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Editorial: Transparency call at LAO

Ontario should make openness the norm and secrecy the exception.”

Those are the words from the province’s open government engagement team report earlier this year. As Law Times reports on page 5 this week, it seems organizations such as Legal Aid Ontario have some work to do in becoming more transparent.

Since becoming premier, Kathleen Wynne has touted transparency with her bid to make more government information, particularly data, easily available to the public. But according to Osgoode Hall Law School Prof. Sean Rehaag, LAO has been failing in this regard. He resigned from its immigration and refugee law advisory committee recently over concerns about its reluctance to release information that would help his research on immigration and refugee issues. While LAO notes it has responded positively to several of his freedom of information requests, his resignation letter suggests he has had difficulty getting information related to quality of counsel and other matters.

There’s no doubt organizations like LAO have to be sensitive in the information they release given the clients they serve and the sensitivity of communications related to legal matters. But according to Rehaag’s resignation letter, LAO has used s. 90 of the Legal Aid Services Act to justify its refusals. That section essentially precludes the disclosure by virtually anyone associated with LAO of “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” unless authorized by the organization. Further, Rehaag suggests LAO has interpreted s. 13 of the Freedom of Information and Protection of Privacy Act that allows organizations to refuse to disclose advice as meaning it can’t release any information

provided to the board of directors.

Such provisions often exist for good reason, but it seems LAO could do more to follow the spirit of the open government efforts touted by Wynne. In its report, for example, the open government team called for a presumption of openness. “A key principle of open government is the concept of open by default, which means that information and data are presumed to be open to public scrutiny unless there is a compelling reason for them to remain unpublished,” it wrote.

So while LAO may have justification to refuse in specific circumstances, Rehaag’s situation suggests there’s room for it to find ways to make information available whether in full, partial or redacted form. What we probably need is reform to our freedom of information laws to clarify the rules around releasing information and make the presumption of openness a legislated duty.

Glenn Kauth

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