Evidence of meeting #8 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.
4:30 p.m.
Bloc
Claude Guimond Bloc Rimouski-Neigette—Témiscouata—Les Basques, QC
This would certainly change things.
Do you think that the inclusion of cabinet confidences in the act would have an impact on the proceedings or decision-making of the highest level of government?
4:30 p.m.
Information Commissioner, Office of the Information Commissioner of Canada
I think comments made in cabinet would remain exempted, and for good reason. In the Westminster model you mentioned, cabinet solidarity is important. Having a common position on particular policies does remain fundamental to the system.
This is not a problem in New Zealand, where there is very proactive disclosure of cabinet decisions, sometimes within two to three months. Here, it takes 20 or 30 years.
4:30 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Thank you, Mr. Chair.
I wanted to follow up, Mr. Marleau, on the discussion we were having earlier about your recommendation number two, insofar as it relates to your recommendation on extending the information to be provided to include cabinet confidences.
For example, how would you prevent some group like the Taliban or some other foreign governments that might have some reason to want to make frivolous and vexatious information requests to the Canadian government from using this Web-based access to information system to fire in thousands of requests for information concerning the mission in Afghanistan or from requesting cabinet confidences on that? How would you see that being handled?
4:30 p.m.
Information Commissioner, Office of the Information Commissioner of Canada
As I said earlier, I don't think it would make much difference. No doubt right now the Taliban have resources--their own brokers--they can hire, and they can be totally anonymous in the process by using a broker from abroad who is a resident of Canada.
4:30 p.m.
Conservative
4:30 p.m.
Information Commissioner, Office of the Information Commissioner of Canada
You might know, but it's hard to determine, depending on the individual. It's supposed to remain private or confidential within the department. In that sense, I don't see that there would be much of an issue.
As far as cabinet confidences are concerned, we're recommending that we go from using exclusions, which are absolute right now, to discretionary exemption, which means that the Privy Council Office will still have to make a decision on what is being released. It's not just a question of opening up the doors to cabinet. There's third party oversight, which means the commissioner can look at it and say to you as a requester, “I'm sorry, you can't have this.” You'll accept that with a lot more confidence, I believe, in terms of the mandate of my office than if I say, “I'm sorry, I can't see it. The clerk tells me it is a cabinet confidence.”
4:30 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Do you know today if foreign governments use the Access to Information Act as a way, for example, of finding out information about trade negotiations that Canada might be involved in? Have you ever seen any evidence of something like that?
4:30 p.m.
Information Commissioner, Office of the Information Commissioner of Canada
I don't recall anything in the context of our complaints investigations, but remember, the rest of the statute applies. There is a series of exemptions. The departments have the duty to keep state secrets a secret. Quite frankly, if you look at the 25 years of experience under this statute, it has served that community well. There has not, to my knowledge, been a serious substantive leak through access to information on matters that should not have been released.
We're asking to bring within the scope of that application certain documents that are excluded, such as cabinet confidences.
4:30 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
I'm concerned about how that might play out in a Web-based system, which is free and easy for anybody with a computer anywhere in the world. I can see that becoming unmanageable.
4:30 p.m.
Information Commissioner, Office of the Information Commissioner of Canada
I can tell you that my conclusion from the last report is that the paper world is unmanageable as it sits. The government is crumbling under the weight of its own paper, and every time there's another request, we add another layer of paper.
4:30 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Wouldn't moving to a Web-based system exacerbate the problem?
4:30 p.m.
Information Commissioner, Office of the Information Commissioner of Canada
No, I believe that more proactive disclosures on the Web will be a first step, as we've advocated before. Repositories of what has already been released and easily accessible would also help. Additionally, whether you are applying exemptions on a piece of paper using a black felt marker to exempt, or using software in order to exempt and send it on the website, you are still performing the same task. I think it's a lot faster to do it on the Web.
4:35 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
With respect to your third recommendation regarding order-making power, can you give me an example from a case that you've dealt with of an order power that you might be contemplating?
4:35 p.m.
Information Commissioner, Office of the Information Commissioner of Canada
Let's use a hypothetical case. A particular department is using preparation fees as a way to discourage requests. In other words, you ask for a search on a particular set of documents and they come back to you and say it is going to cost $5,000. As a requester you might want to think twice about pressing on with that. So you narrow it down even further, not through the assistance of the department, but because you can't afford it. So you get it down to $250. That is against the spirit of the act.
There is no recourse for this, even when I get a complaint. We do have considerable influence through our investigative process on dealing with fees, for instance. In this case I could simply order the department to waive its fees or forfeit its fees if it's a deliberate abuse, of trying not to release information. In some cases they are trying to buy time to manage their workload. There is a resource issue related to this. If they ask this requester to pay more than he might pay, then he might go away in the meantime so they can get on with some of the other stuff.
The order-making powers for administrative purposes would be to deal with those kinds of issues.
4:35 p.m.
Conservative
4:35 p.m.
Information Commissioner, Office of the Information Commissioner of Canada
Yes, sir.
4:35 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Okay.
With respect to your recommendation number five about public education research, can you give us an idea of what kind of budget you might be thinking of in order to do that kind of education, advertising workshops, etc.?
4:35 p.m.
Information Commissioner, Office of the Information Commissioner of Canada
We haven't pegged a figure for it. There are benchmarks in the system. The Privacy Commissioner has this authority. Some of our provincial colleagues have also. As is my usual way, I would advocate a prudent and progressive approach to it.
Right now no one is doing this. The Treasury Board Secretariat has a mandate to educate and train the public servants. I have an advocacy mandate, which sometimes gets the Treasury Board quite uncomfortable depending on how far I'm going. I really can't justify taking investigative resources and putting it into printing pamphlets. But there is no one there, certainly no one independent of government, who has the mandate to educate citizens on their rights.
I'll give you a brief example, Mr. Chairman, from the press conference I held on the report two weeks ago. An experienced reporter aggressively asked me a question about why I was not exercising the full powers of the commissioner and why was I not simply ordering this information to be released. I had to gently remind him in front of all his colleagues that I don't have order-making powers. I can only recommend. So there are myths around the statute that could be easily dispelled by simple education and didactic material.
4:35 p.m.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
Thank you, Chair.
Commissioner, recommendation number four is the one about providing the commissioner with the discretion on whether to investigate complaints. You are seeking that discretionary power. I know you've noted that the usual judicial review process would still apply in those situations where a decision not to investigate was made. You also note in the benchmarking section of your documentation that different jurisdictions handle that discretionary power in different ways. In some cases it's very broad, where commissioners have the discretionary power to refuse to conduct an inquiry as circumstances warrant. In other jurisdictions it's much more specific and there's a longer list of limitations on that, where it has to be trivial, not made in good faith, frivolous, vexatious, or amounts to an abuse of the right to access.
Do you have any opinion on whether you should have a broad mandate there or whether there should be some stated limitation on it?
4:35 p.m.
Information Commissioner, Office of the Information Commissioner of Canada
As a general response, I feel it could have some definition in terms of scope, but a broad mandate would be more useful. It would give the commissioner the kind of flexibility I think is required to change the behaviours that are not necessarily vexatious and frivolous but borderline. But if I have to go to court and prove “vexatious”, I might not win the case. That's a lot of investment and resources.
I'm accountable to Parliament. Certainly using categories and that sort of thing would make our annual reports on cases we may have declined to investigate as transparent as I can without violating the privacy of the requesters or the complainant so Parliament gets a sense that the commissioner is not going crazy and abusing his or her authority.
We're 25 years out. We're a mature democracy. If you're going to confer upon the commissioner some pretty extensive search powers and trust me or her to use them, it seems this is a very small step towards trying to build some efficiency in the system. I think with the other powers we already have under the act, which demand considerable responsibility and accountability, it's a small adjunct.
4:40 p.m.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
With regard to your recommendations around parliamentary review every five years, without the power for a parliamentary committee to actually bring in legislation based on that review, is that just another committee report that gathers dust on a parliamentary shelf if that government, which has the vested interest in protecting information, is not prepared to act on the recommendations? Is there another mechanism for ensuring that when a review of that kind is done recommendations get debated in the House and put forward in the form of legislation?
4:40 p.m.
Information Commissioner, Office of the Information Commissioner of Canada
Certainly in terms of debate, the committee has access to the House by its powers to report to the House, and of course it could propose concurrence in such a report. In that sense it would be somewhat of a guarantee that once every five years the House is seized of the subject matter. As far as guaranteeing change goes, that's a little difficult. Minority parliaments have more clout than majority parliaments.
But it's important to look at our 25-year experience. There was a mandated review in 1987 and very little happened. The next event was 1997, for an amendment to subsection 67(1). The next event was 2006, with the expansion of the statute of the FedAA. All three were not correlated. All three never had a parliamentary review in the sense of what we're advocating here. It's a question of timely seizing the House and the committee of the issues of the day and the evolution and maturing of the system.
