Information & Ethics Committee on May 31st, 2016

[The Chair, Conservative, Blaine Calkins]

Good, thank you very much. Mr. Long.

We now go to Mr. Blaikie for the last of our official statutory rounds of questioning, and then we'll have, I think, plenty of time. As long as our guests are able to stay a little bit longer, we'll still have plenty of time. So anybody who has any other questions, please have them prepared.

Mr. Blaikie, please.

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

I want to ask, with respect to the public interest override, did you provide a definition of the public interest in the legislation or is it really at the discretion of the commissioner?

[Clyde Wells]

Mr. Letto.

[Doug Letto]

Yes, we did. I think Mr. Wells stated it. Let me just see exactly what it is.

[Clyde Wells]

We didn't organize this with an index, did we?

[Doug Letto]

Fair enough. Actually, I think it's exactly as you stated it a few minutes ago. I have the legislation here, too.

Go ahead.

[Jennifer Stoddart]

I have made some notes on this, thinking it was one of the interesting things we did. We mentioned, as I referred to earlier, that the public interest includes not only health and safety or environmental factors—chemicals in a river or something like that—but also good governance, which is part of our constitution, namely, peace, order, and good governance; transparency, which is a more recent notion; and accountability, which is certainly part of the private sector privacy act federally, PIPEDA. Accountability of government has been taken up across the world, so there's accountability for your actions and accountability for what you have done. That accountability of government to citizens is part of the public interest override. Finally, I noted in reviewing this that it includes ensuring the honesty of public officials. Sometimes it's in the public interest for the public to know what public officials are doing. I think we meant both elected and non-elected officials in that.

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

And so those elements are explicitly mentioned in the act for guidance for the commissioner?

[Clyde Wells]

I would have to take a look at the act. I've been away from it for nearly two years now.

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

Fair enough.

[Doug Letto]

This is the clause itself,

Where the head of a public body may refuse to disclose information to an applicant under a provision listed...that discretionary exception shall not apply where it is clearly demonstrated that the public interest in disclosure of the information outweighs the reason for the exception.

Then it gives various categories of information for which that override would take place.

[Clyde Wells]

We added eight additional categories to what was already there.

[Doug Letto]

That's correct. We added it as well to the possible waiver of fees. We added it as well to cabinet confidences where the clerk might have been otherwise barred from releasing information but where it's felt that it's in the public interest that it should be released. I believe it's also stated somewhere in the purpose of the act.

[Clyde Wells]

Yes.

[Doug Letto]

Public interest is identified.

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

I have a better sense of the mechanics. In some cases it may be that a government department is saying that they are not going to release something. The commissioner looks at it and says that it falls under the appropriate categories in there, so there is cause under the act for them not to release that information; but because it would be in the public interest, the commissioner makes a recommendation in the Newfoundland model to say that this should be released. Then, if the government wanted to challenge that, they would have 10 days to go to court to say that it doesn't really fall under the criteria of the public interest override, and they want to maintain a right under other provisions of the act to not release it.

[Doug Letto]

The commissioner has provided a good guidance document. This is one of the things we suggested in our report, that they provide a strong guidance document for public officials on the public interest override.

This is really quite evident in the U.K. act, and the commissioner has produced, I think, 10 guidance documents now on the new access law, including in the area of the public interest override explaining to officials how they are to interpret what it means and how it might be applied.

It's to codify, in a sense. It's not the right word, but it certainly puts in clear language how it is that people should make those decisions, so we thought that would be extremely helpful so people could understand the concept because it really was introducing a new concept outside the areas of health, public safety, and the environment, which had been in place.

[Clyde Wells]

The standard ones.

[Doug Letto]

Yes, and they are the standard ones in all Canadian legislation.

[The Chair, Conservative, Blaine Calkins]

We now move to a number of questioners, and we'll try to keep it around five minutes.

We welcome to our committee Mr. Scarpaleggia, who is substituting on a regular basis now.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Thank you.

As the chair said, I am substituting, so if my questions seem a bit rudimentary, please forgive me.

In terms of those items that should definitely not be a subject of release, such as preliminary police reports, judges' notes, and so on, should those specifically be excluded or exempted subject to review? I'm not quite sure how you think that should be handled.

[Clyde Wells]

I think there are only one or two items that are outside of the commissioner's purview to review, one of which would be judge's notes. There's no way you're going to get—

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

So that wouldn't be within the purview?

[Clyde Wells]

Subsection 5(1) in the act spells it out.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Oh, I see.