Bill C-2 (39th Parliament, 1st Session) Committee on May 18th, 2006

[John Reid]

That's correct. But if it had been the CBC, then it would be different, because the CBC is a crown corporation.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Then they would. Okay.

Let me ask you about another of the suggestions you have with respect to whistle-blowers. You are suggesting that all information with respect to whistle-blowers be subject to ATI.

I'd like to get your comments on why you disagree with one of the exemptions we have. If an investigation into a frivolous or spurious charge laid under the whistle-blowers portion of the act concluded there was absolutely no substance, no basis of truth, to the allegation, we are suggesting that the allegations and the name of the innocent individual involved in this.... In other words, if an allegation had been made against an individual that he or she had done something wrong, and an investigation concluded that there was absolutely no wrongdoing, we are contending--since it was a frivolous allegation to begin with, or at least a baseless allegation--that the the allegation and the name of the whistle-blower should not be made public.

You are contending that all those allegations--no matter how frivolous, no matter how baseless--should be released. Is that correct? Am I accurately reflecting your position?

[John Reid]

We've circulated to you a paper comparing the proposals over time in dealing with clause 55 of Bill C-11, and clause 222 on section 55. You have that sheet in front of you. From that point of view, you'll notice that in clause 55 in Bill C-11--the original one--it authorized secrecy for five years. It was discretionary, not mandatory. It used the word “may”. It was focused on protecting the identities of whistle-blowers and those cooperating in investigations. That was the original proposal.

On the other hand, clause 222 of Bill C-2 authorizes secrecy forever. In other words, it never comes out and it's mandatory, not discretionary. It does not focus on identities. It authorizes secrecy for information created for the purpose of making a disclosure and information created in the course of an investigation into a disclosure.

I'm in agreement with the public service integrity officer, and he has suggested that secrecy only cover the period during which the investigation is under way. He has asked for discretion to disclose information in the public interest, such as the identities of wrongdoers.

To take your example one step further, Mr. Chairman, if I have been falsely accused, why should I not have the evidence to protect my reputation? Under this proposal it is mandatory that no information come out forever, so why should I, as a person who has been accused and cleared, not have access to the information? That affects me.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Would you then let me follow up on that? I'm not disagreeing with what you're saying.

[The Chair, Conservative, David Tilson]

I don't know. They're going to let you continue.

[Benoît Sauvageau, Bloc, Repentigny, QC]

I have no objection as to your asking for unanimous consent.

[The Chair, Conservative, David Tilson]

Right, it's no problem.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Just to follow up for clarification, I'm not disputing what you're saying. Would it be more reasonable, however, to suggest that the aggrieved party have the option of whether or not they wanted that information released? We all know that sometimes if a charge is laid, even though it's proven baseless, people say that if a person was charged he has to be guilty. I wouldn't want that information to be out there if I were the aggrieved party, because some people would still think there had to be something there. Why would that person make that accusation unless there were something there? But if it were my option and, as you suggest, it might help defend my reputation by having this information in the public, fine, let it be my option.

We took a more cautious approach by saying that if the information was out there, some people might believe there was substance, an element of truth in it, and that would harm the person's reputation. We just didn't want to see that chance taken.

[John Reid]

The advice I would give the committee is to take the suggestions made by the integrity commissioner.

[J. Leadbeater]

Can I just add to this?

You have to understand what happens now. Allegations and investigations of wrongdoing have been going on in government since time immemorial, and the Access to Information Act has been covering these reports. Here's how they're handled.

If someone asks for a record about an investigation into a wrongdoing against you, government institutions neither confirm nor deny whether they have any such record, because to do so would reveal personal information about you. They release nothing. That's the current way. We're not talking about having a situation where it all goes out. You have privacy exemptions in the act, but there are provisions that allow it to go out with consent if it's already in the public domain, or if there's an overriding public interest. What the provision that has been proposed in Bill C-2 does is take away all of those out-clauses, so there is no public interest override, no consent—you can't even consent to it being disclosed—and no disclosure, even if it's already in the public domain.

We're just saying that the current protections are strong, but they have out-clauses essential in a democracy. What's being proposed takes away those essential out-clauses in a democracy.

[The Chair, Conservative, David Tilson]

Okay.

We have about 15 minutes. We have Mr. Tonks, Monsieur Petit, and Monsieur Sauvageau.

Mr. Tonks.

[Alan Tonks, Liberal, York South—Weston, ON]

Thank you, Mr. Chairman, and thanks to you, Mr. Reid, and to your associates.

I'm taking this not from the legal or the conspiracy perspective. I'm trying to understand from a layperson's perspective what the unfettering of your ability means, as Information Commissioner within the context of a larger, hugely complex organization.

I sat on the public accounts committee, and Mr. Martin also sat on that committee, at the time the issue with respect to the sponsorship matter was investigated through an internal review or an internal audit. At that time there was no hierarchical or accountability loop that would trigger with respect to the information that came out of that internal audit. It just sat there, with no action taken—nothing. At that time—this is around 1995—the Office of the Comptroller General had been dismantled in terms of internal audit reports that would have some sort of repository and response regime.

With that experience, the blanket of secrecy Bill C-2 throws over draft audit reports and records about wrongdoing in government is particularly regressive. Given the experience in 1995, I can't underscore enough how emphatically I agree with that statement. Now that the Office of the Comptroller General has been re-established, and as I understand it, that internal audits are ensconced with the Comptroller General in the provisions of the proposed open government act, if a request were made for access to information that isn't in an internal audit, do you have the authorities, either under this bill or under the access to information draft, to bring forward whatever relevant information you feel would be in the public interest?

[John Reid]

Yes. We have the opportunity to investigate to make sure the material that is supposed to come out does come out. We basically get to see the material and to make sure that if it comes out it meets the requirements of the act, and if it doesn't, it meets the requirements of the act.

What I'm concerned about here is that sometimes when you see an audit—an audit is an investigation—I don't think you should see the working papers of the audit until the audit has been completed. It's just like what we do in almost every other thing: when documents are asked for, we use those documents to trace back the flow of a policy and the flow of a decision.

In the same way, when we're looking at audits, we have to be able to go back to look at the original documents and the investigation to be able to assure that things have gone the way they have. The act is a very complex one, as I have said before, because it means that every time there is a request for information coming in, the 13 exemptions come into play, and each one of those 13 exemptions in the act applies to every document that goes out under the Access to Information Act and/or through the government's releasing it on its own.

[Alan Tonks, Liberal, York South—Weston, ON]

Are you satisfied that there isn't any truncating at the Comptroller General's level that...? I would think that if information were required of the Comptroller General, the Comptroller General would apply the same logic and release that information.

[John Reid]

I can't speak for the Comptroller General and the way in which they operate, but I can say that the internal audits are really going to be the area the Comptroller General pays attention to. We know from our discussions somewhat how it's going to work, but I can't answer the rest of your question.

[Alan Tonks, Liberal, York South—Weston, ON]

But pursuant to what you said, you have the penultimate authority.

[John Reid]

I have no authority to release documents at all. I am an ombudsman, and therefore I can only recommend to departments that they release the information. I have no power to do that on my own. We have 1,400 cases a year. We take maybe two cases a year to court. Mind you, I'm sued by the government about ten or twelve times a year, but I only take about two cases a year to court. We are probably the leading proponent of alternative dispute resolution in the Government of Canada. We're very successful and very proud of that.

It goes back to the original question that was asked about the radical proposal. The radical proposal, in my mind, was to give me an ombudsman order-making power. I am very satisfied with the powers that I have under the Access to Information Act to do what I have to do, and I was grateful that the government dropped that proposal.

[The Chair, Conservative, David Tilson]

Thank you.

Monsieur Petit, and then Mr. Poilievre.

Okay, you set the rules.

Mr. Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Thank you, Mr. Chairman.

Commissioner, I much appreciated the set of recommendations supplied. However, the Standing Committee on Access to Information, Privacy and Ethics is also studying the Access to Information Act.

During the election campaign, the Conservatives said that a review of the Access to Information Act and of the federal Accountability Act was of the utmost importance to them. It is thus that yesterday we saw a schedule of 23 hours of sittings per week imposed upon our committee.

I would like to know if you have been invited to appear before the Standing Committee on Access to Information, Privacy and Ethics, which has been tasked with reforming the Access to Information Act. Has the committee begun its work and how often does it sit?

[John Reid]

Yes, Mr. Chairman, I have been invited to attend on May 29. I am looking forward to meeting the committee for the first time.

[The Chair, Conservative, David Tilson]

Unfortunately, if this committee is sitting then, he won't be coming.

[Benoît Sauvageau, Bloc, Repentigny, QC]

You therefore are to appear on May 29?

[The Chair, Conservative, David Tilson]

A point of clarification is that he is scheduled to come on May 29. But as you know, this committee would take precedence over the standing committee, so he would not be coming on May 29.

On a point of order, Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

For the record, if this committee is not dealing with access to information issues, does that also mean that he wouldn't be able to appear before the privacy and ethics committee?

[The Chair, Conservative, David Tilson]

It's a good point to be pursued. My understanding is yes, but that should be clarified. I'm saying that should be clarified, but my belief is that the two committees can't sit at the same time.