Information & Ethics Committee on May 4th, 2009

[Carolyn Kobernick]

In the Department of Justice, what our deputy minister did, under the direction of the minister, was put in place means and processes whereby we would be able to respond in the timeframes that are required. Ultimately, it's the minister, but certainly a deputy minister and assistant deputy ministers have responsibility to ensure that we respect whatever the requirements of the legislation are.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

If they fail to do that, what sanctions would you recommend that a minister should receive? Should there be financial penalties? Should there be some sort of compensation to the requester?

[Carolyn Kobernick]

I don't think I'd be prepared to say what type of sanction a minister should receive. Certainly, there are reports to Parliament; it's publicly indicated; and the access commissioner, Mr. Marleau, has issued his own reports. They're tabled in Parliament; they're subject to public scrutiny. To me, that's public accountability at its highest.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

The minister said I had made multiple allegations. Actually, it was one simple allegation. Legislation in 1999 made it very clear that to destroy, mutilate, alter, falsify, or conceal a record with intent to deny a right of access can lead to criminal charges. We had serious allegations from a superintendent in the RCMP, an officer, that this is exactly what a deputy commissioner was engaged in, in the former commissioner's office.

Obviously, because we didn't get a response to it, this has not been looked into. I'm making it absolutely clear that you don't need a report from committee. A serious allegation of this sort is something that it would be expected would be looked into.

But I have another problem, and it's a question of—

[The Chair, Liberal, Paul Szabo]

We're at five minutes already. Quickly put forward some question they can respond to; otherwise, we'll have to move on.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Okay.

In a conference call, former communications director Sandra Buckler named a Canadian Press reporter, Jim Bronskill, as the requester of an access to information request. Now, the protection of the requesters is very important. It was the Prime Minister's director of communications who made this disclosure. Have there been consequences? Have checks been put in place so that journalists aren't named in this way publicly?

[Denis Kratchanov]

I can't speak about this particular incident or allegation that you're making, but a few years ago this committee held hearings on this subject. It made recommendations, and the government responded to those recommendations, and I think that's very well known.

[The Chair, Liberal, Paul Szabo]

Okay.

Mr. Dechert, please.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair, and thank you, ladies and gentlemen.

On March 9, Commissioner Marleau told this committee that a significant percentage of the users of the access to information system in Canada were what he would describe as data brokers, i.e., commercial organizations that gather information for their clients and then resell the information to them.

Would you agree that the commercial organizations, such as data brokers or lobbyists or even lawyers in private practice, as I was a short while ago, are very different from individual taxpayers who are looking for their own information, and that these data brokers and commercial organizations should pay a reasonable cost of the provision of that information to them, given that they're going to resell it to their clients at a fairly significant rate?

What would your view on that be, whoever would like to answer that question? I know this is something that's done in British Columbia, for example.

[Denis Kratchanov]

You're asking us to make policy, and obviously that's not our role as officials. It's very difficult to know exactly how many requests there are by data brokers, to agree on a definition of what a data broker is and on statistics concerning them. I've never seen reliable data.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Let me ask you another question. Mr. Marleau mentioned that the majority of the complaints he sees come to his office from a very small number of people; in some cases, they're people who make hundreds of access to information requests each year. Given that there's a large cost to the taxpayers in dealing with those complaints and providing that information, do you think the taxpayers have a right to know who those people are who are making hundreds of requests a year and making hundreds of complaints about those requests to the commissioner's office?

[Carolyn Kobernick]

It might be something you choose to make policy. It is again a policy decision. At the moment, the identity of the requesters is supposed to be protected. If there is to be a change in that, then it should, I would think, be fully debated.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

We heard from one gentleman who admitted that he personally submitted several hundred access to information requests on average each year. I believe he was in the business of looking for information and then writing stories about the information he received, which he then sold to news organizations. That's how he makes a living.

Commissioner Marleau said that the average cost of supplying the information is about $1,425 per information request. So if this one gentleman is making 400 to 500 requests a year, it is costing the taxpayers of Canada $500,000 a year or more to fund his business. Then, if he finds something that he thinks is interesting information, he writes an article and sells it to a news organization. That's how he earns his living.

Do you think that's something that is reasonable for the taxpayers of Canada to fund?

[Carolyn Kobernick]

One of Mr. Marleau's recommendations was to have some sort of control over setting of fees. I would just defer to the minister's testimony here today; he said that's something he would invite the committee to take a look at.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Okay.

Thank you very much.

[The Chair, Liberal, Paul Szabo]

Go ahead, Monsieur Nadeau, s'il vous plaît.

[Richard Nadeau, Bloc, Gatineau, QC]

Thank you, Mr. Chairman.

In 1987, the justice committee drew up 100 recommendations to overhaul the Act. In August 2000, the President of the Treasury Board and the minister of Justice set up a task force of officials to look at the Act, the regulations and the policies that underlie the current access to information system.

In November 2001, John Bryden's committee suggested approximately one dozen urgent recommendations. Parliamentarians also had the opportunity to discuss the Act, since several members of Parliament had brought forward private members bills.

In April 2005, the Liberal minister, Mr. Irwin Cotler, asked our committee to look at a document entitled “A Comprehensive Framework for Access to Information Reform.” The Information Commissioner, Mr. John Reid, even submitted an entire bill to the government in October 2005.

On November 3, 2005, Mr. Pat Martin, a New Democratic Party member of Parliament, made the following recommendation:

It is further recommended to the House of Commons that it instruct the Justice Minister to table legislation within the House of Commons, based on the provisions of this Act and these proposed amendments by the 15^th of December.

We are still talking about the Access to Information Act.

In December 2005, a certain Stephen Harper, who at the time was running for office in Calgary and was the leader of the Conservative Party, said that if a Conservative government were elected, he would implement the recommendations of the Committee on Access to Information regarding an overhaul of the Access to Information Act.

On September 27, 2006, Carole Lavallée, a member of Parliament from the Bloc Québécois, moved a motion to this committee: “... the committee recommend to the government to table in the House, by December 15, 2006, a new access to Information Act...”.

On September 27, 2006, the Standing Committee on Access to Information, Privacy and Ethics made the following recommendation:

That further to the testimony of the Minister of Justice, ... Vic Toews, and the Information Commissioner, the Honourable John Reid, before the Standing Committee on Access to Information, Privacy and Ethics, the Committee recommends that the government introduce in the House, no later than December 15, 2006, new strengthened and modernized access to information legislation based on the Information Commissioner's work...

That motion was tabled in the House of Commons on October 4, 2006.

On February 11, 2009, the Access to Information Committee recommended:

That the committee recommend that the government introduce in the House, by March 31, 2009, a new, stronger and more modern Access to Information Act, drawing on the work of the Information Commissioner, Mr. John Reid [...].

That motion was tabled in the House of Commons on February 12, 2009.

We also know that on March 4, 2009, Information Commissioner Marleau, who is responsible for access to information, made 12 recommendations.

Considering this important series of motions that I have just told you about, can you tell me why the government is still hemming and hawing and not listening to the Access to Information Committee? It's beyond comprehension; it's staggering. Can you give me an answer or have you been muzzled? Will we have to go through access to information to get an answer from you? Thank you.

[Carolyn Kobernick]

Our minister has already said that he wanted to hear the viewpoints of all the committee members. That's our answer for the time being.

[Richard Nadeau, Bloc, Gatineau, QC]

Thank you very much.

Thank you, Mr. Chairman. That was very pleasant.

[The Chair, Liberal, Paul Szabo]

Mr. Dechert.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

You know that one of Commissioner Marleau's recommendations is that the access to information system be opened up to anyone worldwide. Another recommendation is to use the Internet and make a lot of this information available through the Internet and to receive requests for information via the Internet.

Given that, and the fact that foreign governments, and perhaps even enemy combatants such as the Taliban, would then have the right to request information from the Canadian government, do you think it would be reasonable that the taxpayers of Canada know who those people are, if they're foreigners, who are requesting information from the Canadian government? Do you think it would be a reasonable request that the Canadian taxpayers know that a foreign government or the Taliban wants to know, for example, how many tanks the Canadian army has in a warehouse in Montreal?

[Carolyn Kobernick]

Again you're asking me to comment a bit on a policy issue. The only comment I can make about that recommendation is that I understand other jurisdictions may have the capacity to allow what we call universal access. There are cost issues involved, and that's something that of course this committee would want to talk about.

Again, the issue that you specifically raise, I would suggest, is appropriate to be discussed amongst people around this table.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Okay.

I would say that, certainly from my perspective, we should know who these people are, if they're foreigners, who are asking for this information.

Thanks very much for that.

[The Chair, Liberal, Paul Szabo]

Mr. Siksay, please.

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

Thank you, Chair.

I want to go through Mr. Marleau's recommendations, the ones the minister didn't address, to see whether the department has any concerns or advice on those specific recommendations.

The first one was that Parliament review the Access to Information Act every five years. Is there anything there that is of concern to the department, or that you folks could give us advice on?