Information & Ethics Committee on March 9th, 2009

[The Chair, Liberal, Paul Szabo]

This is the eighth meeting of the Standing Committee on Access to Information, Privacy and Ethics. Today, pursuant to Standing Order 108(2), our study is on the Access to Information Act reform.

We have before us again, from the Office of the Information Commissioner of Canada, Mr. Robert Marleau, Information Commissioner; Andrea Neill, assistant commissioner, complaints resolution and compliance; and Suzanne Legault, assistant commissioner, policy, communications, and operations.

As you know, we invited Mr. Marleau to come back to specifically address the 10 recommendations he left with us at our last meeting. Mr. Marleau also left us suggestions on five witnesses who are up to date, in his view, and proactive on the Access to Information Act and would be prepared to be witnesses. We contacted them, and three are available. They are all from out west, and it is my intention to call them to be witnesses on Wednesday so we can keep the continuity of the current work we're doing. So that's coming up.

You also have before you the matter from the Oliphant commission. We will deal with that at the end of the meeting. I'll give you an opportunity to look at it and consult, if necessary.

Mr. Siksay.

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

Thank you, Chair.

I want to make one point about the witnesses appearing before the committee. Has it been the practice in the past for the committee to use only teleconferencing? I am concerned that when witnesses, especially from the west coast, are asked to provide testimony by teleconference, they miss the opportunity to come to Parliament Hill, meet members of the committee, and do the kind of networking that other Canadians who live in closer proximity are often granted the opportunity to do as a matter of course .

I have to flag that with the committee, because when I hear that witnesses from British Columbia are going to appear by teleconference, I often feel a little western alienation. Canadians from farther points in Canada miss out on the opportunity to do their work here with us in person. I'm not saying we shouldn't go ahead with what is planned for Wednesday, but in future we need to pay attention to that issue as well.

[The Chair, Liberal, Paul Szabo]

Thank you, Mr. Siksay.

I agree with you fully. There was a bit of a tight timeline, which was part of the problem. I know at least one could not be here physically, so we were going to have to do teleconferencing anyway. We went that route simply for efficiency and cost-effectiveness, but I take note of your point. Thank you.

In conjunction with those witnesses, I wonder if I can get a motion from someone. We need a budget, over and above our ordinary budget, of $5,900 in total. That includes $3,600 for our witnesses' expenses, $1,800 for the video conference, and $500 for miscellaneous.

That is moved by Ms. Simson.

(Motion agreed to)

[The Chair, Liberal, Paul Szabo]

Mr. Marleau, we had an opportunity to look at your recommendations and read some of the material, particularly material circulated to the members on Mr. Reid's recommendations. Those were made available to the members to get a more specific sense of the direction Mr. Reid was proposing. They are pretty comprehensive changes. Yours are somewhat more global, in some senses.

We're probably at the point where we would welcome you to go through them with us to present the substantive reason for the 10 recommendations, the main reason for each one, and any other comments you care to make. Then we'll go to members' questions.

Please proceed.

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

Thank you, Mr. Chairman, and thanks to the committee for the time it's providing me to address you once again on the issue of access to information reform.

With me today again are Suzanne Legault, the assistant commissioner, policy, communications and operations; and Andrea Neill, the assistant commissioner for complaints resolution and compliance.

At my appearance before you last week I tabled a document that elaborates on 12 recommendations to strengthen the Access to Information Act. These 12 recommendations are urgently needed to modernize the access to information regime from a legislative perspective and catch up with more progressive regimes both nationally and internationally. While I'm not presenting them to you as a package that is entirely take it all or leave none, there is a thread that runs through these recommendations, and I hope it'll come out in my remarks.

These changes address the general themes of parliamentary review, providing the right of access to all, strengthening the compliance model, public education, research and advice, coverage, and timeliness.

I want to stress that the list of recommendations represents an important first step in meeting the challenge of modernizing the act. The list is by no means exhaustive. The recommendations only tackle the most pressing matters. I will quickly go over the twelve recommendations I am prepared to respond to some more detailed questions in a moment.

First, I recommend that the act be amended to require a review by Parliament every five years. This schedule will provide an opportunity for parliamentarians to identify systemic issues, consider best practices in other jurisdictions and recommend changes to legislative or administrative structures.

In an environment of increasing globalization, people require access to information regardless of their physical presence. It's becoming difficult to sustain the concept of limited access. It prevents our regime from moving to the Internet age, which ultimately affects timeliness. It also increases costs by adding intermediaries.

Therefore, I recommend that the right of access be provided to all.

I also recommend providing the Information Commissioner with order-making powers for administrative complaints. This model would facilitate an expeditious resolution of administrative matters, which account for about 50% of my office's business.

Fourth, in order to exercise a measure of control over the complaint process and the utilization of resources, I recommend that the commissioner have the discretion to investigate complaints. Currently the Access to Information Act requires that I investigate all complaints received.

The two next recommendations deal with my mandate as Information Commissioner. I believe that these changes will assist in promoting greater dialogue, transparency, and increased accountability.

First, many of my counterparts, provincially and internationally, are expressly empowered to promote a public understanding of access rights and to conduct research into issues affecting the public's right to know. This expanded mandate would help ensure that Canadians are aware of how to exercise their rights to know. And therefore I recommend that the Information Commissioner be given a public education and research mandate.

In addition, I recommend that the role of the Information Commissioner in providing advice regarding proposed legislative initiatives be expressly recognized so that federal institutions are obligated to consult with my office in developing legislative proposals to ensure proper account is taken of the impact on freedom of information.

Canadians expect all publicly funded bodies to be accountable under access to information legislation. This is why the administrative records of the Senate, the House of Commons, the Library of Parliament and the judicial branch of government should be covered by the act. This is my recommendation number 7.

Another important proposal relates to cabinet confidences. The status of cabinet confidences has been under constant debate since the inception of the legislation. Currently, they are excluded from my review, which goes against one of the fundamental principles of freedom of information legislation — independent oversight. Therefore, I recommend that the Access of Information Act apply to cabinet confidences as discretionary exemptions.

As noted in my special report to Parliament, tabled last week, a greater oversight is required to ensure that extensions do not undermine the timely release of information. Therefore, I recommend that the approval of the Information Commissioner should be required for any extension that is greater than 60 days.

And timeliness of investigations is also an issue. My office is trying to tackle that. I briefed you last week on the backlog of cases. I believe it is appropriate to establish a 90-day timeframe for completing administrative investigations. That's my recommendation number 10.

The Access to Information Act does not provide direct access to the Federal Court for requesters. Instead, the Information Commissioner must first complete his investigation before a complainant can go to court if he or she desires. The time required to obtain a binding resolution of a complaint can be too long for some requesters. Recommendation number 11 provides for this option.

Institutions are sometimes faced with multiple and simultaneous requests from the same applicant. And as it currently stands, the provision for extending time limits cannot be applied to these situations. Therefore, I recommend that government institutions have the option of claiming time extensions when responding to multiple and simultaneous requests from the same requester that would unreasonably interfere with their operations.

In closing, Mr. Chairman, I would like to reiterate that I support, in principle, the Open Government Act, which was developed by my predecessor at the behest of this committee. However, the recommendations I am making in this document I believe should be implemented without delay. They would go a long way to appreciably improving the effectiveness of the regime in providing significant benefits to Canadians. And indeed, should Parliament adopt my first recommendation of a five-year review, if this legislation were amended accordingly today, five years from now we'd be in a position to report back on any changes that these recommendations may or may not have brought to the system.

Thank you for inviting me to share my thoughts on the reform of the Access to Information Act, Mr. Chair. We would be pleased to answer any questions you may have.

[The Chair, Liberal, Paul Szabo]

Thank you.

We'll go right to the questions.

Madam Simson, please.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Thank you, Chair, and thank you again, Mr. Marleau, for appearing before the committee. Last week was very helpful.

In going through your recommendations, I couldn't agree with you more about number one, that the act has to be reviewed every five years. So this would be outside five years, or could it be subject to review within a five-year period—sooner if need be, if the change is technological or if anything else could arise? Is that a possibility?

[Robert Marleau]

Yes, the former proceduralist in me has to state that the act is in fact permanently before the committee. Through your mandate, you certainly have unfettered access to looking at it and making recommendations thereon. But a mandated review in the legislation, with a report to the House about the state of affairs, is really what I am trying to impress upon the committee as quite important.

Also, in creating a dynamic in the system, you might find that the bureaucracy moves at a different pace in year four than it does in year one, knowing that Parliament will be looking at the legislation. So I think it could have corollary effects other than just from being a report to the House.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Thank you.

Last week in your opening remarks, I was very interested when you made mention of the need for a new act. Certainly we need it revamped. But there seemed to be a bit of a problem with respect to the culture, in that there has to be a cultural change. So how do you see these recommendations working to bring about the cultural change that you believe is required to have things work a little more smoothly?

[Robert Marleau]

I think there are three recommendations that target different behaviours on the part of government responding to requests.

The first is the order-making power for administrative complaints. Should the commissioner have this order-making power, it would fill what has been identified as a flaw in section 30 of the act. That section lists the items upon which one can file an administrative complaint. But there's no recourse; you can't go to the courts on this. This way, administratively, the commissioner could address some of these issues and build an administrative jurisprudence that would guide departments in meeting their obligations under the statute. That's one component where I think this rule would change the culture.

The other, which was the body of my special report, is the restriction on extensions. We found that they average 120 days and, in some departments, much longer than that. We've cut it in half and modelled it on some of our provincial legislation, so that the commissioner should be the one to approve any extensions beyond 60 days. Those are the 30 days within which they are normally supposed to respond under the statute, and then they can claim a perfectly legal extension, but to a maximum of 60 days, so that within 90 days there should be an expectation that service will be provided to the requester. I think this would change the culture, because after they've come to the commissioner two or three times to justify the extension, there's a hesitance, I think, to keep coming back. So I think this would enforce a different behaviour within that 90-day window. This, I think, would change the culture.

The other is the recommendation I make that the commissioner have discretionary powers over investigations. Right now, the act says “I shall” investigate, and as a consequence, it doesn't matter what the context is or the content is; they just used to line up in a queue. Having a little discretion, I think, would help in dealing with some of the issues—which, in other legislation, are called vexatious and frivolous—and with departments in terms of how they respond to that. So it's a question again of changing behaviours and culture, but this time on both sides of the fence.

I'm sorry I took so much time, but those are the three components for cultural influence.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

No, that's absolutely fine.

You mentioned having the discretion to decide when not to investigate frivolous complaints. Have you tracked how many complaints you currently receive, say, annually, that might fall into that category if you had the power to do that today?

[Robert Marleau]

I think I answered that question indirectly last week. There are very few actually that I would deem to be absolutely vexatious and absolutely frivolous. There's sometimes some context to it that gives you a sense, but it depends on whether you're on the asking side or the receiving side.

The flexibility that I'm looking for, apart from dealing with those, is to ease the pressure on resources within my office. For instance, I may have four previously closed extensions to complaints. If I get another one that is almost identical, I have to open a file, I have to investigate, I have to assign a resource. So it would give me the discretion to apply, to some degree, the results that I've already established—the investigative results—to some of those coming in the door. So I could say, no, I won't investigate this because we dealt with it in another timeframe, in another annual report, in another context.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

So if you had that ability, would you also be recommending some type of appeals process, say, if a complainant didn't happen to agree with your ruling that a complaint wouldn't be investigated for some reason?

[Robert Marleau]

Well, I think I would have to give substantive reasons and, to some degree, take representations from the complainant. At this juncture, we haven't articulated an appeals process, but one could be easily devised.

[The Chair, Liberal, Paul Szabo]

Madame Thi Lac, s'il vous plaît.

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

Good afternoon, Commissioner. We are pleased to welcome you back a second time in quite a short period of time.

You have made 12 recommendations. You have recommended that you be given order-making power regarding administrative complaints. How would you distinguish between administrative complaints and other types?

[Robert Marleau]

Section 30 of the act defines very clearly what requesters can complain about. The first heading is refusals—they may be partial, complete or deemed, because the answer was not provided within the timeframe. Other complaints are described as administrative, because they have to do with preparation, photocopying and other fees, the format in which the information was requested, the preferred language, and so on. The act defines what administrative complaints are very clearly, but there is no recourse to the courts for this type of complaint.

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

Why do you not want to have this type of order-making power for all of the complaints you receive? Why do you want it only for administrative complaints?

[Robert Marleau]

I decided I would proceed on a step-by-step basis with respect to the order-making power for all complaints. First of all, there is a gap in the legislation regarding administrative complaints. There is a lack of clarity. The commissioner may make recommendations but does not act upon them, except for a public censure for non-performance.

Complaints regarding refusals are part of a very different dynamic within the legislation. In jurisdictions where order-making powers are absolute for all complaints, there is increased reliances on the courts. For example, the commissioner in Alberta faces the greatest number of court cases regarding the orders made. The Federal Court of Appeal has served Canadians well—both requesters and the government. We should not throw out the baby with the bathwater. This recourse in case law should continue. This involves a public discussion of the issue, rather than an order by the commissioner on a specific point which remains private under the act until all the steps in the procedure are completed.

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

Do you have the resources you require at the moment to perform the new duties you are requesting?

[Robert Marleau]

The 12 recommendations should make it possible to work more effectively and to reassign resources to new duties. For example, if I get fewer complaints about requests for extensions, I can devote these resources to substantial complaints about refusals. Generally speaking, however, we will require more resources.

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

You have also recommended that the act extend deadlines only when requesters submit multiple access to information requests. Does section 9 not authorize you to request an extension?

[Robert Marleau]

It is the department at issue that seeks an extension. For the time being, section 9 of the act requires the department to request an extension or to inform me of an extension for each request submitted by the same requester, and this adds to the paperwork involved. The department does not ask me for an extension; it simply takes it. When I am doing my investigations, I can combine them.

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

However, you said that only one person knows the name of the requesters. Under your recommendation, how could one person know whether a requester has submitted a number of requests? Will there be information overlap? Will the officials in the various departments be talking to each other? At the moment, there is only one person who knows the requester's name. How can you apply this measure, if only one person knows the name of the requesters?

[Robert Marleau]

We're talking about multiple requests made at the same time by the same requester to an institution.