Information & Ethics Committee on March 30th, 2009

[The Chair, Liberal, Paul Szabo]

This is the 12th meeting of the Standing Committee on Access to Information, Privacy and Ethics. Pursuant to Standing Order 108(2), we have our study with regard to the Access to Information Act reform.

We have witnesses today. We are waiting for one other member, so if I may, I'd like to ask the committee quickly to consider the budget for our witness schedule for Wednesday, which is being circulated now. Mr. Gogolek is coming from Vancouver. That's part of our budgetary expenses, but we do have to have approval for the operational budget request. It is in the amount of $10,150 to cover his airline fee and other miscellaneous expenses.

If there's no discussion, could I have a motion for approval of that budget for our witness to appear? Mr. Siksay.

Is there any discussion?

Mr. Siksay.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Just so we're clear, it's not just for the one witness; it's for a number of witnesses. Is that right? It seems as if for the witness from B.C. it's $3,300, but there are other witness expenses.

[The Chair, Liberal, Paul Szabo]

Yes, and/or other witnesses. It's to allow us that flexibility. If, as, and when we get those witnesses, we'll have an approved budget.

If there's no further commentary, all those in favour?

(Motion agreed to)

Thank you.

With regard to our review of the 12 fixes of Mr. Marleau, the Information Commissioner, we have Mr. Michel Drapeau, who is a professor with the University of Ottawa, and Marc-Aurèle Racicot, who is a lawyer. Those two individuals, as you know, co-authored a very interesting article in last week's The Hill Times. We also have with us someone who I've been with at meetings before, who is very active on parliamentary matters, Mr. Duff Conacher, the coordinator from Democracy Watch.

Welcome to all three of you.

I thought what we would do is allow each of the witnesses to make some appropriate but brief opening comments. I think the issues before us have been made known to you. Mr. Marleau's recommendations are substantively administrative, although a couple do have some impact, potentially, on amendments to the act itself. I thought there were some very interesting points raised in the discussion so far and in the article that was written. The committee felt it was important to explore those a little further and to have that opportunity. I think all of you are experienced in being witnesses. The most useful and constructive work is in the questioning and answering.

Let's move forward. Who would like to begin?

Mr. Drapeau, please.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

On a point of order, I understand some materials arrived this morning. As I and perhaps other MPs have not had the chance to go to our offices today, I have the materials from Friday and had a chance to go through them, but I don't have the materials that have arrived in the last few hours. If we can have copies of those, that would be tremendously helpful.

[The Chair, Liberal, Paul Szabo]

Okay. Sure, we could distribute whatever materials you need.

If there are other members who don't have the materials prepared for this meeting, there are copies.

Mr. Drapeau, s'il vous plaît.

[Professor Michel Drapeau, Professor, University of Ottawa, As an Individual]

Mr. Chair, let me open by thanking the members of the committee for permitting me to appear before you this afternoon.

I wish to keep my opening remarks short for two reasons. First, I have a sense that our article published in last Monday's The Hill Times has already alerted you to our position on the 12 recommendations submitted by the Information Commissioner on March 9, 2009. Second, we have provided each of you with a written submission that contains additional reasons and details on why we oppose these recommendations for change.

We are absolutely convinced that what ails the access regime cannot be cured by tinkering with the act. We believe that for the time being the act should remain as it is. Instead, energy should be deployed to identify and correct the systemic deficiencies and obstacles now afflicting the access regime. For example, in the previous Parliament the act was modified by adding a number of crown corporations and by including a positive duty to assist requesters. These changes were in and of themselves very positive, and they represented a significant step forward for freedom of information. Regrettably, however, these improvements to the act have been drowned by a significant worsening of the performance of institutions and of the Office of the Information Commissioner. Hence, if I may be so bold as to say so, government has been let down by its own administration.

We believe this committee has the stature, the authority, and the mandate to ensure that the act is properly administered, as was intended by a past Parliament. There was at that time a very careful and deliberate study, commencing in 1977 with the publication of a green paper and followed by two major cabinet discussion papers. This went on until 1982, when the enactment of the fundamental democratic right of access was provided to citizens. You will agree that before this quasi-constitutional statute is changed Parliament should be certain of the objectives and careful not to disturb an essentially good, clear, and well-structured statute that has served as a model for many countries.

You also have before you some brief biographical notes that outline my professional background and identify my contribution to the field of the access to information law. However, with your indulgence, I would strongly recommend that the following persons, whom I consider to be renowned in the field at both the national and international levels and whose experience and reputation for professional excellence is both proven and exemplary, should also be asked to appear before you to provide their sage advice before you proceed with any change to the current statute. I name Mr. Alan Leadbetter, who has served as deputy information commissioner under three commissioners; second, Professor Alasdair Roberts, who is a recognized academic authority in the field of access to information. I can also think of several more, such as Commissioner John Reid, but you have already benefited from his work. I must also add Mr. Justice Gomery, who made eloquent comments in his commissioner's report, which advanced the access rights of Canadians.

As I understand it, you have received an article that I recently wrote for the Open Government Journal on the state of paralysis of the Canadian access regime. I say “paralysis”. I felt compelled to write these comments because in my opinion the Canadian access system has never been in such a sorry state. For all intents and purposes, it is now dead in the water.

One can juxtapose this situation to that in the United States, which has received a great boost recently through an initial act of leadership by the new President, on his first day in office.

It is for these reasons that I decided to answer your call to appear before your committee, despite the fact that I knew my spouse, who is here today, did not relish the thought of discussing this subject on this day, our 45th wedding anniversary.

[Some hon. members]

Hear, hear!

[Professor Michel Drapeau, Professor, University of Ottawa, As an Individual]

Thank you very much.

[The Chair, Liberal, Paul Szabo]

Thank you.

Monsieur Racicot.

[Marc-Aurèle Racicot, Lawyer, As an Individual]

Mr. Chairman, members of the committee, it is a great honour for me to accept your invitation to come and appear before you today.

I have been interested in access to information issues for close to 10 years now. In recent years, I have done a great deal of research and thinking about this fundamental right in any democracy. I am the co-author of Federal Access to Information and Privacy Legislation Annotated. After a work term at the Federal Court of Appeal of Canada, I worked for a few years at the Office of the Information Commissioner of Canada as a legal advisor. I also helped establish a bilingual training program offered over the Internet on access to information and privacy at the University of Alberta. I am the editor of the Open Government Journal, a scientific journal available free of charge on the Internet that has to do with issues of access and transparency. I am currently a lawyer in private practice.

The Access to Information Act sets out the basic principles regarding access to information in Canada. In the last 25 years, the act has been tested and interpreted on many occasions both by Canadians and by the government. The Federal Court has handed down many decisions regarding the Access to Information Act. The act works only if all the people involved play their proper role and assume their responsibilities. The basic principles that appear in the current legislation are valid, even though times may change.

For example, in 1982 when the act was passed, the Internet did not exist or was in the embryonic stage. However, the travel expenses of senior managers in federal institutions are now posted proactively on the Internet. In 1982, there was no e-mail. And yet, e-mails are included in the definition of a "record" that is contained in the act and are routinely disclosed in accordance with the act.

These few examples show that this legislation, which sets out basic principles, can easily be adapted to changing conditions, without being amended. The people who use the act, the government, the Office of the Commissioner and the courts have been able to use and interpret the act in such a way that it has been able to function since July 1, 1983, the date on which it came into force.

Great caution must be exercised in any attempt to amend this basic legislation. The problems we are experiencing at the moment do not stem from the act, but rather from the fact that some of the people involved are not performing their role properly.

The Access to Information Act, which has quasi-constitutional status, is good and valid legislation.

[The Chair, Liberal, Paul Szabo]

Thank you.

Mr. Conacher.

[Duff Conacher, Coordinator, Democracy Watch]

Thank you very much to the committee members for the opportunity to testify today on this very important, good government subject, namely access to information.

I should be practising my French, but since there is a lot of technical terminology in this field, I will be making my presentation in English.

Since the act was passed in the early 1980s, it unfortunately has proven to be ineffective in requiring government institutions to make information created, gathered, or maintained by the government and all government institutions easily accessible to the public. Of course, some information, in particular personal information that the government requires individuals to submit, must be kept secret by governments to prevent harm or injury. Because of the many exemptions in the act and the very weak enforcement system, essentially the disclosure of information is discouraged, and keeping things secret is encouraged. As a result, the public is denied the right to information about actions and decisions it has paid for and has a clear right to know.

Essentially, the act is currently a “guide to keeping information secret” law, not an open government law. As in all areas of regulating the activities of humans in large organizations, especially when there are many incentives to violate the rules, the system, to be effective, must be changed to meet the following standards: we need to have strong rules without loopholes, because the many loopholes that currently exist in the act allow for abuse; we need a fully independent, fully empowered, well-resourced enforcement agency; and we need high penalties for violations.

The history of government and government institutions in all areas of the democratic process--honesty, ethics, openness, representations, waste prevention--has shown that you need a system that meets those standards to ensure that the rules, and the spirit of the rules, are followed.

To transform the current act and enforcement system to meet these standards, the following changes must be made. These changes were, most of them, promised by the Conservative Party during the 2006 federal election. They've also been recommended by many others, including the open government coalition in which Democracy Watch participated in 2000-01. Other groups in that coalition included the Canadian Association of Journalists, the association of libraries, community newspapers across the country, and several other citizen groups from a variety of areas.

I'll go through the key changes.

First of all, any type of record created by any entity within the government or that receives significant funding or that plays a public purpose must be automatically covered by the act. The act must require every entity to create records of all decisions and actions. They must have information management systems so that there are individuals responsible for each record. And most importantly, the act must require them to routinely disclose records so that records don't come out based on requests but are made public on a routine basis after being screened to see whether any exemptions apply.

All exemptions under the act must be made discretionary, limited by a proof-of-harm test and a public interest override, as applied by the Information Commissioner. A couple of provinces have that proof-of-harm test and that public interest override.

As in many other jurisdictions, including Ontario, B.C., and Quebec, the Information Commissioner must be given explicit powers to make orders, including the order to release information. As well, extending coverage of the act to any government institution is a decision that should not be left in the hands of cabinet. Also, very importantly, the commissioner must be given the power to require systemic changes to government institutions' information management systems to improve compliance. Finally, the commissioner must have the power to penalize violators of the law. There's no danger in turning the Information Commissioner from an ombudsperson position with the power only to recommend, which he is currently, into a judge who can actually make binding orders.

The experience in Ontario, B.C., and Quebec has shown that this is a major change that changes the way the system works, because essentially, information institutions know that very quickly they can face a binding order to release documents, so they are less resistant to releasing them in the first place.

As well, I know from my experience working with the Ontario commissioner's office that there is a mediation system that can be set up to also quicken the release of documents and make orders not needed. There's less cost for everyone involved. No lawyers are needed by requesters for information. They can go through a very simple, easily accessible, and low-cost mediation system that can possibly lead to an order if there is no agreement reached.

Moving on, I'll quickly highlight a few other key changes.

Significant penalties must be established in the act for not creating records, for not maintaining records properly, for unjustifiably delaying responses to requests, and for denying access to information that is clearly required to be made public.

Because the Information Commissioner could possibly develop a backlog--as is current, but it could be at any time--requesters must be given the right to go to court if the commissioner refuses or fails to deal with the complaint within a specific time period. And we suggest 120 days.

Finally, funding to the system must be increased to solve backlog problems instead of increasing fees or other administrative barriers as an attempt to decrease the costs. There is a cost to this system, but if there is proactive routine disclosure of documents, the costs will decrease enormously because requests and complaints will also decrease.

Of course, if these changes are made, an extensive training program must be created to ensure everyone in the government is aware of the new standards and powers.

Finally, just to make a general point, some commentators, such as Donald Savoie of the University of Moncton, have claimed that since the act and its overall disclosure system was created, public servants have not been able to “speak truth to power”, and cabinet ministers have, as a result, not received as good information and advice as before the act.

Democracy Watch's position is that if this is true, the problem is not the act; it is the fundamental attitude and operation of the government and government institutions. An actually democratic government or government institution would welcome all information and advice on each issue, even if it were contrary to the position of its leaders, and would not hesitate to make all that information and advice public as part of a process of meaningful consultation with the public, which is the best way, as has been shown in many cases, to come up with actual solutions to societal problems and actual accountability measures that measure whether solutions are actually working. It is only when a government seeks to impose its ideology and will on society, in defiance of what the majority want or what best practice standards require, or when it seeks to help its own members, their relatives or friends, that a government needs to keep information and advice secret. As too many examples from the past have shown, this secrecy causes abuse and waste.

True, it is difficult to imagine a government operating in such an open and democratic way, but that is only because governments to date have not operated this way, not because it is not possible or advisable for governments to be open, engaging, and accountable. Changing the Access to Information Act in the ways that I've highlighted today would very much help move the federal government in this democratizing direction, but to be truly effective these changes should be accompanied by the passage of a law requiring meaningful consultation by the government before any significant decision is made. That would truly open up the government and ensure that decisions are made with all information available and advice in an open public debate. As a result, very likely those decisions would be better than decisions that are made behind closed doors, in secret, with only a few people allowed to participate in the deliberation and the dialogue.

This change both in access to information and meaningful consultation has been advocated by many citizen groups in many areas for decades, and hopefully very soon--sooner rather than later--we will see a ruling party and all political parties respond and make these changes to truly open up and democratize the federal government.

Thank you very much. I welcome your questions.

[The Chair, Liberal, Paul Szabo]

Thank you, Mr. Conacher.

There is one issue Mr. Drapeau raised that I hope we will get some feedback on through your questions. I don't want your answers now, but maybe I could just flag it for you.

The commissioner himself has made some commentary on the lack of leadership. Mr. Drapeau, you also are inferring in your commentary that there has to be this leadership, and if I heard you correctly, it's really not coming from the commissioner himself. Unfortunately, his mandate does not appear to allow him to have those leadership tools. When he did that report card on the ten, six of the report cards were failures, and I think two were red-flagged. PCO was about the worst, being the leader--the top civil servant of the country having the worst performance. So it would be interesting to see if we could find out if there's a resolution on the role of the commissioner and the tools they have to be able to address some of the concerns that have been raised.

I'm going to allow you to fill that in when we get through the questions. Is the commissioner simply going to be an investigator and report to Parliament periodically, while performance under the act is somebody else's problem?

[Prof. Michel Drapeau]

Which it is not. I've taken care, in the paper that I put before you, in fact, to quote Mr. Marleau in his last annual report. Frankly, it's the same comment as has been made for 25 years. All of the commissioners have taken great pride in calling themselves ombudsmen and acting as ombudsmen. If you look at the definition of ombudsman, it's very broad, and subsumed to the title itself is leadership--by appealing to your committee, by appealing to the Canadian public, and by using the power of persuasion, which is another way of saying leadership, upon institutions to do what is required of them, short of using a legislative club.

[The Chair, Liberal, Paul Szabo]

It's going to be interesting.

We're going to start with Mrs. Simson, please.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Thank you, Chair.

I'd like to thank you three gentlemen for appearing before the committee.

It's been interesting listening to testimony on this subject for the past little while. I'll address this question to you, Mr. Drapeau, or Marc Racicot.

I read your report and I was a bit stunned that we have a statute that's essentially over 25 years old and it has essentially seen no amendments. We have an opportunity to look at changing it because, obviously, it was enacted before the Internet. There have been significant technological changes. I was stunned that you came up quite strongly against all the recommendations. I am surprised, given where we are technologically and how far behind we're lagging in terms of access to information around the world, how you could say that the act is really working. I agree there's probably a cultural issue in terms of releasing information that has to be addressed, but I just can't square a 25-year-old statute that has never been revisited as something that is great, when we're clearly lagging behind other jurisdictions around the globe.

[Prof. Michel Drapeau]

First of all, I am not saying that the act is working; it's quite the reverse. The fact that it's been in existence for 25 years, I think on this point..... So has the charter. They were enacted one year apart.

What doesn't work is making changes to a moving target, and that's really what you have. Any one of the twelve recommendations will do nothing to ameliorate the current situation. What is the current situation? We have institutions that have very little respect for the act. Today at my office, just by happenstance, I received three replies to three requests that I had put in about a month ago. The replies are from the Privy Council Office asking for an extension of 210 days. That's one aspect of the act. Currently, as worded, it simply doesn't work.

My only choice as a requester in the face of this is to submit a complaint to the Information Commissioner. The Information Commissioner right now has a backlog of two years. I know from current experience that it will require at least two years to get a response. The act, when you submit a request, basically says you'd better be patient because the norm is two years.

My point is, change it if you must, but none of these 12 recommendations will, in any way at all, change either the backlog of the Information Commissioner or the institution's lack of respect for the act. My recommendation is that you need to address this first.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Yes, exactly, but on the same token, with respect to.... As you say, it has slowed down. You have to wait. There's a backlog for the complaint process. Why would you take such exception to this order-making power recommendation that would put some teeth into it?

I agree that the commissioner, with due respect to him, has absolutely no power, short of taking a complaint to the Federal Court once it has been processed. The order-making power, to my way of thinking, would probably facilitate eliminating some of what you just explained, but you seem to be heading in the other direction on that.

[Prof. Michel Drapeau]

Madam Simson, if I may, I'm sorry if I have to argue against you on this one also. The commissioner has extraordinary power as it is. He's using only a fraction of it. He has the same powers as a superior court judge. He can call witnesses before him, deputy ministers if required--it has been done before--to provide answers as to why they are not releasing records in due time.

For instance, he can also issue a report, and as you rightly pointed out, if his recommendations are not followed through, then he can go to the Federal Court. He can also come to this committee, which his predecessors have done, and issue a special report or go to the media, as an ombudsman will do.

Now, let me address the reverse side of it: what happens if we grant him order-making power? You will find that in Ontario a great number of the orders that are provided by the Office of the Information and Privacy Commissioner are challenged in court. So we're not going to solve the problem if instead of making a recommendation to an institution, which the Information Commissioner does at present, he makes an order and then the institution goes to the Federal Court. We're going to be tied up in courts for the next six years. We're still not going to have access to the records.

I think by providing the Information Commissioner with order-making power.... And I hasten to say that the Information Commissioner has only asked for order-making power for what he refers to as administrative complaints, not the serious ones--

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Which, by the way, are over 50%--

[Prof. Michel Drapeau]

I know.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

--of what he's dealing with in terms of a backlog.

[Prof. Michel Drapeau]

Which, by the way, are the most minor ones. If the Information Commissioner at the moment cannot sort out the minor complaints, if 50% of the complaints are about delays, deemed refusals, and these sorts of things--

[Michelle Simson, Liberal, Scarborough Southwest, ON]

We've also received testimony that the current backlog is a direct result of the umbrella expanding in terms of the institutions that fell under the act, and that 80% of the complaints, essentially, are being generated by just a handful of requesters. These individuals aren't asking for specific information; these are large requesters, which doesn't make them any less serious, but in effect, everybody is made to queue up. There are large requesters that are backing it up.

[Prof. Michel Drapeau]

You have two questions in your presentation.

First, on the suggestion that the increase in backlogs is a result of extending the act to a number of new organizations, I don't know. I'm not the Information Commissioner so I don't have the statistics, but somehow, from reading last year's report, I don't get this impression from it.

Certainly there has been an incremental increase, as you would expect to have, because VIA Rail, Canada Post, CBC, and some others have been made subject to the act. That may be an adjustment from one year to the next, but that's the mandate, and the Information Commissioner has the staff--he got additional staff--required to deal with these. I don't think we should increase the coverage of the act on the one hand and then deplore the fact that there will be additional requests and additional complaints as a result of it. It's a consequence of it, and I think a happy consequence of it.

I know the Information Commissioner seems to have a bee in his bonnet when repeatedly he alludes to those requesters that make a number of requests. I know some of them personally, because they represent people in the media, or people like you as members of Parliament, or industries, or whatever. My answer to that is, “Bless them.” They have a skilful use of the Access to Information Act. Their requests are normally targeted. They're not vexatious or superfluous. They use the act the way it should be used and they direct their requests to the appropriate institution.

Ultimately--and I will finish on this point--I hope you will ask the question of me later on as to how many requests we are getting in Canada and whether it is excessive compared with other democracies. I would be pleased to answer that, to perhaps better focus that answer.