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.
10 a.m.
Conservative
The Chair Conservative Blaine Calkins
Thank you very much.
Mr. Beamish, do you have some quick comments on that question?
10 a.m.
Commissioner, Office of the Information and Privacy Commissioner of Ontario
Yes, I can speak from Ontario's experience. I think there are two instances at play here. One is an instance where an individual puts in a request that's overly broad, and I think these bring some [Technical difficulty—Editor] ability of an institution or government to charge a fee gives our mediators an opportunity to try to get the requester to scope the request down.
That's quite distinct from frivolous and vexatious requests. Similar to Quebec, Ontario does have a specific provision dealing with frivolous and vexatious requesters. An institution can declare a requester to be frivolous and vexatious, and we can either confirm that or not. Generally that [Technical difficulty—Editor] who puts in a large number of requests for the same information.
There are thankfully very rare circumstances where it's a matter of a requester who is not just abusing the system but abusing the staff who are operating the system. We have the ability to order and fashion a resolution or a solution for the institution and that may be limiting the person to one request a year or one open file or that they can only communicate by way of email, what have you. But I think it's a very valuable tool for us to have in those really rare circumstances where somebody may be abusing the system.
10 a.m.
Conservative
10 a.m.
Commissioner, Office of the Information and Privacy Commissioner of Alberta
We have a similar provision in our legislation. A public body can apply to me for authorization to disregard an access request if it is repetitious or systematic and would unreasonably interfere with the operations of the public body, or if it's frivolous or vexatious. The onus is on the public body to come with the argument and persuade me that the test has been met. It's not something that I do lightly because it does involve taking away a statutory right of access, but there certainly are those cases where an individual is trying to—I think we've used this expression—grind down the public body and interfere with the operations, and the purpose of the request for access is not about obtaining access, it's something else altogether.
So the legislation does provide a mechanism whereby a public body can seek someone with—
10 a.m.
Commissioner, Office of the Information and Privacy Commissioner of Alberta
I was just going to say that we had seven of those requests last year from public bodies, which was a significant increase. Usually there's one or two a year.
March 8th, 2016 / 10 a.m.
Liberal
Raj Saini Liberal Kitchener Centre, ON
Thank you all for being here. I appreciate your comments. You spoke very eloquently about the advantages of each one of your systems and also the challenges that you're facing.
As you are well aware, the Office of the Information Commissioner of Canada has produced a document called “Striking the Right Balance” that has made 85 recommendations.
Do you disagree with any recommendations in that report, and do you feel for purposes of uniformity across the country whether it would be ideal to have some of those recommendations applicable to every province? I know each province has a certain nuance, but they'd be applicable to each province so they're uniform within the system.
10 a.m.
Vice-president, Commission d'accès à l'information du Québec
That's a broad question.
Some of the recommendations in Ms. Legault's report aren't relevant because Quebec's legislation is different. In fact, you pointed that out, Mr. Saini. On the whole, I'm not opposed to any of the recommendations. In our efforts to modernize Quebec's legislation, the commission actually made a number of the same recommendations Ms. Legault did.
As for whether it would be a good idea to have the same laws applicable across the country, I would say that's quite a broad question. I must confess that it's not something I've looked into, so I wouldn't want to venture an opinion without having given it some thought first.
10:05 a.m.
Commissioner, Office of the Information and Privacy Commissioner of Ontario
I'll be honest with you. I can't say that I have taken a position on all of her 83 recommendations. I think there is a commonality to the recommendations that I definitely support.
I've spoken about the order-making authority that the commissioner should have. Broadening the scope of the act is something I would definitely support, as well as her recommendations around a duty to document, absolutely. I think all of those are issues that we deal with as commissioners across Canada. I'm confident that in Ontario I have a good enough relationship with our government that I can go to them and enter into a discussion about any particular changes that I feel are required.
I'm not sure that there's a necessity to have a pan-Canadian approach on these issues, if I could put it that way.
10:05 a.m.
Commissioner, Office of the Information and Privacy Commissioner of Alberta
Similar to the comments we've already heard from Quebec and Ontario, certainly some of the recommendations made in the “Striking the Right Balance” report don't apply in our context. For example, regarding recommendations for order-making power, we already have that. I think it is important to remember some of the jurisdictional differences.
Having said that, as I mentioned in my opening comments, many of the recommendations that I made to the Government of Alberta back in 2013 are consistent with or very similar to recommendations that appear in the “Striking the Right Balance” report, notably around open government. I firmly believe in publication schemes and identifying certain categories of records that should be made public, as well as a duty to document.
I do recall—I think it would have been two years ago—that commissioners from across the country did actually issue a joint resolution on modernizing access to information and privacy legislation and agreed on a number of principles. Duty to document was part of that, as was looking at the scope of legislation to ensure that the entities that should be covered are covered. I think there's a lot that is consistent between the positions that I've taken with respect to Alberta's legislation and the recommendations in the federal report.
10:05 a.m.
Liberal
Raj Saini Liberal Kitchener Centre, ON
You mentioned during your remarks that you felt that certain public institutions should be automatically disclosing information regarding public access. I'm just wondering if you could give us some examples of what types of information should be allowed to be given to the public and what types of institutions you feel that's applicable to.
10:05 a.m.
Commissioner, Office of the Information and Privacy Commissioner of Alberta
Certainly we've seen open government movements internationally, across Canada, and at various levels of government within provinces. I think there's generally a desire and a trend to make more government information available to the citizenry. An informed citizenry is able to participate better in democratic processes and hold government to account, so I am in favour of putting information out there.
I also hear often that the formal request for access process, under the FOIP legislation is onerous. It can be time consuming and it can be expensive. There are possibly ways around that by identifying the kinds of records that individuals or other entities or persons request access to and making that information proactively available. That could vary depending on which public body we're talking about. For example, there are certain kinds of records that are commonly requested from the department of the environment here, and those records have been identified. There has been a lot of work to make that information proactively available to the public so applicants don't have to make formal requests for access. It's just pushed out there. We've seen open government efforts across the country to identify datasets that the public wants to have access to or may be able to use to add value to, so identify those datasets and push them out.
Other than that, things like policies, certain kinds of minutes, those kinds of records that individual applicants request access to, identify them for each public body and push that out there to make it available in a transparent way.
10:10 a.m.
Conservative
The Chair Conservative Blaine Calkins
Thank you very much. We've gone over on time a few times now. We have to tighten this up a little bit.
Mr. Kelly for five minutes only. Thank you.
10:10 a.m.
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
Thank you. I'll keep it short.
I note that in both Ontario and Alberta there is a dual mandate dealing with both privacy and access to information—areas that are covered by two different commissioners at the federal level and, if I understand correctly, in Quebec as well.
I'd like perhaps each of you to comment on the nature of the dual mandate to be a commissioner for information and privacy at the same time, as in the case of both Ontario and B.C. It's a different model from what we have at the federal level.
10:10 a.m.
Conservative
The Chair Conservative Blaine Calkins
That's an interesting question.
Madame Poitras, we'll start with you. Then we'll move to Mr. Beamish and then Ms. Clayton, please.
10:10 a.m.
Vice-president, Commission d'accès à l'information du Québec
Perhaps I wasn't clear.
The Commission d'accès à l'information du Québec has the dual mandate you mentioned, in other words, ensuring access to documents and protecting privacy. But we have two separate divisions, an adjudication division and an oversight division. As an institution, the commission has that dual mandate.
The report that led to the legislation in Quebec mentioned the importance of having a single organization overseeing both of those elements. I'll give you a concrete example that I think illustrates the importance of having one institution fulfill both of those mandates. I'm talking about consistency in the decisions that are made. In the case of an access request for documents containing personal information, the commission must determine what information is deemed personal before it can decide whether the documents should be made public or not.
In its oversight role, the commission must also determine what constitutes personal information within the context of an investigation, to identify how much jurisdiction it has and whether it can investigate a particular matter. Having two separate institutions each interpreting what personal information means could lead to conflicting definitions.
10:10 a.m.
Commissioner, Office of the Information and Privacy Commissioner of Ontario
I agree completely with those comments. We oversee the public sector privacy legislation as well as access to information legislation. I think it works very effectively having those combined in one agency. That at least has been our experience. I think there are times when there's a need to balance the right to privacy with a public interest or need for transparency and openness. I think if the function is combined in one office, that can be done effectively.
For example, when I first started in business, things like expense accounts of public servants, in Ontario anyway, were considered for the most part to be private. That was their personal information. That's no longer the case. I think there's an understanding that even though there may be information with a name attached to it, an openness and transparency and accountability function overrides that. Employment contracts are similar in Ontario. We now treat employment contracts as something that, despite the fact that they are personal to an individual, should be in the public domain.
10:10 a.m.
Conservative
10:15 a.m.
Commissioner, Office of the Information and Privacy Commissioner of Alberta
I think in the interest of time, I'll just say that I agree with my colleagues. In particular, Commissioner Beamish has given some good examples of where you need to do that balancing. It's worked well for us.
10:15 a.m.
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
I know we have to keep moving along. I find it interesting, though, that at the federal level we have two different commissioners.