Information & Ethics Committee on March 11th, 2009

[The Chair, Liberal, Paul Szabo]

Order.

This is the ninth meeting of the Standing Committee on Access to Information, Privacy and Ethics. Pursuant to Standing Order 108(2), we are working on our study of the Access to Information Act reform.

Today we have three witnesses on this matter who are appearing before us by video conference. They include Mr. David Loukidelis, Information and Privacy Commissioner of British Columbia since 1999. He has written numerous decisions on ATIP, both in the public and private sector. He is also engaged in securing full implementation of the ATIP legislation in his province. He is also a professor at the University of Victoria, where he teaches ATIP law.

We also have Mr. Stanley L. Tromp. Mr. Tromp is a journalist who became very familiar with the process of information requests while a reporter for the UBC student newspaper, The Ubyssey. His Freedom of Information Act request for the UBC Coca-Cola marketing contract in 1995 prompted a five-year legal dispute, a successful B.C. Supreme Court appeal, and an influential ruling on disclosure by the B.C. Information and Privacy Commissioner. He initiated the FOI caucus of the Canadian Association of Journalism and was one of the founders of the group of B.C. journalists for freedom of information in 1998. His stories, informed from B.C. FOIPP Act requests, have been published in the Globe and Mail, the Vancouver Sun, the Georgia Straight, the Vancouver Magazine, The Vancouver Courier, and many other publications.

Finally, we have Mr. Murray Rankin. He is a partner with the law firm Heenan Blaikie, where he practises and focuses on public law issues with particular reference to aboriginal law, environmental law, and information and privacy law. His interest in freedom of information and privacy issues has enabled him to work at the OECD in Paris in its directorate of science, technology, and industry on trans-border information flows. His résumé goes on extensively, but he has been a consultant to the House of Commons committee that conducted the reviews of the Access to Information Act and Privacy Act in 1987 and 1992.

Welcome, gentlemen. I understand two of you are in Victoria, and one of you, Mr. Tromp, is in Vancouver.

We have't talked in too much detail about how we'd like to proceed with you, other than to say we would like to have your input on a number of aspects, particularly your view and assessment of the condition of the access to information system as it stands now and of the legislation, your commentary on some of the consequences of that condition, and maybe some of the solutions, both administrative and legislative, to help us understand better the urgency of the work before us.

What I'm going to do is give you five to seven minutes each to make some preliminary comments to the committee. Then I'm going to turn the floor over to the committee members to pose questions to you based on the representations you've made.

We're going to start with Mr. David Loukidelis, commissioner for access to information and privacy of B.C.

Mr. Loukidelis, please.

[David Loukidelis, Commissioner, Information and Privacy Commission of British Columbia]

Thank you, Chair, and thanks to members of the committee for the opportunity to join you today by video from Victoria to share some perspectives from British Columbia on reform of the access to information law federally.

My work since 1999—in the last millennium—as commissioner here in B.C. has only strengthened my conviction that a well-crafted access to information law is absolutely indispensable to the proper functioning of any democratic government. These laws are entirely consistent with the theory in practice of parliamentary democracy and have indeed become a keystone of the foundation upon which our governments are accountable and open.

Of course all laws must be periodically reviewed and amended, whether to correct errors or oversights or to keep pace with changing needs and opportunities. It has been a generation now since Parliament's comprehensive review of the law--the Open and Shut report, to which the chair has already referred--recommended reforms to the federal act. Since then numerous reform initiatives have come and gone.

Since the act was passed in the early 1980s, many provinces and territories have passed much more modern access to information laws. We are now, I think it's fair to say, in the third generation of access to information laws in Canada. The Access to Information Act is, plainly put, a first generation law that has unfortunately not kept pace with the times. I believe, with deference, that this committee has an excellent opportunity to recommend reforms to improve the law in important, practical, and achievable ways. I thank the committee for its interest in the law, which again I say is a key tool in a democratic toolbox.

I would like to touch now on recommendations made to you by my colleague, Robert Marleau, Information Commissioner of Canada. With two exceptions, I don't propose to speak in any detail to each of the recommendations that he has made to you. He has, of course, already done that in appearing before you. I will say that his recommendations would, in my view, introduce important features that are already found in access to information statutes in British Columbia and elsewhere across the country.

[The Chair, Liberal, Paul Szabo]

Excuse me. I apologize, but one of the things I failed to mention to you is that we are providing simultaneous translation through this feed here. I would ask if you would slow down, a little bit slower than your normal talking pace, so the translation can be done effectively.

Please proceed.

[David Loukidelis]

Of course. I'd be happy to. My apologies.

Again, with two exceptions, I don't propose to speak to each of the recommendations that Monsieur Marleau has made to the committee. I will say that those recommendations would introduce important features that are already found in access to information laws in British Columbia and elsewhere across the country, notably, but not limited to, Quebec, Alberta, and Ontario.

In this light, his recommendations would, in my view, address many problems with the existing legislation federally, notably in the crucial area of oversight and enforcement by the commissioner's office. These are important recommendations because an access to information regime is only meaningful if there's effective independent oversight of compliance.

The first specific point that I would like to make about the recommendations before you has to do with order-making powers. At present, the Access to Information Act provides for a de novo review by the Federal Court of an institution's refusal of access to information, but not, as I understand it, a review for administrative disputes such as fees or time extensions.

In this context, I fully understand why my colleague has made recommendation 3 in his set of recommendations, which would provide meaningful oversight powers to his office in matters of fees and time extensions and thus complement the existing role of the Federal Court respecting refusals of access to information.

In B.C., by contrast, I have full order-making power, as do commissioners in Quebec, Ontario, Alberta, and Prince Edward Island. In effect, we function as administrative tribunals, issuing binding orders that either uphold a public body's decision to refuse access or order disclosure of more information.

Now, this role extends to appeals regarding fees and time extensions, I should add, as well as other actions or decisions of public bodies under our access law. Our orders are fully subject to judicial review by our superior court, not de novo appeal, on the usual administrative law grounds, thus providing an element of accountability and a check and balance on our action and decisions.

Speaking only to the situation and experience in British Columbia, we have found, over the 16 years of our office's experience, that order-making power has served, in fact, to encourage dispute resolution. Using mediation, we consistently resolve some 85% to 90% of the access appeals that come to our office.

Lawyers generally don't get involved early on. In a small minority of cases where we do hold formal appeal hearings, which are held in writing, I might note, we're able to issue a reasoned, precedent-setting decision that educates both parties, the public, and government institutions. We are, on average, taking a judicial review only a few times a year, although the possibility of judicial review, I can assure you, focuses our attention on the quality of the decisions that we issue.

My second point relates to Monsieur Marleau's recommendation 7 that the access law should apply to records relating to “the general administration of Parliament”. On that, I will say only that this is not at present the case in British Columbia, although it is in Quebec. I certainly fully support that recommendation and will be making a similar recommendation on the upcoming legislative review of British Columbia's law, which is slated to begin this fall.

Before inviting questions from the committee, I would like to make two further points, by way of recommendation, for the committee's consideration.

The first point has to do with routine disclosure of records. I have long taken the position that a comprehensive program, mandatory in nature, of routine proactive disclosure of records, without access requests, should be made obligatory by law. Such an approach of proactive disclosure has two advantages. First, routine disclosure more meaningfully implements the law's goals of openness and accountability. Second, routine disclosure could reduce the costs of freedom of information by avoiding the more expensive business of responding to specific and often repeated access requests for the same information.

Mandatory disclosure would make a major contribution to a culture promoting transparency [Technical difficulties - Editor] which must remain up to date and be approved by the Information Commissioner.

The United Kingdom approach has much to commend it, and similar schemes have been recommended in Quebec and British Columbia. I note, also, that in 1998 the then-President of the United States mandated creation of electronic reading rooms so that a system of proactive disclosure could be implemented. I urge the committee to recommend a U.K.-style scheme of routine proactive disclosure without access request as part of a forward-looking and cutting-edge Access to Information Act reform.

The second specific recommendation I would like to raise with the committee has to do with access impact assessments. Public institutions and businesses across Canada have, for a number of years, used privacy impact assessments that are designed to assess the impact on privacy of proposed programs, laws, or systems. They allow mitigation or avoidance of impacts on privacy from the very outset, and as governments move more and more into the electronic realm and out of the paper world, I would argue that it is critically important that openness and transparency not suffer as new electronic information systems are adopted and expand.

It is not an option for public institutions to decline to grapple with ensuring that information rights are as meaningful in relation to large-scale electronic information systems as they are in relation to paper-based record-keeping systems. Access requests under current laws increasingly test the limits of usefulness of those laws, and public institutions ought to ensure that their electronic information systems are designed and operated in a way that enables them to provide access to information under the law.

The public has a right to expect that new information technology will enhance, not undermine, information rights and that public institutions are actively and effectively striving to meet this objective. A legislated requirement to conduct access impact assessments at the earliest stage possible of system design, or of the consideration of new laws or programs, will help ensure access to information is designed in, not forgotten and then later frustrated. I urge the committee to recommend that access impact assessments be made a feature of the Access to Information Act and the federal scheme of access to information.

In conclusion, I thank the committee for inviting me to appear today and would welcome your questions when appropriate.

Thank you.

[The Chair, Liberal, Paul Szabo]

Thank you very much, Mr. Loukidelis.

We're going to hear from the other two witnesses, and that way we won't be covering the same ground with each, and we'll keep the discussion focused for all.

We're going to move now to Mr. Murray Rankin.

Mr. Rankin, please.

[Murray Rankin, Lawyer, As an Individual]

Thank you, Mr. Chair.

May I ask if you can hear me okay?

[The Chair, Liberal, Paul Szabo]

Yes.

[Murray Rankin]

Fine. Thank you.

My name is Murray Rankin and I am a lawyer practising in Victoria and Vancouver, British Columbia. It's a great honour to have been invited to testify before the committee today.

On a personal note, I must say that greater government transparency has been an issue of concern to me since university. I helped exercise political pressure for the first Access to Information Act before it was proclaimed in force.

As a representative of the Canadian Bar Association, I completed my thesis at Harvard Law School on the subject. I was greatly [Technical difficulties - Editor]

[The Chair, Liberal, Paul Szabo]

Excuse me, Mr. Rankin.

[Murray Rankin]

... to the House of Commons committee that prepared a report entitled—

[The Chair, Liberal, Paul Szabo]

Excuse me, Mr. Rankin.

[Murray Rankin]

Yes.

[The Chair, Liberal, Paul Szabo]

We have a slight technical problem.

[Murray Rankin]

I'm sorry. May I continue? Perhaps the translation is not—

[The Chair, Liberal, Paul Szabo]

No. I think it's the quality of the sound.

Just give us a moment.

Does the translation need to have Mr. Rankin just say something in French? Speak a little French, and we'll see how the translation works.

[Murray Rankin]

Perhaps I can continue in English. Would that be easier?

[The Chair, Liberal, Paul Szabo]

Could you proceed with a few words in French and we'll see how the translation picks up here?

[Murray Rankin]

It may be more efficient to do it in English, if it's difficult for me as well to hear the.... Maybe I can just say—

[The Chair, Liberal, Paul Szabo]

No, it's okay.

We've got a problem. We want to fix it, so give us a couple of words in French. Let's just see if the system works from here.

[Murray Rankin]

As I was saying, I helped bring political pressure to bear with respect to the first Access to Information Act [Technical difficulties - Editor]

[The Chair, Liberal, Paul Szabo]

Okay.

We do have a problem that we can't fix very quickly. The sound quality in the booth is not clear enough for the interpreter. If you could proceed in English, I think we'll pick up the French translation for our francophone colleagues.

[Murray Rankin]

I will say that if questions are posed in French, I will do my best to answer them in that language.

Let me just say this. I have in my hand a document that was prepared in 1987 by a committee very much like yours. I was proud to have been one of the research directors on the Open and Shut report, as it was called in 1987.

Interestingly, on that committee was a younger member of Parliament by the name of Rob Nicholson, now the Honourable the Minister of Justice, as well as a member from Burnaby named Svend Robinson and a gentleman from Montreal, Notre-Dame-de-Grâce, Mr. Warren Allmand. They produced a unanimous report containing dozens of recommendations. I regret to say that absolutely nothing resulted from their work, now some 22 years ago. Indeed, very few legislative changes at all have emerged over the years.

On the basis of this experience, therefore, you will understand that I am not optimistic about reform efforts in respect of the Access to Information Act. Yet, in the immortal words of the poet Alexander Pope, “hope springs eternal”.

I have given the clerk of your committee a paper that I prepared in both official languages last year and delivered at the Public Policy Forum in Ottawa. It summarizes the things I would propose for your consideration.

Let me say, however, at the outset that I am in substantial agreement with most of the 12 recommendations that information commissioner Marleau has provided to your committee. And of course I am in general agreement with the draft bill prepared by the former commissioner, Mr. Reid, which I am pleased to see has been taken up by a number of members of Parliament now. However, I sincerely hope that it is a government bill that emerges as a consequence of your deliberations. In my view that will signal the necessary support from the government for long-overdue reform of this act.

My message is very much in line with the mandate of your committee, namely that the time for study is over and the time for action is now. The Access to Information Act is over a generation old, over 25 years of age. It was brought in before computers were widespread, before the use of the Internet, e-mail, and the like. As Commissioner Loukidelis has told you, it is a first-generation act that you have before you; the world has moved on, and it is time for reform.

I look forward to your questions.

[The Chair, Liberal, Paul Szabo]

Thank you, Mr. Rankin. Your paper was circulated in advance to the committee to read. I had a look at it last night, and it is excellent, including a number of exhibits that you sent along as well. I thank you for that.

Mr. Tromp also sent us a paper that was very concise and helpful to the committee. We appreciate that advance information.

We will now move to Mr. Stanley Tromp.

Sir, please proceed.

[Stanley Tromp, Coordinator, Canadian Association of Journalists]

Thank you, Mr. Chair.

Greeting to the committee members. I am very pleased and honoured to be speaking to you today from Vancouver.

I shall spare you my French language skills, of which I sadly have almost none—although I am trying to change that.

I am the author of the book Fallen Behind: Canada’s Access to Information Act in the World Context. I believe the clerk has distributed a four-page summary of the report to you, and I have also posted a French translation of it to my FOI website. I hope you may find it to be a useful guide in formulating questions.

The report and the summary largely speak for themselves, yet there are some additional points I wish to advance.

Last week the Information Commissioner spoke to you on the need to align our ATI Act with more progressive regimes, both nationally and internationally. As he said, Canadians expect a common set of access rights across jurisdictions. Indeed, that is so. The commissioner's 12 recommendations are worthwhile, but we need to go much further.

I support the passage of either of the two private members' ATI reform bills of 2008, both of which were based on Mr. Reid's open government act, but with the crucial addition of full order-making powers for record release.

Why this report, Fallen Behind? Most of the discussion on reform of the ATI Act had become too narrowly focused and circuitous, so I wished to consider another viewpoint on the matter. We need, instead, to continuously reconsider and reform the ATI Act in the light of changing international and historical contexts. This approach could profoundly and positively alter what Canadians come to expect, and perhaps even demand, of their own rights to information.

Most relevant here is the 1999 document entitled The Public's Right to Know: Principles on Freedom of Information Legislation, which describes the generally accepted international FOI standards. These principles were drafted by Toby Mendel, head of the law program of the London-based human rights organization ARTICLE 19, and were then endorsed by the United Nations.

When reading this document I was startled and then deeply troubled to discover that Canada's ATI Act, even the most recent amended version, fails the principles on 12 points. Ironically, as the world moves forward, Canada appears to be marching in the opposite direction.

I then found other organizations with similar standards, such as the Commonwealth Secretariat and the Council of Europe.

I compiled and cross-referenced every relevant document I could find; that is, the text of 68 national FOI laws, 29 draft FOI bills, 12 Canadian provincial and territorial FOI laws, and the commentaries of 14 global and 17 Canadian non-governmental organizations. I compared all of these with the current ATI Act and the Prime Minister's eight unfulfilled ATI Act reform promises of 2006. The key topics I entered into a comparative FOI Excel spreadsheet to create the “World FOI Chart”, which is this report's foundation. You can read the chart on my website.

Most Commonwealth nations have moved far ahead of Canada, even the United Kingdom, ironically, which is Canada's model for parliamentary secrecy, and which passed an FOI law nearly two decades after we did. Canadian bureaucrats, to deter ATI reform, still invoke the great tradition of Westminster-style confidentiality. If so, how do they explain why the U.K.'s Freedom of Information Act 2000 grants the information commissioner there the power to order record release, contains a broader public interest override and a harms test for policy advice, and covers a vastly wider range of quasi-governmental entities, all of these features lacking from our ATI Act?

The best Commonwealth examples for Canada to follow for inspiration are, I believe, the access laws of India and South Africa, in most, but not all, of their respects.

In the preface to my report, Mr. Mendel wrote:

the Access to Information Act and its implementation in practice are in urgent need of reform. Otherwise, Canada’s international reputation as a country with a strong commitment to participation and human rights...[is] at risk.

The incentive for transparency cannot succeed without direction from the top. Yet in this country, one cannot recall any sitting prime minister speaking out on the value of an FOI law since the short reign of Joe Clark in 1979. By contrast, U.S. President Barack Obama, on his very first day in office, issued an executive order to reverse the default secrecy position of his predecessor. The new president very sensibly wrote:

All agencies should adopt a presumption in favour of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government.

The required action in Canada is simple: the Prime Minister needs to enact the eight promises on ATI Act reform that he raised in the 2006 election campaign. If fulfilled, these would raise Canada up to global standards, mainly.

I believed in the sincerity of these ATI reform pledges, and I was chastised by others as naive. Yet just after the Conservatives were elected, many observers were truly shocked to see the new prime minister so sharply reverse his previous position on transparency.

Of the eight promises, this government is very proud that half of one of them was kept--that is, the addition of crown corporations and several foundations to the act's coverage. But the other seven and a half pledges were not kept in Bill C-2, the Federal Accountability Act. ATI reform has been exiled yet again to the graveyard of needless study, and that is how the matter stands in Canada today. Additional study is not required. When the wheel works well elsewhere in the world, there is no need to reinvent the wheel here.

To be fair to all, every party has at one time or another pledged to implement open government, yet none has fully delivered. I was also disappointed that, unlike the Conservatives, the Liberals made no mention at all of ATI reform in their 2006 election platform. We still await a detailed policy statement on the ATI Act from the current Liberal Party leader.

Historically, and around the world, unelected senior bureaucrats and crown lawyers have often staunchly opposed the passage of effective FOI laws, by warning ministers of speculative and illusory harms that could occur from their supporting greater transparency. By “bureaucrats”, I mean those at the senior policy-making level, not the operational level. Such, indeed, would be an example of the tail wagging the dog.

Does the Canadian bureaucracy still expect us to believe that the other nations of the world, and our provinces, have all done it wrong with their FOI laws, and that Ottawa alone, with its 25-year-old ATI Act, has done it right? The justice department's 2005 discussion paper states: “...there is nothing seriously wrong with the Access to Information Act as it is today”.

This claim has very little connection with the current global reality, and it is simply incorrect. In their view, apparently, our current ATI Act, with its exemptions, and its lack of a harms test, or a general public interest override, a lack of order power, and year-long response delays, is working quite well and should not be changed. Yet is it acceptable to them that more than 100 such quasi-governmental entities are still not covered by the ATI Act, including Canadian Blood Services and the Nuclear Waste Management Organization, whose exclusion could result in harm to public health and safety? Is it acceptable to them that two weeks for an FOI response is the global legal standard, and that in Canada some agencies grant themselves a 240-day extension, which is three times the previous average? In reply to my last ATI request, it took an incredible nine months to obtain 20-year-old cabinet meeting minutes.

Instead, I ask them to act in the original spirit of the law and to help parliamentarians raise our ATI Act fully up to world standards. To do otherwise is to place Canada's cherished global reputation for democracy and human rights at serious risk.

Times have indeed changed much since 1982, and our best hope is that a strong bureaucratic support for major reform will be seen in the government's next ATI Act discussion paper. One also hopes that the current committee membership will sustain the full reform drive of the former committee. In its report of November 15, 2005, the committee stated:

This Committee believes that after almost 20 years of pressure for its reform, there can be no further delay in the modernization and overhaul of the Access to Information Act.

As well, Maclean's magazine reported that Conservative MP Mike Wallace wrote to the justice minister on June 22, 2007, on his own behalf and that of three other Conservatives on the ethics committee, pressing for decisive action—nothing short of legislation—the next fall, to strengthen the ATI Act according to the party's 2006 campaign pledges. Such efforts would be most welcome again today.

In sum, it is important to recall that freedom of information is a subject that ideally transcends political parties and ideologies, and that any party in government today could be in opposition tomorrow—itself trying to use the act effectively, as it has so often done before. I ask all MPs to work together on needed reforms, with the goal of strengthening our democracy and creating a lasting legacy for their constituents.

On this issue indeed, the committee might even adopt the U.S. President's motto of “yes, we can”.

Thank you.

[The Chair, Liberal, Paul Szabo]

Thank you kindly, gentlemen. I think it's been quite informative to set the table, as it were. I know the members are anxious to have a dialogue with you, so we're going to move directly to questions.

I understand that our technical problem is now remedied and that you are free to speak in either of the official languages.

We'll go first to Madam Michelle Simson, who is a new member from the Liberal Party, but very knowledgeable about these matters.

Madam Simson, please.