Information & Ethics Committee on April 22nd, 2009

[Christian Whalen]

Do you mean file access requests that have been responded to, so there's an inventory?

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

No. Instead of having all these files in storage rooms with people overseeing the whole process, why not automatically file all this information on the Internet so it's truly accessible? Unfortunately we've seen an evolution where these people who were supposed to be employees, whose role was to provide access, are becoming more and more like gatekeepers. They slow down requests by members of Parliament, whose role it is to hold the government to account on behalf of the people of Canada. It's almost Orwellian. It has become the opposite of what the intention of the act quite clearly was.

We have the capacity technologically today to do this. Why not begin the process? Why hasn't it been started in some of the provincial jurisdictions, if they've done it in places like New Zealand?

[Christian Whalen]

It is change that is quickly upon us. You're exactly right that Canadians expect us to be Internet savvy and enter the information age with access to information issues. Mexico has also been offered up as an example of a jurisdiction, with presumably lesser means than ours, that is doing great things in online access to information.

There's the issue of making the access to information process amenable to Internet usage; then there's the proactive disclosure aspect of trying to anticipate common access to information requests, and making sure that information is publicly posted in advance of people asking for that information. I think both those things are important, and information commissioners across Canada--the federal commissioner included--are very much oriented toward encouraging those types of practices.

[The Chair, Liberal, Paul Szabo]

Thank you.

Mr. Dreeshen, please.

[Earl Dreeshen, Conservative, Red Deer, AB]

Thanks.

I have three or four questions so I'll try to be as quick as possible. Some of them require just yes and no answers.

As someone who is responsible for overseeing access to information in your jurisdiction, do you believe there are any specific areas where access to information laws should not apply?

[Christian Whalen]

I'd have to say no, as a rule. I think the basic principle has to be that the act applies to all records within government. There have to be exemptions, but we want a system where there's independent oversight to administer the application of those exemptions. When you develop a tendency to have legislative carve-outs, whether it's for National Defence, solicitor-client privilege, or cabinet confidences, that's taking you down the wrong path.

[Earl Dreeshen, Conservative, Red Deer, AB]

Yes, you don't believe that right to know should have any boundaries or limitations other than what you've just stated, then?

[Christian Whalen]

I think the limitations have to be clearly set out in the exemptions and I think it's important that Canadians understand the exemptions under access legislation, the reasons therefore.

[Earl Dreeshen, Conservative, Red Deer, AB]

Then to go to the next level, when we speak about the global reach, opening it up to anyone in the world and so on, opening it up to foreign nationals so possibly including people who are not friendly to our country, giving access to them, is this something that you've discussed or thought about from the provincial level, that maybe we in the federal level might have to look at somewhat differently?

[Christian Whalen]

Quite frankly, until I received the invitation to the committee and I was able to look at the exchanges with other witnesses, I really wasn't aware of that aspect of the Canadian Access to Information Act, and it's not consistent with Canadian practice generally. There's no limitation in New Brunswick with respect to who may apply. There's no limitation for citizens only. I don't think that extending or implementing that particular recommendation of Mr. Marleau's would have any sort of impact.

[Earl Dreeshen, Conservative, Red Deer, AB]

If I could expand a bit, one of Robert Marleau's recommendations includes cabinet confidences in the Access to Information Act, and I think you've already looked at that. You perhaps said that there are certain circumstances where you believe they should be kept in confidence, is that true? I'm just wondering whether or not you believe there are certain circumstances where cabinet confidences should be indeed kept--

[Christian Whalen]

I think the exemption for cabinet confidences is fundamental in Canadian law. It's something that has to be maintained. The only question I'm raising is whether or not there shouldn't be an opportunity for independent oversight of those claims of privilege.

[Earl Dreeshen, Conservative, Red Deer, AB]

I'd like to take you to the next level, and perhaps if you've listened to the commentary, you'd recognize this.

We've heard that a small fraction of Canadians actually use the ATI. And in fact a small number of these users have a vast majority of the requests. So I suppose what I'm looking at is, should there be a merit in having some of these high-volume users be the subject of ATI requests with respect to their own activities? If they're going to be using this, should they not be subject to information as well, and do not all Canadians then have the right to know what is happening there?

[Christian Whalen]

I would think not. I think the committee wants to be careful about putting limitations on the ability of Canadians to bring forth individual access requests as frequently as they do. I think in every jurisdiction there tend to be frequent flyers, and I know that Mr. Marleau has been seeking a recommendation for the discretionary authority to deal with those.

In New Brunswick, we chose specifically not to recommend the addition of a provision to dismiss frivolous and vexatious claims expeditiously. We haven't had that in our legislation and we've been able to manage well without it.

[Earl Dreeshen, Conservative, Red Deer, AB]

The Federal Accountability Act says that it has a duty to assist all requesters without regard to identity. I notice that none of the recommendations indicate that requesters are allowed to operate in anonymity, nothing that we see in these twelve.

So again, I come back to the point I was at before. Should these frequent requesters not be subject to the possibility that their activities would be important for other Canadians to know about? Should we be looking at a threshold, a certain percentage that you would have, a certain number, and if you reach that, then all of a sudden people should know you're doing that?

[Christian Whalen]

I think that at any point the Information Commissioner.... Certainly our view is that the ombudsman in New Brunswick, as the master of his own process, has inherent jurisdiction and authority to deal with abuses, of one's process of abuses.

[Earl Dreeshen, Conservative, Red Deer, AB]

Does New Brunswick have those kinds of abuses?

[Christian Whalen]

But we haven't had that experience really of those repeat--

[Earl Dreeshen, Conservative, Red Deer, AB]

So it's just unique, then, to the federal level?

[Christian Whalen]

It's so difficult to deal with.

[The Chair, Liberal, Paul Szabo]

You're getting very good at stretching the five. Thank you.

We also have to remember that if you did have those kinds of problems, someone would simply revert to proxies to launder their requests anyway, so it's almost like you can't get there from here.

Madam Thi Lac.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Thank you.

You talked about the confidential nature of complaints. Since we have very little time, I will ask all my questions at once, and you can then answer them all.

First of all, do you think everyone should have the right to information, or only Canadian citizens?

We know that the media often use the Access to Information Act and they made requests in order to provide clear, accurate information. The purpose of the media is to inform the public. Before the media releases any information from a single source, it must be validated and corroborated. Often the Access to Information Act is essential to members of the media for validating the information they provide to the public. If we impose limitations on people who use the system frequently, in spite of the fact that the media have a role to play and an ethical code to respect, we will be denying access to information and perhaps people will get biased information as a result.

You saw some major similarities between the recommendations made by Mr. Reid, and those made by Mr. Marleau, but did you see any major differences? Do you think Mr. Marleau should have reintroduced some of the recommendations that Mr. Reid made?

[Christian Whalen]

I will have to refer your third question to Mr. Marleau and others.

As I said, the Office of the Ombudsman in New Brunswick sees no point in restricting access to information. We think that limiting the right of ordinary citizens would run counter to the nature of this fundamental right.

With respect to preferred status for the media, some witnesses have mentioned this to the committee. If I understood correctly, this is the approach used in some American states. I think the idea deserves study, but before we get that far, there should be greater use of access to information by the media. I do not know whether there really is a problem at the federal level because journalists and other members of the media use the system frequently. However, I do think that the committee should be very concerned about any attempt to limit the number of ATI requests made by the media, in particular. In New Brunswick, the most frequent users of the Access to Information Act are the members of the legislative assembly. Here again, we can talk about the importance of the transparency provided by parliamentarians, as by the media. There is the issue of privileged status, but the challenge for us is rather to ensure that the media use the system properly. There are not too many requests from the media in New Brunswick, and we organize seminars to encourage the media to use the tools available to them under the act. I think this should be done at the federal level as well.

[The Chair, Liberal, Paul Szabo]

Thank you.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

You have not answered my first question. Should information be provided to Canadian citizens only, or to anyone who makes a request?