Information & Ethics Committee on Nov. 26th, 2009

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Thank you, Chair.

Thank you so much for your suggestion. That is the course that I would like to see us follow. I think it's important that we have dialogue. Letter writing and e-mails aren't always the most effective way. You play a little bit of ping-pong and you still don't have a sense of why someone feels the way they do.

I really think it is important to encourage the minister to appear in camera before the committee so that we can get some answers to not only this latest letter, but also with respect to the access to information.

Specifically, I'd like to be able to ask him—and I don't know how you do this in a letter—why he continued to recommend that we do an in-depth study of strengthening the Access to Information Act, for instance, when the Information Commissioner said that what this proposes, if accepted, will reduce the amount of information available to the public, weaken the oversight role of the Information Commissioner, and increase government's ability to cover up wrongdoing, shield itself from embarrassment, and control the flow of information to Canadians.

I don't know if you've all read this, but in my view, the Information Commissioner wasn't wrong. So I wonder why the minister would want to direct us to study ad nauseam something that has already been dismissed as not being in the public interest by not only the commissioner but several members of the committee.

So I really do see the importance. I would like to see the minister so we can ask questions and so we're not playing ping-pong.

Thank you.

[The Chair, Liberal, Paul Szabo]

Mr. Wrzesnewskyj.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

I'd like to move a subamendment that the date be changed. If we receive the response the day before we arrive back after the break, it wouldn't give us enough time to substantively go through this. I'd like to suggest Friday, January 15, the week prior to us coming back on January 25. There were a number of recommendations that were pretty substantive, so it gives us an opportunity to go through those.

[The Chair, Liberal, Paul Szabo]

I think we've had an interesting conversation. Incidentally, one of the—

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

So I'd move the subamendment.

[The Chair, Liberal, Paul Szabo]

We were going to grant that one.

During the Mulroney-Schreiber hearings, one of the words I used, for which I probably got 100 e-mails from people across the country, was the word “fulsome”. You may be interested to know, if you look in the dictionary, that it is like a weasel answer. It actually is the reverse of what you think it is. So “fulsome” is not really everything; it's not fulsome.

Anyway, I just thought I'd raise it, because I've heard that several times around the table. We'd better be careful, because if you ask the minister for a fulsome answer, you just might get one.

Are we ready to do these things? We have a subamendment, an amendment, and a motion.

You want one last comment.

[Dean Del Mastro, Conservative, Peterborough, ON]

Just in response to Mrs. Simson's comment, perhaps we could move the suggestion she made for an in camera discussion with the minister as a separate motion.

[The Chair, Liberal, Paul Szabo]

We're ahead of ourselves, but I think it's on the record. I will look closely at the transcript. I think we have a lot of good ideas on the table, but I think we'd better deal with these one at a time.

There is a subamendment by Mr. Wrzesnewskyj that the date be amended to January 15. All those in favour?

(Amendment agreed to)

We have the amendment now by Mr. Siksay, which amends the main motion to include.... Okay. Mr. Del Mastro's motion says we request “that the minister address each recommendation made individually”, and the amendment would read “by the committee and the Privacy Commissioner” for greater certainty that it's.... We want all of them, even the ones we didn't support. And it adds that the response be by January 15.

Does everybody understand what we are doing here? It says basically all the 12 included in the 10th report, and the January 15 date. That is the amendment as amended.

All those in favour?

(Amendment agreed to)

Now we have the motion as amended:

That the Committee write to the Minister of Justice to express its desire for a more comprehensive response of its 10th report entitled “The Privacy Act: First Step Towards Renewal”. Specifically, the committee requests that the Minister address each recommendation made individually by the Committee and the Privacy Commissioner and provide background for his caution and concerns. The committee further requests that the minister respond by January 15, 2010.

I think that's exactly what Mr. Del Mastro would have written had he written the whole thing himself.

[The Chair, Liberal, Paul Szabo]

I think that's clear. It encapsulates the wishes of the committee.

(Motion as amended agreed to)

We'll do this, and if it is solely with regard to this report, the privacy.... We have completed that item with Madam Simson's motion, which has been stood and may be considered at any time, should the committee so wish. She can bring it back on the floor if necessary--and I hope that never happens.

Our second order of the day is with regard to access to information. The letter of response from the minister has been circulated to you. I think you know what it says. There are three items here. Two documents were circulated by our researchers, which I think are extremely important. A lot of work went into them, and they basically tried to pull together everything that has happened on access to information into two documents.

The first one is...kind of all of it, except the second document, which has recommendations that came out of the Right to Know Week that was run by the Information Commission during a break week. I asked them to prepare this for our information, because it puts us where we have been and may help us with further work.

I've also asked them to give us a brief run-through of what's here. I want it on the record as to the extent of the work that has been done and the resources available, so we don't get into this problem we've had in the past, where things like a discussion paper that nobody seemed to have doesn't lose the attention of the committee. I don't know how that happened. It was tabled in the House, but it was never dated. It never got referred to this committee, for some odd reason. That was back in early 2007. Don't ask me how it happened. It shouldn't have. I think we'll forget about who's at fault here. We do have a document.

Élise, Alysia, and Dara, I don't know how you'd like to do this, but could you help the committee appreciate the excellent work you have all done?

[Élise Hurtubise-Loranger, Committee Researcher]

The first document we have is entitled “The Access To Information Act and Recent Proposals For Reform”. It's the bigger document of the two--the longest. This was a library publication we had, and it was updated until 2006. So in the last couple of weeks we have updated it to 2009. It will again become a publication once we've gone through editing and everything. It will be available to the public as well as to the committee.

The first page is the contents page. I will quickly go through what each of these documents is.

The first document in the list is entitled Open and Shut, a report produced by the justice committee in 1987. It was the first study done on reforming the Access to Information Act. The committee conducted an exhaustive review of the legislation, both the Access to Information Act and the Privacy Act, and tabled a unanimous report to Parliament with more than 100 recommendations for amending both acts. The government responded to the report and generally supported the administrative changes proposed, but not the legislative ones.

The second document, A Call for Openness, was published in 2001 further to the work of an ad hoc committee of MPs chaired by Liberal MP John Bryden. The report contained 11 recommendations for improving the provisions of the act. It was tabled in 2001.

The next document is entitled Access to Information: Making It Work for Canadians. It was published in 2002. The report was produced by an access to information review task force consisting of government officials and chaired by Treasury Board and the Minister of Justice. It was a joint effort by both departments. In June 2002, the task force put out a report containing 139 recommendations for changing the Access to Information Act.

The next document is the response to the report of the Access to Information Review Task Force. It is the information commissioner's response to the last document mentioned, which was produced by a group of government officials. This document was published in 2002 by the information commissioner. He was critical of both the process and the results of the task force's review. The commissioner felt that some of the recommendations would weaken the access to information regime.

What followed the task force's report and the commissioner's response were two private members' bills. The first was Bill C-462, which was introduced by John Bryden. Then came Bill C-201, which was introduced by MP Pat Martin in 2004. Both bills died on the order paper.

The next document is the Justice Minister's Comprehensive Framework for Access to Information Reform, which was published in 2005 by then justice minister, Mr. Cotler. It was basically a discussion paper in which he asked this committee for input on a range of policy questions, before the introduction of legislation. The document addressed a variety of aspects of the Access to Information Act. It sought the committee's input.

Rather than embarking on a comprehensive study of the document, the committee asked Information Commissioner John Reid to develop a bill that would amend the Access to Information Act. And he did so, with the help of the Law Clerk of the House of Commons. He presented a draft bill to the committee entitled the Open Government Act. Commissioner Reid's bill was endorsed by Judge Gomery in the second phase of his report.

After the introduction of Commissioner Reid's bill, MP Pat Martin introduced a bill, as did Ms. Lavallée of the Bloc Québécois. They were both very similar to Mr. Reid's bill, and both died on the order paper. Mr. Martin introduced his bill on February 25, 2009, thus in this session of Parliament. So the bill is still active.

The next document is the motion in the House of Commons and the seventh report of the committee. A motion was passed by the House in November 2005, and you have its content in the document.

Immediately afterwards, the committee reported to the House of Commons, recommending Mr. Reid's bill.

The next step was the Federal Accountability Act, which was introduced by the government in April 2006. It amended the Access to Information Act in three areas, essentially. First, it expanded coverage of the act to a greater number of federal institutions. In doing so, the legislation added new exclusions and exemptions for some of the new organizations that were not previously subject to the act. The Federal Accountability Act also created a duty to assist. That briefly summarizes what happened between 2006.

At the same time that Bill C-2, the Federal Accountability Act, was introduced, the Minister of Justice at the time tabled a document, which we did not find. It was a discussion paper entitled “Strengthening the Access to Information Act — A discussion of Ideas Intrinsic to the Reform of the Access to Information Act”. In the discussion paper, the minister examines some of the proposals made by Commissioner Reid in 2005. The government noted in the paper that further consultation, analysis and development were required before additional reforms to what was already set out in the Federal Accountability Act could be proposed. The paper also suggested engaging in consultations with stakeholders representing all aspects of the system. That briefly summarizes the contents of that paper.

The last document in the list, which you may be more familiar with, is the report produced by our committee in June 2009, “Access to Information Act: First Steps Towards Renewal”. It was the committee's response to the 12 brief recommendations of Information Commissioner Marleau. That completes the first document.

The second document,

It's a summary of what happened on the legal panel at the Right to Know Week that was held recently at the end of September, beginning of October. There was a panel of 12 people. It was quite a substantial panel. The Information Commissioner's office has gone through the transcripts and has given us a list of the suggested reform proposals that came out of that panel. So that's in the second document.

[The Chair, Liberal, Paul Szabo]

On the right to now, are those panels still available for on-demand viewing, on podcast?

[Élise Hurtubise-Loranger]

Yes, and the transcripts will eventually be available. That is what I was told.

[The Chair, Liberal, Paul Szabo]

So on this second document, the “Right to Know”, some exceptional people participated, and their presentations were very informative. I think it's a good resource for the committee. If you see anything here that touches on a point of interest, behind that is a presentation by someone who has the experience or expertise.

Collectively these documents are a treasure trove of arguments, suggestions, dispositions, and how things have changed. I hope members will be able to make use of this as we move forward and see how we go, at least on the access side. We'll look for something similar to maybe document the privacy saga since the act came in over 25 years ago.

The final matter for us is the letter that was received yesterday from the Minister of Justice on our access report. As you know, we asked the minister to appear by November 30. It was reported to the House. I think all members have the letter and have had an opportunity to review it.

I am open to comments, suggestions, or questions from the members in light of what we did on the privacy side.

Mr. Dechert, do you want to start us off?

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

Yes, please. Thank you, Mr. Chair.

It's very clear what the minister would like us to do here. I'm getting the view, from his response to both of our reports on access to information and privacy, that he thinks more work needs to be done. His preference is not to do piecemeal changes to legislation, but to do comprehensive reviews. He has provided us with this very informative discussion paper that was prepared by former Commissioner Reid.

He's asking us very clearly to do a full study on access reform and meet with all the relevant stakeholders. That makes perfect sense. It's something this committee could very usefully do to discharge its duty to the public on these very important issues.

I didn't have a chance to review that paper. I understand it was done prior to my joining this committee. There was some discussion earlier about it, but I wasn't part of that.

It seems to me that's a very reasonable way to approach legislation. There are lots of interested stakeholders out there who would like to make their views known on these important issues. I'd like to see our committee undertake that kind of study.

[The Chair, Liberal, Paul Szabo]

Next are Madam Freeman, Mr. Siksay, Mr. Del Mastro, Madam Simson, and Madam Davidson.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Thank you, Mr. Chair.

I had a good look at the letter that was sent to you yesterday. In the letter, which is fairly brief, the minister asks us to carry out a comprehensive study on access to information reform, giving careful consideration to the discussion papers. I think that Ms. Hurtubise-Loranger's presentation shows that this act has been the subject of many studies for some years. It starts in 1987. In 2001, Mr. Bryden had a go. There was a task force in 2002. And responses in 2002. There were also successive private members' bills from John Bryden and Pat Martin in 2003 and 2004. Minister Irwin Cotler produced the Comprehensive Framework for Access to Information Reform. We heard about the committee asking John Reid for a new bill, about a motion in the House and the seventh report of the standing committee. There was the Federal Accountability Act, which—yes—did introduce certain things. And there was also the work we did here on the “Access to Information Act: First Steps Towards Renewal” report.

Indeed, a huge amount of work has been done, if we also consider that this week, 12 panel members worked very hard on making proposals and suggestions.

As for what is being asked of us in that letter, I wonder what more we can do as a committee, what other work we can do, since we have, throughout all these steps, examined and re-examined the issue, and started the work over again. We have brought in panellists, those who are the most qualified to give us insight, and the work was taken very seriously. All these years, the work was always taken very seriously.

I think the time has come, the bell tolls. I want to tell the members of this committee that the work was carried out very seriously and with the utmost professionalism. We examined the issue inside and out. Now, I think it is up to the minister to show some political will and leadership, a very specific will by this government to introduce a bill to amend the existing act. We have finished our work; we cannot go any further. It is now up to Minister Nicholson and the Conservative government to move the issue forward and to serve Canadians by giving them access to information, and to revive this outdated act. That is what I think, Mr. Chair.

As far as we are concerned, we have done our job. We cannot go any further. We do not have the mandate to create a new bill. It is up to the government to do it. It now has all the tools it needs, all the information necessary. Our work is done.

Thank you, Mr. Chair.

[The Chair, Liberal, Paul Szabo]

Thank you.

Mr. Siksay.

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

Thank you, Chair.

I want to add a very brief comment on this.

I think the minister is trying to throw the ball back in our court when the ball is actually in his court. I don't see any possibility of understanding the situation differently than that. We've had report after report, study after study. We've had a former Information Commissioner draft legislation. We've had private member legislation. We had a detailed platform commitment from the government on many of these issues in 2006. I don't know what more we can do as a committee.

The government is the place where legislation will be drafted. I'm sure in the department there is a draft bill sitting somewhere. I can't imagine that all of this work would have been done over this long a period of time without that existing within the department. If the government were serious about access to information reform, if they were serious about the commitments they made to Canadians in their own election platforms, I think we would have a bill before us.

Frankly, there's nothing more that this committee can do than it has done. I'm disappointed that some discussion paper was misdirected, or that it didn't get tabled properly or whatever, but that's still no place for the government to hang its hat and say the work hasn't been completed, not when you look at the history of what's been done around access to information reform over the past years, including our most recent work, which I don't want to depreciate for one second. It was dealing with very specific suggestions from the Information Commissioner about the hot button issues that he believed could be fixed most appropriately and easily.

When it comes to other issues on its agenda--when it comes to criminal justice bills, for instance--the government has no problem taking and introducing bill after bill on a whole bunch of different subjects. These could have been combined together. We could have progressed that agenda much more quickly. To say that we can't deal with the quick fixes separate from an overhaul of the Access to Information Act--a complete overhaul--I think is a complete fallacy, especially when you look at their own choices about how they pursued their legislative agenda in this Parliament.

Frankly, I don't think there's an argument that we haven't addressed successfully, or that this committee hasn't addressed in its history of the last few years, and that others haven't addressed.

I think if they were serious, they'd get on with it.

[The Chair, Liberal, Paul Szabo]

Mr. Del Mastro.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you, Mr. Chairman.

I have a couple of things here.

I worked on the committee on the Federal Accountability Act. I wasn't a named member, but I was on the Federal Accountability Act committee, served a lot of hours, and received a lot of cooperation, frankly, and support from the NDP at that time.

As you know, there were significant reforms to access to information brought forward by the Federal Accountability Act, including access to 70 new institutions. We know what those are--the Wheat Board, for example, Canada Post, the CBC.

These were significant steps. They were steps that no previous government under any stripe had ever undertaken. They were all about opening up access to information for Canadians.

I think subsequently we've seen a significant increase in the number of access requests, and I think that indicates that Canadians appreciated this being opened up. The result has been a significant increase in the number of access requests, which is what the government was looking to provide: greater access, more open access, and more broad access to information.

Certainly our position is that we're committed to transparency and openness. The record is clear. We brought in the Federal Accountability Act to back that up.

Thank you.

[The Chair, Liberal, Paul Szabo]

Madam Simson.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Thank you, Chair.

I want to reiterate the position that I put forward with respect to the minister's response on access to information--the original letter, and then this further response. I really am perplexed. I must confess that I share my colleague Mr. Siksay's sentiments that there doesn't appear to be any will or leadership in this area at all. I'm really curious as to why, in two separate letters, the minister is directing us to study a discussion paper that clearly, if enacted and accepted, would reduce the amount of information available to the public, weaken his oversight, and would increase a government's ability to cover up wrongdoing, shield itself from embarrassment, and control the flow of information to Canadians.

We did consult with stakeholders. Not all of them agreed with Mr. Marleau's recommendations. We had a tremendous opportunity to get both sides of the issue, and I think this committee did an outstanding job. This letter gives me the feeling that he's not going to be happy until we spend a lot of time on something that, quite frankly, is a waste of time, and has been declared so by an Information Commissioner who is looking out for Canadians' best interests.

I simply wanted to comment that we're getting pushed in a direction. We're not being asked to do anything but the minister's bidding and go through this discussion paper, which, by the way, I think would be a total waste of this committee's time. That's just my opinion.

Thank you, Chair.

[The Chair, Liberal, Paul Szabo]

Go ahead, Mrs. Davidson.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Thank you, Mr. Chair.

There are a few comments I want to make. I know that we promised accountability legislation, and we brought that in. We know, as has been said here, that the Accountability Act enacted some pretty significant reforms to the Access to Information Act. It certainly extended its reach, and it brought in more groups underneath the Access to Information Act. I think those things were well received. I think they were things that were needed to be done and I think they were huge steps for government to take. I think they have proven to be good moves.

My colleague has talked about the increase in the number of requests, and I think that's good. I think any time we can increase transparency and openness, that's what we need to be doing. I think this Federal Accountability Act has helped to do that with the reforms to the Access to Information Act.

The minister talks in this letter about his reasons and about his thinking with regard to what the committee needs to be doing. He says that he explained that the discussion paper outlined the main issues raised by the former Information Commissioner, Mr. John Reid, and that these issues required further consultation and study. He then goes on to say that the most productive and effective activity that this committee could undertake would be to conduct a full study of access reform, with a particular focus on the discussion paper. He's actually given us some information in this letter about what he would like us to do, but he has also focused it to a direct part of the access reform.

I think it behooves this committee to do that. When he talks about further consultation and study, I think that's what this committee is supposed to be doing: consulting and studying. I think the minister has been very clear in this second letter that we've received, and I think we have a clear directive on how we can move forward as a committee.

Thank you.

[The Chair, Liberal, Paul Szabo]

Mrs. Block.