An Osgoode Hall Law School professor has resigned as a member of Legal Aid Ontario’s immigration and refugee advisory committee after citing “a culture of secrecy” at the organization.
In a July 3 letter to LAO board chairman John McCamus, Prof. Sean Rehaag said he could no longer serve on the committee in good conscience as he had “lost confidence in LAO management.”
“In my view, LAO has a serious problem with regard to transparency,” he said in his letter. In it, he detailed some of his failed attempts to obtain information from LAO for his own research projects. The shroud of secrecy at LAO is unlike any other he has seen, he wrote.
“I have undertaken research related to immigration and refugee issues that involve many institutions. Some, including [Citizenship and Immigration Canada] and [the Canadian Border Services Agency], have national security reasons to be especially careful about disclosing information. Others, like the Federal Court and the Immigration and Refugee Board, might reasonably be concerned about the reputational consequences of some of my research,” Rehaag said in his letter.
“Never, however, have I come across an institution that is as reluctant as LAO to provide access to information to researchers or to the public.”
Rehaag says he can’t discuss his research project with Law Times as it won’t be ready until the fall. In his letter, however, he noted his research centred on assessing LAO’s refugee law programs and he had sought “basic information about LAO’s policies and practices, and particularly, about measures related to quality control.”
After some of his informal requests for information were at first “simply ignored” and later went through months of delays, Rehaag’s letter said he pursued a freedom of information request to benefit from legislative timelines.
He said LAO denied “several” of his requests based on “a convoluted interpretation” of s. 90 of the Legal Aid Services Act.
But LAO says it has only rejected two of Rehaag’s 12 freedom of information requests for legal reasons. In three other cases, LAO says it simply didn’t have the data or records Rehaag had been seeking. Only LAO’s full response to all of Rehaag’s requests will give the full picture of the situation, says LAO spokeswoman Genevieve Oger. “We conducted pretty extensive searches, and they were very time-consuming searches, to provide him with a lot of data,” says Oger.
“So from legal aid’s perspective, that’s not a culture of secrecy; it’s a culture of openness.”
Rehaag tells Law Times that in one of his requests, he asked for “copies of all records provided to the LAO board of directors relating to quality of counsel concerns from 1998 to present.” It denied his request, he says, on the basis that advice given to government by a public servant is exempt from Freedom of Information and Protection of Privacy Act requests and that records dealing with quality of counsel would fall within that provision.
It also deemed the information as confidential under s. 90 of the Legal Aid Services Act, according to Rehaag. The section says a board member or an employee of a legal aid service provider “shall not disclose or permit to be disclosed any information or material furnished to or received by him or her in the course of his or her duties or in the provision of legal aid services.”
LAO is interpreting this section to mean virtually every document is confidential unless chief executive officer Bob Ward wants it disclosed, Rehaag said in his letter. He also said LAO prevents any information provided to the board from release through a freedom of information request.
Oger says such information is rightfully confidential.
“Information given to our board of directors is not public information,” she says. “The Legal Aid Services Act explicitly refers to board members as being within the confidentiality requirements.”
Adds Oger: “No matter what, Legal Aid Ontario has to follow the law.”
Of LAO’s approach to his requests, Rehaag said: “I find this interpretation ridiculous, but even if the interpretation is correct, every time the Bob Ward Exemption is deployed, I wonder to myself: ‘Why doesn’t Bob Ward want me to see the documents I asked for?’” Rehaag wrote.
“Even if these exceptions validly apply (which I doubt), such exceptions merely allow LAO to refuse to provide information; they do not prevent LAO from providing information,” he added.
Oger says Rehaag was “personalizing the issue unnecessarily” by singling out Ward.
In one request for information, Rehaag noted he had asked LAO about two high-volume refugee lawyers currently undergoing disciplinary proceedings at the Law Society of Upper Canada. Among other questions, he wanted to know when they joined LAO’s immigration and refugee law panel, how many cases they had handled, and how much they had earned. LAO said disclosure of that information would lead to an unjustified invasion into the lawyers’ personal privacy, the professor wrote in his letter.
“It’s nice to know that LAO is looking out for these lawyers. I just wish LAO was doing more to look out for their clients,” he wrote.
For its part, LAO says it provided its statistics on lawyers who are facing disciplinary actions but couldn’t give specific names as that information is “personal information protected by FIPPA.”
In his letter to McCamus, Rehaag said: “At the end of the day, however, my concern is not with LAO’s response to these individual requests. Rather, my concern is the culture of secrecy at LAO. This culture leads LAO staff to spend time coming up with creative — if sometimes implausible — arguments to justify refusing to provide information. . . .”
Criminal Lawyers’ Association president Anthony Moustacalis says LAO needs better guidelines from the government on how to respond to some of these issues.
“I understand legal aid’s response is a plausible one given the need to protect privileged information,” he says.
But he adds: “The government doesn’t make it clear how to deal with broader policy questions at legal aid.”
For more, see "Transparency call at LAO."