Information & Ethics Committee on May 12th, 2016

[The Chair, Conservative, Blaine Calkins]

Thank you, Mr. Long. We are at the seven-minute mark. That's the way it goes, but we will have an opportunity to go around the table, I am sure. We have a full two hours.

Mr. Jeneroux, you have up to seven minutes, please.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Thank you, all three, for being here today. For those of you who travelled here, thank you for taking the time to come before our committee. I believe it is important.

I would like to ask some questions, maybe more on the topic at hand and less about your backgrounds or character, if that is okay, and also to remind my colleague across the way that it has been about 200 days, not necessarily 80 days, that we have been in this new, “sunny ways” government.

We heard from the minister about frivolous and vexatious requests. He came before us about a week ago and indicated that the removal of certain fees and having certain fees is a way to filter frivolous and vexatious requests.

I am curious as to your thoughts. Hopefully, we have time for all three of you to weigh in on what you see as a hurdle in terms of making requests and, if there are certain requests out there that obviously the minister sees as frivolous and vexatious—I would imagine you don't consider your requests frivolous or vexatious—on a way to mitigate some of those.

[Vincent Gogolek]

I believe there are two parts to your question. One relates to fees as a way of dissuading requesters, and the second part is the actual proposals for some sort of legislative change related to frivolous and vexatious.

We actually prefer the second aspect. We think fees are not a very effective way of doing this. If somebody has resources and wants to, let's say, conduct a vendetta against a department, they are able to do that. The imposition of fees doesn't really change that.

However, bringing in legislative change to try to deal with.... As I set out earlier, we heard about the government's proposals only very recently, so we didn't have time to do a complete study of what happens across Canada. The numbers are very small, which doesn't mean they don't exist.

There are people out there who will abuse the system, and something has to be done. We would prefer that it be dealt with directly. We think it is very important that this be dealt with by the Commissioner, with the public body, the department, or the crown corp going to the commissioner and saying, “Here is this request; here are the circumstances”, where they have to meet the test—rather than just saying, “This requester has put in two requests in one month. We are completely swamped. I don't know what we are ever going to do. We are just going to ignore that, and if the requester doesn't like it, then they have to go to the commissioner.” I don't think that is the way to go.

[The Chair, Conservative, Blaine Calkins]

Mr. Conacher.

[Duff Conacher]

I certainly don't think it's needed. If the department wanted to deny disclosure, they would deny it. It would go to the commissioner, who would mediate it. That's what happens in Ontario, where the commissioner has the binding power. The mediators work out frivolous and vexatious requests, because the person is not requesting anything that is there or available, and they get things done in a couple of months in most cases.

Also, if you have an information management system that uses the Internet for the purpose the Internet works best for, which is to search for documents, and you proactively disclose and upload documents to the Internet, then you say to the requester, “It's there. Go and search for it yourself.” The way to solve this is proactively, not by creating another loophole. We need to close loopholes, not create new ones.

[Ezra Levant]

The Prime Minister said $5, and if you don't get it in time, you give that back. I think that $5 is enough to stop absolutely wasteful people, but it's not too high to stop low-income people, let's say, or people on a budget.

On the question of what a frivolous complaint is, let me give you an example. Did anyone drink a $16 orange juice? That sounds so trivial, small, and frivolous, but a lot turned on that. What to one person is trivia can be important to another. I think the bias should be toward openness.

Again, just because the Prime Minister's video is fresh in my mind, one of his key points was to modernize it. It's true. A lot of the cost involved is for physical photocopying. Why would you do that these days, when things can be done electronically? I think the vexatious aspect of making someone photocopy can be overcome just through technology. I really believe that.

Finally, if someone truly were vexatious, in civil court you could have them deemed to be a vexatious litigant by a judge, but you would have to really go and make your case to deny someone their day in court. By definition, I think governments find all critics vexatious and troublesome, until they're on the outside, in which case what they are doing is called “noble inquiry”.

We're in a building that calls the biggest troublemaker in the country Her Majesty's Loyal Opposition and gives them a free house. We love troublemakers in Parliament. It's the nature of our system.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Wonderful. Thank you.

We have about a minute, so maybe we'll start with you, Mr. Levant.

Cabinet documents remain confidential in a lot of ways. The minister would obviously like to keep things related to national security and certain other parameters around cabinet documents confidential. I'm curious. In your opinion, should more be available from cabinet documents?

[Ezra Levant]

I'm going to yield to my friend. I think I'm more respectful of cabinet confidences than, perhaps, my friends are.

I understand there has to be a place where the most frank conversations can be had, those that would be embarrassing to the country, not just to the politicians, if they were made public. I don't mind embarrassing politicians anytime, but the country and its interests should be protected. I think cabinet could be such a place.

My friends have more history on this file than I do, and they may have more insight.

[The Chair, Conservative, Blaine Calkins]

We're at the seven-minute mark.

Mr. Gogolek and Mr. Conacher, perhaps you could give us just quick responses to that.

[Vincent Gogolek]

What we're talking about here is not throwing open the doors of cabinet. We're talking about protecting the legitimate interest with an exemption, the same way other important interests, such as national security specifically, are protected.

What we have right now is a blanket claim for a class of documents nobody gets to look at. No third party, commissioner, or court gets to look at them, and that has to change.

[Duff Conacher]

I agree. If the commissioner has the power to look at any document, then the exemptions become legally regulated as opposed to being at a whim.

The commissioner and everyone in the commissioner's office are under oath. There is no reason they can't see any secret document, and there's no worry about having those disclosed to anyone unless they should be disclosed under the law.

[The Chair, Conservative, Blaine Calkins]

Thank you.

We're well past the time, Mr. Jeneroux, and we appreciate the committee's patience.

Mr. Blaikie, go ahead for up to seven minutes.

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

Thanks to each of you for your presentation. I want to follow up with Mr. Gogolek and Mr. Conacher.

Both your organizations at various times have advocated for expanding the access rules, not just to government organizations proper but to ones that are controlled by government or significantly funded by government.

I'm wondering, on the issue of exclusions, creating loopholes or black holes, the extent to which claims about sensitive commercial information at that point can be used as governments contract out services, and whether your organizations have experience in cases where contracting out to third parties has created the kinds of loopholes or denials of requests for information that you're concerned about regarding exclusion, let's say, for cabinet documents.

[Vincent Gogolek]

There seem to be two parts to the question.

One is commercially sensitive information, which has its own exemption under the act. That gets applied, and should be applied in the normal way, hopefully by the commissioner with order-making power.

In terms of expanding the scope, and Mr. Conacher talked about that earlier, we in our larger submissions talked about extending this to private organizations that receive or carry out a governmental function and receive large amounts of government funding.

In terms of examples, in British Columbia there was considerable outsourcing done, which we take no position on in terms of policy. In 2004 we asked for copies of the contracts, and one of them was with IBM, for the maintenance and the running of the government computer system. The government fought us for eight years. After five years we started having birthday parties for the freedom of information request. They still fought us. They took us to court after we won at the commissioner...and they lost every time. Eventually they had to fold.

It does give you an indication of how sometimes these things can be fought.

Mr. Conacher, we agree that there should be a broader criteria, that it shouldn't be up to the minister to put something in a schedule rather than having it, by definition, included.

[Duff Conacher]

I'll just be brief.

I agree with all of that. Publicly funded public function institutions can't be created by government and exempted from this and any other key accountability law that people struggled for decades to have cover every institution that is spending the taxpayers' money or serving a public purpose. It should be automatically covered. Then an organization could appeal to the commissioner, and then to the courts if they thought they should not be covered by the act, but I don't think most of them would. I think you would just solve the problem that way and get rid of this danger.

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

Just for clarity, for my sake, currently do the exemptions or exclusions for commercial interest operate as an exemption or as an exclusion?

[Vincent Gogolek]

They operate as an exemption.

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

Okay.

Is that something, then, that's already monitored by the Information Commissioner?

[Vincent Gogolek]

She's only able to make recommendations. She can't order something to be produced.

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

When we've had various government officials here, including the minister, and we've talked about duty to document, a quick response from them is that, well, this already exists, it's in Treasury Board policy.

Can you highlight for us, when you talk about a duty to document, what exactly it means to go above and beyond policies that are already here, and why the current policy is not sufficient?

[Duff Conacher]

I can start on that just briefly.

A duty that's written down in a policy is not a duty unless there's an enforcement body. It's just a best practice. It's law enforcement 101. If you have a sign on the side of a highway that says you can only go this fast, and everyone knows there's no police ever watching, people do not follow that rule.

There are no police who can watch now on that duty to document because it's not a legal requirement. Even if it was a legal requirement under the act, the commissioner can just watch you go speeding by and can't stop you, because she has no power to stop anyone.

[Vincent Gogolek]

I'd just like to follow up on that with a couple of things.

One is that your equivalents in British Columbia yesterday came out with a recommendation that the B.C act be amended to include a written duty to document, and to include it in the Freedom of Information and Protection of Privacy Act, where our commissioner, who has order-making powers, would be able to deal with that.

I'd also refer you to the joint statement of the information commissioners in this country who called for this to happen. I think it's important for the committee. If you're looking to bring forward recommendations for potential quick-wins legislation this fall, including this would be important, because otherwise we're waiting until 2018 to even start talking about it. This is something that's going to start happening, and this is an opportunity for this committee to recommend that the federal government be ahead of the curve for once.

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

Would you say there's a real risk of losing important information because of a failure to document in the interim? If we wait, that is a period where there may be important information that simply no longer exists because it was never generated in the proper way.

[Vincent Gogolek]

In terms of a risk, yes.

[Duff Conacher]

I would just echo that, in particular with the amount of new government spending. It's a more dangerous time than ever right now with that amount of public money going out the door and no duty to document. That's when you get waste and, historically, corruption and abuse.