Information Commissioner orders 287 pages released from FOI on abortion Bubble Zone Law

As I told you back in 2018, I appealed the Attorney General's hiding of their alleged "evidence" for the need of an abortion bubble zone. Because there was nothing in the FOI I received that showed a need for the bubble zone:

"One of my other complaints was the glaring omission of any police reports to support the need for a bubble zone in the first place. You know, like actual evidence for the need for a bubble zone?  When I asked the information commissioner about this, I was told:

"with respect to the police reports, I had followed up earlier with the ministry [attorney general] and they advised there were no police reports."

So the abortion bubble zone was enacted purely on the basis of Joyce Arthur's say so, and not on any actual concrete police reports. Political? You bethca. Of course I had already learned that there were no police reports for Ottawa, through an FOI of the Ottawa Police. So not only were there no police reports for Ottawa, but now I learn that there were no police reports for the entire province of Ontario."

Recently I heard back from the Information Commissioner. They agreed with me that a large part of the information that was withheld from me, should not have been withheld:

"The adjudicator also upholds the ministry’s decision to withhold some information under the personal privacy exemption at section 21, but finds that portions of the withheld information are not “personal information” once identifiers are removed, and orders disclosure of that information."

Here are the 287 pages that the Attorney General wouldn't let me see because they said I might be able to figure out who wrote the emails. (The bolded statement above is exactly what I argued and the Information Commissioner agreed with me.)

What these 287 pages actually reveal, is that there were three times as much support against the bubble zone, as there was support for the bubble zone. (55 letters for, vs 154 against).

You can view those letters yourself.

Some interesting comments from these letters:

"If such a law is passed, then pro-abortions should not be able to organize rallies either."

"Our Charter protects our right to show the truth. Freedom of expression is fundamental to democracy. I hope you will publish my point of view as you have published that of the pro-aborts."

"We just keep getting more and more restrictions on the freedom to have a different point of view in our nation."

"Just because you don't have the same views doesn't give you the right to take away someone else's right to express their opinion in a peaceful way."

"Please rethink your opinion regarding above. Unborn cannot protest but are still human."

"I am not associated with either pro-life or pro-choice advocates...I urge you not to pass laws prohibiting abortion protests. Laws exist to deal with criminal forms of harassment, and these should be applied as warranted. The singular fact that a protest offends some people is completely unacceptable as a justification for banning the proponent's freedom of speech. We do not need liberties diminished issue by issue and one by one until we find ourselves unable to protest, express an opinion or offend someone."

Conclusion? We still have no evidence that the abortion bubble zone was needed. 

A small sample of the letters that I was refused access to on my original FOI.

Truth and lies about pro-life people

Dear Canadian media,

I wanted to give you some important truths about the leading pro-choice group in Canada, Abortion Rights Coalition, and it's founder Joyce Arthur. The media quote Arthur all the time, whether it's about bubble zones, the movie Unplanned, crisis pregnancy centres, or any other topic concerning abortion.

But Arthur doesn't exactly speak the truth about pro-life people.

You know the abortion bubble zone Ontario now has? Well it is there because of Joyce Arthur. It is not there because of any pro-life violence at Ontario abortion clinics.

Arthur began this crusade (one of many against us) by writing to mayor Jim Watson providing him with some of her "research" on the supposed need for a bubble zone. Mr. Watson then wrote to the (Liberal) attorney general who gladly enacted a bubble zone law. But Arthur's "research" didn't include any real research. Such as the police report I obtained from the Ottawa police that revealed that there were no charges and no arrests at the Morgentaler facility in Ottawa in a three and a half year period. This information does not support the need for a abortion bubble zone. In fact, when I asked the Ontario Information and Privacy Commissioner about possible police reports on pro-life violence in the entire province of Ontario, I was told:

"with respect to the police reports, I had followed up earlier with the ministry [attorney general] and they advised there were no police reports."

Also missing from Arthur's letter to Watson was abortion doctor Wendy Norman's own 2012 study on Canadian facilities that shows how little harassment is actually happening at abortion sites:

"Facilities reported very little harassment (Table 4). No Canadian facility reported a resignation of an abortion provider–physician or any staff member owing to harassment. Only a single facility reported any resignation of an allied health professional staff member, and in this case the facility specified that the one resignation was not owing to violence, fear, or threats. Similarly, two-thirds of reporting facilities (49 of 74, 66.2%) indicated no episodes of harassment or violence in 2012, with a further 28.4% (21 of 74) reporting solely picketing without interference. Among 7 facilities reporting “other” episodes of harassment, half specified only receipt of harassing e-mail."

Unfortunately, a lot of politicians, and even some average Canadians, believe the misinformation and untruths Joyce Arthur disseminates regarding pro-life people. She spreads a lot of untruths about us.

For some reason that I cannot fathom, politicians listen to her. I think it's because they are afraid of her.

My friend Jonathon Van Maren spoke about this lie that pro-life people are violent, recently in his podcast which is about 20 minutes long. You really should listen to it.

In particular, Jonathon discusses Ms. Arthur's fabrications that violence in Canada is perpetrated by pro-life people. In fact, it has been at least 20 years since any such violence has occurred. And all pro-life organizations and activists strongly condemn any such violence.

The flip side to this is, that there has actually been, and still is, a lot of pro-choice violence against pro-life persons. It is tragically a very common occurrence. You might say, "well I never hear about that". And you would be right. This kind of violence is almost never covered in the mainstream media. Do you ever cover that fact?

Jonathon provides us with some very concrete vicious examples of the violence we endure. In fact, it would make far more sense to have bubble zones around pro-life people, than around abortion clinics.

Joyce Arthur and the Abortion Rights Coalition do not speak the truth about pro-life people. Quote her if you must. But please, what comes out of her mouth isn't necessarily factual or the truth about us, and almost always is a lie.

Thank you.

Sincerely,
Patricia Maloney
p.s please also listen to Jonathon's latest analysis on Joyce Arthur's current obsession regarding the movie Unplanned.

Information and Privacy Commissioner says no health and safety concerns in releasing abortion information

Now this is super interesting. 

This document Comments of the Information and Privacy Commissioner of Ontario on Bill 84 [Bill 84, Medical Assistance in Dying Statute Law Amendment Act, 2017] details the IPC's opinion on excluding the names of medical facilities that provide medical assistance in dying, from freedom of information requests.

In this submission the IPC is saying this MAID exclusion from FIPPA goes too far and that the public should have a right to know in which facilities MAID is being carried out.

So by logical extension, one would conclude that the IPC would hold the view that we also have a right to know in which facilities abortions are being carried out: I think the same arguments apply.

In our Charter Challenge against the Ontario Government for hiding abortion information, the Information and Privacy Commissioner didn't take a position on whether abortion records should or should not be disclosed, but did mention how MAID records were being handled in Bill 84 as a possible way the government could deal with abortion.

In this paragraph the IPC actually states that there was no Health and Safety risk in our case (our case is not specifically identified but the description is obviously our case since it is the only case like it). Yet the health and safety angle was the Ontario Government's main argument:

"Broad exclusions from the Acts, such as the ones proposed in Bill 84, can prevent the public from accessing information that poses no health or safety risk. For example, in 2012, the Ministry denied a freedom of information request for province-wide statistics on the number of claims and amounts billed for abortion services. It did so on the basis of the abortion records exclusion in section 65(5.7) of the Freedom of Information and Protection of Privacy Act, 3 even though disclosure of this information posed no health or safety risk. In fact, the 2 Similar provisions exist in the Municipal Freedom of Information and Protection of Privacy Act. (emphasis added)

3 That decision was upheld by my office in Order PO-3222.
4 Ministry ultimately disclosed this information outside the scope of the statute after the requester commenced a court application."

I've already shot down that health and safety argument:
http://run-with-life.blogspot.ca/2017/02/hiding-abortion-information-was-done.html
http://run-with-life.blogspot.ca/2015/12/why-ontario-government-had-to-hide.html

Now the IPC has just shot down the health and safety argument too. Let's hope Judge Labrosse agrees with us.

Finally as far as MAID goes:

"The Office of the Information and Privacy Commissioner of Ontario (IPC) wishes to focus on a single aspect of Bill 84. The bill proposes to amend the Freedom of Information and Protection of Privacy Act and its municipal counterpart, the Municipal Freedom of Information and Protection of Privacy Act (the Acts), to provide that these statutes do not apply to identifying information relating to medical assistance in dying. “Identifying information” is defined in Bill 84 to include information that identifies persons or facilities that provide services relating to medical assistance in dying and persons receiving such services. The IPC objects to the exclusion of information that identifies facilities providing services related to medical assistance in dying (facilities) from the application of the Acts. The rationale for this objection and the amendments proposed by the IPC are summarized in this submission  (emphasis added)

RATIONALE FOR AMENDMENTS

Excluding information that identifies facilities from the application of the Acts: 

• hinders transparency, accountability and meaningful public debate,
• is inconsistent with the transparency purpose of the Acts, and
• is not based on any evidence of harm.

Inconsistent with the Transparency Purpose of the Act

One of the key purposes of the Acts is to provide the public with a right of access to information under the custody or control of institutions, which include both public and private hospitals and municipally run long-term care homes, in accordance with the principles that information should be available to the public and any exemptions from the right of access must be limited and specific and clearly justified. As a general rule, the IPC closely scrutinizes any legislative changes that reduce the public’s right to know. (emphasis added)

No evidence has been provided, including evidence of harm, that would justify a broad exclusion from the right of access to information that identifies facilities." (emphasis added)

I'm happy to see the Information and Privacy Commissioner making his views public about what's happening with MAID. It's good to see him raising transparency issues, right to know issues, right of access to public and hospital institution information issues, etc.

I hazard to guess that when the Ontario government conducted their first assault on access to information rights regarding abortion, that the Information and Privacy Commissioner didn't even know what the government was doing. Nobody else knew, so how would the Information and Privacy Commissioner know? Was he consulted on the abortion exclusion clause? There is no indication that the commissioner knew anything about the clause's existence. Just like the rest of us.

This time with MAID, the Information and Privacy Commissioner was forewarned because of how the government went about with their secret assault on our rights last time. And this time, the Commissioner is on the offensive. Good for him.

Why the Ontario Government had to hide abortion statistics

"In my view, to deny access to generalized, non-identifying statistics regarding an important public policy issue such as the provision of abortion services would have the effect of hindering citizens' ability to participate meaningfully in the democratic process and undermine the government's accountability to the public." 
                                   Office of the Information and Privacy Commissioner, 2000

I think I've finally figured out why the Ontario government refuses to answer my questions about why they hide abortion information. It is because Kathleen Wynne et al cannot use the reason that not releasing the information is to protect the safety of a person or building. That was the argument the Ministry of Health used in 2000. And the Ontario Information and Privacy Commissioner didn't buy it.

So this time around Kathleen and friends simply changed the law to exclude abortion information completely from the prying eyes of nosy citizens. And while the opposition Conservatives snoozed, the Liberals quietly changed the law.

Pretty ingenious really.

Of course we know the government's real reason was pure politics: they don't like pesky pro-lifers asking them about abortion.

You see, in 2000, the Ontario Ministry of Health tried to withhold information when a (presumably pro-life) group requested abortion billings through a Freedom of Information request. The group asked for:

"the number of therapeutic abortions billed to OHIP in each of the years 1993 to 1997"

The Ministry refused to release the information. It defended its actions on the grounds that pro-lifers are violent:

"The Ministry submits: [B]ased on past and continuing events, there is ample evidence to support a reasonable expectation that disclosure of the requested information could endanger the life or physical safety of various individuals as well as endangering the security of the facilities where abortions are performed, and, in the course of violent demonstrations, the security of public buildings such as the Queen's Park legislative or other government buildings. 

Harassment has been, and remains, a reality in Ontario for those involved in the abortion debate from a Pro Choice perspective [notice the bias here against pro-lifers. Because no, no, no, pro-choicers are never violent]. Since 1991, this harassment of patients, providers, staff and their family members and neighbours by Pro Life activists has, in some instances, escalated into violence...

...The context in which these and other violent events have occurred is one liable to be fed by the slightest provocation. Even data reflecting merely the total number of abortions performed in Ontario on an annual basis, or the total number of providers performing them, is at risk of being manipulated and presented to the public in the most inflammatory way possible. 

The ministry is not suggesting that the appellant may manipulate the data in this way. We are merely pointing to the realistic conclusion that a disclosure to the world@ (see Order M-96 and others), by whatever means, is much more than hypothetical in the circumstances of this Appeal. It cannot be ignored that the appellant is a member of the media, from whom wide public circulation of the requested information can be expected. The eventual recipients of the information would doubtless include many individuals and groups on both sides of the abortion debate, a number of whom may elect to employ acts of harassment, vandalism and/or physical violence against persons with whom they disagree or of whose behaviour they deeply disapprove. This is why disclosure of the particular records in this Appeal, unlike those at issue in Order P-1545, would alter the current situation in a way sufficient to raise the reasonable expectation of the harms in clause 14(1)(e) and (i).  

But the Office of the Information and Privacy Commissioner did not agree with the Ministry's arguments in its decision, and ordered the Ministry to release the abortion information:

"Pursuant to a request under a freedom of information statute, the Supreme Court of Illinois in Family Life League v. Department of Public Aid, 112 Ill. 2d 449 (1986) ordered disclosure of (among other information) the numbers of abortions performed by providers, rejecting arguments that disclosure would lead to threats and harassment. 

Like the B.C. and Ontario cases, the U.S. authorities suggest that generalized statistical data regarding abortion services should be accessible under freedom of information legislation. The information at issue in this appeal consists of general statistical information on a province-wide basis. This information cannot be linked to any individual facility or person involved in the provision of abortion services. I do not accept that the sequence of events, from disclosure to the harms outlined in sections 14(1)(e) and (i), could reasonably be expected to occur. While I accept the Ministry's submission, supported by ample evidence, that individuals and groups on both sides of the abortion debate have been subjected to threats, intimidation, and acts of violence, in my view, any link between disclosure and the harms in these sections is exaggerated. The evidence before me does not establish a reasonable expectation of endangerment to the life or physical safety of any person, or to the security of a building, vehicle or system or procedure established for the protection of items within the meaning of sections 14(1)(e) and (i) of the Act. 

This finding is in keeping with a fundamental purpose of the Act, as recognized by the Supreme Court of Canada: 

"The overarching purpose of access to information legislation, then, is to facilitate democracy. It does so in two related ways. It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry . . Rights to state-held information are designed to improve the workings of government; to make it more effective, responsive and accountable . . . [Dagg v. Canada (Minister of Finance) (1997), 148 D.L.R. (4th) 385 at 403, per La Forest J. (dissenting on other rounds)]. "

In my view, to deny access to generalized, non-identifying statistics regarding an important public policy issue such as the provision of abortion services would have the effect of hindering citizens' ability to participate meaningfully in the democratic process and undermine the government's accountability to the public." (Emphasis added)

As we know from my own attempts to get abortion information, we have never been given a reason why Ontario government changed the law. Of course they could never say it is because of violence, because the IPC already ruled against that argument in 2000.

The government could never use that argument again, because clearly they would be overruled.

Violation of freedom of expression rights

Our case in a nutshell

It's that the government, and the Information and Privacy Commissioner of Ontario (IPC), have misinterpreted FIPPA.

Our position is that section 65(5.7) of FIPPA cannot mean a ban on all materials related to the provision of abortion services, but must mean a ban on materials related to the provision of abortion services which contain personal information.

Remember that FIPPA has two goals: to make government documents public, and to protect personal privacy.

The amount of abortions and the cost of those abortions, is not personal information, and so keeping those private, do not match up with the goals of FIPPA.

Section 65(5.7) must then mean, and must have been intended, to cover only materials related to the provision of abortion services which contain personal information. This position supports a constitutional interpretation of FIPPA. Section 2(b) of the Charter protects your right to freedom of expression and freedom of the press.

As a blogger, I benefit from freedom of the press.

In order for me to use my freedom of expression, and comment on issues of public importance, such as abortion and the use of taxpayer dollars, I need access to these documents.

The government and the IPC’s interpretation of section 65(5.7) results in a violation of my freedom of expression. It cannot therefore be a proper interpretation.