Information & Ethics Committee on April 1st, 2009

[Vincent Gogolek]

I would have to say that governments probably do this now. If they are filing access requests to Canada, they're doing it through third parties. Also, given the way the system now works and how hard it actually is to get information.... If you're identified as being media or political, you're amber-lighted, and tiger teams work out on you.

If you're hoping to get your information at any time in this lifetime, you'd better apply as Mickey Mouse, or somebody else—otherwise, you're going into the ringer.

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

You mentioned amber lighting. Could you tell us when amber lighting started as a process in the access to information system?

[Vincent Gogolek]

That is formally or informally? I'm not inside the system; you're probably better placed to answer that.

[The Chair, Liberal, Paul Szabo]

One can only speculate, and we don't speculate too much. Maybe you'll get a chance, and somebody can answer that.

Mr. Ménard.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Thank you.

You don't have to convince me of the need for ATI reform. I have taught courses on this act and I was struck when I read in a book that while all democracies bragged about having ATI legislation, as soon as legislation was adopted, the government did everything it could to restrict the application of the act. It would appear that this universal rule also applies to Canada.

I have some specific questions. I don't want you to think that I question whether many of your proposed reforms should be introduced. One in particular intrigues me. You recommend—and in this respect you agree with Mr. Marleau's seventh recommendation—that the application of the act be extended to cover records related to the administration of the courts.

To my knowledge, everything, or almost everything, related to justice matters is in the public domain in Canada. Is there anything that is not public that you would like to see become so?

[Ken Rubin]

Well, I'll put it to you this way. On the court side, yes, there is an open court system, and I don't think—if I understood Commissioner Marleau correctly—he consulted the courts. I don't know how they would feel about it.

It's Parliament that I'm more concerned about, because if you limit it just to the general administration.... Remember I made that delineation between operational, policy, and communication records. For instance—

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I'm sorry to interrupt you, sir, but we don't have a lot of time. I don't have a problem as far as Parliament is concerned. However, what information would you like to courts to disclose that is already not made public?

[Ken Rubin]

I'm at a loss there, except if they had administrative problems, then you might want to know something more about them.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Yes, I see.

[Vincent Gogolek]

Perhaps I could answer that question. Perhaps we could talk about the scheduling of trials. Why does it take years for a case to come to trial? We're not interested in seeing the personal notes of a judge or of a Crown prosecutor. We're more interested in administrative matters. There are always some missing elements, and while they may not be that important, why can we not access them?

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I see. Mind you, court proceedings are a matter of public record. The lawyers plead their case for the scheduling of the proceedings and ultimately the ruling becomes a matter of court record.

Moving along, there are limitations, as far as the police is concerned. In my view, you are right to feel that the power of the police to refuse to disclose information is too broad. However, I think you're prepared to concede that information about a criminal investigation should not be disclosed.

Right now, I'd like to talk about disciplinary decisions involving the police. Let's say a disciplinary decision calls for police to conduct a broader investigation with a view to making some changes to the disciplinary system. Would the public have access to this type of decision?

[Vincent Gogolek]

If I understood your question, you're referring to systematic reforms and to the availability of the facts and of statements made by the government or law enforcement authorities concerning the running of a police service.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

No, I'm talking specifically about disciplining police officers. I know that an extensive investigation was conducted by the RCMP and reports were submitted to the commissioner calling for some changes, further to an incident where four female officers accused an investigator of sexual assault. Three superior officers were asked to report on this incident.

In your opinion, should the disciplinary report drawn up by these superior officers be made public?

[Vincent Gogolek]

This is one of these grey areas where privacy rights must be considered along with the public's right to know how the police service operates.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mind you, I have been waiting three years to get my hands on one of these reports. I know that 13 recommendations were made.

Do I have time for another question?

[The Chair, Liberal, Paul Szabo]

You can put your second question, Mr. Ménard.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I would like to talk about a more general issue, but it could lead to a lengthy discussion, so I will settle for a question about something very specific.

I'm not clear on recommendation 10 of Mr. Marleau which reads a follows: That the Access to Information Act specify timeframes for completing administrative investigations“.

What exactly do you mean by “administrative investigations”?

[Vincent Gogolek]

I'm sorry, but I didn't catch the last bit.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

What exactly do you mean by the reference to “administrative investigations“ in recommendation 10?

[Ken Rubin]

Can I speak for Marleau? There's time, time extension, fee kinds of complaints, operational complaints on the access procedures. The problem with a lot of Commissioner Marleau's recommendations is like that game of pin the tail on the donkey: it's just like here, here, and there. You don't get any sense that there's any systematic, clause-by-clause approach to reforming the act.

Here you have a system where you say “I have administrative binding order powers for things like time, time extensions, and so on. And let's see, if I read Marleau correctly, on fees, he'll set things, on fee waivers, on time extensions, which won't necessarily be in the interests of an access user.” But then he'll say that I have to do something about these within 90 days. Well, if you add how long it's going to take him for gathering--the new norm will be half a year, less than half a year--I'm not willing to settle for that kind of recommendation.

[The Chair, Liberal, Paul Szabo]

Mr. Dreeshen, please.

[Earl Dreeshen, Conservative, Red Deer, AB]

Thank you, Mr. Chair.

Thank you both for your testimony today.

It seems there has been a lot of conflicting expertise at most levels with respect to the access of information for the last three meetings that we've had. Perhaps you can appreciate why we would be coming at this from a few different angles to try to get some answers with regard to this.

There has been a certain amount of anecdotal evidence that says there are pages being withheld and so on. I'm curious about whether there has been any statistical data to support that conclusion. Do you have any comment on that?

[Vincent Gogolek]

I don't think there is an overall number in terms of how many pages have been withheld. In terms of anecdotal evidence, in B.C. we've had cases where the B.C. government or public bodies have withheld documents and what has happened is somebody brown-enveloped the actual whole document, usually to a reporter. There's the usual front-page story with all the....

[Earl Dreeshen, Conservative, Red Deer, AB]

Is it in order to get that front-page story, or is this something that happens quite often?

I suppose I'll come back to another question.

Mr. Rubin, what percentage of the requests you would put in would perhaps go to the complaint stage?

[Ken Rubin]

I was intimating that I rarely use the complaint stage any more because it's so totally broken down. A lot of other users would say the same thing. If you're going to have to wait a year or two to even get on, and then you're going to be triaged so you can't even get your complaint in the queue, your rights are not going to apply.

If you want me to say how many of what I would like to complain about our records are exempt, it's well over three-quarters--not totally, but well over three-quarters. That's what the problem is, as well as the time problems. Most of my time extensions are for well over 120 days. One of them is even 800 days.