Thank you, Mr. Chair.
Thank you for your invitation, Mr. Chair. I'm delighted to be with you this morning, and particularly pleased that my tenure as Information Commissioner of Canada, and in the House of Commons, is remembered here.
I have a very brief overview of the recommendations I made to this committee in 2009. I believe the clerk has circulated that statement to you. I will just cover those very briefly and leave it up to you for questions.
In March 2009 I tabled before the committee a report with 12 recommendations. Why 12 instead of 80-something, such as are in the current report by the current commissioner? It was because it was a minority Parliament. It was going to be a short time frame, and these were also identified, as part of the stakeholder consultations that we had done in the office, as the quick hits. What could we fix quickly to move the legislation along from its aging situation? These 12 recommendations were reviewed by the committee, 11 of which were adopted and recommended to the government in the report to the House. One was recommended for further study. I'll just go very, very quickly.
All of these recommendations and variations thereof are in the current report that you're considering from Commissioner Legault. First, there was that the call that the committee support the recommendation suggesting first and foremost that the government proceed with amendments to the legislation, and that access be given to all persons whether they're citizens or not. The committee supported that.
Order-making powers for the commissioners were also recommended, but we only went half way, or I only went half way, only for administrative matters. There was great reluctance—and there probably still is great reluctance within certain circles of government—to see the commissioner having order-making powers, despite the practices in all of the provinces, particularly B.C., Alberta, and Ontario. So we thought we would experiment with order-making powers on the basis of the administrative matters, things like fees, translation, delays, and those kind of issues.
Another one was to try to grant the commissioner some discretion in looking at investigating complaints, things like vexatious frivolous complaints and large volume complaints. They give the commissioner some discretion in evaluating those. It was somewhat resisted by stakeholders, and probably still is today.
We also felt that the commissioner should have an education and research mandate parallelling what goes on for PIPEDA in the privacy office. It cannot just be left to Treasury Board Secretariat to promote and inform on this statute.
Also an advisory mandate for the commissioner was recommended and approved by the committee to look at proposed legislative initiatives and, in part, that came out of the privacy impact assessment experience in the privacy office.
I also recommended, as the previous commissioner had recommended before me, that the act cover the general administration of Parliament and the courts.
Recommendation eight was the one that the committee did not support by way of recommendation but asked the government to look into further, and that is that the act apply to cabinet confidences. I'm sure you'll have questions about that.
Recommendation nine was that the commissioner be given the authority to approve extensions beyond sixty days. Extensions were a big issue and continue to be an issue under the statute as it is now.
Recommendation ten was that the act specify certain time frames for completing administrative investigations. The substantive investigations are a different category, but for administrative purposes, they should be done within, say, 120 days.
Also, as called for by a large number of stakeholders, I recommended that the complainant be given direct access to the Federal Court. As it is now, as it was then, before a Federal Court can be seized of a file, the commissioner has to complete his investigation, which sometimes can be quite lengthy. For certain requesters, they wanted that direct access for quicker resolution before the courts.
Finally, I recommended that the commissioner be allowed to look at and combine some of the multiple simultaneous requests, particularly those where we allowed for some time extensions.
There is a strategy among certain requesters to flood an organization from time to time, with a large numbers of requests and give the commissioner some discretion on how to manage that. The act requires the commissioner to investigate complaints—it says, “shall receive and investigate complaints”. It didn't tell me when to investigate, and so depending on the nature of those kinds of complaints, I took the position back then that they might be moved around in the queue, using a discretion that's technically not there in the legislation, but one that I did exercise.
By way of closing, Mr. Chair, I'd like to comment on four of the components in the existing act that Commissioner Legault has underlined.
The concept of reforming the access model from one that eliminates exclusions and goes strictly to an exemptions model, with an injury test, I think, would be a good move forward. Full order-making powers for the commissioner, I think, are long overdue. There is plenty of practice in B.C., Alberta, Ontario, that supports this as being a very positive model, particularly given that over time, you do build a certain amount of jurisprudence that becomes a reference on what to release and when to release it for the ATIP coordinators sitting around me.
The duties document, I think, is a concept that goes hand in hand with the duty to assist that was introduced in the act in 2006 with the FAA. It's overdue as a concept. There are provisions that should deal with destruction of documents and that sort of thing. I think when we look at the context of instant messaging, it's an issue, but there could be some situations that occur where we deliberately do not create documents, which I think has to be addressed in the legislation. Of course, extending the coverage to ministers' offices, and Parliament, and the courts is one that I support.
The reason I didn't recommend back in 2009 that it could be extended to ministers' offices is that the case was before the Federal Court at the time, and we are still waiting for a decision from the Federal Court. Of course, the Federal Court did rule, I think in 2011, that the act didn't apply to those offices as written, so I think it's time for Parliament to review that and initiate that kind of coverage.
I'll leave it at that, Mr. Chair. I have the dubious distinction of being the only one alive who sat in both chairs—privacy and ATI—so I hope that I can bring a certain perspective to your questions that you may find useful.
Thank you very much.