Why all the secrecy?
If you follow the news in Toronto or if you’re interested in technology, you’ve probably heard of Sidewalk Toronto by now. It’s a joint project of Sidewalk Labs, a sister company of Google, and Waterfront Toronto. This is the tech giant’s first foray into urban development and infrastructure, with Toronto hosting the pilot project.
In January, I submitted a freedom of information request to Waterfront Toronto, asking for some information about Sidewalk Toronto. I’ve been particularly curious about something called the “Framework Agreement.”
Despite all the fancy design illustrations, this project is still in an early planning and consultation stage. Sidewalk Labs has signed a one-year agreement with Waterfront Toronto to work together on a development plan. If they go forward with actually designing and building something, that will be covered by another set of contracts after the first year.
The Framework Agreement — which I’ll simply call “the agreement” as my contribution to The War Against Needless Capitalization — is currently confidential.
That’s not entirely unusual, as some details of government contracts and negotiations are usually kept private, but the degree of secrecy in this case has raised some eyebrows.
Who gets to see the agreement?
Waterfront Toronto’s board of directors includes one city councillor, Denzil Minnan-Wong. At an October board meeting, he put forward a motion to publicly release the agreement. “The public deserves to understand all aspects of the agreement and pass judgment on whether it’s a good agreement for the city of Toronto,” he said at the time.
Minnan-Wong didn’t succeed. Helen Burstyn, the chair of Waterfront Toronto’s board, was among those who opposed releasing the full document because it contains “commercially sensitive provisions.”
When Burstyn was asked what Sidewalk Labs thinks about making the agreement public, she told the Toronto Star, “They are open to making it public; they’re also open to whatever position we take and being guided by that.”
Waterfront Toronto tried to find a compromise. Instead of the full agreement, they published a summary a few weeks later. It appears that wasn’t enough. Minnan-Wong still wants more information released, telling the mayor’s executive committee that “I know enough about the agreement that I think you would like to know more about the agreement.”
Secrets within secrets
When the summary was published, one line in the final paragraph caught my eye: “The Framework Agreement contains a requirement that it be kept confidential.”
That sounds like the agreement contains a non-disclosure section, which obviously shapes the whole discussion of what can or can’t be shared. So I filed a freedom of information request for it.
To be clear, my request wasn’t for the full agreement. It was only for the section describing the non-disclosure requirements. I didn’t ask for any of the confidential information — all I wanted to know was whether there is confidential information, and what rules govern it.
Waterfront Toronto’s response was a blanket “no.” They refused the request outright, saying that releasing even the non-disclosure section “could reasonably prejudice or interfere with Waterfront Toronto’s ongoing contractual negotiations with Side Walk Labs [sic].”
That’s frankly a bit puzzling. It’s understandable for Burstyn and the board to have concerns about releasing the whole document, lock, stock and barrel. But whatever trade secrets the agreement may contain, surely the confidentiality clause itself doesn’t compromise them. Burstyn has also said that Sidewalk Labs is open to making the agreement public. Yet as it stands, Waterfront Toronto’s position is that even the degree of secretiveness is a secret.
The appearance of transparency
This is where things get problematic in terms of transparency. You see, Waterfront Toronto is an unusual creature. It was created in 2001 as a partnership between the federal, provincial and municipal governments. Although it’s funded by taxpayers and manages public land, it’s not actually subject to the same rules as those governments.
If you file a freedom of information (FOI) request with a government department, they have a legal obligation to respond. They won’t always release the information you want, but any exceptions have to be justified under the applicable law.
Waterfront Toronto isn’t subject to any of those laws. So while the organization has its own FOI policy, it’s not actually binding. If they deny a request for information, no matter what their reasoning, you have nowhere to appeal.
Waterfront Toronto’s staff knows this is a problem. They flagged this concern for the board back in 2015, and asked for some kind of legal oversight: “Management recommends that the Corporation formally request the Province to make the Corporation subject to the Freedom of Information and Protection of Privacy Act (‘FIPPA’) in order that a statutory right of appeal and an established appeal process are available to applicants who submit FOI requests.”
In the absence of that, Waterfront Toronto is offering Potemkin transparency. Yes, there’s a system called “freedom of information” for citizens and journalists with an official request form. But that freedom can be taken away on a whim. Like a movie backdrop in a Mel Brooks gag, the whole thing collapses if you bump into it at the wrong angle — and I suspect more people will be doing so as Sidewalk Toronto comes under further scrutiny.