Information & Ethics Committee on March 9th, 2009

[Robert Marleau]

That could form part of another component, if I can put it that way, of modernizing the legislation. In the U.S., for instance, legislators and the media have their fees waived for certain kinds of requests. There's a recognized status of accountability role for the media and for legislators in filing requests.

Yes, I agree with you, that's the nirvana of freedom of information. But as one who for many years assisted honourable members to draft questions on the order paper in order to get specific responses from the government, I know the timeliness of a response was also a problem back then.

[The Chair, Liberal, Paul Szabo]

Thank you.

Mr. Dechert, please.

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

Thank you, Mr. Chair.

Commissioner, thank you for your comments and testimony today.

You mentioned the amber lighting process. I believe that was part of what was referred to as the CAIRS program. At the last meeting, we referred to a number of articles that were written in the Toronto Star and other media between 2003 and 2005. Was that not instituted under the previous government?

[Robert Marleau]

Yes. The investigation spanned 2003 to 2005, and we published our findings last summer. The Treasury Board Secretariat and president have responded to three recommendations. They've agreed essentially to cease and desist, or to meet the timelines.

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

So this culture, as it were, is a culture that has existed for some time.

[Robert Marleau]

Oh, many of the issues I'm addressing here are 25 years old.

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

Thank you.

Earlier you mentioned your recommendation two, with respect to providing access to anyone, to people beyond Canadian citizens. You mentioned the United States and Mexico and what they do in those countries.

Could you enlighten us in terms of what the U.S. and Mexico do with regard to cost recovery, for example, on access to information requests by those who are not their citizens? Could you also describe whether or not both those countries allow or provide information on cabinet confidences?

[Robert Marleau]

In terms of how the U.S. treats requests from non-citizens, there's no distinction made. The regulations for fees apply equally to citizens and non-citizens.

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

Can you comment on the cost recovery in the U.S.?

[Robert Marleau]

I'd have to revisit the regulations, but they're roughly along the lines of what we have: a certain amount of free hours of search time, a certain amount of free photocopying and then 20¢ per page applies, and preparation fees and those kinds of things. It's very similar. The distinction is that they have no ombudsman and no commissioner. If you wish to appeal, you have to go to the courts, which could be very expensive, of course.

As for Mexico, I'll ask my colleague, who speaks Spanish, to reply to the Mexican experience.

[Suzanne Legault, Assistant Commissioner, Policy, Communications and Operations, Office of the Information Commissioner of Canada]

To my knowledge, there is no cost recovery specific to persons who are outside of the country or not citizens of Mexico.

The important aspect of having access to information legislation that's accessible to all means that it becomes possible to access it via the Internet, and this is a major technological advance. If we could get that in the legislation it would actually allow the system to move to the 21st century in terms of access by Internet. I suspect that it would save costs significantly in the long run.

This is how the Mexican system is developed. If you think about it in those terms, in Mexico a very small percentage of the population has access to the Internet. Therefore, it is still restricted, but in Canada, I believe, the data now is that probably in excess of 80% of the population has access to the Web, which would make a significant difference.

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

I certainly understand the desire to utilize the Internet in supplying this information, but are there not ways that you could request information about whether or not the person who's requesting the information is a citizen?

[Suzanne Legault]

Part of the difficulty that has been expressed to us by people at the Treasury Board Secretariat is that because they need to ascertain the residency status of the applicants they are therefore unable to move to a complete Web-based system.

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

What if they are just required to put in, for example, their SIN? Wouldn't that be an indication?

[Suzanne Legault]

Then I think we move into security and privacy issues.

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

Well, today you know who the person is anyway, or at least somebody in the government does, when they make a request.

What about cabinet confidence? Is that information available both in the U.S. and in Mexico?

[Robert Marleau]

In the U.S., executive privilege is claimed over those cabinet confidences. They're pretty watertight, to be honest. But the principle we have in Canada that is different from what the U.S. has is the oversight by a third party independent overseer. They don't have an ombudsman there.

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

So we're already ahead of them in that regard.

[Robert Marleau]

That's right. They're headed in that direction.

In Canada, it is the only area where the commissioner must take the word of the government or the clerk for a certificate that says, no, you can't see this, that this is a cabinet confidence.

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

So how, for example, would you prohibit--

[The Chair, Liberal, Paul Szabo]

I apologize, Mr. Dechert. Unfortunately, we have to move to another member at this time, but maybe you can get on the list again.

Monsieur Guimond.

[Claude Guimond, Bloc, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Thank you, Mr. Chairman.

Good afternoon, Mr. Marleau. In recommendation 8, you suggest that the act should apply to cabinet confidences. In other words, they should be included in the act.

Does the British parliamentary system operate in this way at the moment?

[Robert Marleau]

A number of provinces have a provision of this type in their legislation. In British Columbia and Alberta, the commissioner has at least to look at complaints that are refused. I'm not sure whether this is true in Quebec as well; we will check into that.

The recommendation would change the absolute exclusion into a discretionary exemption. Documents would not necessarily be disclosed, but at least the principles regarding exemptions set out in the act would be applied, and the commissioner would have a right of oversight over the complaints.

At the moment, these documents are automatically excluded based on a unilateral decision by the government, without the commissioner having any right to see the complaint.

[Claude Guimond, Bloc, Rimouski-Neigette—Témiscouata—Les Basques, QC]

How does the system work in the institutions and administrations you just mentioned?

[Robert Marleau]

I have had conversations with the provincial and territorial commissioners, and this does not seem to cause them any difficulty at all. The fact that a third party would at least have looked at the document would give requesters more confidence. If I tell you that you cannot get a document in accordance with an exemption set out in the legislation, at least you have the satisfaction of knowing that someone independent of the government made this decision.

In some cases, we can determine whether the Privy Council or other institutions went too far, and perhaps encourage them to show greater flexibility in exercising their discretion. The objective is to promote disclosure.