Wacko ATI ruling -- Ontario IPC uses academic freedom to restrict transparency

Academic freedom is a protection for what a professor does, not a protection to keep secret what a professor does.

By Denis G. Rancourt

In what can only be characterized as wacko, an Information and Privacy Commissioner (IPC), Ontario, Canada, Adjudicator has ruled (November 7, 2011, Final Order PO-3009-F, PDF-file) that it is legitimate to use academic freedom as a pretext to restrict transparency and accountability of public universities.

Whereas academic freedom exists to legally provide professional independence to professors and to allow professors to freely express their ideas without fear of reprisals -- in order to best serve society, the Adjudicator, in the context of access to information (ATI) requests, interpreted academic freedom as a device to shield professors from public transparency and accountability.

The Adjudicator ruled that, in Ontario, a professor's research and teaching cannot be subject to public transparency and accountability and that even administrative records that the individual professor feels are excluded "taking academic freedom into account" are also not available.

In an era of frequently reported incidents of academic and research fraud, and in a time when education is a highly valued commodity, this total blind spot, carved out using a misguided concept of academic freedom, makes the fact that universities in Ontario are subject to ATI law somewhat of a joke. This is especially true given that professors wholly contribute to the institution's administration via collegial governance.

Not only was a professor's publicly-funded work ruled not subject to transparency but in those cases where the Adjudicator found that certain components of a professor's work may be subject to ATI law, the Adjudicator ruled that the individual professor can decide whether or not ATI law would apply -- thereby making meaningful appeals of access decisions virtually impossible.

How did the IPC Adjudicator come to interpret academic freedom in this way?

Well, this is something about which I have some insider knowledge, as I was the ATI requester and the university in question was my former employer, the University of Ottawa. The request was made in 2006 and it has taken five years to get this brilliant and studied result.

The university refused me access to professors' communications about me. (It allowed me some access to the administration's communications about me but wanted over $28 thousand to service this part of the request. The IPC did not see this as a particularly outrageous fee... but I digress.)

The Adjudicator sought and obtained submissions from the university, from the professors' union (APUO) and from me. Both the university and the union argued (at length and supported by three U of O labour arbitration awards on the matter) that academic freedom meant that access under ATI law needed to be restricted for professors.

I argued the opposite, as follows.

On March 26, 2007:

Professors, as employees of the university, must comply with the Act, regarding all documents that pertain to their numerous functions as professors. For example, professors act on many administrative committees and executive councils and therefore have all kinds of formal and informal work-related exchanges involving the functioning of the institution and the working conditions of their colleagues. Academic freedom protects a professor’s rights to free speech and to professional discretion in fulfilling her responsibilities but it is not meant as a barrier to transparency or as a professor’s right to secrecy in exercising her duties.

And on November 21, 2007:

Professors have nationally-recognized academic freedom and tenure so that they are protected in their roles as independent societal critics and as independent teachers and researchers, not so that they can escape public scrutiny in performing their official duties related to policy, governance and opinion and decision making. Indeed, the very purpose of academic freedom and tenure is that professors not be subjected to undue pressures and reprisals for voicing their opinions. To use academic freedom as a barrier to access is to turn this instrument on its head and apply it against the public good.

... The APUO representations appear to be intended to give undue immunity to professors as a professional group, rather than respecting the true societal purpose and intent of academic freedom...

My arguments were not mentioned or retained by the IPC Adjudicator in the Order. Instead, the Adjudicator chose to delimit a compromise between the similar positions of the university and the union.

The madness of it all is like this. Since the university employer does not have a right to micro-manage a professor's work, and does not have an a priori right to inspect a professor's work or documents or communications, and since the ATI Act foresees that records respondent to a request will be administered in view of possible disclosure by the "head" of the institution, therefore, it was argued, a professor's records are not subject to the Act.

Well, even under the strict logic of the Act, that makes no sense at all because, whenever there is a complaint or evidence of fraud, the employer (the "head") is entirely entitled to obtain and examine all a professor's records arguably relevant to the investigation. The university has control over all records generated in a professor's work for the purpose of employee accountability. And an ATI request is all about accountability.

How did the Adjudicator get it so wrong?

She refused to hear the requester and instead had ears only for two powerful parties both having illegitimate interests to block transparency: The university does not want the public and media to be empowered to investigate academic and research fraud cases and the union does not want its members scrutinized by either the employer or the public. The national association of professors' unions (CAUT) is similarly misguided (here, here).

Academic freedom is a protection for what a professor does, not a protection to keep secret what a professor does.

The problem now is that this bad ruling can only be changed by an expensive judicial review. The IPC knows that institutions and unions can afford judicial reviews but that individual requesters cannot. So the IPC can afford bad rulings that lean towards the institutions.

Thus, Ontario becomes a rare jurisdiction where professors' records are not under the purview of ATI law. Bravo Madame Commissioner. Bravo U of O and bravo APUO.

This was not rocket science. The word that comes to mind for me is "pathetic."


ADDENDUM (November 13, 2011):

Actually (and perversely), a professor's research and teaching are already subject to qualified exclusions in the Act [sections 65.8.1(a) and (b) and qualifications 65.9 and 65.10] but the intended practice is that the "head" (professional ATI officer) decides the exclusions that apply on the particular respondent records which must be found and produced to the "head".

The instant ruling (paragraphs-181-182-183) would have individual professors decide all the exclusions of the Act based on their individual (mis)understandings of academic freedom - without any mechanism to verify a professor's decisions since the excluded records are then by definition excluded from consideration under the Act and are not provided to the head for eventual appeals (which would defeat the intent of letting the professors decide exclusion).

This is contrary to past practice where all respondent records are examined in an IPC appeal, including records argued to be excluded from the Act. It distances or shields the "head" from the burden of proof prescribed by the Act:

53. Where a head refuses access to a record or a part of a record, the burden of proof that the record or the part falls within one of the specified exemptions in this Act lies upon the head.

(Already the section of the Act most disregarded by the IPC, in my view.)

The new method of preventing the head from seeing a professor's records is premised on bad faith use by the head (as the professor's employer) of these records - despite such improper use being disallowed in law.

So one law (the FIPPA = ATI law) is vitiated to prevent an abuse that is against the law. Whereas academic freedom is suppose to be an iron-clad protection against exactly the expected abuse.

In the same breath, therefore, the alleged-sacrosanct academic freedom is acknowledged to be ineffective (except in restricting transparency).

I say: Either apply academic freedom as though it were real or abolish it. It is meant to protect independence not create secrecy. Secrecy is needed where there is no independence. A free society is an open society. Let's get our concepts straight.

See all posts about the IPC at UofOWatch.
See all Ontario IPC rulings HERE.

See November-2011 IPC Order PO-3009-F HERE.

Denis G. Rancourt is a former tenured and full professor of physics at the University of Ottawa in Canada. He practiced several areas of science (including physics and environmental science) which were funded by a national agency and ran an internationally recognized laboratory. He has published over 100 articles in leading scientific journals and several social commentary essays. He developed popular activism courses and was an outspoken critic of the university administration and a defender of student and Palestinian rights. He was fired for his dissidence in 2009. His dismissal case is in court hearings that will extend into 2012.

Institutions build hierarchy between politico-cultural re-normalizations

By Denis G. Rancourt

In the steady state of a society, in the absence of large direct consequences of war at home, including civil war and class war, in the absence of believable threats of violence against the dominance hierarchy, there are viable institutions which all continuously and progressively act to strengthen the dominance hierarchy [a].

The institutions are meant to maintain order and to provide stability for and continuity of the dominance hierarchy; by eliminating, deflecting, and consuming all threats. This is done under the pretense of educating, protecting, and providing for the obedient subjects of the dominance hierarchy.

The professionals who run all institutions are embedded into the overarching societal dominance hierarchy and must serve this master in order to maintain their status and relative privileges. Despite the solemn institutional mission-statement verbiage, therefore, these professionals know -- for their own good -- who they really serve.

As a result, the institutions grow and develop policies, practices and structures that monotonously sharpen and perfect the hierarchical pyramid.

The illusory "foundational principles" of institutions are merely the comforting promises which deceive subjects into abandoning autonomy in favour of accepting paternalistic management, and hierarchical control.

In advancing hierarchy (corporate fascism) the institutions necessarily erode the appearance of their own needed illusory "foundational principles" and must hide this erosion with ever more complicated or obtuse verbiage and ever more detailed and convoluted policies and rules; in exercises of sophistry that equal the most awe-inspiring human achievements (e.g., read Supreme Court rulings and note what is not said).

The subjects must be "educated" to receive this sophistry as high expert knowledge, even as the "foundational principles" telescopically disappear in the face of reality.

In this way, the institutions (education, justice, health, finance, war, etc.) work together -- in a highly coordinated fashion -- to optimally support the dominance hierarchy. Jurisdictions are established, sequences of treatment enacted, etc.

The entire excise of law-making is an exercise in institution management and optimization to best serve and advantage the top strata of the dominance hierarchy.

And then, every once in a while, when circumstances in the bottom strata get too tense and the subjects start to see beyond the verbiage and expert management, things heat up and there may be adjustments, even re-normalizations, and we start somewhat refreshed, with clarified mission statements and so on.

And, following this jog or even back-step, "progress" can once again be pursued.

Such is the dance of institutional change as I see it.

The above theory of institutional change is predictive.

For example, since the institution's "foundational principles" pronouncements are a description of falsely promised repairs to damage necessarily caused by the dominance hierarchy and since the institution truly functions to support the dominance hierarchy, it follows that an institution will always work to distance itself from its own "foundational principles" and, where the stated "principles" give rise to strongly expressed expectations among the objectified subjects [1], to weaken ("re-define", "improve", "modernize", "clarify") its mission promises to the extent that it can.

The institution, therefore, works exactly to oppose its own "foundational principles" or purpose or mission statements because these statements are an expression of the targeted systemic consequences of hierarchy that the particular institution is meant to neutralize by subterfuge. The institution as substitute parent acknowledges the injustice, reassuringly states that the harm will be repaired via a fair (although complex) process, and sends the victim of hierarchy down a road with no issue; thereby cooling the mark out [2], causing the victim to invest in the false solution, and dissipating the complaint.

Another predicted consequence is that, for many individual professionals who work in institutions, there will be an unresolved dichotomy between elements of the individual's formal education regarding the benevolence of institutions and the dominant professional training culture of kissing ass to serve hierarchy and one's career "advancement." This, in turn, gives rise to the phenomenon of whistleblowers and their persecution and, depending on the degree of social integration of the professional culture, to the phenomenon of professional worker malaise [3]. Otherwise, cynicism and peer-group-identification are major outlets [3].

[This article was inspired by the incredible November 7, 2011, Final Order PO-3009-F of the Information and Privacy Commissioner, Ontario; that I plan to critique soon.] [HERE is the critique.]

Endnotes

[a] See this essay about the reality of the dominance hierarchy: Rancourt, Denis G. "Anti-smoking culture is harmful to health: On the truth problem of public health management." 2011.

[1] Freire, Paulo. "Pedagogy of the Oppressed." 1970.

[2] Goffman, Erving. “Cooling the Mark Out: Some Aspects of Adaptation to Failure.” Psychiatry Vol. XV: 451-63. 1952.

[3] Schmidt, Jeff. "Disciplined Minds: A critical look at salaried professionals and the soul-battering system that shapes their lives." 2000.

Other essays by Denis G. Rancourt

University of Ottawa spins fired physics prof as mansonesque

U of O witch-hunt against Rancourt in full swing -- DAY-3 of arbitration trial


Today was DAY-3 of the binding labour arbitration hearing into the wrongful dismissal case of physics professor Denis Rancourt. Following a rough start (link to all posts about hearings), it was up to the University, in the person of union-busting lawyer Lynn Harnden, to make the opening statements.

The opening statement did not disappoint. It was over-the-top with partial and undated extracts from blog posts, media articles, emails from unidentified sources; including lyrics from Immortal Technique, a reference to the Ottawa bank firebombing, allegations of inciting violence (evidenced by not inciting violence), and more.

Harnden distributed paper copies of his 19-page statement to the media and public: HERE.

The public and the union were stunned, as was the grievor.

The union, in the person of labour lawyer Sean McGee, patiently responded orally in an almost two-hour presentation. Here are highlights:

"His ideas are so dangerous that he is not allowed on campus without a police escort."

"Can a professor challenge the established order and entrenched patterns of thought? Can a professor adopt a methodology in his teaching and defend and protect that methodology ... without fear of the capital punishment of termination?"

"The University is offended, inconvenienced, and students criticize ... his methods are unpopular and unconventional ... but what is this case about?"

"The University's portrait of a Mansonesque figure is such a distortion of the facts."

"The allegation of 'frivolous grading' is just not true. Nothing of the sort. This was a studied, carefully considered attempt to improve the way physics is taught and learned."

"Calling this 'academic fraud' is shocking hyperbole from an institution of higher learning. The University alleges 'frivolous', 'fraudulent', 'selfish' ... there is nothing to suggest selfish. In fact, quite the contrary ..."

"Case in point, the use of Immortal Technique to show how demonic professor Rancourt is and to allege his desperation in his desire to lure students ... is reminiscent of Catholic nuns in Ottawa urging young girls to stay away from Elvis Presley's concert and his lewd and gyrating hips... and this now in the 21st century."

"Professor Rancourt was made to be increasingly limited to a smaller and smaller sphere of activity: from no teaching in 1st year, to no teaching, to being locked out of his laboratory, to blocking his cinema series, to blocking access to his campus radio show, to no campus access without police escort, to termination."

"This is significant evidence that the University wanted to cut off his efforts to communicate his ideas."

"We are going to ask you to conclude that professor Rancourt does not incite people to violence -- does not, has not, and will not incite anyone to violence. For the University to cite the law about risks of violent acts -- raising that in this context - is - difficult - to - understand - ..."

"The University is funding the defamation lawsuit [St. Lewis v. Rancourt] it now uses as evidence for professor Rancourt's dismissal..."

"In the end, this is a bad faith attempt to get rid of him at all costs."

"Regardless of what you think of professor Rancourt, we will ask you to find that there were no grounds for dismissal."

Tomorrow is DAY-4. The University wants a discovery order to dig into the Immortal Technique connection... Meanwhile, it has supplied none of the emails of the upper administration's known "war room" meetings in firing Rancourt.

Following public submissions (LINK), the Arbitrator had released his decision to ban all video and audio recordings of the hearings, which are done without an official court transcript -- see ruling HERE. The University's on-record repeated attempts (E.G.) to block the grievor's UofOWatch blog during the hearings fell flat and was not mentioned or retained in the Arbitrator's decision.

See hearings schedule and reports: HERE.

Chronology of wrongful-dismissal background events: HERE.

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The first victim of education

By Denis G. Rancourt

The First World education complex is responsible to create the professional managerial force that advances and maintains the global North-South exploitative flux of human and natural resources; and, therefore, is responsible for a deeply-racist planetary-scale genocidal pillaging using continuous war in conjunction with financial predation.

It also is responsible for the indoctrination to maintain a vicious class hierarchy at home without which manning Empire would be impossible.

Yes, but that is too easy. As long as we only write about it we contribute to it. As long as we advance that education is the answer to education, we strengthen it. We must instead recognize that the first-line of defence lies in our own bodies, as we -- students and teachers -- are the first-line victims of education.

The first-line of defence against global madness, the only line that we are part-of, is our own personal rebellion against our own oppression. And overwhelmingly the dominant first-tier oppression against privileged-sector First World individuals is education, from pre-school to professional school. [1]

The first victim of education is the student. [1]

This is evident to graduate school and professional school students because the myth until then is to prepare for "real learning" up ahead. But the "real learning" never materializes. Professional schools must brainwash students to believe they have learned something and to accept to function as con artists (doctors, lawyers, bankers, scientists, etc.) in society. [2][3]

It is so difficult for many to accept that this is all the learning to be had that they willingly participate in their own brainwashing to believe they have acquired competence and knowledge, as part of self-preservation. The brainwashing is the major tour de force in the finishing of graduates. Often it is only accomplished in the internship, residency, or post-doctoral phase.

Here, the first victim is the new graduate who realizes that he/she knows nothing after some 25 or more years of grueling institutionalization, a large financial debt, and despite all the high grades and diplomas.

I once challenged a graduating top-of-her-class MD about her ignorance and she willingly admitted that in fact she knew nothing, absolutely nothing. Two years of residency later it was impossible to have that conversation. She still knew nothing.

My own experience was similar as a physicist-in-training. I was torn between the self-knowledge of my ignorance, despite the small pieces I came to have an impression of grasping, and my stellar professional advancement in terms of published papers, scholarships, high grades, and conference invitations. Everything pushed me to act-as-if and to assume a professional stance.

Next, in the classroom, my ignorance needed to be the most remote in appearance of all, whereas it would have been the most formidable pedagogic tool. Only after more than a decade of teaching would I start to discover critical pedagogy, largely by accident and thanks to a stubborn desire to be true, and only as rebellion against the oppression of conventional teaching.

Then I would learn of the establishment's false critical pedagogy sector and the side industry that it is...

As Paulo Freire would say, you can only fight your own oppression and that is the most you can do. The real front of resistance is in the body of the first-tier victim. The intensity of the victim's rebellion is the magnitude of the resistance. The rest, outside of praxis, is academic blah blah which only strengthens the oppressor's grip.

If you are not suffering significant backlash then that is evidence that you are contributing to the oppression and if you have been integrated (buried) it's a sign you are dead. Enjoy your shallow "life" and may your children be just like you.

Other essays by Denis G. Rancourt

"Anti-racism" in support of racism

By Denis G. Rancourt

The First World education complex is responsible to create the professional managerial force that advances and maintains the global North-South exploitative flux of human and natural resources; and also partly or largely responsible for intra-Empire mythology, the obvious military-technology dominance, local-elite management, and supporting and developing empire-workforce and manager self-image survival strategies in the face of genocidal oppression and perpetual war.

The binary oppressor-oppressed pair is rooted in racism, a racism most apparent on the front and most denied at home.

In the heart of the Empire, a most powerful denial mechanism of the system's vicious racism of death is to vocally expend energy purporting to eliminate race bias in the selection of professional workers to integrate the exploitative hierarchy and to loudly celebrate this "success" in terms of obedient Black judges, professors, CEOs, presidents, etc.

For the denial strategy to work, it is essential that no criticism of the strategy itself be allowed and that any such criticism be itself virulently attacked as racist. In this way, the activism in the "anti-racism" of "equity" or "affirmative action" in professional circles becomes a dominant home-front battle in support of front-line racism both at home (prisons, reservations, poverty, etc.) and abroad (war, genocide, economic predation, etc.).

Virulent defenders of equity for elite workers scream "racism" so loudly -- while referring to the on-going Black North American holocaust -- that the term loses its meaning. And critics white or black who might suggest that to integrate is to participate are mobbed.

Malcolm X's thrust for rebellion, self-preservation, self-defence, and non-integration is lost. And his lessons about house and field negros are consumed and re-cast in the "light" of academia-born "critical race theory" (LINK).

All of a sudden "house negro", as a defamatory term and as a basis for defamation lawsuits, means "a person who is a race traitor" and "a person who is a pariah in the black community" [1][2][3][4]. I don't think the media-reported critics who applied the term to Condoleezza Rice and Barrack Obama in any way meant to suggest that these public figures were pariahs in "the" black community...?

And what is a "race traitor"? The term "house negro" is a racial class analysis term, as spelled out by Malcolm X who introduced its contemporary use. A "house negro" is a black person who derives class privilege from serving and maintaining a racist class structure. A "house negro" is not a pariah among "house negros" and is not part of the community of "field negros".

Without discernment of class the terms "community", "race", and "pariah" have no truthful meanings and are used only to mask inter-class oppression.

Without effective criticism which goes to the root of self-image, our discourse can only support the oppression rooted in racism. Academic blah blah can only be harmful and this may be an example of that, a reflex learned in my own indoctrination (called education)?

Other essays by Denis G. Rancourt

Ups and downs of the open court principle in Ontario

By Denis G. Rancourt


Recently, there has been some discussion on the Canadian law web site SLAW about an Ontario Superior Court of Justice ruling that is argued to have set legal precedent regarding attendance of public observers and media at court-supervised out-of-court cross-examinations.

The ruling on a procedural motion is HERE (see paragraph-20). The SLAW article is HERE.

I disagree that an unambiguous precedent has been set and I disagree with the ruling on this point. I argue that both the judge (Master) and the legal commentator (SLAW article author) erred in law by following the plaintiff (moving party) in not sufficiently discerning a cross-examination for discovery on the one hand and a cross-examination on an affidavit on a motion on the other hand.

In arguing a motion in Ontario, the evidence put on the public record in the open court is filed as affidavits in the Motion Record. Once filed in this way, the evidence has the same status as sworn evidence presented in court and is subject to cross-examination (as I have learned from hard-earned experience).

In a trial, such public record court-submitted evidence would be cross-examined in court and the cross-examination would of course be public, as is the entire in-court process. In a motion, therefore, where affidavits are used only to streamline the hearing not to vitiate the open court principle, it follows that the cross-examination of the affidavit should be public.

Otherwise, one has abridged the open-court principle without any fundamental justification.

A cross-examination (or examination) for discovery is a different situation where new evidence is "discovered" that may never be put on the public record (may never be filed as evidence), that is privileged, and that is legitimately subject to privacy protection.

Discovery is to "discover" whereas cross-examination on filed public record evidence is to test the evidence, just as it would be in open court. The submitter of evidence must be prepared to be cross-examined in public, unless the court orders otherwise for special reasons.

One problem arises with the asymmetry that in affidavits on motions in Ontario hearsay "evidence" is permitted (see Rules of Civil Procedure, Ontario). In this way, a client can be shielded from cross-examination by a lawyer who submits affidavit statements with the client's evidence in hearsay.

In addition, regarding the protection of privacy which the invoked concepts of discovery privilege and assumed undertaking (to not disclose) are meant to achieve, this was a situation where the defendant being cross-examined wanted public observation in the examination of his own information. The defendant also, in this case, filed the entire cross-examination court reporter transcript into public record evidence. These circumstances were not considered by the Master.

Just as the public nature of an in-court cross-examination does not deter the investigator in the depth and method of his/her cross-examination, the public's eye cannot be argued to overly constrain the investigator in a cross-examination on affidavit evidence on a motion. Indeed, the absence of a judge (only a court reporter is present) in the latter is an additional impetus for the presence of the public eye. And, in fact, there is no evidence that the examiner was constrained by the public eye in his cross-examination.

In the specific case, the plaintiff's complaint that one of the observers blogged an objectionable critique of the cross-examination was used partly to justify the Master's Decision without a complete examination of the merits of the critique, and the blogger's critique was partly re-posted on SLAW (HERE).

The Master's (precedent setting?) judgment was (LINK):

[19] Mr Dearden also asks for clear direction as to who may attend at the cross examination. The need for that is demonstrated by the exhibit at p. 154 of the motion record. Certain individuals who are not parties to the action attended at the cross examination and refused to leave notwithstanding Mr. Dearden’s objections. One of these observers then posted comments on the internet describing the cross examination and attributing unethical behaviour to Mr. Dearden while also suggesting the plaintiff herself was somehow associated with evidence of wrongdoing at the university.

[20] Mr. Rancourt objects to such direction on the basis of the open court principle. In that he is misguided. Cross examination or discovery does not take place in open court (although it does take place under court supervision). It is only once a transcript or portions of a transcript are tendered in evidence that they become part of the court record. Motion records and exhibits at trial are part of the court record. Court hearings (such as this motion) are held in open court though that was not always the case. Prior to adoption of the “new rules” chambers motions were not considered to be in open court or on the record. In any event it is quite clear that there is no right for the public to attend an examination out of court at the office of the special examiner or court reporter. Even were that not the case however, the court could give direction about the conduct of such examinations.

[21] There will be a follow up cross examination if the plaintiff wishes it. No one but the parties and their lawyers and the reporter may be in attendance unless otherwise agreed.

The Master's need to make a ruling the same day (given a next day's hearing of the main motion) and the usual constraints of limited court resources were also mitigating factors.

I believe that the question of public attendance at cross-examinations on affidavits on motions in Ontario largely remains an open question, one that opposing counsel's should consider in view of preserving and extending the open court principle without which we may as well abandon all illusions of an equitable system of justice management.

Links to all pleadings and court records in the main action are posted HERE. U of O Watch commentary articles are HERE.

Twenty-five-year-old film maker takes on the life of David F. Noble

Jonathon Bullick is making this film and he wants your help if you knew David F. Noble.

First trailer:



Documentary callout: