Information & Ethics Committee on April 12th, 2016

[Per Ola Sjogren]

I'll just briefly say that I would imagine it could lead to an increase in workload for that administration.

I'll refer to our experience of openness as a basis for handling cases when it comes to public documents. If we have a strong culture of openness and act promptly when we get requests, it diminishes the workload when it comes to appeals and other cumbersome administrative procedures.

Therefore, in our system we have the legislation, the basic laws and the subordinate laws, when it comes to openness. I will say that is a cultural issue within our administration, to try to be as open as possible in relation to requests for public documents. That would probably lead to diminishing issues of administrative character such as appeals, etc. We have relatively few appeals, and I will come back with more exact numbers.

Openness, I think, is a good way to deal with this.

[Col (Retired) Michel Drapeau]

I will take a more philosophical aspect to it. In conceptual terms, I have no problem making it universal. It is certainly done in the U.S. and in the U.K. However, as a Canadian I certainly would like to have my share first, and, second, have my requests or my complaints handled within a reasonable amount of time, before we open it up to China, Mexico, and every other place; otherwise I will never see the last of it.

If we have open data as a concept, and most of the information is readily available on the Internet—for instance, government information, whether a contract or whatever, which is the aim—access to information requests for formal access should be the exception. Most of the other information should be readily available. Then, in the fullness of time—and we are years away from this—why not make it open to any citizen of the world?

There is a cost to be paid, because there will be increased traffic. We have to have our system working right before we do that, and we are a number of years away from that.

[The Chair, Conservative, Blaine Calkins]

Mr. Mendel, do you have some comments for us?

[Toby Mendel]

The first point is that the experience in other countries, as we already heard from Sweden, is that the number of formal requests is very low. Unfortunately, people are not as interested in us as we might wish they were, and I think we can see that the burden from that side could be expected to be very limited.

I have another point about it, which is diametrically opposed to this. I think we can massively increase efficiencies and reduce costs if we eliminated that pre-question and the fees pre-question, and if we moved to a system almost exclusively of electronic requests. That would be a huge efficiency.

By eliminating that requirement, we would be removing a barrier that is imposed on officials processing requests—they have to ascertain whether the person is a citizen or a resident. With that, they would no longer have to do that. If they didn't have to take the fees, they could do everything electronically, and it would be much more efficient. I think it would result in a huge increase in the rapidity of processing requests, rather than the opposite.

[The Chair, Conservative, Blaine Calkins]

Just like that, that's how five minutes get totally used up.

Mr. Erskine-Smith, go ahead, please.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Thanks very much.

I'd like to start with a question about the extension of coverage.

Mr. Drapeau, you mentioned extending it to Parliament, ministers' offices, and courts' administration, but in fact the Information Commissioner recommends extending it to publicly funded institutions and institutions that perform a public function. Upon request, the Information Commissioner provided some clarification. Let's first deal with publicly funded institutions. She suggested that one model might be where an entity receives $5 million or more from the federal government, or where more than 50% of its funding is from the government, or some combination of the two.

I wonder, Mr. Drapeau, if you have thoughts about extending coverage to publicly funded institutions and whether the specificity that the Information Commissioner proposed makes sense.

[Col (Retired) Michel Drapeau]

In conceptual terms, yes, but I have a major problem. We have to fix it first, because it doesn't work now. Limited as it is, it doesn't work.

Second, we want to be restrictive, as much as I am for access. Otherwise, if I have a large contract where the contractors provide some type of services for the military, be it air transport or food services, is that organization, as a third party, subject to the access to information? First of all, there are legal implications, and second of all, there are administrative processes and costs associated with the management thereof.

My advice would be to move very cautiously before opening up.

One of the things that are open now, that are publicly funded, is foundations. Not all of them, but most of them are now part of it.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Thanks very much.

Mr. Mendel, I would put the same question to you with respect to publicly funded institutions, and institutions that perform a public function, and extending coverage of the act to these organizations.

[Toby Mendel]

We've been moving excessively cautiously for 30 years with this act. I think now we have to not do that.

A lot of countries cover publicly funded bodies and bodies that perform a public function. Yes, it is a change. I think the implication would be that if you want to do business with government and you want to receive funding from government, then you have understand and accept that. In those countries where that model applies, and once it is understood, I don't think it's any problem for those businesses. Of course, we hope this will only apply in respect of the functions that were performed under that public funding. That would be an important limitation. Otherwise, yes, I support that. It's a strong model internationally.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Would it be possible for both Mr. Mendel and Mr. Drapeau to review the Information Commissioner's specific recommendations on extending this to where entities receive $5 million or more—where more than 50% of its funding is from government—and then also looking at how she and her office define public function, and provide written submission to this committee as to whether you agree or whether you differ, and if you differ, how you might specifically define—

[Col Michel Drapeau]

Yes.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

And Mr. Mendel?

[Toby Mendel]

Yes, certainly.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Thanks very much.

With respect to order-making powers, Mr. Drapeau, as it stands, the OIC does go to court and request disclosure where they claim it has been improperly denied. With respect to order-making powers, doesn't empowering the OIC with order-making powers simply reverse the onus for the government then to go to court?

[Col (Retired) Michel Drapeau]

At the moment, the Information Commissioner in fact investigates and provides findings and recommendation to the institution. If the institution decides not to go with the findings or recommendations and decides not release the records, then the requester has the choice to go to court, or the Information Commissioner has the choice to go to court with the consent of the requester first. Also, the Information Commissioner, particularly in a case where an institution is not responding to requests on a widespread basis, has the choice to file her own complaint, investigate it, and then take it to court. At the moment, she has a very powerful tool as an officer of Parliament to come here, to write an annual report, and to make a special report, which she has done in the past. On occasion, when she wants to or needs to, she can go to go to the Federal Court. It's quite broad.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

If I could jump in, I would also like to ask Mr. Drapeau and Mr. Mendel about the following.

I think the 85 recommendations of the OIC are a good starting point for this committee's job.

Mr. Drapeau, you've identified the order-making powers as a source of disagreement.

Would it again be possible for you and your organization, Mr. Mendel, to provide us with written submissions as to other sources of disagreement, or if in fact which of the 85 recommendations you agree with, and if you have other proposals that you would add to those 85?

[Toby Mendel]

Yes, we would provide key points on that.

[The Chair, Conservative, Blaine Calkins]

I like self-timing MPs. This is fantastic.

We'll go back to Mr. Jeneroux.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

On queue, start my timer.

I find it rather redundant for the Liberal members to ask for your opinions on something that's already essentially been decided in the budget. I guess I will humour the process for the time being and continue with my questions.

Going back to my question that I asked on opening this up outside of Canada, I want to highlight a witness we had here recently. Citizenship and Immigration Canada was before us and indicated that it would double their requests, in their mind, if we were to open it up outside of Canada. I wanted to put that on the record as well, so you guys are clear about that. Obviously you weren't present at that time, so I want to make sure that's there.

Mr. Drapeau, you spoke about a priority-based model. Have you done some work on that, which we could maybe explore a bit more? In particular, you mentioned Canadian citizens getting priority over others from outside of Canada Is there something, maybe not necessarily from you, but some work out there?

[Col (Retired) Michel Drapeau]

It hasn't been looked at, and I agree that Citizenship and Immigration is one of the departments that has received the most requests and one that is the most complained against. It's one of the 10 most complained-against departments. No doubt if we were to open it up to the public—and we are, in fact, a country that receives immigrants—perhaps there will be an appetite for information in certain sectors if and when we open it up to a universal right of access.

That's what I am saying. I have no data to suggest how many requests we would be receiving—20,000, 50,000, or 90,000. I think somebody else ought to look at this and quantify the workload associated with that.

However, before we do any of that, we have to get our own system right. If it is a quasi-constitutional right that we give to Canadians, those Canadians have a right to anticipate receiving an answer in an appropriate amount of time. At the moment it's not taking place. Before throwing the doors open to the world, let's just make sure we clean up our own act, and this I suggest would take a couple of years before we get there, with the direction and advice of this particular committee.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Thank you for that, Mr. Drapeau.

I guess if there's nothing in place now, I'm with you in thinking that it's going to take some time to get that done. However, budget 2016 allocated $12.9 million over five years, according to the number I have here, to implement a new access to information portal where Canadians could request information. This was the wording.

It also includes a 30-day deadline for requests of personal information. We had before us the immigration and defence departments. Both of those departments indicated the challenges that they were experiencing in keeping up with such requests.

Mr. Drapeau, you also indicated there was a large delay. In your personal experience, I believe you said the delay at the defence department is between six and seven years?

I guess we have about a minute. Would you all comment on this suggestion of having an information portal and the dollar amount of $12.9 million—again with the caveat that we don't really know how many more requests would come in if we opened up the system to outside Canadians as well. I'll stop there, and now you have about 30 seconds.

[Col (Retired) Michel Drapeau]

In terms of the demands, if we look at the 70,000 existing requests now in the system, let alone any new ones, with many of the requests my own office makes, we daily receive letters back from departments authorizing themselves delays of 180 days or 200 days to respond.

Then we have a choice: either we sit patiently by or we submit a complaint. If we submit a complaint, we know it's going to take us two years to get a response. So what do we do? We suck it up, and we're going to wait 180 days. Then, when we get the response, if they're not happy with it, then we may make a complaint. That's what we mean by the system is broken.

I cannot get requests or access to records through the formal process, and when I'm getting them, I cannot have access to the complaint process because it's chockablock full with the two, three, or four years' backlog.

Therefore, at the moment we beg them, “Would you please look at it.” In some cases I have a litigation file and I intend to fight them. I need these records now. Sometimes we receive it and sometimes we don't.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Mr. Drapeau.

We now move to Mr. Bratina, and then we will go to Mr. Dusseault, and that will end the official rounds that we have in our standing motions. But at that particular point in time, we'll have some time left over and everybody who wants to ask questions will get an opportunity.

Mr. Bratina, please, for five minutes.

[Bob Bratina, Liberal, Hamilton East—Stoney Creek, ON]

First of all, to Mr. Drapeau, I was interested in your statement about the “lack of motivation”. One can see in a tyranny why they don't want you to know stuff. Why do you suppose there's a lack of motivation here? Is it the discomfort of facing the media, the public, and so on? What do you feel is the lack of motivation?

[Col (Retired) Michel Drapeau]

It's because they understand, they read the signals. They read the signals from the centre, the Clerk of the Privy Council, the deputy minister, the assistant deputy minister, or director general.

There's a higher penalty to be paid if you're zealous in releasing records that you know are being requested and proceeding with them sharply, and only excluding what needs to be excluded, where you have the discretion not to exempt certain parts, and having the information out there, than in saying no, and delaying or invoking exceptions and letting the requesters go through the complaint mechanism.

I could give you, if it weren't for my secret de privilège, so many instances where we're going to go through the complaint mechanism when a particular institution has been asking for exaggerated fees. But I may have to wait two years before I get a decision that our complaint is well founded. Well, hallelujah, it's been two years.

There's a higher reward for not responding to an access request in the fullness of time in the fullest manner possible than there is a penalty. There's absolutely no penalty. Bureaucrats should be brought in and told, “You're being a bad boy because you haven't responded to this request.” There will be more of a smiling face if, in fact, you've been able to use your power to resist disclosure.