Information & Ethics Committee on May 27th, 2009

[The Chair, Liberal, Paul Szabo]

I call the meeting to order.

This is the 23rd meeting of the Standing Committee on Access to Information, Privacy and Ethics. Our order of the day is our study on Access to Information Act reform and the 12 so-called “quick fixes” that were presented to us by the commissioner.

Our witnesses are Mr. Robert Marleau, Information Commissioner; Andrea Neill, assistant commissioner, complaints resolution and compliance; and Suzanne Legault, assistant commissioner for policy, communications, and operations.

Welcome back, Mr. Marleau, and welcome to your colleagues.

The committee, as you know, has been working through a similar exercise with the Privacy Commissioner. We think our approach has been useful and probably a good model, and we're going to try to follow that through. At this point, now that we've had witnesses and you have been able to follow the opinions and dialogue at committee, the committee would like to hear from you again, whether there's rebuttal, clarification, or concurrence, as the case may be, to ensure that the committee understands your perspective in the context of the witnesses' and the members' concerns that have been raised.

I understand that you would like to lead us through a little bit of a presentation, and I'm sure the committee members would also like to ask some questions, so please proceed.

[Robert Marleau, Information Commissioner, Office of the Information Commissioner of Canada]

Thank you, Mr. Chairman.

Thank you, Mr. Chairman, for inviting me to address you once again on the issue of the Access to Information Act reform.

Since my appearance before you in March to discuss the modernization of the act, you've heard the views of a number of witnesses, as you've just underlined: access to information users and experts, representatives of interest groups and civil society, some of my provincial counterparts, and the Minister of Justice and his representatives.

I found their testimony most interesting and useful. For your convenience, I've prepared and circulated a table with the views of the witnesses on the 12 recommendations. This table, I should say, has not been vetted by the witnesses. We did rely on our own interpretation of their positions.

By way of a quick summary, the green represents agreement with the recommendations or partial agreement with the recommendations; the yellow represents reservations expressed; and the red represents opposition.

I won't comment specifically on the witnesses' positions, but I will certainly be happy to take questions as you get a chance to acquaint yourselves with the document. I will, however, address one fundamental point that I believe requires clarification.

During his appearance before the committee last month, the honourable minister stated in somewhat strong words that the act in its current form is a strong piece of legislation that equals any first-rate access to information legislation around the world. Although I agree, Mr. Chairman, that Canada blazed the trail in the early 1980s with the passage of this statute, I do not agree, with all due respect, that Canada continues to be at the forefront today.

To use a figure of speech, the federal Access to Information Act is, if you wish, the grandmother of access to information laws. She's created a steady system based on sound values and has established a number of governing rules to assist in the release of information. However, she's tenacious and stubborn, and despite advice to keep up with the times, she's failed to adapt to an ever-changing environment and remains anchored in a static, paper-based world. She is somewhat technophobic. She has weakened and slowed down over time, and she has not followed a rigorous exercise regime. She now uses a walker and will soon be in a wheelchair. There's no doubt in the extended family's mind that she's in need of a hip replacement to be fully functional again.

The cold reality is that Canada's regime has not aged well. It lags behind the next generation of laws. The laws include features such as universal access, a wide coverage of public institutions, tight timelines for processing requests, a strong oversight body with binding powers to order the release of information, a public education mandate, and access to cabinet records for review.

The next generation of laws also makes use of modern technologies to proactively disseminate information. These international standards are enshrined in the right-to-know principle drafted by article 19. They are endorsed by the United Nations and the Organization of American States as well as the Atlanta declaration for the advancement of the right of access to information, spearheaded by the Carter Center in the United States.

My 12 recommendations represent an important first step in improving the functioning of the access to information regime and in catching up to more progressive regimes both nationally and internationally.

This list is by no means complete. The recommendations tackle only the most pressing matters.

Before I conclude my presentation, Mr. Chairman, I would like to follow-up on my last appearance regarding the 2009-2010 Main Estimates. I indicated at the time that the planned spending did not reflect additional funds requested and included in Supplementary Estimates (A), which were tabled the day following my appearance.

I won't go into the details now, but I understand the committee wishes to have me back next week to discuss the specific issues related to funding, and I'll be happy to do so.

Once again, thank you, Mr. Chairman, for inviting me to talk about the reform of the Access to Information Act.

We would be pleased to answer any questions you may have.

[The Chair, Liberal, Paul Szabo]

Thank you, Mr. Marleau.

The spreadsheets you've given us are very helpful. The colour coding tells a story in itself, and we'll find that very useful in our review.

With regard to the supplementary estimates (A), I understand next Wednesday has been tentatively set aside.

We'll move now to our questions.

Mr. Wrzesnewskyj, seven minutes, please.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you, Chair.

Thank you, Commissioner, for appearing before the committee once again.

Commissioner, one of the issues that I would assume your recommendation number 3 would address is what has been called “amber-lighting”. I'd like to focus on the concern I have with amber-lighting of member of Parliament requests.

The minister was before us and, as you've mentioned, he provided quite a rosy picture of the current situation. Because the minister left early, I questioned his officials on this specific issue of amber-lighting. Mr. Denis Kratchanov, when I asked him whether he agrees with the policy of amber-lighting, slowing down members' access to information requests, seemed to indicate that your office had conducted an investigation. Let me quote him. He said:

I think the Information Commissioner conducted quite a lengthy investigation a few years ago. Actually it was completed last summer, I think, because of a complaint of the Canadian Newspaper Association. The commissioner himself recognized that there was nothing wrong....

I'm perplexed. We heard from yourself, from witnesses, that in fact amber-lighting does occur, that it's a problem, and it's a problem that needs to be addressed—and hopefully these recommendations will address it—yet the Minister of Justice's official seemed to indicate that your offices found no such thing going on, that there wasn't a problem.

Towards the end of that same meeting, I once again tried to shake things out on this issue, and I referenced it by saying:

...you have the elected representatives of the people, the very representatives that people have elected and have chosen to represent them, being amber-lighted by that same government...

and

Does this not show a pattern of secrecy that's just unacceptable and is fundamentally undermining the principle of transparency in a democracy?

The response from the official was, “We're not going to comment on that.”

I'm very worried about what is going on with this amber-lighting. I'd like some clarity. Is it going on? It seemed to be indicated to us that it's not going on, that your office has investigated this. I'd like to know what exactly was found. Is this something that we should look at, and perhaps even have a specific recommendation on?

[Robert Marleau]

The short answer to your question, “Is it going on?”, is yes. It is and it was.

We had a complaint from the Canadian Newspaper Association about amber-lighting for press-based or media-based requests. We did a very lengthy investigation, going back to 2004.

Our annual report, which is coming up very shortly, will again talk about that. We found that (a) it was going on and (b) the media was not the worst-treated group. Parliamentarians and lawyers were the worst-treated groups in terms of delays because of amber-lighting. Amber-lighting is related to delays caused by the fact that the department wants to prepare responses or communication lines or briefings for ministers, etc.

What I said was that I had no problem with amber-lighting as a concept where a department wants to prepare itself to respond to this information being made public so long as it is done within the prescribed timelines of the statute, and that the requester receives, without any prejudice to his request, the information required in the time required.

Our findings concluded in three recommendations to the Treasury Board. One was that they pay attention to the amber-lighting where it's going on. Some departments were doing it with no delay whatsoever; others were doing it with considerable delay. We recommended (a) that it stop in terms of delays and (b) that Treasury Board monitor this and report on it as well as promulgate or promote better practices where some amber-lighting may be going on.

There are two views out there. Some of my provincial colleagues are dead set against amber-lighting as a concept. I view it as an internal management issue of a department. It probably is even good for the public interest that a response is ready by the time it's made public, but it has to be done within the terms of the legislation.

As far as parliamentarians are concerned, I'll express a personal view. It's unfortunate that parliamentarians interacting with government have to resort to the statute to get information.

[The Chair, Liberal, Paul Szabo]

You have a little over a minute left for questions and answers.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

I'll move on to recommendation 8 and cabinet confidences. It appeared that the minister was reluctant on this particular recommendation.

Of all the Westminster-style parliaments around the world, I understand that only Canada and South Africa have a policy of not allowing access for what they label as cabinet confidences. Has there been an issue, for instance, in the mother of parliaments in the U.K. with allowing that sort of access, and what sorts of benefits have been provided by providing that sort of access?

[Robert Marleau]

First of all, in terms of whether Canada and South Africa are the only two countries that do not provide for it, I don't have that information at hand. I know that South Africa does not. I know that New Zealand does and that in Australia recommendations have just come forward from the government for it to happen, and the U.K. does it.

In the U.K., there is I think a fairly recent landmark decision by the commissioner to release earlier than the statutory provided time limit of 20 years for cabinet documents to be released, and they were. In New Zealand, it has been going on for years, and the country is being governed I think pretty effectively.

It's not just a question of making all cabinet confidences public. It's a question of turning an exclusion into a discretionary exemption.

[The Chair, Liberal, Paul Szabo]

Mrs. Thi Lac.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Good afternoon, Mr. Marleau. I am pleased to see you again before the committee.

I will save some of my questions for your next appearance, next week.

You have explained very well that the Act is obsolete, since it is more than 25 years old. Also, if we want to improve the Act and make it more effective, we will have to deal with issues that did not exist 25 years ago such as the fight against terrorism, identity theft or cybercrime. The arrival of Internet means that the Act has to be reviewed in order to take account of all those changes.

Like my colleagues, I also want to congratulate you for the information you have provided us and especially your color-coded table which is very useful. We appreciate that.

Let us come back to this table which is very comprehensive. Green means that you agree with the recommendation and striped green means that you agree with reservations. Red means that you disagree. Yellow means that you have reservations, and white, that you make no comment.

I want to underline two things. Let us begin with recommendation 11 which is “that the Access to Information Act allow requesters the option of direct recourse to the Federal Court for access refusals”. I see that there is no recommendation in green in the whole of the table.

Could you explain your position on that recommendation? Do you disagree with it, do you agree or do you have a more nuanced position about what the witnesses have told us relating to allowing requesters to have direct recourse to the courts?

[Robert Marleau]

First of all, I want to explain the meaning of the colors. Green refers to witnesses who have agreed with my recommendations, and striped green, those who have agreed with reservations. Red refers to those who are in opposition and yellow means that the Minister has requested more time or an in-depth study.

As for recommendation 11, it seems that the majority of witnesses, especially those who are part of the wider community of users as well as my provincial colleagues, are in agreement with the idea of allowing requesters direct recourse to the courts. However, some have suggested it be done on the basis of providing the Commissioner with the power to make orders, which could be reviewed by the courts.

So, the colors refer to the witnesses who agreed or disagreed with me.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

All right. Thank you for this clarification.

I have noticed also that recommendation 3 is the one that has the less green, which means that it has the less support. Most of the witnesses were in agreement but conditionnally. One was totally opposed and another had reservations.

Why do you think recommendation 3 had so little support from the witnesses, contrary to the other recommendations?

[The Chair, Liberal, Paul Szabo]

If I may, is the colour coding in the French version still self-evident?

[Robert Marleau]

Yes.

[The Chair, Liberal, Paul Szabo]

Because what was just stated here doesn't seem to agree with what I see here.

Green, whether light green or dark green, is “agree”. The hatched one, actually, is agree...and even more than that; go further than the recommendation.

They're all green, except the minister has some reservation, and there is one dissension.

For number 3, is that how we should look at that?

[Robert Marleau]

Well, yes.

As far as recommendation 3 is concerned, striped green means that my recommendation does not go far enough. Those witnesses want the Commissioner to have ful order-making power. That is what makes it different from the others. The minister had expressed some reservations about the potential costs for the courts. Mr. Drapeau wanted to maintain the status quo, for his own reasons.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

You say that most of the witnesses thought that you did not go far enough with that recommendation?

[Robert Marleau]

Are you referring to recommendation number 3?

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Yes, recommendation number 3.

From what the witnesses have told us, do you think that recommendation should remain as it is? Did the witnesses provide arguments that convinced you to go further or have you maintained your position?

[Robert Marleau]

I fully agree with all the witnesses who have stated that the Commissioner should receive full order-making power, both on administrative issues and on refusals.

The strategy I had developed for you about those 12 recommendations was based on what I believed would be feasible in the very short term. To my mind, granting full order–making power to the Commissioner on administrative issues would not change the nature of the Act. Furthermore, I believe that recourse to the courts would not be necessary as is the case in jurisdictions having full order–making power.

If I remember my testimony, I had suggested moving in stages. First, recommendation number 1 would have to be accepted and then, five years later, full order–making power would be considered.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

All right.

The fact that this power would only apply to administrative issues would mean that, if recommendation number 1 was to be reviewed in five years, that would be part of one of the recommendations at that time.

[Robert Marleau]

Exactly. The committee would make an assessment at that time.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Thank you.

[The Chair, Liberal, Paul Szabo]

Thank you.

Mr. Siksay, please.

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

Thank you, Chair.

Thank you for returning to go over these recommendations again with us.

I wanted to continue on number 11. I know the bar association, when they appeared, were concerned that the ability to have direct access to the courts would be limited by the financial resources of the person who was trying to forward their complaint in that way. That caused the bar association concern about the expense involved and how that would limit people's ability to do that. It seemed to make an argument for, again, having a full order-making power in that instance.

Can you respond to that specific concern?