Information & Ethics Committee on April 1st, 2009

[Ken Rubin]

I would hope so. If it had a clear mandate for proactive disclosure practices, it could deal through a pool of talent and avoid all this extra time consultations with the Department of Foreign Affairs, the Privy Council Office, and the Department of National Defence, because those guys would all be in there together, even if they're delegated to departments.

They would also have the right to appeal to the Information Commissioner if they're not allowed to do their job. Part of the problem right now is they're stifled. They're in confined departments. They're issued a set of guidelines from an agency that doesn't show leadership, and that itself is very secretive. I'm trying to look for ways in which the mindset that their first job is gatekeepers applying complicated procedures, fees, and exemptions is no longer their main mandate. And I've thought time and time again that there are good people in the system, but they need much more of a framework and a body so they can do their jobs properly.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Thank you.

[The Chair, Liberal, Paul Szabo]

Mr. Siksay, please.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Thank you, Chair.

Thank you to both of you for your testimony today.

Mr. Gogolek, I was interested in your comments on recommendation 11. That's the one about having direct access to the Federal Court around access refusals. You're concerned that there might be a better way of doing this, some administrative way or some more informal way, especially given the changes in the technological environment.

I wonder if you could say a bit more about that, about how not everybody has access to a lawyer--and nor should they in terms of appealing these access decisions?

[Vincent Gogolek]

I'm not saying that they shouldn't have access to a lawyer, but lawyers cost money.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Right.

[Vincent Gogolek]

If an individual is trying to get access to records, they may not be sophisticated...or it may be their first time with the system. The system should not be so complicated that the average person is not able to get records. They should not have to go to Federal Court.

It may be a useful thing to have a direct march so that somebody who wants to go directly to Federal Court can. For us, though, it would have to be an option. And if this is going to be in there as an option, the basic default position should be that the commissioner makes an order.

The way that Mr. Marleau's 12 steps are written, by not taking full order-making powers he's forced to have this workaround of, “Well, okay, if you don't get to me, you can always go directly to Federal Court.” But you shouldn't have to. You should be able to go to the commissioner with the failure to disclose and say, “Commissioner, I don't think this is right.” The commissioner gets to look at it and decide. You get your remedy.

That would reduce the workload on the Federal Court rather than having people trooping off or else just giving up, which is something that Mr. Rubin identified--people giving up on the system.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Can I ask you another question? In a conversation we had earlier, you mentioned the use of crown copyright as a way to do end runs around access to information. Could you say a little bit about that for the committee?

[Vincent Gogolek]

I can't say too much, because we're actually involved in a case before the B.C. commissioner. However, there's a very good article in The Tyee, one of the new media based in British Columbia. They did a very extensive review of that case, and I recommend it to you.

As far as we know, only the Government of British Columbia has done this so far. Essentially they chose certain selected requesters who went through the system and finally got their documents beaten out of the government. The government sent with those documents what they called a “helpful” letter, saying this to the requesters: The documents being released to you through the Freedom of Information and Protection of Privacy Act are subject to crown copyright, and therefore you can look at them yourself in the privacy of your own home, but if you want to put them up on the Internet, then you have to get permission from the intellectual property branch of the Government of British Columbia.

We have a bit of a problem with that. Michael Geist has also written about this in his blog. Essentially, there are single-digit applications of this act in terms of defending crown copyright. If you are looking for economies to make, maybe that's the place to be looking.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Rubin, I wonder if you could say a bit more about the exemptions, and about how you think the exemptions should be narrowed and reduced. In your proposal, you've done that. I wonder if you could talk about some of the other ones. You mentioned in particular the public safety override. Could you talk a bit more about what you see would be more appropriate in those areas?

[Ken Rubin]

First of all, the way I've put it in my bill is to call them restrictions or “secondary”. They shouldn't be, as they are right in the preamble, as they now are in the access act.... It's not a principle. If you make it a principle, then you have a dual road, and guess which road wins? Secrecy wins, and that's what's happening.

I start from proactive disclosure, and therefore I don't think the public interest override in itself does much. I have tested that, not only federally under the commercial information clause, which has an override clause for health and safety issues.... I ended up in the Court of Appeal having to pay Health Canada and the Government of Canada $1,500 for that test case. That's what they think of it.

Provincially, where you have to prove compelling, overwhelming, legal public need, it's impossible. It's very nice for the Reid bill and others to put it in, but it doesn't work as a solution. Yes, there may be significant injury tests, and time restrictions, if a document has to be exempt for a year or two or three, depending on its sensitivity. Remember what Commissioner Grace and Commissioner Reid said: they haven't seen any documents that are really sensitive or that secret. I can say the same thing. I've seen cabinet records from 20 years, or even sooner. There's nothing sensitive about them.

So time restriction, injury-based, and so on.... I could elaborate more on cabinet records, but I don't know whether the chair wants me to add more.

[The Chair, Liberal, Paul Szabo]

We have one minute left. Carry on.

We'll have one last question here.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Maybe you could say more about the need for national security and trade secrets kinds of restrictions, as two of the areas that often come up.

[Ken Rubin]

Former Commissioner Reid's bill started on the subject of trade secrets by saying, take out this consistent “confidential”. It's just a ploy by the corporations to.... And I would go further. I would say, take out the third-party notifications of corporations, special privileges originally put in by the business lobby in the access act; they delay records to no end.

Commercial information is one of the most cited exemptions. If it were really crunched down and narrowed to “significant injury” to trade secrets, if they weren't environmental health safety matters, there would be some legitimacy. But you can't keep those secret forever. Part of the problem is that there has been jurisprudence built up around commercial confidentiality, which is tried by the lawyers from the corporations, who have many more resources. They've tried to confine it, but it's such a broad overwhelming thing that I've tried to restrict it even further.

National security is a difficult one. Again, I think you have to try to limit it. I would say to use a time restriction up to five years, but only for highly sensitive military defence data or data concerning verifiably hostile organized crime or terrorist activities. The problem is that it's so broad that you can't even find out, for instance, about the outsourcing of security contracts. In the United States, well over 50% or even more of the current security intelligence budget is consumed by groups that are unaccountable. We have to find out these things.

[The Chair, Liberal, Paul Szabo]

Thank you.

Madam Block, please.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Thank you very much, Mr. Chair. Thank you as well to the witnesses for their testimony.

In his testimony before this committee on March 9, the Information Commissioner told us that the Conservatives' Federal Accountability Act was the most significant reform to the Access to Information Act since its inception in 1983. David Loukidelis, the Information and Privacy Commissioner for British Columbia, Stanley Tromp, the author of Fallen Behind: Canada's Access to Information Act in the World Context, and Murray Rankin, a lawyer specializing in information law and author of the preface to Fallen Behind, all agreed that the Federal Accountability Act was the most significant reform to the Access to Information Act since its inception. The same was true of Michel Drapeau and Marc-Aurèle Racicot, as well as Duff Conacher, when they appeared before the committee on Monday.

Would either of you disagree with this assessment?

[Ken Rubin]

Yes, I would. I think they're being far too polite to you.

I don't think, when you make special deals with crown corporations so that you can't—as my experience is—get anything out of them.... There's another clause in the Accountability Act that gives the definition of administrative records. It's been transposed into being like atomic energy control: you can't get a lot of stuff on nuclear safety, just on administrative records.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

So you are disagreeing with that assumption?

[Ken Rubin]

Yes, I am, but let me just—

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

I would like to hear from Mr. Gogolek.

[Vincent Gogolek]

It seems you're asking me a question along the lines of asking “Would you say that General Motors is healthier than Chrysler?”, and I would agree that it is. We're talking about important but still relatively minor amendments compared with what is required in this situation—with what the Conservative Party itself has identified as a problem and solutions.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

In 2006-07, a total of 186 institutions were subject to the act; 69 additional institutions are now subject to the Access to Information Act, following the coming into force of the Federal Accountability Act. This brings us to 255 institutions that are now subject to the Access to Information Act. You are disagreeing with all of the experts who have appeared before the committee thus far. What specifically would you say was the most significant reform to ATIA since 1983, if not the Federal Accountability Act?

[Vincent Gogolek]

Ms. Block, I'm afraid I wasn't disagreeing with them; I agreed, but only in the sense that it is limited.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Mr. Rubin, what would you say was the most significant reform since 1983?

[Ken Rubin]

I happened to be involved with one in 1998-99, which was when the Liberal MP Beaumier got section 67.1 passed, which said you shouldn't alter or prevent records from getting out. That, I think, sent a ripple through the bureaucracy. We had had the blood committee records destruction; we had had Somalia, where certain records were covered up.

I'm not saying that you guys didn't try. I just think you might have been a little hoodwinked by the mandarins. If you had just brought in those corporations—and by the way, the 69 additions you talked about include some of the subsidiaries, whereas I mean the main guys—it would have been better if you hadn't added all their bells and whistles to pro-secrecy, and if you hadn't said we'll exclude, besides administrative records, the operational records, policy-making records, communication records, decision-making records. All those are excluded, in some cases. I don't feel that this is a wise move, because every other agency would like that too.

I would like to say that the Federal Accountability Act could have done whatever, but I'm getting blank pages. I'm not an expert who doesn't try using the act.