Information & Ethics Committee on April 1st, 2009

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

I'm just asking you about the most significant reform.

I want to move on to another question.

Mr. Drapeau and Mr. Racicot, in their article in The Hill Times, specifically questioned the wisdom of giving the Access to Information Act a global reach without first addressing the present wait times for information. We have raised similar concerns in this committee as well. Can you please tell this committee what you think the consequences of expanding the current scope of the ATIA from approximately 30 million Canadians and others with direct ties to this country to over four billion people worldwide would be?

[Ken Rubin]

I heard you ask that question before, but here's the thing: it's a red herring. Basically, there are only 30,000 or fewer people who use the act. If we had a million, which would be great, we would really have a good act. Why don't we have a million? It's because we have a lousy act.

Let me give you two examples—and really, there won't be much use. I now have to go to the United States, which I'm entitled to do, to get meat inspection reports, because our Canadian government no longer has any. There is a reason why I need to use other acts.

Secondly, one of the key decisions in the courts in this country involved the Ethyl Corporation, which took the government to task and won, with the help of the Information Commissioner, a very significant case that allows cabinet discussion papers now to be released. It's an American company.

Let's get real here. What we want is an act that can allow as many people as possible to use it. Who are some of the major users of this act right now? They're people who fall under the citizenship and immigration rubric. Why don't you put in proactive disclosure and let the refugees or the landed immigrants who need their files have a system such that they don't need to use the access act?

[The Chair, Liberal, Paul Szabo]

It's your final question.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

On Monday, Mr. Drapeau and Mr. Racicot spoke about the right to information, and for that reason opposed any sort of user-pay system of cost-recovery.

Do you agree that every Canadian has the right to information? If so, do you make any distinction between Canadians' rights and the rights of non-taxpayers or non-citizens?

I'm going to ask Mr. Gogolek to go first.

[Vincent Gogolek]

First of all, I'd just like to quote from the notes provided by former commissioner John Reid, wherein he addresses your question about possible effects. I'll quote him directly:

Since anyone in the world may make access requests through a Canadian agent (and many do, especially in the immigration field), this change is not expected to significantly increase the number of access requests.

That seems logical.

There may be a marginal increase, because, for instance, researchers will now no longer have to ignore Canada because the system is too complicated and, if they're doing an international survey, decide to include Australia instead.

I think there would be a net benefit. I think it would also help raise Canada's profile internationally, which I think is something that this government is trying to do.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Thank you.

[The Chair, Liberal, Paul Szabo]

Okay. This question about offshore interests has come up often. Someone did answer the question in a way that really helped me. Maybe others should be reminded. Anybody offshore who wanted to make an ATI request could simply get somebody who is here to do it on their behalf.

Chances are, in fact, that the 29,000 or 30,000 who are already asking do represent offshore interests anyway, so I'm not sure if I'm all that afraid of those things, simply because those who really want it can get it from wherever they are in the world.

Mr. Pacetti, please, for five minutes.

[Massimo Pacetti, Liberal, Saint-Léonard—Saint-Michel, QC]

Thank you, Mr. Chairman.

Thank you to the witnesses.

It's a very complex situation and study that we're having here, so I may be out of context a little bit, but my personal problem in trying to access information has been either timeliness or getting the right information when I do actually get the information, which is what I think we've been discussing here.

In your opinion, when would you go to see the Information Commissioner if the information that is given to you is not 100% there? How do you know if you're actually missing information? I understand that you get the blacked out or blank pages, but when would it be worthwhile from a practical perspective to see the commissioner and say that you need more information when they've given you perhaps 50%?

I'm a member of the finance committee. I remember that last year we requested some backup information on income trusts. I think 280 out of 300 pages were blanked out. That was obvious, but what happens if you get the reverse? Let's say you get 20 pages blacked out or you get 20 blank pages in a 300-page document. Would that be a situation where we would go and see the Information Commissioner? That's the practical end of it. Also, we've talked about timeliness. How long would all of this take?

[Vincent Gogolek]

The fact is that the requester is always at a knowledge disadvantage, because you don't know and you can't know what is actually there. The government has to provide you with what sections they're relying on, so the blank page would have, for example, “section 21”, written on it for your information, so that you would know that's the section they're relying on to give you nothing.

This is where the order-making power becomes valuable, because at that point, you are able to go to the commissioner and get an enforceable order. The commissioner or his delegate gets to look at those documents and decide whether the government has properly applied, in a limited and restricted way, the exemptions that are in the act.

[Massimo Pacetti, Liberal, Saint-Léonard—Saint-Michel, QC]

So in your opinion, the Information Commission could decide, “Well, you have 80% or 90% of the information, so be happy with that, and see you later”.

[Vincent Gogolek]

No. The government is not and should not be allowed to hold back information from you unless they can find something in the act saying that this is why, for certain policy reasons, you can't have it. If they don't have that, they have to give it to you. That's what the commissioner's role should properly be: to say that you're entitled to it, so give the man his documents.

[Massimo Pacetti, Liberal, Saint-Léonard—Saint-Michel, QC]

Thank you.

Mr. Rubin.

[Ken Rubin]

Well, again, commissioners with order-making power have a little more clout in this area, because they can ask the institutions why their response is incomplete and ask for proof of what they have. The applicant can try, if they know, and suggest that certain things could be possible, by saying that they've looked at the company publications and they know that certain information should exist.

Let me be blunt here and say that the problem at the federal level is that right now we have a dysfunctional commission. A lot of users are no longer even bothering to go to the commission, because they can't be heard. Our whole review rights are being put in abeyance because of the backlog or for whatever the reason. So we have to look, at times, to other means. We negotiate with the departments to ask them if they can do better than this. We seek publicity and say that this is uncalled for. Right now we're in a quandary, because we do need a better review process.

[Massimo Pacetti, Liberal, Saint-Léonard—Saint-Michel, QC]

This is just a quick question. In terms of penalties--I'm not sure if I heard correctly--are we talking about punitive penalties or monetary penalties to departments that don't disclose?

[Ken Rubin]

Do you mean in terms of what I'm proposing?

[Massimo Pacetti, Liberal, Saint-Léonard—Saint-Michel, QC]

Yes.

[Ken Rubin]

We're talking about significantly more monetary penalties--up to $250,000. That is in PIPEDA.

[Massimo Pacetti, Liberal, Saint-Léonard—Saint-Michel, QC]

So companies would be paying from one federal department to another?

[Ken Rubin]

Well, part of the penalties could be discipline, demotion, disciplinary action, termination--

[Massimo Pacetti, Liberal, Saint-Léonard—Saint-Michel, QC]

What about paying the requester? What about paying the demander, or the person who requested the access to information?

[Ken Rubin]

You mean paying the penalties directly to the requester?

[Massimo Pacetti, Liberal, Saint-Léonard—Saint-Michel, QC]

Yes. Would that work?

[Ken Rubin]

I don't think that's in the cards. This is not contingency-fee heaven. No, I think you have to send a message to the bureaucracy itself. So, yes, at times that could mean the imposition of jail sentences.

Listen, maybe the way you're going to get action is by firing a few deputy ministers. What can I tell you?

[The Chair, Liberal, Paul Szabo]

Thank you, Mr. Pacetti.

I would just like to let the members know that I think we have enough time on the clock to get through the second round totally, so that everybody should have a chance. That should give us about ten minutes to deal with the other matter of business we have before us.

Mr. Dechert, please.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

Thank you, gentlemen, for your presentation.

Mr. Gogolek, I understand the British Columbia system charges different fees to commercial users of the access to information system. What is your view on that rule?