Information & Ethics Committee on March 11th, 2009

[Stanley Tromp]

I am pleased to see crown corporations and their subsidiaries and several foundations added to the coverage in the accountability act. This accounts for about one-half of one of the eight promises for accountability. Of course I can quote the other seven and a half that were not fulfilled, such as those that a Conservative government will “implement the Information Commissioner's recommendations for reform of the Access to Information Act; give the Information Commissioner the power to order the release of information; expand the coverage of the act to all Crown corporations, Officers of Parliament, foundations”--

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Point of order, Mr. Chair.

[Stanley Tromp]

And so on.

You perhaps have the list of eight pledges before you. I would hope those would all be fulfilled.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

So that's a yes?

[Murray Rankin]

Ms. Block, maybe I could just add to that answer.

The Federal Accountability Act was indeed the largest reform to the law since its inception. One of the things it did was expand the coverage, as Mr. Tromp has noted, to other crown corporations. There are many that are still not covered by the act.

The other noteworthy thing is they have covered the Office of the Information Commissioner itself. For the first time, they are subject to the legislation. And interestingly enough, there is one wrinkle that might be of interest to you. As a result of that change, the commissioner has had to figure out who would deal with issues concerning his disclosure of records or problems in his office, just as he is the oversight body for the other agencies of government. And he has appointed a retired Supreme Court of Canada judge to serve in that role.

I would commend to this committee the possibility--and I wrote about this in the report that is before you that I prepared earlier--of appointing what's called an adjudicator, where the cabinet would appoint somebody like a retired Supreme Court of Canada judge, who would have that responsibility, not on an ad hoc basis, but on a permanent basis, as is done, for example, in Alberta and British Columbia. That might be something that would be of value as well.

[The Chair, Liberal, Paul Szabo]

No further comments?

Let's move back to Mrs. Block for another question.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Your report, Fallen Behind: Canada’s Access to Information Act in the World Context, makes mention of the promises made by this government in its 2006 election campaign and repeatedly criticizes the government for not achieving 100% of its promises thus far. Yet I think you would agree that this Conservative government has taken action and it is reforming the ATIA by covering 69 new institutions in ways the previous Liberal government never acted on. Isn't that true?

[Stanley Tromp]

Yes, Madam, that is in fact true. I wish they would go further and cover the at least 100 that are not covered, such as the nuclear waste industry and the Canadian Blood Agency as well.

It was a step forward, and we do appreciate that. And of course no FOI advocate ever expects to get everything they want quickly. It does take some time. But I believe that 20 years of study is quite long enough, and the global standards are very clear.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Thank you.

[The Chair, Liberal, Paul Szabo]

Okay, now we're going to move to Mr. Poilievre.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

I just wanted to be on the list.

[The Chair, Liberal, Paul Szabo]

Okay. Mr. Poilievre will be following Ms. Coady.

Ms. Siobhan Coady is from Newfoundland, so east is going to meet west here.

Carry on.

[Siobhan Coady, Liberal, St. John's South—Mount Pearl, NL]

Thank you.

Thank you for your quite comprehensive interventions here this afternoon. I thank those who are presenting today. I especially want to thank British Columbia. I actually sat on a review panel for the Freedom of Information Act for Newfoundland and Labrador, and they were quite helpful at that time as well, so thank you for that.

I just want to go back to a question my colleague asked with regard to the Access to Information Act as it applies to cabinet confidences. I know you talked about the access for the commissioner with regard to reviewing cabinet confidences, but I wonder if you think there should be parameters around that access in terms of time limitations or a delay before you actually have access to cabinet confidences. I know that tends to be a shield for governments with regard to saying it's a cabinet confidence, but do you see any challenges with having a carte blanche access?

Thank you.

[Murray Rankin]

I see no need for the kinds of restrictions that you might contemplate--timelines or the like. To me, it's critical that an independent officer have the ability to reassure applicants and Canadians at large that they have reviewed the records. I'm not for a moment suggesting when I say this that the records ought to be disclosed. There's a big difference. If the exceptions apply--law enforcement, national security, personal privacy, or the legitimate business of cabinet--then I think that clearly those records should continue to be withheld.

What I do say, though, is that there needs to be the credibility that general oversight provides. That credibility is sadly lacking at the federal level, certainly as compared to the United Kingdom and most of the provinces of Canada.

I think it's an essential feature that we reverse this compromise that was put in so long ago in our law and that is unprecedented anywhere in the world.

[David Loukidelis]

If I could just add to that, it is a feature of these exemptions for cabinet confidences and other Canadian access laws that there are certain parameters drawn around them. On the question of timelines, there are very often so-called sunset provisions, after which it is not possible to rely on the exemption.

As for other provisions, there are cases, for example, when the government has publicly cited a decision that was taken in cabinet. In that instance, some of the protections that might otherwise exist are carved back. Obviously, it lies with the particular legislature to decide where those lines should be drawn.

[Siobhan Coady, Liberal, St. John's South—Mount Pearl, NL]

Thank you.

I'd like to move to a second question. This is about extensions beyond 60 days. I would like you to review and talk about that a little bit. One of the questions is about the approval of the Information Commissioner being required for all extensions beyond 60 days. I know that when I ATIP, typically I get back a response that they're looking for an extension. Could you comment on your provincial acts, specifying in detail what constitutes reasonable grounds for an extension?

[David Loukidelis]

Yes, I think one of the key tools my office has in its ability to police, if you will, the question of delayed responses to access to information requests is our ability to oversee extensions. As it stands, there is a 30-day response time under the legislation. A public body may, on its own account, extend for a further 30 days, but they can only have a further extension beyond that with my permission beforehand.

In the case of both extensions, whether it's the first extension by the public body or the one we approve, they are on limited grounds--a large number of records is requested, or there's a need to consult with other public bodies. Essentially, the grounds are complexities related to the request itself. In the case of a further extension, I can extend on further grounds that I consider appropriate. But that, again, limits the number reasons overall to appropriate reasons for extension. That second look we take on the further extension allows us to say yes or no and therefore gives an incentive to public bodies not to take excessive time extensions.

[Siobhan Coady, Liberal, St. John's South—Mount Pearl, NL]

Thank you.

[The Chair, Liberal, Paul Szabo]

Thank you.

We'll go to Mr. Poilievre, please.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

My question is for Mr. Tromp.

Mr. Tromp, you had some praise for President Obama and his declaration on access. I think all of us are excited about the announcements that are coming out. But I'd like to cut through the hype. What exactly did he do on access to information that has so excited you?

[Stanley Tromp]

Well, his declarations are on the White House website. He has issued a direction from the very top, which one would hope could be done in Canada, as well, that “The Government should not keep information confidential merely because public officials might be embarrassed by disclosure because errors and failures might be revealed or because of speculative or abstract fears.”

What he did was reverse the presumption by his predecessor that if in doubt, information should be withheld. He reversed that to say, if in doubt, information should be disclosed. That is a clear reversal of policy, and that is a major step.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Does the Government of Canada have any default position? That's a yes or no question.

[Stanley Tromp]

The other speakers can speak better to that, but the informal default position seems to be more closed than open, overall.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Okay.

I always appreciate when someone makes a declaration and that declaration is followed by a great deal of exhilaration. I'm just wondering, if we were to make such a declaration as that, it doesn't seem like that kind of declaration is very hard for anyone to make. But if that would be all it would take to--

[A voice]

If I may....