Information & Ethics Committee on May 4th, 2009

[The Chair, Liberal, Paul Szabo]

I call the meeting to order.

This is the 18th meeting of the Standing Committee on Access to Information, Privacy, and Ethics. Our orders of the day are with regard to Access to Information Act reform.

This afternoon we have appearing with us the Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada. He will be with us for the first hour. He has with him some departmental officials, whom he will introduce, and they will be staying with us for the balance of our meeting, until 5:30 p.m., at which time we also have one other minor item to deal with, if we can, before we adjourn for the day.

Without further ado, I would like to welcome the minister and thank him for coming before the committee to assist us in our review of the Access to Information Act and possible reforms. I understand, Minister, that you have some brief opening remarks, and then we'll get right on to the questions from the members.

Please proceed, Minister.

[Rob Nicholson, Conservative, Minister of Justice and Attorney General of Canada]

Thank you very much, Mr. Chairman.

I'm pleased to be with you for a little while this afternoon.

I am delighted to have this opportunity to appear before you in order to discuss the 12 recommendations from the Information Commissioner and a reform of the Access to Information Act.

What I propose to do in the next few minutes is to give this committee some background information on access reform and then to make some comments on certain of the commissioner's recommendations. I think these comments will give you food for further reflection and analysis. Finally, I'd be pleased to take any questions you may have.

As the members of this committee will remember, the government's first major piece of legislation was the Federal Accountability Act. This was tabled in the spring of 2006 and received royal assent on December 12, 2006. With the Federal Accountability Act, the government brought forward significant reforms to the Access to Information Act. This act had not been comprehensively amended since coming into force on July 1, 1983.

One of the reforms in the Federal Accountability Act extended the Access to Information Act to a number of officers and agents of Parliament, several foundations, and the Canadian Wheat Board. Mr. Chairman, I would like to take a moment to describe a couple of the other important reforms that were introduced in the Access to Information Act by the Federal Accountability Act.

For quite a number of years there had been an ongoing debate as to whether or not crown corporations should be covered by the Access to Information Act. On one side there was the argument that the crown corporations operate essentially in the private sector and therefore should not be burdened by the Access to Information Act. On the other side, the argument was that the crown corporations are connected to the government and therefore people should be able to submit access to information requests to them.

The government saw this as an issue of transparency and accountability and therefore came down on the side of extending the coverage of the Access to Information Act to crown corporations. But the reform didn't stop there. By this I mean that the government could have listed a number of crown corporations that would be covered by the act; instead, what we did was amend the act to state that it covers all parent crown corporations and their wholly owned subsidiaries. For now and for the future, the matter is simple: all crown corporations or wholly owned subsidiaries of a parent crown corporation are covered by the Access to Information Act.

I want to mention one other specific improvement to the Access to Information Act that was accomplished by the Federal Accountability Act, and that's the duty to assist. This provision states that the head of a government institution shall make every reasonable effort to assist a requester in connection with an access to information request, respond to the request accurately and completely, and provide timely access to the record in the format requested. This duty applies regardless of the identity of the person making the access request. The Federal Accountability Act has also brought forward a number of administrative reforms that I will not get into here.

As you may recall, in April 2006, when the bill containing the Federal Accountability Act was introduced, the government announced a two-pronged approach to access reform. The first step consisted of the amendments included in the Federal Accountability Act, which reflected a number of the reform proposals put forward by the previous Information Commissioner. The second step was a discussion paper that raised a number of areas of concern on the part of Mr. Reid, who was then commissioner. These areas required further analysis and stakeholder consultation before reforms could be introduced. That's why my colleague, the then Minister of Justice, Vic Toews, in the spring of 2006 tabled with this committee a discussion paper entitled, “Strengthening the Access to Information Act: A Discussion of Ideas Intrinsic to the Reform of the Access to Information Act”.

This paper stated in its introduction that:

The government is committed to consulting with citizens on ongoing policy development processes and to ensuring that members of Parliament have the benefit of input from all Canadians.

This commitment still stands.

The paper also stated that the Access to Information Act had a broad constituency across many sectors of society with widely divergent views on its administration. For this reason, it's appropriate to hear a wide range of views on reform proposals and to develop approaches for reform in a public forum before the government introduces or prepares or considers a bill.

This is also still true today.

Mr. Toews appeared before this committee on June 19, 2006, to highlight certain concerns and issues explained in the discussion paper and to invite members of this committee to consider these issues further.

More specifically, my colleague said in part:

As the Minister of Justice, I have confidence that the government would benefit from the committee's views on access reform. It is your work as parliamentarians that will be important in shaping this reform. Therefore, it is my hope that your committee will [discuss and] study the discussion paper.....

Clearly, the paper was presented to this committee with the intent of involving parliamentarians in this highly important process. At this time, it is my understanding that you are not consulting with a wide range of stakeholders whose views could be of critical importance in this area, so I'm going to take the opportunity again to remind this committee that as the minister responsible for this, we would like to have any input that you would like to make with respect to it.

I'm going to therefore add my voice to my predecessor's and encourage the committee to perform the very valuable work that it is best positioned to carry out, which is to study the challenging issues raised by the discussion paper.

Turning to the commission's recommendations, I should note that some of the commissioner's 12 proposals are dealt with in the discussion paper. I'm not going to go over those in detail unless they're raised in the subsequent question period; I'll just mention them briefly. Those items are cabinet confidences, universal access, coverage of Parliament, allowing time extensions when responding to multiple and simultaneous requests from the same requester, and imposing a deadline on the commissioner for the completion of administrative investigations.

Let's start with Mr. Marleau's fourth proposal. The Information Commissioner recommends that the act be amended to allow the commissioner discretion on whether to investigate complaints or not. In my mind, this proposal is intricately connected with his recommendation 11, which proposes that complainants have the option of going directly to the Federal Court if they have a complaint about a refusal of access. Interestingly, these two recommendations closely resemble two of the Privacy Commissioner's recommendations. When I appeared before you last year to discuss those ten “quick fixes”, I expressed a concern that I'm going to repeat today.

My concern about the Information Commissioner's recommendations 4 and 11 can be boiled down to one of ease of access to justice. Under the current ombudsman model, an access requester can complain to the commissioner about a refusal of access. The commissioner is obliged to investigate, and upon the completion of the investigation, the commissioner will make a finding and a non-binding recommendation. If the requester is unhappy with the result, he or she can then go to the Federal Court.

I believe the crucial point is this. Under the current act, if the requester decides to go to Federal Court, he will then have the benefit of all the work that went into the commissioner's investigation and its results.

Under the commissioner's proposed reform, if the commissioner exercises his discretion and declines to investigate a requester's complaint, then the requester would be obligated to go directly to the Federal Court to complain. In this case, the requester then would not have the benefit of the commissioner's investigation; that is, the requester will have to start from scratch, attempting to investigate the refusal of access without any of the significant investigative powers the commissioner possesses. In short, I encourage you to consider these access to justice issues when you examine these two recommendations.

Recommendation 3 is that the commissioner be provided with order-making power for administrative matters. The commissioner describes this as a third model, a hybrid of the ombudsman model and the tribunal model. As this recommendation stands, a government institution could decide to appeal the commissioner's orders regarding, for example, extensions of time. As a result, the resources of the Federal Court could be increasingly occupied with disputes about the Access to Information Act's administrative or procedural matters.

In addition, the committee should be aware of the possible increased need for resources that may be necessary in order for government institutions to comply with the commissioner's orders.

Finally, recommendation 7 is in part that the Access to Information Act be extended to cover records related to the general administration of the courts.

I strongly encourage you to have thorough consultations with the courts on this issue, given the critical importance of judicial independence.

In closing, I would like to remind the committee that the Access to Information Act is an important statute of crucial importance to government accountability. It's a fundamental part of our democracy, and we're fortunate to have a statutory right to check up on the government. We must not allow this democratic right to be altered in any way that is not entirely thoughtful and cognizant of all the interests at stake.

Accordingly, I urge your committee to call on stakeholders to discuss the potential areas for reform in order to arrive at a balanced approach that reflects the needs and concerns of all affected parties.

Thank you, Mr. Chair, and I look forward to any questions you may have.

[The Chair, Liberal, Paul Szabo]

Thank you kindly, Minister.

I want to move directly to the questions of members in the seven-minute round.

We'll start with Mr. Wrzesnewskyj, and then Mr. Nadeau, Mr. Siksay, and Madam Block.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you, Chair.

Minister, among the 53 Commonwealth countries, cabinet discussions are excluded from access to information requests in only two, South Africa and Canada.

It's an issue that the Conservative Party had raised, in fact, during the 2006 election. In your platform, “Stand up for Canada”, you pledged that so-called cabinet confidences would not be excluded from the commissioner's review. It's been three years, and this promise has not been lived up to.

I'd like to know when you intend to live up to that promise to Canadians.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, Mr. Chair, I'm pleased to hear any recommendations or any analysis that is made. This matter has been raised. You have the discussion paper before you. The whole question of cabinet confidentiality, quite frankly, is a long-standing cornerstone of the Westminster system of government, so if this committee would like to examine that issue--and I think they should--I would be pleased to have a look at this issue.

Now, my understanding is that the certification process that goes on between the Clerk of the Privy Council and any requests from the commissioner works well, but nonetheless, I'm here to tell you that if you would again take up the challenge that was issued by my predecessor, the former Minister of Justice, I would be pleased to see whatever you have to say.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

This was a clear commitment that the Conservative Party made in 2006. At that time they didn't say things like “The current system works well”; it was a clear commitment.

Let's move on. Under your Conservative government the average processing times have gone from 30- to 60-day periods to 150- to 250-day periods. When departments are asked to respond as to why things are taking so long, they often respond that it's in “PCO consultations”. Why is the PCO delaying requests from months to years?

In fact, there is a new twist to what they're doing. It's almost become Orwellian. They are now sending out memos, saying the following:

We are aware that a certain time has passed since your request was originally received and we sincerely apologize for the delay. In an attempt to clear out our heavy backlog situation, please complete the following: Do you still require that information--yes or no?

They're trying to compel people.... They're delaying--delaying to the point where perhaps it's no longer relevant--and then trying to get off the hook for having delayed by getting the people to actually say it's too late now, and they're saying that the original requester has asked that the access to information request be dropped.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Well, I think improvements have been made, quite frankly, and while there may be a considerable number of--

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

We're up to 250 days for most--

[Rob Nicholson, Conservative, Niagara Falls, ON]

There may be many requests before the Information Commissioner. The government has been quite proactive in encouraging a cultural change, quite frankly, from the previous administration to make sure we get this information out.

I hesitate to brag, but my own department, as you will know, has gone from an F to an A rating. Any time you get an A on a report card, it's a pretty good sign. We all understand that. I'm pleased the Department of Justice is responding, and of course we're one of the key components of this government. The commissioner is quite happy with the way we are responding.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

As the minister responsible, have you turned to the PCO and said, “This is not acceptable. My own department has an A rating; you guys have the worst rating around. I'm the minister responsible. Get things rolling.”

In fact, in February of this year the commissioner, Mr. Marleau, stated publicly, “My understanding is there is a stranglehold in the centre....”

Why is there a stranglehold in the PCO on access to information requests?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I can't agree with you whatsoever on that. I think everybody is committed to the piece of legislation, to getting information out. Some of the requests are very extensive; some of them are very complicated. I'm delighted to see that there is progress.

The President of the Treasury Board actually has dual responsibility with this. So that there's no misunderstanding between him and me, my department drafts any changes to the legislation. That being said, I think there has been considerable progress. Certainly the Department of Justice is an excellent example of it.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

In 1999, legislation was passed making it an offence to destroy or attempt to destroy, mutilate, alter, falsify, or conceal a record with intent to deny a right of access.

You were sworn in on January 4, 2007. During public accounts committee hearings on June 11, 2007, there were very serious allegations made by two RCMP officers, Officer Michel Joyal and Superintendent Christian Picard. Your Conservative colleagues were at that meeting. I understand there may have been a staffer from the PMO there. So everyone was aware of these serious allegations that on an access to information request about Mr. Zaccardelli's expenses there was an attempt to block.

In fact, the officer in charge, Michel Joyal, was called into the commissioner's boardroom, and the deputy commissioner, Mr. Gauvin, provided alternate documents to do a switcheroo—documents that they had prepared, cooked up, to do a switch with the documents that were to be sent out. This was confirmed by Superintendent Christian Picard.

Why have you not acted on this? This is clearly a criminal situation.

[Rob Nicholson, Conservative, Niagara Falls, ON]

You have made about 15 different allegations and accusations.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

No, there's strictly one.

[Rob Nicholson, Conservative, Niagara Falls, ON]

The committee can pursue anything it wants. We're acting in a responsible manner. We have done it, and the results are here. What I'm saying to you while I am before this committee today is that this discussion paper was tabled before the.... We want your input on these things. If you're here just to make allegations or accusations about something that happened in early 2007, be my guest. But I'm hoping you'll have a look at this discussion paper and come forward with thoughtful recommendations, because it was tabled in the best of interests by my predecessor.

Again, you should have a look at these things. I think they should be studied by this committee.

[The Chair, Liberal, Paul Szabo]

Thank you.

We're going to move to Mr. Nadeau, s'il vous plaît.

[Richard Nadeau, Bloc, Gatineau, QC]

Thank you, Mr. Chairman.

Good afternoon, Mr. Nicholson. You are asking us to do another study of something that was looked at quite a long time ago. Back in 1987, we had begun consideration of the bill, then we had another look at it in 2000, 2001 and 2005.

Like your Liberal predecessor, Irwin Cotler, you are asking us to consider the bill yet again, even though you know full well that the Information Commissioner of the day, Mr. Reid, had suggested a complete bill to the government in October 2005 in order to bring the government in step with the realities that he had brought forward as Information Commissioner.

Mr. Nicholson, within the next few months, will you implement the recommendation that was made during a meeting that this committee held in September 2006, namely, that the government table new legislation regulating access to information?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much, Monsieur Nadeau.

The government, of course, had a look at what the former commissioner's recommendations were. As you heard in my opening remarks, I was very pleased that under the Federal Accountability Act we made changes. We made government institutions more accountable, including crown corporations, as you know. That's a huge step forward, in my opinion.

I think I stated sometime the different considerations that went into it and the obligations put on people to move forward on these requests. These are huge, and I think they're very good reforms. In fact, I believe they're the most significant reforms to this legislation since it came into effect on Canada Day in 1983.

That being said, you have the recommendations of Mr. Marleau, the present commissioner. I would be very pleased to hear your comments and those of your fellow committee members. I would be pleased to hear what you have to say. Again, any time you're prepared to come forward with a report addressing the different recommendations he has made, I would certainly be pleased to hear from you.

But we have taken action, and again, I certainly don't close the door.

[Richard Nadeau, Bloc, Gatineau, QC]

Mr. Nicholson, we are playing games here. One thing is for sure, and that's with Commissioner Reid's past proposals, we could have gone ahead with this bill, even though it was imperfect. This would have allowed us to bring forward the new proposal to make changes to the bill so it would be more in keeping with today's realities. We could have studied it in committee. Unless I'm mistaken, you are not very keen on the idea of using the bill that Commissioner Reid wrote as a starting point to update the Access to Information Act. Am I right?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Well, I can tell you, Monsieur Nadeau, I'm very open to hear what you have to say on this. As you know from the discussion paper you have before you, it's not just Mr. Marleau's but a number of Mr. Reid's proposals. Again, we addressed a number of the issues raised by Mr. Reid in the Federal Accountability Act. That was a huge step forward. I think most people look at it and say it is a pivotal piece of legislation in terms of protecting people's rights and ensuring accountability and transparency.

So I just want you to know that I'm very open to listen to any remarks, any comments, any recommendations that are coming from this committee. I welcome them and hope you will take the opportunity to have witnesses before you, and again, your comments—

[Richard Nadeau, Bloc, Gatineau, QC]

With all due respect, Mr. Nicholson, table the bill drafted by Mr. Reid in the House of Commons, which is exactly the remark you need to hear from this committee, because that's what the committee had asked for. I am asking you to show some pride and keep the promise that your party made in 2006 to prepare a new Access to Information Act that would take into account the recommendations that Commissioner Reid made for us at the time. You know our point of view on this issue. I hope you will be a gentlemen and keep your word as a politician.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, I would like to have your comments on the recommendations of Monsieur Marleau. You have them before you, and I would be very pleased to have this committee.... With respect to Mr. Reid's comments, you've seen that the government has already tabled legislation under the Federal Accountability Act. You know how difficult that was to get through the previous minority Parliament. I tell you, I was very proud the day we got that through, because it was a huge step forward for transparency and accountability.

Again, I put it to you, Monsieur Nadeau. Let's have a look at these recommendations. I'd like to have all the comments on their—

[Richard Nadeau, Bloc, Gatineau, QC]

Mr. Nicholson, you're doing a good job of camouflaging the issues. Congratulations, but I'm really not impressed by your answer. You have heard what we are asking for. I hope that you will have the courage of your convictions and table this bill in the House of Commons so that the committee can then discuss it. Thank you.

Thank you, Mr. Chairman.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I hope you know what I'm looking for from you, Monsieur Nadeau. Please, let's move forward on this. Again, I welcome your input.

I feel terrible, Mr. Chair. We went ahead and we didn't listen to what the committee might have to say on these things. I feel terrible about that. I think you should have any recommendations—or maybe your recommendations are against these things; I'm not even presupposing that. You may say, we've gone through these things; this is not doable, and that's our recommendation to the government. Either way, I would be very pleased to have your input on this.

[The Chair, Liberal, Paul Szabo]

Thank you.

Mr. Siksay, please.