Evidence of meeting #4 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 records.
A recording is available from Parliament.
9:30 a.m.
Vice-president, Commission d'accès à l'information du Québec
Just a quick clarification.
The problem we have in Quebec is different. Under the act, when an agency hasn't responded within the prescribed time frame, the assumption is that the organization is refusing to disclose. So the citizen immediately turns to us, and we treat the file as a refusal to grant access. Further to that process, the body must give reasons for the refusal.
What that means in Quebec, then, is that it's not necessary to negotiate time extensions with public bodies.
9:30 a.m.
Conservative
9:30 a.m.
Commissioner, Office of the Information and Privacy Commissioner of Alberta
Yes. I wouldn't say that delay is a systemic problem across all public bodies subject to the legislation, but there certainly are delays in pockets and on certain issues. We've put in place processes, certainly through our order-making process, to try to address some of those issues.
For example, I know we issued a number of orders just recently against a public body for a situation similar to what Commissioner Beamish was describing, where the public body had not provided a response to a request for access. That matter came to our office. We bypassed the mediation and investigation process in the interest of getting a timely decision out there, a binding order requiring the public body to provide a response to the applicant in that case.
As I said, there may be certain public bodies where a delay is a problem, or there may be certain issues where delay is a problem—maybe not intentionally, but in some cases because there is a matter that needs to be resolved and sometimes the way to resolve the matter is through an inquiry process or a judicial review of the matter.
But overall, similar to the comments that Commissioner Beamish made, I don't think we have quite the same problem of delay that perhaps is seen at the federal level.
9:35 a.m.
Conservative
The Chair Conservative Blaine Calkins
Thank you very much. It seems to be the case that there are different powers that you have in all your respective jurisdictions that I think we need to seriously look at, and I'm sure we'll get to more in the questions.
We now move to Mr. Blaikie from the NDP for seven minutes.
9:35 a.m.
NDP
Daniel Blaikie NDP Elmwood—Transcona, MB
Thank you very much.
Thank you to all of you for spending time with us today, and for your presentations.
I don't want to delay you too long but I do just want to quickly serve notice of a motion before moving on to questions. The motion is that the committee request all briefing materials and memos prepared by the Treasury Board Secretariat for the President of the Treasury Board with regard to possible changes to the Access to Information Act, and that the committee invite the President of the Treasury Board to appear before it to elaborate on the aforesaid information at his earliest convenience following receipt of this information by the committee.
9:35 a.m.
Conservative
The Chair Conservative Blaine Calkins
Thank you, Mr. Blaikie. This is not normally when we do these things, but that's fine.
9:35 a.m.
NDP
Daniel Blaikie NDP Elmwood—Transcona, MB
I understand, but I think it does frame.... One of the things that I'm hoping we might be able to speak to is the difference between the public having access to information on what kinds of options government is considering that are out there and that they're looking at, versus having access to the actual deliberations of cabinet. Mr. Beamish has touched on this already, as have some of the other commissioners.
I just wondered if in the experience of any of the commissioners here, you could help better define what that difference would be, and the usefulness of having those cabinet confidences protected by specific exemptions rather than blanket exclusions.
9:35 a.m.
Commissioner, Office of the Information and Privacy Commissioner of Ontario
I can start again. I did mention that the exemption for advice and recommendations has been an issue. Generally, in terms of the advice and recommendations provided by a public servant to either senior public servants or to the political level, I think all of our legislation has an exemption for advice and recommendations, and there are good reasons for that. Traditionally, in Ontario we had interpreted that very narrowly, and generally it would only be the chosen course that was protected, and also the advice and recommendations had to be given to the decision-maker. In other words, if civil servants were having a discussion and mulling over different choices, but it didn't go any further, then they couldn't rely on that.
The Supreme Court of Canada recently struck down our interpretation and broadened out what represents advice and recommendations, so now we can include things like pros and cons and various options. It's a much broader direction from the court in terms of how we would interpret that. I guess any review of legislation is an opportunity to see whether the Supreme Court of Canada's interpretation is right or whether other wording would be appropriate.
9:35 a.m.
Vice-president, Commission d'accès à l'information du Québec
I can give you details on the examples I mentioned regarding the exemptions in Quebec's legislation.
Recommendations made by a cabinet committee or a member of the executive council are generally protected by a specific provision. The same is true of studies made within the executive council department, so cabinet, or the office of the secretary of the treasury board regarding a recommendation or request made by a minister, a cabinet committee or a public body.
In addition to the general provision protecting opinions and recommendations provided by public servants, section 33 of the access to documents act deals more specifically with recommendations made by cabinet members, for instance.
9:35 a.m.
Conservative
9:35 a.m.
Commissioner, Office of the Information and Privacy Commissioner of Alberta
I'd only say that as in the other jurisdictions, we do have an exception to access for advice and recommendations. That's a discretionary exception to access in Alberta, and again there are some qualifications on that in terms of timelines. We have issued a number of orders interpreting that section of the legislation. The language in our section is a little bit different from other jurisdictions, but as Commissioner Beamish has pointed out, that interpretation has gone to the Supreme Court and I think that where there were perhaps conflicting interpretations, we're now starting to see some consistency from the court in that. The issues are around things like whether or not the advice has to be given, and whether it is just the course of action that is taken versus the other options.
9:40 a.m.
NDP
Daniel Blaikie NDP Elmwood—Transcona, MB
To what extent do you think it's important that there be some kind of third party oversight when these exemptions or exclusions are applied, and that someone like you be able to look at it and then affirm whether or not it makes sense to apply that exemption or exclusion?
9:40 a.m.
Commissioner, Office of the Information and Privacy Commissioner of Alberta
I will speak first on that, if that's all right.
9:40 a.m.
Commissioner, Office of the Information and Privacy Commissioner of Alberta
I think it's tremendously important. I think this is what gives citizens the reassurance that information is not being hidden from them. What is of tremendous challenge is when there are exceptions to access that may be applied, but if, as the oversight body, you're not able to see those records or to obtain information to verify that the exception applies, then it's very difficult to do that job and to provide that reassurance to a citizen who's applied for access.
In effect there can be a large black hole, either intentionally, because a public body might not want to release information, or in some cases because a public body doesn't understand how the exceptions apply. That goes back to consistency of interpreting and applying the legislation as well. Over time, as an oversight body, particularly through the inquiry and order-issuing function, as I said in my opening comments, a body of jurisprudence is established that helps public bodies understand how to apply these things and what the test is associated with a particular exception to access.
Nonetheless, we still see matters that come to us where that test is not applied the way it has been applied previously, so I think we provide not only that reassurance to citizens—the independent oversight I think is tremendously important—but also the consistency in interpreting and applying the legislation.
9:40 a.m.
Conservative
The Chair Conservative Blaine Calkins
Thank you very much.
That does use up your time, Mr. Blaikie. I know that not everyone was able to answer that question, but I'm sure an opportunity will present itself as we move along.
We go now to the last of the seven-minute sets of questions, and Mr. Erskine-Smith from the Liberal Party, please.
March 8th, 2016 / 9:40 a.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Perfect. Thanks very much.
I would like to start with the legal duty to document. Because there are three of you and because time is limited, I'll keep the question fairly straightforward.
Is there a legal duty to document in your respective jurisdictions, and do you agree with Commissioner Legault that we should implement one at the federal level?
9:40 a.m.
Conservative
9:40 a.m.
Vice-president, Commission d'accès à l'information du Québec
Thank you for your question.
The answer to your first question is no. Quebec currently has no legal duty to document.
As for your second question, the answer is yes. Quebec agrees with the need for such an obligation. That's why we signed a joint statement to that effect, along with all of our counterparts.
9:40 a.m.
Commissioner, Office of the Information and Privacy Commissioner of Ontario
Ontario similarly does not have a duty to document in its legislation. We did a very significant investigation a number of years ago into deleted emails. One of the main recommendations coming out of that is that there should be a duty to document.
At a minimum, I believe the decisions made and the reasons behind those decisions should be documented in some fashion so that they are available.
9:40 a.m.
Commissioner, Office of the Information and Privacy Commissioner of Alberta
No, there is no legal duty to document in Alberta's legislation, and yes, I believe there should be. That was part of the recommendations made to the government's review of the FOIP Act in 2013. Like the others, we did sign on to the joint resolution, issued by all information commissioners across Canada, calling for a duty to document. This issue has arisen in Alberta, more recently in January of this year. We issued an investigation that had to do with the destruction of records following last year's provincial election.
There is no oversight of the records management program. There are no penalties for destroying records. If there are no penalties and there's no duty to actually have records, then there are no consequences, and I don't think that's appropriate.