Evidence of meeting #58 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 office.
A recording is available from Parliament.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
My last question is this. If no changes are made by 2019 and the delay continues, in your words how much of a failure will that be?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
I think it will be a tremendous failure if there are no changes to this legislation. I'm at the point where I think it's completely unacceptable for a modern democracy.
Conservative
Conservative
Ben Lobb Conservative Huron—Bruce, ON
Thanks very much.
I find your comments about the Internet interesting. I was on the veterans affairs committee many years ago, at about the same time you were just coming into your office, and I used to joke that Veterans Affairs was just getting rid of their typewriters back then. I think they have the Internet in their office now too.
Forgive me if I'm repeating here, or if you have to repeat, but for this year's budget, did you put forward another $3-million request to be built into your overall budget this year?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
We did make a request to be in the budget, but we are not in the budget. We're now pursuing the same avenue that we did last year, and that's the management reserve.
We're asking for less money this year. Last year we had to equip everyone with information technology. We had to bring the lines for the computers to a different floor. All of that is done now, so there's less money required. Plus, we're not going to get the money now—if we get the money—so there's a reduction for that.
Conservative
Ben Lobb Conservative Huron—Bruce, ON
Yes. You know, you never can be amazed in politics, because that's just the way it is, but....
I'll grant you that $2 million to $3 million is a lot of money for a regular person, but when you put it up against the entirety of the budget, it's a very small number. Based on the results you had last year, it's amazing that it didn't get in this year. Really, to do it the way that you're going to have to do it is not good practice anyway, but you have to do what you have to do, right?
There's one thing I'm wondering about in terms of some your recommendations—forgive me if I have this wrong—and that's when a document is deemed to be “cabinet confidential”. Can you report to us on how many times last year it came back as cabinet confidential?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
I have about 85 complaints that are cabinet confidences. I don't have the number of requests for cabinet confidences that are applied. There is a wrinkle there, though. Requesters often will make a request and say, “Do not include cabinet confidences”, so there is a self-discipline and a self-censorship occurring in terms of the requests. I reported on that a couple of years ago in my annual report. People are basically excluding that from their requests.
What happens is that we can't see the records. Even without seeing the records, we find that in about 10% to 15% of the cases the cabinet confidence exclusion was misapplied. That's even without seeing the records. That's always been a concern, not just for me but for all previous commissioners.
Conservative
Ben Lobb Conservative Huron—Bruce, ON
This is not the committee that I normally sit on, so you'll have to forgive me if I'm not completely up to speed on all of this. If it comes back “cabinet confidentiality”, you have no ability to compel the department to let you look at the documents that they deem to be confidential to determine in your own professional opinion whether it should have been deemed that way or not. It's up to the pleasure of the department. Is that correct?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
That's correct. We don't see the records. We see a description or schedule. Based on that, sometimes we push back, and sometimes additional disclosure is made.
Conservative
Ben Lobb Conservative Huron—Bruce, ON
Do you go to court, then? Is that the next step, that you take the department to court?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
Cabinet confidences are excluded from the application of the act. So we could go—there have been cases in the past done under the Canada Evidence Act—but under our legislation it's very difficult to go to Federal Court challenging something that we haven't seen.
Conservative
Ben Lobb Conservative Huron—Bruce, ON
Yes, I can see that. That's obviously in your recommendations overall, to open that up.
I'll just give you my own edification here as well. We put in a couple of requests, not too many, to the Minister of Environment in August. We received the information in February. The information we received was disgraceful, as far as I'm concerned, for the honest questions that we asked. Again, it's a lot of excuses, but if it could be more open, for me, or if you have the ability to kick the tires and see, it would be much more reasonable.
Now, in regard to that one item of cabinet confidentiality, if this actually happened, how would you, or I guess your successor, peg that in terms of a budgetary item as far as extra staffing is concerned? Would that be four or five people, for instance, doing that full time?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
I don't think that would require additional people. What is required is for us to see the records so we can determine whether cabinet confidence has been properly applied. Unless cabinet confidence exclusion becomes an exemption under the act and that generates more requests of documents where that is applied, then I can't really foresee it. In the last 30-some years, it has been the situation. I don't know if that would generate more requests or more complaints.
Conservative
The Chair Conservative Blaine Calkins
Thank you.
We have to move on now. It's time for Mr. Ehsassi to have his five minutes.
Liberal
Ali Ehsassi Liberal Willowdale, ON
Thank you.
I'd like to join my colleagues in thanking you for your leadership over the course of the past seven years.
It was very interesting; it was palpable how passionate you are about this issue, how it's high time we become a leader in this area, and that it's imperative we make the necessary changes.
Out of curiosity, given that this is an estimates meeting, have you ever had an opportunity to compare the resources that we set aside for your office to similar mechanisms or offices that exist in other OECD countries? From that perspective, how do you view it?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
We haven't done that comparison. As I said, it's difficult to compare. We would even almost have to do a joint comparison with the Privacy Commissioner's office, because in other countries these institutions are mostly joined.
The other big consideration is that it's important to understand that the field of access to information is different from the field of privacy around the world. If you look at OECD countries, privacy commissioners' offices are at least quite well funded. If you go anywhere else around the world, access to information offices are scrambling for resources. Not surprisingly, it's quite an underfunded pillar of democracy around the world because it is usually a thorn in the government's side. It's a very different function in many respects, and so in many respects most unpopular with governments most of the time.
I haven't done the comparative. As I said, the closest I could see is the operations of the Ontario commissioner in volume, amount of work, and so on. They do have order making powers so they don't have a backlog in looking at the volume. Their financing is about $50 million. That's the best comparison I could find. I couldn't even compare our office to the U.K. commissioner's office because they have privacy and access, order making power, and most of those institutions have education and audit mandates, which we don't have. It's difficult to compare.
Liberal
Ali Ehsassi Liberal Willowdale, ON
Thank you for that.
The second issue you raised was, in your opinion, the need to update access to information and a regulatory tool kit, if you will. What are the most significant or imperative changes that you would like to see?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
When I appeared before this committee, we did have a list of quick fixes, so to speak, for the first phase. That goes through quite significant amendments, a review of some of the key exemptions: advice and recommendations, the order making model, and public interest override. Those recommendations are before the committee.
In all honesty, I know one always says that you have to pick your battles, you have to pick four, five, 10, 32, or 85. The bottom line is that it's difficult to pick at this legislation, just do one piece and not do it as a whole, because one piece may impact another and so on.
My recommendation is something that I think is completely within the realm of possible actions by the government, and that is to do a comprehensive review of the act. I think it's possible; the complexities can be resolved, the policy work has been substantially done, and it is very much the time to do this.
Liberal
Ali Ehsassi Liberal Willowdale, ON
Given your interest in this, what would you say your model jurisdiction is in terms of legislation?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
It has to be Canada. It is the model that can be the best model.
In Canada, I would say that if you're looking at an order making model, we definitely should look at the British Columbia model. The Ontario model is instructive, but the British Columbia model has been amended more regularly over the years, and in my view it is a more progressive piece of legislation. I've always said that what we really need to do is to take our Canadian legislation and get inspired by the best international models, which is what I did in my modernization report, because you can have a better model in one jurisdiction for a particular area and a better model in another jurisdiction for another area. That's why we built it that way.
The models are there. There are over 100 pieces of legislation around the world right now, and the most progressive norms are contained in legislation that are post year 2000. That's where you will find the most progressive norms, and understandably so, because those pieces of legislation are basically inspired and modelled on not only the successes but also the faults of the other legislation. They've basically built better models since then. That's what we have to look at.
Conservative
The Chair Conservative Blaine Calkins
Thank you very much.
We have about 10 minutes left in the scheduled meeting time and we have two people left in the five-minute round, so if we do it right, we'll be finishing just on time.
Mr. Kelly, go ahead, please.
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
Has the Treasury Board consulted you regarding the budgetary implications of the eventual implementation of reform?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
No.
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
That's despite mentioning in budget 2016 the anticipation of moving to an order making model.