Information & Ethics Committee on May 31st, 2016

[The Chair, Conservative, Blaine Calkins]

It looks like it's up. We're at seven and a half minutes, Mr. Bratina.

We now move to the five-minute round, starting with Mr. Kelly.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

I'd like to have each of you comment on the duty to document. I understand you had recommended a duty to document, but did not include it in the act itself that was rewritten. Could you explain to the committee how the duty to document works in Newfoundland and Labrador? I'll start with that, please.

[Clyde Wells]

There are two critical factors in the decision.

One is that you can't be held properly to account, as government should be held fully to account to the public, if the decisions and activities of government are not properly documented. There's nothing to release. You can't ask individuals involved to release their thoughts or their conclusions. The decisions of government and all the day-to-day activities of government that result in decisions, particularly those involving expenditure, public money, and the imposition of taxation, must and should be documented.

When we looked at it, we thought that it didn't seem to be the right place to put those obligations when there exists a Management of Information Act, spelling out in detail exactly how all of the offices of the government and the public servants involved are supposed to document information that exists already. We weren't satisfied that the duty to document was adequately expressed in it. All we emphasized was that there should be a statutory provision for a clear duty to document and to maintain proper documents.

We felt that the Access to Information Act wasn't the right place to put it. That covered a different area altogether, and given that there was a management of information statute already in existence, that was the proper place for it to be.

Do you want to add anything to that, Doug?

[Doug Letto]

I think that's what it came down to. We felt that was the logical place, because the Management of Information Act provides both for the creation and disposal of records at various times, when they're no longer needed, and so on. We thought that would be the ideal place to put it, because there is also an associated committee in place that oversees record-making within the government.

The concern emanated from something that many people said to us, which was the increasing tendency to make decisions without their being written down anywhere. It's happened in the electronic age where we can send pings to each other and there's no record of them. It creates obvious problems for governments if people.... For example, if I'm an employee, and I'm being asked to implement a decision for which there's no paper trail and no record, how am I to know how I'm supposed to carry out that decision?

We saw it as a very important thing, but logically we felt that it belonged in the Management of Information Act. That hasn't yet been put before the legislature, and I have no idea what the thinking of the current government is on that.

[Jennifer Stoddart]

Doug, could you go back to the slide entitled “Modernizing the law”?

I say so because I would just like to add that the recommendation of the duty to document, wherever it is contained in terms of the statute, is part of a suite of recommendations that we made, which include the provision of data sets—and for that we had to change the definition of public record—and publication schemes, for which we recommended that the commissioner set up templates and then different public bodies, depending on their type would automatically publish the information—with the personal information redacted of course—after a certain time period.

This part is central to modern thinking on access to information, which is no longer about a body of information. You, as a citizen, first of all, try to figure out what you should be asking, where you should be asking it, and then you ask for that piece of information. But it's up to the government, as the holder of the information on behalf of all of us, to make this information known and to make it easily available. You think of research, and innovation, and how much of this information needs to be out in the public, and simply to play the goalie, shall we say, so that the information is safely released in a way that doesn't harm individuals.

[The Chair, Conservative, Blaine Calkins]

That takes us to the five minutes.

Now we move to Mr. Saini, please.

[Raj Saini, Liberal, Kitchener Centre, ON]

When the Information Commissioner was here during her last appearance she raised certain concerns about the hybrid model similar to the one you have put in place in Newfoundland and Labrador. One concern is the size of jurisdictions. She mentioned that in her office she receives approximately 70,000 cases per year compared to about 700 in Newfoundland.

Do you think that the hybrid model as developed would be as successful at the federal level as it is at the provincial level?

[Clyde Wells]

The commissioner would have a better basis for expressing an opinion on that than I would.

I don't see why the numbers make the difference on that issue. There are obvious circumstances where numbers do make a difference, but what's the difference if you have to make 70,000 orders as opposed to 700 recommendations? If you have a hybrid model where 700 recommendations are involved, why do you need an order model because 70,000 recommendations are involved? Why would there be a difference merely because of numbers?

You'd still have perhaps an even greater burden in the order-making model with 70,000 requests than you would with an order-making model with 700 requests. I would think the burden would be greater to use an order-making model than the hybrid model. That's my guess. The commissioner would know better than I.

[Doug Letto]

I believe that the 700 number is the number of access to information requests in Newfoundland and Labrador, most of which will never cross the commissioner's desk because they're resolved with the provision of the information that people require. I'm not sure how many the commissioner reviews per year because people have a complaint, but it would be far fewer than that.

[Clyde Wells]

Yes, I think he wrote something like 32 decisions in one year.

[Doug Letto]

Yes.

[Clyde Wells]

It was the average.

[Raj Saini, Liberal, Kitchener Centre, ON]

Now that we're going through this operational review, can you suggest some ways we could adapt your model at the federal level? Are there certain specific recommendations you may have?

[Clyde Wells]

There would be different considerations to different parts of it. If you're just thinking about the resolution part, whether it's a hybrid or order-making model. I don't see there being any great difficulty moving from your present ombudsman model to a hybrid model.

I would think it would be even easier to move from an ombudsman model to a hybrid model than from an ombudsman model to an order-making model because you'd have to put in place procedures and rules and hearing practices, and so on. If you're going to give a body the power to make an enforceable order, one of the requirements in our system, relying on the rule of law, is that you proceed in a manner that gives all interested parties a right to be heard and in fair circumstances and so on, and to make presentations and file documents and file evidence. Then you do an assessment, write a decision on it, and issue the order as a result of that decision, justifying the order you're about to issue.

It seems to me that it would be far more burdensome to move from the existing ombudsman model to that model, than from the existing model to making the recommendation as they do now and leaving the burden on the public body to challenge the decision.

[Raj Saini, Liberal, Kitchener Centre, ON]

The other question we've been discussing is the question of fees. I know that in Newfoundland there's no upfront fee for an access to information request, but there's a time limit. I think it's 10 hours or 15 hours. I can't remember the exact number. Beyond that, you start charging a certain amount of money.

[Clyde Wells]

You can charge a certain amount of money beyond 15 hours.

[Raj Saini, Liberal, Kitchener Centre, ON]

Have you found it to be burdensome to collect the revenue? Or is it more of a barrier in some ways?

[Clyde Wells]

That was always there. We reduced the burden of collecting the money and accounting for it. For example, there was a requirement to pay a $5 fee, and I believe the federal system still has that. You still pay a $5 fee. The cost of receiving, recording, treating, banking, and administering a $5 fee must be probably $150 for each one. What's the point of it? What does it achieve?

Five dollars is nothing of a deterrent. If you want to deter foolish and nonsensical requests, $5 is not going to do it. But look at the burden you place on government offices and the cost that's added to it to collect and administer a $5 fee. It doesn't make sense.

[Raj Saini, Liberal, Kitchener Centre, ON]

In terms of the way you've structured it, whereby the $5 fee is obviously eliminated except for those requests that take a certain period of time or a protracted period of time, do you believe that it's in the government's interest to have fees collected when something is very cumbersome or will take a protracted period of time?

[Clyde Wells]

You have to think of the overall public interest. The general public of Canada or of the Province of Newfoundland and Labrador, whichever you're dealing with, has an interest in making sure government expends its funds wisely and soundly and doesn't waste them.

Why should a particular citizen who will make a request for an incredible amount of material be able to place that burden on the taxpayers generally? Or why should a collection of such citizens be able to place a burden of 10,000 such requests on the taxpayers generally? If they're going to make a request, they have to be prepared to pay the cost of it, because it can get to be extreme.

What we did put in was a provision for waiving that fee in circumstances where it's clearly justified, one of which Mr. Letto mentioned. Where it's determined that it's in the public interest to make the information public, the fee wouldn't be charged.

[Doug Letto]

I think something else that's worth thinking about are the various parts of the act that we recommended, such as the duty to assist. If I, as a citizen, make a request that will have three public servants working for eight months on my request, part of the duty to assist is to say, “Mr. Letto, you've made this huge request that's going to take a huge amount of time, so can we discuss what it is that you actually want so that the request that goes forward is actually one that specifically gets to what you want and doesn't end up costing you any money?” That's part of the duty to assist.

[Clyde Wells]

That's part of it.

[Doug Letto]

The other part of the fees aspect is that even if it turns out that certain fees should be charged, that matter can be appealed to the commissioner. The commissioner is the independent arbiter of whether the fee that's being estimated is a legitimate fee or not. All parts of the act kind of come together in being able to address those kinds of issues. I think that it's actually a much fairer system than we previously had and a model that I think is really worth looking at.

[The Chair, Conservative, Blaine Calkins]

Okay.

[Clyde Wells]

It could be applied nationally as well.