Evidence of meeting #19 for Access to Information, Privacy and Ethics in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was commissioner.
A recording is available from Parliament.
Liberal
Bloc
Ève-Mary Thaï Thi Lac Bloc Saint-Hyacinthe—Bagot, QC
Good afternoon everyone and thank you for being here.
I'm going to ask my general questions, and you will decide who should answer them.
Earlier we talked about people who make numerous requests and it was said that a new management method had to be found to prevent abuses. However, we know that the media are major users of the Access to Information Act and that their role is to inform the public. To document and inform the public by respecting their code of ethics, journalists must obtain documentation and report true and verified facts. You talked about abuses. What are they? Witnesses have often told us that the media make excessive use of access requests. Do you think this is an abuse or simply a form of professional ethics that journalists have established for themselves by validating the information they report?
In the same line of thinking, as my colleague said so well, under the current disclosure process, when we request information, it is virtually struck out and the information we need isn't there. It isn't unusual for one of us who submits a request to have to repeat the same request in order to obtain additional information. I believe that also contributes to an increase in the workload of the commissioner's office.
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
In response to your first question, the frivolous and vexatious provision, as it's applied by the courts and in other jurisdictions where they have this type of legislation, requires bad faith. These are not instances where the media or individuals are making requests for information that is important. These are situations where individuals are asking for the same thing over and over again. Usually it's very rare to make a finding of frivolous and vexatious. There must be sufficient evidence to discern that they are abusing the system because there is bad faith involved. This would not be applicable to the media, as you've outlined, or to individuals who simply want information. They're entitled to ask for it.
On your second question, about redaction, that's a good point. It goes to the recommendation of the CBA and the commissioner for a review of the legislation to modernize the manner in which information is made available, what exemptions should apply, and how they should be managed, etc. These are all things that in the modern technological age can be facilitated in a way that wasn't envisaged when this act was crafted.
Vice-Chair, National Privacy and Access Law Section, Canadian Bar Association
Perhaps I could just add one thing that's interesting in the context of the act as a whole. When it was originally introduced it wasn't meant to be the only way that people could get access to information about what's happening in the government. It was meant to be a bit of a backup for general openness and transparency.
I think a lot of efficiencies can be gained by improvements on the government side and within the operations of government to make it easier for people to actually get the information that they're wanting and to make it less confrontational between the government and the people who are asking for the information. In many cases you're dealing with individuals who don't exactly know what the record looks like that they want to have access to, because they haven't seen it in the first place. So they craft an access request as well as they can, in many cases not understanding how government records are kept. That request is not completely responsive and they get back something that's redacted or something that is not what they're looking for.
If there were greater assistance offered to individuals, even though we now have an obligation on the part of the department to assist, I think some of these access requests.... Two or three access requests, one after the other, at a cost of over $1,000 each, as we're told, could be whittled down to just one. The individual who's looking for the information will ultimately get the information they're looking for, and they'll be happy with it at the end of the day and it will be at much less cost.
Liberal
Conservative
Peter Braid Conservative Kitchener—Waterloo, ON
Thank you, Mr. Chair.
I'm of course just parachuted in today as a substitute. I've quickly read some of the material.
Thank you very much to the witnesses for being here this afternoon and as always for the very thoughtful perspective of the CBA.
I just wanted to focus on two areas, first of all, with respect to recommendation 5. Again, I profess I'm new to this issue, but I have some dismay that there might be a burning desire out in the Canadian public to learn more about access to information. Could you elaborate a little bit on perhaps what might be behind this recommendation and what the goals and the purpose of public education in this area might be and what they might achieve?
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
Well, for example, in Ontario they go into schools, they go into libraries, and they educate people on their rights under the legislation and on what it means to be in a democracy and so forth, and it's very useful.
It's one thing to have legislation that allows you to do something and then have only a very small percentage of the population that knows this. I think what's really behind this is the commissioner wants express ability to do some of what he's already doing through his website and through speeches and various things that he does. Giving him the express opportunity to do this as part of his jurisdiction means he can do it in a more comprehensive fashion, I'm assuming, and we certainly support that.
The goals of the legislation, as you've heard my colleague David mention earlier, are sufficiently important that there should be more information about it out there in the public domain.
Conservative
Peter Braid Conservative Kitchener—Waterloo, ON
Okay.
And is there not an opportunity to perhaps expand public education within the framework of the current mandate of the commissioner?
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
Well, arguably, yes. But you know how if he's given a certain number of dollars and they ask what he's going to do with that money, he's going to have to fulfill the mandate that he's been given. And this isn't written in the statute at this time. It is in other jurisdictions.
Conservative
Peter Braid Conservative Kitchener—Waterloo, ON
Do you have any sense or estimation of what dollars might be required for this sort of effort or initiative?
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
No. I think it would depend on what he chooses to do, but that, to me, at least in our submission, is a separate question. I think it may be embellishing his website. It may be going out and speaking to other groups that he doesn't go to now. I don't know, but I think it's a laudable goal.
Conservative
Peter Braid Conservative Kitchener—Waterloo, ON
Okay. What do you think, from your perspective, would be the return on the investment in public education?
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
Well, if you look at this act as a business, it would probably be in receivership, so I don't know it's a business in the sense of return on investment. I think the return is not in dollars, but in enhancing public awareness of the legislation, and perhaps even openness of government would be a very good return if it's not expressed in dollars and cents.
Conservative
Peter Braid Conservative Kitchener—Waterloo, ON
Specifically, then, what do you think enhanced public awareness would help to achieve? What would be the end results or what would be the benefits of that?
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
I think we've heard other witnesses talk about how other countries perceive our country in relation to this legislation. I think if we had more awareness and maybe better legislation, then we'd have more pride in our democracy as being vibrant. That's something we can't put a dollar figure to, but I think it would be important. Certainly our Supreme Court of Canada considers this legislation to be quasi-constitutional. So it's significant, and people should be aware of it.
Conservative
Peter Braid Conservative Kitchener—Waterloo, ON
Okay.
Finally, moving to recommendation 12, with respect to multiple requests, is the recommendation from the commissioner designed to address or prevent abuse in the system?
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
Well, this really isn't something that deals with abuse. Right now, section 9 is a bit antiquated. It talks only about two instances in which you can go beyond the 30-day timeframe. Now, maybe there aren't enough penalties in the system, in any event, to prevent departments from going beyond 30 days, as was mentioned earlier. But section 9 of the Access to Information Act just talks about the need to search or to consult.
This really relates to the question of allowing time extensions in other contexts. You see some examples where, for example, if an institution were flooded with requests in some fashion or an unmanageable volume, there could be some kind of blackout, or there could be other events that occur that prevent requests from being processed. So this would be an opportunity for the commissioner, or a department, in effect, to give an extension in extraordinary circumstances.
Liberal
The Chair Liberal Paul Szabo
Thank you very much. You're at six minutes already.
Mr. Siksay, then Ms. Duncan, then Mr. Dechert. That might be it.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
Thank you, Chair.
I wanted to ask you if the Bar Association has supported or indicated support for former Information Commissioner Reid's bill on open government, the private member's bill by NDP member Pat Martin, which is now in the House. Did the Bar Association ever take a position on that piece of legislation as suggested by the Information Commissioner?
Vice-Chair, National Privacy and Access Law Section, Canadian Bar Association
I don't believe we did.
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
No, we didn't.
Bill Siksay NDP Burnaby—Douglas, BC
Every time Mrs. Block asks her question of witnesses in a somewhat self-congratulatory tone of how great the Conservative Party has been in bringing in the expansion of and some of the changes to the Access to Information Act, I feel like I have to drag out the Conservative platform from back in 2006, which included a lot of other things.
I'm just going to go through the list and ask if you know if the Bar Association has taken a position on some of the other issues raised there. I know this is going beyond the commissioner's recommendations, although one of them did pertain to Commissioner Reid's specific legislation. We may have covered some of these, but I'm just going to read them anyway.
Has the Bar Association ever taken a position to give the Information Commissioner the power to order the release of information, that you know of?
Vice-Chair, National Privacy and Access Law Section, Canadian Bar Association
I don't believe so. We certainly have talked about it, but it's not a point we've come out on.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
Okay.
What about expanding the coverage of the act to all crown corporations, officers of Parliament, foundations, and organizations that spend taxpayers' money or perform public functions?
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
I believe the Bar Association did respond to the Federal Accountability Act and did support that.