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Ford government won’t say how many hours spent fighting to keep mandate letters secret

The Ontario government is refusing to say how many taxpayer-funded hours its lawyers have spent fighting to keep Premier Doug Ford’s mandate letters secret, despite being ordered to release the figure to CBC Toronto by the province’s privacy commissioner. 

In an order last month, an adjudicator with the Information and Privacy Commissioner (IPC) determined that information was not protected by attorney-client privilege as the Ministry of the Attorney General had argued, and told the government to release the total number of hours Crown counsel spent working to keep the letters from the public from July 2018 to July 2021. 

The province instead filed an appeal to Ontario’s Divisional Court on Friday — as it did three years ago when the IPC ordered it to disclose the actual letters.

Mandate letters traditionally lay out the marching orders a premier has for each of his or her ministers after taking office — and have been routinely released by governments across the country.

But since coming to power in 2018 and issuing its first such letters, the Ford government has had Crown lawyers appeal IPC and court decisions ordering their release.

The fight over the letters themselves is headed for the Supreme Court of Canada. 

It now appears the province is starting a similar fight to prevent the public from knowing how many taxpayer-funded hours went into those efforts.

“It’s outrageous,” said James Turk, director of the Centre for Free Expression at Toronto Metropolitan University.

“The public has a right to know what the government’s investment in fighting to keep the public from knowing things is — and they’re fighting that.”

Turk says it’s another example of the Ontario government’s efforts to restrict access to information.

“It’s part of a wholesale principle on their part — principled attack — saying the public just should have less right to know than the legislation provides,” he told CBC Toronto. 

Attorney-client privilege

The Ministry of the Attorney General had argued that the number of hours spent on the case fell under an exemption for attorney-client privilege in Ontario’s Freedom of Information and Protection of Privacy Act. 

IPC adjudicator Valerie Jepson disagreed, ruling they couldn’t reasonably reveal privileged information. 

“A single number disclosing only the total number of hours could not reveal any more about the points in time when relatively more work was undertaken than would be revealed by an awareness of the milestone events themselves,” wrote Jepson in her order.

In its application for a judicial review, the ministry argues the IPC erred in that interpretation and claims CBC Toronto could deduce privileged information, like litigation strategy for the case, from the total number of hours.

A spokesperson for the Ministry of the Attorney General said it would be inappropriate to comment because the matter is before the courts.

The judicial review of the IPC order will be heard in Divisional Court at a later date.

Documents obtained by CBC Toronto concerning its original freedom of information request for the mandate letters make it clear that senior officials inside the Ford government planned to keep them from public view from the outset. 

A man in a home office speaks to the camera.
James Turk, director of the Centre for Free Expression at Toronto Metropolitan University, says the result of the mandate letter appeal will affect the future of access to information in Ontario. (Zoom)

In an email dated July 31, 2018, the then-executive director of policy to the premier, Greg Harrington, wrote, “the intention is to keep them [the letters] to ourselves as long as possible.”

The Supreme Court of Canada agreed to hear the province’s appeal to keep the mandate letters secret in May, but a hearing has yet to be scheduled.

The top court likely won’t hear the appeal until early next year. 

At this point, Turk says the mandate letters case is less about the records themselves, and more about the future of access to information in Ontario and what can be withheld as a cabinet secret going forward. 

“[The province’s] conception of cabinet confidences is like a giant black hole that sucks into it anything that comes anywhere near the cabinet,” he said. 

“If that view holds, it’ll be a bad day for the public in this country, and certainly in the province of Ontario, because it would say you have less right to information then I feel — and I think most people feel — is necessary in a democratic society.”

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