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
Michelle Simson Liberal Scarborough Southwest, ON
Chair, if I pose the question, can they each respond? Would that be acceptable?
Liberal
Michelle Simson Liberal Scarborough Southwest, ON
Okay.
Thank you, gentlemen, for taking time to give us your insight and your expertise in this area.
My first question is with respect to the recommendations that Commissioner Marleau has made. One of his recommendations is that access be granted to persons outside Canada, and that he would like to see some kind of web-based access.
Yesterday an Ottawa newspaper reported concerns that a web-based, globally accessible access to information system would result in bureaucratic chaos, that terrorist organizations could tie the public service up in knots, and it could also result in inappropriate information being released to groups like the Taliban or Hezbollah. Mr. Marleau didn't believe that to be the case, and I'd be interested if each of you could give me your opinion as to whether there's any basis for that concern.
Commissioner, Information and Privacy Commission of British Columbia
I'd be happy to address that.
Certainly this has not proved to be a concern in British Columbia. We find that removal of the citizenship restriction would not present those kinds of risks--in my estimation, certainly. I understand that there are differences between the kind of information held provincially and federally, but in B.C. we do not have a citizenship restriction. It is easily circumvented in any case, because there are professional access requesters or friends or family resident in Canada who are fully able to make requests on behalf of others. And certainly under the British Columbia legislation, public bodies are able to seek our authority to not respond to frivolous, vexatious, or abusive requests--requests that are an abuse of the right of access. When it comes to the substantive protections, British Columbia law fully protects law enforcement and national security interests because it contains robust exemptions that are designed to and do successfully protect those interests very fully.
Lawyer, As an Individual
I would agree with what Commissioner Loukidelis has said, Ms. Simson. From my perspective, it seems difficult to believe that this could be the source of terrorism or abuse of that kind. It's been common in many parts of the United States that access is allowed electronically. It's difficult to believe, therefore, that Canada couldn't rise to the occasion. Mexico is, I think, in exactly the same position. I don't see it as being difficult.
The legislation in Canada, as you know, provides the right of access only to Canadian citizens, permanent residents, and Canadian corporations. You can imagine how easy it would be to get around that if one wanted to. So I believe Canada's laws should be brought into line with other Commonwealth jurisdictions--Australia, New Zealand, Ireland, the U.K.--and allow access in this fashion to everyone.
Coordinator, Canadian Association of Journalists
Yes, please.
With respect, I cannot agree with the comments of the government member on March 9 that permitting foreign citizens to use our FOI law might harm our national security. I believe such fears are groundless for at least three reasons.
First, it is true that along with Canada, several nations, such as Pakistan and Zimbabwe, do not permit foreign citizens to use FOI laws, but the vast majority in the world do. The United States is of course at far higher risk of attack than Canada, so why has the Untied States allowed foreigners to file FOI requests since 1966? Why do all our provinces and more than 50 nations permit it, including France, Great Britain, Mexico, South Africa, and most eastern European nations? It is the accepted national standard.
Also, there are already safeguards in the ATI law, such as section 15, which would prevent the release of information that could affect national security.
Thank you.
Liberal
Liberal
Michelle Simson Liberal Scarborough Southwest, ON
Thank you for your answers, gentlemen.
Mr. Marleau also recommended that cabinet confidences at the federal level that are currently exclusions be instead exemptions. Apparently this is something that has been done in several provinces. Can you shed any light on how well this has worked provincially?
Lawyer, As an Individual
Maybe I can start, Mrs. Simson.
I believe I'm right in thinking that only the Canadian Access to Information Act has an exclusion. Perhaps I should explain why it matters.
No one for a moment is suggesting that a cabinet exemption is not appropriate. Indeed, all statutes that I know of have such an exemption. An exclusion, however, means that the act simply does not apply to that category of records. That is the difference.
Therefore, what matters, if there's an exemption, is that the commissioners are allowed to review the records and make the same kind of decision about cabinet records as about anything else, but remembering that it would be a very clear statement that current cabinet records, for reasons that I think are self-evident, ought not to be disclosed. However, there would be somebody there with the credibility to review that determination. That is the difference.
Coordinator, Canadian Association of Journalists
I have one comment on that, if I have time.
In Canada's original freedom of information bill, Bill C-15 of 1979, cabinet confidences were subject to a mandatory exemption, not an exclusion. That was an enlightened early draft, and I hope the current ATI Act could return to that.
Also, nine Commonwealth nations have a mandatory exemption for records. Better yet, the United Kingdom's is a discretionary exemption, and five of those nine are subject to public interest overrides. More than 50 other FOI statutes in the world have no specific exemption for cabinet records at all. There are models abroad.
Liberal
Liberal
The Chair Liberal Paul Szabo
She would like to pose a couple of questions to our witnesses as well.
Please proceed, Madame.
Bloc
Maria Mourani Bloc Ahuntsic, QC
Thank you, Mr. Chairman.
First of all, I would like to thank you for being here, even by videoconference, to answer our questions. I have three sub-questions and they are for you. You may answer them as you wish.
In the February 27, 2009 issue of La Presse, so not very long ago, the following remarks were reported:
Lack of resources, excessive delays, inadequate training, serious deficiencies; management of access to information is in crisis in Canada, and the lack of political will appears to be its main cause, according to Information Commissioner, Robert Marleau.
It seems from what Mr. Marleau says that there is a lack of political will. I'll give you an example to put my question in context. In the February 23, 2009 issue of Trois-Rivières' Le Nouvelliste, what happened in the case of the listeriosis crisis is cited as an example. Canadian Press, which is the source, apparently filed a request for information. I'll read you the excerpt; you'll have a clearer understanding.
For months, the experts say, the Conservative government delayed publication of the record of the teleconferences held during the listeriosis crisis last summer, in breach of Ottawa's own information laws. Acting under the Access to Information Act, Canadian Press submitted a request to the Privy Council Office (PCO) for all transcripts and minutes [...]
My main question is about this. If we improve the act and ensure we have all the necessary technologies but the information is blocked at its source, how can we correct that phenomenon? Recommendation 8 states that the Access to Information Act should apply to cabinet confidences. Is that enough? Is there anything we could do to improve the transparency of a government, whatever it might be? That's my first point.
My second point concerns finances. In the February 27 issue of the Journal de Montréal—
Liberal
The Chair Liberal Paul Szabo
You've covered a lot of ground on your first question, and although your next one may be related--
Liberal
The Chair Liberal Paul Szabo
--let's see if they understood where you're going. Let's take the first part and then we'll come back to you for the next part. Would that be all right?
Bloc
Maria Mourani Bloc Ahuntsic, QC
Yes, if you wish, but I also have an important point to raise concerning financing.