Evidence of meeting #12 for Access to Information, Privacy and Ethics in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was system.
A recording is available from Parliament.
4:45 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
I read the analysis of the recommendations, Mr. Drapeau. I am wondering why the system works in British Columbia, Ontario and Quebec. It does not take that long for people to get information. There seems to be a culture of secrecy in Ottawa, and that leaves a bad taste in my mouth.
Am I wrong in thinking that the commissioner's recommendations will change nothing?
4:45 p.m.
Prof. Michel Drapeau
Absolutely nothing. I do not know why, but there real issue has been avoided. There is a lack of rigour in enforcing the current legislation. We should start by speaking to two people. The first is the clerk. Why has no directive been issued? The Access to Information Act is one of many laws in Canada. Why are different standards applied in the case of this act as compared to other acts covering areas such as pharmaceuticals, food, immigration or others?
What do we expect of our officials? Two weeks ago, I was staggered to read in the Hill Times that the commissioner's reports stated that the Privy Council, which is the Prime Minister's department, after all, the department that issues all government directives, had elicited no reaction from the clerk saying that something would be done to correct the situation. That was a recent case.
There is a lack of will, not at the political level, but at the administrative level.
4:45 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
If I understand what you are saying, even if we passed the 12 recommendations, the problem would remain the same.
4:45 p.m.
Prof. Michel Drapeau
I do not even see how you can deal with the problem. Some of the recommendations are not bad. I am not opposed to the idea of extending the scope of the act, but this is not the time. Let us start by clearing up our own backlog and getting things in order. Not only will the recommendations change nothing, the situation will actually get worse. There is already a two-year backlog.
4:45 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Mr. Conacher recommends that penalties be imposed on these debates—that is my word for them—and even talks about legal action. Let us set up a tribunal, if that's what it takes.
I do not know where you are getting your examples, Mr. Conacher, but I'm having a little trouble seeing what mediation or a tribunal or court, which is more cumbersome, could do to reduce the two-year backlog. Tens of thousands of access requests are still pending.
4:45 p.m.
Coordinator, Democracy Watch
Which part, the order-making power or mediation service?
4:45 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Let us talk about mediation. I do not know how we could go about that.
4:45 p.m.
Coordinator, Democracy Watch
Well, it has worked for the past 20 years in Ontario very well. I was there in the first two years of the operation of the new act, in the information commissioner's office in Ontario for two years as a summer student when I was at law school, and they were setting up the mediation service. I was in the legal services branch. We were researching and coming up with legal opinions as to where the various lines were. The commissioner was signing off on those, as essentially enforcement policy. And then the mediators were given those definitions of various exemptions. And then they had 20 mediators who were hired, and most of the complaints were mediated. They didn't go to an order. The requester and the government institution reached an agreement.
4:50 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
At what stage would the mediation help? After the 30-day period, after the government has asked for an extension?
4:50 p.m.
Coordinator, Democracy Watch
As it is in Ontario, when you make a complaint, mediation is attempted first. And if mediation doesn't work, if the requester is not satisfied, then the complaint goes to the commissioner for an order.
4:50 p.m.
Bloc
4:50 p.m.
Coordinator, Democracy Watch
No, not at all. You don't need a lawyer for the mediator, and there is no cost to the service. And you can have 20 mediators following the enforcement policies and precedents set by the commissioner. So they can do 20 times as much work and clear away 20 times as many complaints as the commissioner, as only one person can only work so much.
No, it's part of the system that has been put in place in Ontario for all civil cases. They're forced to go to mediation now to speed things up. It's viewed as a way of speeding things up, not slowing them down.
4:50 p.m.
Conservative
Earl Dreeshen Conservative Red Deer, AB
Thank you very much. It has been extremely enlightening to hear both sides of the issues here.
I was looking primarily at recommendation 12. Finally I've learned there are some reasons why we have data brokers, some of the rationale for that. Earlier we heard that three people were responsible for 30% or so of the requests, and 10 were responsible for 47%, I believe it was. I'm not sure if any of the three of you are part of that particular group, and that's not my concern. But I really do appreciate the fact that you've been able to point out some of the reasons why this happens.
My question goes back to something I asked the commissioner before. We still have this report card. The report card was based on the time it had taken for various departments to get their responses in. I'm curious as to whether or not some of these data brokers are going into one or two different departments, and if that might be one of the reasons we're finding failing grades for certain areas.
Could you comment on that first, please?
4:50 p.m.
Prof. Michel Drapeau
I don't have access to the database that the Information Commissioner speaks from. I object to the characterization. I don't know who those three individuals are. They could be a large law firm or a media organization. For all I know, it could be a pharmaceutical company, and they are known to be heavy users of the act.
My point is, who cares? If these requests are, for example, from a large law firm...and I wish it were me, because perhaps it would be effective from a monetary standpoint. But if a law firm represents an entire industry, they could have a number of requests. Years ago there was a lawyer specializing in fiscal law in Montreal who used to make quite a number of access requests in order to be up to date and to publish a fiscal bulletin on it. It's a legal way to have access to government records. What can I say? It's the only legal way. It's far superior to any other way I know of.
To me, instead of trying to dampen or reduce or eliminate what are referred to as—and I object to the term—data brokers or industrial users, let's not even go there. How can we better respond? There were 29,000 requests last year. This is a drop in the bucket. From the same commissioner who recommends to you to go worldwide, there would be 2 billion or 3 billion. Imagine if the Chinese—
4:55 p.m.
Liberal
4:55 p.m.
Conservative
Earl Dreeshen Conservative Red Deer, AB
Thank you very much.
The other part I would mention, with the lawyers beside me, is this. Is it not something where you'd have cost recovery? I assume the lawyers are charging their clients. It would seem that the departments are doing some of the work for them. I'm just curious about your thoughts from that point of view.
4:55 p.m.
Prof. Michel Drapeau
I think at the moment the application fee is $5, and I think we're getting in something like $500,000 a year. It's probably costing us more to process the $5 than what the fees are all about.
But you have to be logical. If you're going to go universal.... I'm presuming that the Americans have been assured we're not going to charge a fee. On one hand, we're prepared to open it to the Chinese community and everybody else in the world, and on the other we're going to have a special fee schedule for those Canadians, be they law firms or media, as a recovery type of thing. That ends up with two classes of citizen, and I have difficulty with that.
4:55 p.m.
Lawyer, As an Individual
If I could add to that, the next generation of access legislation will be proactive disclosure. We're not looking at a request initiated by a citizen; rather, the government or administration would be disclosing the information proactively. There would be no fees; you'd just need a good computer or a good library.
4:55 p.m.
Coordinator, Democracy Watch
I endorse that point very much. The more you move to routine disclosure, the fewer requests you will have, and the fewer problems you will have with the entire system.
4:55 p.m.
Conservative
Earl Dreeshen Conservative Red Deer, AB
I have just one last question. What do you make of the recommendations that cabinet confidences should be subject to the ATI? Is this a violation of parliamentary precedent?
4:55 p.m.
Prof. Michel Drapeau
I don't agree, and I said so in the document.
I was consulted a number of years ago when the British act was in creation under the then recently elected Labour government, and the first recommendation made was just that, that we should open up. Basically, at home, there are certain places you don't go. You don't go to your parents' bedroom, for instance. By analogy, if you want to have a frank, honest discussion, the Prime Minister, by the very oath the privy councillor makes, that they will give their honest and forthright opinion to him for better governance.... There is a contradiction there, whether it's going to be done with the eye of the camera or before a stenographer. All I would do is maybe reduce it from 20 years to 10 years. But we're fiddling there.
I think the exception is right. We need to have certain areas as a safe house. In this instance, the government, whatever colour it is and whatever the issue is, needs to be able to discuss without the risk of being in The Globe and Mail on the following day.
4:55 p.m.
Coordinator, Democracy Watch
I mentioned this in my opening statement, that I don't see any reason why someone can't speak truth to power in the open. We need to have a government that's actually open and democratic, which means you have these conversations in the open. You discuss possibilities, options, with the public. There's no need to do this behind closed doors except in the rare cases, again, where there might be harm or injury.
These are not discussions of the political party and its strategy. Those discussions the party can have, but when you're in cabinet, there's absolutely no reason why it cannot be in the open.
