OurTrent :: COU Lobbied For Exclusion From Transparency Act says Queen's Principal

COU Lobbied For Exclusion From Transparency Act says Queen's Principal

December 8, 2005

Queen's Ontario Universities escape transparency legislation. principal Dr. Karen Hitchcock has confirmed the Council of Ontario Universities lobbied to exempt universities from transparency legislation. The Transparency in Public Matters Act (Bill 123) would impose a regime of openness and accountability upon the decision making processes (including meetings) of publicly funded bodies, such as our Ontario universities. Hitchcock justified universities evading transparency measures with unimpressive and misleading reasoning. Queen's AMS President Ethan Rabidoux remarked "universities who say they are against the bill because they are trying to protect student information are simply using student privacy concerns as an excuse." Hitchcock offered other comments remarkably similar to that of Trent president Bonnie Patterson. We are left with the same old questions: Why are university administrators so resistant to creating a culture of openness? Why do they consistently fight measures which would require them to operate transparently?

A review of the changes to Bill 123 clearly shows that, among other things, universities have been removed from the scope of the Act. Reducing the scope of bodies subject to the Act is in direct opposition to the recommendations of the Information and Privacy Commission (IPC) which has said the scope was too narrow. Why, just this September, did MPP Caroline DiCocco bow to the pressure of the COU to propose amendments restricting the scope of her own private members bill which she has been proposing for five years? That raises a whole other set of questions. But back to the point.

Hitchcock's confirmation of COU's backroom lobbying efforts to exempt universities from transparency legislation was reported in the Queen's Journal. Besides inadvertently exposing COU's clamour for secrecy Hitchcock raised the specter that compliance would "create enormous administrative burden and costs to the otherwise smooth operation of our University and remove decision-making from academic senates, our Board and management."

So let's get this straight, if Queen's were to comply with the proposed Transparency in Pubic Matters Act the impact upon administrators and budget would be as severe as to remove decision making from the decision making bodies! What utter nonsense. Surely no reasonable person can be persuaded that compliance with transparency legislation would break the back of universities like Queen's and render it unable to make decisions.

Universities are to become largely subject to the provincial Freedom of Information and Protection of Privacy Act and must be in compliance around June 2006. The COU has consistently claimed FOI legislation need not apply to universities because COU's own guidelines render all universities compliant in spirit with FOI legislation. Unfortunately universities have demonstrated they are not at all compliant. Besides the absence of compliance, the policies themselves are unenforceable and without external appeal mechanisms.

But, universities have put in place the necessary bureaucratic structures - notwithstanding those structures have traditionally been used to prevent the release of any information. Queen's, like other Ontario universities, has in place a bureaucratic structure, replete with policies and fee schedules, consistent with their interpretation of COU's freedom of information guidelines.

Thus it should be a simple matter for universities to fine-tune existing structures to meet the needs of institutional compliance with FOI without need for additional staff or budget (and we believe that to be true for compliance with Bill 123). However, we already see university administrators posturing to their boards and in the press that compliance with FOI imposes undue burdens, both financial and in administration time.

Universities cannot have it both ways. They cannot claim on one hand to have been voluntarily compliant with the sprit of FOI legislation and on the other hand claim compliance this June imposes new burdens. To do so would mean either that the COU and the university administrators it lobbies for, have been lying to the public about past compliance and what the purpose of the bureaucratic structures they funded actually was. Either they were compliant or they were not.

No government, politician, taxpayer, student, faculty or funding body should be naive enough to accept the pronouncements of university administrators that additional funding is needed to meet the requirements of the Freedom of Information and Protection of Privacy Act.

University administrators need only refocus existing FOI structures to embrace a "presumption of disclosure when making access decisions" rather than continue to use such structures (and budgets) to prevent the disclosure of information.

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Exemption sought from information act
Universities want out of Freedom of Information bill
Queen's University Journal - December 1, 2005
By Florence Li, Staff Writer

A proposed amendment to a provincial government bill may mean students could be refused access to information from University meetings where decisions and deliberations are made. Administrators, however, say new legislation won't reduce the transparency of Queen's existing freedom of information policies.

MPP Caroline Di Cocco is proposing an amendment to Bill 123, the Transparency in Public Matters Act, 2005. According to the Legislative Assembly of Ontario website, Bill 123, as it stood in 2004, is "an act to require that meetings of provincial and municipal boards, commissions and other public bodies be open to the public."

While the bill itself has not yet been passed, it would ensure meeting minutes are open to the public. The amendment will exempt universities from the list of public bodies that will be required to provide the public with meeting minutes.

The Information and Privacy Commission (IPC) produced a publication in 2004 in support of Bill 123, saying it promotes transparent governance.

"The IPC's position is that we need this bill to get started on this issue," said Bob Spence, officer of communications at the IPC.

The IPC publication criticizes the bill for having too narrow a scope. It says, "the scope of the bill should be expanded to include other public bodies that meet as a group for deliberation and decision making."

In spite of the IPC's recommendation, Di Cocco has said that the bill's current scope is too wide and too difficult to monitor. Therefore, she said, the exemption of universities will better allow the commissioner to uphold the bill's requirements.

Diane Kelly, legal counsel and acting information and privacy officer at the University, said her understanding is that universities will be excluded in the next "go around."

"I gather [Di Cocco] had second thoughts about including universities," she said. "She may feel that universities have their own processes which allow for transparency."

Kelly told the Journal that at Queen's, students have always had access to information.

"Bill 123 has to do with open meetings [minutes], but doesn't relate to the access of information," she said.

Kelly explained that the University has a freedom of information policy patterned on the Freedom of Information Act. This policy was passed in 1994, though it has since been amended.

"[The policy] is online, and not just students but members of the public can access this information," she said. "The way our campus works is if people want access to information, we'll give it to them.

"If people have questions about it, then it comes to me and it becomes a formal request. Then I search down the records and I comply with the request."

In an e-mail to the Journal, Principal Karen Hitchcock said she doesn't think the legislation will affect students negatively.

"This legislation isn't needed to require Queen's to hold open meetings," she said. "All meetings, with the exception of a few in-camera meetings, are open and of course students sit on most committees."

Hitchcock said that along with the Council of Ontario Universities, Queen's lobbied for the exemption from Bill 123.

In a letter addressed to Di Cocco in June 2005, Hitchcock wrote, "The requirements of the proposed legislation, under Bill 123, would undermine the contributions of our valuable volunteers who give freely of their talent and time to serve in the best interests of the University."

Hitchcock added that governing the contents of meeting minutes would have serious implications for the University because universities would have to comply with the legislation of the IPC.

"I must also tell you that these detailed obligations would create enormous administrative burden and costs to the otherwise smooth operation of our University and remove decision-making from academic senates, our Board and management," she said in the letter.

In her e-mail to the Journal, she said the exemption from Bill 123 would not change Queen's current freedom of information procedures.

AMS President Ethan Rabidoux said he doesn't understand why there is a double standard for universities and all other public bodies that will be required to follow this law.

"[Di Cocco] probably just needed a reason for doing it," he said. "The universities put the pressure on the government.

"It seems to me that the reason is quite simply that that's the way it's been for them," he said. "It's comfortable, and they don't want to give it up."

He said that universities who say they are against the bill because they are trying to protect student information are simply using student privacy concerns as an excuse.

"[Universities] say that student information at the Registrar's Office would be public knowledge, but that's not accurate," he said. "It doesn't have to be like that."

Rabidoux said the University of Alberta is an example of an institution that is subject to freedom of information laws, but also has privacy laws to make sure certain student information can't be obtained.

He said exempting universities from Bill 123 will make it more difficult to obtain "confidential" items.

"It gives universities greater ability to be not transparent," he said. "In general, it gives universities undue protection from basic standards of accountability that everyone else is subject to."

Rabidoux said AMS Assembly hasn't yet taken a position on this issue.

"Speaking as president, I believe the University should be subject to freedom of information laws," he said. "It's a matter of accountability and it doesn't seem to be any reasonable excuse or reason for universities having the double standard. Until I see one, that is the position we will take."

Spence explained the bill is going to go through a clause-by-clause review by a legislative committee that will have representatives from all three parties, with the governing party holding a majority. He said that even when a bill is passed, it goes through many changes over the years.

"Our view is that we want this in place because there is nothing in the legislation now covering [transparency in public matters]," Spence said. "[Di Cocco] is trying to get a bill through to cover a specific number of organizations."

He said while the bill may not initially include universities, it may change once it has been passed to eventually cover a wider scope.

"Once it's in place and issues have been worked out, governments can make amendments to add other [public bodies]," he said.

Spence mentioned that a bill to include universities under the Freedom of Information and Privacy Protections Act (FOIPPA) has just been passed and will likely be in place at universities by June.

"Right now, the Freedom of Information Act covers high schools, elementary schools and community colleges," he said. "We've been pushing to have universities and hospitals under the act."

Spence said that once universities fall under the Freedom of Information Act, anyone can make access requests. He added there are a few exemptions, including requests for personal information.

Kelly said the exclusion of universities from Bill 123 is unlikely to affect Queen's because of the freedom of information policy that has already been in place for 10 years.

However, the inclusion of universities under the FOIPPA will mean that students will be offered protection of privacy as well as access to records, she said.

—With files from ipc.on.ca and ontla.on.ca

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Filed under: Freedom of Information and Governance by Editor.