Evidence of meeting #34 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 response.
A recording is available from Parliament.
Liberal
The Chair Liberal Paul Szabo
Order. This is meeting number 34 of the Standing Committee on Access to Information, Privacy and Ethics.
Our orders of the day concern the Access to Information Act reform work that we've done. It's the government response received from the Minister of Justice, a letter, a report that was sent to us and circulated to all the members. Just note that the letter is undated, and maybe it is so this can come to us again the next time we make some suggestions.
Liberal
The Chair Liberal Paul Szabo
I don't know. I got it off the committee's website. The clerk's is undated as well.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
When did the clerk receive it, Mr. Chair? When was it received?
Liberal
The Chair Liberal Paul Szabo
What we do know is that the government response is in regard to our 11th report, which is about the Access to Information Act and is entitled “The Access to Information Act: First Steps Towards Renewal”.
A point of order, Mr. Dechert.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Since you raised the question about when the minister responded, I would appreciate it if you would inform the committee when the letter was received by the clerk, and if the clerk doesn't have that information, perhaps you could request it from the Minister of Justice.
Thank you.
Conservative
Liberal
The Chair Liberal Paul Szabo
There is no such thing as a point of information. But we'll deal with that. Certainly any request for information from committee members can be given straight to the clerk.
We have with us Mr. Robert Marleau, private citizen.
I'm delighted, Mr. Marleau, that you were able to join us. I know you are going to be out of the country after this meeting; you are on a private next effort at retirement. This has to be part two or three.
We very much appreciate the work you have done, and I'm sure the members will have something else to say about some of the history you have left behind.
The issue of access to information has been on for some time. Your predecessor, Mr. Reid, was very active in terms of pursuing reform issues, and in fact the open government act was a comprehensive rewrite of the act. It was a good first step, and since that time we've had an opportunity to look at some of the other areas.
The reason I invited you to come back was a consequence of a little meeting you and I had on the street in front of the West Block. We were talking about how we didn't appear to have the time in this Parliament to do a complete review of the act, right from section 1. Having a look at what has come to be known as quick fixes had its birth, and you presented to us, from your experience and your view, some of the areas we could consider. As you know, the committee responded to that by issuing the 11th report of this committee, and in it we agreed with some of your suggestions and fully supported them, while other parts we thought were interesting but needed a little more maturation. And I think there were a couple that we were not prepared to encourage at this time.
The witnesses we had were a good cross-section of people, of the pros and cons, and I think the committee was quite satisfied that its report was a good first step, thanks to you.
Now we have the government's response to our report, which took some time, and the thoughtful attention of all the members of the committee and the witnesses, and we thought it would be useful to look at that government response in the context of where we have been and where we are, and use things like your report cards and some of the assessments you have had to determine whether or not there is another step, a second step. It will be up to the committee to determine where we go from here. I don't consider this matter to be closed at all. It's an ongoing obligation of this committee to consider.
I understand that you have a very brief opening statement for us.
For the members' information, what I will do is follow our normal pattern of interventions by members, but I encourage members not only just to ask questions of Mr. Marleau but also to use their time to make their own comments on areas of the response or where we are going to help to encourage others to start thinking about your ideas, your response, to where we are right now and where we might go. That will give us a little idea of whether or not there is some cream that is going to float to the surface. We will try that for a while, rather than just having it free form, so that we get a good balance of input from all honourable members.
Having said that, Mr. Marleau, thank you again for coming. Please proceed with your opening remarks.
Robert Marleau As an Individual
Thank you very much, Mr. Chairman, for the invitation.
I was delighted to accept your invitation.
As you pointed, I am now an ordinary citizen, but my comments this morning are naturally going to be coloured by my experience as Information Commissioner.
As a brief statement--and I apologize for not circulating it to members in advance and in both official languages; I'm a little short-staffed these days. By way of a prologue, Mr. Chairman, I'd like to say that I thoroughly enjoyed the exchanges with the committee and the opportunities to discourse with you. I felt it was constructive, it was non-partisan, it was really an attempt at understanding the issues around some of the need for reform, and indeed I learned much from it.
I had said in my confirmation hearings that if the committee was going to make legislative reform a priority, I would make it a priority. So I was very pleased to see your report in June, and they are now your recommendations. They're no longer my submissions since you made them yours, at least those that you supported, so I'll come at it from that point.
To say that the response from the government is disappointing is an understatement, from my perspective. Your report contains 11,000 words or so, if I exclude the appendices, and the government's response, in English, is 636 words. About 300 of those are addressed to former Commissioner John Reid's initiatives, so it leaves about 300 to 350 words addressing the recommendations that were sent to the government by your committee.
There are 762 words in French. As usual, there are more words in French than in English.
Those very raw statistics are I think somewhat demonstrative. The Access to Information Act is not the intellectual property of the government of the day. It belongs to the people. The government has responded that more consultation is required, but as I said before, I believe it is leadership that's required and not more dithering on reform.
There have been consultations for more than 20 years and calls for sweeping reform since 1987.
A former President of the United States--and much is said about Mr. Obama's approach to transparency, but a former President of the United States, James Madison, said in 1822, “A popular government without popular information and the means to acquire it is but a prologue to a farce or a tragedy, or perhaps both.”
Again, I'm asking you the question I asked you in my last annual report: how long will Parliament continue to tolerate such pervasive negligence leading to the attrition of so fundamental a democratic right? I don't know who drafted the Minister's response, but I find it hard to choose, if they were still with us, between Corneille and Racine.
Thank you.
October 29th, 2009 / 9:10 a.m.
Liberal
The Chair Liberal Paul Szabo
That's a good first step.
Let's just move right on to the members' input.
Madam Simson, please.
Liberal
Michelle Simson Liberal Scarborough Southwest, ON
Thank you, Chair, and thank you for appearing. It's nice to see you again, Mr. Marleau.
For the better part of a year, I had the privilege of working with the other committee members on a report that was looking at recommendations to quick fixes, and I was really pleased to be a part of the group. To your point, I think we worked cooperatively, and it was a very good effort. There wasn't any acrimony to speak of, so it was a really worthwhile exercise, in my view, and we did come up with an excellent report that we tabled in Parliament.
That said, I have to say that I share the disappointment, and disappointment is an understatement. The response we received.... Having invested, as a committee, a lot of time and effort, it was dismissed basically out of hand, in my view.
You touched on the fact that you think access to information is a fundamental right. When the justice minister appeared before this committee, he had to leave, and I asked three of his assistants for a one-word response as to whether each thought, as a Canadian, access to information was a human right. They all responded no.
I'm curious as to what your one-word response to that question would be.
As an Individual
Well, without getting into the semantics of what should and should not be a human right, I'll just quote the Supreme Court. The Supreme Court said, in a famous ruling--I think it was in the Daigle case--that it's a quasi-constitutional principle. It doesn't quite have the standing of a right under the charter, or a human right, maybe, but it is part of the constitutional fabric of the country, and it belongs to the people. And the rights of the people diminished is a nation diminished.
Liberal
Michelle Simson Liberal Scarborough Southwest, ON
Thank you.
At the time, I know it was a good piece of legislation. The minister responded that the Access to Information Act is a strong piece of legislation. Given the fact that it is over 26 years old, do you feel this is an accurate statement today?
As an Individual
I think it's an accurate statement, stated as the principles that are in the statute. Its application and its administrative management are appalling. I've said in previous reports that the 30-day response time is now an exception. It's not unusual, in the report cards--and I know the office is working on the next round of report cards--that 120, 130, and in some institutions, 200 days to respond is the norm.
It's a strong piece of legislation in its principles. It has become totally out of date to the point that journalists have told me that for them the act is now irrelevant. They pursue other ways of getting information. Those are not my words; those are words from the media community, and I'm sure you can verify that.
So yes, it's strong in its principles. It was a beacon in 1983, but we've been passed, have long been passed, by the provinces, as was demonstrated in my report to you. Even Great Britain is way ahead of us, and they only passed their legislation in 2000.
It is strong in principle, but it is totally out of date in its application.
Liberal
Borys Wrzesnewskyj Liberal Etobicoke Centre, ON
Thank you, former commissioner. I'd like to thank you on behalf of all Canadians, my constituents, and obviously, directly, for the work you've done.
It is a fundamental principle of democracy that we see being eroded.
You said in your opening comments that the government has displayed gross negligence when it comes to access to information. I'm not convinced that it's just negligence. The consequence is gross negligence. I'm looking at the patterns and the minister's response, and I can't help but think that the government is engaged in actively undermining the public's right to government transparency. As you said, when the people's rights are diminished--or you quoted our Supreme Court--we have a nation diminished.
Once again, I'd like to thank you for raising the alarm on this situation.
Let's take a look at some of the minister's responses. Before this committee, when we were preparing our report, cabinet confidences....
It's not just journalists who have given up on access to information requests. It's members of Parliament like me. I'm tired of getting blank pages back. There is no way of knowing. There's no third-party review to see whether the questions actually entailed cabinet confidences that would have been disclosed.
The minister responded by hiding behind the Westminster system. He said that this is a cornerstone of the Westminster system. Hasn't this actually evolved, this access to information? There have been changes, including by the mother of the Westminster system. Changes have been made to access to information. New Zealand, for instance, is often pointed to as an example of the way things should happen when it comes to cabinet secrecy and this fundamental right to transparency.
In fact, even here in Canada, provinces.... We had the New Brunswick ombudsman state before us that the public body should actively promote open government. We cannot but agree that the government of the current day is doing the exact opposite.
Liberal
The Chair Liberal Paul Szabo
Thank you.
The time has expired. I'm going to allow Mr. Marleau to make a statement if he wishes.
As an Individual
Mr. Chair, I don't think I used the words “gross negligence”, but you may have deduced, or at least concluded, that that was where I was headed. It is more than just this government. I did say that the access to information is not the intellectual property of the government of the day because the government of the day can now take the initiative to do something about it. It's eroded over 25 years. It's not eroded just in the last 25 months. I just want to be accurate that I wasn't targeting any particular government at this time. Certainly, I'm disappointed that this government has not taken an initiative that I believe it should take in the response to your report.
On cabinet confidences, what the minister said in his testimony, when he appeared before you, was that the current process with the Privy Council works well. Yes, it does work well for the Privy Council. Canadians have complained to me when cabinet confidences were invoked under the statute, but I have no recourse. I have to tell them that the commissioner has no authority. I should put this in the past tense. Canadians complained to me. I was obliged to tell them that they had no recourse. We have to take the government's word. We have to take PCO's word. We have to take the clerk's certificate at face value when he says this is cabinet confidence. We're the only jurisdiction in Canada in that situation. The commissioner can't even state that it is or not. We have to take the word of the government of the day. It works well for PCO.
Bloc
Carole Freeman Bloc Châteauguay—Saint-Constant, QC
Good morning, Mr. Marleau. I would like to begin by thanking you for being here this morning. I also want to commend you on the work you did as Information Commissioner. I welcome the citizen you are today, a citizen with greater freedom of speech.
I would like to start with Mr. Nicholson's response to the many recommendations made by this Committee. These were recommendations that had been studied at length in the past. I would simply like to hear your comments. The beginning of the response states that the government is very determined to make the Access to Information Act more open and transparent, yet the following paragraphs state that the government does not agree that the scope of the Act should be broadened — the government therefore disagrees with the seventh recommendation —, does not agree that broader powers should be created and does not agree that the workload should be increased.
The government is saying one thing and then the opposite; it's blowing hot and cold.
This government was elected in 2005 because of the election promise to clean house and be more transparent and open. Unfortunately, week after week, in all of its operations, it manages its affairs amid as much secrecy as possible. Secrecy has become policy.
I want to hear what you have to say not only about the fact that this government, despite its own Access to Information Act, prevents Canadians from obtaining information about what is going on in individual departments and the government as a whole, but also these three restrictions: not broadening the scope of the Act, not giving the Commissioner increased powers and not increasing his workload, by allowing the Act to reviewed every five years. These are the three elements that need to be mentioned. I would like to hear what you have to say in that regard.
As an Individual
Thank you for your question, madam.
It is important to recognize none the less that the current government broadened the scope of the Act at the outset by passing the Federal Accountability Act. I stated before this Commission that as commendable as broadening the scope of the Act might be, the government has not addressed the fundamental issue, which is departments' performance and their slow response to requests. We can be glad the scope of the Act has been broadened, but we have to lament the fact that it complicated matters and placed a heavier burden on government agencies, mine included, without providing additional resources or harsher penalties for slow responses. The fact that the Act was passed without providing the necessary means is somewhat contradicotry.
As far as expanding the Commissioner's powers and duties is concerned, the Minister's response was that it was incompatible— or inconsistent — with the mandate of other officers of Parliament. He's comparing apples and oranges. The Information Commissioner does not have much to do with the Auditor General or the Chief Electoral Officer; they are separate creatures. In almost every province, Quebec included, the information commissioner has quasi-judicial powers, the power to make orders.
It is not a matter of reinventing the wheel. It's not like a hair in your soup. It's a reality in Canada. The federal government is lagging far behind the provinces, and the counterpart commissioners in the provinces are critical of that. We are setting a bad example for the rest of the world. There's a contradiction: on the one hand, broadening the Act is something to be celebrated, but nothing has been done in terms of applying it, and the broader scope has made things more complicated.
Bloc
Carole Freeman Bloc Châteauguay—Saint-Constant, QC
I have no more questions. I leave it to my colleague.
Bloc
Luc Desnoyers Bloc Rivière-des-Mille-Îles, QC
I would rather make a comment, because I wasn't there at the time. I'm also not familiar with the accompanying recommendations.
When we study a statute and realize that changes have to be made and extensive amendments are needed, I think we have to do it in order to provide Canadians with better service, that is, quick access to the information they need. While it's true, as you said earlier, that even journalists go elsewhere, we may question the Act and ask ourselves what purpose it serves. I think we have to take a close look at it and make sure that we can make the necessary changes and provide the necessary tools for the people who work with that Act.
That's the comment I had to make, and Ms. Freeman can use my time if she has any other questions.