Information & Ethics Committee on May 6th, 2009

[Priscilla Platt]

Well, I know that a certain amount of resources is required to get the job done, and I think at the federal level there is a myriad of things one could consider. One of them is having more proactive disclosure, because if you have more proactive disclosure, you're going to have the need for fewer requests.

I think there should be and must ways in which--and I say this with the greatest respect to Treasury Board--to ensure that deputy ministers are required to find ways to be more open. Certainly they've tried to find ways in Ontario. There are ways within the public service where you can achieve that without even having to resort to statutory amendment.

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

Offhand, can you think of an example where this kind of initiative has been taken in the public service, an initiative that you found helpful?

[Priscilla Platt]

As I've mentioned a couple of times now, there is the proactive disclosure for hospitality. I think it's a model for this country. As much as the Access to Information Act is antiquated now in many respects, that is a model, and that is using the technology. There is no need to make an access request for these things.

In most of the country, we're still making access requests for expense claims of public servants and elected officials. We shouldn't be doing that.

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

Mr. Fraser, you mentioned the CAIRS management system and how the Bar Association sees that as having been a helpful thing. You mentioned that it seemed as though one of the concerns with its discontinuance was around amber-lighting. Do you want to say a bit more about that? Or were there other concerns raised about the system when it was discontinued? Was amber-lighting one of the key ones?

[David Fraser]

My understanding is that, at least of the reasons put forward publicly, it was the concern about amber-lighting. It was the fact that it was a system that might have been used in order to flag politically sensitive or otherwise problematic access to information requests for special attention or special treatment. That may in fact have completely been the case.

But in connection with your previous question about efficiency, one of the advantages of a system like that, which keeps track of access to information requests across the country or throughout the federal government and crown corporations, would be in order to determine what sort of information is being asked for routinely.

If you think of the incremental cost of having to deal with an individual access request for the same sort of information over and over again, contrast that to having a policy within a government department or across the government to proactively disclose that information on a monthly basis--all policy documents related to whatever--and put them on a website. All of a sudden you're taking information out of a system that's currently overburdened and putting that sort of information disclosure into a completely separate column that's more efficient.

One could also keep track of on what date the request was received and on what date it was responded to, even at the largest level, in order to call to account government as a whole and also individual departments for the amount of time that it is taking to process these requests.

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

So it might have been a baby with the bathwater kind of situation, where you address one problem and we lose out on a whole other area of possibilities?

[David Fraser]

I think that's a good way to characterize it.

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

There's been some concern raised about the request around discretion to investigate complaints and to dismiss a complaint as trivial, frivolous, or vexatious. Have you seen any indication in other jurisdictions where that power exists, that it's been a problem in terms of dismissing legitimate complaints?

[Priscilla Platt]

In most jurisdictions the commissioner has the power, at least in respect of frivolous and vexatious, as does the court. It's not abused. As far as I can see, it's very judiciously dealt with. But it is useful, because there are individuals who would try to monopolize the system and overwhelm it.

It's very easy to overwhelm the system when you only have to pay five dollars, or whatever the minimal amount, to make a request. It's very easy to see that it could be used in negative ways. But I don't think it's abused, in my experience, in any event.

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

You said frivolous or vexatious, but is “trivial” necessarily a word used in other jurisdictions?

[Priscilla Platt]

Well, ”trivial” is used, yes, from time to time.

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

Okay. I didn't know if there was some importance to that or not.

[Priscilla Platt]

No.

[The Chair, Liberal, Paul Szabo]

Last question.

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

Similarly, in terms of dealing with large volumes of requests from a single requester, are there concerns about denying access on the basis that you make multiple requests? What's your experience of multiple requesters, and why do those situations arise?

[Priscilla Platt]

We have experience in Ontario where our commissioner in Ontario has had to deal with situations--not frequently--where somebody is asking for the same record over and over again and it is overwhelming the system, because they have to go and get it and they have to process it.

One of the things that has been done about these individuals is to say they can make two requests in a certain period, which is hard to manage, but at least they've been told. So this allows for other people to make requests. If you have no provision like that, then someone can make a thousand requests a day if they're inclined to, and everyone else is using the system properly.

I'm not saying making a lot of requests is not proper, but it can be an abuse, and this is a way of managing this so that resources are fairly used by everyone and can be available for everyone.

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

Thank you.

[The Chair, Liberal, Paul Szabo]

Thank you.

Mrs. Block, please.

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

Thank you very much, Mr. Chair.

Thank you to our witnesses for joining us today.

I couldn't help but note in the comments made by Mr. Wrzesnewskyj that he pointed to the leadership of President Obama. I guess our Liberal colleagues are continuing to look to the United States for leadership. What I want to do is bring us back to the leadership that's been provided here in Canada.

My first question is in regard to recommendation 1, and it doesn't matter to me which one of you answers it. Maybe you all want to take a turn at it. The Information Commissioner recommends that Parliament review the ATIA every five years. Is it not true that the reforms made by the Conservative Federal Accountability Act are the most significant reforms to the ATIA since the act was passed in 1983?

[Priscilla Platt]

They are significant, and in particular, subsection 4.(2.1), which requires there to be assistance provided to requesters. There are a number of them, but they aren't a comprehensive review of the legislation. It did extend to 67 more crown agencies, which is very good, but it also had a lot of exemptions in there for those particular ones.

In other words, it did a lot of very positive things, but I think what recommendation 1 is meant to address is this. It's comparable to other jurisdictions in Canada, where there's an express requirement to review every five years, and that may enable a more comprehensive review of the act. I agree that this was very significant, but the question is did it address the particulars of the act, as some of the members here have been raising the issue around using the Internet more? Again, in 2006 that proactive disclosure was a good example, but can we do better? Can we make things more transparent and modernize the act to achieve openness and maybe curtail the number of requests in that respect? If everything's open and things are there, you'll still have requests, but you may not have the numbers you have today.

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

Thank you.

[David Fraser]

The only thing that I would add to that is that given the nature of the legislation and its importance in terms of the transparency and accountability of government, it's obviously in our view a very important piece of legislation. It gives citizens, residents, and even members of Parliament the ability to find out what is happening inside government.

It relates very strongly to how government operates. It needs to keep pace with the way the government operates in order to make sure that the two sides, the government side and the access side, actually work well together. Since the early 1980s the amount of information in government and how it's managed has changed dramatically. One would expect that the pace of that change is going to continue, if not accelerate.

So given the importance of this legislation, it makes a lot of sense to periodically take a quick look, or a comprehensive look, to make sure that this important piece of legislation is keeping up with the machinery of government.

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

So given the actions taken by this government in just over three years--we added 69 organizations that are subject to the Access to Information Act--would it be fair to say that we are following the recommendations in practice anyway?

[Priscilla Platt]

I think it's laudable, the amendments that have been made and extending the access regime to a whole host of other entities that get public funding and so forth. But even these recommendations do not touch on a wholesale review of the legislation. The purpose of recommendation number one is to ensure that the very good things that have been done here--in the last three years, for example--can be reviewed. Everything can be reviewed. The act can be improved even more so, to the point where it is efficient and it is a model for Canada. I think that's the goal of recommendation number one.

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

Thank you.

I'm also interested in asking questions about recommendation number four. In his testimony before this committee on Monday, the Minister of Justice cautioned that recommendation number four and recommendation number 11 appear to be in conflict. Given this fact, would you recommend moving forward with number four and number 11?