Information & Ethics Committee on April 12th, 2016

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

Mr. Sjogren, for a newspaper to be covered by that very long expression “freedom of the press”, it must be registered and have a responsible editor. Then there's the fundamental law on freedom that is similar to other media, including TV, radio, and websites.

So the issue that comes before us is a blogger who has no editor. He's just a lone wolf. How do you control that with regard to the press, which has to have a responsible editor and probably liability insurance in case there is a lawsuit, versus the lone wolf blogger?

Is there any protection at all with regard to information and single individual bloggers in Sweden?

[Per Ola Sjogren]

The Freedom of the Press Act refers to printed media. The printed media needs a responsible editor, and the editor will be in charge. The same goes for the author of a book, for example. It's not those who have given the information that is in the book to the author, it's the author of the book who is responsible. That follows from the freedom of protection of sources.

These fundamental rules are extended into other media through the fundamental law of freedom of expression, including Internet and websites. In that case, it would be the person who has written the hate speech or the blog, for example, who will be responsible.

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

He's responsible.

Finally, Mr. Mendel, I think I could win a lot of bar bets by saying that Serbia ranked number one in the ratings of right to information, and no disrespect to that country. Is this something that they changed recently in their constitution or is this historic fact?

I'm really interested in how they achieve this high rating.

[Toby Mendel]

We were also very surprised when we saw that they had taken top spot, as it were. Slovenia is in the second spot, and a lot of the former Yugoslavia countries have really high ratings because they sort of all learned together to produce group laws.

Their law—I would have to look at the rating again—is relative recent, and 2006 is bouncing around in my head. They do have a constitutional guarantee that goes back further than that. If you look at the rating, a lot of the higher performing laws are indeed the more recent laws because they learned what makes a good law. International standards have developed over that period.

That's also a very important point for this committee. Canada, when it adopted this law, was the sixth or seventh country in the world to adopt such a law. It was really a leader globally on this, but in the 30 years since then it hasn't reformed its law, and now we are far behind. We need to do something.

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

What's the quickest to access the universal standards that are referred to here? Where can we find those standards?

[Toby Mendel]

Our right-to-information rating has 61 separate indicators, which reflect international standards around timelines, around exceptions, around appeal mechanisms. It's a potted version: things are more complicated than the 61 indicators, but they will at least point you to the issues.

[The Chair, Conservative, Blaine Calkins]

Thank you very much.

Mr. Dusseault, please.

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

Thank you, Mr. Chair.

I would like to return to Mr. Drapeau.

It seems that you may not be fundamentally opposed to the order-making model. Perhaps your primary concern is, rather, that other things should be addressed before such a model is adopted. As Mr. Erskine-Smith noted, this model would reverse the burden of proof, placing it instead on the government. If these quasi-judicial powers were granted to the commissioner, they would enable her to order the publication of certain documents. It would then be up to the government to appeal the decision and to defend confidentiality in the case of exceptions and exclusions.

Reversing the burden of proof in this way might be a good way to reduce turnaround times. Although it would take time to evaluate all the facts on both sides before releasing documents, the fact that the commissioner could order their publication could improve matters. If the committee or the government were to recommend this course of action, additional resources should, in my opinion, also be provided.

If the order-making model were adopted, would you agree that additional resources should be provided to support it, along with a clear mandate, instead of requiring the affected institutions to cover the costs themselves, for instance, by making changes to their expenses or internal operations?

[Col (Retired) Michel Drapeau]

Honestly, I think the recommendation to give the commissioner order-making powers is simplistic in that it would resolve very few of the chief problems. The fact is that 93% of the outstanding requests involve institutions that do not have order-making powers. They have no powers and do not have the necessary resources either. Their resources can certainly not be compared to those available to the commissioner.

Should you decide to grant the commissioner order-making powers and provide additional resources, this would address only a very small percentage of the 1,600 requests. Should you choose that course of action, I would ask that you devote sufficient energy and funding to address the other 70,000 outstanding requests.

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

The commissioner spoke about the culture of lateness in departments that do not provide the information in a reasonable amount of time. National Defence had requested 1,110 days, something you surely know since you worked for that department.

In your opinion, would the commissioner's recommendation to limit deadline extensions be applicable and desirable? The idea is to limit the extension or the period possible for requesting one so that the duration of the extension is reasonable.

[Col (Retired) Michel Drapeau]

The entire request system is bogged down by excessively long turnaround times. As I stated earlier, if I submit a request to a department and it stipulates a turnaround time of 180, 200 or 300 days, I have to decide whether or not to file a complaint. If the turnaround time was less than 200 days, I would not lodge a complaint because I know it would take two years.

The institutions are judged harshly but so, too, should be the commissioner's office, which currently has a wait time of two years or more as regards the processing of requests and complaints. Some of these requests pertain to fees, exemptions, and so forth. The entire culture has to change. While the act stipulates 30 days, it is constantly flouted and no limit is stated as to a reasonable turnaround time for the reception and processing of complaints; as a result, it takes two or three times longer than taking the matter to Federal Court. It makes no sense. But this is how things stand right now. I think there should be equal justice for all. For all institutions processing complaints or receiving access requests, deadlines should be imposed requiring them to respond within a specific time period.

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

Thank you.

[The Chair, Conservative, Blaine Calkins]

Thank you very much. We're going to have the opportunity today to let every MP ask a question.

We'll go to Mr. Masse now, please.

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

Thank you, Mr. Chair.

We have talked a lot about the access to information culture, but I would also like to hear about the access to information structure. As you know, the federal government has many employees and many departments. The information is spread out in various systems, files, and file structures. I would like you to tell us about how the information is managed.

Are there best practices that could be helpful?

My question is for all three witnesses.

[Col (Retired) Michel Drapeau]

As a former public servant and former secretary to the Armed Forces Council, I can tell you that we had problems in two areas. As I recall, the first problems date back to 1986-87, when there were drastic cuts to the administration. We simply lost all the administrative staff that archived documents.

For files prior to 1990, the National Archives' records are usually very complete and well indexed, which facilitates research. Things have changed since then because the centralized document control services in the large departments have disappeared, roughly at the same time as email came along. I would say it has become a free-for-all. The measure of control and the ability to access certain information on request depends on the file, the department, and the branch.

I think that the government as a whole and the various departments are trying to put some order back into things, but it is time-consuming and difficult. It also requires financial resources and significant information technology. The documents we receive under access requests vary accordingly. In some cases, we receive what we expected. In others, it takes a long time, and in others still, there are gaping holes because the files have not been retained.

I think this is a 21st-century problem. It derives from the great volume of communication by email and similar tools. Sometimes unexpected finds turn up in an email exchange, which surprises everyone, and the departments probably as much as us.

There is no obvious solution. I keep current on the various procedures the government uses to try to keep things under control, something that it has an interest in doing. Its attempts are full of pitfalls, however, and it is very painstaking work.

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

So if I understand you correctly, you agree that there are challenges in the culture and in the management of access to information.

[Col (Retired) Michel Drapeau]

Yes.

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

Mr. Sjogren, would you like to add anything in this regard?

[Per Ola Sjogren]

The issue of culture is very important, and I believe we have a strong culture when it comes to openness and disclosure of public documents. There are several reasons for that. First, we have a long tradition of access to public documents dating from 1766, and the law has not been changed.

The way it works in practice is that we are trained on this issue in our education in schools, and when we enter into a public function we are trained in it—it's one of the key issues. The responsibility is not, in the first instance, with the head of a department or management; it's with the public official himself or herself. If I, as a public official at any level in our administration, receive a request, the general direction is to leave everything else aside and deal with that request and hand out the document the same day. The recommendation from our ombudsman, which sets the general practice rules for this, says a maximum of two or three days; it's not a complicated matter.

It could be a document of several hundred pages, etc. What we do then, sometimes, is hand out documents consecutively. If there is a document of 500 pages, we can deliver 100 pages one day and another 100 the next day, in order for them to read it to see whether there are any secrets in it. There is also prestige for the ministers in not being criticized for having a ministry that has long delays in handing out documents.

We don't have a fixed time, but we have these very strict rules, which are followed internally both individually and by the government, and eventually by courts and the ombudsman.

I understand the questions about our appeal system, but there are relatively few appeals on this issue. There are appeals, and they are complicated, but it's more a question of how we manage it on a daily basis.

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

I see. Thank you.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Mr. Massé.

We'll now move to Mr. Long, who has some time.

[Wayne Long, Liberal, Saint John—Rothesay, NB]

Thank you, Mr. Chair.

And thank you to all the presenters today. It was very informative.

I was going to ask this question of Mr. Drapeau, but I think I'll direct it to Mr. Mendel. I'm from Atlantic Canada too, so I'll throw some questions to Atlantic Canada.

Again, the presentations today were very good, but the more I hear.... I'm new to politics, and certainly new as an MP here, and I've become concerned and unsettled. You hear quotes like “slip into irrelevance”, “state of paralysis”, “two-year backlog”, “the act is applied to deny disclosure”, and “interests of government trump the interests of the public”. And then, Mr. Mendel, you talk about the RTI rankings, where we're 59th out of 102 right now, and falling.

In my past life I was president of a hockey team and several businesses. I just want to drill down again on culture. You can change a culture, but culture doesn't change overnight. It takes effort; it takes reinforcement. At times it can take many years to change a culture.

Mr. Mendel, why has there been such a culture of delay, or basically a culture that's just not right, with respect to this? Can you give me your opinion on that?

Then maybe if we have time, we'll shift over to Mr. Drapeau.

[Toby Mendel]

I think there are a number of layers to that. For me the law and the culture interact very seamlessly.

If the law allows you to set a long time limit for responding to a request without essentially any accountability—and Mr. Drapeau has described quite well how that works, because if you want to appeal it is going to take you even longer—then you're basically telling civil servants, “If you're okay giving it out...but if you don't want to give it out, stick a long delay on it.” If the law is full of broadly worded, malleable exceptions that pretty much allow you to make an argument that anything could be secret, you're telling civil servants, “This is not that serious. We want to give you lots of grounds to protect anything you don't want to give out.” That is basically how the culture around this issue has developed in Canada.

We work internationally, and I've seen in lots of other countries, especially developing countries, which are often coming from periods of really harmful secrecy, countries like Bulgaria, like Mexico, like India, where civil servants have kind of lorded it over the public, and now they have this tool, and from the civil society side as well as from the citizens' side, they don't accept that kind of culture and their laws are not designed to allow it to build.

I think in Canada we have now fallen into an attitude of apathy on the part of the public, because it is a huge hassle to make a request, and it will take you so long and whatever, and you may not get the information, so why really bother? But definitely within the civil service there is an attitude that this is not that serious, that there's no accountability and there are no sanctions. There are sanctions in the law, but they have never been applied—never once in the whole history of this law.

So there is a cocktail of things. I think the lack of clear and binding powers on the part of the Information Commissioner is another important part of that. If the Information Commissioner could force public bodies and make statements that this is completely outside of the law, that they have to do this.... There is a whole bunch of ingredients to it. But to us, and we have studied systems around the world, we really need to start with reforming the law. It is going to take time to change the culture within public bodies, because as you said, cultures are difficult to change, and not sort of snap-change things.

It's not that quick to change the law, but it's quicker than changing culture. We feel that's needed to push the cultural change.

[Wayne Long, Liberal, Saint John—Rothesay, NB]

Thank you for that.

Actually, I'll ask Mr. Drapeau to comment on the same question.

[Col (Retired) Michel Drapeau]

Finally, it boils down to one word: leadership.

When Mr. Obama got elected eight years ago, his first act upon reaching the White House was an executive order about freedom of information giving orders throughout the bureaucracy that from then on access was the key. The possible embarrassment to government was not at issue. Things changed dramatically from that time onwards.

Under the previous administration with Clinton, Attorney General Janet Reno made it a rule that heads of agencies, which are similar to our departments, would also be assessed. For promotions, bonuses, and so on and so forth, their performance would be assessed on, among other things, the ability of their agencies to respond to access to information.

If our Prime Minister and the Clerk of the Privy Council were both to come out and say that they believe it's a quasi-constitutional law, that it is the law and they want everybody in the chain to be respecting and responding to it, there would be a change tomorrow, because people would say that there is direction from the top. At the moment, it doesn't exist.

What if the Clerk of the Privy Council were to say to his deputy minister that from here on in he would assess performance based on official languages, gender, and whatever happens from the Auditor General's reports, and so on and so forth, and on their performance as leader of their organization, but that access to information, including the number of complaints, the number of requests, and so on, would also be assessed? Overnight, the access to information coordinator would be called into the deputy minister's office and asked, “Do you need more resources and do you understand what your job is?” and told “Your job is to make me look good”. Then there would be a change.

At the moment, it isn't that way; it's almost the reverse: “I don't want to have any Globe and Mail story or stories being released through the disclosure of access to information records”. Those are the subtle, unspoken words. As a result, access is basically mired into inefficiencies.