Information & Ethics Committee on March 11th, 2009

[David Loukidelis]

You're quite right to point out that the situation federally does differ from the situation in British Columbia in terms of the proportion of commercial requesters.

Under the British Columbia system, the schedule of fees that are set out in regulations to our law enables public bodies to charge commercial requesters--requesters who make an access request for commercial purposes--the actual cost of providing access, whereas with other requesters the fees are not based on cost recovery.

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

That's very interesting. I don't believe the federal system currently provides that kind of distinction between commercial and non-commercial users. That's certainly something I think we should examine.

I wonder if you could also comment on what percentage of the cost of providing information in British Columbia is recovered through user fees. And perhaps you could comment on the difference between commercial users and non-commercial users.

[David Loukidelis]

My clear sense of the proportion of actual cost that is recovered from fees is that it is minimal. Certainly it's not substantial.

I think that's for a variety of reasons. Some public bodies--and we do cover over 2,000 of them, at all levels in British Columbia--simply have a policy decision that they're not going to charge for access to information. Again, we have a high number of individual requesters seeking their own personal information, and under our law they cannot be charged for access to their own information. In the main, as a key component of the democratic governance system that has evolved in Canada, I think it's also a recognition that these laws are not intended to be on a commercial footing. That's subject to what I said about commercial requesters, of course.

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

Thanks very much for that.

I'd like to pose a question to Mr. Rankin.

Mr. Rankin, I know you are a lawyer in private practice, as I was. Certainly in my practice, over 25 years, I was often in the situation of requesting information on behalf of clients for preparation of memos of law, and also preparation of cases.

Could you comment on your view about cost recovery in relation to information from the government in the same way that lawyers often pay, for example, fees for legal search services when they're putting together memos of law?

[Murray Rankin]

Thank you for your question.

Of course many lawyers, as you point out, use the legislation as a discovery tool. They may get a certain amount of information from traditional civil litigation rules involving document discovery or examination for discovery, but often when the government is a party, getting information from the relevant agencies is critical to the case. It serves as a check on what you might have received through the other sources I mentioned.

I haven't given any thought to the fees that should accompany that. If it were the lawyers themselves, you might treat them differently than if it were their clients, with the clients having a right to information.

I wonder if we would create an unnecessary barrier by subjecting the lawyers to a different set of rules from what their clients are subject to. It might be inefficient to regulate that.

However, I must say that's a question I've never put my mind to.

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

Do I have any more time, Chair?

[The Chair, Liberal, Paul Szabo]

I think we're going to have to move on.

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

Thank you.

[The Chair, Liberal, Paul Szabo]

Let me advise the members where we are right now. I have Mr. Siksay, Madam Simson, Mr. Dreeshen, and Mrs. Mourani. Then I think we'd also like to give our witnesses an opportunity for final words. And then we have one other item, the motion with regard to the Oliphant Mulroney-Schreiber inquiry that we have to deal with before we leave. If we put all that in perspective, I think we will just get it in, if we keep everything nice and tight.

Mr. Siksay, please.

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

Thank you, Chair.

This is probably a question for Mr. Rankin, given that it relates to a complaint that Mr. Tromp has before Mr. Loukidelis. It's on the issue of crown copyright and how it's been used to seemingly place limitations on the use of information obtained under access to information.

Mr. Rankin, can you tell us whether you have any concerns about this? I gather it's a Copyright Act issue, not necessarily an ATI issue. Would it be an appropriate area for the committee to review as well, in your mind?

[Murray Rankin]

Thank you. As you suggested at the outset, I won't speak to the particular case to which you alluded. I must say that I find disturbing any use of crown copyright to thwart rights that are provided to citizens of Canada under the Access to Information Act or its provincial equivalents. It seems to me wrong-headed. I don't understand it.

If there is an issue here that needs to be addressed, then putting a simple section in the Access to Information Act that says, “notwithstanding any rights under the Copyright Act that might pertain to crown records, the rights are as follows”.... If that's necessary to do, let's do it.

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

Thank you.

I want to ask also about the whole issue of the requirement to keep records and of standards in records-keeping. I understand from comments that Mr. Marleau made to us that this may be an issue of the archives act federally, but I'm wondering whether the experience in British Columbia tells us anything about what should be done or, if you have suggestions from your experience of the federal act, whether there are shortcomings in it or whether this is something that should be included in ATI reforms specifically.

That question is for anybody.

[David Loukidelis]

I have recommended in the past that there be a legislative duty to document here in British Columbia—not, I would argue, an onerous one by any means, but some duty on the part of public servants to record actions and decisions and reasons therefor. One can control this by prescribing certain criteria that would surround the extent of it. Again, if you were making a policy decision or taking a decision to embark on a program or cancel it, it seems to me there should be some duty to document. This is not just a question of creating records for the purposes of openness and accountability. One could argue, and I do argue, that it is a question of good governance and good government operation, and it fits into this larger context that I believe archivists and librarians and others are deeply concerned about in relation to the information management and information holdings of governments across the country, and to the state of information management legislation and practice here in Canada.

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

I have one final question, Chair.

Mr. Rankin, in the paper of yours that was distributed to the committee, you talk about the issues around outsourcing and alternative service delivery whereby government services have been outsourced to private sector organizations, and about ATI possibly not applying in those areas. Could you talk about whether you have any experience of how this is handled federally and tell us, if you have any comments on that situation for our deliberations around access to information?

[Murray Rankin]

Thank you. The issue is rather straightforward. If the government chooses to outsource certain functions that in the past have been government functions, does the law continue to apply? That's the threshold question that is being addressed.

Commissioner Loukidelis addressed that issue, raising concerns about it to a committee that studied the B.C. legislation, and the government now routinely confirms in contracts that public bodies and their contractors, when they produce records, are subject and continue to be subject to the legislation. I think that needs to be confirmed in legislation.

There are a number of ways it can be done. Certain American states define by statute what are public records and public services, even if they're provided by an outsourced government service provider. To me, as we talk about this being third-generation legislation that we hope your committee will recommend, this is an issue that really ought to be addressed.

There are some additional things in my paper that I would commend to you for consideration.

[The Chair, Liberal, Paul Szabo]

Thank you.

Madam Simson, please.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Thank you.

I just have one final question, and I want to make sure that I'm summing up what I've heard from all three of you gentlemen. I appreciate it; I have gotten a great deal of insight into this.

I believe I heard Mr. Tromp say that 20 years of studying this particular issue of reforming the act is more than enough. What I've taken away is that, really and truly, this is an easy fix, but it requires political will. Am I safe in assuming that, because we're lagging so far behind the rest of the world in access to information, you would categorize this as a significant human rights violation—to not act?

[Murray Rankin]

I'm not sure whether that's directed to Mr. Tromp, but may I just—

[Michelle Simson, Liberal, Scarborough Southwest, ON]

No, it's to all three of you.

[Murray Rankin]

Thank you for your comments. I agree with you entirely about political will. It's a matter of great sadness that Canada has not been able to rise to the occasion for over 25 years. I commend the current government for the Federal Accountability Act and the extension of the law to a number of additional agencies. I think that needs to be said and reinforced. However, it is a disturbing fact that our law does not pass muster vis-à-vis other Canadian laws or other international laws. We simply need to acknowledge that we've fallen far behind, and that's why so many of us are delighted that your committee has taken on this challenge.

Our courts have said that access to information is a quasi-constitutional right. The human rights acts of Canada are also termed quasi-constitutional. To give you an idea of just how important this is, access to information is of the same order of importance, our courts have said, as human rights legislation. That is, I think, why your question is so well placed and why the work of your committee is so important and timely.

[Stanley Tromp]

I'll just add that the required action is simple. The Prime Minister in 2006 had the foresight to see what needed to be done, in the eight promises on ATI Act reform that he raised in the election campaign. If he fulfilled these, they would mainly raise Canada up to global standards.

If he had the foresight to see that in 2006, then why not today?

[The Chair, Liberal, Paul Szabo]

Did you have any further questions, Madam Simson, or would you like us to move on?

[Michelle Simson, Liberal, Scarborough Southwest, ON]

By all means, you can move on.

[The Chair, Liberal, Paul Szabo]

Okay.

Next is Mr. Dreeshen, please, from Alberta.

[Earl Dreeshen, Conservative, Red Deer, AB]

Thank you very much, Mr. Chairman.

And thank you very much, gentlemen, for appearing before us today.

I have a couple of questions, and one of them regards what you mentioned, political will. We've been in a minority government situation, and I suppose as a new member I'm starting to see how some of this works and how easy it is to get some of the things through that you might want to have happen.

We were speaking with Mr. Marleau a few days ago about the report cards. They are somewhat skewed by the volume we have. It was mentioned earlier that the committee was told there has been an overwhelming number of complaints by three individuals, and in fact that nearly 50% of all the requests come from 10 individuals. You mentioned not having that same kind of concern as far as British Columbia is concerned. If you had that type of problem, what strategies would you be using and what strategies would you suggest we use to handle this concentration of activity?