Information & Ethics Committee on May 5th, 2016

[The Chair, Conservative, Blaine Calkins]

Good morning, colleagues. I'd like to welcome you all back to this meeting. This is meeting number 12, pursuant to Standing Order 108(3)h)(i). This is another meeting on the study of the Access to Information Act.

We are very privileged today to have with us for the full two hours the honourable Scott Brison, President of the Treasury Board. Accompanying him is Ms. Jennifer Dawson, who is the deputy chief information officer. We will have an opening set of comments from the minister.

Minister, we have the full two hours. Usually, we keep it to around 10 minutes, but if you need a little more time I think that's more than fine. We will then go around the room and go through questions until everybody is satisfied. We thank you very much for making yourself available for this very important study.

Mr. Minister, welcome. We'll start with your opening comments.

[Scott Brison, Liberal, President of the Treasury Board]

Thank you, Mr. Chair.

I also want to welcome our parliamentary secretary, Joyce Murray, and all of you committee members.

On June 2, it will be my 19th anniversary as a member of Parliament. At that point, I will have spent about two years in government and the rest in opposition. I've been on committees of Parliament for 17 of those years, and I tell you, it is from that perspective that I value the important work done by committees of Parliament. We intend on fortifying the roles of committees and of parliamentarians as we work on legislation and consult with Canadians. I thank you for the important work that you do on this committee.

I'm pleased to be here with Jennifer, our deputy chief information officer, to speak with you about access to information reform.

I would like to thank the members of the committee for their proactive approach to exploring the Access to Information Act and offering solutions to make it serve Canadians better.

This act is out of date. It hasn't been updated significantly since receiving royal assent, back in 1983. This is incredible given how much Canada has changed, particularly in terms of the changes to how information and data are produced, stored, and shared. All those areas have been revolutionized. Email, social networks, and smart phones rule the day, and we need to modernize ATI to reflect these realities.

We also must change the culture around government information. We need to move toward a culture of “open by default” when it comes to information. Our Prime Minister has recognized that for a long time. In opposition, he actually tabled a private member's bill, Bill C-613, to help modernize the act. During the campaign, our platform made commitments in terms of modernizing the act. These were actually reflected in my mandate letter, which, as you're aware, has been made public, as have all the mandate letters of ministers.

In my mandate, the Prime Minister asked me to:

Work with the Minister of Justice to enhance the openness of government, including leading a review of the Access to Information Act to ensure that Canadians have easier access to their own personal information, that the Information Commissioner is empowered to order government information to be released and that the Act applies appropriately to the Prime Minister’s and Ministers’ Offices, as well as administrative institutions that support Parliament and the courts.

Now that we're in government, we're acting on these commitments to strengthen and revitalize access to information.

Later today, I am issuing an interim directive on the administration of the Access to Information Act. I'd like to begin by speaking to you today about some of the immediate changes we would like to implement and intend on making today. This directive is guided by the principle that government information belongs to the people it serves and should be open by default.

It guides institutions on how to administer the act in ways that are consistent with our commitments to more open government.

It emphasizes that government information belongs to the people.

The directive stresses that providing access to government information is paramount to serving the public interest. It enables public debate on the conduct of government institutions and strengthens the accountability of government to its citizens, and indeed, the role of citizens and of parliamentarians.

The interim directive also stipulates that, from today forward, all fees apart from the $5 application fee will be waived. When feasible, requesters will receive information in the format of their choice, including open, reusable, and shareable formats.

These concrete measures make early progress on our commitments.

This is just the beginning. We are also moving forward with a two-step legislative plan I announced recently. We split the legislative reform into two phases and issued a directive right away specifically so we could make improvements to the Access to Information Act immediately.

Next we will table legislation that will include the implementation of the rest of our platform commitments. We also will bring forward significant improvements identified through public consultations and through the work of this committee. These measures will shed more light than ever before on the government.

One, we will give the Information Commissioner the power to order the release of government information. Two, we will ensure the act applies appropriately to the Prime Minister's and ministers' offices, as well as administrative institutions that support Parliament and the courts. Three, we will implement a mandatory five-year review starting in this mandate to ensure the act stays up to date and consistent with modern needs and technology. Four, we will improve response times by addressing the problem of frivolous and vexatious requests to ensure the purpose of the act is respected. Five, we will improve performance reporting. We want to make sure evidence guides our decision and we can measure results.

These are significant changes. Take, for example, expanding the application of the act to ministers' offices. For the first time, Canadians will have an expanded view into the decisions of government.

This is significant reform that will involve every department, every minister's office, the Prime Minister's Office, the courts, the Information Commissioner's office, and this committee. We are engaging with Canadians in Parliament because we need to get this right as we work to develop the proposed legislation.

Your committee's input will be important to this process, and I particularly value the committee's advice on how to proceed on some of the government's commitments. I would like to address a few of those.

One, what is the best approach to enable the Information Commissioner to order the release of government records, and what are the implications for the commissioner's other responsibilities?

Two, what special considerations would need to be taken into account in extending access to information to the Prime Minister's Office, ministers' offices, and administrative institutions that support Parliament and the courts? How can those considerations be addressed?

Three, we've now eliminated all fees except the basic $5 administrative fee, but we need to filter vexatious and frivolous requests if we want to make the system timely and efficient. I would ask this committee, is the $5 fee the best way to do that, or is there a better way? I know there's been witness testimony on different approaches to this, and I'm looking forward to hearing your views and through your report informed by witnesses what some of your ideas are in terms of the best way forward on this.

Another question is, would the public interest be best served by allowing institutions and the Information Commissioner discretion to not process access to information requests or complaints that are frivolous or vexatious, and how would that be determined?

Another question is, how should we assess performance of the access to information program? Ongoing measurement of the performance of it is important so that we can understand how this is working from a results perspective.

These are important questions. Once we've completed our consultations, we intend to introduce legislation in late 2016 and early 2017. I stress the work of this committee is important as it will inform our crafting of this legislation.

The second step of updating the ATI legislation is to launch a full legislative review, which will begin immediately after the first phase of legislative changes and will be completed some time in 2018.

This mandatory five-year review will guarantee that no government in the future can allow the Access to Information Act to become as outdated and out of touch as it currently is. It will provide a more in-depth assessment of how we can continue to build on the changes we've introduced and whether those changes are meeting their objective of better serving Canadians.

Some have asked why are we waiting until 2018 for the full review. Very simply, we want to understand how the first round of legislative changes is working. We want to better understand those changes and how they're working before the whole legislative review, the first of reviews that occur every five years after that.

Colleagues, I want to reiterate these proposed reforms are just the beginning. We're committed to more open and transparent government. Our budget reinforced that commitment with specific investments, including doubling existing resources to open government initiatives, $11.5 million over five years for Treasury Board Secretariat's open government activities, and $12.5 million over five years to enhance Canada's access to government information, including Canadians' own personal information.

These are important investments in open government.

Open and transparent government is the way forward. If citizens understand why their government takes a particular course of action, if they have been engaged from the beginning, if they have access to the same information government has, they will have more confidence and trust in the outcomes.

The idea of engaging Canadians early, and providing them with more of the same information we as legislators and as members of government have as we make decisions, is simple—that we believe in the collective wisdom of Canadians. Engaging them early means that better decisions can result from more open engagement, and that those decisions will also co-emerge with more public support because the public has been engaged from the beginning, as has Parliament.

Canadians have waited a long time to have their access to information regime modernized to meet current needs. I look forward to working with this committee. Your input and advice on how we can make improvements to the system is of great value.

We look forward to answering your questions.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Minister. We appreciate it very much. As a committee, we look forward to going through this process with you.

We will proceed to our questions right now. We have a seven-minute round for the first four questioners. We'll start with Mr. Lightbound.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

Thank you, Minister, for being here today with us.

For my first question, I will start with what you just mentioned about the budget. I'll do it before Mr. Jeneroux does, because I am sure he will talk about the budget.

You mentioned that in the 2016 budget there is $11.5 million over five years for the Treasury Board, and $12.9 million over five years to enhance the government's open government ambitions.

I was wondering if you could tell us maybe a little more concretely how that is going to help the government try to achieve a more open government, and how the money is going to be used. In your mind, is it sufficient?

[Scott Brison, Liberal, Kings—Hants, NS]

First of all, investments in technology and human resources are key to this. These investments over the next five years will help.

At the Treasury Board, as a central agency, we reach into every department and agency and have relationships across the Government of Canada, so part of what we do on an ongoing basis is evaluate, for instance, the capacity of any department or agency to comply with central mandates of the government, including to modernize access to information, as we move forward.

One of the things we intend to do is work closely with all departments and agencies to ensure that we have the resources and the people in place to meet our commitment to open government as the access to information law changes. This is extremely important. It is a significant change, and I want to be the first to tell this committee that as you make significant changes there will always be challenges. The only way to avoid challenges or potentially even errors in implementation is to do nothing. We intend to make significant changes, and we will do our darndest to get it right. As we move forward, we are going to encourage public servants in departments to take intelligent risks and to make good decisions, but we understand the gravity of what we are seeking to achieve.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

We heard from Professor Drapeau, from the University of Ottawa, who talked about the role of ATI coordinators, who deal with the bulk of the access to information demands within each department. He mentioned in his remarks here that ATI coordinators “need the status, independence, and authority” that would flow from a Governor in Council appointment. That was his recommendation. We have had other witnesses who have disagreed with Mr. Drapeau.

I would like to hear your thoughts on what an improved role for ATI coordinators could be.

[Scott Brison, Liberal, Kings—Hants, NS]

I'd be interested in the committee's views on that. I can say as a minister that the practice of ATIP coordinators within departments is independent. For ministers and ministers' offices, the practice is not to communicate or engage with ATIP coordinators. They are independent, and decisions on ATIP requests, as an example, are made at the officials' level and ought not be influenced by ministers or ministers' offices.

As I understand now, these officers are in fact independent as public servants, and that can be one of the things you address in your report.

Jennifer, do you have any additional—

[Jennifer Dawson, Deputy Chief Information Officer, Treasury Board Secretariat]

Yes. From my perspective, I would say that ATIP coordinators definitely are facilitated and acting in an impartial manner. There's a limited delegation of discretion under the act, and ATIP coordinators act in a manner that is distinct from the rest of the operations of the department. Again, in support of what the president has said, we welcome views of the committee, and that's something we can take a look at.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

My other question is regarding the timeline you've outlined. I see that the full review will occur no later than 2018. Do you think this will leave enough time to see if the changes made to the legislation in 2017 are effective? If we start that review no later than 2018, right after the changes have been made, the initial changes, will that leave enough time to really assess the efficiency of the first wave of changes?

[Scott Brison, Liberal, Kings—Hants, NS]

It's a good question. I believe it will give us some time. Obviously, when you make significant changes, a longer period of observation and measurement of results and unintended consequences will give you more information, but we felt it was important to establish and implement the first review.

Again, this review will occur every five years. Regardless of whatever government is in place, every five years there will be a mandatory review of access to information, which will prevent the situation that we're in now. An act in 1983 that hasn't been modernized since then—you think of it. In 1983, K-cars were hot—well, to the extent that K-cars ever were hot. The point is you weren't born.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

I wasn't born.

[Scott Brison, Liberal, Kings—Hants, NS]

Mr. Lightbound wasn't even born at that point. Thanks for making me feel old here.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

Anytime.

[Scott Brison, Liberal, Kings—Hants, NS]

We are in an absolutely digital world now. Fax machines were still a big deal back in 1983. We never want to be in this place again, and I know we won't be if we get this right in terms of the ongoing review.

[The Chair, Conservative, Blaine Calkins]

That pretty much wraps that up, as entertaining as that was becoming.

We now move to Mr. Kelly for seven minutes, please.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Thank you, Minister, for coming to see us today. We really appreciate having you here.

I listened carefully to what you had to say, and I would agree with much of what you said, particularly the necessity of modernizing this legislation. I don't think there's any doubt about that. You mentioned in your speech the attention to the value of committee work and I think you said the fortification of committees and whatnot. However, I have to point out that you went on from there to announce a whole series of changes that you are making without the benefit of hearing a report from this committee.

You mentioned—it's in the budget, in fact—that you are going to an order-making model. You announced today that you are dispensing with all fees, other than the $5 application fee. We have spent the last 11 or 12 meetings of this committee—no, we spent some of them on privacy, but we've spent a number of hours of committee time toward hearing witnesses who have given us expert opinion on what steps the government should take, and yet here we are being told what steps you're taking without being able to deliver our report, which will be out in June. We're working quickly, focusing our attention to this.

I'd like you to comment on how the process that's under way is actually one that reinforces the importance of committee work.

[Scott Brison, Liberal, Kings—Hants, NS]

Thank you very much, Pat.

This is one of the challenges of being in government, and you'll understand this, because we're all politicians here. Before the election, the Prime Minister made commitments as part of a private member's bill. In our platform we made commitments. In my mandate, those commitments are reflected.

Now, if I didn't keep those, if our government didn't do that, I'll bet you dollars to doughnuts that you would say we were breaking our promises.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

You could have said you're waiting for the committee—

[Scott Brison, Liberal, Kings—Hants, NS]

We're actually keeping our promises, but let me tell you that we are also committed, and we've made that commitment, to evidence-based decision-making, which means that if you and this committee can help inform us on ways we can improve on some of these measures, we will take your advice seriously. I mean that.

I flagged one area today, for instance; the removal of all fees except for the $5 one. I've read some of the testimony of witnesses before this committee, and they've made some compelling cases in terms of different models on this. I've talked to the chair about it, and he mentioned Sweden's model in terms of some of this.

You're doing important work here, Pat, and I take it very seriously. We as a government take it seriously. We don't view committees as branch plants of ministers' offices. You are here, as important legislative vehicles, to produce and to evaluate public policy. Rest assured, your work will feed into our legislation. But there are some commitments that we have made to Canadians to which we are absolutely committed. That's important, but your work here can help strengthen those and improve those.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

I certainly hope so. I would have thought, though, that in terms of promises made and promises kept, it would have taken you only a few more weeks to wait until this committee reported.

[Scott Brison, Liberal, Kings—Hants, NS]

But keep in mind...you're right, and that's why I think the timing of this committee is excellent. Over the next several months we will be able to benefit from the work of this committee and through other consultations, including with the Information Commissioner and her office, the Privacy Commissioner and his office, and other stakeholders and experts. This committee is a vital part of that.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

I'm certainly not, by using this example, prejudicing the outcome of our report. We'll weigh all of the evidence we've heard from a variety of witnesses.

For example, Professor Drapeau made, in my view, a very compelling presentation to this committee. Among other things, he suggested...well, he didn't suggest, he said quite explicitly that the existing ombudsman model for access to information is the correct model. In his opinion, the failings and shortcomings of access to information owed more to misallocation of resources within the office and a pervasive culture of secrecy within government departments. It transcends all governments and goes back decades.

Were we to support that, for example, and recommend retaining the ombudsman model, you have already said in your budget that this is not what you're going to do. So how much weight will this committee carry when you make your decisions?

[Scott Brison, Liberal, Kings—Hants, NS]

We will be guided by evidence.

I've known Michel Drapeau for a long time, in fact back to the late nineties, when you and I first met. He's an intelligent, sage person. Of course we'll look at what he has to say, and what others say. We will be interested in these views.

We will be interested in your report, but not just your report. I've been on these committees. The reports are good, but sometimes some of the witness testimony that doesn't necessarily make it into a report is also helpful. You learn something through some of that testimony. We intend on following both the report and the testimony that helps inform the report.

I go back to the fact that your work here is important, and it will help us as we determine how to move forward. We won't have the legislation ready to introduce until late this year or early next year. There will be plenty of time to review the work of this committee. On an ongoing basis, when the legislation is tabled, it will come to Parliament, and this committee will have an opportunity to go at it again.

[The Chair, Conservative, Blaine Calkins]

That's very true.

Thank you very much, Mr. Kelly.

We'll now move to Mr. Blaikie for seven minutes.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Thank you, Mr. Minister, for being at the committee.

One of the challenges for Canadians and for parliamentarians, with the new government, is trying to read the tea leaves, as it were, to get a sense of what they can trust government to follow through on and where they ought to be skeptical, and to do the work of holding government to account.

What we see, even here today in the document, is a directive to be open by default. That's something the Prime Minister talked about before and during the last election. I'm trying to square that with the parliamentary budget officer's assessment of the information provided to him as part of the last budget, about which he says:

The Government did not provide [as per best practice] detailed tables that identify the impact of changes to its adjustment to the private sector forecast and....

How is it that a culture that's open by default fails, in this new context, to provide the information that heretofore had routinely been provided to the parliamentary budget officer?