Information & Ethics Committee on May 17th, 2016

[Francine Farley, Director, ATIP Operations, Management and CFO Sector, Department of Justice]

Under both the Access to Information Act and the Privacy Act, I feel totally comfortable to challenge certain cases where I feel the recommendations might be going too far. It's my role to do that. I do not feel any constraints in that regard. It was never called into question.

[Dan Proulx, Director, Access to Information and Privacy Division, Canada Border Services Agency]

Similar to the situation at CRA, at the CBSA, the delegation of instruments is set up in such a way as to limit it to certain individuals. I have full delegated authority and so do some of my managers. I'm very independent. I've been director of ATIP since 2010 and I have overseen probably 80,000 to 100,000 requests, both access to information and privacy requests, and I am completely independent in what I do.

We do look at recommendations from the offices of primary interest, but we have the final decision. We have the final say. I'd have to say that it's working very well. I've spent my career in access to information and privacy. I've done so for 20 years. I see no need for such a change. We're independent, and that part of the system, I believe, works quite well.

Thank you.

[The Chair, Conservative, Blaine Calkins]

That takes us to seven and a half minutes, Mr. Lightbound.

It looks like one well-worded question is all that we're going to get in on a seven-minute round.

Mr. Jeneroux, go ahead for up to seven minutes, please.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

I had better make it worth it then.

Thank you, everybody, for coming and also to your staff here scattered around the room for taking the time to prepare for today.

I hope I can get in a couple of questions, but we'll start with one. To Justice, you mentioned that with the $5 fee, you had collected approximately $2,615. Do you have any idea what the cost to administer that was?

[Marie-Josée Thivierge]

That's a very good question.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Is it over $2,615?

[Marie-Josée Thivierge]

One thing to keep in mind is that the Department of Justice a few years ago decided to forgo a number of the fees that are currently provided for reproduction purposes or for providing information on CDs. So really our only fees are tied to the $5 fee. Even in that circumstance, and you may recall the numbers, some of those fees are even waived in certain circumstances because those fees can be waived. So that represents a fairly small volume.

As you saw from my presentation, we received about 520 requests altogether. So for us, this is not a very large part of our operations. As far as the actual cost goes, we could take this back and see if we could provide that to you.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

I guess we'll decide by the end of my questioning if we want to take you up on that offer.

I'm wondering if this is enough of a deterrent for frivolous and vexatious requests, that $5 fee, but part of the recommendations is to eliminate the fee. I'm trying to get a sense from those of you who are working there how necessary this $5 fee is.

I open this up to the other departments, perhaps starting with Ms. Fisher. You didn't get a chance to highlight your recommendations, which I thought were the meat of your presentation.

[Cheryl Fisher]

In fact, one of the things I wanted to highlight in the recommendations was the proposal that institutions be allowed to refuse to process requests that are frivolous or vexatious.

In terms of the $5 fee, we're getting an increase in requests even though there is a $5 fee. I don't know how much of a deterrent that really is in and of itself. We, like others, also waive many of the search fees and whatnot that could be applied. We track them but we end up waiving them.

From our standpoint, there would be an operational impact, I think, for the department to be able to have an approach for frivolous or vexatious requests. I think it could help out with some of our workload peaks. We sometimes get the equivalent of a weeks' worth of ATIP requests from a single requester all at once. It leads to a spike and it reduces performance.

I don't know if it's so much tied to being able to leverage, but that would, I think, allow us to address overall performance as opposed to addressing the performance against a single requester.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

If I could jump over to you folks, how much of this is more of an unnecessary collection of fees versus how much it actually mitigates a frivolous or vexatious request?

[Robert Mundie]

It's fair to say that the $5 fee, which was implemented at the beginning of the act, is something that we're obliged to collect, but it probably has little to no impact in terms of volume of requests, as was mentioned. We are seeing a spike in requests. Whether a different fee would deter that is very hard for us to determine.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Mr. Marleau.

[Robert Marleau]

The $5 was worth $12 in 1983, if you factor in inflation. Over the years we've gone from $12 to $5.

In 2009 I advocated abolishing the fee. I don't see it as a deterrent to vexatious and frivolous requests. You can address that by amending the legislation to deal with vexatious and frivolous requests frontally and brutally, if you want to, by extending those clauses to deal with that.

I think that in my 2009 testimony at this committee, I said that the $5 was actually costing departments $55 to process. Now that's a cheque. You'll hear the argument that it may only be 75¢ now if you do it electronically, but it has to be booked. It has to be accounted for, and somewhere down the line, it has to be internally audited—and potentially by the Auditor General. The cost of doing that has reached the point of being a bit ridiculous, if you look at other regimes and what they do with fees.

Thank you.

[The Chair, Conservative, Blaine Calkins]

Ms. McCulloch, please.

[Monique McCulloch]

Yes, in fact, the estimate I heard a few years ago was that a $5 cheque cost approximately $75 to process.

The $5 fee would act as somewhat of a deterrent, for example, for someone with insomnia in the middle of the night just flipping one request online after another and bombarding a department. If there were a $5 fee on each one of those, that would definitely act as a deterrent.

Personally, I think that, if there were a provision in the legislation to allow a department to decide whether the number of requests filed by the same individual in a 24-hour period goes beyond the duty to assist applicants, and if there were a recourse mechanism to challenge the department in those decisions, then it could certainly prove successful. Definitely, there's a trade-off here. We would need a provision to protect departments from being bombarded, but—

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

I have about 10 seconds left. Quickly, on the ATIP online pilot project that you spoke of from 2014, is that still ongoing? Is that wrapped up?

[Monique McCulloch]

Yes, very much so.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Is there a mandate to that?

[Monique McCulloch]

In fact, Shared Services Canada was one of the three pilot departments, and there are about 33 federal government institutions currently. The bulk of the ATI Act requests that are made to the federal government at this time are made online through the larger departments with this portal, and yes, the five dollars is still a requirement through this online portal.

[The Chair, Conservative, Blaine Calkins]

It's important to note that at Pizza Hut you can get extra pizzas for five bucks, so....

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

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Thank you very much, Mr. Chair.

I would like to thank all the witnesses for being here with us this morning. Since there are many of you, I will direct my questions to specific people, rather than creating a seven-person panel.

Mr. Marleau, a Canadian Press article that I read in French two days ago has me a bit worried. Based on this article, after agreeing to give order powers or binding powers over administrative matters to the Information Commissioner, the Liberal government is now toying with the idea of a ministerial veto on disclosure and on the decisions of the Information Commissioner.

Does this worry you? And do you agree that what is being given with one hand could be taken away with the other?

[Robert Marleau]

It does worry me.

If I were a minister, the last power I would want would be a power to veto an access to information request. This would undermine the independence of the officials to whom the power has been delegated. I think there would even be a conflict of interest in a delegated power context. The idea was instituted in England and did not prove successful. I think it's inconsistent with our political culture.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

I have another question, Mr. Marleau.

In your 2009 recommendations, you proposed that the Access to Information Act apply to cabinet confidences. Let me turn my previous question on its head, to some degree. I am wary of governments conducting things in secret, but I also believe that certain cabinet documents and discussions should not be made available. I can understand why they need to remain confidential.

[Robert Marleau]

I completely agree that a considerable share of cabinet documents, especially those involving discussions between ministers, must remain confidential in our system, which is based on the Westminster model.

However, what I deplore—and I believe the current commissioner deplores it too—is the absence of a review power. The mere fact that a document is from cabinet is enough to make it inaccessible, and no third party, not even the Federal Court, has the power to confirm that assertion.

A right of review would not mean that all kinds of cabinet confidences would be released into the public domain or that open disclosure would become the norm. It would simply give the commissioner the same oversight, in relation to such documents, as she has with all other documents.

We are talking about an exclusion. And, now that I'm a private citizen, I do not simply take elected representatives or ministers at their word. I would be much more comfortable if my access right were protected by a third party, with the power to confirm or dispute it.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Ms. Juneau, if the documents before me are correct, I believe you've pointed out that 30% of the complaints received by the Canada Revenue Agency were from a single individual?