Ontario Government Agency Imposing Corporate Secrecy Practices on the Public

Infrastructure Ontario and Metrolinx, both provincial mega-agencies using, exclusively, public-private infrastructure partnerships, have imposed a requirement on the public that is supposedly being served, according to a Toronto Star article (March 19). That is, any community member that wants to participate in the ‘consultations’ regarding the expropriation and tearing down of the local Riverdale Plaza (one of the many sites designated by the province as a future ‘transit-oriented community’, known by locals as ‘developer-oriented transit’) needs to sign a “non-disclosure” agreement. 

On March 20 the Star clarified, in a correction, that it was Infrastructure Ontario that required the NDAs, not Metrolinx. The clarification is not helpful, however, since both agencies work together routinely and together they make up the transit infrastructure arm of the Doug Ford government.

NDAs have not, to my knowledge, ever been used by public entities. They are typically used in competitive corporate settings. The main purpose is to make sure that employees who jump from one firm to another (especially in the tech sector) do not take with them either valuable intellectual property or insider information. 

How can Infrastructure Ontario – a public agency whose sole owner is the provincial government – impose an NDA requirement on ordinary citizens seeking to get information about major projects that will not only radically change neighbourhoods but that are also creating a huge amount of public debt to be repaid long after the current politicians and managers have retired?

Scholars in public administration and public law have traced the ways in which public entities including government itself have been colonized by corporate practices, from private financing (often misleadingly presented as ‘private funding’, as if the private sector ever gave anything away for free) to the hiring of private-sector managers for public agencies. 

The rationale for this has been the notion that the private sector is inherently innovative and efficient, while the public sector is by nature, irremediably, bureaucratic, slow, and lacking in innovation. (The auditor general of Ontario discredited the notion that public-private partnerships are cheaper, in several annual reports over the past decade, but she failed to note that Infrastructure Ontario routinely over-budgets so they can later claim they came in ‘under budget’). In general, Auditors General cannot comment on the choice of either projects or methods of financing, they can only expose boondoggles that stand out to an outside accountant.

With legal scholars Fleur Johns in Sydney and Jen Raso, a professor at McGill law school, I studied Infrastructure Ontario’s workings in 2015-18. We published an article in 2018 showing that Infrastructure Ontario was in the process of reproducing the very cumbersome bureaucracy that supposedly justified turning to the private sector. One private sector actor told us that Infrastructure Ontario’s rule book had grown “to the size of War and Peace”. (The article was published in the Political and Legal Anthropology Review).

It is high time for Ontarians, especially those who voted for Doug Ford, to stop having faith in agencies that spend billions of public money but act as if they’re private firms. When discussing a major Metrolinx project with neighbours, several of them told me they thought Metrolinx was a private firm. I had to correct them saying: no, it’s our tax money that pays their high salaries (Metrolinx has over 1000 staff on the ‘sunshine list’). And when they’re sued by contractors, it’s us taxpayers that pay for their high-priced lawyers.

It’s important for democracy to challenge the notion that to have any input in public infrastructure projects citizens need to be silenced by the signing of non-disclosure agreements. Only in authoritarian states do governments seek to silence their critics in advance. 

The non-disclosure agreement is a less violent method of silencing dissent and hard questions than poisoning or imprisoning critics, but it works in the same manner.