Evidence of meeting #3 for Access to Information, Privacy and Ethics in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was institutions.
A video is available from Parliament.
Information Commissioner of Canada, Office of the Information Commissioner of Canada
What do you mean, number of days?
Conservative
Matt Jeneroux Conservative Edmonton Riverbend, AB
Maybe number of days isn't a good example because you have the standard number of days. Percentage-wise, are you looking to reduce the number of requests? Are you going to see an increase in the number of requests?
What's the benchmark in your office that you'd be happy with?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
It's important to understand that the access to information requests are made to the public institutions that are covered by the act. The President of the Treasury Board is the minister responsible for the administration of the access to information requests that are made within the federal government.
My office investigates complaints that are generated if requesters are not satisfied with the response they get. There are 250 or so institutions covered now under the act. There were about 68,000 requests overall in the system last fiscal year. Half of that comes from and comes to Citizenship and Immigration. They have a low ratio of complaints. They are actually, in my view, supporting the system overall. If CIC were to do poorly, it would be a disaster for the access regime.
That's where the bulk goes. Then you have CBSA and the RCMP.
Conservative
Matt Jeneroux Conservative Edmonton Riverbend, AB
Okay, but obviously in modernizing the act, do you have an intent to reduce complaints, then? So is there something internally....
Is my time up? Okay, we'll come back to that. Thanks.
Conservative
The Chair Conservative Blaine Calkins
It is, but the chair was busy doing several other things and was advised by the clerk.
We'll now move to Mr. Blaikie, for seven minutes.
Conservative
The Chair Conservative Blaine Calkins
There was no more time allocation, but I appreciate the insinuation. Your time starts now, Mr. Blaikie.
NDP
Daniel Blaikie NDP Elmwood—Transcona, MB
If you don't ask, you don't get, right?
I want to come back in a very loose way to recommendation 1.2 about expanding coverage to ministers' offices, but on a more general note. You're absolutely right that ministers' offices are making important decisions, but I think there is a general tension, and I don't think an insurmountable one. As an amateur historian, you want to have the records there, but as people have more access to certain records now, it discourages actually making those records, and then you can never find out why that decision was made.
I'm just wondering how we can be sensitive to that tension, to try to create records that the public could have access to, but still maintain what, I think, on the face of it makes sense. When I'm in a meeting, for instance, I want to make private notes. I may have things that I don't want on the record forever. They're fleeting ideas. They're things that I just want to explore later that I'm not committed to. It really wouldn't make sense to have them be part of the record.
We talk about making people's notebooks accessible. Granted, if those are the only records of a meeting, then I think there's a far better case actually to make those accessible. Granted, there really ought to be some sort of record of the meeting and decisions, but how can we proceed? I think often that tension is used as an excuse not to provide any form of access at all, and that's partly how we're getting to where we are. That argument ends up trumping, and people say, well, don't we have the right to be able to consult and have our own decision-making process, and won't you be impeding on the good decision-making of government if we don't have that?
I'm just wondering how we could proceed in a way that recognizes that people need time, that some people think on paper, and they need to be able to have that process before they come to decisions. How do we do that so that this argument can't be used as a fig leaf for those who would just want to deny access for the sake of denying access?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
What you're saying is something that we hear quite a lot.
When I talk about changing the culture of government, that's exactly what I'm talking about. People actually have to understand that all of us are carrying a public function. We are working for other people, all of us, in everything we do every day.
The other misconception is.... The Access to Information Act is actually structured in a way that what needs to be protected is going to be protected: solicitor-client privilege, personal information, advice and deliberation; all of these exemptions are there for that specific reason.
In the example I gave about the notes, obviously these notes would have been covered by the national security exemption. There is nothing improper about that. When people and institutions are covered by access to information, it does generate a certain decorum. The decorum should not be that you don't take notes. The decorum should not be that you do not create records. But the decorum can be that you don't make disparaging comments about a colleague in your notes because those will be disclosed. You will find that there has been quite good discipline instilled in the public service in the way that communications occur in the workplace. Those are good things, actually.
But in terms of taking notes, yes, they would be covered and they are covered for all of us within public institutions, and that is not necessarily a bad thing. We just have to own up to fact that these notes are part of the record. Probably in many instances they would be transitory records, so they are subject to an access to information request. If they exist at the time the access to information request is made, they are part of what is responsive to the request. Unless they are really crucial notes that you need to put into your file, they would become part of the official records, and if they are part of transitory records that you're allowed to let go after a while, then that's fine. It becomes a question of whether that's a record of business value or whether that's a transitory record.
NDP
Daniel Blaikie NDP Elmwood—Transcona, MB
Yes, it's an interesting question so I find myself thinking, what would I do with the pages in my notebook? I go to a lot of meetings so those don't make it on the file because I'm not in the habit of tearing out sheets from my notebook. Under the current act, it's not an issue for me; I'm not covered. But maybe it's partly a learning process for me in terms of what that would mean, and even the format of my notebook, needing tearable sheets, I don't know, but....
Information Commissioner of Canada, Office of the Information Commissioner of Canada
I received an access to information request for my notebook when I first became Information Commissioner and I tend to doodle quite a lot, and there was a really nice drawing of a horse, I remember, and it's fine. It just gets disclosed. I don't mind.
People just have to grow into this culture of disclosure at a certain point and if there are references in my notes about specific files and they are subject to confidentiality requirements under the act, they get processed like that by the ATIP folks. Notes of conversation with my general counsel can be protected under solicitor-client privilege. If there is personal information because I'm dealing with a labour relations issue, then that gets protected as well. That's the way your notes would be treated, the same as any other record.
NDP
Daniel Blaikie NDP Elmwood—Transcona, MB
Well, thank you. I think that's very helpful because I have a sense that it's going to be.... I wanted you to speak to that at length because I think that's going to be a big part of the meat of what needs to be decided, both here and then in the House, when legislation comes forward.
Information Commissioner of Canada, Office of the Information Commissioner of Canada
It is a genuine concern of people, but people have to understand that any record gets protected as it should be protected under the legislation. That's why, in covering institutions such as Parliament's administration, we're recommending to have proper exemption for parliamentary privilege. That's going to be crucial.
Conservative
Liberal
Rémi Massé Liberal Avignon—La Mitis—Matane—Matapédia, QC
Thank you, Mr. Chair.
Madam Commissioner, thank you for your presentation.
Earlier, my colleague talked about the issue of processing access to information requests and the processing times you would like to see legislated under the Access to Information Act. I would like you to say a few words about the complaints that have been lodged. What are the most common complaints? You said that processing these complaints makes up 40% of the work that your team does. I would like you to talk about processing complaints and the nature of those complaints.
Information Commissioner of Canada, Office of the Information Commissioner of Canada
The purpose of many of the recommendations in the report is to make complaints processing more efficient. This will also address Mr. Jeneroux's concerns about the efficiency of the complaints process.
Every year, 35% to 40% of the complaints we receive are administrative, in other words, they have to do with timeliness. The answers simply are not being sent by the institutions. That makes up roughly 40% of the complaints we receive annually.
On average, we receive 1,800 complaints a year. This year, we will receive more, but there are other years when we receive less. The rest of the complaints, or 60% of them, have to do with a refusal to disclose information.
The complaints about timeliness, which we refer to as administrative complaints, are processed rather quickly by the OICC. Those types of complaints do not stay in our inventory long. Refusal complaints take the longest to process. Currently there are more than 3,000 complaints. Out of that number, 88% are refusal complaints, or more complex files.
Out of those 3,000 files, roughly 400 are about national security, 400 are about the Canada Revenue Agency, and 150 are about the CBC. The rest of the files are about different institutions. This represents the bulk of the files.
I also have files that have been lingering for quite some time. In 2009, when I arrived at the OICC, I was processing files from 1997. This year, I will be closing my last file from 2005-06. I could provide you with a table that gives a snapshot of the years for which we have an inventory, how old the files are, and the large blocks that have to do with the Canada Revenue Agency. It is the dashboard I use when I look at my inventory. It gives a good overview of what is going on.
The biggest problem right now is that it takes almost a year before a refusal complaint can be assigned. It's a real problem.
Generally speaking, once a file is assigned to an investigator, it is settled in more or less 90 days. Of course there are special cases, with files that are 20,000 or 30,000 pages long that take us a great deal of time to get through, and rightly so. There are other files that are not very big that take less time to process and are less complex.
That gives you an idea of what we are dealing with.
Liberal
Rémi Massé Liberal Avignon—La Mitis—Matane—Matapédia, QC
Are there any statutory grounds for the various departments to refuse to disclose information? I would like you to elaborate on that.
Information Commissioner of Canada, Office of the Information Commissioner of Canada
When we consider a complaint to be valid, that means that the institution did not meet its obligations under the act. Nearly 80% of the administrative files are valid, in other words, the timeline was not respected. As far as refusal complaints are concerned, roughly 50% are deemed valid every year. It is roughly fifty-fifty.
There is something that has changed the game a bit in the past two years. We are doing everything we can to resolve complaints. We have a new category called “resolved”. In those cases we do not say whether the complaint is valid or not. This is simply to process the files more quickly. It is a bit like the approach to conflict resolution. We do more mediation at the beginning to move the files along more quickly. We have many files that are resolved. We do not say whether the institution acted poorly or not. Usually, when a file is resolved it is because the information was disclosed. This new category changes the game a bit. Generally, when it comes to refusal complaints, it is fifty-fifty.
Liberal
Rémi Massé Liberal Avignon—La Mitis—Matane—Matapédia, QC
I would like to get information about your dashboard, about the data you have collected, and the departments that receive the most refusal complaints. I would like an overview of all that.
I would also like to know how Canada compares to other countries when it comes to access to information, complaints, and that type of thing. It might be harder to answer all that, but I would like to know whether any studies have been done on this.
Information Commissioner of Canada, Office of the Information Commissioner of Canada
I do not have a study on that. The comparative study we have comes from the Centre for Law and Democracy, which did an evaluation of the Access to Information Act. Again, that was an evaluation based on certain criteria in the legislative framework. It does not address implementation, or the infrastructure in place to respond to the requests and so forth.
It is very difficult to compare countries. Some countries have more progressive laws, but those laws do not necessarily result in more disclosure of information. India has a very progressive law, but does not manage its information. That system is practically impossible to manage.
In 2002, when Mexico passed access to information legislation, it put a system in place on a very advanced technology platform. When it comes to technological infrastructure, Mexico is very organized. When someone requests information from an institution, that institution responds electronically on the same technology platform on which the complaint was filed. Mexico has a commission, which has very strict deadlines for making a decision, but I am not sure whether Mexico does what we do. We do a page by page review of the file to determine whether what was redacted by the institutions was appropriate or not. In that sense, our system is in a way more sophisticated.
The other thing is that we have a lot of information and documents in Canada because we have good information management. In Mexico, before President Fox, there were no documents. It is therefore very hard to make a comparison in terms of efficiency.
However, we might look at the provinces. When you do your review work, I suggest you invite commissioners who have order powers relative to the experience in an ombudsman model because in our experience, application of the act and processing complaints becomes much more efficient.
Conservative
The Chair Conservative Blaine Calkins
Thank you very much, Mr. Massé. Your time is up.
Thank you, Madam Legault.
Before I get accused of being liberal with the time, I want to now go to the five-minute round.
We'll start with Mr. Kelly.
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
Thank you, Mr. Chair.
Thank you for attending our meeting. I appreciate it.
In dealing with an expanded requirement for public entities to document matters, including decision-making, deliberations, and this type of thing, how do you see that impacting on cabinet confidentiality and the concept of cabinet government where cabinet in its deliberations will have disagreements, but in the end all must mutually support its decisions? How would you see an expansion of public access to deliberation impacting cabinet confidentiality?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
It's important to understand what we're proposing. A lot of the time there's a misunderstanding about what we're proposing.
Under the law right now, cabinet confidences are described very broadly, very broadly. For instance, any record that contains anything that's described in the whole definition of cabinet confidence can be excluded as a cabinet confidence. In our investigations at this time, we are not allowed to see the records. We see a schedule, a brief description of the records. Without seeing any records, in 14% of the cases of cabinet confidence investigations we find that it was improperly applied overall and historically at the OIC. That's without seeing any of the records.
We also see under the current definition things like dates of cabinet committee meetings not being disclosed because of cabinet confidence and then being published.
What we're proposing is to narrow the scope of the definition of what is a cabinet confidence such that it protects the deliberative process that occurs within cabinet. The aim of the recommendation is that we properly protect what needs to be protected, but we don't have a definition that truly catches so much that it then becomes a shield against disclosure and there's no oversight.
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
If I may say so, you just want to make sure that the definition is there to properly exclude cabinet deliberation from the scope of access to information.
Information Commissioner of Canada, Office of the Information Commissioner of Canada
Yes, and I'm recommending that it would be a mandatory exemption, which means that if it is a cabinet confidence, it shall be exempted, but that I would be able to review whether it is actually a cabinet confidence that's being claimed. I would have the ability to review the records. Given the sensitivity of those records, I'm recommending that the same restrictions that we have for national security be applied. That would mean a limited number of investigators in my office would be able to do this work.