Evidence of meeting #8 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 system.
A recording is available from Parliament.
Information Commissioner, Office of the Information Commissioner of Canada
The individual's name is known to the departmental coordinator or the department. I see no violation of confidentiality whether the person submitted 500 requests at the same time or just one. It stays within the department.
Information Commissioner, Office of the Information Commissioner of Canada
Multiple requests submitted simultaneously by a requester have to do with a single institution, not the entire system.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
Thank you, Chair.
Thank you, Mr. Marleau, for coming back with your colleagues.
Commissioner, with regard to your recommendation number three, about the order-making power, I gather a matter of great debate among information commissioners has been the advocacy model versus the quasi-judicial model. You recommended partially crossing that divide. I'm wondering, why not go the whole way? You said you wanted to do it progressively, and it sounds as if you might anticipate going the whole way, so why not go for the whole thing right now? Why only the administrative powers?
Information Commissioner, Office of the Information Commissioner of Canada
Mr. Chairman, there are two reasons.
First, I did take general advice from the users and practitioners, and I also took into account former Justice La Forest's report to the Governor in Council in a previous administration, the Martin administration.
On the one hand, there is a bit of a flaw in the legislation under section 30. You can go to court for refusals if you're not satisfied, but there is no recourse for an administrative review, other than a complaint to me. And if you're not satisfied with my results, if I say this extension is perfectly reasonable, you have no recourse. At the same time, if I say to the department that it's not reasonable and I recommend X, and they don't do it, I have no recourse. So the recommendation would fix part of that and bring, I think, more structure and discipline to the use of extensions and on other administrative issues.
I think Justice La Forest made a very strong argument, in that the Federal Court of Canada, as a public judicial body hearing fundamental issues on refusals, has heretofore been useful to Canadians. I was a little loath to go all the way, so as not to throw out the baby with the bathwater. There is some argument to be made, I think, in favour of a court process on the issue of disclosure and non-disclosure, versus what's happening in Alberta, where you litigate errors in law made by the commissioner. By the time we get to the Federal Court, we're on to a fundamental issue of interpretation of our legislation. Quite often the document that's being asked for becomes less important than the fundamental issue there.
Going one step still leaves the door open for the next. Should Parliament, five years hence, accept recommendation one, you will have the benefit of our experience over five years in this administrative area. Then it's up to you to decide if you want to open the door all the way.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
Thank you.
With regard to recommendation nine, requiring the approval of the commissioner for all extensions beyond 60 days, in the commentary in the document you gave us the other day, you mentioned in the final line of the opening section that “institutions which are deemed to have refused access to information should forfeit the entitlement to charge fees”. That doesn't seem to have been formulated, or crop up, in a specific recommendation. I wonder why you didn't make that a specific recommendation. Is that something you're recommending to us to include as part of any revision of the act?
Information Commissioner, Office of the Information Commissioner of Canada
I would link that particular area of the forfeiture of fees with the order-making powers. If I decided that the preparation fees were too high or were being used in an abusive way just to delay providing that information, I could order that they be waived. So they're linked with the order-making power.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
Okay.
Also with regard to that, you're still talking about 60 days, or beyond 60 days, and it seems, even from the examples you've given, that it's a long period for extensions. Many other jurisdictions have a much shorter period. You note that in Quebec it's 10 days; in Alberta and British Columbia and other provinces it's 30 days; and in the United States, the forfeiture of fees comes in after 20 days.
Why are we sticking with that longer period of time? Should we not be moving to a system that requires faster compliance than that?
Information Commissioner, Office of the Information Commissioner of Canada
Well, I certainly would want to see compliance before 90 days. That's an extension of up to 60 days. That would be 60, plus the initial 30. It's a judgment call. The system has been operating now, in my view, unacceptably at 180 days plus, 120 days being the average. Cutting it in half might get a more responsive system.
The other thing is that I hope these limits will force the departments to get into a delivery mode within that time period, rather than just seeking the approval of the commissioner on a regular basis.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
Cutting it in half still makes it look like we're giving them way more time than other jurisdictions, so it may be taken that we're still not very serious about it.
Information Commissioner, Office of the Information Commissioner of Canada
Well, as a judgment call.... Something you could look at when the legislation is before you is that the average across the country is 30—that is, 30 plus 30. Is this bureaucratic apparatus, which has been living under this regime for 25 years, capable of adjusting its culture and resources overnight in order to deliver within a 30 plus 30 regime? That's the judgment call you have to make.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
Commissioner, one of the things you didn't address in your recommendations was the whole issue of the use of crown copyright and how that seems to be a limitation on the intent, I think, of access to information, that when the government imposes issues of crown copyright it puts a real limitation on how the information that's been provided can be used. Is there a reason why you didn't include a recommendation on crown copyright?
Information Commissioner, Office of the Information Commissioner of Canada
I believe it's addressed in the package with the Open Government Act.
As I said, what I've tried to do here is to bring forward a package that is, from number 1 to number 12, consistent within, and not to throw in either process or procedural issues that are stand-alone if they're not in the package of 12. That doesn't mean that the rest of the OGA, the Open Government Act, ought not to go forward in a comprehensive review, but there are a whole series of things that I've left out, just to make it more cohesive.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
Yes, thank you once again for being with us today.
I notice that in your second point in the presentation you shared with us earlier, Mr. Commissioner, you mentioned that “the right of access be provided to all”. Are you suggesting that Canadian citizenship would not be a precondition for the use of Canada's Access to Information Act?
Information Commissioner, Office of the Information Commissioner of Canada
Yes, sir. I feel that in the context of what other countries are doing, such as the U.S., and what some of our provinces are doing, and in the context of some of the commitments we've made both at the UN and in the Commonwealth, access to all in the Internet age is a must. For instance, if you are applying for immigration status in Canada from outside the country, and you're not a Canadian citizen but you wish to have access to your file, you now have to hire a third party broker to access that file. So it would cure that. Or if you're an academic sitting in Edinburgh and you're trying to do a comparative study between two policies of two different governments within the Commonwealth, and you ask for information, at this point in time, if it's not voluntarily given, you too have to hire a broker.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
What is the total cost of processing all the access to information requests processed in this government?
Information Commissioner, Office of the Information Commissioner of Canada
I don't have it right in front of me, but someone will dig it up. My recollection from last week is that it's about $49 million.
Conservative
Information Commissioner, Office of the Information Commissioner of Canada
It's $404,208.63.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
So about 1% of the costs are recovered by the government.
