliberations. And for years, there have been battles between journalists and activists and governments about how broad that cabinet confidentiality should be interpreted. But now the government's just saying no, no records held by cabinet ministers at all or the premier. And making that even more complex and worse for us, quite frankly, is they're doing it retroactively. So all of the requests that are outstanding now, and there are many, um, are going to have that standard applied once the law passes. So for us, in a practical way, what that means is at the Trillium, we've submitted a whole series of requests looking for documents that have to do with the Skills Development Fund scandal. Our readers and listeners probably know about it. This is these training funds that were given out, and we determined it was two people who tended to have uh some kind of relationship with the government who had donated money to the government, had used a lobbyist who's quite friendly with the government, that sort of thing. We've been reporting on this, and what we really wanted to see was the the emails, the messages that would make that clear and describe that, what we know already and add to it. Um, but now if this law is passed as described, before we get those records back, any of those emails, messages, documents, memos, whatever that are just in the minister's office, like the political staff side of things, it would mean we won't get them. So uh we would still get stuff from the nonpartisan civil servants who administer the the process, the program, but it was the political staff in the minister's office, uh, in the case of this program in particular, who was making the decisions, the decisions that we believe need a lot of public scrutiny.

SPEAKER_02 7:42

Yeah, it that's the thing that's just it is it blew my mind as I just finished watching the press conference. I wasn't there live, obviously. To be able to do that retroactively is going to have a huge impact on these requests that you and others have done and the money that we've spent and others have spent have spent doing that. It sure sounds or seems to the average person, Jess, that there's something to hide, that they're saying, well, let's just make it retroactive so we never have to give the journalists these things. What do they say to that when they were asked that question today?

SPEAKER_00 8:07

The minister in charge, Stephen Crawford, said, Well, we're the most transparent government in the history of Ontario, which is hard to defend when you're closing down transparency in this way, is what he said.

SPEAKER_02 8:21

Yeah. I appreciate how you're staying calm because I know you're very upset about this, and I'm I'm I'm pretty upset about it too. Just to backtrack a bit, Jess, like I we said at the top, most people have no idea that FOI exists and that how they how journalists use it, how the how opposition politicians or advocates use it. What are some major stories or things we know about the government, whether it's the this government or other governments, because of FOI legislation, because of the work journalists or opposition politicians have done?

SPEAKER_00 8:46

Oh man, uh so many things. We've done stories based on data obtained by FOI. So we might have read uh village stories about how much hands-on care people are getting into care homes around the province. That was an FOI uh hospital, um hospital overcrowding numbers, how many people are getting treated in hallways. But then there's also like the political intrigue stories. So we do a lot of that at the the Trillium. Um, so and one of the things that really helps us when we do that is FOIing the calendars of the premier and the ministers involved in these things. So we know who is meeting with whom when. Uh, and that sort of helps us figure out what we need to look for. And that sort of thing will be offline. You also get stories where there'll be comments um from a minister's office staff written down. But that does bring me to a whole wrinkle in this whole system that has been around for a long time and which the government's changes does seem to seek to address, even though it's certainly not naming it. So it's been a complaint of the privacy commissioner who oversees all this stuff and journalists for a long time that because of the access to information system, government officials are not actually documenting or thinking their decision-making process. They're avoiding creating records so that records can't be FOI'd. And it makes it harder to make good decisions when you're avoiding things in that way. There's also this ongoing issue that this new law may interfere with um of government staffers using private email accounts, which they're not allowed to do, but do anyway, have done anyways, in attempts to evade uh the FOI system. So by changing it to make sure all political staffers and ministers' offices are uh exempt from the system, they can presumably talk more freely, and we will never know what they're saying.

SPEAKER_02 10:42

And those examples you just gave show exactly why FOI is so important for the public. Because you're able to put because if they're saying we're gonna do these things on the side to make sure we don't it doesn't get open to public scrutiny, that shows how valuable this is and why the that that that why it's so important.

SPEAKER_00 10:59

Yeah, absolutely. Like we don't need to know that a certain cabinet minister disagreed with a government decision and but is putting on a brave face in front of the public. That's politics and that's okay. But if you have you know political staffers in their office talking about the political ramifications of something, that should be something that the public could be aware of. That they're talking about the drawbacks to a policy. If they're um, you know, saying something that really shouldn't be said. And maybe the public should know.

SPEAKER_02 11:30

Yeah. Have you I know it's early in the early and it's only been a couple hours since this came out. Any legal opinions? Have you spoken to any experts who think there could be a legal challenge here?

SPEAKER_00 11:39

I have not been able to do that yet, though. I think that's a really good idea. Um, overall, when the province passes, the province has a right to set the law. It's what it can do. Um there are some narrow, there are some times when this government has gotten in trouble uh with the court um challenging its decision, uh decisions. It's really narrow that it can be done. Um, and I am certainly not a lawyer who could explain whether this one could have a successful challenge. It is possible. The government has lost some court decisions that uh about like that involve like administrative law and procedural fairness. And let's get a lawyer on to talk about what those are. But it it's not impossible, but it's also very challenging to get a decision like this overturned.

SPEAKER_02 12:26

Sure. So the retroactive nature of it, too. That's where I wonder like how that whether there's legal grounds to be able to say that this for sure going forward you can make this change, but how whether it can impact these previous ones. But you're right, we're not lawyers, who knows? But I'm sure this can be something that uh that that they'll be talked about in the days to come. How do you think the public will react to this, Jess? That's a key thing, too, right? Do you think the Ford government's obviously uh making this announcement on a Friday morning? Are they just hoping that this blows over? And do you think that this is the kind of thing that the public will care enough about?

SPEAKER_00 12:53

Friday is the day for news dump. So it has been.

SPEAKER_02 12:56

Yeah, yep.

SPEAKER_00 12:58

Um, I think that some people care. I can tell that because there's been a reaction to our first breaking news story uh audit already. These are people who really are highly involved in politics, who care about politics, who follow it closely. The the gist of the decision is pretty easy to understand. Even if you've never filed an FOI request, you understand what the government is doing here. Um, as for the general level of engagement in politics, some people may hear it and be like, oh yeah, that's politicians for you.

SPEAKER_02 13:28

That's that's exactly that's exactly true. I wonder too, specifically about your Skills Development Fund um requests. Can you give me an example, give us an example of how one of those will be impacted by this? Like one of the big ones you're asking for. How do you think it could affect it?

SPEAKER_00 13:41

Yeah, we've done all sorts of requests, but we purposefully filed uh a handful of some really broad ones. Um we asked for all communications that were in the labor minister's office or the offices of the deputy minister and associate at the associate deputy minister level, um, all communications about the awarding of these of this money to a handful of different groups, the ones that have been in the news, uh in our news stories. And what why we did it so broad was because we were hoping to get a glimpse of the why, right? Why did the minister's office award money to these groups? And in many cases, after the civil service had said, actually, these groups aren't the most deserving in the province, the minister came in and decided to award some grants anyway. So we are looking for any anybody who had written down the why that happened or what the consequences could could be. So that request spanned both the political minister's office staff and senior civil servants. When this law change goes through, assuming it does, anything that was just in the political staff's hands but never made it to the civil servants discussing this stuff, I don't think we will get any more. We should get stuff that is held by the civil servants still. That shouldn't change as a result of this.

SPEAKER_01 15:01

Jess, if records in the uh premier's and ministers' offices are excluded entirely, uh what kinds of decisions or communications could effectively disappear uh disappear from uh public view? Could you maybe uh give us an example just for some context for the audience?

SPEAKER_00 15:17

One really interesting one is about an ongoing uh court case. Um, Global News asked for the premier's cell phone records for a particular span of time. Um, this was a really interesting one. So usually politicians have government-issued phones that they use for government business. Uh, the premier uses his personal phone for government business. Um, so after FOIing the government phone that had no records, they FOI'd for the premier's personal cell phone records related to government business. Um and it actually won uh with the information and privacy commissioner uh and then the divisional court in its uh efforts to get those cell phone records uh to find out who the the the premier was was talking to in this particular week of time. Um now, if this law goes forward unchallenged, it would it should in theory cut that off completely.

SPEAKER_02 16:17

That's crazy. I just to it may still amazing me they can just do that on a Friday morning to say, yeah, that's all it's been so long, they've been fighting for that. Jess, this might be a question you don't know, and I'm sorry if you don't, that's okay. But you know how Ontario compares to other jurisdictions on this front? Like, is it much easier to get this kind of these kind of records in the United States or in Europe? Are governments there much more willing to give them?

SPEAKER_00 16:38

So we are our system works a little better than the federal one, according to most federal journalists I know and talk to who use it all the time. It's a bit quicker, less just sort of broken functionally. And before this change had broader access generally. Uh, after this change, uh, I would I think it may be narrower, but would have to check. Uh, the federal government is also undergoing a change of its access to information regime at the same time. That's incredibly unpopular with federal journalists. So who knows where they'll land? Um, some provinces allow uh have already done the decision that the province has made now to exclude ministers' offices according to the province. Uh, when it comes to the US, uh, the access laws are much more powerful and open than they are in Canada.

SPEAKER_02 17:28

Can you speak to this too, Jess? Just explain to people who are listening to this podcast why information is so important to our democracy, to the way we do business, why it's so important that government records are accessible to the public, not just journalists, but the public as a whole.

SPEAKER_00 17:43

The government makes decisions that are incredibly impactful in all of our lives. They have incredibly large uh communications teams that they use to sell those decisions to the public in the best and most flattering light. Uh, I've been a journalist for a long time now, and there is always more to the story than what they're gonna tell you willingly. Uh, and it's our job as journalists to find out what they don't want to tell us. Uh, access to information laws is one big way that we can do that to find the other side of the story that the politicians aren't gonna want to tell you willingly. Sources help. Uh, you know, uh analysis of open documents helps too, but FOIs are a big part of that. That's why this decision makes me sad. It's gonna make that job harder.

SPEAKER_02 18:36

I knew you were gonna say it as eloquently as you did, so thank you for that. You said it way better than I could have. What fascinated me, too. I think you need to FOI Minister Crawford's uh uh playlist, because he kept bringing up the Spice Girls. How many four or five times I kept hearing about wow, but this law was written before the Spice Girls three minute baby. What's up with that, Jess? Like, come on.

SPEAKER_00 18:55

Well, on one sense, he has a point. Uh the other side, it didn't come off very well. Yeah, the law is older than the spice girls. Well, at least since they were popular. I don't know if it how old they are as students. Anyhow, um, and sure, there are a lot of changes since then. And people are making these decisions by text message or by WhatsApp now when that didn't used to be possible. Um, but is cover cutting off access the answer to that? I would not say so.

SPEAKER_01 19:25

Exactly. All right, uh, Jess, anything else on this before we let you go so that you can kick off your weekend?

SPEAKER_00 19:31

No, I appreciate uh being willing to talk about this niche thing that actually I swear really will impact regular people going about their day.

SPEAKER_01 19:39

Uh, it definitely will. It definitely will. Good stuff. Tell me what you want, what you really, really want. Right?

SPEAKER_02 19:44

I knew there was something coming, Jess.

SPEAKER_01 19:46

Yeah, you should have hung up before that. You should have. Uh, but thanks for indulging me. Uh, there's our uh wonderful editor-in-chief uh from the Trillium, Jessica Smith Cross. Uh thanks as always, Jess. Have a wonderful weekend.

SPEAKER_00 19:58

Me too.

SPEAKER_01 20:01

I know you uh will agree with me, which you know doesn't always happen. Uh but the irony in this, when you claim to be the most transparent government in the province's history, or at least one of them, and then you remove that transparency, uh, transparency, you're really not transparent.

SPEAKER_02 20:17

Yeah. Well that and that's the question that uh Mr. Crawford was asked multiple times, right? If you're gonna make it longer, longer period of time to make these requests, you're gonna release fewer records, how does that make you a more transparent government? Um I'm telling you, the Spice Girls to me is the is the big story here. I mean, uh the he he he's basically insinuating that the Spice Girls aren't a thing anymore, and I wonder if they would be upset to hear that. I hope they see this podcast. Let's let's FOI as iPod. Zach's saying, Zach's where they're saying, yeah, what's an iPod? No, it's great. You know, on a much more serious note, this is uh the public uh probably doesn't they've gone everyone's going about their day-to-day lives doing their thing. But the amount of important things that we know of because of FOI requests, and not just done by the great team at the Trillium, but just done everywhere. Federally, provincially. We know about so many important things because government records were pried through FOI legislation, even the municipalities, they're all they're all subject to these laws. Yeah. Lots of things happen because of these uh these requests. And if we're gonna know less and less, that's just not good for democracy. It's not good for the public. And Jess said it way better than I ever could.

SPEAKER_01 21:20

And I think Jess's point about a Friday news dump is a valid one. That whole 24-hour news cycle by tomorrow, it'll be gone. It's another element of sneakiness. Yeah. Or so it seems. Well, yes, those are your words. Those are my words. I can sit not his, they're mine. Okay, let's uh put a bow on this week and uh kick off uh our weekend and get some gas for the snowblowers, because apparently we're gonna need it uh over the next few days, certainly in the north. Well, what Spice Girl song are you to sing? We got your earpods. I'm gonna put in my AirPods and uh listen to a little posh spice, because she's the only one that I remember. Uh closer look at villagemedia.ca. Uh that is our email address. Sign up to get uh contact. Every day, by the way, at CloserLookPodcast.ca. Zach Trunzo at the controls this evening for Derek Turner. Michael Friscolandis, our editor-in-chief here at Village Media. I'm Scott Sexmith. Thanks for your time this week. We truly appreciate it. Have a great weekend. See you Monday night at seven, right here on Closer Look. Frisco and Scott's wardrobe, provided in part by Moore's Sault Ste. Marie-Chout-Coff.