Information & Ethics Committee on May 31st, 2016

[Clyde Wells]

It applies to all records in the custody of or under the control of a public body, but does not apply to a record in a court file, a record of a judge of the Court of Appeal, trial division or provincial court, a judicial administration record or a record relating to support services provided to judges of the courts.

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

Thank you for that clarification.

I'm interested in the points you made about chaos and governing and so on. How does the act in Newfoundland apply to, or does it apply to, cabinet documents and the documents in ministerial offices? I'm trying to get a better sense—

[Clyde Wells]

The commissioner can review all cabinet documents without exception to determine whether or not they fall within the limited exceptions.

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

In practice, does that mean that a debate in cabinet, for example, could theoretically be released and could be made public a month later or a year later?

[Clyde Wells]

Debates are not documented, at least they were not for the cabinet I was familiar with. There was no document showing that minister so-and-so said this or minister somebody else said the opposite.

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

I see.

[Clyde Wells]

I don't know whether they are at the federal level. I've never been in a federal cabinet, but I've been in a couple of provincial cabinets, and those were never recorded. The decisions and conclusions are recorded.

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

The decisions are recorded, and I understand.

I was going to ask you about the duty to document, but you mentioned that's in the access to information act. You mentioned that in Newfoundland, or if it's not in the legislation, is it your opinion, that when it comes to private organizations that receive funding from government, they shouldn't necessarily fall under the purview of access to information unless there's a majority of government-appointed board members?

[Clyde Wells]

There's nothing in our legislation that deals with quantum of funding that a person or a corporation or an association might receive from government. The determining standard is whether or not the government effectively controls it. That's the standard: by share ownership, or by establishment under a statute, or by appointment of the majority of the board of directors.

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

Do you feel that's the best approach? That's in contrast to, I believe, what's being recommended, which is that organizations receive a certain amount of funding that would be subject to the act. Do you think it's best to leave that one alone?

[Clyde Wells]

I would look at it this way: Why is $5 million different from $6 million?

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

We always draw the line somewhere.

[Clyde Wells]

I know, but is it on a principled basis? What's the principled basis for drawing the line? If it's on the basis of receiving an amount of money, whatever amount, then that's the principled basis, namely, the receipt of money, and there shouldn't be a limitation on it. That would be my thinking.

If you're going to do it on the basis of government control, if government is controlling the thing, then it should be accountable to the public. If it's an agency that government controls by appointing the director, that's the principled basis for doing it. I don't see an amount of money as being a principle basis.

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

Wouldn't the principle be for some that the minute you give public funds to anyone, the public has some kind of right to information?

[Clyde Wells]

I can agree with that if that's the principle to apply.

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

But is it practical in your view? For example, for a small sum of money, it creates an extraordinary burden on the organization to the point where they might say they don't want government funding at that point. Then that could compromise their ability to grow and prosper and so on.

[Clyde Wells]

I can see that. My own view—and this is just my view personally—is that government control of the organization is a more important basis. Why would you bring in the local theatre society? Because government provided a certain amount. Why would they have to report on all aspects of their operations? Because government provided money beyond a certain point. I think it's better to do it on the basis of the extent to which government controls it.

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

It's much clearer, I agree.

Thank you very much, Mr. Wells.

[Jennifer Stoddart]

Could I add, Mr. Chair, that this question came up in Quebec about 20 years ago, and by the time it got to the Court of Appeal it was maybe 15 years ago. The principle that was retained under the law and that was proven in the case of Hydro-Québec International was that it was effectively under the control of the Quebec government. There were all kinds of other arguments raised and so on, but that was recognized.

I believe that interpretation is still used. In Quebec, if you're under the effective control of the government, whether your sources of income are independent or whatever, if you're a government creature in some way, you're subject to access to information.

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

If you're a large organization, such as defence contractor, and you're receiving big contracts, you may not be theoretically under the effective control of the government, but there's influence.

But I take your point.

[Jennifer Stoddart]

Yes, but then there are other sections of access to information about third-party information that are very important that come into effect.

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

Thank you.

[The Chair, Conservative, Blaine Calkins]

That's a great conversation.

Mr. Lightbound.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

I would like to hear more. You mentioned earlier the duty to assist, and one part of that was to narrow or better target an access to information demand. That was one part. You mentioned other parts, but I'd like you to elaborate on the duty to assist and how it materialized in your legislation.

[Doug Letto]

There was already a duty to assist, but there was not much in the way of a narrative around how that should happen.