Information & Ethics Committee on April 12th, 2016

[The Chair, Conservative, Blaine Calkins]

Good morning, everyone.

Welcome back from a fairly lengthy constituency break. I hope my colleagues at the table all found some time to connect with their constituents, and maybe even found some time to relax. We're in for the long haul now until the end of June. We have nine weeks of Parliament, with only a couple of weeks' break in-between. We have a lot of work ahead of us.

I want to thank Mr. Lightbound, who I think was the chair in my absence, when I was gone the week before.

We have with us Mr. Drapeau, who is no stranger to coming before Parliament. We welcome you this morning, sir, from the University of Ottawa. We also have the ambassador from Sweden, Mr. Per Ola Sjogren. We welcome you, sir. And we have Toby Mendel by video conference from the Centre for Law and Democracy.

Gentlemen, we appreciate your being here with us this morning. We are going to start with your opening remarks.

We are studying the access to information legislation. We'll hear you for up to 10 minutes each, with your opening remarks, and then we'll proceed to our questions. I'll go in the order you appear on the list.

We'll start with Mr. Drapeau, please.

[Col, Retired) Michel Drapeau (Professor, University of Ottawa, Faculty of Common Law, As an Individual]

Mr. Chair, thank you for this introduction. Thank you also, members of this committee, for giving me the honour to appear before you this morning.

Let me begin by saying that I have been interested in the administration of the Access to Information Act since 1992, as a requester for my clients, as someone who has written about the act, and as a professor who teaches access to information law.

Over the past two decades I have watched the access to information regime slip more and more into irrelevance. I hold the strong belief that this state of affairs is not because the access law is so much defective or outdated in recording radical changes. In my opinion, the slip into irrelevance is due instead to two interconnecting factors.

First is the interplay between a systemic lack of motivation on the part of federal institutions to observe both the spirit and the letter of the access law, and the absence of oversight on the part of anyone holding to account a recalcitrant or delinquent department. Consequently, there is no penalty or reprimand for inuring Canadians from having their quasi-constitutional right of access violated, with the result that flaunting the access law is now an accepted practice in many parts of the federal bureaucracy. Year in, year out, thousands of users of the access system see their requests for information treated with more or less total disregard for the rights to have their access requests responded to fully and within the statutory delays.

Second, only a small number of disenfranchised users of the access system actually file a complaint, as they are entitled to do under the access law. However, more often than not, those who do file a complaint must wait, if not a year then two or more, for obtaining any results. Obviously, they soon learn that the longer they wait, the more pointless their complaints become. Also, they will likely be less inclined in the future to rely on the right to complain to obtain disclosure, and it becomes a process of a vicious circle, disempowering the access requesters.

As an aside, during the last fiscal year there were 78,000 access requests submitted to various federal institutions. Of those, 1,600 complaints were made to the Information Commissioner. This means that a meagre 2% of the original requests gave rise to a complaint to the Information Commissioner.

As noted in my brief, I have concerns with the ongoing debate about reforming the access legislation. First, I disagree with giving the commissioner order power to deal with some of the complaints. Second, I take issue with the unproven assumption that giving order power to the commissioner might ameliorate the access regime.

Let me elaborate.

First of all, I truly believe that giving the commissioner order-making powers would repudiate the doctrine and fundamental principles of the access regime. This would dramatically alter the role of the commissioner, making her a judicial officer who would not have the slightest influence on the outcome for the vast majority of access requesters.

Secondly, I hold the strong belief that the fathers of the access regime got it right in the 1977 white paper by adopting the parliamentary option. Under this option, the commissioner has a right of access to Parliament and he's held directly accountable to this committee for its performance.

Under such a scenario, Parliament remains a dominant player in the management and control of the access regime. However, as stated earlier, giving the commissioner order power will necessarily change that relationship. The commissioner will then become a judicial officer, and as such will be required to act judicially towards Parliament, federal institutions, and the access users. This will also require the commissioner to further augment their already large staff complement.

Hence, I am anything but certain that the grant of order power to the commissioner will impact positively on the current malaise affecting the access regime. I'm suggesting instead that the basic function of the commissioner not be substantially changed. What I am considering and recommending is the conduct of a wall-to-wall, systematic review of the construction, the configuration, and the staffing at that office by the Auditor General to ensure the existence of the most economical and effective organizational structure possible. In my opinion, that is not presently the case.

In the same vein, I am also recommending a common administrative service, something similar to that we now have in the courts administration service, to be re-established between the Office of the Information Commissioner and the Office of the Privacy Commissioner. I also recommend that the management, administration, and legal positions found to be redundant by the Auditor General be reassigned to augment the current complement of investigators, if for no other reason than to reduce the very large backlog of complaints. At the moment, it's two years.

In my brief, I set out 12 reform proposals. For instance, I proposed that the access to information coordinators, who are spread out in some 200 federal institutions, now be appointed by Governor in Council. These coordinators are, after all, on the front lines, as they are the first, and often only, actors within the access regime. They also have the heavy burden of responding to access requesters, while bearing in mind the access directives and decisions made by officials higher up the chain in each department.

If they were appointed by Governor in Council, these coordinators in the various departments would also have the requisite authority and independence to uphold requesters' access rights.

Before closing, one of the recommendations contained in my brief is that the House of Commons and the Senate should also be brought under the ambit of the access legislation. As you probably know, this is currently the case in the U.K., which provides the residents of the British Isles with a meaningful and welcome right of access to some of the records under the control of parliamentarians. Canadians should expect no less.

In conclusion, Canada deserves an open, honest, and accountable government. This can be achieved at least in part by having a working access to information regime. Yet at present, the access to information system is in a state of crisis. The current focus of giving the commissioner the power to order the release of records should not be seen as a panacea capable of redressing the access law, which has been rendered more or less nugatory. The Province of Quebec has learned that particular lesson. Quebec appears to be balking at continuing with this use of order power mechanism as the modus operandi for their information commissioner.

However, even if such order power were to be granted, one should keep in mind that this would only address a very small proportion of the tip of the iceberg. Respectfully, therefore, I urge this committee to focus instead on the 90% of the other requesters, or the rest of the iceberg, which is currently being managed exclusively by the ATIP coordinator within each one of the institutions. I am of the view that the commissioner plays an important role in the access to information regime by receiving, investigating, and reporting a complaint by users of access and keeping Parliament abreast. The Access to Information Act provides the commissioner with quite an arsenal of extraordinary powers to investigate complaints, and these need to be used to the fullest. They are currently not. The commissioner also enjoys a potent right of access to Parliament to alert the Canadian democracy when government and the civil institutions fail to live up to their obligations. This, gentlemen, should continue.

That concludes my presentation.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Mr. Drapeau. That was very insightful, with some new ideas that we haven't heard before. I'm sure you're going to get a lot of questions, and if you don't, then I'll ask you some when everybody else is done.

Your Excellency, Per Ola Sjogren, Ambassador of the Kingdom of Sweden, for 10 minutes please.

[H.E. Per Ola Sjogren, Ambassador of The Kingdom of Sweden to Canada, Embassy of Sweden]

Thank you, Mr. Chairman.

Thank you to the committee members for inviting me to give an overview of the Swedish legislation when it comes to freedom of expression and access to information.

Allow me first to say that one of the core values in Sweden is openness. One of the cornerstones in an open society is freedom of opinion, speech, and also respect for the principles of free access to public documents, so the issue that is before the committee is one of concern to us.

Allow me to say a few introductory words about the Swedish constitution. The constitution regulates the manner in which parliament and the government are appointed and the way in which these organs of the state shall work. Freedom of opinion and expression, as well as other rights and freedoms, enjoy special protection under the constitution. Out of the four basic laws which form the Swedish constitution, three of those laws regulates the rights and freedom of opinion and expression, so it has a firm basis in our constitution.

If I may refer to the documents that I have forwarded to committee members, the first document is a brief overview of the three basic laws that refer to the freedom of speech and expression and opinion. The first is the instruments of government and in chapter two it refers to the protection of personal freedom of expression "whether orally, pictorially, in writing, or in any other way".

The second basic law is the Freedom of the Press Act, which protects the freedom of printed press as well as the principle of free access to public records, the case before the committee today, and the right to communicate information to the press anonymously.

The third basic law is the Fundamental Law on Freedom of Expression, which extends the protection which is an extension for the Freedom of the Press Act for printed media, also to other media, including television, radio, and websites on the internet. It's the most recent Swedish basic law.

The fourth law, which is not a basic law but it is of relevance to this issue, is the Public Access to Information and Secrecy Act, which was adopted by the parliament in 2009. It contains provisions that supplement the constitution, especially the Freedom of the Press Act, on the right to obtain official documents. Openness is the basic rule and secrecy has to be clearly defined, which is laid out in that act.

The Freedom of the Press Act was introduced in Sweden in 1776 and became the fundamental law in its entirety already then 250 years ago. Sweden then became the first country in the world to permit freedom of the press.

Under both the Freedom of the Press Act and the Fundamental Law and Freedom of Expression, constitution protection implies that the public administration is prohibited from intervening against any breaches of the freedom of expression other than in the cases and in the manner prescribed under these two fundamental laws. A ban on censorship is also a central feature of the Law of Freedom of Expression and was already laid down in the 1766 version.

It's also important to recognize that the Freedom of the Press Act is directed against administrative and other public bodies.

The Freedom of the Press Act and fundamental law of freedom of expression provide protection for providers of news and information in two different rulings dealing with the public nature of official documents and the protection of sources respectively.

The constitution rules on the public nature of official documents are contained in chapter 2, article 1, and it's the third paper that I distributed today. The wording is the following:

Every Swedish citizen shall be entitled to have free access to official documents, in order to encourage the free exchange of opinion and the availability of comprehensive information.

The documents kept by public authorities are official documents per se, regardless of whether they were received or drawn up by the authority and regardless of their content.

An official document may thus be public or confidential. Chapter 3 in the Freedom of the Press Act also contains other definitions and eliminations. For example, electronic data registers and other mechanical and electronic records are treated as documents.

In the case of documents drawn up by a public authority, the general rule is that they become public when they receive a final form. Drafts and proposals also become public documents if they are filed and registered after a matter has been settled.

An official document is public in principle. It must be kept available, normally in the original, to anyone who wishes to pursue it, and the private subject is entitled to receive a transcript or a copy of the document, and may also reproduce or copy it using equipment of his or her own.

Exceptions from the principle of the public nature of official documents, that is, cases in which an official document must remain secret, need to be provided for in a special law, by which is meant the Public Access to Information and Secrecy Act, which I just referred to, and in exceptional cases, other laws making reference to this law.

In the next paper distributed, I refer to the Freedom of the Press Act, chapter 2(2), which lists the interests governing secrecy. There may be no secrecy other than in accordance with this principle and in subsequent and subordinate laws.

I will not read out these seven principles, but, for example, for my ministry, the first principle, the relation with another state or international organization, is naturally the most frequently referred ground to consider a document to be secret.

If a public authority other than the Parliament in Sweden or the government refuse an application to see a public document, an appeal may be lodged with the administrative court in the first instance. If the appeal is rejected by the appellate court, the appellant can be pursue the matter further to the Supreme Administrative Court. The appeal is regulated in chapter 2(15). An appeal against the minister is lodged with the government.

All questions concerning access to official documents must be dealt with expeditiously. The more exact wording in the Freedom of the Press Act, 2(13), the last paragraph, is that application for transcripts or copies of official documents shall be dealt with promptly. In practice, that means immediately. When we receive a request for handing out the document, we have to act immediately on that request.

I will briefly mention two other principles that are relevant to the principle of free access to public documents.

It's the freedom of sources from legal responsibility, which is laid down in opening provisions of both the Freedom of the Press Act and the Fundamental Law of Freedom of Expression. Protection from legal responsibility applies not only in relation to legal proceedings. On account of an item alleged to be in breach of the law, a source cannot be held legally responsible under special procedures in the event his or her communication of information constitutes an offence per se. In practical terms, the most important case is one in which a civil servant or local government official passes on to a competent recipient, for the purpose of publication, information that is covered by the Official Secrets Act. The main rule is that he or she cannot be convicted for being in breach of this obligation to maintain secrecy.

The second principle, which is also relevant to the issue before the committee, is the right to remain anonymous, which is covered in chapter 3 of the Freedom of the Press Act. It is a punishable offence for anyone engaged in the production of printed matter, or an item protected under the constitution, to disclose the names of sources or authors who wish to be anonymous. The obligation to maintain secrecy is waived only in very special cases, which is mentioned in the Freedom of the Press Act, 3(3).

This is what I wanted to say as an introduction when it comes to the general legislation and how the freedom of access to information of public documents is regulated in the constitution and its subsequent laws. I will be happy to participate in the panel and to do my best to answer questions. I would also say that if the committee wants to bring a constitutional expert from Sweden before the committee, we are very positive to work toward that end. If the committee would also like to visit Stockholm to take a further step in an in-depth study of Swedish rules on these issues, you are most welcome.

Thank you.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, your excellency. Both of those options seem quite appealing. We want to thank you for that. Congratulations to your country, and through you, I think the 250th anniversary of the access to information laws, or the right to have information, is coming up for both your country and Finland. I believe this is how that's working, and it's quite a commemorative thing. We wish you well in those commemorations.

We're going to move on now to Mr. Mendel, for up to 10 minutes, please, sir.

[Toby Mendel, Executive Director, Centre for Law and Democracy]

Thank you very much.

It's a pleasure to be with you at a distance. I hope Ottawa has recovered from its recent snowfall. In Halifax we're used to snowfalls and slush like that, so we have some sympathy for you.

I'll give you a couple of introductory comments about my organization, the Centre for Law and Democracy, or CLD. We are based in Halifax. We are an international human rights organization. We promote foundational rights for democracy, including what we call the right to information, or access to information in Canadian parlance, because it has been recognized internationally as a human right under international law.

We work globally on this issue. I think it's fair to say that we work with all of the leading intergovernmental organizations that focus on this right—the UN special rapporteur on freedom of expression, other UN bodies, the Council of Europe, the Organization for Security and Co-operation in Europe, and so on and so forth.

The position of CLD, which I don't think differs from the broad position of civil society in Canada, is that the federal access to information system is broken. Although we're a civil society organization, we measure our words fairly carefully. We don't throw around terms like “broken” very easily, but I think at this point that is a well-charted position on the act, supported by numerous studies over a very long period of time. We feel it's an appropriate term to use.

I agree with most of the criticisms that Mr. Drapeau put forward, but I have to differ from his position specifically in respect of the act. My organization has worked with another organization, Access Info Europe, to develop the right to information, or RTI, rating. It is an internationally recognized methodology for assessing the strengths or weaknesses of legal frameworks for the right to information. I would say that this methodology is globally recognized. It is, for example, frequently relied upon by such actors as the World Bank and UNESCO in their work in different countries on access to information frameworks. I was contacted just yesterday, for example, by UNESCO. They are looking into the possibility of applying the RTI rating to a draft access to information law that's being prepared in Palestine. We have frequently worked with the both the World Bank and UNESCO on using the rating for that kind of purpose.

On the rating, Canada, the Canadian federal framework, scores 79 points out of a possible total of 150 points. I think that's quite a dramatic score. The top-scoring country, surprisingly Serbia, scores 135 points, showing that the rating is not an unrealistically stringent set of measurements. It's a set of measurements that many countries go over 100 on.

Perhaps even more significant is that Canada is now in 59th place out of 102 countries whose laws we have rated, and each year Canada falls further and further down the rating as other countries reform their legislation to improve it or as new countries adopt legislation that is stronger than the Canadian legislation. I think the RTI ratings show pretty clearly that there are very serious problems with the Canadian legal framework.

The first point we would like to make is that we very much welcome the quick gains that the Honourable Scott Brison announced on March 31. We had called for all of those changes to the legislation. We feel that all of them are crucially important. At the same time, and I think as the RTI rating clearly demonstrates, that is not nearly enough. We feel that a much more profound reform of the act is absolutely necessary to bring it into line with anywhere near what most Canadians would consider a respectable position for Canada in respect of an international human right like the right to information.

We do not support the idea that a full review of the act should be put off until 2018. We feel that Canadians, across all political stripes and from all different sectors, have been calling for reform of this act for many, many years now. We feel that putting it off for another two years would be an unnecessary and essentially unacceptable delay.

We also note with concern that the quick-gain reforms that the Honourable Scott Brison announced are identical to the commitments in his mandate letter.

We would be concerned that putting the reform off until 2018 would perhaps lead to further delays and further extensions of that, so we would not see this reform happen within the life of this Parliament. We feel that would be very unfortunate.

In January 2013 we prepared a submission as part of the Office of the Information Commissioner's review of the act, and we have four main areas where we have proposed reforms.

The first is the scope or coverage of the act. This is where the proposed quick gains have the greatest impact and therefore the greatest amount of improvement. At the same time we notice that there are several areas where the scope would remain too narrow even after those quick gains. We note the blanket exclusion of the cabinet in the scope of the act; the limited nature of the schedule 1 list of public bodies that is not regularly updated as the nature of those public bodies change; and we also note that the act is restricted to citizens and residents rather than individuals, unlike the Swedish act that we heard about, and many other acts.

The second area where we identified a need for change is in respect of the exceptions in the act. The quick gains do not make any proposals for change there. We note that schedule 2 includes nearly 60 secrecy [Technical difficulty—Editor] for secrecy. We just heard from the Swedish ambassador that in that country they have one law that sets out the principles for exceptions, and that other laws are not allowed to go beyond that. We strongly support that approach. Unfortunately the schedule 2 exceptions go way beyond the principles that are established in the access to information law or are better recognized under international law.

We note as well that several exceptions are overbroad or by nature are illegitimate. Many exceptions do not include a harm test. The disclosure would be expected to be injurious to a specific interest—that kind of language. Under international law the principle is that all exceptions should be conditioned by harm. Only where release of the information would harm a protected interest should the information be withheld.

Finally, we note in terms of exceptions again that the law includes only a very limited public interest override. In 2010 the Supreme Court of Canada substantially extended that public interest test to all non-mandatory exceptions, so that public bodies are now required to consider the public interest for any non-mandatory exception, but all of the mandatory exceptions still fall outside of that and don't have a public interest test.

In terms of procedures, I'm sure that other people who have appeared before you have mentioned these. There are two key problems with the act as it presently stands, and one is the time limits. Mr. Drapeau also referred to those, whereby public bodies are given very broad discretion to extend the time limit in which they respond to access to information requests. The result is that requests are often only processed after very long delays, unlike in any other countries where there are strict and fixed timelines. We have very concrete proposals for improving that system. We feel that's one of the most important things that need to be addressed.

The other issue with respect to procedures that needs to be addressed is the issue of fees. Under the law, fees can be charged. A schedule of fees has been prepared. It is not in line with realistic cost estimates. Even the charge for photocopying is far in excess of what any Canadian would expect to pay for fees at any commercial enterprise.

Those are two areas in respect of procedures.

Finally, coming to the issue of appeals, again I would have to differ with Mr. Drapeau on the question of order-making powers for the Information Commissioner. This is an issue that my organization has studied very carefully. In many other countries and in different Canadian jurisdictions there is, as you know, a mix of practices across jurisdictions. We feel that the overwhelming evidence, from both international jurisdictions and from within Canada, is that an order-making power is a far more important and a far more effective power. We note that order-making powers would be likely to have a strong positive impact not only on the decision-making processes undertaken by the commissioner, but also on the mediation processes.

There is good evidence showing that having the order-making stick, if I can put it that way, in the background when there are mediation procedures, which are the lifeblood of dispute resolution under access to information laws, renders them much more effective. So we strongly support order-making powers for the commissioner. We agree that it's not a panacea under the act. There need to be a lot of changes, and we also agree that there needs to be a groundswell of cultural change with respect to the way the act is applied. But we feel that these important changes need to be made to the act.

I will end by saying that across Canada there has been a bit of paralysis in reform of access to information laws, often with different Canadian jurisdictions looking at other Canadian jurisdictions and saying that their own law is not much different from the other Canadian jurisdictions' and that it's working well enough. We note that Newfoundland has broken the mould in that respect. It has engaged in bold reforms of its law, fundamentally changed its law, shot far ahead of any other Canadian jurisdiction on the RTI rating. We would strongly encourage the federal government to engage in a similar process of reform with respect to the Access to Information Act.

Thank you.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Mr. Mendel.

We are going to have a very good discussion at the table this morning, I think. Those were three excellent presentations, giving us lots to think about.

We're going to proceed to the first round of questions, allowing folks to have seven minutes to have their questions delivered and answered. I would encourage members and respondents to keep their questions and answers concise.

We're going to start with Mr. Lightbound.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

Mr. Drapeau, thank you for your presentation. It was very interesting.

I was particularly intrigued by your last recommendation to the committee, that ATI coordinators within departments and federal institutions should be appointed by the Governor in Council. I was wondering if you could elaborate on the shortcomings of the current system and what benefits it would bring for someone like me, who is new to Ottawa. I'd like to have your take on that.

[Col (Retired) Michel Drapeau]

In a former life I was executive secretary of National Defence headquarters. The coordinator of access to information worked for me, and I worked for the deputy ministers and the Chief of the Defence Staff and related on a daily basis with the chief of staff to the minister. Basically I was responsible for the access to information coordinator's staffing, her performance evaluation, and for giving her direction and receiving advice from her. But fundamentally she was down the totem pole quite a bit, and any of her work was sometimes supervised not only by a bureaucrat but also by someone from the minister's office itself. She has very little authority or independence to do what she knows to be the intent of the requester, the type of information the requester is after. She is an agent of that particular department. In some cases in some of those departments, her capacity to apply the law and to exempt or to exclude information is rather limited. She is being directed as to what to release and what not to release.

My point is that hers is absolutely a key position. Of 78,000 requests, only 1,600 are subject to a complaint. The only person a requester sees, contacts, and gets responses from is the coordinator. If that coordinator is not given the instrument to do her job—the authority to seek access to and release information—the system will never get off the ground. That's exactly the point.

In the Gomery inquiry—and there was another inquiry, but I forget which one—some of these coordinators came to the fore, particularly at the Gomery inquiry, and said how unstrung they were and how disciplined they were if they dared to provide the information a user was entitled to under the act. Hence, my point is to make these individuals, about 160 of them, Governor in Council appointments. They should be reporting to the minister. The minister ultimately should have political authority and political responsibility before Parliament and before this committee for his performance under the act. It's a quasi-constitutional right. One of the ways to do this is to give him the means to do it. Then the minister has no way to escape this, or say that he didn't know, wasn't aware, or didn't know what the ministry or the department did. He is responsible, and the person he charges and delegates to do the job for him is a Governor in Council appointment with the protection, independence, and the authority that comes with it.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

Thank you.

My second question would be regarding your second recommendation, merging the role of Privacy Commissioner and Information Commissioner. Could you just elaborate on the advantages that would bring?

[Col (Retired) Michel Drapeau]

Once upon a time they were together and had a common administrative service, from 1983 until about 2001—if my memory serves me correctly, though I could be off by a year or two. There was one director for corporate services, one director for human resources, and we were looking at a relatively small organization. If you look at the organization now, they've been separated since then, with each having a director of corporate administration. That's expensive, particularly having somebody at the EX-03 level to look at an organization made up of 100 people. I once was a director general of corporate services at the EX-01 level at the Department of National Defence, having a staff of 800 people. Somehow there's a disconnect there. There are also personnel savings. Between the two organizations, you've got 25 lawyers. Should they not be in a central office where there is a call for more services, more advice, more whatever as a common share? It's being done at the moment with the court administration service, with one shared common administrative service for the Federal Court of Appeal, the Tax Court, and the Court Martial Appeal Court.

I'm not looking at reducing the complement of people. I'm looking at somehow making savings, and with any savings out of this, to transform them into investigators. Why? The current backlog is two years. I have complaints that have been with the Information Commissioner for the past six to seven years. The Privacy Commissioner is exactly the same. The sole task of both offices is to investigate complaints. That's it—and then to do the job. I question why each one of those two offices has less than 50% of their staff interested and employed in the investigation of complaints. It should be 75% or 80%. When I complain—and it's only 1,600 of those, of the 78,000—if I don't get an answer to my complaint, then even if the complaint was ruled against, I cannot go to court. I cannot exercise my right to go to court until I receive a report from the commissioner. I begged, on behalf of my clients, give me a report, tell me my complaint is not founded so I could go to court.

We have in fact a system that is not only broken but is stale and doesn't move. One of the ways to do it...unless you look at the organization of that commission and you make certain the only thing they're responsible for is not to propose reform to the act, but to investigate complaints, and to give them the task of doing that and the staff to do it.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

How much time do I have?

[The Chair, Conservative, Blaine Calkins]

You have 35 seconds left.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

I have just one quick question then. You mentioned the fees, and it was part of the Liberal Party's platform to remove all fees besides the $5 fee. Based on your analysis of what's being done elsewhere, would keeping the $5 fee be a hindrance, or is it not just a way to avoid vexatious or frivolous demands?

[Col (Retired) Michel Drapeau]

I don't think so. With 78,000, the public is not abusing it on a daily basis. The fees in fact are cumbersome. The U.S. and the U.K., among others, don't have those. Fees prevent one from submitting a request electronically because you have to send a cheque. Most people today, the young people I speak to, don't have a chequebook, but a debit card or credit cards. So they have to go to a post office, whatever it's called, to pay the fees. It's a pain. If we look at the money that we spend, I think it's something like $35 million a year to administer the program and we only get fragments of that through fees. The Harris government in Ontario—I know you're not proposing that—increased the fees to $25. It has had a diminishing, inhibiting effect on the system. My point is to get rid of the fees so that people in fact do exercise the right. I apply under the U.S. and U.K. system via my Internet in the office and I get a response back within 48 hours, because I don't have to submit the fees and the whole thing is done electronically.

[The Chair, Conservative, Blaine Calkins]

Thank you very much.

We now move to Mr. Kelly, for seven minutes please.

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

Thank you, Mr. Chair, and thank you to all of the witnesses today. We've heard excellent, and some really interesting, insights into this issue.

My first question is for Mr. Drapeau. When the budget came out, some of us perhaps might have been surprised—since we were in the process as a committee of examining these matters—to read on page 208 that “the Government will move forward on our commitments to revitalize access to information, including empowering the Information Commissioner to order government information to be released”.

Could you comment on this? We as a committee are here to examine different models and to hear from witnesses what they think of different options available to us. Yet when I read the budget, I wonder whether this has already been decided. Could you comment on the budget?

[Col (Retired) Michel Drapeau]

If I can be blunt for a moment, and I think it's my task to be so, your predecessors in office, going back a long time, under the Joe Clark government in 1979, listened and had a green paper on access, and they looked at various options including order-giving. On the other end of the scale, they looked at the ombudsman version, which they called the parliamentary option. Why? They wanted to hold a minister responsible to the House, to the public, and to the taxpayer for the effective use of access, and to be accountable before this committee. Under the act, the commissioner is in fact a commissioner, a mediator, an ombudsman.

We use the Swedish model and it has served us well. I have spoken with Mr. Clark and Francis Fox, the then minister of communications in 1980, responsible for the introduction of the original act, for bringing it through the House, and for eventually having it enacted into law in 1983. That's the way our system has been. It's kind of mediation, and the Information Commissioner only investigates complaints reported to this department annually and to this committee as often as is required in order to keep public pressure upon the decision-makers, the decision-makers being the ministers.

This committee has played a huge role throughout the years, a huge role in the creation of access to information back in 1983. I've spoken to each one of the commissioners from the past to the present. To change that would change the mechanism, would change the relationship. The commissioner would no longer come here and report to you. You would no longer play the role that you are, by definition in the act, supposed to play. When she becomes a judicial officer, as is the case in Quebec, she will no longer conduct the investigations that are being done now. It will be a judicial process with each party submitting in writing or verbally. In Quebec you come before the committee after you submit your complaint. You travel to Montreal, you go before the committee, you hire yourself a lawyer, and you make representation; then the commission issues a statement and issues a decision on it. If you're not happy, you go to court. Few people do, because the process is so long. I've represented corporations in the Quebec regime, and they decided to abandon their complaint halfway. Why? Because a year and a half afterward, they still hadn't been called before the committee. Is that what we want?

Have a look at the size of the Office of the Information Commissioner at the moment, the staff and the 14 lawyers they have and everything else. It's going to balloon even more. You will lose control, and you are going to read in The Globe and Mail about the decision being made, but you will have no sense and no control over which way the access to information ought to go.

I have one last comment. The comments being made by your leaders and in the budget are not the creation or the intellectual exercise of this committee, because you were not formed, or of the committee before. This is what many well-interested parties in the civilian society suggest, and the Information Commissioner suggests. I object to that. The Information Commissioner is there, as designed, to apply the act and apply the law as written, not to change it, not even to reform it.

I'm begging you, as elected representatives, on something as fundamental as a quasi-constitutional right. That's what the Supreme Court, the Federal Court of Appeal, and the Federal Court said. It's up to you to decide and to structure the law. You may want to restructure it. I encourage you to do that, but it should come from this committee. It should not come from people outside, let alone bureaucrats whose purpose it is to apply the law.

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

Thank you for those comments and that answer. I hope our committee will in fact have an opportunity to make a report, so that the government will then be able to form a decision, rather than announcing through the budget that we're going to have an order-making model.

I think I've only got a couple of minutes. I was perhaps surprised again, Mr. Drapeau, that in your recommendation or suggestion that the Auditor General examine the efficiency and activities of the commissioner's access to information staff, you do not believe that the resources currently available are being necessarily well utilized. Could you comment on your basis for that suggestion?

[Col (Retired) Michel Drapeau]

In my brief I've given you an outline, which I obtained via an access request, of the staff and its composition. When I come up with 28 investigators and 14 lawyers being in the access to information office, I consider them to be the front end, the people who actually conduct the investigation and render a decision. The rest of the staff, some 52, are administrators such as the director of personnel, director of media relations, director of human resources, and directors general of this and that. In any business, and this is a business, you want to have your front end, your operating end, in military terms your bayonets, to be more.... It's the tail versus the tooth type of ratio.

I find that either there's something I'm not understanding, or it's something that is so complex that you need this number of administrators.

I make the point that my co-author, Maître Racicot, was in fact at the information office from 2001 to 2007. When I asked him how many lawyers were there then, there were four, and the same number of complaints that there are today. Now they have 14.

We can lawyer ourselves up to the point where.... The backlog now is two years or more. I think it should be two months or more. We should measure it in months, if you're going to have the right of access and give it some meaning.

It's faster to go to the Federal Court now and get a hearing on the judicial review—it takes me nine months—than it is to complain to the Information Commissioner. So that system doesn't work.

Hence, I'm asking the Auditor General to look at it and give us some advice.

[The Chair, Conservative, Blaine Calkins]

Thank you very much.

That concludes your time Mr. Kelly.

We now go to the former chair of this committee, Mr. Pierre-Luc Dusseault, for up to seven minutes, please.

Welcome back.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Thank you, Mr. Chair.

I would like to thank the witnesses who have come today to share their views.

Mr. Drapeau, I think we have covered the structure of the Office of the Information Commissioner of Canada. You dealt with that in the second part of your brief.

I would like to return to the application of the act as regards cabinet and other government bodies. I would also like to hear your views on the commissioner's recommendations in this regard.

[Col (Retired) Michel Drapeau]

In the earlier editions of the book I mentioned, I recommended among other things that the Governor General's chancellery, which grants medals and honours, be subject to the act. Court administrative services—not decisions or transcription of notes, but administrative support—should also be subject to the act, as should the Senate and the House of Commons. I am referring to your various expenses and not your parliamentary, legislative, or other activities. This is now the case in Europe and certainly in England. In my opinion, this has increased their authority and enhanced taxpayers' confidence in their legislative representatives. These bodies should be subject to the act. This change could be made at the stroke of a pen and would, in my opinion, benefit everyone.

I would not be opposed to court administrative services and the chancellery being subject to the act, on the contrary. Let me give you an example.

A number of years ago, a businessman hired me as a lawyer to obtain information about the awarding of contracts by the chancellery, which operates under the authority of the Governor General and makes medals for Canada, including for the Order of Military Merit. The contracts are worth several hundred thousand dollars, but we could not obtain them because they are awarded by the chancellery, which is not subject to the act.

Access should, in my view, be as broad as possible, with specific exceptions such as for cabinet, the Governor General, and the courts. I have no objection to that.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Thank you.

I would like to return to Mr. Mendel.

You spoke at considerable length about the many exceptions in the act and the commissioner's recommendations to limit them. Some of the exceptions are entirely justified, but we agree that the number of exceptions has become excessive.

I would like to hear your thoughts on limiting the exceptions and on defining their scope so that they apply in very specific cases to effectively protect certain things.

[Toby Mendel]

Under international standards, exceptions should conform to a three-part test. The first part of the test is that they should protect legitimate interests. We heard from the Swedish ambassador that they have a list of seven principles in their law that responds to seven categories of interests. We have a lot more exceptions in the Canadian law. A better practice around the world is to have a relatively limited number of types of interests that can be protected. Of course, the specific modalities of that protection might be elaborated in another law. For example, the access to information law recognizes privacy as an interest. Then you have the Privacy Act, which protects that in more detail.

The second metric under international law is that it should apply only where disclosure of the information will cause harm to the interest.

I see you nodding here because it's just so logical and obvious.

It's only where harm would be caused by the disclosure of the information that it could be withheld or its disclosure refused. Many of the exceptions in the Canadian act do not correspond to that value. There's no harm required. Cabinet documents are covered, period—no harm, no interest even. If a third party deems information confidential, it is confidential, even though no harm to any legitimate interest would be caused by disclosure of that information. It's kind of a third-party veto. There's a whole list of exceptions in the Canadian act.

Finally, under international standards and better practice, there is a public interest override. Where the overall public interest would be served by disclosure—keeping in mind that the right of access is in most case recognized in Canada as a human right, as part of the right to freedom of expression—the public interest should override the secrecy interest. I may have a minor privacy interest, but information discloses evidence of corruption. The information should still be disclosed.

In many other pieces of legislation—the Swedish act, the Indian Act, the South African act, the Mexican act—their exceptions correspond to those three tests. Ours do not. I think that if were to apply those three principles, we would come up with a very different set of exceptions under our law. I think this would be more logical and easier for civil servants to apply, and less abusive grounds to refuse to provide information for no good reason. I think there's a lot to be done in the area of exceptions.