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.
Bloc
Ève-Mary Thaï Thi Lac Bloc Saint-Hyacinthe—Bagot, QC
At our meeting last week, Commissioner, I asked you whether some of the repeated requests for information could be accounted for by the fact that passages in the documents people received had been blacked out. We're talking about multiple requests, but it may be the same requesters submitting repeated requests.
How many requests for the same information by the same requester could be described as follow-ups to the initial requests?
Information Commissioner, Office of the Information Commissioner of Canada
It is difficult for me to give you a figure, because I do not receive the complaints. I have no idea of what is happening in the system with respect to the situation you describe. I can see from the complaints that some requesters regularly ask for the same information. They are tracking a particular issue. The request is not always the same. Sometimes it covers a slightly different period than the one mentioned in the original request. When requesters receive certain information, it often leads them to request more. However, if they are not satisfied with the information, if it has been heavily redacted, they complain to us and we conduct an investigation.
Bloc
Ève-Mary Thaï Thi Lac Bloc Saint-Hyacinthe—Bagot, QC
We hear that the number of requests is growing and that there are delays in responding, but the cause could be that the information provided is so watered down that the requesters often have to submit additional ATI requests, even though the initial request was clear. The problem was that they did not receive an adequate response.
Information Commissioner, Office of the Information Commissioner of Canada
The situation you describe does happen. However, it is not necessarily the rule. Since the amendments under the Federal Accountability Act, the head of the institution has a duty to assist. If the requester asks for information and the request is not clear enough, there is a duty to assist the requester in finding the document or clarifying the request so that information can be provided within the timelines set out in the act.
So the duty to assist has been added to the act. There is supposed to be a dialogue. Some requesters ask for all the emails between the Minister of the Environment and the deputy minister of the Environment with all their provincial colleagues between 2004 and 2007.
Is the requester looking for something specific? In some cases, if requesters are prepared to be a little more specific, they will get faster service. In other cases, it will take much longer, depending on the scope of the request.
Bloc
Ève-Mary Thaï Thi Lac Bloc Saint-Hyacinthe—Bagot, QC
Last week I also asked some questions about the complaints you received—those that received priority and the others. I had some fun by pointing out that complaints from parliamentarians were only in the first category.
There is something I would like to know. What percentage of these complaints stems from the fact that there was no follow-up or that inadequate information was provided in response to the initial request?
Information Commissioner, Office of the Information Commissioner of Canada
It is difficult to give you an exact figure. We have categories of requests, those that received a partial or complete refusal, and those regarding administrative matters. There's about the same number of each type. However, there are slightly more administrative complaints—52% or 53%—and 46% or 47% for refusals. The complaints about refusals we receive make up about 50% of the cases.
Bloc
Ève-Mary Thaï Thi Lac Bloc Saint-Hyacinthe—Bagot, QC
You say you want legislative reform. We agree with you, and think this is absolutely necessary.
When you talk about legislative reform, should there not be some provision that would require departments to be more transparent? Is this not part of the solution?
Information Commissioner, Office of the Information Commissioner of Canada
My colleague will add something on this.
Assistant Commissioner, Policy, Communications and Operations, Office of the Information Commissioner of Canada
I just wanted to mention that when we did the report cards, one of the commitments made by the office was that in reviewing complaints, we would evaluate to what extent the disclosure was complete, accurate and based on the act.
That is something we are not doing at this time, and that we have said we would do in future. Even though we have some complaints that are settled, and are therefore valid, in the case of refusals to disclose, we do not have adequate information in our files at the moment to determine whether the departments, the institutions, applied the exemptions properly and whether they disclosed the maximum amount of information. That is something that must be done.
Liberal
Borys Wrzesnewskyj Liberal Etobicoke Centre, ON
Thank you.
Mr. Marleau, could you give us a definition of cabinet confidences?
Information Commissioner, Office of the Information Commissioner of Canada
Essentially they're in section 69 of the act.
Liberal
Borys Wrzesnewskyj Liberal Etobicoke Centre, ON
In particular, what types of cabinet confidences would be outside the ability for people to access through an ATIP process?
Information Commissioner, Office of the Information Commissioner of Canada
For instance, memoranda to cabinet, which are essentially the mechanism by which cabinet is seized of a new proposal coming from a department. Some of the discussion paper is in and around, but we've had a debate over the years about what working papers, discussion papers, are. The records of their deliberations, deliberations of ministers, as such, are excluded--those kinds of documents. Also communications between ministers about cabinet matters.
Liberal
Borys Wrzesnewskyj Liberal Etobicoke Centre, ON
So there's some clarity, but there's flexibility as well.
What about timelines? What types of cabinet confidences--and at which point in time--would it then be in the public's interest to make available? Is there any reference to that?
Information Commissioner, Office of the Information Commissioner of Canada
If you make it a discretionary exemption, as we're proposing, then it would be cabinet's call. It would be the Clerk of the Privy Council's call. Right now the clerk doesn't have a choice in his advice to the Prime Minister. He simply has to say, “These are excluded; they fall within the exclusion.” But if it's discretionary, the pressure is on to look at the request, look at the consequences, at what the injury might be, what the timeline might be.
Liberal
Borys Wrzesnewskyj Liberal Etobicoke Centre, ON
So we can currently end up in this ludicrous situation, for instance, where a year ago I made an ATIP request to Heritage on discussions about funding to various multicultural groups, and either 46 or 47 out of 49 pages came back blank because of cabinet confidences. It was even more ludicrous, because I was requesting information not from the time when the Conservatives were in government, but when the Liberals were in government. In fact, the ministers of that time were more than happy to publicly talk about these various requests and the moneys involved, but we couldn't get the documents because the Conservatives were actually blocking them due to cabinet confidence, referring to a period of time when the Liberal government was in power.
Isn't it high time that even when it comes to cabinet confidences, we tighten up this discretionary ability of the Privy Council, ministers, and the PMO to blank out page after page of requests? Don't you agree it's time that we put clear limits on what cabinet confidences are, what's allowed, and the timelines for the sake of transparency in government?
Information Commissioner, Office of the Information Commissioner of Canada
The current legislation has a 20-year timeline before any release. Clearly we're recommending that be revised.
The legislation proposed under the Open Government Act reduces it to 15 years. Many jurisdictions have it at five years. If it's a discretionary exemption, it's cabinet's call that maybe it would be in the public interest to release something before those timelines are reached.
Right now I can't criticize the clerk for saying this is excluded, because it is under the law. He doesn't even have the choice of recommending it be disclosed; it says “excluded”.
Liberal
Information Commissioner, Office of the Information Commissioner of Canada
That's right.
Liberal
Borys Wrzesnewskyj Liberal Etobicoke Centre, ON
There was an expansion to include crown corporations, and it has caused some bureaucratic difficulties. What about arm's length non-profits formed by the government like airports, for example? The Greater Toronto Airport Authority has no shareholders to hold them to account. They are at arm's length from the government and there is no access to internal information, yet taxpayers would be on the hook for billions upon billions of dollars if things went wrong.
Do you have any recommendations when it comes to those types of structures the government has put in place through legislation?
Information Commissioner, Office of the Information Commissioner of Canada
Some of it is accessible indirectly through transport issues--airports, air traffic control issues, and those kinds of things. Even though they are not directly funded by government, the regulatory role of government comes into play.
As I said earlier, follow the dollar. The taxpayers are paying for it, so they have the right to ask the question and get an answer, whether it's about the Wheat Board or other boards that have been brought into the scope of the act. I think to follow the dollar is your best course.
Liberal
The Chair Liberal Paul Szabo
We have had an interesting discussion and it's going to carry on.
Mr. Marleau, you said at the last hearing that if the act was not amended--and I don't want to put words in your mouth--it would not be able to achieve its objectives, as it currently exists. That was a pretty serious position to take--that the act is not working and therefore Canadians are not being served.
Despite everybody's attempt to fix it in other ways, it appears that the only effective way to deal with this, if there are going to be changes to the act, is through a bill presented by the government to Parliament. Is that your view?
Information Commissioner, Office of the Information Commissioner of Canada
Yes, and I think I said at the last meeting, and I certainly said it at my press conference, that the kind of change that is required here will require a considerable investment in resources--and steering, of course--that will require a ministerial initiative with a royal recommendation attached to any such bill. I don't think we can fix it just by defining new processes administratively within the statute without considerable investment.