It's a pleasure.
Thank you, Mr. Chair.
Honourable members, I would like to start by apologizing for making my presentation in English. However, I will be happy to answer your questions in French.
The B.C. Freedom of Information and Privacy Association is a non-profit society that was established in 1991 for the purpose of advancing freedom of information, open and accountable government, and privacy rights in Canada. We serve a wide variety of individuals and organizations through programs of public education, legal aid, research, public interest advocacy, and law reform
Although we are based in British Columbia, FIPA has maintained an active role on the federal scene as well. We have joined the increasingly urgent calls for reform of this now outdated law. Earlier this year, in association with the Canadian Newspaper Association and the Canadian Taxpayers Federation, we wrote to the Prime Minister, asking him to follow the lead of President Obama and include ATI reform in the Speech from the Throne. He didn't. The same three groups also wrote to the Prime Minister during the last election campaign, asking him to bring in the reforms to ATI that he campaigned on in 2006. Of course, we are still waiting.
There is no doubt about the need for ATI reform. When the Access to Information Act came into force, in 1983, the world was very different from what it is today. The Chrysler Corporation was in financial difficulty, and the first minivan was introduced. The Berlin Wall was still up. Home computer enthusiasts could play Pac-Man on their Commodore 64s. In government offices, Wang word processors the size of Wurlitzer jukeboxes were just becoming available to process information.
Information and how it is handled has changed completely since then, but the law governing how Canadians get access to that information has remained fundamentally unchanged. Since that time we've been governed by seven Parliaments, with Liberal and Conservative majorities, as well as Liberal and Conservative minorities. Different parties have held the balance of power in these minority governments, yet reform is yet to come.
There have been serious detailed studies of the ATI Act, and many recommendations for reform. One of the earliest studies was conducted by the justice committee of this House. Their report was entitled Open and Shut, and it came out in 1987. The vice-chair was a young MP by the name of Rob Nicholson. I commend it to you, for the 1980's picture of the Minister of Justice--at least for that, although it does have some very worthwhile recommendations.
In November 2001, the committee on access to information issued a report called A Call for Openness. Again, nothing happened. This report was followed, in June 2002, by Access to Information: Making it Work for Canadians. This report was the result of two years' work, which included foreign travel and cross-Canada consultations, by a 14-member task force of senior specialists in the federal bureaucracy. The government released the report, but it never officially commented on it.
In 2005, then Information Commissioner Reid tabled a draft bill before this committee entitled the open government act. This proposed legislation would have made substantial changes to the ATI Act. FIPA supported this proposal, although we were disappointed with the commissioner's failure to seek order-making power.
In 2006 the Conservative Party platform contained extensive proposals for reform of the ATI Act, which FIPA supported. One of the proposals stated specifically that a future Conservative government would implement the Information Commissioner's recommendations for reform to the Access to Information Act.
In our 2006 submission on the Federal Accountability Act, which you have before you, FIPA expressed our disappointment that the government chose to defer most of these reforms and have them dealt with by this committee. We're concerned that reference to the standing committee could once again prove to be a graveyard for positive action.
Justice Canada also supported the Reid proposal, and the current commissioner, in his presentation to this committee, said he generally supports Mr. Reid's draft bill. In sum, this bill has been expressly supported by the last two information commissioners, Justice Canada, and last, but certainly not least, the current Prime Minister and his party.
It should also be noted that one of the eight commitments related to access to information legislation in the 2006 Conservative platform was the pledge to give the Information Commissioner the power to order the release of information. FIPA is of the view that a consensus was formed over the last four years that Commissioner Reid's draft bill with the addition of full order-making power for the Information Commissioner is the way forward.
I would now like to provide a brief response to the 12-step program the current commissioner has proposed. I will be pleased to elaborate on any or all of these points in response to your questions.
The first two recommendations are that there be a five-year parliamentary review, and that all persons have a right to request access to records under the act. FIPA agrees with both of these proposals.
Proposal three is that the Access to Information Act provide the Information Commissioner with order-making power for administrative matters. FIPA believes it is essential that the commissioner have full order-making power, not just the power to make orders regarding administrative matters. Order-making power is essential to ensure the proper functioning of the ATI Act. The information commissioners in four provinces have this power, and those systems work far better than the current federal regime.
Commissioner Reid expressed the view that order-making power would change the nature of his office. He was right, and FIPA believes this would be a positive change. By seeking the power to make orders on administrative matters, Commissioner Marleau has apparently accepted this change in the nature of his office. FIPA recommends against taking a half measure when full order-making power is clearly what's needed.
Recommendation four is that the Access to Information Act provide the Information Commissioner with discretion on whether to investigate complaints. FIPA is of the view that such a power would only be acceptable in situations equivalent to dismissal of a frivolous and vexatious lawsuit, and similar criteria should be used in these very rare circumstances.
Recommendation five is on the public education research mandate. Recommendation six is on the advisory mandate. Recommendation seven is that the application of the act be extended to cover the administrative records of Parliament and the courts. FIPA agrees with all three of these recommendations.
Recommendation eight is that the Access to Information Act apply to cabinet confidences. In most Canadian provinces cabinet documents are not excluded from review by the commissioner. This recognizes the fact that a cabinet confidence's exception, like all exceptions from disclosure, can be misapplied or abused. FIPA strongly recommends that cabinet records be made an exception to disclosure, subject to review by the commissioner.
Recommendation nine is that the Access to Information Act require the approval of the Information Commissioner for all extensions beyond 60 days. FIPA is concerned that while this proposal may reduce government's ability to take extremely long periods to reply to a request, it will have the unintended consequence of instituting an automatic 60-day delay for all requests.
This has been our experience in British Columbia, where the Campbell government has lengthened the response times from 30 calendar days to 30 business days, plus 30 more working days if the ministry felt that to respond faster would unduly interfere with the orderly operation of the department. In practice, although there is an appeal to the commissioner, no one does this because there is no way the commissioner's office could issue an order before the 30-day extension expired.
Recommendation 10 is that the Access to Information Act specify timeframes for completing administrative investigations. FIPA agrees and suggests a 90-day period, as set out in subsection 56.6 of the B.C. Freedom of Information and Protection of Privacy Act. We believe this 90-day period is supported by Commissioner Marleau.
Recommendation 11 is that the Access to Information Act allow requesters the option of direct recourse to the Federal Court for access refusals. FIPA is of the view that the Access to Information Act should provide requesters with an easy-to-understand, informal way of getting government information. This would include the procedures for resolving disputes over the release of documents.
The commissioner has provided this recommendation as an option, and FIPA considers this a prerequisite to supporting this idea. Sophisticated or well-heeled requesters may want to push things along more quickly and may be willing and able to pay for it, but the average requester, the average Canadian, should be able to get an informal administrative remedy and get their documents.
The person who is not familiar with the system and does not have money for a lawyer specializing in administrative law will need to have this informal process available. With full order-making power, the commissioner would be able to make an order for release of documents without requiring an individual to fight in court to exercise their right to information.
Recommendation 12 is that the Access to Information Act allow time extensions for multiple and simultaneous requests from a single requester. This recommendation would have to be subject to review and order by the commissioner, not the fiat of a government body.
In conclusion, I would like to repeat FIPA's view that we now have in this country a consensus that Commissioner Reid's draft bill, with the addition of full order-making power for the Information Commissioner, is the way to proceed, and time is of the essence.
Honourable members, you have the opportunity to make a real difference by bringing forward this proposal, which has widespread support. Many of Commissioner Marleau's proposals are useful, maybe even valuable. But FIPA does not believe it is necessary to settle for half measures. The small steps may be needed, but the big step is no less necessary. If you don't take the big step, Canada will be left further and further behind.
Thank you. I look forward to your questions.