Any time someone seeks government-held records through Ontario’s information-disclosure system, there’s a chance it triggers an internal tripwire, deeming it “contentious.”
Who makes the call is typically a civil servant specializing in gathering, vetting, and handing over government documents to members of the public. Once a freedom-of-information (FOI) request is flagged as contentious, it — and the records it could yield — become subject to stricter monitoring, which the premier’s and cabinet offices keep looped in on.
Sometimes, “contentious issues management processes can delay the timely release of information,” said the office that handles disputes between records seekers and the government. It has found that this is the case “especially when requests are politically sensitive or high-profile.”
The Information and Privacy Commissioner’s office says the government “must not interfere with the legal requirements for timely responses under the Freedom of Information and Protection of Privacy Act.” However, the contentious issues management process for FOIs isn’t in and of itself “inconsistent” with the law.
Successive provincial governments — including, currently, Premier Doug Ford’s — have assigned FOI requests deemed contentious to a special, more closely watched process than those not given the label.
The Information and Privacy Commissioner’s office has confronted it again and again since the late-1990s, a few years after Ontario’s FOI system was created.
Ford’s office didn’t respond before this story’s publication to questions about the contentious FOI practice — including how, and why, contentious FOIs are processed.
Nevertheless, government records from six different provincial ministries offer a picture of how it currently works. They also suggest the process is standard across the government.
Altogether, provincial government entities — including its ministries, agencies, boards, and more — receive tens of thousands of FOI requests each year. They can be for any range of things, such as records a ministry keeps on an individual, which they’d like to possess, to highly sensitive policy plans. FOIs can be a key resource for journalists, lawyers, academics, opposition party researchers, and more.
Public servants whose jobs include processing FOI requests are responsible for determining whether one is contentious, according to records from multiple ministries.
A document the Ministry of Citizenship and Multiculturalism produced in 2022 says “access requests require (contentious) issues management when they have the potential for: controversy, conflict, (or) emotional human interest … media interest … criticism from stakeholders … negative public impact … health (and) safety risks … (or) questions in the house.”
A document produced by the Ministry of Municipal Affairs and Housing this summer notes, as well, that contentious requests may include those from “media, MPP(s), (or the) opposition.”
Documents produced from two different ministries within the last couple of years also each say that requests should be considered contentious if they’re made by “a person or organization likely to publicly comment or disseminate the information.”
Once a public servant identifies an FOI request as contentious, they’re to prompt a series of alerts to the deputy minister’s office, their ministry’s communications branch, legal services branch and minister’s office, and cabinet office, according to records from multiple ministries.
From when an FOI request is received and deemed contentious to when records are disclosed, ministries will provide regular updates to the cabinet office. Ministries’ documents outlining how they’re handled suggest the frequency of these cabinet office updates varies between ministries, but is roughly once a week.
The standard timeline for processing an FOI request under the Freedom of Information and Protection of Privacy Act is 30 days.
According to a guideline document produced by the Ministry of Citizenship and Multiculturalism in 2022, cabinet office officials brief premier’s office staff on contentious requests weekly, as well.
Ministries will also give cabinet office a heads-up when records compelled by a contentious FOI request are about to be disclosed.
