Outdated provincial laws shield city councillors from public scrutiny, allowing them to work behind a wall of secrecy.

You are not entitled to their daily schedule, work emails, or communications with lobbyists. You are not entitled to know who they meet with. You are not entitled to see documents sent to them by businesses, developers or investors.

Unlike the mayor and thousands of city employees, councillors are not subject to freedom of information legislation because they are not deemed municipal employees — their records are considered personal.

It’s a loophole that a leading accountability watchdog says is “dangerously undemocratic.”

Even Ontario’s assistant privacy commissioner has concerns.

In the wake of an access to information appeal launched by the Star more than 18 months ago, Brian Beamish acknowledged the current legislation is old and may need changing.

“The provincial Act is 25 years old. The municipal Act, which is really just a mirror image of that, is only a few years younger. They are, in many ways, what I would say is first-generation legislation, and I think might benefit from a review to see whether the scope of the records captured by them are appropriate,” said Beamish, the assistant commissioner with Ontario’s Information and Privacy Commissioner.

More than a year and a half ago, the Star requested documents from Councillor Doug Ford concerning discussions the councillor may have had about bringing an NFL team to Toronto. The city denied the request. In July 2011, the Star appealed to Beamish’s office.

The Star argued that city councillors’ salaries are paid with taxpayer dollars and the public has a right to scrutinize their actions. Attorneys representing both the City of Toronto and Councillor Ford argued that councillors are not employees of the city and that their records are “personal.”

The Star rejected this and further countered that Ford is no ordinary councillor. He holds no formal title, but the elder Ford regularly acted as a surrogate for the mayor, meeting with developers, business people and high-ranking city managers on behalf of the administration. (Ford plays a significantly reduced role today.)

Councillor Ford’s power was most apparent in September 2011, when he nearly overturned a decade of work on waterfront revitalization in the Port Lands as he attempted to take plans in a different direction. After his meeting with a foreign developer, a consulting firm was hired, and Ford held meetings with waterfront stakeholders. The issue got as far as city council.

“When Doug Ford says he wants to bring an NFL team to Toronto, it is the media’s responsibility to investigate,” the Star’s appeal argued.

More than 18 months after the appeal was filed, adjudicator Frank DeVries rejected the Star’s application, concluding that councillors are not city employees.

“It’s a very surprising decision and it creates a huge loophole,” said Tyler Sommers, a coordinator with the accountability watchdog Democracy Watch.

“It is dangerously undemocratic to leave this as it is, because it allows the city to hide what they’re doing and not be accountable to the public.”

Beamish said it was a “very difficult” decision, but that the IPC adjudicator can only interpret the law.

Canada’s access laws are notoriously archaic, transparency advocates say.

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Members of both federal and provincial Parliament are also not subject to access legislation, although typically provincial ministers are covered. Democracy Watch’s Duff Conacher says this was — wrongly — put in place to avoid overlap with political party business.

“Municipally, there’s no parties, and so it makes even less sense,” he said.

Camille Jobin-Davis, assistant director of New York State’s Committee on Open Government, said she is often taken aback by the attitude toward transparency in Canada.

Generally in the United States, the United Kingdom and Australia — among others — elected officials are covered by access laws.

She was surprised to learn that Toronto city councillors are not considered employees of the city, and that records they generate while working are not considered city property.

“I don’t see a good reason why that information should be withheld from the public,” she said.

Toronto councillors are held accountable in other ways. The city has one of the most advanced lobbyist registries in the country, as well as an in-house integrity commissioner and ombudsman.

But experts warn it’s not enough.

“We put in this legislation, and it’s called municipal freedom of information, and you can’t even get this significant chunk of municipal records connected to the dynamics of how a municipality operates,” said Ken Rubin, one of Canada’s leading access-to-information activists.

“People are elected and they’re supposed to be accountable. So how can you expect accountability when you can’t check if they’re doing their jobs?”

Councillor Ford did not respond to a request for comment sent to his office.

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