In his 2010-2011 Annual Report, Ontario Ombudsman André Marin called on the government of Ontario to embrace the worldwide trend toward open government, noting that many of his investigations of government organizations revealed a lack of transparency and accountability to Ontarians.
“Ontario has an opportunity to be a leader here,” Mr. Marin says in the first annual report of his second five-year term as Ombudsman. “When government decision-making remains closed, those it serves are left frustrated and anxious.”
Facts and Highlights
Cases received by riding
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Ombudsman’s Message: The Future of Government is Open
In his greeting to the Office of the Ombudsman of Ontario on our 35th anniversary this past year, Premier Dalton McGuinty spoke of our “vital role … in ensuring that the Ontario government works in the best interests of our citizens.” This Office has been performing that function since 1975. It is a role that I personally have had the privilege of fulfilling for a full five-year term. This Annual Report is the first of my second term as Ontario’s Ombudsman. Both our 35th anniversary and my reappointment provide welcome opportunities to use this space to praise what this Office has achieved over the years – however, it is far more productive to look to the future.
As anyone familiar with this Office knows, we pursue our “vital role” of ensuring that government works in the best interests of its citizens by helping people navigate bureaucracy, by brokering settlements, and by exposing the kind of technocratic thinking that sometimes impedes access to public services. We ensure good governance by investigating complaints and making public reports and recommendations.
Yet there is something more that we can do. We can help ensure that government works in the best interests of its citizens by offering a vision for the future. This Office is uniquely placed to do so. We can identify smart changes by tapping into our considerable experience. That experience borrows from our unique perspective, gained by working daily not with the successes of government, but with its failures.
“I want to challenge the government and its administrators to embrace openness and transparency not just as generic policy, but as their creed and their greatest contribution.”
The vision for the future that I want to offer here is one of openness and transparency. “Openness,” of course, is about access to information. It describes the practice of ensuring that the citizens served by government have the means to know what their government is doing. “Transparency,” in turn, is about access to the reasons for decisions. A transparent decision can be seen for what it is. It is not spun or buried behind ingenuous explanation. It is one whose motives, influences and reasoning are shared. I have no doubt that the government of Ontario and its administrators aspire to be open and transparent. The vision I offer is a way of achieving those objectives. I want to challenge the government and its administrators to embrace openness and transparency not just as generic policy, but as their creed and their greatest contribution.
Openness and transparency are the keys to the kind of government that, in the Premier’s words, it is the Ombudsman’s “vital role” to pursue. We in Ontario are, of course, blessed with responsible government, run and administered with integrity by democrats. Still, the pages of this Annual Report are salted with illustrations of our government failing to work in the best interests of its citizens, and where it has failed, it is often because the imperatives of openness and transparency were forgotten. Let me offer just a few examples.
Perhaps the most egregious is also the most notorious – found in our December 2010 report, Caught in the Act. When the Toronto Chief of Police wanted exceptional police powers to ensure security for the G20 summit in June 2010, a secret regulation was passed in a closed cabinet session under the authority of an antiquated statute. This regulation granted the police exceptional powers. The normal right of citizens to be left alone by the police was replaced by powers of search and seizure if citizens approached a designated security zone. If they approached that zone, their freedom of movement was replaced by police powers of detention. The decision to give the police this remarkable authority was not exposed to public debate before it was taken. It was a decision made in the shadows. Even after the regulation was passed, the Ministry decided not to publicize it. Instead, it was “announced” unceremoniously by reproducing the regulation, without comment or explanation, on the government’s e-Laws website a few days before the summit. Police, emboldened by their newfound authority, searched, detained and arrested thousands of citizens. Some of those citizens were doing no more than exercising their constitutionally protected right to protest; others just happened to be in the wrong place at the wrong time. These secret powers operated as a trap for those who thought they knew their rights and insisted on them – not knowing those rights had been secretly suspended.
Across the province, 14 Local Health Integration Networks (LHINs) have been established with the aim of increasing community involvement in decisions involving health services, so that diverse community needs across the province can be met. Citizen participation is the raison d’être of this plan. Yet our report into the handling of hospital restructuring plans by the Hamilton Niagara Haldimand Brant LHIN, The LHIN Spin, revealed a failure to communicate. The highly-touted “community engagement” mandate was undefined – so much so that one board member thought speaking with acquaintances privately on the golf course or in line at the grocery store constituted public consultation. No minimum standards for consultation and publicity had been established. Worse, the LHIN held secret meetings, under a bylaw that it and all other LHINs adopted, flying in the face of the promise of public involvement.
A similar case where the promise of openness was shamefully unfulfilled was revealed in my investigation into the province’s monitoring of long-term care homes, which house more than 75,000 Ontarians. As I noted in the findings I released in December, although a great deal of information about long-term care inspections was posted publicly online – paying lip service to transparency – it proved to be grossly outdated, incomplete and at times inaccurate. There was an appalling lack of communication about the Ministry’s complaint investigation process, and the homes themselves complained that the compliance standards were so complex as to be a disservice – equating minor issues with those directly affecting residents’ quality of life.
These examples are not unique. This report also describes our ongoing involvement with the province’s Special Investigations Unit (SIU), which investigates cases where citizens have been killed or “seriously injured” during encounters with police. Among the litany of problems revealed in our 2008 report on the SIU was the ongoing failure of the Ministry to provide details to the public about investigations that have not led to charges. The Director’s reports are suppressed. Disturbingly, three years after the release of that report, Oversight Unseen, this chronic failure of openness and transparency continues.
We also describe in this report how a number of municipalities have breached their open-meeting obligations. Some municipal councils remain oblivious to the legal requirements for open meetings, while others calculate ways, often illegitimately, to close the doors to the public. While most local governments respect the Municipal Act requirements – and the public complaints system established in 2008 – some continue to flout it.
A number of the individual cases reported here are also about government bodies closing themselves off to citizens. They involve coverups or suppression of information relating to the use of force by jail guards, inscrutable hydro bills,
shoddy record-keeping – all things that frustrate openness and transparency.
Certainly, these kinds of problems are not new to the past year. Since 2005, our reports have frequently uncovered problems made grave by a lack of openness and transparency. To take only a few of the more notorious examples: We uncovered that the Ontario Lottery and Gaming Corporation was willfully blind to insider wins, suppressing its suspicions – and with them, any hope that theft would see the light of day. We exposed the habit of the Municipal Property Assessment Corporation of treating its methods as trade secrets, all the while using them to determine the assessments affecting people’s property taxes. And we found the Ministry of Health and Long-Term Care had been less than forthcoming about the reasons for its arbitrary cap on funding the cancer drug Avastin.
The failure to achieve openness and transparency is not a problem unique to Ontario. Most democratic governments fall short of their promise to be open and transparent. U.S. President Barack Obama, for example, owed much of his electoral success to his transparency initiatives – yet many of those programs are now threatened by budget pressures. Five years after the Canadian federal government was elected on a platform of accountability, critics charge it has become less transparent, not more. Openness and transparency make an eloquent campaign slogan, but can easily, in practice, become empty buzzwords. Yet in the Middle East, as I write this report, citizens are prepared to die in a struggle to overcome despotic governments. What is it that they are demanding? Open and transparent government. The reasons are legion, and stirring.
Philosophers, jurists and politicians have long recognized that incompetence, mismanagement, and even corruption thrive in the dark but cannot bear the sanitizing light of day. Openness therefore advances moral, conscionable, and ethical government. It also promotes honesty and enables the rule of law to apply. Since the embrace of openness by the Ontario Lottery and Gaming Corporation about suspicious insider wins in the years after our investigation, theft is being exposed. The rightful winners of prizes from years ago are getting their due. This did not happen when the system was closed.
Openness also improves the quality of decision-making and enhances effective government. It exposes those who are indolent and those with poor judgment, and reveals errors so they can be repaired. Would the secret G20 regulation have passed had its merits been debated publicly? More likely, the sting of public outcry would have given the government pause. And had it chosen to pass the law openly in spite of this, the citizens of Ontario would have had the opportunity to challenge it under the Charter of Rights and Freedoms. Certainly, the Toronto Police Service would not have been operating under its Chief’s mistaken belief that the law empowered officers to detain and search anyone within five metres of the security fence. His error would have been shown for what it was.
Openness also strengthens democracy. It arms citizens with the information required to participate in government. Participation, in turn, improves the quality of decision-making by enabling a cross-section of knowledge, ideas, values and perspectives to enrich decisions and put their wisdom to the test. This, after all, was the whole idea behind the LHINs. Instead, the failure to define and enforce this idea left hundreds of citizens in Hamilton and Niagara believing that the restructuring process was decidedly undemocratic.
The natural inference when decision-making remains closed is that there is, at worst, a coverup, or at best, disinterest or ineffectiveness. This serves neither the government nor its citizens. The government is tarnished and those it serves are left frustrated and anxious. When decisions are made openly and transparently, their reason can be seen – and if the decisions are wise, or even defensible, the public is reassured and the outcomes are more apt to be trusted, as are those who make the decisions. Bury the process and public trust suffocates.
The government of Ontario, has, of course, pursued a vision of openness and transparency. Like other Canadian governments, this vision is unduly reliant on Access to Information and Freedom of Information legislation. Such legislation constitutes a marked improvement over earlier closed-government practices, and has become commonplace internationally, including in countries that can make little or no claim to democracy. The problem is that it provides what I would call “pigeonhole openness,” in which governments are open only if they cannot find a locked pigeonhole exception into which to force the request. This kind of legislation invites litigation. Ultimately, it is only as effective as the resources committed to it, and the readiness of governments to respond in a timely and sincere way to the requests that are made. Governments have been known to engage in strategic delay of requests in controversial matters, and even to create new documents before responding. When today’s citizens demand openness, they mean much more than a successful freedom of information request.
When Ontario does pursue openness and transparency, it tends to embrace a “follow the money” vision of accountability. To cite just a few examples, expansion of the Auditor General’s role to hospitals and other broader public sector organizations, pro-active disclosure requirements for expenses and the “Sunshine List” are all about dollars and cents. This is important, of course, but openness and transparency are also about good sense. Good policy and fair and effective delivery of services are as necessary to value for money as good financial accounting, and they are even more central to quality government. Being open and transparent is about more than where the money goes. It should also be about how decisions are made.
“Without proper oversight - including effective investigative powers - openness, transparency, accountability and the opportunities for citizen participation are all compromised.”
It is no secret why this Office has been so effective. It is in large measure because we report publicly. We investigate the facts, bring a critical eye to them, and lay them before those to whom the government is accountable. While most of our recommendations would no doubt be accepted by well-intentioned managers and administrators without the additional moral suasion furnished by public support, public support and participation is essential. After all, most of our work originates with complaints from ordinary citizens. Citizen participation is what lubricates the wheels
However, without proper oversight – including effective investigative powers and public reporting – openness, transparency, accountability and the opportunities for citizen participation are all compromised. This, of course, is why my Office has, throughout its 35-year history, implored successive governments of Ontario to extend the jurisdiction of the Ombudsman. As this report again highlights, Ontario lags behind all other Canadian jurisdictions in ombudsman oversight of the “MUSH sector” – Universities, School boards and Hospitals, as well as children’s aid societies, long-term care homes and police. What oversight there is of these institutions is, frankly, inadequate. The mandate of the Child and Family Services Review Board is so narrow it has sparked complaints to our Office about the Board itself. The Broader Public Sector Accountability Act aims to make hospitals more accountable by making them subject to the Freedom of Information and Protection of Privacy Act, but an exemption passed in May 2011 will impose significant restrictions on the information that can be accessed – restrictions that go beyond legitimate patient privacy concerns.
A more vital and complete vision of openness and transparency is inevitable. The days when governments could control the message and choose how to manage public information are gone. This is the age of information. Even Middle East autocracies that survived for centuries are being felled by protests galvanized by social media and stoked by real-time information about government atrocities and misconduct. Information, coupled with courage, is proving to be more potent than firepower. It is therefore both good policy and good politics to embrace it. Ontario has an opportunity to be a leader here.
“Embracing a broad vision of openness and transparency is the right thing to do and will improve the quality of government.”
This is a lesson we in the Office of the Ombudsman have learned for ourselves. We have worked to lead by example, while maintaining the crucial confidentiality obligations we must uphold in order to protect our complainants from retribution and maintain the integrity of the process. We are one of the first ombudsman offices in the world to embrace social media like Facebook, Twitter and YouTube. This past year, we pioneered the use of social media in a major investigation. We continue to champion openness in oversight.
Not so long ago, this Office was largely hidden behind a veil of secrecy, refusing to confirm or deny even the mere existence of a complaint. The Office only showed its face with the release of its annual reports. Beyond that, it relied on mall kiosks and community visits to get the word out. That might have been defendable in a bricks-and-mortar era, but no longer.
In recent years, we have opened the Office to the world through technology, with online complaint forms and increased opportunities for the public to communicate directly with us, through social media, live webcasts, e-newsletters and our website. In the coming year, we will be making it even easier for the public to interact with us by launching our own web app – another first for the ombudsman world. We are plugged in and better for it.
The government of Ontario has already made some strides in this direction, but there is much more it can do, and should do, if it and its administrators are serious about ensuring that it works in the best interest of our citizens. Embracing a broad vision of openness and transparency is the right thing to do and will improve the quality of government.
I am excited to be back as Ontario’s Ombudsman for the next five years. There is much to be done. And as this Annual Report shows, we have the facility and the motivation to do it well.