Evidence of meeting #16 for Access to Information, Privacy and Ethics in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was exemption.
A recording is available from Parliament.
9:50 a.m.
Information Commissioner of Canada, Office of the Information Commissioner of Canada
Then, a mediation group resolves most of the cases. In British Columbia, 99% of cases are resolved before adjudication. In Ontario, I believe it is between 80% and 85%. Adjudicators then hear the facts related to cases that were not resolved through mediation. However, when a case gets to that point, there is a lot less work to do because much of it has been done already. Adjudication is used for the remaining, more contentious cases. This last stage of the process is also more effective because a lot of the work has already been done. The focus is really on any remaining issues that need to be worked out.
9:50 a.m.
Conservative
The Chair Conservative Blaine Calkins
Indeed it was, Mr. Lightbound.
Colleagues, the next round goes to the official opposition, but I'm asking if it is okay if I take that five-minute spot. Is everybody okay with that?
9:50 a.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
You are the only permanent member of the committee here.
9:50 a.m.
Conservative
The Chair Conservative Blaine Calkins
Okay.
Madam Commissioner, I have a few questions for you.
Back when the Access to Information Act was first adopted, it was adopted at the very same time as the Privacy Act. Would you agree with that statement?
9:50 a.m.
Information Commissioner of Canada, Office of the Information Commissioner of Canada
Yes.
9:50 a.m.
Conservative
The Chair Conservative Blaine Calkins
When that happened, there was likely very healthy debate to make sure the right balance was struck between protecting personal privacy and allowing Canadians to have access to the information to which they are entitled. Would you also agree with that assertion?
9:50 a.m.
Information Commissioner of Canada, Office of the Information Commissioner of Canada
Yes.
9:50 a.m.
Conservative
The Chair Conservative Blaine Calkins
In light of the fact that this committee right now is only reviewing—and I'm not saying that in any pejorative way— the Access to Information Act, and we'll be moving to the Privacy Act after this, insofar as what our committee will be recommending to the government goes, and based on what we've heard already from the President of the Treasury Board regarding the government's plans and intentions going forward, I am mildly concerned that we might be making decisions without taking into consideration the full context of the balance with the Privacy Act.
My question for you is on the changing of the definition of personal information. If the Privacy Commissioner were here, I would suggest that the Privacy Commissioner would be very concerned and would want to have these kinds of questions answered. Can you edify this committee on any of the changes you want to make concerning the definition of personal information? Do you believe any of the changes that you make would affect the interplay between the Privacy Act and the Access to Information Act?
9:55 a.m.
Information Commissioner of Canada, Office of the Information Commissioner of Canada
The area where the two acts intersect is in the definition of personal information. Section 19 of the Access to Information Act is an exemption to disclosure for personal information under the access to information regime. In that section, it refers to the definition of personal information in the Privacy Act. That's most of how the two acts intersect.
The recommendations we're making with regard to section 19 are also anchored on the experiences we have had in relation to our investigations over the last 30 years. In our report we mentioned that the personal information exemption under the access regime was applied in 20,000 out of 60,000 requests at the time, so that's a lot, one out of three. We're recommending changes to clarify what happens in our investigations. The Privacy Commissioner is not in agreement with those changes.
One of the changes we're suggesting is that there should be an invasion of privacy test. This occurs to us in our investigations when we have requests for disclosure of personal information and people are deceased; parents are trying to obtain information on their deceased children. The Ashley Smith case comes to mind. There are other cases where people have died in difficult circumstances in jail, and parents are trying to obtain information from incarceration authorities or police authorities about what happened to their children. The exemption for personal information is used, and we're basically suggesting that there should be a test for invasion of privacy, because in those situations there could be disclosure on compassionate grounds. We're already working with police forces in order to get that kind of disclosure. These are extremely difficult situations for the relatives of these people.
The other aspect we are recommending really has to do with when to seek or not to seek consent. This is really merely a clarification in terms of our investigation because this is something we encounter quite a lot. We're not proposing any significant changes to the definitions otherwise.
9:55 a.m.
Conservative
The Chair Conservative Blaine Calkins
Thank you very much for that clarification.
Could I also then assume—and edify this committee if I'm wrong—that areas of public interest already override personal information? Are you satisfied with the current public interest override measures, or do those need to be changed as well?
9:55 a.m.
Information Commissioner of Canada, Office of the Information Commissioner of Canada
I am proposing that there would be a general public interest override across, say, a reformed Access to Information Act. The public interest override in relation to personal information is what we're working with in terms of getting the kind of disclosure I was discussing, such as disclosure on compassionate grounds. It's very difficult to get that from institutions under the current regime.
That's why we're basically saying that the progressive norm is to have a general public interest override applied across the entire act, so that one would no longer be necessary.
9:55 a.m.
Conservative
The Chair Conservative Blaine Calkins
Would you want, as Commissioner, to have the ability with your order-making power, should you get it, to use that order-making power for the purpose of bypassing or circumventing personal information clauses that are in the Privacy Act, or as the definitions apply in the legislation?
9:55 a.m.
Information Commissioner of Canada, Office of the Information Commissioner of Canada
Yes. I saw that my colleague sent a letter to the committee yesterday indicating that, should my office get order-making power, we should not get order-making power for the exemption dealing with personal information under the Access to Information Act. I am very surprised by this position and I think it would be completely unworkable.
We did a quick look last night in terms of our cases. What happens is that the exemption for personal information under the Access to Information Act has been interpreted by the Information Commissioner for over 30 years. These investigations are conducted in private, and recommendations are made in private. There has not been an issue with that. Waiting until 2018 to make a decision about that is not going to change the reality that the Information Commissioner is allowed to interpret the legislation under the Access to Information Act.
It's as if we said that the Information Commissioner cannot interpret the exemption on national security; that the Information Commissioner cannot interpret the exclusion under the Income Tax Act that excludes the application of the act, that—it's endless if we go there.
As I said, my colleague has had a five-minute conversation with me about this. I think it would create an unworkable regime where you would have order-making power for a case, but if there is a case with several exemptions being applied, including section 19, you would have an order-making model for the rest of the exemptions but not for section 19. You would have a recommendation model, so one would be an adjudication, it would go to the Federal Court on appeal as a judicial review, and the other one would go to the Federal Court on a de novo process. This is in a context where I think we had 2,000 cases in our history where there was a mix of exemption, including section 19.
I think what my colleague is proposing is that the Office of the Information Commissioner should not have order-making power, and that we should wait until 2018 even though he has stated before this committee that he does not wish to have order-making power for himself, so I am terribly confused about this position.
10 a.m.
Conservative
The Chair Conservative Blaine Calkins
Thank you very much, Madam Commissioner.
I well eclipsed the five-minute mark and I appreciate your patience, colleagues. I was going to cut myself off and then I was worried I was going to point of order myself, so I appreciate that.
We'll now move to Mr. Long for five minutes, more or less. Thank you.
May 19th, 2016 / 10 a.m.
Liberal
Wayne Long Liberal Saint John—Rothesay, NB
Thank you, Chair.
Thank you, Commissioner, for coming again today. How many times is that? Is it four times now, or three?
10 a.m.
Information Commissioner of Canada, Office of the Information Commissioner of Canada
Who's counting?
10 a.m.
Voices
Oh, oh!
10 a.m.
Liberal
Wayne Long Liberal Saint John—Rothesay, NB
We'll be on a first-name basis here next time.
Commissioner, I just want to talk again about chapter 3 and timeliness, and certainly a prevailing theme we've seen through all the witnesses is the culture of delay, that government is a laggard.
I've said it several times in this committee—and I don't think you were here at that point—but to me, you can't just throw money at culture, and you can't just throw policies and procedures at culture. Culture is something that evolves over time and is very hard to change. I liken it to when I was in the hockey business. Initially we had a culture of defeat, and it took us time to change from that culture of defeat to a culture of winning. It took us many years and it really came from the top.
I appreciate that you've been here several times and have talked about it, but can you just talk a little bit more about that culture of delay and how, once and for all, we can really change that and make it better?
10 a.m.
Information Commissioner of Canada, Office of the Information Commissioner of Canada
Hmm: once and for all, change it and make it better....
10 a.m.
Information Commissioner of Canada, Office of the Information Commissioner of Canada
My experience has been that it really does make a difference what the messages are from the top of each organization. We will issue our annual report at the end of, probably mid-June. There is a case in point in there where we had an institution that had incredible delays in responding to the access requests. We had been in there a couple of times. I had assurances from the head of the organization, and yet the situation remained the same. Recently there was a change in leadership and the person immediately took action. I'm very confident that in the entire organization there will be a complete turnaround. So it makes a huge difference.
In my office, people are really not allowed to go on deemed refusal, as you can imagine, in answering access to information requests. Our average time for responding to access requests is something along 16 days, and yes, sometimes we do take extensions. People have very clear marching orders. That makes a huge difference.
That said, if you have a legislative framework that has been in existence for over 30 years and is very lax in its provisions, then it perpetuates the ability to have delays within institutions. There are no consequences whatsoever, really. You need a legislative framework that is also providing the discipline necessary, a framework within which people will function.
But yes, ultimately it really comes from the leadership at the top.
10:05 a.m.
Liberal
Wayne Long Liberal Saint John—Rothesay, NB
Just as an example, I'll go back to one of my businesses. This is a little bit different. We used to invoice our customers. On our invoices we put “net 30 days”, so everybody would pay us in 30 days. We made a subtle change on our invoice to “net 15 days”, and we were shocked at how many people would pay us in 15 days simply because we changed that part.
This is what your website states: “Both Acts allow for a legal response time of 30 calendar days from the date of receipt of an official request.” Is there any merit in thinking that if it were less, people would be quicker to respond? I mean, knowing that you have 30 days is somewhat self-fulfilling. I know you just said 16 days, but what if the website said 15 days? Would things be quicker?
10:05 a.m.
Information Commissioner of Canada, Office of the Information Commissioner of Canada
If the law says 15 days initially, I think it would be pretty difficult for institutions, generally speaking, in terms of the whole of government. Where we have the most problem is the extension after the 30 days. It's really that portion where there is no time limit. There is no time limit, in that it only says an extension that's reasonable under the circumstances—and that has been, as you know, all the way to the Federal Court of Appeal on extensions over 1,000 days.
To me, the main problem is not the 30 days but really the part after—when you can take an extension, under what circumstances, for how long. Have a specific time limit on that so that if you extend it, then you need the permission of the Information Commissioner. That's what I think would be useful.
