Thank you, Mr. Chair and members, for inviting me.
I'm here because Saudi Arabia human rights reports are released late, after the minister makes his export permit decision. There are four drafts of it, that go back to the Conservative times, heavily blanked—different.
I'm here because Treasury Board takes a six-month extension to tell me about transparent government.
I'm here because I'm a long-time person who knows, who's been in front of Parliament dozens of times, and who would like to get somewhere.
I'm here for basic structural change. I'm not here for technical changes.
Canada needs to embrace transparency legislation that is bold. For too long, Ottawa's antiquated and dysfunctional act has blocked fuller transparency and encouraged secrecy practices. The right to access should not be hindered by barriers that include lengthy delays, high fees, creative avoidance, and multi exemptions and exclusions. Governments and information commissioners to date unfortunately have sought housekeeping and quick-fix changes that do not—do not—abandon the culture of secrecy.
The best way to move forward is with a comprehensive bill for open government that brings together several transparency measures. That's because better access to government information alone will not bring about transparency or a culture of openness without a combination of measures to create more effective means for greater public disclosure.
In other jurisdictions, New York state, for instance, they combine such transparency measures as a sunshine open meeting component with record disclosure in their information laws. Other countries, such as Mexico, have shown the way by designating specified categories for proactive disclosure that go beyond digital data banks and traditional access to few records. Brazil incorporated inquiries into historic truths side by side with its transparency legislation.
Sweden is one country—I don't know if you heard from their ambassador—with a long tradition of transparency that has successfully combined freedom of the press and protection against censorship with access to public records in companion legislation. New Zealand, where I visited and gave a workshop at the ombudsman office, is a parliamentary democracy that treats access to cabinet records more as an invitation to open government at work rather than as the centre cornerstone of a culture of secrecy.
Canada must catch up and toughen and expand its right to know legislation and become a leader, finally.
Central to this substantial effort is the creation of a proactive disclosure code and transparency agreements with the purpose of guaranteeing information rights, freedom of expression, and freedom to participate. I will go through some key ingredients.
One, you need a clear purpose clause, which we don't have. It would be part of a new right to know act that enhances the freedom of information and maximizes public disclosure and accountability. It is an essential part of the Canadian Charter of Rights and Freedoms; it's just been downplayed under the current act, whose emphasis on secrecy goals is right in the principles.
A proactive disclosure code would help this transition. It would create a legal mandatory obligation, making data on public monies, health, safety, and environmental and consumer matters widely available via the Internet in a digital, machine-readable, usable format on a regular and instantaneous basis. The code would set up the operative principles, including the right to transparency and broad access, right to proactive service for access, right to wide coverage, right to effective decision-making and record-keeping retrieval, and right to independent review. Under this code, proactive disclosure will no longer be limited to a few selective administrative records.
Next, and tied to that, governments and corporations would put in place agreements to actively disclose their information and explain their actions consistent with the code. It would mean enacting federal, provincial, and international information disclosure codes. Proactive disclosure would as well become an integral section in all legislative bills.
What we also need is a proactive disclosure code system that would enable much broader private as well as public sector coverage. No public money would go to those private agencies receiving federal benefits or to those organizations carrying out public functions that do not have disclosure service agreements.
Coverage would include the PM, the PMO, cabinet ministers, and Parliament. No corporate third parties would have special veto powers to object to disclosure. We also need available records from institutions that are wide coverage, including procurement, budget, infrastructure, government operations, and safety and health data. Restrictions would be removed on accessible machine-readable records. There's a court decision that does that.
In order to achieve this, we need other things, too. We need open meeting requirements. Effective public entry to the decision-making meetings of boards and commissions should be required instead of the real business being done behind closed doors. We also need early public policy notification and participation requirements, so the public early on can be involved and be consulted, and it not be token. We also need a system that can be reliably connected to the Internet and where institutional data can be transmitted and set out. We also need, and I think this is really part of it, an independent parliamentary budget officer who provides a fuller picture of financial costs and projections, ensuring that Parliament and the public are better served. In addition, we need a parliamentary legislative officer who would make public analysis of ever increasing complex legislative proposals available to the public and Parliament.
Administrative tools are many, and I'll try to go through them quickly.
There is the duty to document. No transparency and accountability system can do without an up-to-date and immediate retrieval of information, as well as responsive management and effective information management systems. We need to preserve and document decisions, their background, day-to-day operations, and matters of significant public interest.
I'm also putting in here a duty to investigate, because I think a triggering mechanism is needed so that public inquiries can be generated to gather and collect significant material in the public interest. These are matters like food safety, indigenous rights, and health care. Just as the Truth and Reconciliation Commission sought out information on residential schools, and various inquiries sought out data and reported, we need to have an embedded public inquiry mechanism that gets at the truth through investigation, documentation, and public reporting.
We also need, and it's sometimes overlooked, proactive service and interaction. Instead of codes of silence, which is what we have now even under this government, and public relations, enforceable codes of service and disclosure are required. We also need no fees and prompt service. Data needs to be immediately available, and proactive disclosure agreements should eliminate the need for lengthy consultations and time extensions. Along with that, an administrative arm's-length agency is needed whose prime goal is to encourage getting answers and releasing information, not to tangle it up or deny it.
Yes, we need a broader commission with order powers, but with broader powers to order release of documents, duty-to-document documents, access to meetings, and whistle-blowing data that's hidden. We need to have a commissioner who undertakes mediation, but who can also do inquiries and issue binding order powers. We need a commission that leads an audit and education mandate, and that can help look at the implications of legislation.
The courts have a bigger role to perform. Right now they perform more of a conservative role. They need a broader role of protecting rights of disclosure and freedom of expression, and prompt and affordable access to justice.
You can't do a lot of this without some penalties for altering, withholding, and distorting records. You need those kinds of things and tougher sanctions.
You also need a parliamentary oversight committee, because you need to promote the legislation. You need a regular committee that is going to examine all the secrecy provisions in federal acts and assist...reverse that and pass legislation with all proactive disclosure codes, and pass an act that I'm suggesting.
You also need for those members of the public who have few resources, some means to support and challenge secrecy practices. You need the mediums of the Internet and telecommunications, and an independent media to help make all of this possible.
You sure don't want censorship and publication bans and not having net neutrality. You need whistle-blowing protection for both the public and private sectors because that helps bring transparency and accountability.
You can't just—and that's the problem with the current act and the culture of secrecy—elevate secrecy to a principle. The top-down approach in this country that places cabinet records out of reach of Canadians and hides policy options and ongoing work as advice must end.
A mandatory general public interest override would apply to the few narrower exemptions. Narrowing the application of exempt areas also means greatly reducing the time periods for protection, and applying significant injury tests and eliminating secrecy overrides in other legislation.
No one would dispute that the access act is broken, but there's a great divide to what steps to be taken. I was around before the act and I was a consumer advocate back then when I started to make submissions in 1975. I can assure you the act we got is not what I wanted, not what other people voted on. I believe one of your other witnesses went into that. It's broken, and we need to fix it.
The Liberal government is saying to delay to 2018, just like they're delaying my access request and claims it can introduce order-making powers before that, which it cannot without amending the act and looking at it comprehensively, and it cannot if it doesn't look at the prime problem, which is exclusions and exemptions in the act. The current Information Commissioner unfortunately has very limited administrative changes. They won't fix this. They won't fix the legal secrecy framework and practices entrenched in Ottawa.
A basic change in attitude and political will is required that makes information rights, freedom of expression, and freedom to participate as paramount. What is not wanted is more default and delay systems, codes for silent conduct, and superficial chat dialogues, as the minister is doing. There should be no confusion with open data sets as equivalent to giving Canadians the right to know how the government operates.
What legislators, 34 years later, need to address in a non-partisan way.... I was here for the 1987 non-partisan report which at that time went as far as it could with those administrative changes. Now it's 2016, almost our 150th anniversary. We need more. We need a system where disclosure and a culture of openness becomes the norm, not a consolation prize secondary to the many entrenched special claims with special interests. Starting with cabinet and senior officials, the privileges can no longer by law be sacrosanct and claimed as confidences. Canada needs more than access to public records. It needs mechanisms to finally create a public disclosure atmosphere that rejects fear, avoidance, deception, and secrecy, and I've had enough of that and I've had it for over 30 years, or 50 years as an investigator/researcher.
Canadian legislation should not be lulled into doing very little on transparency reform and must significantly roll back—do not look at cosmetic changes—government delays and denials and put forward bold multi-transparency initiatives.
Thank you very much. Hopefully, I'll get some questions, including on the so-called 2016 budget.
