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.
Liberal
Borys Wrzesnewskyj Liberal Etobicoke Centre, ON
Could you at least mention three countries? You said Thailand and two others.
Liberal
Borys Wrzesnewskyj Liberal Etobicoke Centre, ON
Sure. There's another Commonwealth country, New Zealand, that has taken a very different approach, and I'd like to hear a commentary from all of the panel of witnesses here today.
In our judicial branch of government we don't get a lot of complaints about secrecy, abuse of information, etc., because we have an open court system. It begins with a very different philosophy. Twenty-five years ago I guess this act was incredibly innovative, but there has been a huge amount of progress since that time.
How effective is New Zealand's act, or approach, in which they've taken that same sort of philosophy as the judicial branch of government has, that you post everything? Why shouldn't we just say, let's leave aside the quick fixes, human beings are human beings, we'll have different sorts of commissioners? We can start trying to police and apply penalties, but why not just change the whole system to something that has worked elsewhere?
So the question is, has the New Zealand system worked? Is it cost-effective? And looking at the New Zealand system and the open court system, would you suggest that it might be a way to resolve this? I'd like to hear from the whole panel.
Coordinator, Democracy Watch
Yes. You had summarized what I presented, that we need a system of consequences, and that was highlighted by the answers to a couple of questions. But my main point was that we actually need a totally different information management system. You still need to have that required, not just required by law but with no enforcement system and no penalties.
One of the key requirements is routinely disclosing records and adding them to a public list that can be searched, and then you can just find them on the Internet. There's just no reason a so-called PDF format can't be made of all these documents and you put them up as they are generated.
Liberal
Borys Wrzesnewskyj Liberal Etobicoke Centre, ON
Thank you, Mr. Conacher.
And because we have limited time, I'm going to try to zip through the second part of the question, the New Zealand system. Are you familiar with this?
Coordinator, Democracy Watch
Heavens, no, I have not studied that, so I wouldn't have....
Lawyer, As an Individual
When you are referring to New Zealand, you're talking about the open court system. You're referring to the judicial branch of the courts where all decisions, decision-making, everything is in the open. But we have that in Canada. In the common law system, all the court systems are open.
Liberal
Borys Wrzesnewskyj Liberal Etobicoke Centre, ON
No, I was referring to the judicial branch of government as opposed to the executive branch of government in Canada. The judicial branch posts everything. My question was, should we now not take a similar approach with the executive branch? Is it cost-effective in New Zealand? Has the system worked in New Zealand? We have a Commonwealth country there and it's not the Cayman Islands, it's a lot more similar to Canada. Should we look at that example?
Prof. Michel Drapeau
In theory, yes. But I would say that before we can run--and that's really running, and in a graceful way--I say let's walk. We can't even get what it is you need that you are entitled to by law. You cannot even get this today. The law already provides for this in subsection 2(2), where it says this complements existing processes. There's nothing that prevents the administration--I make a difference between government and administration--from posting anything that they have in a proactive way.
If somebody is asking about, for instance, the passenger list on the Challenger flights and this is being asked every month, and every month you release it and it's part of the public records, eventually the light would go on and you'd say, we're going to post it on the DND website; this is the list of the thing. And if you do this, you're going to reduce your workload, and you will increase your sense of transparency and the sense of confidence that people have in you. Open government? By all means. Most of that should be transparent.
The issue now is--allow me to joke for a moment--if you were to ask a department to give you the time of day, they would ask you why. And they ask you to submit the request. I often speak to people in the media, and they say, what if I were to ask that? Ask, and the first response is, “Put in an access request.” That was not the purpose of this act. In fact, this act is to complement; it's when you hit a block, because this document is for you to have. It has to be processed to exclude and to exempt material and so on, but as for anything else, you should have it.
Liberal
Borys Wrzesnewskyj Liberal Etobicoke Centre, ON
Sure. And thank you for that.
With regard to the limited amount of time we have, what is the level of satisfaction with the system in place in New Zealand? What is your knowledge of that system? It seems that you're almost suggesting that very thing.
Will I have time for another quick question?
Liberal
Liberal
Liberal
The Chair Liberal Paul Szabo
All right, I think the question is out. Do you have a quick response? No?
Liberal
The Chair Liberal Paul Szabo
We can't pursue that. It's a little more than we can address at this time.
Mr. Dechert, please.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Thank you, Mr. Chair.
Gentlemen, thank you for your presentations.
Recently, Mr. Loukidelis, the British Columbia commissioner, appeared before us and he described how, under the B.C. system, they make a distinction between commercial users and individual users of the access to information system in that province. I was wondering, Professor Drapeau, if you could comment on that possibility in the federal system? Mr. Marleau mentioned to us that a significant number of the major users of the federal system are what he would describe as data brokers who are accumulating information on behalf of their clients, for which they charge their clients a fee. And it seems to me that perhaps in those situations the taxpayers would be better served if there was a cost recovery of the cost to government in providing those services.
Prof. Michel Drapeau
It's the flavour of the month. Because we have a backlog, it's easy in some cases.... And I've heard it a number of times, that if we could only do away with the commercial users, industrial users, or frequent users, whatever you want to call them, somehow it would make the system disappear. It's a quasi-constitutional act.
To give you my personal experience, I have clients who come to me because they don't want to reveal their identities, for political, commercial, or whatever reasons, and they ask me to submit a request. Now, whether I submit 10 or 20 requests in a given year, whether that makes me commercial....
As I said before, I certainly know the act well. But to suggest that there be two classes of citizens, that somebody, because of commercial or professional reasons...because you work for the CBC and make several requests or you work for a pharmaceutical company and make several requests, or you're in administrative law, as I am, and have clients who have to file complaints on human rights or they have a complaint before the Canadian International Trade Tribunal and they need access to their information....
Keeping in mind that the Access to Information Act is the only legal means by which to obtain access to government records, why would we want to penalize someone? If you do, then you will have mailboxes being created. In other words, someone will have multiple identities to try to get around the 100 ceiling or the 200 ceiling.
My point--and the courts have said this repeatedly, and it's universal--is that whoever submits a request should attach no motive to it. In other words, whether you're doing it on behalf of your sister who's trying to find out whatever on the medical side, or you do it on behalf of one of your constituents, or whether I'm doing it on your behalf, on behalf of MPs, which I have done on several occasions, my motive or your motive has nothing to do with anything. You have a right to submit a request. You pay your fees. You sign your name to it, and your address. You're a Canadian citizen and you're exercising your rights.
As a lawyer and someone who is into human rights, among other things, I would object as robustly as I could to the suggestion that there be two classes of citizens in exercising a quasi-constitutional act. It puts me in the wrong frame of mind.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
I appreciate your comments, Professor Drapeau. I was also a lawyer in private practice before I was elected to government. My colleagues and I often made requests on behalf of clients, for which we charged service fees.
What do we do about the huge backlog? What do we do about the request that we open up the access to information system to anybody in the world--for example, that we make it easier for people to make requests over the Internet? Given the information that the Information Commissioner provided of the percentage of cost actually recovered from the fee that's charged--and I think he said it was 1% or less--how do we compensate for that in terms of the cost to the taxpayers of Canada?
Prof. Michel Drapeau
In terms of the backlog, you need to ask what the backlog is about. I mean, there are two ways to look at it. Either you try to apply more resources to eliminate the backlog, or I would go to the source of the backlog and ask why we have so many complaints of delays, complaints that are deemed refusals, complaints of exemptions. I would rather work on this. If the message were to be sent loud and clear to institutions....
Contrary to my good friend Monsieur Conacher, I'm not for penalties. I'm for appealing to the ideals of public servants. I'm absolutely convinced that they will respect the law if they are told to. It's a question of priority: we want you to do this and we expect you to do that. If institutions, instead of sending me letters saying it's going to be extended by 210 days.... In the end, it probably requires more effort to apply an extension and defend it, or to have a complaint created, than it is to respond in the first place.
But at the moment there is no incentive, and there's no pressure on the higher management in institutions to tell their ATIP staff, “First of all, we'll give you the resources you need to do the job, and second, we expect you to do the job within the deadlines set by the act.” In the States it's 20 days, not 30 days, and they seem to be able to do it.
Liberal