Information & Ethics Committee on May 19th, 2016

[John Barlow, Conservative, Foothills, AB]

It wasn't in your report, but in some of the other testimony during the study there was some discussion about possibly opening it up to requests from non-Canadian citizens or places outside of Canada. That concerned me a little bit. You already discussed timeliness as an issue. Wouldn't this increase the workload on the department? Is this something you would support? Would there be some sort of structure in place such that concerns or requests from Canadians citizens would be a higher priority? I know that might be kind of difficult to do, but is that something you would agree we should be looking at? How would that work if it was something that we looked at?

[Suzanne Legault]

My position is that it should be aligned with progressive norms in terms of access to information, which is that it's essentially open to all. That's the standard in other jurisdictions, the standard of model laws, and that's what we think should be there.

Whether this would result in a massive increase in the level of access to information requests in Canada, it has not been the experience in other jurisdictions, although most of the newer jurisdictions don't have a before and after to compare it with, as we have. For instance, Mexico went open to all, and U.K. went open to all. These jurisdictions went straight to that level right away. In Canada, we would have a before and after.

The situation that's happening now is we do know that about 70% of their requests, if I remember correctly, are done through intermediaries in Canada, but they're actually requests from foreign countries and foreign individuals. I think the people from Citizenship and Immigration Canada testified to that when they appeared before the committee.

My sense of the system, from the requests, the complaints, that I see, is that this is currently how foreign entities or individuals in other countries are accessing their information. It is through information brokers or businesses and lawyers in Canada, mostly dealing with immigration, refugee, and visa status issues. I don't think there would be a significant increase, but if that's a concern of the government, and if Parliament decides that they don't want to go there, again, that is a policy decision.

We have the model laws. We have the international norms. We have our current situation. We know that we are already being accessed through intermediaries. The rest is an unknown. All we know is that in other jurisdictions, it has not created a massive problem.

[The Chair, Conservative, Blaine Calkins]

Thank you.

We've gone well past, Mr. Barlow. I apologize.

Mr. Blaikie, for up to seven minutes, please.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Thank you very much.

There was an interim directive issued by the President of the Treasury Board. At that time, he also stated that it was his intention to confer some kind of order-making power on the Information Commissioner in the short term. Since then, there's been some talk about the government perhaps having a ministerial override for that order-making power.

In your view, what would be the justification for such a ministerial override, if any?

[Suzanne Legault]

I don't know what the government's justification would be for a ministerial veto. We do know that there is some experience with a ministerial veto in the U.K., for instance. In the U.K., there is an information commissioner who has order-making power. Those decisions can be reviewed by the courts in the U.K., and then there could be a ministerial veto either after the commissioner's order or after the court's order.

There has been a very recent U.K. Supreme Court decision. The court has considered that the ministerial veto was unconstitutional because the minister actually reviewed a decision of the court. The court decided it was not appropriate for the executive to override a decision made by the judiciary. That's the current situation. It was on the famous “black spider” letters by Prince Charles in the U.K. Some of you may have heard about that.

In my view, if the government were to decide to provide the commissioner with an order-making model and to then say they are going to have a ministerial veto at the end, I think for taxpayers' sake, they should just scrap the entire independent oversight model and make their political decision. Ultimately, what's the point of having an entire investigation, an entire adjudication, a potential judicial review, and then a ministerial veto, when the whole process in between would have decided that the information should be disclosed?

It then creates an oversight model that is actually a mirage and we're back into complete political decision about disclosure. I would definitely not be in favour of such a thing. If that were the direction of the government, I think we should stick to the ombudsman's model, because at least we have an independent process with an independent court review process. For political reasons, it's actually very odd to make a decision and then have it reviewed and then override that whole review process.

I will be submitting my position on that as part of the consultation process. This is something that we were not expecting, and we have just started to do our research. We will provide our representations on that as part of the consultation process to the government.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Thank you very much.

We've seen the government bring some legislation to the House already. Some of it has been moving through the House pretty quickly, some on important issues, whether it's Bill C-10 on the aerospace industry in Canada or Bill C-14 on medical assistance in dying. Those are issues that I think are quite worthy of study, and yet the legislation has been passing quickly.

We've heard from the President of the Treasury Board that when it comes to access, they need to do more study and they need to have a two-step process whereby they bring in a few changes and see how those go, and then there will be a more robust review process and, ultimately, maybe something looking like a final draft of the legislation in 2018.

In your opinion—I think you started to speak to this but maybe you can just elaborate—if the government wanted to sit down tomorrow and begin drafting legislation, is there sufficient information out there to start in the fall with a comprehensive reform of the Access to Information Act, or is this something that really needs more study? What do you think the government could gain in its two-step process, and how do the reforms they are talking about making in the immediate term really speak to anything that would come later in the more robust reform they are proposing for 2018?

[Suzanne Legault]

Mr. Chair, it's not my place to comment on how the government decides to proceed with legislation and so on. As Information Commissioner, I do believe that the act is ripe for reform. The calls for reform started in the early 1980s, as soon as the act came into effect. Most of the issues have been significantly reviewed, as I've said before.

There are some new issues. Duty to document is new. I'm certainly the first commissioner who is fully supporting an order-making model, and there are complex issues relating to coverage, which some of the honourable members of the committee have asked about. Those are complex. The full spectrum of areas that are excluded in schedule II of the act includes some 66 pieces of legislation. Those areas, in my view, would need more time, but decisions about advice and recommendations, decisions about cabinet confidences, decisions about an order-making model, decisions about timeliness can all be made in a legislative package fairly quickly because they have been studied many times.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

On the duty to document, are you concerned that if that gets kicked to phase two of this two-step process there may well be significant information lost in the meantime while there is no legislated duty to document?

[Suzanne Legault]

The duty to document has become a huge concern, not just for me but for all the information and privacy commissioners across Canada. We have issued, I believe, two joint resolutions on the issue. There have been cases in Ontario and cases in B.C. We had our PIN-to-PIN investigations. We have very serious concerns that unless we have something very strong in our legislation to ensure that records are actually created, access rights are really being denied.

The B.C. legislature has just issued its report. They are recommending a legal duty to document. This is the new provision. This is what's new in our discussion in terms of reforming the act. This is an issue that is arising because of technology. We want to encourage our public service to use technology. We want them to have smartphones and so on, but the information is flowing so quickly that we need to anchor a legislative duty to document, and we need to thwart behaviour such as “Let's not take any notes at this meeting”. This behaviour has to become an illegal behaviour.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Mr. Blaikie. We've eclipsed the seven-minute mark.

Mr. Saini, go ahead, please.

[Raj Saini, Liberal, Kitchener Centre, ON]

Good morning, Madam Legault. Thank you very much for coming.

We've heard a lot of testimony from other information commissioners across the country and from other places. One issue that has come up is the Newfoundland model. Even from your initial testimony you have said that the order-making model is something that you prefer, and you have advocated for it very clearly in your report.

I'm trying to understand the differences you see between your proposal and the Newfoundland proposal. If there are deficiencies in the Newfoundland model, could you just highlight those for the committee so that going forward we'll have a better perception of what we should recommend?

[Suzanne Legault]

Oversight models have to be adapted to the reality of the jurisdiction. That's the first point I would make. At the federal level we are receiving close to 70,000 requests per year. We're dealing with national security issues. We're dealing with very complex Revenue Canada Agency issues, and RCMP investigations, and these are very, very complex files. Library and Archives files are oftentimes thousands and thousands of pages, as are CRA files, and we receive on average about 1800 complaints a year.

In Newfoundland they are dealing with 700 requests province-wide, and I believe the commissioner testified that he receives about a hundred complaints a year. It's a very small office, and when they testified before the panel, they highlighted the fact that they were too small to actually put in place an adjudicative model in their office.

There are the real distinctions between the two models. The Newfoundland model remains an ombudsman's model with recommendations. It remains such. If there is an appeal to the court, it is a de novo process, exactly what I am suggesting we need to avoid in the federal context. That's a key distinction.

The other key problem that I see in terms of that particular model in Newfoundland, in my understanding, is that they make recommendations, and the institution must abide by the recommendations. If they don't want to abide by the recommendations, then they have to apply to court. It's a de novo process.

That could work very well if I'm dealing with a simple case but if I'm dealing with thousands of pages of record and there are multiple recommendations for disclosure in there, which is oftentimes what we have at the federal level, I do not anticipate that I would have full agreement on all of the recommendations for disclosure on the file. I would see that leading to a lot more cases going to court on the Newfoundland model, imported if you wish, in the federal context.

Now my colleague the Privacy Commissioner testified that he favours a Newfoundland model under the Privacy Act, and that's his position on that. I really do not believe that the situation is the same under the access to information regime. Again, you have to look at the types of cases. Under the Privacy Act, people request their own personal information located within government institutions. It is not the same thing as people asking for the dealings of National Defence in relation to Afghan detainees. It is not the same as looking at the amount of money spent on the Saudi arms deals or the considerations around that. They're not the same files, so I stand very firmly on my recommendation on that.

[Raj Saini, Liberal, Kitchener Centre, ON]

Thank you very much.

I have another question. Could you give me some sort of procedural way forward? Because I'm a pharmacist, I like to think in terms of cases. Let's say there's a case, a national security case. We talked about cabinet confidences, so are you proposing that, if somebody has an access to information request about a national security case that's discussed in cabinet, the Information Commissioner would have the ability to review that request or to review those cabinet documents?

The reason I ask that is because, if it's a national security matter, that means whoever the Information Commissioner is would require a national security clearance, and on top of that, if it's a question about something that involves something international or some other domestic priority maybe, then you may want to call in an adviser to give you some commentary or advice about that specific matter. That would mean that person would have to have a national security clearance. I'm just wondering how that would play out.

[Suzanne Legault]

We currently have the ability to review national security documents under the legislation as it exists now. Actually, it is probably the one area where the Canadian access law is more progressive than anywhere else in the world.

[Raj Saini, Liberal, Kitchener Centre, ON]

Do you have national security clearance now?

[Suzanne Legault]

I do.

The way that it works under the legislation—and I can tell you operationally as well, since you're interested in that—is that the act provides that there are some specially delegated individuals who have the right to see those records. They have the proper security clearance. With regard to the top, top-secret documents, these are small cases that we actually review. These are a small amount of cases.

In fact, most of the time we do not even get these records. We go and review them on site. In order to protect the information to its maximum, we basically review them on site. We have a few delegated individuals, and they do have the proper security clearances.

Actually, for the cabinet confidence exemption, I'm recommending the same process, that we have specially delegated investigators. It would be a small number who would be properly security cleared, and they would protect the information dissemination of that.

[Raj Saini, Liberal, Kitchener Centre, ON]

On that point, I appreciate the fact that you have those delegated people to come in.

The only thing I'm a bit cautious about, and maybe you can relieve that caution, is the fact that when you're dealing with a national security matter, you're dealing with a domestic agenda, with an international agenda, and you may be dealing with other governments. How do you believe that those specially delegated people would be able to absorb all of the decision-making, the sort of forward-looking things, that a government would have to look at? There would have to be a political decision. There might have to be an international diplomatic decision. There might have to be a domestic decision.

How do you believe that one person, who doesn't come from that background but is looking at the information objectively, can provide the best analysis of that material?

[Suzanne Legault]

We do develop the expertise.

The Information Commissioner's Office, as an office, has reviewed those records for over 30 years and made decisions on these records. As I said, the really highly sensitive information, for instance, the Communications Security Establishment cases, are very few and far between. We have a lot of national security files that deal with archival files. I once had a national security exemption applied to a briefing note on pandas. The reason that it's very useful for us to review those records is because those exemptions are actually applied quite broadly to a variety of cases.

We just had a recent case on the no-fly list, and we disagreed with the Ministry of Transport on the disclosure of the information. The Federal Court sided in part with the government and in part with our office, in the sense that it said the disclosure was actually covered by national security but the discretion was not applied properly. It has been sent back....

It actually has worked, Mr. Saini, for 30-some years.

[The Chair, Conservative, Blaine Calkins]

We're actually past the nine-minute mark, but that's okay.

Commissioner, did I hear you say that you had some top-secret clearance on issues pertaining to pandas? Is that what I heard you say?

[Suzanne Legault]

It wasn't top secret; it was a national security exemption, and a—

[The Chair, Conservative, Blaine Calkins]

Well, they do know kung fu, so I guess it's okay.

[Some hon. members]

Oh, oh!

[The Chair, Conservative, Blaine Calkins]

Ms. Harder, for up to five minutes, please.

[Rachael Thomas, Conservative, Lethbridge, AB]

Is that a conservative five minutes or a liberal five minutes?

[The Chair, Conservative, Blaine Calkins]

Yes.