Information & Ethics Committee on March 8th, 2016

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

On the question of costs and fees, Commissioner Legault has recommended the elimination of all fees. I wonder if you could briefly let us know whether the fees in your jurisdictions have been eliminated or are nominal, and if you would support Commissioner Legault's suggestion that they be eliminated or, in the alternative, that they be nominal.

[Diane Poitras]

Under Quebec's legislation, access to a document is free of charge for citizens. But, under the regulations, a public body may charge a fee for the reproduction of the document, after the first 20 pages or so. And, obviously, there is no charge to consult the document on site. The regulations provide for a few other considerations, but those are the only fees that may be charged in Quebec. There is no charge for the information search or the time a public servant spends responding to an access request. And the commission does not charge a fee to citizens seeking a remedy.

[The Chair, Conservative, Blaine Calkins]

Thank you.

Mr. Beamish.

[Brian Beamish]

In Ontario fees are applicable in two circumstances. One is the initial fee for submitting a FOI request. In Ontario it's nominal. I think it could easily be eliminated. It strikes me as being more of an administrative burden than anything else. Institutions can also charge a fee for responding to the request itself. If the request is for a person's own personal information, generally that's a fairly nominal charge, if there is any charge at all. If you're looking for general records, there are occasions where that fee can be substantial. We have the ability to review a decision and strike down a fee if we feel it's too large.

I think fees, if they're not eliminated, at least could present an opportunity to leverage the system. In other words, if an institution or a ministry does not respond in time, or if there are delays, you could construct the legislation so that they forgo the right to charge a fee.

[The Chair, Conservative, Blaine Calkins]

Ms. Clayton.

[Jill Clayton]

In Alberta there's a $25 fee for general access, or access to general records. There are no fees for access to personal information. There's a fee schedule that sets out a maximum charge for processing certain parts of requests for access. An applicant who is charged a fee can come to the office and ask us to review that fee, and in some cases we have the power to order a public body to reduce the fee. Fees can also be waived in the public interest and we can review those requests.

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

I have a final question. Commissioner Legault suggested that where a body is publicly funded in whole or in part it should be subject to access to information. I wonder in your jurisdictions whether there's a de minimis amount. Is it in whole or in part, and what's the scope of the application of the act in jurisdictions?

[The Chair, Conservative, Blaine Calkins]

We'll start with Quebec, and then go to Ontario, and finally to Alberta.

[Diane Poitras]

A number of criteria currently apply in terms of the government agencies subject to the access to documents act. With respect to an organization's funding, the act stipulates that bodies whose capital stock forms part of the public domain are subject to the act. As interpreted by the courts, that means a corporation whose shares are owned entirely by the government or a public body.

Clearly, we don't think that's adequate. It's quite a feat to find the right legal wording to describe agencies that are publicly funded and that carry out public functions, while excluding certain types of not-for-profit agencies already subject to reporting requirements because they receive funding from a government department.

Knowing where to draw the line is extremely complex, and I don't think Quebec's current legislation is adequate in that regard.

[The Chair, Conservative, Blaine Calkins]

Mr. Beamish.

[Brian Beamish]

In Ontario, there is no formula for how much funding makes you a public body or covered by the act. That is generally left up to regulation. The government bodies are covered by the act by regulation.

Ontario has done a pretty good job of filling some gaps over the last few years. Universities have been brought under coverage and hospitals have been brought under coverage. I would prefer, I think, to [Technical difficulty—Editor] Commissioner Suzanne Legault's fundamental principle, which is that if you're funded by the government, you are covered.

I think one of the areas that we are dealing with and trying to grapple with is that some of the regulatory functions that have been traditionally performed by government are now being outsourced, sometimes to industry bodies. They're not-for-profit but they look like a government function in performing something that government used to do. Our feeling is that some of those should, at a minimum, be covered by privacy regulation, and we think they also should be covered by access regulation in terms of how they are administering their dollars.

[The Chair, Conservative, Blaine Calkins]

Thank you very much.

Ms. Clayton, I know you mentioned this in your opening remarks, but if you could give us the list of exclusions and inclusions, that would be great.

[Jill Clayton]

In addition to what I mentioned in my opening remarks, in Alberta the phasing in of the FOIP act was a staged process, eventually covering what we'll call, in order to summarize, the MUSH sector, which is municipalities, universities, schools, and hospitals, and also provincial government departments. It covers all those groups.

There are public bodies that are named in legislation itself, but there are also criteria set out in regulations that provide some idea of how other public bodies may be added to the legislation, as follows:

The Lieutenant Governor...may designate an agency, board, commission, corporation, office or other body as a public body...

(a) where the Government of Alberta

(i) appoints a majority of the members of that body or of the governing board of that body,

(ii) provides the majority of that body’s continuing funding, or

(iii) holds a controlling interest in the share capital of that body,

There is a regular review of this schedule to add additional public bodies.

In regard to my submission to the Government of Alberta's review of the FOIP act, they did recommend that we take a fulsome, comprehensive look at various institutions to make sure that the exclusions are appropriate, that the criteria are appropriate, and that there are not additional agencies, boards, commissions, and institutions that should be covered by the legislation but perhaps are not yet covered.

[The Chair, Conservative, Blaine Calkins]

Thank you very much.

We now move to the five-minute round.

We'll start with Mr. Kelly.

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

Thank you.

I want to return to and get some comments about the cabinet decision-making, advice, and recommendations, the exemptions, and the various exemptions around cabinet information that have come up already in some of the questions.

I was particularly struck by one of the responses that Commissioner Clayton gave about having access to ensure that an exemption is proper. In the House of Commons, we've had questions raised about pecuniary interests of senior staff or spouses of ministers. We've been assured in the House that the Ethics Commissioner is setting out proper walls and proper barriers and that proper recusals will take place to avoid an actual conflict of interest, rather than just the appearance of conflict of interest.

In Alberta, you have access to items to see whether an exemption is proper. Is this perhaps one of the tools that could be used to ensure that proper walls or barriers around conflict of interest could be monitored?

[The Chair, Conservative, Blaine Calkins]

That's an interesting question.

Ms. Clayton, I think you mentioned earlier that you had access to cabinet information.

[Jill Clayton]

Yes.

[The Chair, Conservative, Blaine Calkins]

Whether that was publicly disclosed or not is different, but you yourself had access to that. I think that's the nature and source of Mr. Kelly's question.

[Jill Clayton]

Yes. I will also just mention that one of the exclusions under our legislation applies to officers of legislation when they're engaged in performing their operational functions. With respect to the member's question concerning the Ethics Commissioner, in Alberta, for example, the operational records that are associated with the ethics commissioner's investigation are not subject to the FOIP Act. They are excluded from the FOIP Act. However, with respect to other types of records such as cabinet and treasury board confidences, we have issued orders. We have had the ability to review those records to be able to reassure the applicant and the public that the exception to access has been properly claimed.

That is not across the board. We have a matter that it is currently in front of the office and, in fact, in front of the Supreme Court coming up on April 1, which has to do with records for which solicitor-client privilege has been claimed. Solicitor-client privilege is an exception to access under our legislation. Certainly, in the last couple of years we've not only had difficulty obtaining the records to review claims where that exception applies, but also sufficient information. We have developed a separate protocol so that we don't necessarily need to see the records but can in fact obtain sufficient information to be able to confirm that a claimed privilege applies. When we are neither able to see the records to verify the exception has been claimed nor obtain enough information to be able to verify that claim, it's very difficult to provide the service to fulfill our mandate, which is to either order that the records be released or confirm that the records don't need to be released.

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

Okay. So if I understand that correctly, when you're seeking whether an exemption has been correctly applied, the issue of a conflict of interest, or something like that, would not be part of the decision on whether the exemption is correctly applied.

[Jill Clayton]

No. If I understand your question correctly, our job is to review the records to see whether or not the exception under the legislation has been applied correctly. We're not making a determination of whether there is a conflict of interest or not. That would be the purview of the ethics commissioner in one of her investigations, and records related to her investigation are excluded from our legislation.

[The Chair, Conservative, Blaine Calkins]

You have 15 seconds left, Mr. Kelly.

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

I don't know if I can get another question in and have a variety of you can comment on or answer, but I would have asked about the the extent to which.... We spoke about the fees. There was a question about fees and about how processes might enable the commissioners to avoid or deal with vexatious, frivolous, or abusive types of requests for information.

[The Chair, Conservative, Blaine Calkins]

That's a pretty good question. That was actually a question I was going to ask at the end, Mr. Kelly, and now I don't have to ask it.

I'd like a quick response from all three of you. We'll start with Madame Poitras and go to Mr. Beamish after that. Have you examined whether or not the presence or absence of fees condones or prevents frivolous requests or requests that simply are put in place to burden the system?

[Diane Poitras]

Quebec's legislation contains a provision on those types of situations, specifically. It authorizes the commission to cease to examine a matter if the application is considered to be vexatious or frivolous, or made in bad faith.

The act contains another provision to address what you mentioned. When a public body, which has just 20 days to respond, receives an access request for several thousand documents, it can ask the commission for permission to disregard the request. Those mechanisms help keep the system in balance and address the issues you referred to. In Quebec, we don't do that through fees but, rather, through specific provisions of the act.