Evidence of meeting #13 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.
Conservative
Earl Dreeshen Conservative Red Deer, AB
If you're saying that this just happened in this last little while, what types of problems did you have prior to that? Has there been a change?
As an Individual
Yes, there has been, because you don't even get a letter of acknowledgement for your complaints. You don't even hear from an investigator, nor does the department, for months at a time. What's the point of going there?
One of the principles of the current Access to Information Act is that you have the right to access, you have the right for certain records and the right to review. But if your right to review is being made impossible, there's a crisis, like there is in departments, because it's dysfunctional on the part of some departments when they are putting your requests off for 200 days, or whatever.
Conservative
Earl Dreeshen Conservative Red Deer, AB
I have a couple more questions, Mr. Chair.
We talked a lot about the report cards. Could the flooding of a department with access requests create a situation in which an inordinate number of complaints are occurring, and could that be one of the reasons you could go from a B to a D, and so on? Do you have any comment on the report card stage, and should the grading system be revisited?
It might happen to be like the CBC, which did come in, and all of a sudden there were a lot of requests that may have been just curiosity or whatever. I'm curious what your thoughts are with respect to that grading process.
Director, Policy and Privacy, B.C. Freedom of Information and Privacy Association
There are a couple of ways of looking at it.
The report card provides a letter on a scale. There are a number of reasons for it, and you do have to look at the reasons. You may have a very small department such as, let's say, Veterans Affairs, and suddenly an issue comes up that results in a lot of concerned individuals putting in for information, and the department is not set up for it. It sounds like that may have been the case with the CBC. It really does depend on the individual case, so I think you do have to look at the actual facts in each one.
Conservative
Earl Dreeshen Conservative Red Deer, AB
I have another comment, and then I'm sure my time is getting close to the end.
Part of the amendments I have read here include amendments since the passage of the Anti-terrorism Act in 2001. Basically I'm curious about the mindset that existed when that Anti-terrorism Act was amended. As well, do you have any comments on the current thinking in that regard?
Director, Policy and Privacy, B.C. Freedom of Information and Privacy Association
Are you talking about the clerk's certificate to stop any complaint?
Director, Policy and Privacy, B.C. Freedom of Information and Privacy Association
I'm not sure why. I have some personal knowledge of this issue, because I actually tried to argue it in the Federal Court as an individual back in the mid-1990s, when I put in an application concerning how the government sets fees. Essentially they charge a nickel or a dime or a quarter for photocopies. I was told there were 1,700 documents, 1,600 of which were cabinet confidences.
Two and a half years after complaining to the then Information Commissioner, I got a note back from the commissioner saying they were sorry it took so long. I thought there was a loophole there. I took it to Federal Court. The judge said they weren't going to look at it.
It seems to me that the government essentially brought in the equivalent to section 39 of the Canada Evidence Act. They brought the certificate out of an abundance of caution. It was to make sure nobody would ever look at it and to kill off the complaint.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
In the hearings the other day, one of the witnesses raised the concern that should the Information Commissioner have full order-making power, it could lead to delays in disclosure when orders were challenged in court. He suggested that this was happening in Ontario.
Could both of you address whether you've seen this happening? As well, what is the experience in British Columbia, Mr. Gogolek, and has that occurred?
Director, Policy and Privacy, B.C. Freedom of Information and Privacy Association
I don't see how the order-making power itself would bring about the delays. The delay comes when the government or the public body tells you that they're not giving you the documents, and you complain about it. The beauty of the order-making power is that you're able to get a remedy, the equivalent of a Superior Court order, that is enforceable with contempt powers.
I don't think that concern holds water in British Columbia. I'll leave Ontario to Mr. Rubin.
As an Individual
Well, there are other jurisdictions, such as Alberta.
Yes, there are some judicial reviews going on, but when you look at the total perspective of how many orders are issued, it's a very minor number of them, which means that either you have to have better orders or that the government has to stop....
That's why I'm proposing a more proactive disclosure administrative system. You know, it's as if you slip on the pavement and city hall says “Strike that” and challenges you on anything you do. That's the mentality, so that's part of the problem. The problem lies more with the government.
One approach sees order-making power as a terrible thing. People who want to cite these things are people who just don't want to get on with the fact that, in the end, this country needs somebody with order-making powers.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
I wonder if I could also ask about the requirements to create records. I think, Mr. Rubin, you addressed this. There's been some suggestion that this would be more appropriate to the Archives Act, rather than access to information.
As an Individual
Certainly the national librarian has to be involved. The problem is that they've been involved with Treasury Board for 25 years, and we're in a sad state of affairs with our records and documentation retrieval. There is also the fact that an oral tradition has grown up, to the point that many decisions, in detail or otherwise, aren't done. We don't even have cabinet record verbatim its meetings' minutes. So when I get these 20 years later, I get some sanitized summary, as I do with records of decisions of a lot of agencies.
We have a serious problem, not only for history but for access users. We don't keep proper records, so you don't necessarily get an accurate picture of what's going on. That's why the duty to document decisions and actions in detail is so very important.
With respect to the Information Commissioner's role, there are grounds for appeal, grounds for investigation, grounds for order, grounds for penalties. Obviously, you have to have cooperation inside of the government. But we're at a point where this absolutely has to be looked at. If we want to talk about why we're here, then we have to look at the combination of some of the outsourcing that's been done, the millions of dollars spent on record management, and the attitudes of some of the people inside to literally avoid keeping records. This can't be changed by voluntary methods. You need to create a new duty-to-document clause that is going enforce rights.
Director, Policy and Privacy, B.C. Freedom of Information and Privacy Association
With respect to the duty to document, Commissioner Reid put it in his draft bill. The commissioner, as a creature of statute, can't look in the archives; he needs it in his own act.
Liberal
Michelle Simson Liberal Scarborough Southwest, ON
With respect to Internet proactive access, if we ever got to the point where we were forward-thinking enough to automatically get as much as possible up there and make it accessible to as many people as possible, do you see this as creating a security issue? Could the Taliban access our information? What should we be shooting for?
As an Individual
First of all, you have to understand that right now we don't have such a system. We have government websites that put on limited stuff. Some of it's pure propaganda. We're not talking about putting up only proactive disclosure, travel expense lists, contract lists, or other administrative records. We're talking about putting up briefing notes, papers, and so on.
As an Individual
If you have provisions within the act, which I certainly do in my bill, that allow you to exempt things related to a narrowly defined national security area, then obviously those things don't go on the Internet. But other things do. They don't just go on the Intranet, which is the internal government communications system; they go right out. And they go right out to anybody and everybody.
Director, Policy and Privacy, B.C. Freedom of Information and Privacy Association
As an organization, we're very much in favour of proactive disclosure, and the new technologies are making it much easier. It's a completely different world now. We have what used to be government information in filing cabinets. Even the best-intentioned bureaucracy cannot run off a thousand copies of a document, pile them up outside the door, and tell somebody to please come and get them. You can do that on the Internet. It's the way of the future.
Liberal
Michelle Simson Liberal Scarborough Southwest, ON
I don't think anybody would disagree that this is an old, broken, and totally ineffective act. That being said, how would you rate the 12 recommendations Mr. Marleau gave as a starting point? Could they be implemented right away? Do you see any of them as being regressive?
