Information & Ethics Committee on March 11th, 2009

[David Loukidelis]

You're quite correct that we don't have in British Columbia, to my knowledge, anything approaching that small a number of requesters being responsible for that large a proportion of requests. What we do have is a fairly comprehensive set of remedial provisions that allow my office, on request by a public body, to authorize that public body to not respond to requests that are frivolous or vexatious or an abuse of rights under the act, or that are systematic and that unreasonably interfere with the operations of that public body. This is a remedy that is not often sought by public bodies, but it is one we've certainly been prepared to use in those cases where there is clearly an abuse.

That's not to suggest, I should be clear, that the situation vis-à-vis three or four requesters, whoever these people might be federally, is an abuse. It may just be that at a particular point in time there is interest in a certain variety of areas in the federal government and that these individuals are being assiduous and diligent in seeking access. I simply can't comment.

[Earl Dreeshen, Conservative, Red Deer, AB]

The other question I would like to ask is that this committee has been reviewing the 12 recommendations made by your federal counterpart, and we've noted in the report, Fallen Behind: Canada’s Access to Information Act in the World Context, that you recommended opening this up to everyone, not just Canadian citizens and others with direct ties to Canada. Given that Canadian taxpayers fund this program—not users, but the Canadian taxpayers—do you think it's appropriate for a Canadian request to be given priority over requests made by foreign nationals who don't pay Canadian taxes and who don't cover the costs of their requests?

[A voice]

Are you addressing that to me, Mr. Dreeshen?

[The Chair, Liberal, Paul Szabo]

It's an area for consideration, obviously. I'm sure there will be some debate on that.

Does anybody have anything specific about foreign nationals versus citizens or landed residents?

[David Loukidelis]

The only thing I would mention is what I referred to already, which is that when you have a citizenship or residency restriction, they're relatively easily circumvented. You can always find somebody who qualifies who will make the request for you. And I'm not sure how you would police or enforce compliance with that restriction.

[Earl Dreeshen, Conservative, Red Deer, AB]

And I suppose that's where I'm coming from with the question I had previous to that. When you do have, in the federal system at least, people really pushing the system and trying to get so much from the departments, I'm just curious whether or not that particular problem would continue. Do you have any comment on that?

[David Loukidelis]

One perspective goes back to the question of fees. It's commonly said that you don't want to see fees for access to information become a barrier to appropriate access. But a system or a regime of appropriate fee imposition rules under an access law can, to some degree, address concerns such as those you've raised, subject always to full remedial oversight by a commissioner who can relieve against inappropriately imposed fees that would improperly raise a barrier to access to information.

[Earl Dreeshen, Conservative, Red Deer, AB]

Thank you.

[The Chair, Liberal, Paul Szabo]

We will have a quick question from Madame Mourani.

[Maria Mourani, Bloc, Ahuntsic, QC]

Thank you, Mr. Chairman.

I would like some clarification. I'd like to go back to the listeriosis tragedy. You said that, in that kind of case, we should be proactive in the disclosure of information. In concrete terms, what should we include in the act, what should we do so that the Privy Council Office is not only proactive in regard to this kind of request, but also discloses the information. I get the impression the Privy Council Office is a little above the law in this very particular case.

[David Loukidelis]

If I may, I can speak to the B.C. legislation, of course. And we do have, as Mr. Tromp mentioned, an obligation in the legislation—the so-called public interest override—that applies directly to public bodies and that requires them, without delay and without access request, to disclose to the public or an affected group of people information about a risk to public health or safety.

It could include an issue such as the one you have raised. It's used quite regularly here in B.C. to warn the public about dangerous offenders, usually violent sexual offenders, who are being released from custody at the end of sentence and who are at high risk of reoffending.

My office gets those notices, and I've yet to disagree with one of them, after ten years. That's an example of how public interest notification can be used. But it is a positive obligation, without access requests, to make that information known publicly, so that the public is warned about risks to health or safety.

[Stanley Tromp]

Indeed, I could add that of 68 nations with FOI laws, there are at least 38 with some form of public interest override, and most of those include health and safety matters. So it is a standard.

[Maria Mourani, Bloc, Ahuntsic, QC]

All right. Thank you.

[The Chair, Liberal, Paul Szabo]

Thank you.

And finally, I believe Mr. Dechert had a brief follow-up.

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

Thank you, Mr. Chair.

Mr. Loukidelis, I'd like to go back to the line of questioning we were discussing earlier, about fees. Mr. Marleau mentioned that about three individuals have really overwhelmed his complaint system federally.

And I know that in British Columbia you have a system of distinguishing between commercial and non-commercial users in terms of costs. I wonder if you could comment on the possibility of requiring or instituting a regime of escalating fees for frequent users of the access to information system, especially in cases where you might consider it to be abusive. But in terms of cost recovery, it seems to me that people who just continually use the system should probably pay more than the average person who is just looking for a bit of information on their own case.

[David Loukidelis]

I'm quite sure that regardless of what I say, the frequent users would probably argue for a volume discount. But certainly my remarks earlier were directed to a situation where you had a small number of requesters, as you just said, making a large number of the requests to the institutions. And it wasn't, of course, addressing what Robert Marleau was speaking about, which is the small number of appellants who are frequent customers, if you will, in terms of his appeal process.

I think that the situation in B.C., where commercial applicants are charged full freight, if you will, when they're making requests for commercial purposes, would probably deal with a number of those kinds of requesters. I don't know that I would support an escalating fee structure to be a disincentive to the exercise of the right of access. Frankly, from a policy perspective, that's certainly not the choice taken here. And I think that what ultimately might happen, of course, is that people will find work-arounds. Similar to the situation with the residency or citizenship requirement, you'll find those people who are engaged in this having requests made by other individuals so that they get their numbers of requests down and therefore escape any escalating fee structure. So I'm not sure how well that could be enforced as well.

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

On a bit of a different tack, I wonder if you could comment for us on what in your view is the Canadian public purpose served by allowing foreigners unfettered, anonymous Internet access to Canadian government information, in particular, for example, with respect to cabinet documents or cabinet confidences. And how would you prioritize a Canadian's request over a non-resident's request?

[David Loukidelis]

One of the interesting features of this discussion, of course, is the idea that access requests could be made electronically. That's the situation in Mexico. They have a very advanced system there with their federal law when it comes to making requests. It's not to say that access would be granted to cabinet or other records electronically. In fact, I would suspect that for some time to come we'll still be dealing with a situation in which disclosure will be through paper records, copies of electronic records. That's certainly the case in British Columbia.

In terms of prioritizing between Canadian and non-Canadian requesters, I don't understand that to be a feature of any of the provincial laws or many of the other laws internationally. And again, the work-around challenge I think would still exist in terms of trying to administer that kind of priority.

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

One of Mr. Marleau's recommendations, as I understand it, is to go to a web-based system, and I certainly understand the efficiency reasons for that. But I'm concerned that foreigners might make up a very large percentage of the users. I wonder how Canadians who are trying to get access to their personal information then might be put at a disadvantage while the system is dealing with answering the information requests from foreigners.

[David Loukidelis]

Again, recognizing that the information holdings in the B.C. public sector are different from those in the federal public sector, I also note that my federal colleague has suggested a five-year review of the legislation by Parliament. And one option might be to put this on the table for that first five-year review. If such a change were made, there would then be an opportunity to review it in five years and to see whether the concerns that I well understand you've raised are such that changes should be made back to the existing residents and nationality-based approach.

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

Thank you.

[The Chair, Liberal, Paul Szabo]

Okay. We have covered a fair bit of ground.

I'm going to give each of you gentlemen, if you wish, an opportunity for a minute or so just for a final comment on a matter that hasn't been touched on by members that you'd like to be sure we keep in mind.

I can assure you that there is a good will here among all of the honourable members to make the strongest possible case for consideration for amendments to the Access to Information Act, and that it really does have to come from the government, in fact, through the justice minister. So we certainly hope to complete our work on this as quickly as we can and to make the necessary report to in fact have that go to the minister. But we are going to want to hear from the minister first.

The House is not sitting next week, but the following week. I understand either the Monday or Wednesday we will have him before us to provide his perspective so that we can round off the picture. Then we'll be in a position to do our report to the House, and then it's in the hands of the government.

So I think that's where we're going, and I will thank you now all for appearing before us on short notice. And if you wish, I will give you all a chance for a brief final commentary.

[Murray Rankin]

Perhaps, Mr. Chair, I could simply say thank you very much. I respect enormously the undertaking you have before you. I think it's terrific you're taking on this challenge. As someone who's been an observer of this for a long time, I'm just so delighted with your initiative. Thank you for the opportunity to participate.

[David Loukidelis]

If I might simply echo what Mr. Rankin said, I am deeply grateful to all members of the committee for having taken on this issue. It is of course critically important that Canada has a modern access to information regime and legislation to underpin it. The committee's work in this respect is very important, and I'm grateful for the opportunity to share some perspective from British Columbia on the situation here, in the hope that it might be of assistance to the committee as you move forward in your deliberations.

Thank you very much.

[The Chair, Liberal, Paul Szabo]

Thank you.

Mr. Tromp.