Evidence of meeting #10 for Access to Information, Privacy and Ethics in the 39th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was requests.
A recording is available from Parliament.
Liberal
Jim Peterson Liberal Willowdale, ON
Do you get the requests for this information from people before you make them, or do you make them on your own, usually?
As an Individual
Primarily on my own, but it works two ways. That's the whole give and take in information giving. In an ideal situation, of course, we wouldn't have to do this, because the government would just give out information.
I've even had provincial governments come to me to apply for the federal government...or agencies come to me to apply for other federal agencies. That's how ridiculous this system is.
Liberal
Jim Peterson Liberal Willowdale, ON
We heard from deputy commissioner Leadbeater that it is legitimate for a department to inform the minister of the identity of a requester and to have officials examine the request, including the name of the requester, in order to prepare a media strategy in dealing with that request. Would you care to comment on, first of all, the name going to a minister, and secondly, staff needing time to prepare a media response?
As an Individual
If you're asking me, I think the practice is wrong, because basically what you're doing is creating a parallel, unnecessary system. It's for damage control; it's for the information as to the political spin and so on.
I remember when Finance Minister Michael Wilson acted as his own access coordinator. There you had the whole thing come together. When I applied for polls and he didn't like the fact that people in polls said that his economic policies were wrong, he didn't necessarily want to release them. He got mad sometimes when there were media stories as a result of my access requests. But that's not the way the system normally works.
I don't think there's any value, and that's why one recommendation is to outlaw or ban amber lighting, or everything going up the line to the ministers. If the information is valid, then there's no reason.... It should just go in or out; it's not something that needs a spin put on it. There are sensitive issues—very few—that somebody up the line may need to know. But when you get everybody and his dog into a room.... In this memo I have, you get so many officials, just like in the Bronskill thing, that it gets out of hand.
Liberal
Jim Peterson Liberal Willowdale, ON
Mr. Leadbeater said it was legitimate for the minister to know of the request, and the name of the requester, in order that he could cope with questions in question period, or during a scrum.
As an Individual
Yes. That's the way our system works. But right now, as Mr. Drapeau is saying, we have to cope with this system, but it's the wrong system. That's why I'm saying—
Liberal
Jim Peterson Liberal Willowdale, ON
But supposing you get your information within the 30 days—I find that very legitimate—are you saying it should only go to an information officer and no one else in the department, and that information officer is under a burden of not disclosing?
As an Individual
That would be a better system.
One of my recommendations is that all the officials involved in access, including the minister if he's involved, should be identified in the reply letter to you. Let's not beat around the bush; there's a system here that isn't normally told to you.
But no, I don't think they should be. If they track, monitor, and profile your name, it should be grounds for appeal to the commissioner. You should have the right to complain about it, and you should have the right to say that this practice should be banned.
Liberal
Jim Peterson Liberal Willowdale, ON
I welcome hearing further from you on who in a department is entitled to know the identity of the requester.
Are you also saying that the Privy Council Office should have absolutely no connection with any request?
As an Individual
They're part of the care system—not just because of the name—that coordinates the access to information request. If anybody gets a cabinet confidence, they automatically have to delay things and go to the Privy Council Office to check if it's a cabinet confidence. There are many reasons besides the communications one why people delay or go to the Privy Council Office. I'm saying that it's an unproductive, counterproductive system.
If for instance, things are known prior as a cabinet confidence, then departments are capable of handling them. If people get information requests, however sensitive, they're capable of handling them. You don't need the massage factor built in through several different layers.
Liberal
Jim Peterson Liberal Willowdale, ON
Wait just a second. Do you mean the massage layer in terms of responding to you, or the massage level in terms of responding to possible questions in public?
As an Individual
If they're well prepared in advance, and it's their policy—and it's been paid for by tax money—then they should know and be able to respond to things.
So many times I find I get briefing notes now that are not briefing notes on the issue; they're briefing notes about whose access request was prepared, and that's not the substantive thing.
Liberal
Conservative
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
I would like to begin by thanking you for appearing before the committee this afternoon. Your testimony is important all the more so because, based on what we have heard, you have all been expert victims of the access to Information Act. None of you, unless I am mistaken, seems to question the fact that the name of a reporter who had placed a request under the access to Information Act was turned over to a minister's staff. If you do not agree with what I have just said, please say so. It would be interesting to hear what you have to say in your capacity as expert victims, if I may use that expression, on certain issues, be they secondary or very important.
To begin, two weeks ago, experts from the Office of the Information Commissioner came before the committee and told us that applicants were divided into five categories: corporations, members of the public, organizations; the media and people from academia. We were given a breakdown of requests in the form of percentages.
Do you really believe that there are only five categories and that there are no sub-categories? Have you ever thought about making an access to information request to see if there are any other categories?
You probably know that our committee adopted a motion, two and a half weeks ago, asking the minister to redraft the access to Information Act. We gave him December 15 as a deadline. Perhaps he is listening to us as we speak. It is also possible that certain people would like to know what you are suggesting to protect the identity of applicants. In your opinion, that is as expert victims, what sanctions do you think should be imposed on people who revealed the identity of applicants to make sure that this sort of thing does not happen again?
Lastly, two weeks ago, I presented an idea to the representatives from the Office of the Information Commissioner, namely that when an applicant is provided with the information requested, the names of the people to whom the applicant's identity was revealed also be provided to the applicant. I do not know if that is a good idea. I would like each of you to answer these questions, and please feel free to decide amongst yourself who goes first.
Lawyer, As an Individual
As for whether there are more than five categories, I have absolutely no doubts about that. But whether these categories are actually useful, valid and precise, the answer is no.
when my firm makes a request, is that of concern to certain media, universities, organizations, corporations or individuals? Those people really do not know. As for me, I really have no idea how my request is categorized. Is it classified as an organization or as something else? The numbers are worth what they are worth, but I really do not see what the point is of organizing the requests based on the type of applicant.
I have made requests for the purposes of research. In that type of situation, it is possible to ask to be exempted from related fees and disbursements, as stipulated in the act. In that type of request, you have to explain that you need the information for the purposes of research. However, in each of those cases, we failed. It did not matter that we indicated the type of request and not the name of the applicant.
As for redrafting the Access to Information Act, I have to admit, Ms. Lavallée, that I feel very protective of the way the Act is currently worded, and I feel it belongs to me, even though I have been a victim of it. Why is that? We have been living with this legislation for 33 years. If I were to pull out my book, I could show you to what extent the courts have tried to interpret this little piece of legislation, be it the Federal Court, the Federal Court of Appeal or the Supreme Court. There is no doubt that the Supreme Court ruled that this Act is quasi constitutional. Access to information is a right which belongs to everyone. According to Mr. La Forest, this Act ensures that our democracy is rich and vibrant. By having access to information, simple citizens, as well as the media, can hold governments to a certain degree of accountability. I am therefore surprised that this right is being questioned. No other right, be it freedom of religion or freedom of expression, is questioned. These rights are respected by our officials and by everyone. So why should this Act be dismissed?
In my opinion, the Act as worded works. I use it regularly. Despite the fact that you have treated me as a victim, I ultimately can use the legislation in the course of my work. There are other issues which are much more acute and thorny, including the huge delays in providing information. Mr. Peterson referred to this a little earlier. I can give you two examples of situations I experienced, and they happened last Friday and this morning.
In 2004, I filed a request on behalf of a businessman with the Department of Indian Affairs. One month later, I received about 30 pages of information. I knew instinctively that this was not what I was looking for. If I had not thought of complaining at that time, I would only have received those 33 pages, but today I received 635 pages of information.
I will now talk about the second case. In 2003, I was hired by Radio-Canada — and so this is the public domain — to conduct research on the history of the 1995 referendum. I made a bunch of access to information requests. Many of them were followed up, but most of the files — of which I received about 10 per cent — went back to before the 10th anniversary year of 2005. Last week, I received a box this high from the Privy Council. After having filed a complaint, I finally received the documents. But it is too late now: everybody knows of what happened. You did not have to be a genius to realize that I wanted the information for historic reasons only.
Bloc
Conservative
NDP
Pat Martin NDP Winnipeg Centre, MB
Thank you, Chair.
Thank you, witnesses.
The reason we're having this study is that most of us around this table were horrified to learn that the name of a journalist was revealed in the context of an access to information request. This has not been common knowledge amongst most MPs I know, so we were horrified and shocked to learn through your testimony, and in fact through testimony of the Treasury Board and the Information Commissioner, that it is in fact commonplace for the minister, or at least departmental heads, to find out who is asking the question. In fact, it's a matter of course, it would seem, that the first thing that happens when a difficult or nuisance complaint comes forward is that the minister's office demands who's asking. This is shocking to me. If the right to know is quasi-constitutional in its importance, then your constitutional rights are being systematically violated in a widespread way.
I guess our first interest in having this study was, is it in fact happening? I think we're satisfied, from what we've heard, that it is happening. We wanted to know how frequently and how common it's happening, and that's being answered. We wanted to know if it was happening in the previous government as well as the current regime. In fact, Ken has pointed out that it's been widespread, back as far as we can remember.
I guess the question I have—and I'm learning something every day, and I'm more disappointed and shocked every day I learn about this—is on what Ken has brought to the table now, that not only are they asking to know the name of who applied, but they're also getting a detailed profile of the type of person--that is, what is the level of threat this person's question may pose to the government?
Can you expand on how often we've seen this profiling? Or is it a new revelation that it's not only the name, but also what the person does, what type of questions they ask, and what causes they've been associated with in the past? That's what's worrisome to me, and it adds a whole other element to this. I think it's an absolute bombshell that they're not only asking for the identity, which I think undermines the integrity of the whole system, but they're also asking for confidential personal information.
Is this not a Privacy Act offence?
As an Individual
I still don't consider myself a victim or a marked man. I'm exerting my information rights, and there's an act here, a legal act. The problem is that some government officials have decided there is no right, that it's just a privilege they can manipulate and be deceitful about. It's unfortunate that it's got to this point.
Profiling is the wrong end of the stick in terms of what you should expect when you put in an access request, like anybody else, particularly if you put it in for other individuals who really have problems with the government and need their reputations cleared, or have a toxic waste site and they're trying to figure it out.
What do they do? They try to watch you, instead of watching out for the Access to Information Act and its spirit. So this is a problem.
I don't think this is the first example of this kind of thing I've had. A lot of this, as you've heard before, was done orally, and you find out at parties or wherever people are talking, and you go into the circle, where they say, oh, I can't talk, Ken Rubin is here.
This is the problem we have here.
NDP
Pat Martin NDP Winnipeg Centre, MB
But wasn't the expectation of privacy a key and integral part when the original bill was drafted?
NDP
Pat Martin NDP Winnipeg Centre, MB
I know the act has never been reviewed, but is it your understanding that the anonymity of the applicant and the expectation of the privacy of the applicant are integral parts of the act?
