Law360 Canada (May 4, 2026, 11:11 AM EDT) --

Anaïs Bussières-McNicoll

Tamir Israel

Roughly every four years, voters elect a government and grant it significant powers and responsibilities. But winning an election does not mean one has been given carte blanche to act as they see fit until the next election. Governments must exercise public power in accordance with the Constitution, and voters have the right to know how elected officials are using this power. Ontario’s rushed amendments to freedom of information and privacy laws enacted a few days ago through the government’s Bill 97, Plan to Protect Ontario Act (Budget Measures), 2026 directly attack both of these fundamental democratic principles.

The amendments exclude documents, emails, call logs and any other records of the premier, ministers, parliamentary assistants and their offices from the Freedom of Information and Protection of Privacy Act (FIPPA) — thereby ending Ontarians’ statutory right to access these records. The exclusion goes so far as to attempt to discard the Supreme Court of Canada’s “control test,” which was specifically calibrated to limit the risk that ministers will use exclusions like these to “black hole” documents otherwise subject to disclosure obligations (Canada (Information Commissioner) v. Canada (Minister of National Defence), [2011] 2 S.C.R. 306).

Records requests have played a defining role in the public debates that have shaped Ontario’s political landscape over the years, including a number of recent public governance scandals. Let’s not forget that it is thanks to freedom of information requests made by journalists that we know about the Greenbelt $8.28-billion land swap fiasco and the public spending debacle regarding the government’s Ring of Fire infrastructure project.

It is particularly troubling that the legislative changes come in the wake of these scandals, as the government is giving itself a powerful tool to shield these types of documents from public scrutiny in the future. What is more, the amendments have retroactive effect, meaning they threaten some outstanding requests and disclosure orders that the government has yet to respond to — including hotly contested orders concerning the Ontario premier’s call records on the eve of a threatened general strike and records about the ongoing Greenbelt and Skills Development Fund scandals (Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), [2025] O.J. No. 5654).

The government’s declared intent is to protect confidential cabinet documents and constituents’ private information. Yet, the existing law has been adequately addressing these very considerations for decades. Instead, the Ontario government is attacking Ontarians’ constitutionally protected right to obtain information on issues of public importance. These changes allow this and future governments to dodge public accountability for poor governance or flawed decision-making — the very reason why freedom of information benefits from a level of constitutional protection under s. 2 (b) of the Canadian Charter of Rights and Freedoms.

There is more. Through the recent changes, the government has also undermined a number of critical tools used to scrutinize its privacy and cybersecurity practices. It has exempted public sector cybersecurity evaluations from public disclosure requirements and is now also preventing disclosure of which companies have been given students’ personal information through education procurement. Another transparency tool, which obligates the government to disclose which types of private information it is handling and why, is being completely removed.

As a result, Ontarians will now have a harder time knowing how the government has addressed previous cybersecurity threats, the extent to which students’ private information is being exploited by commercial companies and, more generally, what the government is doing with their personal data. These measures will make it harder for the public to understand how decisions are made, how personal information is used and whether the government is meeting its obligations to protect the people of Ontario.

Finally, the changes allow the government to write itself a blank cheque when creating mass internal centralized databases of sensitive data. Up until last week, the government could grant itself wide-ranging internal access to Ontarians’ sensitive health, education, tax, social services and other data — as long as effective privacy and cybersecurity standards approved by the independent Information and Privacy Commissioner were in place. Now, the government will be allowed to create its own privacy and cybersecurity rules.

Making matters worse, the government decided to bypass legislative committee scrutiny and other forms of public consultation when pushing through Bill 97, meaning that the concerns of journalists, civil society organizations and independent regulators were silenced. What emerges from the non-existent study of Bill 97 and the enactment of the new freedom of information and privacy provisions is a picture of a government that does not care about transparency, let alone accountability.

The egregiousness of this law and behaviour cannot be understated. Access to government documents and information about how it conducts itself are crucial for democratic public discourse. Without meaningful access to government records, investigative journalists cannot expose poor governance or wrongdoing. Community members and civil liberties watchdogs — such as the CCLA — cannot hold the government to account. And voters cannot cast a truly informed ballot.

At a time when governments around the globe and in Canada are scaling back fundamental rights and oversight mechanisms, Ontario has unfortunately found a new way to contribute to this trend. The government’s approach is so troubling, and its timing is so peculiar, that one cannot help but wonder: what are they hiding?

Anaïs Bussières-McNicoll is director, Fundamental Freedoms Program, Canadian Civil Liberties Association.

Tamir Israel is director, Privacy, Surveillance and Technology Program, CCLA.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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