Information & Ethics Committee on May 6th, 2009

[Priscilla Platt]

We see number 11 a little differently, as I've indicated. We don't think that is the way to go in terms of direct. I read the honourable minister's comments, and if you say to people that they can go to the federal court in order to get justice.... I guess we're saying that it would be better if the commissioner had the tools to expeditiously resolve complaints, as was intended.

As far as number four, I guess we would respectfully disagree that it is going to hamper access to justice. To say that requests are moot by the time they get to the commissioner--so even if they're resolved, they would be meaningless, because the time has expired, the person got the record or whatever.... To say the commissioner should never have any tools to investigate.... It's not always a black and white situation where this person is going to be deprived of access to justice.

It's a sensible and reasonable approach. In fact--and I'd have to say that I'm sure the minister is aware--even the courts can dismiss actions if they're frivolous and vexatious. Those are the words used in the courts. I think these are there for good reason. One of the reasons that we're suggesting here is the individual complainants have other recourse under our laws. So I'm just saying they wouldn't deprive them of access to justice--quite the contrary.

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

Okay. You have made mention of your support for recommendation number four, in which the Information Commissioner is seeking discretion on whether to investigate. Are you not concerned that he might be able to use this power for partisan purposes? Does this not risk politicizing his office?

[Priscilla Platt]

I think that could be said about anything that you say a commissioner might do. I don't think there's an implication that would be the case.

If you look at the rationale that we have suggested here for why he would not, it's the same as the ones under PIPEDA. The same could be said of anyone, like the Privacy Commissioner, etc. These are the standard kinds of grounds. If you're concerned about that, then there could always be recourse to the court, I suppose, if he decides not to investigate a complaint based on one of these grounds.

In Ontario the commissioner has the ability to not hear appeals. If the person was inclined, that decision could be challenged in the courts through judicial review.

[The Chair, Liberal, Paul Szabo]

To comment on that point, the issues with regard to officers of Parliament are kind of interesting. It's a separate group, and a very distinguished group, but they also serve at pleasure, to the extent that if there would be a loss of confidence on behalf of Parliament, they could be removed. So there is some safeguard in the system.

We're going to the second round. We're at five minutes. I understand that Mr. Wrzesnewskyj's going to split his time with Ms. Duncan, who's joining us today.

Welcome, Ms. Duncan.

Mr. Wrzesnewskyj.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you, Chair.

I'd like to begin by thanking Ms. Block for noting that the Liberal Party has an open mind when it comes to looking to other jurisdictions for best practices, whether they're provincial or as mentioned in previous submissions, with mention being made of New Zealand having, once again, this proactive, open system, where you post things proactively.

We certainly do align ourselves with the principles that the Canadian Bar Association stated in their preamble when they referenced the current President, Mr. Obama, about the importance of transparency in a democracy. Unfortunately, the current government seems to be aligning itself and standing shoulder to shoulder with the previous administration, whose guiding principle seemed to be the opposite--secrecy.

Let's see if there's actual support for that type of premise. Looking at some 200 requests submitted since May 2007, up to this point right now, 25 of those remain unprocessed, meaning they're still outstanding. Let me give you examples. These are things that are of fundamental public interest. If not addressed, they undermine public confidence in democracy, in our government.

One of those requests was to the Department of National Defence for information on the acquisition of Chinook helicopters. It's been delayed 330 days. That deals with the whole issue of how we go about our military contracting. There are two requests to the Department of Foreign Affairs for information on detainee transfers. Those requests have been delayed for 290 days. That goes to the fundamental principle of whether we support our proclamations of support for human rights.

There are substantive principles at issue here.

When I look at these quick fixes, quick fix number nine, I believe, is the recommendation that the commissioner be required to provide extensions past 60 days. Yet there are no penalties and no way for him to guarantee that's going to happen. When we look at the record, we see that we've gone from 30-day or 60-day periods under the previous Liberal government to, currently, 150 to 250 days.

If a government's intent really is secrecy, and if their modus operandi is secretive, if that's the guiding principle of a Prime Minister and his operatives within a PMO and PCO, will these quick fixes actually work? For instance, in number nine, if we say, well, we're going to tell the commissioner he has to give permission, but right now virtually nothing happens within 60 days, why pass a recommendation that's just going to get ignored unless there are some firm penalties that are attached to this, or at least some way of shaming a government, of publicly exposing a government in a way that would make it move?

Could I just have your thoughts on this?

[Priscilla Platt]

I guess the idea of this particular one is that they would have to respond within 60 days and they would have to actually take an affirmative step in order to get permission to go beyond there, which they don't have to do right now. Right now, it's just sort of in limbo.

I agree with you that there are other mechanisms one could use in order to ensure that departments respond in a reasonable time. This particular one might be of assistance. It doesn't mean they'll always get the approval. If they don't get the approval, presumably they'd have to respond. I realize what you're saying: there's no penalty.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

If the average right now is 150 to 250 days, when it's questioned why it's taking so long and the answer we get over and over—nine of ten times, departments answer today that it's in PCO consultations....

[The Chair, Liberal, Paul Szabo]

I'll have to stop you there. You're past time.

Maybe you can give a quick rebuttal.

[Priscilla Platt]

I think it might be worth exploring other options in addition to these things that might achieve the goal, in the end, of getting a quick response.

[The Chair, Liberal, Paul Szabo]

Mr. Dechert, please.

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

Thank you, Mr. Chair.

Mr. Chair, I was interested earlier to hear Monsieur Nadeau's comments about a former Liberal government arresting and detaining taxi drivers for partisan purposes. Perhaps that's something this committee could study at some point in the future. We might want to examine that.

[The Chair, Liberal, Paul Szabo]

I'm sure our steering committee will consider all reasonable requests.

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

I appreciate it and just want to know we're raising that.

Good afternoon, ladies and gentlemen.

Mr. Fraser, you mentioned the CAIRS system and the practice of amber-lighting. Can you tell us when the CAIRS system and that practice was introduced?

[David Fraser]

I don't have that information.

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

It would have been several years ago. I think in your brief you said it was eliminated in May 2008.

[David Fraser]

It was. The system was discontinued as being mandatory for entering access to information requests in May 2008.

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

Do you believe it was in place prior to 2006?

[David Fraser]

I don't know.

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

Thank you very much.

Earlier, Ms. Platt mentioned it's easy to overwhelm the system we currently have, especially given there's only a $5 fee. The Information Commissioner has told us that the workload of the government in terms of complying to access to information requests has increased dramatically in the last couple of years and the complaints to his office have increased dramatically. He also told us that the average cost of complying with access to information requests is about $1,425. One of the recommendations is that the access to information system be opened up to everyone in the world, not just Canadians. I have a number of questions, if we were to do that.

First, how would you handle a Canadian request versus a request from somewhere else in the world? Do you think Canadians, given they're funding this rather expensive access to information system, deserve some kind of priority in response, or should they wait until several million other requests, perhaps, were fulfilled from abroad?

Secondly, there are commercial users of the system, as the commissioner mentioned. He mentioned there were a number of users he would describe as data brokers who are in the commercial business of requesting information from the government and then reselling that information to their customers. Should they pay a different fee?

Thirdly, how would you handle the multiple requests from a single user? There was a gentleman who made submissions to this committee a few weeks ago who said he personally made several hundred requests per year on average. I believe he was in a business of looking for information, writing stories, and then selling stories to news organizations.

Perhaps you could give us a sense of how you would handle those situations if we were to open it up to everyone, unfettered, worldwide.

[Priscilla Platt]

First of all, I don't think there's another jurisdiction in Canada that restrains the right of access to anyone who has to be a resident or residing in Canada. Even as it is now, it's not just Canadian citizens; it's just someone who happens to be here at the moment. I think there's awkwardness in applying the access to information scheme if we ask people why they want it, if they want it for commercial or personal purposes, or if they're a Canadian citizen. All of that doesn't work in an access scheme. Yes, we might get more requests. It's not clear to me that we necessarily would, from around the world, just because we would take that requirement out of it, which is why we're supporting recommendation 1.

That's why I think the five-year review would be so useful. Let's have a mechanism for looking at the whole act to see, first of all, if we can make more things publicly available to avoid people having to make access requests. Can we investigate other ways in which we can be more open and transparent rather than having to go through the access regime? Then just leave the processing of requests for the very significant things like cabinet and things we want to protect for legitimate reasons for a fixed period of time. That would require looking at the whole act.

If we take just one side of the act and imagine that someone from China or someone else might want to make a request, whether that's fair, I think because of this legislation it's impossible to know who's really behind the request and why they want it.

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

They're not about to put at least one step in the way if they want information from the Canadian government. They have to at least find someone in Canada to make that request.

You mentioned that in Ontario they have the right to limit the number of requests from an individual for a certain period of time. Is that something you would recommend the federal system adopt?

[Priscilla Platt]

It's under the frivolous and vexatious provision, so it's rarely used. It's not just based on the fact that someone made a hundred requests. They may have made a hundred perfectly legitimate requests for different records because they were very interested.

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

So you wouldn't make any special rule for someone who was making say 500 or 1,000 requests a year at $5 per request, where each one of the requests will cost the taxpayers of Canada $1,400 more to respond to?

[Priscilla Platt]

I think we're saying here with these quick fixes that we're supporting the CBA's recommendation on recommendation 1 to open it and take out the residency requirement, which is being avoided anyway through using third parties and so forth. But at the same time, we're supporting a review of the act in five years because of the very things you're suggesting. If people could go to a website and get a lot of information they're currently getting through access requests, you wouldn't have the stark problems of the cost of processing, the delays, etc.

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

Of course there are privacy implications, so a lot of information would have to be protected for privacy reasons.

On the fees, you mentioned that $5 was rather low. Would you suggest a higher fee?