Information & Ethics Committee on Feb. 25th, 2016

[The Chair, Conservative, Blaine Calkins]

Good morning, everyone. I appreciate you being here, notwithstanding the weather outside. We don't have everyone here but I think we have enough folks to start.

I am pleased to welcome back to the committee the Information Commissioner of Canada, Ms. Suzanne Legault. You have with you, Nancy Bélanger, general counsel, director of legal services, and Jacqueline Strandberg, counsel, legal services.

We are embarking on a study. We don't know how long it's going to be yet, but we have a motion before the committee to study the Access to Information Act.

We are so glad you could come back and join us immediately after being here on Tuesday, Ms. Legault. If you would introduce your staff to the committee and then start your presentation, we would be happy to hear from you as we embark on this endeavour.

[Suzanne Legault, Information Commissioner of Canada, Office of the Information Commissioner of Canada]

Thank you very much, and good morning, Mr. Chair.

I'm here this morning with Nancy Bélanger. Nancy is the general counsel in my office. Nancy is responsible for any legal advice, but she also supervises any kind of litigation that we have and provides input to all our investigative files, particularly the complex files, and generally provides advice about everything that goes on at the OIC.

I'm accompanied as well by Jacqueline Strandberg. Jacqueline is a counsel as well within Nancy's group. Jacqueline was instrumental in the production of the report we're going to discuss this morning.

With that, Mr. Chair, I'll start my presentation. I have very brief remarks.

I thank you and I thank the committee members for the opportunity to discuss my special report to Parliament entitled, “Striking the Right Balance for Transparency”, which contains recommendations to modernize the Access to Information Act.

During my appearance before this committee this past Tuesday, I recommended that the number one priority for the committee should be the modernization of the Access to Information Act. After over 30 years of existence, the time has come to take bold steps to transform this piece of legislation.

An eminent expert in the field of access to information, Professor Roberts, wrote the following in 2012:

Around the world, our understanding about the importance of governmental openness has advanced substantially. We know much more about what works, and what does not work, in the domain of RTI [right to information] law. And we also know that system of responsible government is resilient. Fears that the constitutional order would be up-ended by the adoption of this sort of legislation were overblown. There is a world of experience to be drawn upon while updating the Access to Information Act, and no good reason why it should not be done with boldness.

The recommendations in my report are instructed by international, provincial and territorial legislation, annual reports, model law, reform proposals made by former commissioners and parliamentarians, and reviews of the act. The recommendations are also based on my own experience, after completing over 10,000 investigations during my mandate. The recommendations are drawn from the highest standards and best practices for access to information legislation.

The recommendations are aimed at allowing greater scrutiny by Canadians of government activities and decisions, by extending the coverage of the act to all public institutions, including those that receive funding from the government.

The recommendations are aimed at strengthening the information management framework to ensure that the government remains accountable and transparent. The recommendations are aimed at ensuring timeliness in the processing of requests. As the first Information Commissioner, Mrs. Hansen aptly said "Delaying access to information in effect destroys the purpose of the act."

The recommendations are aimed at striking the right balance between transparency and the protection of specific interests that require protection. They are consistent with open government objectives, such as the disclosure of information that supports the accountability of decision-makers and citizens' engagement in public policy processes and decision-making. To maximize disclosure, exemptions should be narrow and focus only on protecting the interests they are intended to protect. No more. In most instances they should be injury based, discretionary, time limited, and subject to a public interest override.

The recommendations are aimed at effective oversight, based on key fundamentals, such as the ability to review all the records at issue and to issue binding orders. In fact 68% of all the countries that have implemented an access law in the past 10 years feature an order-making model. In Canada, the provinces of British Columbia, Alberta, Ontario, Quebec, P.E.I., and to some extent Newfoundland have binding order powers.

The recommendations are aimed at aligning the act with open government initiatives, such as publishing information that is of public interest, disclosing more information related to the repayment of grants, loans and contributions, and requiring institutions to adopt publication schemes.

The recommendations are aimed at introducing a comprehensive regime of sanctions to address actions contrary to the quasi-constitutional right of access.

Finally, the recommendations are aimed at addressing inefficiencies and longstanding issues with the access to information system.

Let me give you a few concrete examples of issues that require a legislated solution.

In terms of the coverage of the act, the Supreme Court of Canada determined that ministers' offices are not institutions covered by the act. Decisions of Ministers can significantly impact Canadians. Ministers need to be accountable to the citizenry for the administration of their areas of responsibilities. Only a legislative amendment can extend the coverage of the act to their office.

In terms of information management, there is documented evidence of serious breaches by the public service of its obligation to create and preserve information of business value. Recent examples include the triple-deleted scandal in British Columbia and my report on the use of text messages. Information Commissioners from across the country co-signed a joint resolution in January calling on their respective governments to adopt a legal duty to document.

In terms of timeliness, Mr. Chair, delays are a frequent subject of complaints by requesters. On average, this represents 40% of the workload my office deals with in terms of administrative complaints. There is an efficiency to be gained in the entire system for dealing appropriately with the question of timeliness. One case in particular is a salient example of the lack of discipline currently in the act. Last year we finally had a decision in the case that I brought to the Federal Court questioning the reasonability of a 1,110-day extension applied by the Ministry of National Defence. Although the decision from the Federal Court is expected to have a positive impact on timeliness, the current legislative framework is inconsistent with progressive norms. It is truly compelling to think I had to take this matter all the way to the Federal Court of Appeal to have a decision that such a lengthy extension was unreasonable under the legislation.

In terms of maximizing disclosure, the Supreme Court of Canada recently interpreted the exemption for advice to government in the Ontario access to information law very broadly. The court's ruling extends far beyond in my view what must be withheld to protect the provision of free and open advice. The equivalent exemption in the federal law, section 21, uses similar language to its Ontario counterpart. Section 21 was already considered prior to the court's decision as the “Mack truck” of exemptions. The breadth of this exemption must be legislatively narrowed to strike the right balance between the protection of the effective development of policies, priorities, and decisions on the one hand, and transparency in decision-making on the other.

In terms of strengthening oversight, the commissioner's ability to issue orders would ensure that the processing of requests would be more timely, would instill more discipline and more predictability, would provide an incentive for institutions to make comprehensive and complete representations to the commissioner at the outset, would create a body of precedents that increases over time, and requesters and institutions would then have a clear direction as to the commissioner's position on institutions' obligations and requesters' rights under the act.

One of the most frustrating aspects of the work we do at the office, Mr. Chair, is that we find ourselves reinvestigating the same issues that have been dealt with many times by previous commissioners instead of having a body of precedents that will actually provide clear clarification. Again, there is a huge efficiency gain if we don't have to reinvestigate the same issues again and again.

In order to assist the committee, I will provide in the coming days a written submission with reference notes on each of the 85 recommendations. I have provided a sample of what we're going to provide the committee for chapter 1 of the recommendations. We simply didn't have time to translate the whole document before today, but the idea behind our table, Mr. Chair, is to provide the committee with an easy reference in terms of where the recommendations come from, where they were discussed before, and why they're in the recommendations. I will also provide to the committee a backgrounder that will enumerate the previous proposals to amend the legislation since its coming into force in 1983.

In closing, I would like to reiterate that the changes proposed in my report are, in my view, long overdue and urgently needed. Having a modern access law would assist Canadians in exercising their right to know. It would also facilitate the creation of a government culture that is open by default. In my view, unless we significantly modernize the Access to Information Act, we will not be able to effect this change of culture, which is absolutely essential to meet the government objective for an open and transparent government.

It would also re-establish Canada's position as a world leader in access to information. I strongly believe that the time has come to modernize this act. We need a new act, one that will pass the test of time, and one that will pass the test of successive governments.

Thank you, Mr. Chair.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Ms. Legault. We appreciate the fact that you've come before us again. As we go through the deliberations in the days and weeks to come, I'm hopeful that you would make yourself available to come back again should we have future questions in regard to some of the recommendations.

We'll now proceed to the questions in the seven-minute round.

Mr. Erskine-Smith, the floor is yours, sir.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Thanks very much.

Thank you for the presentation and also for the thorough report, “Striking the Right Balance for Transparency”.

For my first question, I'll start at the beginning, with recommendation 1.1. The recommendation is that there be an expansion to all institutions that spend public money in whole or in part. I wanted to drill down a little. Is the recommendation that all institutions or organizations that receive funding from the federal government be subject to the Access to Information Act? Also, how far do we read “in part”?

[Suzanne Legault]

The idea with the recommendations in that part of the report is to do a couple of things. One is to really have a principled approach to how we have institutions covered by the act. Right now we have a schedule that has the list of institutions. The Governor in Council can define criteria and can add institutions to the list. What we are proposing is to have a principled approach of criteria that would basically be used to determine which institution is covered or not covered. Those criteria that you have in the recommendations are really based on previous proposals or international norms.

On the other part of it, we felt it important to specify that some specific institutions really must be covered, and those are ministers' offices, the Prime Minister's Office, courts administration, Parliament administration, and so on, simply for the sheer amount of taxpayers' dollars actually located in those institutions and the necessary accountability that would flow from that. So—

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Just to jump in on that point, where there's a great deal of public funds being spent, obviously, but I just wondered if there is a de minimis application here where an institution or an organization just isn't spending a great deal of public funds. I note in your recommendations that there isn't a de minimis requirement set out. I wonder if you could speak to that.

[Suzanne Legault]

This is a good question. I actually haven't thought about that. This is something that was proposed previously and that we felt was a necessary criterion, but what you're suggesting is a very interesting point in terms of looking at that specific criterion.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Staying with recommendation 1.1, the third bullet point in the report refers to “institutions that perform a public function”. That's an additional criterion. Is the suggestion that it would apply to institutions that perform a public function even if they don't receive public funds or are subject to government control?

[Suzanne Legault]

Yes, that is part of the criteria. We'd have to look at the various types of institutions that are federal institutions, that operate in the federal realm, to see whether they fit within these criteria.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

For the purpose of your report, there is not a working definition of “public function”. It seems to be quite a broad term. Again, just to have a sense of what we're restricting the application of the act to, do you have any sense of how we might define “public function”?

[Suzanne Legault]

That's something we would have to really look into very specifically.

These are very good points.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Still staying with recommendation 1.1, in proposing the expansion of the act—and that makes good sense, as more institutions that spend public funds should be subject to access to information requests and transparency—is there any worry, given the existing delays in the system, that absent additional funding we're going to expand the application of the act to many more institutions and that this is going to create further and further delays?

[Suzanne Legault]

I don't necessarily think that further and further delays would be a result of that, because part of the proposal would be that each institution subject to the act have strict timelines to respond to access requests. The areas in which additional funding is required are due to each institution's having to have infrastructure sufficient to answer to access requests, and it's difficult to predict how many requests each institution is going to get.

For example, the CBC, when they first became subject to the act, thought they would get a certain number of requests every month, and they ended up getting a large number of requests very quickly.

Various institutions receive a varying volume of requests. Citizenship and Immigration receives more than half of the total amount of requests, around 34,000 requests. Most of the smaller institutions receive very few requests. My office receives maybe about 100 requests a year.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Speaking to that point, in your experience, do organizations require dedicated staff to respond to these requests? I ask because, if we're expanding the scope and application to a number of institutions—and smaller institutions, perhaps—is there any worry that they may not have the resources to properly respond?

[Suzanne Legault]

It depends upon the institution. Many of the smaller institutions, many of the port authorities, for instance, receive very few requests. A lot of them receive no requests at all, and some port authorities will receive a few. The way they are structured, they often have their general counsel responsible for access to information requests, or their corporate secretary, or someone who is actually responsible for those functions. An institution such as VIA Rail, for instance, receives a few more, so they may need to have a consultant.

It really varies from institution to institution.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Let me move to the next series of recommendations, 1.2 through 1.7. This set concerns extending coverage to the Prime Minister's Office and ministers' offices, providing parliamentary support for institutions, and even court support services.

I know those are all broad and these are various separate organizations, so let's stick to the Prime Minister's Office or the ministers' offices. Can you give an example of current documents or a set of documents that you think ought to be disclosed but aren't currently being disclosed? This is just so that we have a working example.

[Suzanne Legault]

I think the best example was some of the records that were at issue in the Supreme Court of Canada decision in what is referred to often as “the Prime Minister's agenda”. We refer to this case as the “Prime Minister's agenda”, but there were other types of records in that case that have real importance to Canadians. These were minutes that were taken of meetings between the minister and the chief of staff and senior officials in the Department of National Defence. The only records of those meetings were actually notes of exempt staff, and the court decided on the current test that these records would not be subject to access to information.

In my view, seriously, these were highly important records of decisions in a time of preparation for war. They could have been exempted under a national security exemption, but they should have been subject to the act.

That was a really clear example, and it's something that is documented.

[The Chair, Conservative, Blaine Calkins]

Thanks, Ms. Legault and Mr. Erskine-Smith.

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

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Thank you very much.

I thank you very much again, guys, officially on the record. Thank you for being here today. It's impressive that you're able to come back twice in one week.

In my seven minutes, I want to ask a bit about how your office is structured so that as we start to go through the process, I have a good sense of it. Let's go back to 2006. I was reading in the report that this was when the last...you don't call it modernization, but that's when the act was last reviewed. Perhaps you could walk me up from 2006 to here, I guess, on why we're doing this again. It's not that I disagree with it; I'm just curious as to your thoughts.

[Suzanne Legault]

Walk you up in terms of what proposals have been made before, or the history of it?

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Arguably 2006 wasn't that long ago. You're reviewing the act after 10 years, and I'm wondering how you defend that.

[Suzanne Legault]

Okay.

Since the coming into force of the act in 1983, there have been several reviews. We'll provide that to the committee.

In 2006 the previous government, when they came into power in 2006, had promised to implement all of the recommendations of Commissioner Reid, who had actually worked with the previous committee and had produced the open government act, which incorporated a whole series of amendments.

The government in 2006 actually passed legislation in the Federal Accountability Act. That legislation contained a subset of some of those recommendations. It increased the coverage of the act to a lot of the crown corporations—CBC, Canada Post, Via Rail—and agents of Parliament, including my office and the office of all the commissioners, except for the Ethics Commissioner. The other commissioners are now subject to the Access to Information Act. That was part of that reform.

As part of that reform as well, there were some very specific either exemptions or exclusions that applied to all of those entities. I talk about that in the recommendations. That was done, and there was also a duty to assist put into the legislation.

Aside from that, in the history of the act, there was one other significant amendment, and I think it was in 1999. That's when the criminal offence was put in. That's section 67.1 in the act, and that flowed from a private member's bill. In terms of looking at other coverage, in terms of looking at the exemptions, in terms of looking at the timeliness, in terms of looking at the order-making power....

The other thing that really was not part of the 2006 discussion at the very least, and reform, was how do we modernize the act in the context of open government, open government by default. That's fairly new, actually.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

What was the implication, then, on your office at that time? Did you have to expand your office? Did crown corporations then have to hire additional staff dedicated to these ATIP requests? What are your thoughts on that?

[Suzanne Legault]

We actually had to implement an access to information office in our office. I know that other agents of Parliament had to do the same. Certainly CBC had to do the same, and Canada Post as well. So yes, they had to implement some infrastructure to respond to access to information.

You know, I think we have to look at it in the context of what the responsibilities of public institutions are. For instance, we all have reporting obligations under the Financial Administration Act for the way in which we expend public monies. Those are considered to be normal. I have a staff that deals with all of our financial responsibilities because it's considered to be a necessary obligation. It's the same for access to information, in my view, when one becomes subject.

If Parliament decides that this is something that is necessary, it's ultimately always up to the legislator to decide whether this is a necessary thing for public institutions or not.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Right.

I just wanted to make sure that we don't go down a path where we're grinding certain institutions to a halt because suddenly there's an influx of this. I just wanted to be careful on that.

In terms of the goals you set and the averages, you mentioned that Citizenship and Immigration takes up the majority of your requests. Have you set internal goals on where you'd like to get those numbers to, whether that be percentages or number of days, etc., for some of these recommendations?