Information & Ethics Committee on May 27th, 2009

[Robert Marleau]

No, I have not done any study. There's a jurisdiction in Quebec that has just begun that. They did a study. It was a lengthy process to determine what should be posted, when, and those kinds of things. It's a complex issue, I'll grant you that. But I would say that kind of proactive disclosure obviously would reduce—

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

There's no question it would. I just wondered if you had done any analysis.

I have another question with respect to the number of ATI requests from business organizations. You mentioned earlier that the majority of requests were from business organizations. There are other things government does, such as issuing CRTC licences and certain resource licences, where they charge a fee to a user in situations where the user is then going to resell that service or information to commercial consumers or other consumers.

What's the difference between that and a situation where a defence contractor or a lawyer, such as I was in private practice, acting on behalf of a defence contractor and who's charging several hundred dollars an hour, gets information that costs the taxpayers potentially tens of thousands of dollars, and then provides that information to the commercial organization so they can use it in their commercial operation? What's the difference between charging them an appropriate fee for the cost of that information and charging an appropriate fee for, say, a CRTC licence or a natural resource licence?

[Robert Marleau]

Again, when you're looking at a fee structure, the complexity it would introduce would probably not bring you much return. People will get around that by getting their brother-in-law to file their request.

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

Do you think a lot of individuals will do that just to avoid paying that cost?

[Robert Marleau]

Well, sure.

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

Or would they just assume that it's a cost of business? For other forms of services the government provides, people aren't doing that kind of end run around the cost structure, are they?

[Robert Marleau]

Those who want to get around it, obviously, will get around it.

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

I'm sure some devious people will, but isn't it reasonable for a commercial organization to pay a reasonable fee for a product it's going to resell for profit?

[The Chair, Liberal, Paul Szabo]

All right. We're getting into a little debate.

Mr. Marleau, if you want one last point, you can make it, but I'm going to have to move on.

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

Is my time up?

[The Chair, Liberal, Paul Szabo]

Yes, two minutes ago.

[Robert Marleau]

There is an issue, if you will, with data brokers who gather information and may sell it. The challenge will be how you sort them out. The lawyer who's acting for a new immigrant who is not versed in—

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

That's personal information. That's different.

[Robert Marleau]

Well, it may not be. I'm not sure; it may not be. It could be substantive information about policy. For example, if I'm a new immigrant and I don't understand why my wife is not being allowed back in the country, I may want to find out some policy information and advice that might have been given to the minister, or background on it. I might have to use a lawyer because I don't understand.

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

Fair enough. That's in the field of personal information.

[The Chair, Liberal, Paul Szabo]

Thank you.

Mr. Siksay.

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

Thank you, Chair.

Mr. Marleau, if you've been following the hearings of the committee, you'll know that one of the lines of questioning from one of the members has been around what the most significant revisions to the ATI act over the years have been. I know the line did change over time; I have to grant the member that. It did cause some concern to one of our witnesses, Stanley Tromp, who believed he was misrepresented. I think he would want me to say that what he said was merely that the accountability act was one step forward, but it was not the most single significant step. In fact, he believes the most significant reform to the ATI act was the amendment to the act to add section 67.1, introduced by MP Carole Lavallée and passed in 1999.

That change was, I gather, for prescribing fines and jail terms for the unauthorized destruction and falsification of records. Did that actually go all the way through? Did it succeed in making its way all the way through Parliament and ultimately being proclaimed?

[Robert Marleau]

That was a private member's bill, and it was Carole Beaumier, not Carole Lavallée, who sponsored the bill in 1997. It was an amendment that is now section 67.1, which makes it a criminal offence to destroy documents. It flowed from the Somalia inquiry issues and the blood inquiry issues of the early 1990s. It was a significant amendment in the sense that it was a message to all who are in ATI that they are duty bound not only to respond, but to preserve. So it probably is the most significant since 1983.

Bill C-2, the Federal Accountability Act, broadened the scope of the statute, but when you look at the scope of what was done, you have crown corporations and you have parliamentary officers and a few foundations. So it's an improvement, but there are also, as I said in earlier testimony, new exemptions and exclusions added that cause me concern.

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

I think it was Colleen Beaumier.

[Robert Marleau]

Sorry, not Carol, Colleen. Thank you.

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

We both got the wrong name there.

There was another concern raised in the testimony we heard. I know two of our witnesses, Mr. Drapeau and Mr. Racicot, who appeared together, I believe, said they perceived that the United Nations saw Canada's ATI act as a model, but they couldn't show us any demonstration of that. I know that some other folks...including Toby Mendel of Halifax, who works with Article 19, a London-based human rights organization that focuses on freedom of information worldwide, who said that despite all of his work with UN human rights bodies, all the ones relevant to access to information, he can find no body that has any standard-making mandate that has adopted the Canadian model.

I'm just wondering if that corresponds to your experience. If countries were looking to establish an access to information or freedom of information regime, would they look to our law at this point in history as a model for how to do that?

[Robert Marleau]

I've had to deal with some of those situations, and what I share with interested parties from other countries is that we have a very sound statute in its principles, and they should look to it as a model.

In terms of its current status, there are a lot of lessons to be learned on how not to do it. In every experience where you learn from your mistakes or you learn from your inactions or your neglect, then other people can learn from that.

We are not compliant with the United Nations declaration. We are not compliant with article 19. We're not compliant with the Atlanta declaration. We're not compliant with the Commonwealth Secretariat's model. We're not compliant with the Commonwealth Parliamentary Association's recommendation, and some of you are members of that association.

Zimbabwe adopted our model and then tacked on a press control dimension to it. It's the only one I can point to right now that I know of where they took our law and said it was a great law and then added on all this control on the media.

So I disagree with any witness, including the minister, who says that we are compliant with any of those recent declarations on what a citizen is entitled to in access to information.

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

Thank you.

David Fraser, from the Canadian Bar Association, said that when the ATI act--I'm quoting from his testimony--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.

Would you agree with his assessment of how things have unfolded, that government now, rather than taking measures for openness and transparency, relies on the letter of the ATI law?

[Robert Marleau]

I totally agree, and article 2 of the act expressly says so. The act is intended to complement and not replace existing procedures for access to government information, and it is not intended to limit in any way access to the type of government information that is normally available to the general public. Unfortunately, the act has become the default position of government and bureaucracy. You hear it all the time: “You want this document? File an ATIP request.”

As I said earlier, I find it somewhat disconcerting that parliamentarians, in their duties, have to use the statute to get information. You have questions on the order paper as well, but it seems to me that the default position ought to be disclosure, and where there's a dispute, turn to the statute.

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

Okay.

Thank you, Chair.