Information & Ethics Committee on Feb. 25th, 2016

[The Chair, Conservative, Blaine Calkins]

That pretty much chews up the five minutes.

We're going to have some extra time, so I'll be able to make sure that everybody gets their questions in.

I'll move to Mr. Blaikie now for the last round, which is three minutes. Then I'll open up the floor. We'll have about 20 minutes left, and anybody who wants to ask more questions at that time, please indicate to me.

Mr. Blaikie.

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

Thank you very much.

In the beginning of chapter 1, you say, “Quasi-commercial entities, special operating agencies and public-private partnerships have become increasingly common modes for governments to carry out their business.”

I'm wondering if there are precedents that you can speak to for ensuring that access to information that deals with third parties, like a P3, would protect legitimate commercial interests but not create another black hole.

If part of the goal of reform is to eliminate those black holes where information can be shoved, are there precedents, or are there ideas at least, about how there could be some oversight for that?

[Suzanne Legault]

We investigated some cases recently.

With this issue of public-private partnerships, we're getting into a lot of subcontracting for the work that's being done within government. Public Works does a lot of big contracts. The big contracting companies subcontract to a lot of other smaller entities, and we're finding it's getting more and more difficult for people to have access to those records.

We had quite a difficult investigation. We were trying to establish that Public Works is still responsible for those records, but as you move through third and fourth subcontractors, it's very difficult to get the records. That's one issue.

In terms of protecting third party commercial information, we have put in specific proposals to amend section 20. The reason we're recommending proposals here is that it also deals with appropriate protection, trade secrets, and commercial and financial information. Also, the way the act is done right now leads to a lot of inefficiencies in the investigations, because there are about four grounds for refusing disclosure. They all overlap. Some of them are mandatory and some of them are discretionary.

Our investigation is very complex, because we have to go through each step. Everybody quadruple-banks all of these exemptions. This is really our experience in all of our investigative files with third party commercial information. We're recognizing the importance of protecting it, but we want to really streamline the way that exemption is crafted so that it really simplifies the investigation while protecting the information.

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

Thank you.

Do I have a little more time?

[The Chair, Conservative, Blaine Calkins]

Yes, you do.

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

I guess maybe I'll just use that time to make a comment that I do think it's important, especially in light of all the contracting out of government work that's going on, that there be a way to get access to the information, at least to be able to make a value-for-money assessment.

That's one of the advantages we have when things are done in-house. We can evaluate how much is spent on it and get a sense of what Canadians are actually getting for the money spent. Then, as we hire other organizations to do that work and they say that we can't access information about how that work is getting done and what it costs, there's a serious cost to Canadians in terms of being able to evaluate the quality of that work. Of course there are other costs, because you end up losing the in-house capacity, and people who actually know what's involved in doing the job can then make reasonable assessments for government about whether the price they're paying for that work makes sense, whether what they're being told needs to be done is actually something that needs to be done, or whether that contract is being padded.

It seems to me that having access to information while protecting legitimate commercial interests—but I think that's probably a lot narrower in scope than it's been traditionally defined—is important so that this House and Canadians themselves can do the work of evaluating the value for money they're getting. It's certainly something I would like to see addressed in our study.

[The Chair, Conservative, Blaine Calkins]

Well, I'm sure you'll ask very pointed questions on that in the future.

That chewed up that little bit of time, but right now we're in unofficial time territory and as I mentioned earlier, you may indicate to me if you have some questions. I have Mr. Bratina, Mr. Massé, Mr. Erskine-Smith, and Mr. Kelly.

We will start on this side of the table and then move to Mr. Kelly. Then we'll go back over here.

Mr. Bratina, you haven't had an opportunity yet, so we'll start with you.

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

Thanks very much.

Thanks again for the presentation.

I want to go back briefly and have you expand on the notion of culture change and whether that has to do with a kind of entitlement where people in governance might take the attitude of, “Well, it's really none of your business. Leave it in our hands, and we'll look after these matters” as opposed to—and I hate to refer back to my previous experience—institutions that failed to file information, and it was a matter of butting your head to try to get the information.

Also, I'm wondering whether a newer government with fresher faces might be more ready to actually go through that culture change.

Could you comment a little bit about what you're after in terms of culture change?

[Suzanne Legault]

That's a very good question.

We live in the Westminster style of parliamentary system. If you look at our parliamentary system historically, there's a lot of secrecy.

We grew up as a democracy in that kind of system. It's interesting when you look at history to see that parliamentary debate used to be held in secret. In London—in fact the Mayor of London.... Somebody called Hansard decided to publish these in a rogue manner, because he thought the public should be made aware of what parliamentarians were discussing in the British Parliament. And then the person was actually jailed in the Tower of London. But eventually the debates got to be published, and look: all of your discussions are now televised.

That's what I mean by a culture change. We have to go through the same culture change in the public service in the way we administer the Access to Information Act.

The way people administer the act is to look at a record and say, “Section 19 applies, section 21 applies, section 23 applies, but oh, I can also apply section 20, and oh, I think it's probably also covered by section 69 and section 15 and maybe section 13 as well.” We will see cases in which we have a full slew of exemptions applied. The way we apply it is that whatever possibly applies is an exemption to disclosure, because we're risk averse in the public service; we're afraid of disclosing something we should not disclose. There is that culture that exists for sure in the public service.

What do we have to do? I think there is a very significant difference with the new generation, the millennials. All of us who have children who are in that category truly see the way that people work. I think as public institutions we're going to have to profoundly change the way we communicate our information from government, because our millennials, not only Canadian citizens but our public servants, want to share this information. They need it to work. They work this way, by using a whole broad source of information.

I also think we need to do it because sharing information with the public in today's time actually creates an innovation society, and we have to do that as well. The whole idea behind open government, in the U.S. particularly, was really based on creating an innovative society. Why? It's because we have cut a lot within our public service, and information and innovation occurs a lot outside of the public service. There needs to be this interaction so that we maximize the opportunities for innovation.

I truly believe in that. Yes, I know that people think I'm a bit of a Pollyanna, perhaps, in holding this view, but I don't think that necessarily has to be the case. If you speak to people from the Swedish government, you will find that their public servants' perspective on what needs to be disclosed is very different from ours. They have 250 years of experience with access to information laws, but their culture of disclosure is very different from ours. As part of your study, if you speak to some representatives here from the Swedish embassy you will find the way their public servants deal with disclosure information tremendously interesting.

This goes to some of the comments about how we administer this efficiently. The way they administer it is much more efficient than the way we administer it. They put much of the responsibility and the accountability on public servants directly: they make decisions on disclosure. They don't have a centralized process; they don't have approval processes; it isn't reviewed by communications people. It's a lot simpler.

There are things to think about in the change of culture, and there are examples in other jurisdictions. We need to really think about not just the risks but the opportunities of doing something like that as a country and as a public service.

[The Chair, Conservative, Blaine Calkins]

Okay, good.

Mr. Bratina, that was a solid question that used up the better part of six minutes.

Mr. Kelly.

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

Thanks, Mr. Chair.

On this general recommendation toward greater availability of documentation and the requirement to document decision-making, I listened to Mr. Blaikie's first round of questions with interest and your own anecdote in particular about having to disclose your horse doodle and whatnot. The thought I had then was, how do you guard against...? If we all agree that anything you ever create, whether it's a sketch in your notebook that might contain your own doodles, or whatever you might commit to paper, ought fairly to be part of anybody's access to information, how do we protect against an absence of context when information is disclosed? How do we protect against the types of frivolous or fishing requests that people may be encouraged to make with the knowledge that you never know what you're going to get when you see somebody's notebook, and frivolous or vexatious requests may arise from that, and information disclosed will lack context and not be understood properly?

[Suzanne Legault]

There are two things in your question, and I have three minutes to answer.

The first thing is contextual information. There's nothing preventing you from disclosing the context of the information if you're concerned about it. You can disclose more. There's nothing in any of the legislation preventing you from disclosing more, ever, so long as you're not disclosing something that you're not allowed to, such as a human source or something. You can provide more information in the context, and that's not something you should necessarily be worried about.

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

I'm sorry to interrupt. It's difficult to convey the context and elements of what is going on in a room just from a document.

[Suzanne Legault]

Such is life. It's the way our right is constituted. We give—and I'll be brief on that—little credence to Canadians in terms of how they understand things, and so on. I think we get a bit overly defensive in Ottawa, and perhaps we should consider that some of our information bears more importance to us than it does to the average Canadian. For the other points you made about frivolous and vexatious requests, we do make recommendations in the act around those things based on our experience. We do make a recommendation that there would be some discipline put in the act for frivolous or vexatious requests, or abuse of the right of access. It's something that does not exist in the act. Oftentimes what we see is that institutions use assessment of fees to deter this type of request. It's not something I think is appropriate, but for frivolous or vexatious requests, or abuse of the right of access, I think it's appropriate.

The other thing we're recommending is that there would be something to deal with some requesters making multiple requests within a short period of time to the same institution. We see that every year, and the institutions completely cannot absorb these. It's almost like a bombardment of institutions. We saw it with CBC. There's one institution this year that's going through the same issue. They have nothing in the act they can use to get extensions of time. There's nothing I can do either. The only thing I can do is work with them and work with what ends up being an influx of complaints as well. That's something that does need to be put into the legislation with proper parameters. I fully agree with that.

[The Chair, Conservative, Blaine Calkins]

Are you okay, Mr. Kelly, with that?

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

Yes.

[The Chair, Conservative, Blaine Calkins]

I think we've allocated up until about a quarter after. I see a couple of more people on the list who would like to ask a few questions, and I would like to ask a few questions. If you're okay to stay a bit longer then we'll do that, and then we'll use whatever time we have left over for our committee business.

We'll now go to Mr. Erskine-Smith.

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

I want to pick up on this notion of inefficiencies, and I take that largely to mean getting to the bottom of the exclusions versus the exemptions. You would have an opportunity to review exemptions and determine whether an exemption is proper, but with an exclusion, you might have a whole fight about the exclusion. The example you provided was about something that was fully redacted. It went through many processes, a complaint, etc., and there are inefficiencies built into that.

On the flip side, and maybe you can flesh this out, the PMO, the ministers' offices, and the parliamentary support organizations are currently excluded. If we go to an exemption rather than an exclusion model, are there the resources to review the additional information that you'll necessarily have to review in order to make the determination as to the whether the exemptions are proper?

[Suzanne Legault]

If I understand correctly, yes, depending on how many requests that generates in the system. We don't know.

If the administration of Parliament is covered, how many requests is Parliament's administration going to get in a year's time? We don't know. You might want to speak to Mr. Bosc to see what kind of demand he thinks they would get or in terms of getting some of kind of assessment of what that would mean.

Of course, the more that information is disclosed publicly, usually the less information is requested through access to information. There's usually a period of adjustment, I'd say, as well. The CBC is a perfect example. There were a large number of requests and then they really tapered down.

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

I'll move over to administrative penalties, which we actually haven't spoken about today.

There are existing sanctions and there are proposed sanctions. Maybe you could give us a little bit of background on the value the proposed sanctions would have and the effect you think they might have, and why the current sanctions are insufficient.

[Suzanne Legault]

The section on the sanctions is really based on our experience with some very specific investigative files. As I'm sure all of you know, anything that bears a criminal conviction means that it's really competing in terms of resources with the RCMP's resources. That is the body those cases would be referred to. In some instances, the level of severity is different. To have a full spectrum of administrative monetary penalties is probably more in line with the severity of some of these offences.

The other thing we're proposing is to have some amendments in terms of these infractions that exist within the act. That's really based on our investigative experience. There were some gaps we felt needed to be addressed.

The other key component is that when we refer a matter to a police body, the act predates some significant case law in that respect, and it puts my office and the people who are the target of these investigations in very difficult circumstances. It should be aligned with the way it's done in the Lobbying Act, which is a more modern piece of legislation.

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

I have one last quick question.

You mentioned earlier the example of notes in a meeting and they were excluded but that ought not to be the case and in fact should be subject to a national security exemption. If we adopt the exemption rather than the exclusion model, do you foresee a great deal more information being publicly available, or do you think, instead, that rather than being excluded, we're just going to find the same information is exempted?

[Suzanne Legault]

It really depends. For some of the institutions that are not covered right now, such as Nav Canada, I think it would make a tremendous difference in terms of accountability if they were covered. In terms of cabinet confidences, I think that with proper oversight, if we narrowed it, there would be more information that would be at least available for disclosure. It would be a different task. It would be a different exemption. It would be subject to these recommendations being applied to a public interest override. I think there would be more information that would be subject to disclosure.

We propose a scheme in which disclosure would be improved, in my view. Even if there were new institutions that are not covered but that would become covered, or information that was excluded that would not be excluded, the scheme that we're proposing would actually have a better balance. It wouldn't mean that everything would be disclosed, because not everything should be disclosed—and I'm the first one to say that—but there would be a more appropriate balance in terms of protection and disclosure.

[The Chair, Conservative, Blaine Calkins]

Are you satisfied with that, Mr. Erskine-Smith?

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

Thank you.