Ford government's fight to keep its mandate letters secret heard at Ontario Divisional Court

The Ontario government took its nearly two year fight to keep Premier Doug Ford's mandate letters secret to Divisional Court Thursday after it was ordered to disclose the records by the province's information and privacy commissioner (IPC) last summer.

Mandate letters traditionally lay out a checklist of expectations a premier has for each of his or her cabinet ministers after taking office — and have been routinely made public by governments across the country. 

But in a virtual judicial review hearing Thursday, counsel for the government argued that all 23 of the premier's mandate letters should not be released to CBC News to maintain cabinet secrecy. They told the three-judge panel that Ford provided the letters to the ministers at a cabinet meeting so it's reasonable to infer the records were discussed.

Ontario's Freedom of Information and Protection of Privacy Act (FIPPA) states that any records that "would reveal the substance of deliberations of the executive council or its committee" are exempt from disclosure. 

The province says releasing the roughly 150 pages of records would reveal the substance of cabinet deliberations. 

Ford refused to comment on his government's actions when asked about it during a Friday news conference, saying he couldn't because the matter is before the courts.

Intervenor groups in the case say the government's argument amounts to a radical re-interpretation of the FIPPA exemption — posing a threat to the public's right to know that goes beyond access to mandate letters. 

'A huge step backward'

"If these mandate letters are deemed protected, then so much of what we traditionally have been able to know will be denied us," said James Turk, director of the Centre for Free Expression at Ryerson University.

"We'll be taking a huge step backward."

The Centre for Free Expression, Canadian Association of Journalists and Canadian Journalists for Free Expression intervened as a group to argue about the greater implications of the case. 

The Cabinet Office first denied the CBC News freedom of information request for Ford's letters to ministers under the cabinet record exemption in August 2018.

Letters product of deliberations, IPC commissioner says

But on appeal, IPC commissioner Brian Beamish determined the mandate letters didn't meet the criteria for exemption. Instead of revealing the substance of deliberations, Beamish determined the mandate letters were the end point, or product, of the premier's deliberations and ordered their release in his decision.

"There is no persuasive evidence or argument before me that disclosure [of the letters] would give rise to a chilling effect on cabinet deliberations," said Beamish in his 2019 ruling. 

"To a great extent, the mandate letters bear a close resemblance to the detailed policy platforms often produced by political parties during election campaigns." 

The previous Ontario government — under Premier Kathleen Wynne — posted its mandate letters publicly on the province's website, a practice that has become the norm across most of the country since Prime Minister Justin Trudeau made his own letters public in 2015.

It's Ontario's divergence from how other governments treat mandate letters that makes this case standout for Turk.

"The government of Ontario is trying to block access to the kinds of documents that every other government I know in Canada is anxious for the public to see," Turk told CBC News.

"If the court upholds the right of the government to restrict this kind of information … then it's a very dark day for democracy."

In its application for judicial review, the government argued the IPC was wrong to give "any weight to the non-binding practices of other governments" in its decision. 

On Thursday, Ontario Divisional Court Justices Katherine Swinton, Freya Kristjanson and Michael Penny reserved judgment on the judicial review until a later date. 

'A complete waste of taxpayers money'

For the president of the Canadian Association of Journalists, trying to deny the public access to mandate letters is "the most foolish fight" she's seen a government take on. 

"It's a complete waste of taxpayers' money," said Karyn Pugliese. "To be using taxpayers' money to fight a case to keep [taxpayers] from having information about what you're telling the ministers they elected to do — I mean it's insane."

It's unclear how many tax dollars and government resources have gone toward trying to deny the public access to the mandate letters.

Last fall, CBC News filed another freedom of information request to find out how many Crown attorneys were working on the province's case — and how many hours each lawyer had devoted to it — since its initial access request for the mandate letters was filed.

The Ministry of the Attorney General denied access to the records, claiming that information was exempt from disclosure because of attorney-client privilege.

CBC News appealed the ministry's decision to the IPC, and the appeal is now at the adjudication stage. 

'Keep them to ourselves as long as possible'

Although the cost of its efforts remains unknown, it is clear that senior officials inside the Ford government planned to keep the mandate letters secret for as long as they could. 

In an email dated July 31, 2018 obtained by CBC News, the then-executive director of policy to the premier suggests it was the government's position to keep the letters from public view. 

"Here's the letters. As I said, the intention is to keep them to ourselves as long as possible," Greg Harrington said in the email to the chief of staff's senior policy adviser, Derek O'Toole.

O'Toole's response: "Thanks Greg ! Understood 😊."