Ontario Universities are going to be exempted from proposed transparency legislation requiring meetings of publicly funded bodies be open to the public. Liberal MPP Caroline Di Cocco will introduce amendments to her own private member's bill (Bill 123) that drops universities and other select public bodies from the scope of the Transparency in Public Matters Act. Bill 123 is the most recent incarnation of transparency legislation proposed by Di Cocco since 2001. When meetings of deliberation or decision-making occur, the Act requires they be open to the public and minutes be made available to the public. The Information and Privacy Commission's initial support of Bill 123 specifically noted the scope of bodies subject to the Act was too narrow. Proposing amendments to reduce the scope further is a stunning reversal for Di Cocco. It appears the lobbying efforts of Ontario universities seeking exemption have been effective. It is not without irony that we ask "Did something happen behind closed doors here?"

Since his election in 2003 McGuinty's Liberal government has committed to "transparency and accountability" in the way Ontario is administered. To his credit McGuinty has moved a little towards that goal. He created a Democratic Renewal Secretariat. He has introduced amendments to legislation granting the Auditor-General expanded powers to conduct value for money audits of institutions in the public sector and amendments to the Freedom of Information and Protection of Privacy Act (FOIPPA) to include universities. In spite of McGuinty losing credibility by breaking a number of promises, his government's talk of transparency and accountability is good, even if the action lags well behind, or meets obstacles along the way, and legislation has yet to be enacted.

Certainly talk of transparency and accountability is in harmony with the recommendations of Anne Cavoukian, the Ontario Information and Privacy Commission (IPC), who recommends Ontario to develop a "culture of openness". Shortly after Di Cocco introduced Bill 123 in October 2004 the IPC praised Bill 123. The IPC publication I'm Sorry, this Meeting is Closed to the Public: Why We Need Comprehensive Open Meetings Legislation in Canada said;

Although private members' bills are rarely enacted into the law, Bill 123 appears to be headed in a different direction. A number of senior cabinet ministers have apparently expressed support for the bill, and it also appears to enjoy the support of opposition politicians in Ontario, with one or two dissenters. It also offers an excellent model for other jurisdictions in Canada that may be contemplating the integration of open meetings legislation into their democratic renewal programs.

The IPC supported the legislation but raised two important criticisms. The Act needed wording to avoid "last minute" agenda items from being added, and the scope of bodies subject to the Act was too narrow;

Although Bill 123 is an excellent open meetings bill with clear rules and enforcement mechanisms, it can be improved in at least two ways. First, the bill does not contain a rule that would prevent public bodies from slipping last-minute items onto an agenda without notifying the public. Hawaii’s Sunshine Law stipulates that after an agenda has been filed, a board may not add an item if it is of “reasonably major importance” and action on this item by the board would affect a significant number of persons. Bill 123 should be amended to include a similar rule that would prohibit a public body, with limited exceptions, from considering business not included on a published agenda.

Second, the list of designated public bodies and types of designated public bodies that are included in the schedule to the bill is too narrow. The scope of the bill should be expanded to include other public bodies that meet as a group for deliberation and decision-making, except for adjudicative bodies, such as the courts and administrative tribunals. In Ontario, there are dozens of provincial agencies, boards and commissions that operate with public funds that have not been listed in the schedule to the bill. These public bodies deliberate and make decisions that affect citizens on a host of different issues, including the environment, the state of heritage buildings, economic development, and transportation. The governing boards of these public bodies should be subject to all of the open meetings rules in Bill 123.

Di Cocco's office says she will be introducing an amendment to address the first issue. However, Di Cocco will also introduce amendments that completely contradict the IPC's second recommendation. Di Cocco's second amendments will narrow the scope of the Act and will remove universities entirely.

Given the political climate, pressures and commitments aimed at transparency and accountability with use of public (taxpayer) money, the urging of access to information officers and commissioners, and broad support from all sides of the House, Bill 123 has real possibilities of passing. Why would Liberal MPP Di Cocco then seek to water down its scope and exclude, among other bodies, universities?

We understood that Di Cocco was being lobbied by the Ontario universities seeking exemption from the Transparency in Public Matters Act. It appears that Di Cocco has bowed to that pressure, without actually explaining to the public what her logic and decision making processes were. The explanation offered by Di Cocco in response to an e-mail inquiry is "I am trying to simplify the bodies included in this attempt to have the bill passed. The previous schedule was too large in scope and would be too difficult at the beginning to monitor."

According to the Hansard of the Standing Committee on Regulations and Private Bills, September 29, 2005, Di Cocco commented on her amendments excluding universities;

The issue of universities: I know that they're going to be governed also under FOI. But to begin the process, I felt that I should simplify it so that it isn't so overarching that the privacy commissioner and the work that she would have to do doesn't become overwhelming. It's a start, and that's why I made the decision that I should make it simpler rather than broader right now.

Taken at face value Di Cocco's motivation in removing universities is her overwhelming concern for the burden placed upon the IPC commissioner. We find this explanation sadly lacking and condescending to the taxpayer. It should be the commissioner who determines if the IPC is overwhelmed and needs more resources to assure transparency and public accountability, not the day's politicians.

In June 2001, when Di Cocco in first introduced what is now Bill 123, universities were not included. By June 2004, three revisions later, Di Cocco specified universities as a type of designated public body for the purposes of the Act;

The board of directors, governors, trustees or other governing body or authority of a university in Ontario and any affiliated or federated college of a university that receives operating grants from the Government of Ontario.

Given the bill's long history and the inclusion of universities in the immediately previous revision and the current incarnation, Di Cocco developed record of seeking transparency and accountability. One is hard pressed to understand what pressures were brought to bear to cause Di Cocco to move backwards with amendments aimed at reducing the scope of public bodies to which the Act would apply, an Act which Di Cocco has been championing since 2001.

If, for some reason, Di Cocco has adopted the untenable view that universities are not public bodies, as some have taken the recent ruling of judge Hoy to imply, it must be remembered that the Hoy ruling is under appeal.

Universities receive more that $2 billion annually from the provincial government alone. The province has announced it will be putting even more of taxpayers' money into universities immediately.

The continuing lobbying efforts to exempt Ontario universities from various forms of transparency legislation is in itself suspect. Indeed those efforts provide additional justification to assure transparency legislation is applied to universities in particular.

We at OurTrent believe that Bill 123 must continue to include universities. We can find no logical reason to exclude them.