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.
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
Okay. Thank you.
I understand that until we are sure and have agreed on which recommendations are going to be adopted and we understand the differences in the scope of what access to information may look like.... Do you have any idea at this stage, at a time when we are entering a deficit, what you think a properly funded regime would cost?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
I don't know. It really would depend on what happens in terms of the processing of requests. I must say, though, that in all fairness, according to what we have now in terms of the recorded costs of processing an access to information request—this is data from the government—it's $1,000 per request. That, in my view, is very high, and I think it's because of the way we administer this legislation.
I have an example, which I'll report on in my annual report, and it is not unusual, of something that was completely redacted. In fact, at the end, everything should have been disclosed immediately, but that request went through a redaction process. It went through an approval process. It went through a consultation process with another institution. It led to a complaint. I had to investigate it. I am now trying to resolve it. That, sir, should have been just disclosed immediately.
I really believe there is a large inefficiency reflected in the costs.
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
You do not believe, in fact, that you need a larger budget; you just need more effective tools to deal with your requirements.
Information Commissioner of Canada, Office of the Information Commissioner of Canada
I think there's a lot to be said for a proper culture of openness by default.
Conservative
The Chair Conservative Blaine Calkins
That will not change overnight, but that's a great thought.
We'll now move to Mr. Saini, for five minutes. Then we'll move back to Mr. Jeneroux, and we'll need another Liberal after that. If somebody could let me know who that is, that would be great.
Liberal
Raj Saini Liberal Kitchener Centre, ON
Thank you very much, Madam Legault. It's always a pleasure to hear your comments.
I want to talk about recommendation 4.5, but I want to put it into the context of recommendation 3.6:
The Information Commissioner recommends that a third party is deemed to consent to disclosing its information when it fails to respond within appropriate timelines to a notice that an institution intends to disclose its information.
I don't have an issue with that comment. What I have a little bit of trouble with, and maybe you can highlight this, is when you say that the Information Commissioner recommends that when consultation has been undertaken with another government, and the consulted government does not respond to a request within 60 days.
You mentioned earlier that certain governments in certain countries don't have the level of data management or information management that we do. Given that we are a trading nation, a nation that has a great interest in global affairs, I worry that if a request is made to another government that doesn't have the capacity, not because it's unwilling but because it doesn't have the capacity in terms of infrastructure to deliver that, it could impede the government in other areas.
I just want to know what your comments are on that.
February 25th, 2016 / 9:40 a.m.
Information Commissioner of Canada, Office of the Information Commissioner of Canada
I agree with you. We were very mindful of that in the report.
You'll see two distinctions in the recommendation. One deals with when you are consulting with a government or with institutions within Canada, all the jurisdictions in Canada are subject to access to information laws as well.
Information Commissioner of Canada, Office of the Information Commissioner of Canada
That's where, if you don't respond, you're deemed to have consented. It only applies to Canada.
For international jurisdictions, we are recommending to seek consent if it's reasonable to do so. The reason we put that there is we did a study a few years ago on these international consultations. Most of them are done with the United States. They're reasonable to consult, and then see if you receive an answer. In other jurisdictions, it's not reasonable to do so for various reasons—diplomatic relations; Iran or Iraq when we didn't have diplomatic relations, or when there is no infrastructure there for us to consult with, which was also an issue raised during our investigation.
The distinction is made, and it's only in that context.
It does happen to us quite a lot in investigating those files, and that's why we put that there. We don't get responses from national institutions in cases of historical records. We get a lot of complaints dealing with archival records. A lot of the time it involves police investigations that occurred some time ago, or other types of investigations, and we need to seek consent or the institution needs to seek consent, and the institutions in the provinces or territories don't respond. So we ask them to send letters, and so on.
It was meant to address a very specific issue, and that's why we are recommending to split those between national and international, specifically what you're raising.
Liberal
Raj Saini Liberal Kitchener Centre, ON
In recommendation 4.9 you said, “The Information Commissioner recommends a statutory obligation to declassify information on a routine basis”. I think in your recommendation you wrote 10 years is when that should be.
Please elucidate that matter. You also mentioned you would be applying an injury test. I'd like you to help me understand what the injury test is. You also mentioned that you would determine if the information still had enduring value. What do you mean by enduring value?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
It would be based on what Library and Archives, the archivists.... Each institution has to have a disposition authority. We all have to have retention and disposition authorities for our information holdings.
To give you a very simple example, in my office, because we do investigations, we have some investigations where our retention requirements are two years. We have some that are investigations of enduring value that we have to send to Library and Archives. This has to be done with the archivists. It's not something that institutions decide themselves. They have to get this retention and disposition authority from the Archives. That's the way that is settled.
The declassification is really based on the Bronskill decision in the Federal Court where the judge, in the context of the Tommy Douglas file, recommended that the government look into this so when files are sent to Library and Archives, they're at least...sometimes these files contain human sources, and those need to be protected forever. That's fine, but there's a lot of historical information in there that is of real value for Canadians, historians, and they should be declassified.
These files should be sent in a form where my office doesn't spend a lot of time investigating. They should be in a format that is ready to be disclosed to the public. This is something you might want to hear from the librarian because I think Dr. Berthiaume might have a few thoughts on that. My office and his office have a lot of investigative files together, and it's something we should declassify for Canadians for historical value.
Conservative
The Chair Conservative Blaine Calkins
Thank you. We're well beyond the five minutes.
We'll go back to Mr. Jeneroux, please, for five minutes.
Conservative
Matt Jeneroux Conservative Edmonton Riverbend, AB
Thank you.
On personal information requests, if I have constituents who want to know what information the government has on them, your recommendation would be they go to you and put in a request, but if it's the RCMP, or if it's CIC, they have to go there. There's no central location right now where they can request that. Correct?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
No.
Conservative
Matt Jeneroux Conservative Edmonton Riverbend, AB
To get to that level, what hurdles do you see for Joe Citizen, who wants to find every organization that would fall under the act? How would they do that? Under what you're proposing, would they still need to go to every organization and request that information, which is then compiled according to the act?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
There are two things to your question.
First of all, if someone makes an access request for their own personal information, it would be covered by the Privacy Act, so I invite you to ask this question of the Privacy Commissioner, because it's not something that I looked at. What's covered under our act is if someone.... This is where the two acts intersect, by the way. It's what my colleague was talking about: the seamless code. It's the exemption for personal information. That is where the two acts intersect.
What we see in our files is that someone will make a request, a lot of the time through their employers, and they want to have information about everything having to do with their labour grievances. Their request under the Access to Information Act will deal with everything about their grievance, as opposed to their personal information. It's a much broader request under the Access to Information Act. In any event, that would have to be treated under the Access to Information Act in terms of where the information is located.
I think you'll have to ask the Privacy Commissioner if he's put any thought into your question, because that's not something that would fall within my purview.
Conservative
Matt Jeneroux Conservative Edmonton Riverbend, AB
I'm understanding that, for sure, but part of the Liberal campaign promise was to create that central database no-fee website where people could go. I'm just trying to get a sense from you of what your interaction is with that. What flags are raised? Is that something you could help us work through to get to that?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
It's really not something I have looked at or studied at all. What I deal with is related. There are exemptions for personal information, but the requests we deal with are not about people's own personal information. In principle, to have a central database of all personal information, I don't know how it would be done or how it would work. As I said, it's something that you need to ask my colleague.
Information Commissioner of Canada, Office of the Information Commissioner of Canada
It wouldn't mean that people would not still make the same access to information requests under the access act. Those records would still be part of that.
I don't think it would alleviate any responsibilities under the Access to Information Act or any processing of requests where there are necessary exemptions for personal information. I don't think it would diminish our workload on the access side. I'd be surprised. I think it would really be dealt with under the Privacy Act and their workload.
Conservative
Matt Jeneroux Conservative Edmonton Riverbend, AB
Quickly, then, before my time is up, you referenced the Financial Administration Act. I saw it in a few places in your information. In one area, you say that it's listed in the Financial Administration Act, while in others.... I forget the word you used, but it's a little bit different from “listed”. I'm hoping you can break that down to which institutions and crown corporations.... Specifically for me, being new here, I'd like to see exactly which ones we're talking about. I pulled up the Financial Administration Act yesterday. It's a big act. I'll leave it at that, but getting a bit more detail would be wonderful for us.
If you want to speak to some of it now, go for it. Otherwise, you probably could add some of it to this report you're doing. It would be great for me.
Information Commissioner of Canada, Office of the Information Commissioner of Canada
Also, given some of the questions that have been posed this morning, we'll do more work for the committee on the coverage aspect. I think it would be helpful for the committee, so we'll do some of that work.
Conservative
The Chair Conservative Blaine Calkins
Okay. That's it for Mr. Jeneroux.
We'll go to Mr. Saini now, who I think is willing to share this spot.
Liberal
Raj Saini Liberal Kitchener Centre, ON
Madam Legault, you took some time in your report to differentiate between the ombudsperson model versus the order-making model. From what I've read, I think part of the frustration you have is that you have so many cases that are similar and there should be some sort of precedent-setting model, such that if cases fall under that precedent, they would be easier to adjudicate. You've also talked about the cost of processing a case.
Budgetary constraints are everywhere, but if we were to adopt the order-making model, I'm wondering if you would find that your office would be more effective and efficient. In terms of the ability of your office to deal with those matters that are a little bit more complicated than the routine matters you have—because every office has routine matters—and that consume a lot of your time, that time could be saved, because precedents would have been set, using the model that you suggest. You could spend more time dealing with other issues and, once they are dealt with, they could become precedent-setting models. Can you elaborate on that, please?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
This is a very good question, and I can give you very concrete examples.
I was telling you that 40% of our files deal with administrative matters. If you're able to just say to the institution that they shall disclose the information by this date, it's a lot more efficient than having to do an investigation.
By the way, the Federal Court of Appeal case for the 1,110-day extension is not because we didn't try to mediate that with the department. We tried extensively to mediate. We could not get the department to agree to a date for disclosure, and it had to go all the way to the Federal Court of Appeal.
In an order-making model, that would have been settled within days. We would have looked at the situation, looked at how many records were involved, looked at the necessary consultations, and if we could not come to an agreement with the institution, we would have just ordered disclosure by a certain date.
This is what happens in Ontario, for example. If you speak to my colleague in Ontario, you will find that they don't have issues with delays, because the institutions know.... It's a reasonable mediation process once the institution is in default. It does happen. It will continue to happen. But the institution comes to the oversight body and there's a conversation about when this information can be disclosed, and then there is a decision that's made and the information is disclosed. That's the first step. It really solves a lot of those issues. That's one thing.
The other aspect of real efficiencies in an order-making model is the mediation aspect, and that is key. Right now when we investigate refusals to disclose information, we try to mediate. However, you have to understand that in an ombudsman's model, it's the same body that mediates or tries to negotiate something as makes the decision at the end, or the recommendations. There's no real mediation privilege around that discussion.
You will also find with my colleagues who have the order-making model that the mediation component is a lot more effective, for two reasons. One, you can have mediation privilege, i.e., if you don't agree, there's a separate adjudicative process, with separate parties. In our ombudsman's model now, we do try to negotiate, but there's no real protection or privilege for that conversation.
In an order-making model, if you don't mediate, then it goes to adjudication. That's a lot more costly. It's a lot more time-consuming. The last efficiency is that the institution has the burden to give all of its representations to justify the non-disclosure at that time.
In an ombudsman's model, if they want to give us not very strong representations, they know that ultimately I'll have to take it to court. If the government does not want to disclose, the incentive in an ombudsman's model is to not do a very solid job to justify non-disclosure, but in an order-making model, that incentive is completely reversed and the burden is truly where it should lie.
These are the three huge differences in efficiency components to that model, which are truly in sync with the quasi-constitutional right of access.