What is the relationship between the Open Meeting requirements of the Ontario Municipal Act and the rules requiring the disclosure of municipal records under the Ontario Municipal Freedom of Information and Protection of Personal Privacy Act (MFIPPA)? Both of these measures are intended to increase the transparency of municipal governments and provide members of the public with a broad set of rights with respect to receiving information about the operation of their local governments.
Yet recent events in London Ontario have raised questions about the transparency of local government operations, in this case concerning the development of transit policy and the city’s response to a records request. I will argue that there is a gap between the transparency protections in the two Acts that should be closed as much as possible, as they both serve the same overall policy goals. Some ideas for how London’s MFIPPA process could be improved will be discussed in a subsequent post.
Both the Open Meeting rules and the right to receive records set out obligations and duties on the part of local governments. In the case of the former, the general rule is that meetings of governing bodies will be open to the public, subject only to a very limited and specific set of exceptions where it is permissible to go into a “closed session.” Municipal Act section 239(2) sets out the limited exceptions to the open meeting rule. For example, the council may go into closed session to discuss matters such as land acquisitions, personnel matters and advice from the solicitor.
In the case of MFIPPA, members of the public have very broad rights to obtain local government records, again subject only to a limited set of exemptions where the municipality can withhold disclosure. These exceptions to disclosure fall into two categories, mandatory and discretionary.
In some cases, the municipality MUST initially withhold the records. These “mandatory exemptions” apply where the rights of a third party are involved or where the personal privacy of an individual may be violated by the disclosure. There are also “discretionary exemptions” where the government MAY withhold the records if they wish. Discretionary exemptions include situations where there has been “advice or recommendations.”
MFIPPA section 7(1) provides that the government
“…may refuse to disclose a record if the disclosure would reveal advice or recommendations of an officer or employee of an institution or a consultant retained by an institution.”
This MFIPPA discretionary exception seems much broader than any corresponding Open Meeting exception under Municipal Act section 239(2), as it includes advice not only from the solicitor, but also from other officers or employees or even from consultants.
I would argue that the gap between the two measures should be closed as much as possible as they both serve the same overall policy goals of transparency. Yet it seems quite plausible that the municipality may elect to invoke the section 7 discretionary exemption even under circumstances where it would be improper to discuss the very same matter in a closed meeting. This seems counter-intuitive and it is hard to justify the disparity on policy grounds. It is a well-recognized rule of statutory construction that co-equal levels of legislation be construed in a way that harmonizes them. It should follow that the scope of what can and cannot be disclosed to the public should be consistent under both Acts, and glaring anomalies which produce different results should be avoided.
By harmonizing the rules for exceptions, the two Acts will work in concert with each other thereby avoiding the situations where records are withheld under MFIPPA even though they would not be the proper subject of a closed session if presented directly to council. While this gap could be directly closed through a legislative amendment to section 7(1), it can also be addressed at the local level through a more selective and restrained invocation of the exception in response to MFIPPA requests. After all, MFIPPA 7(1) is a discretionary exception; the city is not required to invoke it. So it remains open to municipal councils to enact policies in this direction. My preference would be for the province to tighten up the language in 7(1), but short of that, municipalities can and should exercise more self-restraint before withholding or redacting records under this seemingly open-ended exception.
The recent example of the London Free Press request for transit policy records (which was denied in part because the city invoked the section 7 discretionary exemption) presents exactly this sort of anomaly which should have been avoided. If these records were presented to council, it would have to be in open session as an agenda attachment since none of the closed meeting exceptions appear to apply. The City Council did the right thing by voting to release the unredacted version of the records. Yet several questions remain:
- First, why were these documents not presented to the Council in the first place?
- Second, why was the 7(1) discretionary exception claimed in response to the request?
- Third, who made the decision to redact the records before releasing them?
- Fourth, and perhaps most significantly, how can London’s MFIPPA process be improved in order to encourage transparency, increase public confidence in the system, and insure that important policy decisions are made by elected Councillors in full public view?
I will address this last issue in more detail in a subsequent post.