He's still waiting for FOI records Toronto police said he could have last summer, requested in 2020

Jamie Jelinski feels a bit like David — and the Toronto police are his Goliath. 

The trouble is, he's worried that this time Goliath might win.

Jelinski filed a freedom of information (FOI) request to Toronto police in June 2020 for records concerning the facial recognition technology Clearview AI after the police service admitted to using the controversial tool beginning in October 2019 and committed to stop using it in February of the following year. 

Jelinski said he filed the request hoping to learn how Clearview AI is used in practice — all part of his research into visual identification techniques and technologies used by Canadian law enforcement. But nearly five years later, the visual culture scholar still hasn't received all of the responsive records, despite paying police more than $200 for the remaining 1,100 pages of emails last July. 

"To me it suggests they don't respect the legislation that they're supposed to be operating within, they don't respect public transparency," said Jelinski, who is now a lecturer in the University of Liverpool's department of communication and media.

"If they didn't intend on disclosing this to me last year, they should not have accepted my money."

In Ontario, public institutions like police services are subject to provincial or municipal freedom of information and protection of privacy laws. The legislation requires institutions to issue a decision for FOI requests within 30 days and to disclose the records if access is granted in that timeframe, with a few exceptions. 

FOI experts told CBC Toronto that Jelinski's experience highlights why Ontario's access to information legislation needs to be modernized — and why it needs to include tools to enforce legislated timeframes and its own orders to disclose records.

If the requester of information disagrees with an institution's decision or believes it has failed to meet legislated timeframes, they can submit an appeal to the Information and Privacy Commissioner of Ontario (IPC). 

3 appeals for 1 request

Jelinski has submitted three IPC appeals for this request. The first, because Toronto police originally denied him access to any records. Then, after winning that appeal in 2023, he filed one in 2024 when Toronto police failed to issue him a final decision letter about whether he'd have access to the documents. He filed the third appeal earlier this year, because he hadn't received the records he paid for last summer. 

"I have to force them through the IPC every step of the way," said Jelinski. 

In response to his most recent appeal, the privacy commissioner asked Toronto police to give Jelinski copies of the records by April 24. The service didn't meet that deadline. So in an email last week, the IPC told Jelinski it would issue an order to disclose the records.

CBC Toronto asked police why Jelinski's request has taken so long, why it didn't meet the most recent deadline from the privacy commissioner — and when it is that police intend to provide Jelinski with the records he's paid for.

Police say some records released

The service declined an interview request, but in an email, a spokesperson said certain records have already been released to Jelinski and noted the ongoing IPC mediation process.

"The Toronto Police Service has requested an extension on this file," said spokesperson Stephanie Sayer in the email. "Any updates are being communicated to the requester through the IPC."

Jelinski received some records in February 2022 and one additional record in 2023 after winning his first appeal but hasn't received the rest. As of Wednesday, the IPC had yet to issue the order to Toronto police to disclose the records. 

But even when it does, Jelinski worries police won't comply and that then his only options would be to wait or take police to court, which is expensive.

"They can just ignore it, and nothing happens to them," he said. "There needs to be some updating of the legislation."

Why enforcement isn't easy

Even though IPC orders are legally binding, a former IPC assistant commissioner says the Ontario oversight body doesn't have a straightforward way to enforce them, unlike in some other provinces. 

"This situation is kind of distressing, because it really shouldn't be the case that enforcement falls back onto the shoulders of the requester," said David Goodis, an access and privacy lawyer who worked for the IPC for 30 years until early 2021.

"Some of the more modern FOI laws allow people, commissioners — really anyone — to file commissioner orders with the court so that they're enforceable as a court order. And that can make a difference." 

Both B.C. and Alberta's access to information laws have that provision, according to Goodis. To adopt a similar mechanism, the lawyer said the Ontario legislature would have to amend the Freedom of Information and Protection of Privacy and Municipal Freedom of Information and Protection of Privacy acts.

Premier Doug Ford's office did not respond to questions about whether his government is considering such changes.

"What we're talking about is fixing the act to deal with these outlier cases," said Goodis. "In my experience, this is really rare."

While these cases aren't the norm, public policy researcher and FOI expert Ken Rubin said he's seeing this kind of response more and more often when he files requests.

"Review commissions don't exactly have penalty-making power," he said. "I think certain agencies have realized that, and so either they ignore [requesters] or they just drag it out."

Both Goodis and Rubin said the nearly five-year wait Jelinski is facing is way too long. 

Complexity and volume of requests a challenge

A recent Toronto Police Service Board report Sayer provided to CBC outlines the service's FOI statistics for 2024 and the hurdles it's facing in responding to requests.

"Meeting the mandated 30-day compliance outlined in Section 19 of the Act continues to be challenging," reads the report submitted by Toronto Police Chief Myron Demkiw.

"This is mainly due to the number and complexity of the requests, the type, medium and volume of the records being requested and [the] needed consultation with internal and external stakeholders for certain requests."

Last year, Toronto police received 5,414 FOI requests — 403 more than it did in 2023. There were also 758 requests carried over to this year from 2024. The service's average compliance rate for completing requests within the mandated 30-day timeframe was 73.6 per cent last year, down about three percentage points from 2023.

So what does this wait mean for Jelinski? 

His experience with this FOI request and others inspired him to write a book about how his fellow visual scholars can use access requests, which he says are rarely used for research in his field. But Jelinski can't finish the book until he gets these records.

"It's a key case study," he said. "I can't write up that chapter without the documents."