Information & Ethics Committee on April 22nd, 2009

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

Thank you, Chair.

Thank you for appearing today, Mr. Whelan. Your testimony is very helpful, as were the documents you distributed ahead of time.

I just want to note that in the submission of the ombudsman to the law committee on Bill 82, there is a really good summary of the statement around fee structures and penalizing taxpayers for access to information that they've already paid for. I think that was a very helpful statement for me. I know you've already talked about that with Ms. Simson.

You referenced a couple of UN agreements or declarations: the UN principles on freedom of information and the Universal Declaration of Human Rights. Is it helpful to explicitly mention those in access to information legislation as part of that legislation or in the preamble? Does that have an interpretive value? Or is that something you would recommend?

[Christian Whalen]

Well, I think it's difficult. Those are probably questions the committee could leave to the drafters and seek advice of legislative counsel on.

On the UN document with respect to drafting principles, I'm not sure you would typically see something like that in a preamble. I think certainly those are principles that committee members should be well acquainted with and keep foremost in mind as they deliberate and make recommendations to Parliament.

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

I find your explanation of the Blood Tribe decision very interesting, and it's not something that I personally knew about, being new to most of this. Not being a lawyer, I wonder if you could review that in a layperson's discussion of client-solicitor privilege and the differences between what an ordinary Canadian would expect and what you're saying are the issues related to solicitor-client privilege when it relates to the crown and the advice the crown has just had.

[Christian Whalen]

Mr. Siksay, if I can say with respect, what I think is regrettable in the Supreme Court's decision...and it was clear for the counsel present, in terms of the court's questions and thought processes, that they really zeroed in on the law of solicitor-client privilege. It has been a hallmark of our Supreme Court and our bench in recent years to affirm how important that privilege is in Canadian law.

At the same time, the Blood Tribe case was about a woman who had been fired from the Blood Tribe department of health and who was looking to get to the bottom of the reasons for her dismissal. She was able to apply to the federal Privacy Commissioner's office to access personal information that her employer held about her, under PIPEDA. It was very much an access issue.

The purpose section in PIPEDA speaks to the fundamental nature of that privacy interest. Usually, if you apply provisions of interpretation guiding the interpretation of quasi-constitutional documents, you would try to give effect to Parliament's dominant purpose and to interpret exemptions like solicitor-client narrowly, but that interpretative approach was completely discarded in favour of solicitor-client privilege.

Is it surprising? Well, who are judges? Judges are former lawyers. What's the average Canadian's perspective on that? I think they would expect that a federal Privacy Commissioner, with a bevy of lawyers like Ms. Stoddart has in her employ, would be equally competent to review a claim of solicitor-client privilege as a Federal Court judge. There's a real risk if that judicial tendency continues. Unless Parliament makes it clear that we want our parliamentary officers doing this work, the Federal Court and other superior courts in Canada are going to be clogged up with those issues. That doesn't seem, to me, terribly effective.

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

By speaking of clogged up, you said that problems with the federal act have a drag-down effect on other legislation in Canada at the provincial level. Could you say a bit more about how you see that operating?

[Christian Whalen]

Well, maybe that's not entirely fair, but I think there's concern about delays at the federal level. There are concerns about the possibility for lengthy extensions of time in terms of responding to requests.

I think in terms of the fee structure we have, we're trying to maintain one of the positive attributes of our existing legislation, yet there's the fact that the federal access to information legislation is subject to an application fee and then photocopying charges and then search fees on top of that. I know the Parliament of Canada isn't alone in that; it's a legislative model that exists elsewhere in Canada. But it's not the best legislative practice. Quebec has the best legislative practice, and New Brunswick isn't far behind. I think that's the direction Parliament should be headed in.

[The Chair, Liberal, Paul Szabo]

Thank you.

Mrs. Block, please.

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

Thank you very much, Mr. Chair.

Welcome to our meeting today.

Mr. Whalen, are you familiar with the Federal Accountability Act?

[Christian Whalen]

Yes.

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

Are you familiar with the reform to the Access to Information Act that came about as a result of the Conservative Federal Accountability Act?

[Christian Whalen]

Yes, I had a chance to discuss it with officers of the Office of the Information Commissioner who are here today.

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

Thank you.

Since September 1, 2007, the Government of Canada has been more accessible, with a larger number of institutions covered under the Access to Information Act. A total of 186 institutions were subject to the act in 2006-07. Since the coming into force of the Federal Accountability Act, some 255 institutions are now subject to the Access to Information Act. The institutions include 19 departments and ministries of state; 141 other government institutions, such as foundations, agencies, commissions, tribunals; 42 crown corporations; and 53 wholly owned crown subsidies.

In his testimony before this committee on March 9, the Information Commissioner told us that the Conservative Federal Accountability Act was the most significant reform to the Access to Information Act since its inception in 1983. On March 11, David Loukidelis, Information and Privacy Commissioner of B.C.; Stanley Tromp, author of Fallen Behind: Canada's Access to Information Act in the World Context; and Murray Rankin, a lawyer specializing in information law and author of the preface for Fallen Behind, also all agreed that the Federal Accountability Act was the most significant reform to the Access to Information Act since its inception.

On April 1, Vincent Gogolek, legal counsel for the B.C. Freedom of Information and Privacy Association also agreed that the Conservative Federal Accountability Act was the most significant change to the Access to Information Act since its inception. That same day, Ken Rubin told this committee that all of these witnesses were being too polite to this committee and that the Federal Accountability Act was not the most significant reform to the ATIA since its inception in 1983.

My question is a simple one. Do you agree with Mr. Marleau and others who testified that the Federal Accountability Act was the most significant reform to the ATIA since its inception in 1983?

[Christian Whalen]

What I can say, Ms. Block, is that I anticipated your question. I read with interest the proceedings. I hadn't gotten down as far as that most recent intervention, so I wasn't sure that you had a “no”, and I wasn't sure I wanted to be added to the “yes” list. In fairness, when I read the transcript of Mr. Tromp's response, I think he gave you the answer you wanted to hear, but I think the “yes” really reads more like “no”.

I'd make two points. One is that I think the most significant aspect of the Federal Accountability Act reforms in terms of access to information wasn't the addition of...I think it was 69 new crown agencies, and the extension of the application of the act in that context, partly because, as Mr. Marleau pointed out, by simply expanding the scope of the act in the context that we know, we're just expanding the problems in terms of administration, in terms of delay. So that's something that government and this committee have to be concerned with.

The most significant aspect of the reforms--and I don't think it has really come out in the discussion at the committee to date--was the addition of the duty to assist. I think I really want to give the government credit for that aspect of law reform introduced most recently. Duty to assist is something we don't have in New Brunswick that we think is sorely needed. I think it's the type of reform that's consistent with everything Mr. Marleau was presenting here. It's about getting better results for Canadians in terms of access. It's about addressing concerns about delay. It's getting to the heart of the issue and seeing what information Canadians are after.

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

Are you familiar with subsection 67(1) of the Access to Information Act?

[Christian Whalen]

No.

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

I wasn't either before April Fool's Day.

I would like to give the rest of my time to Mr. Dreeshen.

[The Chair, Liberal, Paul Szabo]

Okay, you have a minute and a half.

[Earl Dreeshen, Conservative, Red Deer, AB]

Thank you very much.

I appreciate your coming here and your testimony.

Your written brief dated November 5, 2008, is critical of Manitoba because it doesn't include a general public interest override. You were quoted as saying, “Manitoba's statute is exceptional in Canada in that it has no general public interest override. We should not follow the model in Manitoba.” Could you explain your position with respect to public interest override? Also, are there any situations you see where information is clearly in the public interest and should or should not be disclosed?

[Christian Whalen]

The advice I would have for committee members, to begin with, in terms of a policy direction to take on that issue would be to look at the UN document. It talks about harms tests and public interest overrides as essential features of right to information legislation. I have the text in French in front of me, but you have it there because the clerk of the committee has circulated copies to committee members.

At the very back of this document, “Inside and Outside the Box” you can find annex II and that statement of principles. Principle 4, on page 33, talks about a three-part test in terms of harms tests and public interest tests:

The information must relate to a legitimate aim listed in the law; Disclosure must threaten to cause substantial harm to that aim; and The harm to the aim must be greater than the public interest in having the information.

It's that type of broad public interest override we'd like to see in New Brunswick, and I think the same would apply federally in Canada as well.

[The Chair, Liberal, Paul Szabo]

I just wanted to let the committee know that we're going to have to move on because we were a little late starting with the witness, and he has a flight at 6:30. He's going to have to leave at about twenty past, and we have five more members. I have Mr. Wrzesnewskyj, Mr. Dreeshen, Madam Thi Lac, Mr. Dechert, Mr. Siksay, and Mr. Hiebert. That's six, so we're tight. We will keep it down to five minutes.

Let's go.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Mr. Whalen, in New Brunswick are parliamentarian requests amber-lighted?

[Christian Whalen]

We don't have a process of amber lighting. I'm not exactly sure how that practice actually translates in terms of federal government policy. I know that in his report cards Mr. Marleau has raised concerns about that. We, too, in individual ombudsmen recommendations under the Right to Information Act, have remonstrated public agencies for their tardiness in responding to MLA requests. I'd say that the practice is exceptional, but there have been occasions when it just seemed that waiting until the end of a session to release documents raised a concern about an appearance of bias in terms of the way members of the legislative assembly might be treated with respect to access requests, and we wanted to make sure there would be no such possible perception and recommended that public sector agencies give due consideration to that concern and expedite those processes.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

At the federal level, we perhaps have a slight infection of the same sort of disease in terms of amber lighting.

Are there any other provincial jurisdictions that have issues with the same problem of delaying responses to parliamentarians' requests, or is this mostly a systemic problem at the federal level of government?

[Christian Whalen]

Mr. Marleau's advice is that it is a systemic issue federally. I suspect it's the type of issue that replicates itself throughout the system in Canada. But certainly in our jurisdiction we've attempted to take measures, through our recommendation-making authority, to address it squarely. We have seen some slight improvements in that issue--or no significant recurrence, if you like.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Madame Thi Lac referred to the fact that when this act was first put in place we didn't have the Internet, so we had to physically have a space where files could be kept. People were there to oversee the processes, etc. We had to do it in that manner because there wasn't any other method.

People have referenced the New Zealand system, where you automatically place.... But doesn't it make sense that we don't necessarily need a legislative change? This is just process. I think the intention of the act is quite clear. You stated that it's a fundamental principle of democratic rights in a society such as ours. So why wouldn't the executive branches of government take on that open government concept and immediately file these things on the Internet, instead of using the antiquated processes we have at the present time?