Evidence of meeting #12 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.
Prof. Michel Drapeau
The point I want to make is that order-making power is not a panacea. It's not the end of the road. It doesn't mean that you'll have compliance. You are now opening a new door where the institution or the requester will say, “Let me go to court now, because I'm not happy with this.” So you go full circle. What have we done now? What have we accomplished?
In the meanwhile, you have dramatically and drastically transformed the role of the ombudsman into a judicial officer. He's going to be in his office; he's going to be acting at administrative tribunals. He will no longer have persuasive power. He will no longer have the very vast powers that he now has. Probably in the process you're going to be asking requesters to engage the services of lawyers, because there will be an administrative law process that we now have to go through.
That's not what your predecessors meant, and I say “your predecessors” in the long range from 1966 to the green paper of 1977, and I'm referring to a couple of cabinet discussion papers. All the discussion that took place in Parliament before the enactment of the act itself was a careful balance of asking, what model do we want?
This model, ladies and gentlemen, we have exported to a number of countries. A number of countries have followed our example of how to have an access to information law, and they've adopted basically what is the Canadian Access to Information Act. The principle that was also accepted by a Committee on Human Rights at the United Nations is a carbon copy of the act.
So change if you must, but why are we changing? If you think that by changing it, giving it order power, things will now happen and institutions will now respond to it, my point to you is that if they're not responding to the sovereign power and the authority of this committee and of the Information Commissioner, why would they now all of a sudden respond adequately to a decision by an Information Commissioner?
Coordinator, Democracy Watch
A court cannot have a mediation service unless it sets it up formally, which the Federal Court is not talking about at all for the Access to Information Act or anything else. A commissioner can, and the Ontario commissioner does. This committee and the commissioner do not have the power to order the release of a document or the cleanup of an information management system so that documents are routinely disclosed, the power to approve or reject an institution's request for delay, the power to extend the coverage of the act to any government or government-funded institution, or the power to penalize anybody. Those are all powers that are missing.
No, it's not going to be a panacea. There will be a huge transition, no matter what you do in terms of changing the act: transition periods, there will be difficulties, precedents will have to be set, backlogs will be created. But trying to set up a framework that will actually work to ensure that humans in government institutions follow the rules.... Point to me an area in society where humans just generally follow the rules where there aren't clear rules without loopholes or a fully independent, fully empowered, fully resourced enforcement agency or penalties for not following the rules. Show me where that works elsewhere, and I'll adopt it and say yes, let's just do that in government. But government has proven that doesn't exist, and so has the public in many other areas.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
Mr. Drapeau, I want to give you your chance to talk about what's happening in other countries that have a larger number of complaints than Canada. I know that you talk about our agency being swamped—
Prof. Michel Drapeau
Yes. Let me try to make it as short as I can.
There's often talk about the vast number of requests and how that explains why we have such a backlog and so on. Let me give you some perspective on it, please.
In the 1977 green paper a detailed analysis took place, and we had at the time the experience of the States. The States had had an act in place since 1966, and making allowances for size of population, temperament—we're far more reverent in Canada and less nosy, maybe, than our southern colleagues, and so on—the talk was that perhaps we could anticipate 70,000 requests a year. That was in 1977. The highest number we have had in the 26 years the act has been in place is 29,000 requests, last year.
Let me give you some perspective on it. In Thailand in the past three years, under the act in place since 2005, a million Thailand citizens have applied under the access regime. In the United States last year, four million requests were put in. So 29,000? In the 15 years before last year, we had an average of 13,000 requests a year. We're just barely scratching the surface, so volume is not a problem.
Conservative
Kelly Block Conservative Saskatoon—Rosetown—Biggar, SK
Thank you very much, Mr. Chair.
As well, thank you to our witnesses for coming today. I, too, echo congratulations to you, Mr. Drapeau. I'm sure you can find ways to compensate Mrs. Drapeau for spending some time here today.
Conservative
Kelly Block Conservative Saskatoon—Rosetown—Biggar, SK
In his testimony before this committee on March 9, the Information Commissioner told us that the Conservatives' Federal Accountability Act was the most significant reform to the Access to Information Act since its inception in 1983. David Loukidelis, Information and Privacy Commissioner of B.C.; Stanley Tromp, author of Fallen Behind: Canada's Access to Information Act in the World Context; and Murray Rankin, a lawyer specializing in information law and author of the preface for Fallen Behind, all agreed that the Federal Accountability Act was the most significant reform to the Access to Information Act since its inception.
Would any of you disagree with that assessment?
Prof. Michel Drapeau
I don't, and I said so much in my opening remarks. It's quite the reverse: I think you should take a bow. It was a major step forward. It signalled a very important step in the evolution of the act itself, no question. I'm the first one to applaud it.
I said--and I repeat--I think we've been let down, because the successes and the applause that you should receive from it have been muted because the government has not been responding to your clear signal: not only do we want the act to be applied, but we want it to be extended. What have they done under your government? If I can be so bold as to say it, the act has not met such a fate that it is now.... I said it, and I'll repeat it: it's dead in the water. That's no fault of yours. You've done what was required of you. Institutions should have followed suit and said, “We're going to make you look good.” That's not what they've done.
The Information Commissioner has also accumulated a large backlog, and I see no end in sight. The act as it is today--not because of its coverage, which has been good and has been made better because of its application--is in a state of paralysis.
Conservative
Lawyer, As an Individual
I agree. I don't want to take more time on that.
Conservative
Kelly Block Conservative Saskatoon—Rosetown—Biggar, SK
Okay. These questions are for Mr. Drapeau and Mr. Racicot.
Your article in the The Hill Times specifically questioned the wisdom of giving the Access to Information Act a global reach. We have raised similar concerns in this committee as well. Can you please tell us what you think the consequences would be of expanding the current scope of the ATIA from approximately 30 million Canadians and others with direct ties to our country to over four billion people worldwide?
Prof. Michel Drapeau
If I may, I am not philosophically opposed to it, because I think the time will come when we should do this. This is what's happening in the United States. In my own practice, I use the Freedom of Information Act in the States to gain access to records on behalf of my clients. I've also used the U.K. act, which is universal.
But before you make it universal, there are some things you need to do that Mr. Marleau has not touched on. I'll give you some examples. First, you need to change the act so that you can submit a request by e-mail, not in a letter. You don't expect someone in Africa to send a letter to us. Second, you need to drop the fees. You don't expect someone in the U.K. or someone in Nebraska to send a $5 Canadian postal thing. So there are some minor changes that you need to make.
The system is so swamped now as not to work. Why would we want to be an embarrassment on the world scene by saying, “Come on board. Put in your request. And by the way, you, Canadian, go to the back of the queue, because we're now swamped”? The institution can't respond. They sent me a request for a delay of 210 days. If the Information Commissioner cannot respond to a simple complaint within two years, why would we want to open it to anybody, particularly the States? If they submit four million requests and they all get together, we'll do nothing else but answer access requests.
Let's clean up our act first, and then once we do, we should open it. We'll be certain by the time we open it that we can show the world that when our law says 30 days, we mean 30 days, not six months or two years. Otherwise, we'll become an embarrassment, and for now we're not. Most countries--and most of them that have adopted our act--look to Canada for leadership. They've accepted our act, our model, and they look to us. A vast body of jurisprudence that we have has something to emulate. Let's not destroy the good thoughts that they have about us. Clean up our act first, and then we can open it. That won't happen today or tomorrow. I'll have time to celebrate my 50th anniversary before that happens.
Lawyer, As an Individual
If I could add to that, if the government were to accept e-mails and letters, this could be done even without changing the act. It could be done through regulations. You don't need to change the act to do that.
But what we are concerned about too is that in the document tabled here by the commissioner, the 12 recommendations address only the most pressing matters, and we don't think that the universal right of access is one of these 12 pressing matters right now.
Conservative
Kelly Block Conservative Saskatoon—Rosetown—Biggar, SK
Thank you.
I have one more question. Given that Canadian taxpayers fund this program--not users but Canadian taxpayers--do you think it is appropriate for Canadian requests to be given priority over requests made by foreign nationals, who do not pay Canadian taxes and who do not cover the costs of their requests?
Prof. Michel Drapeau
Madam, I think that issue I have to bounce back to you, because ultimately you are the legislator.
In response to a government proposal in amending this legislation, it should be costed. As the green paper said, we expect 70,000 requests. I think there should be a cost associated with it. We expect 100,000, and if that happens we need 50 more people or 30 more people.
But I can tell you, from where I sit, I know there is a paucity of trained, experienced access professionals. That's another issue, but it's really a crisis. It's Paul robbing Peter who robs Jeanette at the moment, and there is a kind of a merry-go-round because there are not sufficient people. At the moment we have in most departments a host of people acting on contract, consultants, doing the work--at great expense, I might add--to meet the demands. Now, why would we want to expend that, at a time when we're all facing a financial crisis, to provide someone in Zimbabwe or someone in Finland access to our records and to make that a priority? That's really what the recommendation says: pressing, needs to be done now. I question that, to say the least.
Conservative
Liberal
Borys Wrzesnewskyj Liberal Etobicoke Centre, ON
Thank you, Chair.
I find it fascinating that in fact you all--the commissioner, Mr. Conacher, Mr. Drapeau, and Mr. Racicot--seem to be in agreement on one thing. The commissioner made it quite clear he didn't think the act was working. Mr. Conacher, you called the situation ineffective. Mr. Drapeau, your adjectives were even harsher. You called it an embarrassment. In fact, you also said it's dead in the water.
So you all seem to be in agreement that it's not working. It's just that you all seem to be taking very different approaches on how to fix it. The commissioner has his quick fixes and obviously would like to see more resources. Mr. Conacher believes that what we need is a regime of consequences, penalties, etc., that this might do the trick. I almost get this feeling...you haven't come out and outright said it, but you've said that the commissioner has the powers, and I guess we are to infer that the present commissioner isn't using his powers, so he's actually not effective in his role.
So first of all, just to clarify that, because you haven't come right out and said that this current commissioner isn't getting the job done, is that what you're trying to say here?
Liberal
Borys Wrzesnewskyj Liberal Etobicoke Centre, ON
Thank you.
You've also referenced a number of countries that have used the Canadian model. In passing you mentioned Thailand. Could you provide us with a list of those countries? If you don't have it handy, could we--
