Information & Ethics Committee on May 27th, 2009

[Robert Marleau]

To that specific concern, I'll respond as follows. This recommendation is made on the basis of some representations we had in our consultations. For those who have the resources and wish to proceed quickly to court to get their resolution, we still would keep within the statute the current provision where, once the commissioner has investigated, he can take a case to court on behalf of a citizen, a requester, so there's no loss of access to the court because of costs.

The current regime allows me to go forward, with the requester's permission, to the Federal Court and test the case right up to the Supreme Court, at no cost to the individual. However, in the case of corporations, let's say Canada Post wants something, another company wants something, and they wish to go straight to the court and duke it out there, bypassing my investigation, that's why we made that recommendation.

There are requesters, users, who've made those proposals. But it's not one or the other, it's both.

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

Okay.

I want to come back to a couple of things. Again, the Canadian Bar Association, Mr. Fraser, and Mr. Whalen from the New Brunswick ombudsperson's office both raised the issue of solicitor-client privilege and concerns that nothing be done that would interfere with that, in the case of the bar association. But Mr. Whalen also went through some of the recent jurisprudence on that issue and was concerned that there be some mechanism for verifying those claims of solicitor-client privilege. I'm wondering what your response to that particular issue is. I'm not sure it's one we've discussed in your earlier appearance, Mr. Marleau.

[Robert Marleau]

As I recall, I think you've referred to what's known as the Blood Tribe case. The Blood Tribe case is a case that went to the Supreme Court, but it flowed from PIPEDA, the Personal Information Protection and Electronic Documents Act. Quite frankly, it doesn't apply here. The language in PIPEDA and the Access to Information Act is very different. My statute states “notwithstanding any other act or...”, I forget exactly whether it's privilege or convention. We have never had an issue--well, we've had issues, but we have access to solicitor-client privilege documents for review. They may not agree to release them, and if they're being withheld, we have access to them, we see them, and we can judge whether they're being withheld properly or not and can challenge that.

It is my view--and I'm not a lawyer, but I'm advised by some very good lawyers, and I was sitting in the courtroom when the Supreme Court heard the Blood Tribe case--that it does not apply to access to information federally.

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

So when Mr. Whalen said that Parliament should be clear about maintaining the right of the Information Commissioner and the Privacy Commissioner to review these claims for the purpose of verifying the claims, you don't think there's anything that needs to be made exclusive?

[Robert Marleau]

I don't think so, and we have plenty of practice and some jurisprudence to support that.

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

Mr. Fraser from the Bar Association also raised the issue of the CAIRS system and its demise. I saw that as a blow to the appreciation, I guess, of how the system functions. I don't know if you made statements about the demise of the CAIRS system when it happened or if you have opinions that you can share on that. Was it an instance of throwing out the baby with the bathwater that the system got thrown out to address something that might have been addressed in another way?

[Robert Marleau]

At the time that CAIRS was cancelled I did make a public statement that we disagreed with that position, and I think my assistant commissioner made a similar statement. We had been consulted much, much earlier and had made recommendations that if it was going to be discontinued, it should be replaced with something else, not just abandoned.

I made those statements and subsequently received a complaint. We are currently investigating it, so I want to be careful in going any further, except to point out that the Quebec jurisdiction has in law in its statute the duty to publish, and repositories have to be maintained. The U.K. statute has it as well.

It seems to me somewhat logical that at least government, if not users, would have a repository of what is being released. There would be efficiencies in the long term in that you don't ask for the same thing twice if you know it's already been published. But at this point I'd refrain from going any further because we do have an ongoing investigation.

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

Do you have a sense of how often things are asked for twice?

[Robert Marleau]

I really don't have a sense of how often it's being asked twice, because I see the complaints. But I suspect that a central repository would go a long way to cure any redundancy that way.

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

We had some discussion about fee structures and how they affect the efficiency of the system. I just wonder if you could make any more comments on the fee structure and how you see that working.

[Robert Marleau]

Well, the fee structure is almost as old as the statute, and a $5 cheque is worth probably $1.06 right now. It probably costs $55 to process a $5 cheque, so in that sense, I don't think it makes any sense at all anymore.

I think there has to be a reasonable fee to contain.... If I'm going to ask for every document in a government department and I'm willing to pay for the photocopies, then so be it, but I think a reasonable fee has a role to play in terms of cost.

But a fee for cost recovery in this system is an aberrant concept in my view. That's not the spirit of the law. What did the charter cost? What did the BNA cost? You amortize these kinds of laws over the life of a nation. You don't look at cost recovery for the rights of individuals to know what their governments are doing.

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

Mr. Marleau, Mr. Fraser said--

[The Chair, Liberal, Paul Szabo]

We're going to have to move on.

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

Okay. Thank you.

[The Chair, Liberal, Paul Szabo]

You have another slot coming up.

Mr. Dreeshen, please.

[Earl Dreeshen, Conservative, Red Deer, AB]

Thank you very much, Mr. Chair.

Thanks again, Mr. Marleau, Ms. Neill, and Ms. Legault, for coming here again.

I can assure you that I've gained a greater understanding of your role as Information Commissioner every time you've visited us here, and certainly both your chart and your commentary today have been quite colourful, so let's just see what we can do about putting that new hip in there.

Since your last appearance before this committee, we've heard from a number of different witnesses who both support and oppose the recommendations you've made for reforming the Access to Information Act. I suppose that's fair. After all, as you know, we are trying to make this the best possible ATIA we can.

The Minister of Justice was just before this committee and expressed concerns that recommendations 4 and 11 appear to be in conflict. I'd just like to go through what he mentioned. He said:

My concern about the Information Commissioner's recommendations 4 and 11 can be boiled down to one of ease of access to justice. Under the current ombudsman model, an access requester can complain to the commissioner about a refusal of access. The commissioner is obliged to investigate, and upon the completion of the investigation, the commissioner will make a finding and a non-binding recommendation. If the requester is unhappy with the result, he or she can then go to the Federal Court.

So my question is, do you think the minister has a point that the current system does satisfy a requester who has a complaint?

[Robert Marleau]

No, I don't believe the minister has a point. I think he has misread the recommendation and the text related thereto.

The current system of access to the courts through the commissioner, after investigation, with the commissioner bearing the cost of access, with the permission of the requester, to the court, wouldn't change. That's maintained.

Number 11 creates a fast track to the court for those who want to go to the court and have the means to go to the court. So it's a new avenue to the court, and I would say it would enhance access to justice in that sense.

Numbers 4 and 11 are not intrinsically linked, and I think I said this in earlier testimony. Number 4 is to give the commissioner discretion in terms of dealing with some of the complaints investigations. Right now I have no choice. The law says I “shall” investigate. It's made me master of my own procedures, so I can kind of manoeuvre through that, but it would allow me to deal with some of the issues that the other witnesses deal with, things such as frivolous, vexatious, or voluminous requests. In Ontario, for instance, the commissioner has imposed a certain limit on anyone using the complaint system.

It would allow me to pressure both users and departments, in the case of volume and what might be perceived as abuse. Abuse for the user, in terms of perception, and for the department are under different lenses. It would put me in the position to at least mediate that, if I had the discretion of whether or not to investigate.

So the two are not necessarily linked, in my view.

[Earl Dreeshen, Conservative, Red Deer, AB]

What would be the cost implications of just keeping it the way it is, or of number 4 versus number 11, or however you might want to look at that?

[Robert Marleau]

In terms of costs, as I said, it's difficult to come up with a particular figure. What I've done is look at it in terms of low, medium, and high.

In the context of, say, number 4, I see that as low-cost because it allows me to manage the workload, and it may in fact reduce costs in terms of my office and it may reduce the workload in government departments. If a frequent user smothers a department with 500 requests in one day and then files 400 complaints with me, then I can step in and say, “Wait a minute. I'm not going to investigate those. That's not reasonable.” So there could be lower costs with that one.

Number 11 I see as kind of neutral, because the entire cost for fast-tracking to the court is borne by the users, not by the office and not by the department. It may increase the court costs that, let's say, a crown corporation might have to incur, because it's going to go there faster than the investigation, but chances are it's going to go there anyway, investigation or not.

[Earl Dreeshen, Conservative, Red Deer, AB]

The minister also had some concerns with regard to recommendation number 3, and I'd just like to quote what he said there:

Recommendation 3 is that the commissioner be provided with order-making power for administrative matters. The commissioner describes this as a third model, a hybrid of the ombudsman model and the tribunal model. As this recommendation stands, a government institution could decide to appeal the commissioner's orders regarding, for example, extensions of time. As a result, the resources of the Federal Court could be increasingly occupied with disputes about the Access to Information Act's administrative or procedural matters.

My question is, aren't you concerned that this recommendation would consume additional resources to fulfill the mandate, as it seems to me that we're creating these additional bureaucracies, more red tape, and, consequently more costs as well?

[Robert Marleau]

No. There again, I disagree with the minister's position, simply because of the experience in the provinces where there are full order-making powers, as well as administrative and substantive issues.

Having, say, a 60-day deadline and having to come to the commissioner, as happens in Alberta, and explain why you need more than 60 days focuses the mind on performance within a department. They don't necessarily like to go there, and they don't necessarily like to be refused. So in that kind of context, I think the dynamic would push early response, and I don't see any particular increase in costs for the court per se.

In any case, I think the courts would be very intolerant of a debate between a federal commissioner and a department over whether it's 62 days or it's 72 days and that kind of stuff. Because it's administrative, the courts normally would frown on appeals. It would have to be an appeal based on a point of law, not on a decision of process.

[Earl Dreeshen, Conservative, Red Deer, AB]

When the initial decision was made about the number of days--and we speak about the 60 days that New Zealand has and the 60 days that Alberta or an individual province would have--did anyone take into account the fact that we are a country with many time zones? Did they just pick a number out of the air, or did they say this is what New Zealand or some other smaller country has?

[Robert Marleau]

I don't think it was taken into consideration in 1983 when they decided on 30 days as the expected time return for access to information. Today, with the Internet and people being web-based, it's not an issue.

[Earl Dreeshen, Conservative, Red Deer, AB]

Okay.

[The Chair, Liberal, Paul Szabo]

Mrs. Simson, please.