Information & Ethics Committee on June 19th, 2006

[The Chair, Liberal, Tom Wappel]

Thank you very much, Commissioner.

Who would like to begin? Mr. Dhaliwal.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Thank you, Mr. Chair.

First of all, welcome Honourable Reid, and your counterparts as well.

We had the minister here and I asked him some questions. I'm going to feed them to you as well, because oddly, I could not get a clear answer from the minister.

The first one is on the reforms mentioned in the discussion paper from the minister's department, which are modestly targeted at around $170 million a year. Canadians are not hearing those numbers. They've been led to believe that this is all a very straightforward exercise and that ordinary taxpayers will just suddenly consent to millions and millions of dollars to make this government appear more transparent. The fact is that seven crown corporations, which include Canada Post, Via Rail, and the Public Sector Pension Investment Board, are only partly covered under the access act.

With that price tag for the reforms, how much further ahead are Canadians?

[John Reid]

Mr. Chairman, it's very difficult to get a handle on what it will cost the crown corporations. You have to look at those crown corporations that are partially in the system, those that are fully in, and those that are largely excluded.

For example, with an organization like Atomic Energy of Canada, everything is basically excluded. You can see their technical details by going to the Canadian Nuclear Safety Board and you can see their financial details by looking at their website and their annual report, but it doesn't appear that anything else will come out, so the cost to them ought to be quite negligible.

On the other hand, there may be significantly more costs to an organization such as one of the foundations, for example, which will come into the act without any but the usual exclusions. So it's very difficult to predict.

On the question of costs, when the task force reported in 2002, they suggested then that the cost of access to information was approximately $35 million a year. They compared that with the cost of communications that the government was bearing at that time, and that sum was approximately $800 million a year. You have to look at those costs in comparison with a whole range of other costs to determine whether they are reasonable under the circumstances.

[J. Alan Leadbeater, Deputy Information Commissioner, Office of the Information Commissioner of Canada]

Mr. Chairman, could I just add one bit to Mr. Dhaliwal's question?

We don't know where these figures in the discussion paper came from. No official ever asked us what we thought the cost would be. The cost of the entire system for over 150 government institutions is between approximately $35 million and $50 million a year. Where the $120 million more comes from to add in 40 or 50 more institutions, we don't know. If there is an envelope somewhere with the calculations, maybe it will be disclosed under the Access to Information Act.

[John Reid]

But you will have to ask for it.

[The Chair, Liberal, Tom Wappel]

Mr. Dhaliwal.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

The second part of the question was, will Canadians be any further ahead when this act comes in with this kind of spending?

[John Reid]

As I said, it's going to be very difficult to understand what the effect will be until we have a chance to look at what people actually ask for. In my judgment, the cost for those agencies that come into the system will be pretty marginal, but only time will tell us what those costs will be. A lot depends on how well departments are prepared for access to information; if you have a good filing system and you're able to obtain your records quickly, and you don't spend much time and money trying to be secret, then your costs become fairly small. If you spend a lot of time putting secrecy at the top of your list, then your costs rise, because secrecy is one of the biggest costs in access to information.

[The Chair, Liberal, Tom Wappel]

Anything else?

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

The other issue is that when it comes to the clause on lobbying for five years, which I'm sure you're familiar with, there's a gaping hole there, too, in terms of who is defined to be a ministerial adviser and will be prohibited from lobbying for five years. The act defines this person as someone,

other than a public servant, who occupies a position in the office of a minister of the Crown or a minister of state and who provides policy, program or financial advice to that person on issues relating to his or her powers, duties and functions as a minister of the Crown or a minister of state, whether or not the advice is provided on a full-time or part-time basis and whether or not the person is entitled to any remuneration or other compensation for the advice.

The larger, less prohibitive definition of “ministerial staff” is “those persons...who work on behalf of a minister of the Crown or a minister of state”.

As the act defines it now, that's up to the minister. He can give a letter, saying this staff member was not part of the senior staff providing advice. So basically we are not getting any further ahead. One person might be the actual person who was giving the advice, compared with the person who was just there. And once the minister issues that letter, the latter staff member can go back to his lobbying team.

[John Reid]

Mr. Chairman, I can't answer that question. It's about another act entirely, and I'm limited to what I can talk about in terms of the Access to Information Act. I regret I have no opinion on other parts of Bill C-2.

[The Chair, Liberal, Tom Wappel]

Thank you for being direct on that.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

So you wouldn't say that amendment...?

[John Reid]

I cannot comment on it because I'm not familiar with it. It's outside the scope of the Access to Information Act.

[The Chair, Liberal, Tom Wappel]

Thank you.

Monsieur Laforest.

[Jean-Yves Laforest, Bloc, Saint-Maurice—Champlain, QC]

Good afternoon.

Earlier, we had a long discussion with the minister about the advisability of reforming the Access to Information Act.

A number of people said that this legislation is out of date and that it should be completely reworked. We even discussed it during our study of Bill C-2. In some ways, the minister could have taken advantage of Bill C-2 to speed up the reform of the Access to Information Act.

I think you have already made some proposals regarding an open government act. Do you think this proposal would be a good place to start in drafting a government bill to reform the Access to Information Act?

[John Reid]

Mr. Chairman, the previous committee asked me to produce a draft model act on how to go about reforming the Access to Information Act. I was given very clear instructions that nothing radical was to be in it and it was to be an evolutionary change. That's what we did.

There is nothing in the act that has not been done in some other country, but we have mainly raided the provinces of Canada to look for ideas and to incorporate them into our model. Every proposal in there is in existence in some jurisdiction in Canada. We also borrowed some from the United States, Australia, and New Zealand.

There's nothing radical in it. This is a very straightforward development, and it takes into account the fact that when our act was passed 23 years ago, it was at the leading edge. It is now in the rear, desperately trying to catch up. We are no longer a leader in this field. The provinces, particularly Alberta, British Columbia, and Ontario, are far more advanced in terms of their legislation than the federal legislation is.

We produced this act at the request of the committee. The committee then took it on, studied it, and in its seventh report to the House of Commons asked the government to bring down a model act based on the open government act. At that point, the election intervened.

I should add that at that point, after the committee brought down its recommendations, Mr. Justice Gomery studied the proposal. When he was doing his cross-country tour, changes to the Access to Information Act, as recommended by the committee, were part of his mandate. He reported on them, and I have given you the information.

[Jean-Yves Laforest, Bloc, Saint-Maurice—Champlain, QC]

I have another question. In your statement, you referred to some recommendations made by Justice Gomery, particularly the fifth one. It states that there should be an overriding obligation on governments to disclose records whenever the public interest in disclosure clearly outweighs the need for secrecy.

Who can decide that? Do you think they should be included in the act? The statement that the public interest in disclosure outweighs the need for secrecy is arbitrary. Who must make this determination? I imagine the act should include a process to easily clarify things when such cases occur.

[John Reid]

Mr. Chairman, normally when that type of decision had to be made, there would be the usual discussions and negotiations between the Information Commissioner and the department. If that did not result in a decision, then the matter would end up going to the Federal Court and the court would make the decision.

The Information Commissioner has no power, nor does he seek any power, to release information. The Information Commissioner's job is to do an investigation. If there is a decision that information is to be released over the objections of a department, it should be taken, and is taken, by the Federal Court, and often by the Supreme Court of Canada. There is a process in place to deal with that kind of conflict.

[Jean-Yves Laforest, Bloc, Saint-Maurice—Champlain, QC]

Is a legal process not too long and complicated? Would it not prevent quick action in such cases?

[John Reid]

Yes, it is a long process, but I believe there are no other players in the system who can make that decision other than the courts. The Information Commissioner certainly does not have the power, and he doesn't seek it. In my judgment, it properly belongs to the courts.

[J. Alan Leadbeater]

It's analogous to what the minister spoke about today on section 1 of the charter. Is it a proper limit on a charter freedom in a free and democratic society?

It's really a judgment issue. It's dealt with by the courts, and ultimately the Supreme Court. It's a long process, but guidance is given to governments for future situations. It would be the same for public interest overrides.

[Jean-Yves Laforest, Bloc, Saint-Maurice—Champlain, QC]

Merci.

[The Chair, Liberal, Tom Wappel]

Thank you.

For members of the public who might be following this, the seventh report of this committee was passed by the committee on November 17. It was presented to the House on November 21, 2005, and the election occurred approximately one week after that. That's the historical context.

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you, Mr. Chair.

Thank you, Mr. Reid, for being with us again.

Mr. Reid, have you seen the 15-point report or 15 concerns with the open government act the Minister of Justice tabled here today?