Information & Ethics Committee on May 27th, 2009

[The Chair, Liberal, Paul Szabo]

Thank you.

We'll hear from Mr. Wrzesnewskyj, and Mr. Dechert has come back on the list again.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

I'm not especially encouraged to hear that Mr. Mugabe's regime in Zimbabwe has found our access to information regime to be effective.

But I'd like to get back to this whole business of cabinet secrecy.

What is our recourse if a member of Parliament makes an access to information request, or in fact any Canadian makes an access request, that might be embarrassing for a minister, and a minister decides he's going to invoke cabinet secrecy? What do I do in that situation when I get blank pages coming back?

[Robert Marleau]

You can file a complaint with the commissioner, and the commissioner will cause an investigation. We will interact with the Privy Council Office, which is responsible for managing cabinet confidences. Through the investigation, ultimately, if they maintain their position that it is a cabinet confidence, they will issue a certificate saying so.

I do not get to see the documents. I have no idea whether that certificate is bound and is founded, in terms of a cabinet secrecy. In many other jurisdictions in the provinces and internationally, in, for instance, the U.K. and New Zealand, the commissioner's role, as a third-party review, is reinforced in the legislation. Right now you have to take the clerk's word for it. I'm sure the clerk is very thorough in his evaluations--I'm not challenging that--but there's no third-party review.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Sure.

In fact, it appears that the clerk of the PCO is very thorough. First of all, most requests are being delayed these days, and nine out of ten times, when we call a department for an update about a request that's beyond its due date, the response is that it's in PCO consultations. PCO got one of the lowest ratings on your report card, when, in an interview in February of this year, you stated, “My understanding is there is a stranglehold in the centre on communications.” Were you referring to PCO there?

[Robert Marleau]

I was referring to the central agencies, PCO being one of them, in the sense that if there is a stranglehold on communications, that has a trickle-down effect down the side of the mountain. So if you're not allowed to communicate what you would normally communicate without checking with the centre, there are going to be delays. It was not necessarily cabinet confidences I was talking about.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

I can see why in Zimbabwe they'd appreciate this sort of system. You provide a certificate, a stamp, that says, yes, the minister is actually quite correct in saying that this is cabinet secrecy.

I had a request to Heritage that took ages, months upon months, dealing with plaques on interment sites across the country and the education materials being prepared for that. I can't remember if it was 48 or 49 pages, but all except two came back blank.

I kept thinking, how could that be? What kinds of secrets could have been on those plaques, or in the preparation of those plaques? But I didn't cause an investigation. As we have seen over and over, we have an Orwellian process, with amber-lighting of members of Parliament, and delays, and that wasn't a serious issue.

There are issues that are serious and that Canadians are concerned about. Take the two requests to the Department of Foreign Affairs for information on detainee transfers: delayed over 300 days. Take the Department of National Defence request for information on the acquisition of Chinook helicopters, huge expenses for the taxpayer. We've heard it over and over. I mean, members here are perturbed about $5 fees, and yet we can't get information on these contracts; it's been over 350 days now, I think.

My point, I guess, is how do we address this? If you were to rank the importance of some of your recommendations, would the recommendation allowing you to take a look at the claims of cabinet secrecy be one of the more important ones?

[Robert Marleau]

It's a very important one. I wouldn't say it's the most important. I tried to bring twelve recommendations as a package. Obviously, you can take some out and the package will survive.

The key with cabinet confidences is that right now the clerk has no choice. It's a mandatory exclusion. So if he deems it to be a cabinet confidence, that's it.

If it were turned into a discretionary exemption, it might be in the public interest for a minister to have the ability to make it public earlier than 20 years. He might choose to do so. Right now he's prevented from doing it in law.

That's what has happened in Great Britain. Cabinet decides, hey, we made a good decision here, so we're going to release it.

It's discretionary, and that's the key dynamic that has to change. It would reduce a lot of these consultations. If the government decided it was in the public interest to release a cabinet decision or documents earlier than 20 years....

I mean, I'm going to leave, in my will, a $5 cheque to my grandson so that he can file one for me 20 years from now.

[The Chair, Liberal, Paul Szabo]

On that, we're going to move to Mr. Dechert, please.

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

Thank you, Mr. Chair.

Mr. Marleau, are you familiar with Quicklaw, or Westlaw, which is owned by Thomson Corporation of Canada?

[Robert Marleau]

Yes.

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

Then you know that they provide public information to members of the legal profession and others for a fee. Thomson Corporation is a very profitable corporation, even today. Lawyers gladly pay those fees as part of their cost of doing business, and sometimes pass on that cost to their clients.

So what is it about that model that makes it an abhorrent concept, as you've suggested, to suggest that Thomson Corporation pay a reasonable fee for the information that they are going to resell for profit to business organizations? Why is that abhorrent?

[Robert Marleau]

The whole structure of transparency of government gets undermined, in my view. That's why it's aberrant. The government is the trustee of citizen information. The citizen has paid for this already. It's sitting on a shelf.

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

Aren't they paying for it again by having to supply it again?

[Robert Marleau]

There may be costs associated with making it public, but as a citizen, I'm willing to bear that.

It's $1.60 per year per Canadian citizen. It's a Tim Hortons medium double-double. If you went to a large double-double, or an extra-large double-double, I'd be happy.

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

Okay. So you'd be more happy if it went that way.

I'd really like to be able to support your recommendation 2, but I'm concerned, Mr. Marleau, that if one of my constituents were sitting here in this room, they might wonder why they were being asked to subsidize the profits of the Thomson Corporation.

You told us earlier that the majority of the users are business organizations. Presumably they're mining this information for for-profit businesses. Surely it's worth our time to investigate how we might design a reasonable fee structure to at least compensate the taxpayer for some of the costs of providing that private information.

I'm sure that some organizations could use a series of senior citizens to make their ATI requests to get around that, but do you think Thomson Corporation is going to do that for its thousands of information requests, which it then resells to its clients?

[Robert Marleau]

Not likely, but it's just going to pass on the cost to its clients.

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

It's going to make profits, and here we are in a deep recession and this is costing taxpayers a lot of money. If we could at least take some time to study that to see if there's a reasonable way you could differentiate between what are obviously business information requests versus personal information requests, I think you'd find a lot of my constituents, and I would suspect the constituents of a lot of the members sitting here at the table today, would find it an easier thing to support.

[Robert Marleau]

Mr. Chairman, I'm not insensitive to that side of the debate: it exists and it's there. It's a perception that I disagree with. It's an approach I disagree with, but I'm certainly willing to discuss it further. I know of no other jurisdiction that does it.

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

British Columbia does it, does it not?

[Robert Marleau]

No.

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

I thought the British Columbia information commissioner suggested they do have a cost-for-recovery fee basis for information requests. That's right here in Canada. It seems to be working. That's fairly relevant--very recent, too.

[Robert Marleau]

I'll have to review it, but I know that the Delagrave commission in 2000 looked at it as well and recommended against it.

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

Could you do some investigation as to how the system is working in British Columbia and perhaps report back to us?

[Robert Marleau]

Sure, absolutely. No problem.

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

Thank you.