Information & Ethics Committee on April 21st, 2016

[Antoine Aylwin]

Our vision for order powers lies in the determination of requests for review on access to information. I'll remind you that the process in Quebec provides 30 days to respond to an access-to-information request. Within 30 days, the access-to-information requester can ask for a review of the file, or a third party may request a review of the public body's decision to disclose its documents. The matter comes before the Commission d'accès à l'information, an administrative tribunal that renders a decision that orders the disclosure or non-disclosure of a document. The order power, which is how we see it, involves having an administrative tribunal—this does not have to be the Federal Court—which considers the matter quickly and may render a decision.

The model is changing. In Quebec, for example, the investigative function and the administrative tribunal function have been split in two. The same people do not carry out these two responsibilities, even though they are grouped within one commission, the same one that also processes all requests relating to the act respecting the protection of personal information in the private sector.

As you know, at the federal level, applying the legislation on electronic documents comes under one commissioner, while its application concerning public bodies comes under another commissioner. That might be another approach that you would also like to review.

In Quebec, all of this is grouped together, but the investigative and administrative tribunal functions are separated. This independent approach would mean that the person who determines the requests would not be the same one to order changes based on non-judicial investigations.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Great.

For Mr. Rubin's information, I'm trying to play nice today, so we'll get to the budget question potentially a bit later in my line of questioning.

Mr. Weiler, it was during the Western University Ignite Talks, I believe, you mentioned how adults are sometimes fearful of accessing their right to ATI requests. Would you mind explaining what you mean by that?

[Dr. Mark Weiler]

That's based on a report conducted in part by the Scottish Information Commissioner, who found roughly 50% of voluntary organizations avoided using their access rights out of fear of something. I think there are fears that do percolate and inhibit people from using it. That's why I think it's crucial that all FOI laws, or the ATI act, protect the identity of the individual person using their rights throughout the entire access procedure.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Probably my last question is about Canadians accessing information. I think it was your last sentence, maybe your second-last sentence. The commissioner, in part of her recommendations, wants to open this up to outside of just Canadians being able to make ATI requests. Maybe quickly, in about 30 seconds, you could elaborate on your position on this, Mr. Weiler.

[Dr. Mark Weiler]

I would entirely support that. I think that increasingly in the global society the Canadian government affects people outside of Canada's borders. The standard now is for people to have access to information from other governments outside of their home country. I can access information from the United Kingdom, Scotland, or Australia. It seems very odd that Canada has restrictions for people who aren't citizens or residents of Canada.

[The Chair, Conservative, Blaine Calkins]

That was very good.

We'll move to Mr. Boulerice, please, for up to seven minutes.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Thank you very much, Mr. Chair.

I would like to thank the witnesses for being here today to discuss this vital issue for the quality of our democracy.

My Conservative colleague wanted to talk about the budget, but he hasn't yet. I would straight away like to highlight a point on page 208 of the English version of the budget. The new government said:

To make it easier for Canadians to access government information, including their personal information, the Government proposes to create a simple, central website where Canadians can submit requests to any government institution. This will be backed up with a 30-day guarantee for personal information requests...

However, if the request takes longer than 30 days to fulfill, the government can simply send a letter explaining the delay. So that's the quality of the guarantee we're being offered.

The government proposes to provide the Treasury Board Secretariat with $12.9 million for these activities, but hasn't announced any funding for the Office of the Information Commissioner, which is racking up delays and hasn't managed to process hundreds of requests because it doesn't have the resources to do so.

I'd like to hear you talk about this reality of the new Liberal budget.

[Ken Rubin]

The Liberals are good at promising and not translating the promises of openness and transparency. Some $2 million a year is pretty pathetic, and when all it's going towards is a centralized, questionable web service for people to put in their applications with $5 and having to sign off on privacy claims, that system itself is broken with the 12 or so departments that are putting it in.

Why extend it? Why not do things more on the proactive disclosure side, let alone the commissioner side? God knows she'll need better staff and a whole new commission. The fact of the matter is, in that same budget you have $363 million given to the broken Shared Services, which can't handle even emails and data consolidation inside, and here we need, if we're going to have proactive disclosure, the technological means of better dissemination of information to the public.

I'll give you a concrete example. It's in today's Globe and Mail. For food-borne diseases, there's no national reporting system. That's a disclosure mechanism that could be of value to Canadians among many, many, many other proactive disclosure mechanisms.

Where are the millions of dollars for the real needs of disclosure? All they're doing is creating some sort of administrative system that's already broken and, I may add, gives the government a little too much insight into what every Canadian is applying for, and then they can make use of that. I'm sorry, it's the old CAIR system in disguise.

[Dr. Mark Weiler]

I would largely agree. I think a major problem is the $5 application fee, which makes it necessary to have a centralized website. If we abolish the $5 application fee and disallow people to order information from various departments, it could be done through email. In fact, in the United Kingdom, Australia, British Columbia, and Scotland there are no application fees; you just send an email. Take that $12.9 million and give it to the Information Commissioner so that they can do adequate oversight. I would be far more supportive of that than centralizing it.

To speak to the previous question about fear, I do think there is a concern of what the government is doing that motivates a lot of people's fears. The more centralization of the process for ordering information, I think, will only heighten Canadians' fears, so I would much rather see just abolishing the fee and letting people send emails if they want.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Are there any comments?

[Antoine Aylwin]

Yes, thank you, Mr. Boulerice.

I have already commented on the fees that should be abolished. Moreover, I agree with what Mr. Weiler just said. Sending an email should suffice rather than creating a new procedure to contact the government. People are already familiar with this method.

The greatest challenge federally is to find the right person's contact information. I don't know whether you have ever looked at Info Source, but it is very difficult to use. The same cannot be said for Quebec's act respecting the access to documents held by public bodies and the protection of personal information. The website of Quebec's access to information commission lists all organizations and their contact information. It is really easy to use. I'm not saying that this is not the case at the federal level, but an investment is needed—and it would probably be less than $12.9 million—to make sure the contact information for the right people is available.

Otherwise, there is not, to my knowledge, a single access to information commission in the world that has the necessary resources to fulfill its mandate. My concern with the many outstanding files at the federal level pertains mostly to the end result. Even if all the files were processed, the recommendation issued would not be binding.

If someone is not satisfied with the result, they can take the matter to the Federal Court. In that sense, I think the priority should be reforming the system rather than trying to determine what resources are needed to make the current system work.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

At present, the commissioner's role is similar to that of an ombudsman, as was noted earlier. Everyone is talking about expanding the commissioner's powers. In British Columbia and Ontario, the information commissioner's decisions are binding.

Is that something you would like to see at the federal level?

[Marc-André Boucher]

Yes, I am very much in favour of the commissioner having quasi-judicial powers. That is already the case in Quebec.

At the federal level, department heads move around and they do not necessarily have expertise, whereas the commissioner does. Why shouldn't we use that expertise and give the commissioner real powers? That way, once the matter reaches the Federal Court, the spadework would already have been done and it would truly be a judicial review. Even the court could draw on the commissioner's expertise. The court should also consider the commissioner's decision, which would be more than a mere recommendation.

[The Chair, Conservative, Blaine Calkins]

I know there are some folks who want to answer, but we're well past seven minutes. Maybe we will have an opportunity to come back to that.

We now go to Mr. Saini, please, for seven minutes.

[Raj Saini, Liberal, Kitchener Centre, ON]

Thank you very much, everyone, for being here today.

Dr. Weiler, it's nice to see someone from my hometown. I understand you're leaving today, so I hope I can get a ride to the airport.

In your submission to the Information Commissioner during her open consultation, you mentioned that one of the aspects of updating the Access to Information Act would be the creation of a new officer of Parliament to ensure compliance with the act. I'm wondering why you feel it necessary that an officer should be created as opposed to granting the commissioner powers to ensure audit compliance, as she has mentioned.

[Dr. Mark Weiler]

That was in the context of having separate legislation for the proactive disclosure of information. I take a very firm position that proactive disclosure of information relating to government interests should be separate from the Access to Information Act. I see the Access of Information Act as protecting—

[Raj Saini, Liberal, Kitchener Centre, ON]

You would call that the mandatory—

[Dr. Mark Weiler]

Yes, and for the exact same reason the Information Commissioner of Canada has an oversight role in protecting the individual's rights to access unpublished information the government holds in custody, there should be something equivalent for this kind of a mandatory publication of information act.

The idea is publication schemes can come in multiple flavours. One flavour is a public interest test where if a threshold is crossed, the government has a proactive responsibility to publish information in the case of where there's an environmental hazard or something.

[Raj Saini, Liberal, Kitchener Centre, ON]

Would it be if you found that the government received a lot of requests on the same topic?

[Dr. Mark Weiler]

It could be. I would leave that to the decision of the cabinet of Parliament to debate.

In issues where a group, or a government, decides what should be proactively published, that should be separated out from the Access to Information Act. That act itself should have oversight to ensure the government is publishing information when it has a duty to do so. For example, if there are public interest overrides that require them to publish, we need someone to check in on that to make sure the government is doing it. That is a separate role from the Information Commissioner protecting individual rights to access unpublished information.

[Raj Saini, Liberal, Kitchener Centre, ON]

Another question I have for you is about the right to refusal. Prior to this meeting, we heard several witnesses who said there is a need to have some sort of right of refusal to process requests in order to handle vexatious or frivolous requests. Do you feel that is necessary and, if so, how do you feel it should be structured in order to also maximize the ability to access information?

[Dr. Mark Weiler]

I think vexatious requests are so infrequent that I wouldn't want to invest too much time in handling those very extreme cases, because it comes along with a significant risk of governments invoking a claim that a very substantial application for information is vexatious.

In Ontario, we have what is called the continuing access clause. It allows people to order information on a scheduled basis. The idea is that you have an interest in some information, and you might want updates every six months. That could be perceived as being vexatious, when it's just saying, “I am interested in this particular topic, and I want to know what documents the government has every six, eight, or ten months.” I think there is an obligation for governments to work with those people to help clarify what they are looking for so that it becomes less adversarial. I would be very cautious about vexatious requests.

[Raj Saini, Liberal, Kitchener Centre, ON]

I'll just pick up on the topic that was discussed earlier regarding fees.

In the Newfoundland and Labrador model, what they have done is given a certain amount of time per request free of charge. They would deal with any third party request on a specific topic free of charge up to a certain amount of time—I think it's 15 hours—but for personal requests there would be no charge.

Do you think there should be a limit per request, as in the Newfoundland model, saying that we can give up to 15 hours per request free of charge, and for anything beyond that there would be a charge? Would that be something fair, do you think?

[Dr. Mark Weiler]

Currently, it's five hours that the government has.

[An hon. member]

Is that federally?