Information & Ethics Committee on May 12th, 2016

[The Chair, Conservative, Blaine Calkins]

We're right at seven minutes, so thank you very much.

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

[Raj Saini, Liberal, Kitchener Centre, ON]

Thank you, gentlemen, for coming here today.

I don't want to belabour the point, but I think something that's come up through many other meetings is the question of fees. I want your opinion on that. Minister Brison has said that he would be willing to look at not charging the $5.

Let me give you a couple of scenarios and maybe you could comment.

One of the things we're studying is to make sure that the access to information is not only open to Canadians but is open internationally. Obviously, Canadians have paid for the service and they've paid for the infrastructure. I know that in Newfoundland they've changed the model in the sense that if you're requesting personal information there's no charge, but if you're requesting any other type of information there's a limit on how much time the person who's fulfilling the access to information request can spend doing the research to find the answer. I think that in Newfoundland it's 15 hours.

Do you believe that Canadians should have access to information within a prescribed period of time? As you know, requests for information can be simple or can be complicated. Should there be a limit on that time, and above and beyond that time should there be a charge? To level the playing field, especially since Canadians are paying for this regime, should we charge people internationally for access to information requests?

[Duff Conacher]

Well, I think there is now a reasonable limit of 30 days set in the act. Then, extensions can be requested because some requests, as you mentioned, do take longer.

Just to step back from it a bit in terms of a systemic issue, a request and search system is inefficient and wastes money. The Internet exists. When someone goes to a meeting in the government, someone else is there typing away the minutes, and then they send it around by email, and “click”. Just have a button where they can click and upload it. Then the request doesn't have to be made and someone doesn't have to be there fulfilling it. That's where the waste is and that's where the cost is. Modernize the system and use the electronic tools that are definitely there, as I know you're hearing from open data activists, software developers, and others. It's all there to modernize the system, get away from this inefficient access search system, and move towards simply a search system. The access is proactive. It can be done. It is a cultural change but in terms of electronic change it's already there. People are not going to meetings and writing down on pads, and if they are, they can snap it with their phone and upload it.

[Vincent Gogolek]

I'd agree with that. I think that over time, hopefully, as we become more open, and more information becomes available on the web, the actual number of requests will drop because people will be able to get access to things.

However, in terms of charging fees, one of the things that you and the government have to keep in mind is that if you're going to be bringing in some sort of charge where there's going to have to be administration and some sort of selection, it raises the question of how we apply this fee, who gets it, and how we do this. What we have now with the $5 is something that we've known about at least since 2009 when former information commissioner Marleau said the $5 cheques cost $55 to process. In 2009 it was $2 million, a $2-million loss based on the 40,000 requests that were received that year.

Before you go down the road of imposing new fees, I think you have to look very carefully at the effects, not just financial but in terms of access. We're in favour of having broader access for everyone. We can file information requests to the American government, and Ontarians or Newfoundlanders can file requests to the British Columbia government. We're talking about an open system. We should be more open.

[Raj Saini, Liberal, Kitchener Centre, ON]

Mr. Gogolek, in your submission to the committee, you said you were in favour of a mechanism that challenges the redactions made in records being proactively released by government. I just wanted to know how you would envision this working. Would it be done within ministries, or the commissioner's office? I found that very interesting, so I wonder if you could elaborate on that.

[Vincent Gogolek]

What we're looking at here is a way of actually helping the system in terms of making sure that what is going up is stuff that is actually useful.

I think the commissioner's office could be a logical place for this to be, because what will happen is that if information is not available online, if what is being proactively released by government is in a format that is not suitable, or you have extensive redactions that force people to file.... Because what happens if you go to the government website, and you find that your exotic information requirements are not being met by what they have, then you file an access request and say, “Well, I'm not finding it here. I would like this information.”

Ultimately, it's going to end up with the commissioner anyway, and this would be a way for these kinds of problems to be ironed out, as a mediation between the government on open data, or an open information user to be able to bring a concern, and say, “This is not helpful. I'm trying to use it for this purpose. All they have up is PDFs. I'd like an actual spreadsheet that I can manipulate.” I think it would help the system work better.

[The Chair, Conservative, Blaine Calkins]

Thank you.

We're going to move to the five-minute round now.

I just have one quick question for Mr. Gogolek. In your opening comments you referred to the “quick wins” as something that, in B.C., did not have a positive connotation, and you just referred to it again. Could you just edify me, out of my own personal curiosity? What are you referring to?

[Vincent Gogolek]

This is something that came up before the last election with the provincial government, where there was discussion of how, in terms of attracting different groups of voters, the government could do things that would result in what they called “quick wins”, which then resulted in various problems with records disappearing, and the use of non-government—

[The Chair, Conservative, Blaine Calkins]

Fair enough.

[Vincent Gogolek]

It was ironic. The minister, of course, being from the other coast, is probably not aware of that. We thought it was an unfortunate term.

[The Chair, Conservative, Blaine Calkins]

Fair enough. I'm from Alberta, and I didn't even know that.

Mr. Kelly, you have up to five minutes, please.

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

Thank you to the witnesses for attending today.

Mr. Conacher, in response to one of the questions, I was listening to you talk about taking hope from some of the rhetoric that is employed by the government. You thought this was very hopeful, at least, that there is much positive discussion in the air about openness and transparency. I would agree that it is nice to hear these statements, and we heard many very warm and wonderful-sounding statements from the minister when he was here last week. But the problem with this is that if the rhetoric ever later seems to appear to be mere lip service, the hope changes to cynicism, or at least skepticism.

I was particularly taken with Mr. Levant's story of the difficulty in getting the answer to a very simple question, it would seem; a form somewhere that any would-be applicant coming to Canada would have access to; that somebody would, after much argument, be told can't be made available for national security reasons.

Could you comment? I'll perhaps let each of you comment, but I'll start with you, Mr. Levant. What do you think of the credibility of the positive-sounding statements we have, and whether they are going to result in practice, or is this mere lip service?

[Ezra Levant]

I'm sorry. Could you put that last part again?

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

—the positive statements that we hear, of saying the right things about openness and transparency, but the facts of your case do not match up with that expectation.

[Ezra Levant]

I spent some time trying to get into the mind of the new government. I've watched more Liberal videos in the last few days than I have in my whole life. I believe it, actually; I believe that one of the motivations of Liberal MPs was a frustration such as all outsiders feel with not knowing what's going on on the inside. I believe there's enough idealism and goodwill there that I came here today in the hope, in the constructive hope that by showing some bad examples I would appeal to the better angels of a party that I have long opposed. It was to say, “Look, this is not who you are, certainly not who you say you are.” I'm hoping that was a case of someone under pressure who didn't want to do the wrong thing and embarrass her bosses; but if you get one, two, three, four, or five things in a row like that, I think....

With these exemptions, you can use your discretion and your wiggle room either way. I think these egregious examples that I showed today.... I believe there should be a national security exemption; I think it's being abused. I believe that the department should work hard for the government's mandate, but that has nothing to do with the person who has a job to disclose the facts.

Yes, I think it can be fixed, and I have to tell you, I rather like the Liberal plan—default to open, a five-buck hurdle, put things online.... I have to say that none of that offends me as a conservative. I think they can do it, if they mean it, and I'm here hoping they mean it. I think this can be fixed.

I think Duff is so right. The stuff is digitized anyway. You want to have someone look over it to redact personal details and other obvious exemptions. Duff said he's getting tired of coming here time and again. This is my first time before the committee, and I'm being naively optimistic. I think it can happen. I know that wasn't exactly your question, but I think the problems I encountered could be solved by a change in culture and leadership at the top. I really do.

[Duff Conacher]

I'll just say briefly that I've never heard Ezra say that I'm so “right” before, in another sense of the word.

The Liberals have a minority majority: the largest number of seats with the lowest percentage of votes since Confederation. They should be walking on eggshells. These issues are issues that swing voters swing on. They pay attention to how government governs as much as to any substantive issue. It has been proven across the country in the last 20 years: parties that have promised to do these things have won elections and those that have failed to do them have lost elections.

The Liberals have this chance of offering either hope or false hope. They should be walking on eggshells and had better come through, or they will disappoint and lose voter support very quickly on something like this. These are hot button issues: honesty, ethics, openness, representativeness, waste prevention. It all goes to transparency, and transparency is part of ensuring all of those things. These are hot button issues for swing voters, and they will swing very fast and viciously, if you disappoint them on these kinds of promises.

[The Chair, Conservative, Blaine Calkins]

That uses up your time, Mr. Kelly.

We'll now move to Mr. Lightbound for up to five minutes, please.

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

Thanks for being here.

I was inspired by Mr. Levant's story, but my question is actually for Mr. Conacher and Mr. Gogolek.

The commissioner recommends that extension be limited to 60 days and that if an institution wants to go beyond that, it needs to seek permission from the commissioner. What's your take on that in terms of delays and extensions for delay?

[Duff Conacher]

Again, it's an information management problem. Service Canada is having great difficulty just with the email system currently. There is a transition period that needs to happen. It has happened with lots of agencies. There are so many things from Canada Revenue Agency that you can now get online and file online. It's happening in parts.

But the overall information management system is the problem. That's why one of our recommendations is that the Information Commissioner be given the power to order changes to the information management system in an institution, if the institution is not complying with the act because of delay.

Having a 60-day extension rule as a cap is a good idea for changing the culture and forcing that change. But again, if the information management system is modernized, then it will change from an access system to a search system, and you won't have any of these problems and you will save a ton of money as well—for everybody.

[Vincent Gogolek]

In terms of the delays, what we have right now and what we saw with—I think it might have been Transport—in which the commissioner actually had to go to Federal Court and fight a battle over an 1,100-day extension that the government gave itself.... That's just not acceptable. At some point it has to fall to the commissioner to say: yes, department, this is a very large request; you get thus much more time.

This is what we have in British Columbia right now. There's a response period of 30 working days. There's also a 30-day extension that public bodies can take, if the request would overburden the department. In fact it's impossible to challenge the extension that the public body takes, because by the time you get a complaint before the commissioner for deemed refusal, the 30 days are up, so de facto what this amounts to is 60 days.

After that, the public body has to go to the commissioner to get an extension. We see no reason why that shouldn't be the case federally.

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

You mentioned, Mr. Gogolek, the scope of the act and said it should apply to institutions or organizations that receive large amounts of government funding. Do you have a de minimis range—say, for instance, that 50% of their funding comes from the federal government—or is your recommendation broader?

[Vincent Gogolek]

It has to be substantial, and it has to be related to a government function; it's not just that you get money. I'm sorry, but I think we set that out, actually, in our response to the commissioner's consultation. We have a longer response there with the precise detail.

We have to extend this and extend it as a description, rather than have bodies added and removed from a schedule as they do or do not meet the criteria. It should be definitional.

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

Thank you.

We've heard from Professor Drapeau from the University of Ottawa law school, who has mentioned the role of coordinators. He would give coordinators more independence, because access to information coordinators deal with 90% of the demands, and giving them more independence, he feels, would improve the system. Instead of always focusing on the commissioner, giving coordinators more power would be beneficial, in his opinion.

That's not the opinion of all witnesses we've had, but I am interested to hear whether you had a take on that question.

[Duff Conacher]

I'll say quickly that, yes, if you had a better information management system, coordinators would know what can be proactively uploaded onto the searchable website. Then you are just reducing requests and turning it into a search system wherein the public is searching, as distinct from having people run around inside government trying to find something.

Again, it all comes down to modernizing the information management system. It will save money, it will save time, and it will turn it into an open government system.

[Vincent Gogolek]

Independence and independence of mind of the ATI coordinators is vital; it's important. I'm not sure that the proposal to make them order in council appointees is the answer, because what we saw in British Columbia and in some other provinces is that what used to be bureaucratic, neutral civil servants in the communications department were changed into order in council appointments specifically to bring them under political control of the government of the day.

I don't quite understand, given that experience, why we would go down that road. In terms of ensuring independence, having provisions in the act about interference with the work of the coordinators is probably a better way to go about it.