Information & Ethics Committee on April 22nd, 2009

[Christian Whalen]

No, I think it's something that should be of concern. But I'm wondering whether in fact that problem is exacerbated by our legislative framework and whether it couldn't be alleviated by the modifications that Mr. Marleau has proposed.

[The Chair, Liberal, Paul Szabo]

Thanks for your comments.

Mr. Siksay, please.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Thank you, Mr. Chair.

Perhaps if we had better proactive disclosure, we wouldn't have so many requests to have information released; it would be easier to find.

I wanted to ask a very brief question, and maybe Mr. Hiebert will benefit from a brief question and a brief answer.

Has the question of the creation of records been an issue in New Brunswick, the Archives Act of New Brunswick? I know there was a recommendation that it be rolled into or combined with the access to information act in New Brunswick as well. Has that been an issue, and has there been any particular discussion about whether any reforms need to be done in that area?

[Christian Whalen]

What we were recommending in New Brunswick was the integration, I guess, of our right to information legislation and our Protection of Personal Information Act, which are two stand-alone pieces. That's not the Canadian model. There's the federal model, but we sort of stand apart from the federal government in that respect.

We were actually looking and making recommendations for an informational privacy rights code, again bringing forward the fundamental human rights nature of the interests protected. At the same time, the ombudsman currently administers complaints under the Archives Act, and our only preoccupation there was that some attention should be given to the wording of proposed legislation and existing wording under the Archives Act to make sure that exemptions are carried forward. It's almost like a parallel regime, the right to information regime.

I think the creation of records is a legitimate concern for information commissioners, and I think Mr. Marleau's recommendations in terms of having a consultative role to Parliament in terms of legislation that may impact--like the National Archives Act, which may impact record holdings--is a good recommendation. It's the same type of recommendation that Mr. Justice La Forest made, and I think that's probably the process forward in terms of addressing those types of concerns.

[The Chair, Liberal, Paul Szabo]

Thank you very much.

Mr. Hiebert, please.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

Thank you, Mr. Chair.

I have a couple of questions along the lines my colleagues Mr. Dechert and Ms. Simson have asked. Do you believe it's a fundamental right for foreigners to have access to Canadian information at the cost of Canadian taxpayers?

[Christian Whalen]

I would not go that far, but on balance, I think Canadian democracy would be better served by having an access to information regime that is not exclusive to Canadian residents or Canadian citizens.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

So you don't believe they have a right, but you like the idea of opening it up, perhaps at a fee?

[Christian Whalen]

Well, I think they should be consistent with the fees under the legislation.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

You talked about cabinet confidences. Do you believe that at some point cabinet confidences should be made available after a certain period of time has elapsed?

[Christian Whalen]

Yes, I do think so. I refer committee members to the recommendations of Professor Donald Savoie, who spent a fair bit of time in his report in New Brunswick on that issue and suggested a relaxation of the Westminster model and the traditional period of time during which cabinet confidences will remain confidential.

I think Canadians would benefit from some relaxation of those rules. Again, Mr. Marleau's recommendations, and certainly Professor Savoie's, are better references than I could provide to the committee.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

Now, we've talked a little bit about the high-volume users, though. And I'm not talking about people who make 10 or 20 applications a year, but the people who we've discovered actually consume 50% of the resources of the office. There's a very small number of them—less than, what, about a dozen—who made up 50% of the complaints, anyway.

Do you not think there should be a limit or some cost recovery for these extreme users?

[Christian Whalen]

Yes. I think that type of situation you're describing, in our view, is tantamount to an abuse of process. Had we that experience in New Brunswick, I think we would use powers under the Ombudsman Act to try to address it. I know that our colleagues in Newfoundland have been grappling with that type of issue, and it's been litigated before the courts just how far they can go with respect to provisions they have regarding frivolous and vexatious claims. I think it may be in part for those reasons that Mr. Marleau is recommending here some discretionary authority over which complaints to accept or not.

I think there's always a problem for an administrative tribunal or administrative decision-maker to invoke wording like “frivolous or vexatious claim”. You've inviting contention. So the recommendation from Mr. Marleau may be most sensible.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

This is probably my last question.

Along those lines, when I think about these individuals—these characters that legitimately are using the system because it's been made available to them, but they absorb half the time provided by the officers to fill their requests—in many respects these individuals are placing themselves into our Canadian story. They're part of the action; they're part of the players. I don't understand why, when people go to that extreme, their behaviour should not become available to the public. These individuals, who are so involved in our government, why shouldn't their story be made public? Why should their number of requests and the nature of their requests—but not their identity—not be ATIable?

[Christian Whalen]

I haven't heard that suggestion before today, so I'd really have to take it under advisement. But it strikes me that it's a little bit of adopting a vendetta approach as a matter of public policy, so I'd be careful about that.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

But there's no vendetta here, because we're still talking about preserving their identity. We're simply saying just give us a little bit more information about who these individuals are. We still have a duty to provide the information without consideration of who's asking for the information.

Clearly, there's a number of public servants who have knowledge of who they are and the nature of their requests, because that's simply how the process works. But by the fact that they are so heavily engaged and take up so much of the government's resources, they are imposing themselves into the system. It would seem only fair that Canadians have the right to know who these individuals are.

[Christian Whalen]

I may have misunderstood your question. I'm still not clear, in fact, whether I agree with your suggested solution, but I think we're agreed there's a problem that has to be addressed.

[The Chair, Liberal, Paul Szabo]

Mr. Whalen, I don't know what kind of latitude you have, but I promised to get you out of here as soon as I possibly could. Thank you, on behalf of the committee.

We had a little discussion before the meeting. I look forward to hearing from you. And I can tell you that the information you provided, as well as your response to the members' questions, has been extremely helpful to our work.

Thank you kindly. You're excused.

[Christian Whalen]

Thank you very much, Mr. Chairman.

[The Chair, Liberal, Paul Szabo]

Colleagues, just to give you the benefit of what's happening next Monday, we have Christiane Ouimet, commissioner, Public Sector Integrity Canada. That was a request of Mr. Poilievre, I believe, that she appear before us.

We also will have on that agenda Mr. Poilievre's motion vis-à-vis Google Street View. By the way, I noticed in a news story that Google Street View was doing Ottawa, so obviously there have been some discussions and developments.

On Wednesday, we're very hopeful, but it hasn't been finalized, that the public safety minister, Mr. Van Loan, will be with us for the first hour. If that works, we will also deal with the draft report on privacy. Remember the 12 items we went through? I think we ought to have that preliminary discussion again.

You probably know we don't have the Privacy Commissioner herself coming back to see us until May 11.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

Mr. Chair, did we get a response from the people you sent that nasty letter to, asking them to reply with information? Have you received any information as a result of that inquiry?

[The Chair, Liberal, Paul Szabo]

Oh, to all of the undertakings?

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

To the people who promised to provide us information.

[The Chair, Liberal, Paul Szabo]

I wasn't going to call some Canadian departments and their representatives nasty people.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

No, no, I said your letter was nasty; I didn't say they were nasty.