Information & Ethics Committee on May 31st, 2016

[Clyde Wells]

We had a great deal of discussion about the issue, as you can well imagine. It started at the outset with the commissioner complaining about the inordinate delays, of sometimes two, three, and four years, before the information was released—an incredible portion. All the details of what they were are in our report, so I don't want to go into them now, but the standard and times involved were so unacceptable that we couldn't let them remain.

We were the ones who raised, with the commissioner, an order-making model, and we were inclined to go to that model, but the commissioner kept speaking against it and expressing his view that the ombudsman model worked better. He argued that the order-making model would introduce even longer delays than were already being experienced because they would have to do a detailed assessment and write a supporting decision that would stand up to legal scrutiny on appeal of any such order. He believed it would introduce even longer delays because of the hearing processes, and so on. That made some sense, at least to me, having experience with delays in courts with hearings and processes.

We wanted to find a procedure that would work best. By the end of the hearing, there had been an overwhelming number of complaints about delays and so on. As a result of the discussions, it started to come to light what was driving some of the inherent delays, and the commissioner came around and said, “Well, we could live with an order-making model. It may work all right, but we think the ombudsman model is best for Newfoundland and Labrador.”

When we then did the detailed assessment of what was driving it—and all that information is in the report—it was clear that the commissioner's office was the cause of 90% of the delay. The procedures and the approach being taken weren't greatly different from what they were in most other provinces.

So the delay was just inordinate. We worked on a system that would speed it up, and the hybrid model is what we produced.

When the commissioner made his recommendations, we had very strict time limits placed on the time frame. There is provision for expansion, but it's very rigidly controlled. When the recommendation of the commissioner is made, if it's unacceptable to the public body, the public body has two choices: follow the recommendation and release it if it requires release, or apply to the court right away, within 10 days, for an order that you would not be required to release it.

As a result, the burden shifts to the public body, not to the requester to provide it. That's effectively making it an order, but it doesn't place the commissioner in the position where he or his office feels they have to go through these processes of hearings and to write this learned, extensive “court of appeal” type of judgment on the issue that takes all of this time, and then have the appeal of it go to a court, which hears the issue de novo, all over again.

One of the witnesses said to us, “We can understand having these rights, but why do you have two complete hearings?” And that made a lot of sense. So it was to avoid these problems, and this is where we see there would be delays in an order-making type of oversight system. You would not avoid the delays.

That was my point of view on it.

Doug, you may have something you want to add to that.

[Doug Letto]

Not different, but fundamentally, I think when people ask for information they want it. Any process that becomes very legalistic and drawn out reduces and diminishes the public confidence in that law. We certainly saw that in Newfoundland and Labrador. It was clear from the people who appeared in front of us that they had zero confidence in the ability of public officials to provide information on a timely basis. That, along with the commissioner's comments, I think persuaded us that what people want is a quick decision on whether they can have the information they request; and if they can't, that there's a fair procedure in place to be able to appeal it. For me, it came down not to the legalistic aspect of it, but to the fact that if the public are to have confidence in their laws, the laws have to actually work and not entangle people in protracted legal discussions and debates. I knew this as a journalist. There would be information that would be released in our newsroom that came out three years after it was requested. As a senior editorial leader, I would say, “Which request was that?” The distance, the time lag between the request and when the information actually appeared, prompted us all to wonder what it was all about and whether anybody was interested in it any more.

I think, fundamentally, people want a quick decision when they ask for information. It doesn't necessarily mean they should get the information, but if they can't, they need to know why and need to know how to be able to address it if they want to appeal it.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Do we have time for Ms. Stoddart?

[The Chair, Conservative, Blaine Calkins]

Yes.

[Jennifer Stoddart]

I have had the advantage of working provincially and federally in both tribunal systems and the ombudsman system. The current flaws of both of those systems are not really in their legal aspects, but in the fact that the legislation that sets them up does not create a balance between the requester, whether it's for personal information or other information, and access-to-information systems, because the processes are open-ended. Therefore, the person who holds the information and does not want to release it can usually go on and on. If there aren't extensions, they can simply delay, and the commissioner's office rarely has any kind of coercive power.

By adding these short delays, where basically it's not the burden of proof but the burden to act that is on the body with the information, I think we levelled the playing field in favour of the person who's requesting that information. As Mr. Wells has said, either you give the information or you move to the next step, which is taking it up to a place where it can be decided upon finally. What we see now across Canada with the existing systems—I don't think one is faster than the other, but I haven't done that study, perhaps the committee has—is the ability to prolong the delays indefinitely. The more powerful you are, as an information holder, whether it be personal information or third-party information, the longer you can delay the process. I think the ingenious part of this kind of all-Newfoundland solution is the fact that it has changed that fundamental balance in favour of the citizen requester.

[The Chair, Conservative, Blaine Calkins]

Thank you very much. That ends that round.

We now move to Mr. Blaikie, for seven minutes, please.

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

We've already heard the President of the Treasury Board state that the government is looking at an order-making model and him muse that perhaps when they bring in such a model they'll also include a ministerial veto over whatever orders may be issued by the Information Commissioner. I was wondering if you could speak to the effect that such a veto may have on the integrity of the access regime.

[Clyde Wells]

I've not been aware of it, so this is just an immediate reaction to your question.

It would lower public confidence in it down to, perhaps, an unacceptable level. The mere fact that it can be done would be enough to damage the integrity of the system, in my view. I could it see at the federal level; I can't see it at a provincial level. I could see a need at the federal level where national security or national defence is involved. I could see a ministerial veto or an order in council veto at that level, but I would think it would have to be very severely limited and constrained. There could clearly be justification for it in that kind of circumstance, in my view. However, there could be no justification for it if it dealt with development of agricultural policy or immigration policy, or anything else of that nature. But where national security or national defence issues were involved, I could see a need for it there.

That's simply a personal view.

[Doug Letto]

I believe it's part of the U.K. legislation. It's been used sparingly by the U.K. government. Even when it's used in the areas of national security and foreign affairs, it creates a loud public discussion. I don't want to give advice to the government on how to proceed, but the U.K. example might be something that you could look at. It would be interesting to learn how it's been used, how it's been viewed, and the rules on when the ministerial veto can be applied. I believe the government has stated in some kind of document the conditions that must be present for that to happen.

[Jennifer Stoddart]

I would encourage you to ask why a government veto ought to be used rather than having a conditional preliminary conclusion by the commissioner, the tribunal, pending an appeal to the federal court. The court is used to dealing with national security issues, international issues, and so on. This way, therefore, you would presumably limit the chain of decision-making to objective decision-makers.

[Clyde Wells]

The hybrid model would greatly assist in achieving this goal.

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

Part of your review and your recommendations for the new act in Newfoundland and Labrador had a public interest override component. That's kind of a priority rule. Ministerial veto is another kind of priority rule. If you were wanting to have in federal legislation some kind of public-interest override, how do you think that would interact with a ministerial veto? What would be the consequences of trying to maintain both at the same time? Does one end up trumping the other?

[Doug Letto]

Certainly, they would be competing themes—there's no question about that. I would go back to our view of what access to information is, which is to provide access to information held by public bodies in order to allow citizens to participate more fully in their democracy. I would say that this trumps almost everything else.

It's difficult to give public officials the authority to say that, on the balance of probabilities, maybe they shouldn't be releasing certain information, even though the public really does have a right to know. That's why I said initially that the public interest is a stream that runs through the legislation that we proposed and that was accepted. I would think that the more you erode that, the more you erode public confidence in what a modern access to information law should be.

Sadly, I think Canadian laws, until we were asked to do this job in Newfoundland and Labrador, lived in the dark ages. They truly did. They were put in place in the early 1980s, and nothing has been done since. The circumstances that gave rise to the review of the act in Newfoundland and Labrador, two years before, was in response to a political situation that had developed. I think that it's frankly time that Canadians have modern access to information laws that put the citizen at the forefront of what the law should be about, rather than protecting officials and governments.

[Jennifer Stoddart]

Being the only non-Newfoundlander who was honoured to be on this committee, I would say that the actions of the government in passing this Bill 29, which was repealed by the committee we served on, was akin to the government's giving itself, giving the cabinet, a sort of veto power. I say that because so many things were off limits. This created in the Newfoundland population a monumental surge of public anger against the lack of transparency, which led eventually to this commission. When these things are vetoed and vetoed, and not examined by the Federal Court and found to be impossible to reveal, or only partially revealable, because of national security concerns, we get the kind of reaction we saw in Newfoundland. We heard ordinary citizens come day after day and talk about the injustice of not being able to get certain government information, or even to learn why their requests had been rejected.

[Clyde Wells]

It's an injustice for a cabinet officer to be able to declare, no, and that the commissioner can't even look at it. That just destroyed public confidence in the integrity of the system. If you give a minister or the cabinet the broad ability to veto the release of information, I fear it would lower public confidence in the integrity of the system, more than anything else.

[The Chair, Conservative, Blaine Calkins]

We now move to our last questioner for the seven-minute round.

Mr. Bratina, please.

[Bob Bratina, Liberal, Hamilton East—Stoney Creek, ON]

Thanks for this opportunity. This is something we've been looking forward to.

One of the things you talked about was measuring against international standards, so the buildup to the outcome must have been interesting. We learned, much to our chagrin, that on a list of ranking of countries, Canada was somewhere around 59th. The number one country in the world in terms of access to information was Serbia.

Tell me about the buildup process and looking at these other countries and so on.

[Clyde Wells]

We did a good deal of that, but you have to be careful about these rankings by the Centre for Law and Democracy and others that rank the most unexpected countries as numbers one, two, three, and four. For example, I have always felt that the constitution of Pakistan is one of the best organized federal constitutions I have ever read, but I really wouldn't want to be a federalist in Pakistan. What's written is one thing; what's practised is often something else.

The important thing is to look at the whole picture, which is what we did. In particular, we paid a great a deal of attention to the legislation in countries that had a similar historical and cultural background as Canada. That took us to some western European countries, U.K., Australia, New Zealand, the United States. We looked at the practices there, and in Mexico, and two or three others. I forget all of them. We did a fairly broad examination of what was in the procedures in these other systems and took that into account and dealt with it, and we explained in the report how we dealt with it. That was certainly worth doing.

As Doug mentioned with the U.K. system, we took a good deal of guidance from what they were doing there. In the last decade or so, they have done a major refurbishing of their system, and we saw a lot of good points in it. Australia and New Zealand had made some major improvements, and we took some guidance from them as well.

[Bob Bratina, Liberal, Hamilton East—Stoney Creek, ON]

You have such vast experience in all this, and there's a tension, obviously, between the public and the journalists wanting to know things and the things that you and your colleagues would know, and that terrible things would happen if everybody found out about this stuff. That tension is fine.

However, I think you mentioned that the commissioner was nervous about allowing all of these things to get out there. So based on your experience, what would be so terrible about having a much more open regime than what we've experienced so far?

[Clyde Wells]

Our report indicates that nothing would be terrible about it. We recommended a much more open regime, and the structure we put in place in the legislation we drafted provides for a much more open regime. However, it doesn't provide for a totally open regime.

Government still has to function and has to function efficiently. It sometimes makes it a great deal more difficult if, every hour on the hour, government has to report to the public exactly what it's thinking and that it may or may not go in this direction or another direction. It would create a great deal of confusion and result in public chaos, as well as governmental chaos.

Some level of confidentiality in the process of government is essential to the efficient working of a cabinet system of government in a parliamentary system. You have to have that.

There are also certain things like the following. For instance, you can't have judges' notes and drafts of decisions released. You can't require that they be released. You can't have police investigations, prosecutors' decisions—preliminary assessments and decisions—released. If you do, you run the risk of brandishing about people's names, who could end up being determined to be totally innocent. That's grossly unfair to people. You can't do that. There are certain things that must be kept confidential.

However, the overwhelming majority of the information that government possesses can be made public, if not immediately, then on a very timely basis after the decisions are made. It's more difficult to have the process during which matters are being considered before decisions are made.... You can't be making that public. That would make government very difficult. However, once decisions are made, the overwhelming majority should be made public if we're to have a proper democracy.

[Bob Bratina, Liberal, Hamilton East—Stoney Creek, ON]

This is based on public interest.

Are you confident in your own mind through all your years in public office what the public interest is and should be?

[Clyde Wells]

Government—

[Bob Bratina, Liberal, Hamilton East—Stoney Creek, ON]

Or is there contention at all about the public interest?

[Clyde Wells]

No, I don't have any doubts about it.

Everything government does, in the end, must be in the public interest, or government shouldn't do it. That's the standard I would apply.

If it's not in the public interest, government shouldn't be involved, because it's in the private or personal interests of those involved in government or their friends in the private sector. Everything government does should be in the public interest, and government should be able to demonstrate by the release of information relating to it that it has acted and performed in the public interest in the long run.

Certain circumstances, the ones I've mentioned, are justifiably off limits and shouldn't be released for the reasons we've given. In some cases—matters affecting national security, national defence, and international relations—they must have a level of confidentiality, and understandably so. Other than that, the day-to-day affairs of the governing of Canada and all it's provinces must be in the public interest.

The public can only exercise their democratic right on the basis of judging the government's performance in the public interest. If they don't have the information, they can't judge. At least they don't have the ability to judge. They're being deprived of the ability to judge, and that shouldn't be in a democracy.

[Bob Bratina, Liberal, Hamilton East—Stoney Creek, ON]

How's my time?