Information & Ethics Committee on March 8th, 2016

[The Chair, Conservative, Blaine Calkins]

Good morning, everyone.

It's great to see everybody back after our constituency week. This is our first meeting. Before I get to our witnesses and our guests this morning I'll remind members who are new, which is all of us, that when we're doing video conferencing you'll find that there is a delay between here and whether it's Montreal, Toronto, or Alberta in this particular case this morning.

What I would ask that you do is that you hesitate for a couple of seconds if you're going to switch languages or if you're going to begin your questions after someone is done speaking. You'll find that it's like a cellphone conversation when two people try to start talking at the same time because of the delay. Sometimes these things happen. For the sake of our translators and to make the meeting go as effectively and efficiently as possible for those of you who haven't done a video conference before just note that delay.

Colleagues, when we last met we had plans to have certain witnesses here. We had talked about having privacy commissioners from other provinces and information commissioners from other provinces as well, and they were able to join us today.

I would like to welcome from the Commission d'accès à l'information du Québec, Diane Poitras and Jean-Sébastien Desmeules. From Toronto we have Mr. Brian Beamish, and from my home province of Alberta we have Ms. Jill Clayton.

Ms. Clayton, we are glad that you're up bright and early this morning. You have with you Kim Kreutzer Work and Sharon Ashmore.

You've been briefed on what the topic of our study is. The way we will proceed is I will give each of you an opportunity to provide some information to the committee and then we'll proceed to rounds of questioning.

We'll go for about an hour and a half. If each of our witnesses gives us up to 10 minutes that would give us about an hour or 50 minutes for questions and answers. We'll make sure everyone has an opportunity to ask questions and then we'll have about 20 to 30 minutes at the end of the meeting again to further refine the details of our study.

Without further ado I will start with Ms. Poitras.

You have the floor for 10 minutes.

[Diane Poitras, Vice-president, Commission d'accès à l'information du Québec]

Thank you kindly, Mr. Chair.

My name is Diane Poitras and I am the vice-president of the Commission d'accès à l'information du Québec. I am stepping in today for our president, Jean Chartier, who is currently out of the country. Joining me is our secretary general and chief of legal services, Jean-Sébastien Desmeules.

I would like to thank you, Mr. Chair, as well as the committee members, for inviting us to appear before you today. We appreciate the opportunity to speak to you briefly about access to information and privacy laws applicable in Quebec and the role of the Commission d'accès à l'information du Québec.

In terms of Quebec's legislation, An Act respecting Access to Documents Held by Public Bodies and the Protection of Personal Information was passed in 1982 and applies to approximately 2,700 public bodies in Quebec. Essentially, that means the government, the National Assembly, government departments and agencies, municipal and school bodies, as well as health services and social services institutions. Under the act, every person has a right of access, on request, to the documents held by these public bodies. Like other access to information laws, Quebec's legislation also sets out situations where a public body can or must deny access to a document.

The act also provides that every person can make a request to examine personal information concerning them or to have it corrected. There again, a public body can, of course, deny the request for specified reasons. A public body must give the reasons for any refusal to disclose an administrative document or personal information. The person may then apply to the commission for review of the decision.

To promote transparency, the access to documents act and accompanying regulations provide for the proactive disclosure of some information and documents by government departments and agencies. For instance, any document made accessible further to an access request must be disclosed on the body's website for the overall public good. The same is true of studies and research reports in the public interest, as well as information relating to a public body's contracting or spending activities.

Finally, the access to documents act requires public bodies to protect the personal information they hold. To that end, they are subject to obligations throughout the lifecycle of the personal information, from the time it is collected or created until it is destroyed.

Next, An Act respecting the Protection of Personal Information in the Private Sector was passed in 1994 and applies to all enterprises doing business in Quebec. In fact, the province was the first government in Canada to pass legislation to protect personal information in the private sector.

The legislation requires private enterprises to protect the personal information they hold and disclose, even outside Quebec. This act also stipulates that a person can request access to, and the correction of, personal information concerning them being held in a file by an enterprise. If the enterprise refuses to grant the request, the person can submit an application to the commission for the examination of a disagreement.

Both of the acts I just described override all other applicable legislation in Quebec, attesting to the desire of lawmakers to underscore the paramount importance of the acts and the rights they give citizens.

I would like to point out one last thing about the legislation. Every five years, the commission must report, to the government, on the application of the acts. The commission makes recommendations designed to improve government transparency and privacy protection in Quebec. The report is submitted to the National Assembly and then studied by a parliamentary committee, so it can give rise to legislative amendments.

Now I'd like to say a few words about the role of the Commission d'accès à l'information du Québec.

The commission was established in 1982 and has approximately 50 employees, with 7 members appointed by the National Assembly. They serve for a renewable term of 5 years. Under the act, the commission's mandates are split between two divisions: an adjudication division and an oversight division.

I'll speak first to the adjudication division.

The adjudication division acts as an administrative tribunal and decides applications for review made by any person who has been denied access to administrative documentation or personal information. The adjudication division receives approximately 2,000 new files annually.

Members appointed to the adjudication division generally hold hearings during which representations are made by the parties concerned. When deemed appropriate by the member reviewing the file, representations may instead be made in writing.

After hearing the parties concerned, the commission can decide on every matter of fact or of law and make every order it considers appropriate to protect the rights of the parties. In particular, it can order the release of a document and fix such conditions as it may deem advisable to facilitate the exercise of a right conferred by the act.

The commission's decision is public. It is executory 30 days after its receipt by the parties, subject to the person's right to appeal the decision before the Court of Québec on a question of law or jurisdiction only. This right of appeal is tantamount to a judicial review.

From the time a decision becomes executory, it may be filed with the Superior Court, granting it the force and effect of a judgment of the Superior Court.

The commission makes a confidential mediation process available to the parties, on a free and voluntary basis, to encourage amicable settlements. Approximately 80% of the applications filed with the adjudication division are settled through mediation, and 30% of those are resolved within 90 days of the file being opened.

Ensuring that files are settled to the satisfaction of the parties in this way allows the commission to reduce hearing wait times for other files. Furthermore, even in cases where the parties are unable to reach an agreement, the information provided by the mediator can help them narrow the focus of the debate and better prepare for the hearing.

I will end with a few words on the commission's oversight division.

In its oversight role, the commission is responsible for promoting the principles of access to documents and the protection of personal information. Clearly, it must also ensure compliance with relevant legislation. To that end, the commission investigates potentially problematic situations brought to its attention, thus ensuring that public bodies and private enterprises adhere to the provisions in the legislation.

The commission can make executory recommendations and orders further to its investigations. If an order is not implemented, the commission can notify the government, describe the situation in its annual report, submit a special report to the National Assembly or, in the case of a private enterprise, release a public notice. Penal proceedings may also be instituted.

The commission recently introduced a preliminary complaint-handling process, which has allowed it to resolve 60% of cases. This is a quick and effective way of changing the practices of public bodies and enterprises.

In conclusion, I would point out that the Government of Quebec announced its intention to modernize its access to documents act, by implementing a number of the commission's recommendations. These were set out in reports produced by the commission every five years. The government and several stakeholders nevertheless believe that one of the current model's strengths lies in the commission's power to make executory orders. The commission agrees, reiterating, as part of its modernization efforts, the importance of providing citizens with an effective remedy that allows for an executory decision at the initial recourse level.

Thank you, Mr. Chair.

I would be pleased to answer any questions you or the committee members have.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Madame Poitras, for that very informative briefing. I'm sure we'll get to some very good questions once we're through the list.

Now we move to Mr. Beamish for up to 10 minutes.

[Brian Beamish, Commissioner, Office of the Information and Privacy Commissioner of Ontario]

Thank you very much.

Good morning, everybody.

My name is Brian Beamish. I'm the information and privacy commissioner for the Province of Ontario. I appreciate the opportunity to speak to you while you continue to review the federal Access to Information Act.

I'm really pleased to be able to speak to you about Ontario's experience with access to information, or freedom of information, as we call it. In my 10 minutes, I am going to concentrate on the issue of oversight powers and particularly on our experience with having order-making power here in Ontario as compared to the ombudsman-style regime that is set out in the federal act.

Before I do that, let me just give you some context on the work we do here. My office oversees three laws: the provincial Freedom of Information and Protection of Privacy Act, the municipal counterpart to that, and Ontario's health privacy law, the Personal Health Information Protection Act.

In terms of exercising powers under those acts, when it comes to access to information, we have full order-making power, which means that ultimately we resolve issues by making an order that can range from situations where institutions have not made a decision, to fees, to requiring additional searches to be performed for records, or at the end of the day, to the refusal to disclose records. Under the health privacy law, we have, again, full order-making power so that when we conduct an investigation, we can order a health information professional or organization to take particular steps to comply with the law. On the public sector privacy side, we have very limited order-making power. We can only order an institution that is collecting information; otherwise, we have a review and recommendation function.

Again, it's context. I think it's important to understand that, even though on the access to information side we have full order-making power, we only issue orders in a relatively small percentage of cases. In May 2015, provincial and municipal institutions in Ontario received approximately 58,000 access to information requests. Those are the initial requests coming into government bodies. Of those, our office received 1,400 appeals, which represents about 3% of all of those initial access to information requests, and we were able to resolve about 77% of those appeals without issuing an order, which meant that we ultimately issued only 243 orders. So you can see that there's a real winnowing effect from 58,000 requests to 1,400 appeals to 243 orders, and I think a lot of that can be attributed to the fact that we do have order-making power.

Let me turn then to our experience with that power. I can say that it has been overwhelmingly positive. Before becoming commissioner, I was the assistant commissioner with responsibility for our tribunal services, so I did have direct experience with this, and I'm a very strong supporter of the order-making model. I think the bottom line is that it presents a benefit not only to requesters but also to the institutions that are covered by our act, and it promotes an expeditious, cost-effective, efficient access to information regime that has a real element of finality to it.

Let me turn to the specific benefits that we see. The first is that I think the order-making model does help to enforce the right of access in an efficient and effective manner. There is a clear incentive for institutions at the initial request stage to maximize the amount information that they are disclosing and to reduce the administrative burden both on themselves and on the requester.

I think it's important to remember as well that there can be a real power imbalance in the access to information system. The majority of our requesters are individuals who don't necessarily have the resources to engage in a prolonged battle with a government institution that may end up in the courts, and our system is designed to give them greater access to the information system and the review of the initial government decisions.

We are able, because we have order-making powers, to put systems in place to ensure that the review process of an institution's initial decision does not drag on. If it does, we are able to bring it to closure by issuing an order.

I know that one of the criticisms of the ombudsman style, particularly at the federal level, has been a low compliance level. The federal Information Commissioner makes recommendations, but they're not complied with by institutions. Binding orders don't have that difficulty. Our orders are final. They are not appealable to the courts.

Institutions or unsatisfied parties can seek judicial review, but that's a very narrow review process. In fact, last year, of the 243 orders we issued, there were only six cases where they were judicially reviewed. For the most part, our orders are final and binding on the parties and bring finality to the system.

The second benefit we see is that by our ability to issue orders we create a body of jurisprudence that can be relied on by requesters, the public, government institutions, and our staff themselves. Over the years, we have issued thousands of orders that have interpreted the act and how it should be applied. I believe that gives guidance to all the parties, makes for better and full decisions regarding disclosure by institutions, and also provides guidance, should there be an appeal, to the parties on how our organization will resolve those appeals.

The third benefit I see is that order-making power helps to facilitate settlements. Our order-making [Technical difficulty—Editor] not work to the exclusion of mediation. In fact, I believe it helps facilitate the mediation process. Parties, when they come to us on an appeal, have a very strong incentive to mediate and to find common ground, rather than have an issue move on to adjudication and a potential order.

Commissioner Legault noted last week in her comments that one of the benefits of order-making power is that there's a clear distinction between the mediation process and the adjudication process. In our system, if a file does not mediate, it moves on to adjudication, at the end of which an order can be issued. The mediation process is confidential. The parties can engage in mediation in a frank and open discussion, and they don't have the worry that anything they say during mediation might prejudice their case at adjudication. I think that's another way in which mediation is facilitated.

In 2015 we were able to fully mediate 63% of our appeals. I think that demonstrates that order-making power not only can operate in conjunction with a mediation style but in fact enhances it.

The fourth benefit we've experienced is the ability to deal with what we would term “administrative” or “procedural” appeals. Again, I note that Commissioner Legault last week suggested that up to 40% of the caseload she carries are cases that are administrative in nature, preliminary procedural issues that don't get to whether or not an individual has a right to information.

Our stats show that we [Technical difficulty—Editor] less than 10% of our caseload on administrative appeals. Last year it was around 8%. Generally, these are cases where an institution, having a duty to provide a response within 30 days, has not done so, and the requester has come to us to say that they're not getting any action out of the institution. We're able to deal with those directly, because the parties know that we can and will issue an order to require a decision out of an institution. We go to the parties. We go to the institution that hasn't provided a response. We try to renegotiate a deadline for a response. If we don't get that, we will issue an order requiring them to provide a response. We do have cases where months go by and an institution has not complied with their duty to give a response to a requester.

Again, looking at last year's stats, we did not have to issue an order in a deemed refusal situation. We were able to negotiate all of those, and we were able to do that in an average of 40 days. I think it's a very quick and efficient manner of getting responses out of institutions.

Finally, the last benefit I want to point out, and I mentioned this already, is some finality that's brought to the access to information process. There is no right of appeal to the courts. There's only that very rarely exercised ability to seek judicial review. Requesters are not dependent on the courts to exercise their access to information rights. I really believe that making the average requester, the average citizen, go to the courts to exercise their rights is, in many cases, really access denied, and it is not the type of remedy that is suitable for an open and transparent government.

I will wrap up my comments with that. I'm happy to take questions. I note that we understand that having order-making power presents an enormous duty on us to exercise it judiciously—not capriciously and not arbitrarily. We take that duty very seriously. I believe that it really is a fundamental element of a sound access to information regime.

Thank you very much.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Mr. Beamish.

Now we will move to our last presentation this morning before we get to our questions. I'll go to Ms. Clayton, who is the commissioner for Alberta.

Ms. Clayton, if you could introduce your guests, you have 10 minutes, please.

[Jill Clayton, Commissioner, Office of the Information and Privacy Commissioner of Alberta]

Thank you very much, Mr. Chair.

I appreciate the invitation to be here to talk to you a bit about the work of my office. I'm joined by Kim Kreutzer Work, who is the director of knowledge management in my office, and Sharon Ashmore who is general counsel and director of legal services.

As the information and privacy commissioner of Alberta, I am an independent officer of the legislature responsible to provide oversight for free access to information and protection of privacy laws. The first is the Freedom of Information and Protection of Privacy Act, which applies in our public sector, the second is the Health Information Act, which applies in our health sector, and the third is the Personal Information Protection Act, or PIPA, which applies to provincially regulated private sector organizations.

I have broad powers under all three of these statutes, including the power to conduct investigations both in response to complaints and on my own motion, and also to review responses to requests for access to information. I also provide general advice and recommendations, inform the public about the administration of the acts, comment on access and privacy implications of proposed legislative schemes or programs, review privacy impact assessments, and as a quasi-judicial administrative tribunal I have the power to hold inquiries and issue binding orders.

For the most part I will focus my comments today on our public sector legislation, the Freedom of Information and Protection of Privacy Act, otherwise known as the FOIP Act. In Alberta the FOIP Act is both access to information legislation and protection of privacy legislation. It applies to public bodies, which includes provincial government departments, boards and agencies, and schools and chartered schools, as well as local government bodies, municipalities, police services, housing management bodies, universities, and those types of institutions. At its core the FOIP Act provides applicants with a right to access any information in the custody or control of the public body subject only to specific and limited exceptions set out in the legislation.

In the over 20 years since the act came into force the FOIP Act has been reviewed three times by all-party special committees of the legislative assembly. Two of those reviews, the first in 1998-99 and the second in 2001-02, resulted in amendments to the legislation. There was a third review in 2010 that resulted in a number of recommendations to amend the legislation that did not go forward. In 2013 the Government of Alberta announced its own review of the legislation. There was a consultation process, but that has not led to any report or recommendations for amendment.

I made two submissions to the government's 2013 review, both of which are available on my website. One of those submissions was focused primarily on technical amendments to the legislation. The other provided ideas, suggestions, and recommendations for modernizing and strengthening the FOIP Act.

Some of the key recommendations from that second submission included reviewing the scope of the act to ensure that publicly funded entities that should be subject to the legislation are, and confirming the need for existing exclusions. Another recommendation was to review the exceptions to access set out in the FOIP Act to ensure they are appropriate, require public bodies to identify categories of records that should be made publicly available without requiring formal access requests, and ensure there is an appropriate statutory and policy framework in place for records and information management practices that support transparency, accountability, and compliance with the FOIP Act. This includes requiring that public bodies create such records as are reasonably necessary to document decisions, actions, advice, recommendations, and deliberations.

Both of the recommendations I've just referred to are similar to or consistent with those found in the Information Commissioner of Canada's report “Striking the Right Balance for Transparency“, which sets out recommendations for modernizing the federal Access to Information Act.

In addition the Information Commissioner's report also recommends strengthening oversight of the right of access by adopting an order-making model similar to what is already in place in Alberta and in other provincial jurisdictions. I understand our experience in Alberta with order-making powers is of particular interest to this committee, and I will use my remaining time to describe how that works in our office.

Similar to the federal Access to Information Act, our FOIP Act provides a right of access to records in the custody or control of a public body subject to limited and specific exceptions. If an applicant is not satisfied with the response that he or she receives from a public body, the applicant may ask me to review any decision after a failure to act by the public body. For example, a government department may disclose some records to an applicant but withhold others, citing an exception to access. Perhaps the disclosure would be an unreasonable invasion of a third party's personal privacy or could reasonably be expected to harm a law enforcement matter or the economic interests of a public body.

If the applicant asks, I can review the public body's claim that these exceptions to access apply. We call this a request for review in my office. When an applicant requests a review of a public body's decision to deny access, typically I authorize someone on my staff to investigate and attempt to mediate or settle the matter. This is our informal process, which results in non-binding recommendations and resolves approximately 80 to 85% of cases in our office.

If the matter is not resolved through this informal process, I can authorize an inquiry process, which decides all matters of fact and law. Inquiries are a quasi-judicial administrative tribunal process where the burden of proof generally lies with the public body to prove that the applicant has no right of access to the record or part of the record.

On completing an inquiry I, or the adjudicator I have delegated to hear the inquiry, will issue an order. Examples of orders include requiring a public body to give an applicant access to all or part of the record, confirming a public body's decision to deny access, confirming or reducing a fee for access, or requiring that a duty imposed by the legislation be performed.

A commissioner's order made under the FOIP Act is final and may be filed with the clerk of the Court of Queen's Bench. After filing, the order is enforceable as a judgment or order of that court. Since the FOIP Act came into force in 1995, we have issued more than 675 orders under that legislation and we have had 100% compliance with those orders. All orders are made public on my office's website and through publicly available legal databases. They not only provide finality in resolving a particular matter but also set precedents that can be helpful to other public bodies and lead to improved information management practices.

Orders issued by my office and other jurisdictions as well constitute a body of jurisprudence that educates and guides public bodies on interpreting and applying the law. Publicly issued orders may also help to reduce duplication of effort in mediating, investigating, or adjudicating similar matters over and over again.

There are also significant benefits to individuals in the finality that goes along with a binding order that resolves a matter. My office's processes do not require that the parties have legal presentation, for example, and there is no cost. This is not to say that matters heard in an inquiry never make their way to court. Although orders are final, they are subject to judicial review, and since the FOIP Act came into force we've seen approximately 30 judicial review applications. In about half of those cases, the order was upheld as issued.

As I've just outlined, it is my view there are significant benefits to the order-making model in Alberta and our experience is that it provides clarity, enhances consistency of decision-making, and can be more timely, less expensive, and less adversarial than the courts while still providing finality for the parties involved.

Overall, in my view I think order-making power has been to the benefit of access rights in Alberta. I would be pleased to answer any questions that you may have.

Thank you.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Ms. Clayton.

Thank you very much to our witnesses today. Those were very insightful introductory remarks and I know we'll have many good questions for you.

I'll just remind everyone once again that in the course of a dialogue please wait for that delay or expect that the delay is happening. If you have a cellphone on you or near any of the equipment used in this, it may interfere with it, so I would ask you just to move your phones away from the equipment or turn them off.

We'll begin our first round of questions for seven minutes. We go to Mr. Massé from the Liberal Party.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you, Mr. Chair.

Ms. Poitras and Mr. Desmeules, thank you for your presentation. It was great.

You said you were in the midst of a review to modernize Quebec's access to information legislation.

I'd like you to comment on the challenges you face and the solutions that would be available in modernizing the act.

[Diane Poitras]

A number of considerations come into play.

The commission would like more organizations brought under the access to documents act. Currently, certain organizations that are entirely, or mostly, publicly funded, as well as those carrying out functions comparable to public functions, are not subject to the act.

The biggest challenge when it comes to modernizing the act has to do with the wording of the restrictions around access to documents. The act is more than 30 years old, and the restrictions are worded in very general terms that are quite open to interpretation. That can result in more remedies and more refusals by institutions, who have more discretion in denying access to information. I'll give you a specific example.

Under Quebec's legislation, a public body can refuse to disclose an opinion or recommendation that is less than 10 years old. The public body not wanting to disclose the opinion or recommendation is not under any obligation to show that the disclosure could have a negative impact. “Opinion” and “recommendation” are very broad concepts, and it was necessary for the commission to define how they should be interpreted.

There is something else I can tell you about that. In the provinces of my two counterparts who are joining us by videoconference, the acts contain a provision authorizing the refusal to disclose opinions and recommendations. But they also stipulate that the restriction cannot be applied to certain types of documents in specific situations. We don't have that in Quebec. As I see it, that's one of our biggest issues when it comes to access to information.

As far as the privacy component is concerned, without going into too much detail, I will tell you that the legislation was drafted at a time when most documents and records were on paper. There isn't enough flexibility in the act to adequately address issues arising from the use of new technologies, in terms of safeguarding privacy and protecting personal information.

Another principle that didn't exist in 1982 but is becoming more common nowadays is proactive disclosure, versus disclosure in response to an access request.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you.

I'm going to stay on the same topic.

You said that the act applied to the legislative branch and contained safeguards to protect certain interests. I'd like a bit more information on the disclosure of documents involving the legislative branch. How does the act apply in that regard? What are the safeguards you mentioned?

[Diane Poitras]

Quebec's access to information legislation applies to the government, the National Assembly, the lieutenant-governor, the Conseil exécutif—or executive council—and the Conseil du trésor—or treasury board. They can, however, invoke restrictions to protect certain kinds of information, for instance, involving parliamentary privilege. I know that's something that was discussed with Ms. Legault.

The act contains a provision protecting certain decisions made by the executive council or treasury board. It lists the documents that are protected, such as certain communications between ministers or between a minister and the executive council or treasury board, and the records of the deliberations of the executive council or a cabinet committee. If you'd like more detail on the information covered by the restrictions, you can consult sections 30 and 33 of the access to documents act.

As regards the office of a minister, section 34 of the act protects information for the exclusive use of a minister in the exercise of their political role, as opposed to their role as the head of a department. That's how I would summarize the safeguards in that respect and the way they are interpreted.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

I have one last question for you.

You mentioned a more proactive approach to disclosure, at the department level, in particular. I'd like you to elaborate on how you see that working.

[Diane Poitras]

The act was amended in 2006 to build in that obligation for government departments and agencies. Since 2009, regulations have set out the documents that must be made available on the Internet. The government recently amended the regulations governing distribution, increasing the number of documents subject to proactive disclosure. Further to that amendment, every public body must adopt a distribution plan.

It's important to keep in mind that the documents that interest a particular government department are not the same as those that interest a crown corporation like Hydro-Québec. It's hard to find a measure that suits all of them. The government's approach was to have a customized distribution plan for each public body.

Right now, only government departments and agencies are under that obligation. We would like to see the municipal and school sector, as well as the health services and social services network, subject to the proactive disclosure obligation. And that's what we recommended to the government.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you.

[The Chair, Conservative, Blaine Calkins]

That takes up your time, Mr. Massé.

Next is Mr. Jeneroux from the Conservative Party, please.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Perfect.

Thank you, everybody. Thank you for coming this morning, particularly Alberta. It's nice to see you all again.

My line of questioning is similar Mr. Massé's with regard to getting to the details about cabinet and cabinet minister and staff confidentiality. This question will come across as rather simple, but I know the answer definitely will not. In your expert opinion, when and where do you feel the line is for cabinet confidentiality and for what has to be made public?

If we could hear from all three provinces, that would be great. Thank you.

[The Chair, Conservative, Blaine Calkins]

We'll go in the same order as we did for the presentations. We'll start with Quebec, move to Ontario, and then Alberta, please.

[Diane Poitras]

With the safeguards I mentioned already set out in the act, Quebec's experience has been rather positive. Since we have certain decisions pending before the courts, you'll appreciate that I can't say much more than that on the different interpretations of those provisions.

Nevertheless, generally speaking, I would say that the current provisions strike a balance between the need for those organizations to be transparent and the need to ensure their decisions and deliberations are protected, under what is commonly known as parliamentary privilege.

[The Chair, Conservative, Blaine Calkins]

Mr. Beamish.

[Brian Beamish]

In Ontario we do have an exemption for cabinet documents. It's not one we deal with a lot, but I agree with Diane, I think for the most part it strikes the right balance. I think it's reasonable that cabinet can have deliberations that have confidentiality attached.

Our cabinet exemption has a 20-year time limit. I think it's appropriate that there is a time limit put in place for cabinet documents. I suppose there could be a discussion about whether 20 years is the proper time limit, and whether it should be shorter or longer, but I think it's correct that at a certain point cabinet documents should be made public.

I think the question that we [Technical difficulty--Editor] more, and it's a different exemption, is advice and recommendation to government. That's a separate exemption and perhaps a separate discussion.

[The Chair, Conservative, Blaine Calkins]

We'll now move to Ms. Clayton, please.

[Jill Clayton]

In Alberta, cabinet and Treasury Board confidences are a “must refuse to disclose”, so it's a mandatory refusal to disclose that information to an applicant. But there are some qualifications on that. This includes advice, recommendations, policy considerations, and that sort of thing. It does not apply to information in a record that has been in existence for 15 years or more, and information in a record that is about presenting background facts to the executive council or committees. The exception doesn't apply if the decision has been made public or has been implemented or if five years or more have passed since the decision was made or considered.

It is a mandatory exception. There are some qualifications on it. For the most part I think that does achieve the right balance.

One thing that I think is very important is that in my office we have the ability to review those records to ensure that the exception to access has been properly claimed. I believe there is a handful of orders that we've issued where we have reviewed the records and explained the purpose of that exception and why it matters—because exceptions to access are important—but where we've been able to issue binding orders to confirm, for example, the decision to withhold the records because they're cabinet confidences.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Thank you very much.

Shifting slightly to delays and extensions for delays, in Ms. Legault's report she speaks a lot about experiencing a large number of complaints and delays.

From your perspective, in the provinces, are you experiencing higher delays, and do you have any comments on her request for the extension piece?

[The Chair, Conservative, Blaine Calkins]

Anyone who would like to start, go ahead.

Mr. Beamish.

[Brian Beamish]

I did mention in my comments that delay is not as significant a problem in our jurisdiction as it is federally. I put that down to our ability to bring some finality and conclusion to a refusal to issue a decision or an overly broad time extension by issuing an order.

What would generally happen in Ontario is that if a decision has not been made by a ministry, for example, within 30 days, and an appeal comes to us, we will go directly to the ministry and basically say to them, “Either tell us when you will make a decision, within a reasonable time, or we will order you to make a decision within that time frame.”

I don't believe it's as significant an issue with us as it may be at the federal level.