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
Kirsty Duncan Liberal Etobicoke North, ON
No, I'm not looking to score political points. It was a legitimate question.
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
But I think culture is very important. When this legislation comes in, if at the top they exude an interest and reflect the significance of these principles, then that will be the message all the way. So I do think leadership is very important in achieving the goals of the act.
Vice-Chair, National Privacy and Access Law Section, Canadian Bar Association
I think that very often through a long period of time there's just a general culture of secrecy that pervades many levels of government and a notion that individuals requesting information should get only the information that they're specifically and legitimately entitled to, and nothing more.
So a lot of effort goes into making sure that only that limited subset of information is released, which I think is contrary to the general principles in the act. Certainly the preamble sets out that the default position has to be openness and access, but when it's mechanically applied in a very rigorous way, the culture kind of gets twisted around so it's actually the opposite of what was intended.
Liberal
Kirsty Duncan Liberal Etobicoke North, ON
I appreciate your comments.
I'll ask one more question, if I may. How do we change that culture? I've worked with organizations, and leadership and how to change culture is an important discussion. How do you change that?
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
I do think it comes from the top. I think deputy ministers, etc., have to show that this is significant. It can be in people's performance appraisals. It can be reflected. Maybe they should be getting rewarded in some way for finding ways to make things more open.
A lot of the technology that exists to make things more open is expensive, so there are a lot of balances in terms of where you're going to spend money and so forth. But on the culture and the ideas, I think that instead of rewarding people for keeping things secret and not disclosing, there should be rewards for and appreciation shown to individuals who find ways to be more open and who exude the principles in the legislation.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Thank you, Mr. Chair.
I just want to come back to the idea of opening up the access to information system to anybody in the world. The commissioner did mention that his workload and the workload of the government in replying to access to information requests have increased significantly. That has resulted, in many cases, in long delays in processing.
I take your point about being more proactive about putting information up on the Internet, for example, so I assume you wouldn't recommend that the government move on the recommendation to open it up to everyone in the world without also recommending that they put up a lot of information just freely on the Internet.
You should know that a number of witnesses made the case that there's a benefit to Canadians in making more government information accessible to, for example, academics from around the world. They suggested that there would be an uptake by people internationally if more information were made available to them and if access to information were made available to them. I assume you wouldn't recommend that we do one without the other.
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
I think we are prepared to go forward on the basis of these recommendations, which don't include having more access. I think there are many phases and many levels in which you can look at revisions to this legislation, the culture, and the opportunities for openness.
I don't know, because I haven't done the statistics, how many people from other countries have made requests through third parties, and I don't know if anyone knows. They don't have to be formal. They could be made through a family member, a friend, or someone they might know in Canada who has then made a request. I'm not sure you're going to get more. You might get less or you might get more. I don't know.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
But if you made it easy for people to fire in an access request over the Internet and you didn't charge them any fee, then there would be no barrier at all.
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
Well, on the fee issue, certainly what we know anecdotally is that having no fee at all is not a good idea, but having a small fee is a good idea.
Conservative
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
If you have a small fee, it's sort of more sensible, but as for going too high on the fees, I believe that some years ago Australia raised it to $100 and got no requests. They realized that was too much. I think one has to look at that very carefully.
Whatever you want to do, you want to allow people to be able to use this process as widely as possible. If there are issues around numbers and so forth, I think that just goes back to our recommendation for a five-year review. There needs to be a review frequently, mostly because of the technology that's changing so rapidly. The manner in which we keep records in government and so forth is changing.
That can address some of these issues. I don't think you address it by saying that you have to be a resident and thus causing people who might legitimately have a need to get something to go through hoops.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Do Canadians have a right to know if a foreign government or an enemy combatant is asking for information? Do they have a right to know who's asking for the information? Should the commissioner, at least, be able to know who's asking?
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
Typically under this legislation, you don't have that right now. At the same time, if we have a situation where—
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
But they do know, don't they? When they submit a request, there's a name on the request. Somebody in the government knows who's making the request.
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
But do you? I mean, they could use whatever name they want; they could also use their next-door neighbour. That goes back to a question—
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
But I assume if Mary Smith from Mississauga, Ontario, is asking how many tanks the Canadian government is storing in a warehouse in Montreal, and what the plans are to ship them to Afghanistan, you might wonder why Mary Smith wants to know that information.
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
When you look at this legislation, it's not so much why someone wants it, it's the question of looking at the record itself, on its face. Forgetting the name of the individual who might be requesting it, should that record be disclosed? And either our exemptions are robust enough to deal with issues like that, or they aren't. My read of this statute is that there are robust exemptions.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
But given that our system is not working well at the moment, that there are these long delays, how would you handle making changes that would increase the number of requests? How should that be handled? Where is the limit at which taxpayers should have a right to have some form of cost-recovery for supplying that information?
I know B.C. has a differential fee for commercial users, and I know there are commercial users who collect information and resell it to their clients, sometimes at a very high cost. I know that sometimes law firms spend a fair amount of money or make a fair number of requests for information, and then charge a fairly high hourly fee, as I did in my law practice, reselling that information, in essence, to their clients. So is there a case to be made for a more reasonable cost-recovery fee structure?
Vice-Chair, National Privacy and Access Law Section, Canadian Bar Association
Perhaps I might touch on both your points. On the first one, I'm not sure we would actually see a dramatic increase in the number of access to information requests, if it's expanded.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
There are witnesses who think there would be. They think there are hundreds, if not thousands, of academics around the world who would like to have more information about the things the Canadian government does, which they can include in their studies. They've made that known and they've suggested to us there's a benefit to the Canadian taxpayers in making this information available to academic researchers worldwide.
Vice-Chair, National Privacy and Access Law Section, Canadian Bar Association
It would be interesting to find out statistics on that. To base it in my own practice--that would be for institutions, public bodies that are subject to access to information provincial equivalents--the number that have come from outside Canada, or even from outside the province in question, is a really trivial percentage.
When you're talking about resource allocation, I do think it makes a lot of sense to fully understand what it is you're potentially getting into on any of those particular issues.
I've forgotten your second point. I apologize.
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
The costs.
Vice-Chair, National Privacy and Access Law Section, Canadian Bar Association
Oh, the issues with respect to cost.
I think they're very difficult to try to pin down exactly. And one should not actually be in a position to ask people why they're asking for that information and how they intend to use it, because if there's one cost for an individual and one cost for an institution, all the journalists would be making their requests in their own names, rather than in the names of their institutions.
There may be ways of reducing the cost to the government. For example, information brokers--it's probably incredibly inefficient for them to be asking for the same sort of information over and over again to get it updated monthly. Government departments should be entering into licence agreements and providing that information on a fee-for-service basis, then recovering their costs.
There may be ways of getting a lot of disclosure of information completely outside of the Access to Information Act.
