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.