Evidence of meeting #9 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 laws.
A recording is available from Parliament.
Liberal
The Chair Liberal Paul Szabo
Okay.
Gentlemen, did you understand the gist of the concern raised by the honourable member?
Liberal
Commissioner, Information and Privacy Commission of British Columbia
It's been my experience over the years in which I've been involved in access to information, including of course directly here in British Columbia, that you can have the best designed access to information legislation possible, but quite bluntly these things cost money. We have to recognize that access to information, as I said, is a key foundation stone for openness and accountability. These laws and the rights they mean to protect and advance are absolutely indispensable in our democratic system of governance, so investment in that area is critical, but I think it's also well justified, because of course we invest in other aspects of our democratic system, including elections and so on.
So I would argue that access to information merits the investment of public funds. That is quite frankly the bottom line here. We do see from experience across Canada that as well designed as your law might be, the commitment at a bureaucratic and program level beginning at the top, at the political leadership level, but also at the senior bureaucratic level, is indispensable to making sure these laws work well and there is timely and full access to information.
The one other point I would make in response is that the design of the law is of course important, as the member has correctly pointed out. Monsieur Marleau's recommendation around cabinet confidences is key. Other substantive aspects of these laws can be critical as well. Public interest overrides have already been mentioned, to allow disclosure where there's a public safety or public health threat.
Again, it's a mix of proper, substantive sets of rules, but also that commitment at the program and operational level as well, which is of course indispensable in any legislative regime.
Coordinator, Canadian Association of Journalists
Yes, please.
On the matter of the listeria case, I must say that in several countries there's a public interest override that records concerning health and safety must be released immediately, without delay, proactively. I wish it had been done in this case. There can be no more serious issue with regard to an ATI request than listeria, a problem that resulted in 20 deaths last year. An ATI request resulted in an important story in The Globe and Mail in August 2008 from briefing notes prepared by the Canadian Food Inspection Agency that found the Canadian government strongly opposed tougher U.S. rules to prevent listeria and lobbied the United States to accept Canada's more lenient standards. It is exactly that kind of thing that shows ATI use by the press at its best and most necessary.
Liberal
Bloc
Maria Mourani Bloc Ahuntsic, QC
I'm going to cite another article, from the February 27 issue of the Journal de Montréal. That paper filed an access to information request to obtain the travelling expenses of employees of the Canada Mortgage and Housing Corporation. The corporation demanded $21,700. The answer was that they would have had to pay an employee for 2,205 hours, which would amount to 13 months of full-time work, to respond to the request. Of course, printing documents on paper costs money. I believe it costs 20¢ a sheet.
In the recommendations we could make on access to information, we should also include the recommendation that it should be free, in particular because some people don't have any money, but would nevertheless like to know what society they're living in. Don't you think that, as a state, we should help ensure that access to information is financially available for everyone?
Commissioner, Information and Privacy Commission of British Columbia
I could again.
I think this is an opportunity to underscore two points in response. The example of travel expenses is a good example of the kind of information that should routinely be disclosed without access request, because it is information that is generally of interest to members of the public, whose tax dollars are going to fund travel. I know this is an increasingly widespread practice. My colleagues federally do this routinely. In our own office as well, I publish my own travel expenses without request every month on the website.
As to the cost of access to information, Canadian access laws do provide for the imposition of fees for access. They are not designed to be a complete cost recovery, generally speaking, nor should they be, because of the public benefit in making information available for accountability and transparency reasons. Even in those cases where fees are imposed, most statutes, certainly the second and now third-generation laws in Canada, have really comprehensive schemes for relief from fees, a public interest waiver of fees. In British Columbia one can have fees waived if you're not able to pay, if you simply cannot afford to pay. Our office is very active in overseeing decisions on fees and ordering the reduction or refund of fees on those important grounds.
Liberal
The Chair Liberal Paul Szabo
Is there any further comment?
We're going to move on to Mr. Siksay now, and we'll be able to come around again.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
Thank you, Chair.
Thank you, folks, for attending today and for your testimony. I hope that the next time we hear from you is when we're examining actual legislation that's before the committee, having made it out of the House to the committee.
My first question concerns the order-making power. Mr. Loukidelis and others, you addressed this today. Mr. Marleau's recommendation around order-making power is really only a half measure in some of our minds. It doesn't go the full distance in terms of order-making powers. Certainly it wouldn't match your order-making power, Mr. Loukidelis. It was good to hear you say that you saw your ability to order the release of information as actually a positive and you saw that it stimulated dispute resolution and you thought it might actually help the process. I wonder if you could say a bit more about that.
Commissioner, Information and Privacy Commission of British Columbia
Yes, indeed.
Lawyer, As an Individual
I heard the question very clearly. If I may, I can proceed to answer.
Mr. Siksay, this is a hobby horse of mine, I must confess, so I welcome the question a great deal. To me, a statute that does not have full order-making power is a bird with one wing, and a crippled bird at that. I do understand that the recommendations made by Mr. Marleau are essentially a compromise on the issue of order-making by which he would seek powers to deal with what he calls administrative matters and make final orders on that, and he would have a different role on what I call the main event, the ability of the commissioner to order the government to release information. To me, this is an absolutely integral part of the statute. Most meaningful statutes, if not all meaningful statutes I'm aware of, have the ability for someone to order the government, after due deliberation, to release the record. In the United States that's the courts, and in most provinces, five of them at least, it is the commissioner who has final decision-making authority--always, I hasten to add, subject to ordinary laws of judicial review of jurisdictional error or other errors that the commissioner might make along the way.
I do not believe the record shows that has caused an undue legalization of freedom of information in Canada. On the contrary, in British Columbia 85% to 90% of matters are dealt with by mediation without resort to courts, and maybe one or two judicial reviews a month is all that we have. That record is not dissimilar in other provinces, such as Ontario. So in my opinion, this is an absolutely central feature that must be part of your reform package for it to have any credibility.
Lastly, I will simply say that 22 years ago a unanimous committee like yours made just that recommendation.
Coordinator, Canadian Association of Journalists
If I could add to this briefly, it's worth noting that the FOI statutes of 16 other jurisdictions grant an independent administrative appeal body the power to order record release. This includes Mexico, India, New Zealand, Scotland, and the United Kingdom.
Some critics say we don't need to amend the law because all we need to do is better enforce the ATI law we have now. That is not correct, because the great paradox, and a sort of catch-22, is that the law cannot be run effectively unless it is first amended to put enforcement powers into the law.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
Thank you, folks.
On a number of occasions you mentioned the way the law in the United Kingdom functions. There were two issues there, and I wonder if you could say a bit more about that. I wonder if you could say a bit more about how the discretionary exemption on cabinet confidences works in Britain. Has it been successful? Are there issues that have arisen from that? How long has it been in place? Could we have a little bit of background about that kind of thing?
The other issue might be the approach to routine disclosure that has been adopted by the United Kingdom: proactive routine disclosure.
Commissioner, Information and Privacy Commission of British Columbia
My understanding is that in the United Kingdom the discretion exists for the government to decide whether or not it wishes to assert cabinet privilege, in effect, under the legislation. Always having regard to other considerations, to public interest considerations, it is open for cabinet--again, it is my understanding--in response to a freedom of information request to choose to disclose what would otherwise be shielded as a cabinet confidence. This has been the case since the law came into force in early 2005.
The review that is available for that, of course, lies first with the Information Commissioner, who makes a determination on these issues, with an appeal, in that instance, to the specialist information tribunal and then the possibility of judicial review after that. A good example of how that review process has worked over the last year or so is that my colleague there, Richard Thomas, in February of 2008 ordered disclosure of the minutes of the cabinet meeting at which the decision was taken to go to war in Iraq. That decision was upheld earlier this year by the information tribunal.
Ultimately, it would fall to the government to decide whether to seek judicial review or issue a ministerial notice declining to respond to the binding orders at two levels, and ultimately having to be accountable for that in Parliament.
Lawyer, As an Individual
On your second question, concerning routine disclosure, Mr. Siksay, it's a classic example of how we are not using the technology that has emerged since the act was passed many years ago.
If two or three people ask for the same record and the government has chosen to disclose it, perhaps severing certain things along the way, why on earth can't that be put on the Internet for all to see? It's a classic example. Why do we have to reinvent wheels? That's an example of routine disclosure that makes sense.
Liberal
Conservative
Kelly Block Conservative Saskatoon—Rosetown—Biggar, SK
Thank you very much, Mr. Chair.
I would also like to thank our witnesses for joining us today.
It has been referenced that a government's commitment to disclosure and the impact this has on legislation can really impact on its effectiveness.
In his testimony before this committee on Monday, the Information Commissioner told us that the Conservative Federal Accountability Act was the most significant reform to the Access to Information Act since its inception in 1983. I was wondering if each one of you would comment on that and if you agree with Mr. Marleau's assessment.