Thank you, Mr. Chairman.
It's a pleasure to be here. It's not the first time. Actually, when we appeared in 2009, in a previous demand for changes to the act, we mentioned that the act had been around since the Chrysler minivan was a new thing. I know the Treasury Board president was talking about the K-car earlier, so we have some things we agree with and a number of things we don't. Hopefully this committee will look at the recommendations as something that will be as long-lived as the minivan rather than as short-lived as the K-car.
There has been a crisis in terms of access to information for some time. The act has not been changed, as everybody knows, since 1983, not in any substantive way. You heard from a number of witnesses, including the commissioner, that a number of amendments need to be made.
The Treasury Board president talked about bringing forward a limited number of amendments this fall. He used the term “quick wins”, which in British Columbia has a rather unfortunate connotation. Be that as it may, we understand that what the government is looking at doing is a small number of amendments now, and then the comprehensive review in 2018.
Given the seriousness of the problems, we think this is very unfortunate. We would have preferred to see the major review happen sooner—at this time—to deal with the many, many required amendments. We have proposed a number. We've set them out in our written submission to you and in earlier submissions, which are referenced in that report. I'll just touch on some of the main points and try to reinforce some things that need to be dealt with.
We draw some comfort from the fact that the government proposals, which were released earlier, go beyond a simple restatement of what the Liberal Party promised during the election campaign. Hopefully the government will be as quick to adopt a number of vital changes that have already been proposed by a number of witnesses before this committee, particularly the elimination of the cabinet exclusion and the creation of a legislative duty to document.
We are much less pleased to see that a number of the additional changes set out in the proposals could have the effect of reducing or negating promised improvements. These include a possible ministerial override of the Information Commissioner's order-making power and handing government departments the power to ignore requests, or bar requesters, on the grounds that they are frivolous or vexatious.
I'll just quickly run through some of these things. I've organized them, just for simplicity, in accordance with what the government has proposed, but I would again draw your attention to the fact that there is a very long list of proposed amendments. We are not backing away from those. We are just dealing with these, if the government is proposing to bring in matters of priority, as some things that absolutely must be done.
First of all, we applaud the government for carrying through on its commitment to eliminate fees. We do find it a little puzzling, though, that a government that is having financial problems is insisting on maintaining the $5 fee for applicants to exercise their right to information. As the government's own materials point out, the cost for processing each and every one of those $5 cheques or $5 in cash is between $50 and $55. This is a net loss, a very large net loss, to the Treasury of Canada. We don't know why the government just doesn't bite the bullet, get rid of the $5 fee, and save the money. Even with electronic processing, where the cost is considerably reduced, if even 10% of requests come in with cash or cheques, the government is losing money. We urge you to save the taxpayers money and get rid of the $5 fee.
It also has the happy consequence of improving access.
We also look forward to appearing regularly on a five-year review. This is a very good idea, long overdue, and the B.C. Legislative Committee just reported yesterday after their review so I urge that to you.
We have been calling for order-making power for some time, and we look forward to seeing the commissioner being given full order-making powers. We are not in favour of half measures. The government's own studies have supported this for many years. It has been recommended for decades now, and we urge this on you.
We have a commissioner with order-making power in British Columbia as do a number of other provinces. The system has worked well. It provides more immediate relief and direct access for requesters, and we feel that is a much better way.
An item we are concerned about in the government's proposals is the inclusion of the possibility that the government may bring in a system similar to what they have in the U.K. with ministerial override of orders of the commissioner. We think this is a bad idea. In fact, the U.K. Supreme Court thinks it's a bad idea.
You may or may not be familiar with the Prince Charles's black spider letters where The Guardian fought a very long battle to get copies of Prince Charles's letters to a number of cabinet ministers. The government overrode this, and The Guardian took it all the way to the top court in the U.K., which said that the idea of a ministerial override of a quasi-judicial tribunal is contrary to a number of principles of the rule of law, and they struck it down.
Rather than heading down that road, we would urge you to follow what has been tried and true in a number of Canadian jurisdictions and give the commissioner full order-making powers.
We also congratulate the government in bringing ministers' offices and the PMO under the scope of the act. This is a good idea. It's something that has been called for for a while, and it's necessary in light of the 2011 case involving the Information Commissioner and National Defence.
However, we are concerned about a qualification that was not in the Liberal Party platform. The proposals say that the Access to Information Act applies appropriately to the Prime Minister's and ministers' offices. We don't know what the word “appropriately” adds or subtracts, but we don't get a good feeling about this. It should apply, and the commissioner with her order-making power or the courts will decide what is or is not appropriate. We don't see any need for this qualification.
B.C. ministers' offices have been covered since the beginning of the act in British Columbia back in the 1990s, and we have had no problems with this. There are existing models in Canada for this, and we look forward to seeing this coming about.
A very large problem, and a problem that overrides probably everything else if it's not dealt with, is the exclusion of cabinet documents. Every witness before you has recommended this be changed, or if they haven't, they certainly have not recommended that the cabinet exclusion be maintained.
We would like to see all the exclusions removed, as does the commissioner, as do a number of other witnesses. However, the exclusion means it ousts any possibility that the commissioner or even the Federal Court can look at records and review them if the government says they are confidences of cabinet, which means there is no third-party review.
This is not just a theoretical possibility. In her latest annual report Commissioner Legault found that, “Institutions invoked section 69 more than 3,100 times in 2013-2014. This is a 49-percent increase from 2012-2013, which followed a 15-percent jump the previous year.”
Clearly, this is being used more and more. There is no way to tell whether or not in good faith that this exclusion is being properly invoked. In B.C. and other jurisdictions our commissioners have been examining cabinet documents for decades. There has been no problem. We have not seen the collapse of responsible government or anything close to it. I would urge you that if any of the other reforms that are being proposed are to have any real effect, this loophole must be closed.
You've also heard from a number of witnesses, including the commissioner, calling for a legislative duty to document. This was not part of the government's proposal. It has been a matter of some controversy in British Columbia and in Ontario where documents have disappeared or documents have not been created. Our commissioner in British Columbia brought a report in October 2015, which I would urge upon you, outlining the circumstances of how documents are either not created or, in some cases, are destroyed even in response to an access request.
The British Columbia committee—your equivalent, the special legislative committee reviewing the B.C. act—made a number of recommendations in a report they released yesterday. One of them was the creation of a legislative duty to document. All of the commissioners in this country have called for this and we urge this upon you.
Something else that was not included in the Liberal Party program, which was part of this, is frivolous and vexatious requests. This problem is actually very rare. In British Columbia between 2010 and 2014 we've had 20,000 requests and we've had 20 applications—that's applications—not granted, not imposed, but 20 requests.
This is a very rare problem. We're not opposed to having this brought in but we do think that this must be done by the commissioner. This should not be done by the public bodies.
I believe my time is up. I thank you and I look forward to your questions.