Thank you, Mr. Calkins.
Thank you to the committee for this opportunity to testify—I'm tempted to say “yet again”—on the Access to Information Act. I was here in 2000, in 2006 with the Federal Accountability Act review, in 2009 with the committee review, again in 2011, and twice in 2013. Just over a year ago we saw the release of the Information Commissioner's report, and then finally we saw a statement in December 2014 by the Treasury Board President, Conservative Minister Clement at the time, acknowledging that the act needs to be changed.
So we've had all these consultations now going back 15 years and then back before that to July 11, 1994, when then Justice Minister for the Liberal government, Allan Rock, said the act was out of date and needed an overhaul.
Through all these reviews, thankfully, I have not been holding my breath. Otherwise, I would not only be greyer than I was back when the reviews started, but also dead. I'm hoping there's going to be action this time. I am greyer. I am also getting a bit tired of coming before the committee and having the committee recommend if not unanimously then almost unanimously significant changes and the government promising those changes as the Conservatives did in 2006, and yet nothing happens, over and over again.
What we have currently, if it were accurately titled, is a “guide to keeping secrets” act. We do not have an “access to information” act, and we haven't since 1983. Some argue that it was actually better before 1983 because there wasn't a guide that was so clear about rubber-stamping what was unethical and secretive as legal. I don't agree with that entirely but definitely the exemptions in the act are so broad that we have essentially what amounts to a guide to keeping secrets act, not an access to information act, and definitely not an open government act.
I echo very much what my colleague Vince has set out. Those recommendations and a couple of others that I'll highlight are endorsed not only by Democracy Watch, the group that I coordinate, but also by the Open Government Coalition, which is made up of groups with a total membership of more than two and a half million Canadians.
Let me just go through a few of these recommendations. They are all recognizable because they are essentially the same recommendations and promises that the Conservatives made in the 2006 election campaign, in terms of strengthening the act and the overall access to information system. Unfortunately, only one of the promises was partially kept and that was the extension of the act to dozens more institutions that were not covered before 2007 when the Federal Accountability Act came into force.
The Access to Information Act should cover all federal public and public function and publicly funded institutions automatically. They should not have to be added to a schedule by anyone. If an institution wanted to be exempt after it had been created, it would apply and the commissioner would decide whether that definition applied or not with an appeal to the courts. Having to add more and more institutions means creating new institutions that are not going to be subject to the act for years and years.
The Information Commissioner must be given the power to order the disclosure of any record and with that power, of course, comes the right to see any record. No exemptions should override the Information Commissioner's power to review a record and decide whether the act applies and the record has to be released.
The duty to document, as was mentioned, is very important. There should be a record of every decision and action and if the Liberal government is going to actually follow through on its promise to be open by default, that would mean that those records would be proactively uploaded onto a searchable Internet website system and therefore almost everything would just be available online and no request would have to be filed. That kind of an information management system would solve a lot of problems that are caused by the current guide to keeping secrets act.
Proactive disclosure beyond that, of course, would also have to mean closing a lot of the loopholes and exemptions, which are very excessive, that exist in the act. As the Conservatives promised in 2006, there should be a public interest override that covers all exemptions and even overrides all secrecy acts, the only exception being that disclosure could be refused under a “proof of harm” test.
The big, difficult areas, which almost everyone acknowledges are difficult, are the areas of disclosures that could harm relations with other countries, international relations overall, the defence of Canada, law enforcement, including national security, and also someone's personal safety or sensitive personal information. In those areas, yes, there will need to be exemptions, but give the commissioner the right to make the decision as to whether an exemption applies in every single case, with an appeal to the courts. That's the way the system would work most effectively and would ensure openness by default.
As well, in particular, as has been highlighted by my colleague, the act must cover the information and the options provided to cabinet ministers' offices and Parliament and also be extended to the Ethics Commissioner and the Senate ethics officer, who are currently exempt.
Finally, concerning information management systems, all information should be disclosed in a usable format for free, without unjustifiable delay. The public already pays for the creation of this information and its maintenance; they shouldn't have to pay to also get disclosure of it.
The Information Commissioner should be given the power to impose fines for violations and increase the fines for convictions. Convictions under the act should be faced with a more severe penalty than just things such as delay.
In terms of the Information Commissioner's being an independent watchdog, currently the commissioner is selected solely by the ruling party; yes, in consultation with the opposition party leaders, but the opposition party leaders don't actually have a say. It should be at least either all the opposition leaders, or a majority of them, approving the appointment—of all officers of Parliament, not just the Information Commissioner but anyone who is watching over, mainly, the ruling party in government.
The commissioner herself recommended that two-thirds of MPs approve the appointment. I don't like that method myself, because one party could hold two-thirds of the seats in the House, so then it's still the ruling party approving it only.
Beyond the act and the information management system, and changing it from a “how to keep secrets” act to an actual open government act, I urge the committee to continue, as it does, examining the overall open government system at the federal level.
There are still outstanding, serious issues with muzzling government scientists—the policy has not been changed concerning their being able to speak freely to the public and the media about their research—and with the Lobbying Act, or as it accurately should be called, the “only some lobbying” act, as it has massive loopholes that allow for secret and therefore unethical lobbying; and the Public Servants Disclosure Protection Act, which if it were accurately titled would be called the “public sector lack of disclosure protection” act and which also has enormous problems. Also, there are MPs' expenses.
The parliamentary budget officer lacks independence and powers that really echo what I'm saying about the Information Commissioner, and all the officers involved in disclosure should be given these powers to penalize and to oversee anything they want to with again an appeal to the courts, if the government feels they're acting unjustifiably.
I'll leave it at that. I look forward to coming back to the committee to talk about the “only some lobbying” act and the “public sector lack of disclosure protection” act, and hopefully on the “how to keep secrets” act.
Hopefully we'll get change sooner than that, so that I won't have to come back, because once again, I'm getting tired. But I welcome again this opportunity, and I'm not too tired to answer a few more of your questions.