Information & Ethics Committee on April 12th, 2016

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

Thank you, Mr. Mendel.

You stated today that you are in favour of order powers being granted to the commissioner. Those are significant powers that are not granted to other commissioners. If I understand correctly, you are referring to the commissioner being given the legal power to order the publication of information that she considers should be made public.

I would ask you to confirm that that is indeed your current position and tell us whether the power exists in other jurisdictions and under other acts.

[Toby Mendel]

First of all, yes, that is exactly my position. Second, I would note that although there are a few places that don't have order-making power, particularly where some of the older laws were adopted in Europe and Canada, in most of the more modern jurisdictions, access to information has moved to an order-making model, including Britain, Australia, India, Mexico, and Indonesia. Most countries have order-making powers.

This has nothing to do with lines of reporting of this body. There is absolutely no reason that an Information Commissioner with order-making powers would not continue to report to this committee precisely in the same way as happens now. That is what happens in India, in England, and in Australia. The bodies are still accountable to Parliament in precisely the same way.

As to the concern that binding powers would elongate the decision-making process, we believe this to be unfounded. We believe, as Mr. Drapeau has pointed out, that the process has already become far too lengthy and bureaucratic, even though there are no order-making powers in the system. We also believe that it's perfectly possible to apply much stricter, much more concise time limits. It's partly a question of resources, but it's far more a question of how the appeals are processed and how the rules on processing appeals are applied. In a non-binding model, the Information Commissioner has very little control over these matters. But with a binding model, the Information Commissioner would actually have a lot more power to speed up the processing of appeals by reducing unnecessary procedural elements. It is not a judicial appeal. That is not the model that operates in Britain, Australia, or India, or those other countries. The whole idea is that it should be prompt and rapid. It is not serving that role. But a binding order-power could be done in a way that would reduce the timeline significantly. We see examples of that in different countries.

[The Chair, Conservative, Blaine Calkins]

Thank you very much. We went significantly over time there, but that's okay. I think we have time, and it was a very worthwhile answer.

We now move to Mr. Saini for the last of the seven-minute rounds. Then we'll move to the five-minute rounds.

[Raj Saini, Liberal, Kitchener Centre, ON]

Good morning, gentlemen.

Your Excellency, I want to thank you very much for coming here today. I have some questions about your country's approach to this issue.

One, how many requests do you get per year for access to information? Do you by any chance have that number?

[Per Ola Sjogren]

No, I don't have the exact number. First, if it's not the government's issue or it's in the Parliament, it is dealt with by the courts. You can appeal to the court. There are not so many cases per year, but I can come back with the exact number to the committee.

[Raj Saini, Liberal, Kitchener Centre, ON]

How many do you think are appealed? Do you have an idea percentage-wise?

[Per Ola Sjogren]

I don't have that, actually. I will have to come back on these issues about how many.

We have an open system, and the principle is that we should release documents immediately—the same day, in principle. That has been stated in many examples from our ombudsman, who on a regular basis scrutinizes the public administration when it comes to the release of public documents.

[Raj Saini, Liberal, Kitchener Centre, ON]

I have a question on the appeal process. You say that if you are going to make a request to the minister and that is denied for whatever reason, you can make an appeal to the government.

[Per Ola Sjogren]

Yes.

[Raj Saini, Liberal, Kitchener Centre, ON]

If you have a request to another authority, you can make an appeal to a court of law. Can you take me through the steps of how that appeal works?

[Per Ola Sjogren]

When it comes to the government, which then would be a decision by a minister or ministers, the issue is referred to a government decision on appeal on that. That would be the procedure.

When it comes to the constitutional committee in our Parliament that scrutinizes and reviews on a regular basis all the different ministers that work in relation to openness when it comes to public documents, they have an annual administrative scrutiny of each minister. Within that review, they can also report on delays and malpractices in relation to the release of documents.

It can also be done on demand from a parliamentarian. A parliamentarian can ask the constitutional committee to look into a ministry's habit or practice when it comes to release of documents. For example, in my ministry, the Ministry of Foreign Affairs, there are, on an annual basis, a number of issues for which the minister has to report to the constitutional committee on these matters. It can concern both secrecy and the time delay, the timing.

Then we have our ombudsman, who follows the whole public administration. The ombudsman works on a complaint basis and makes recommendations to the administration on how it should relate to a request for the release of a document or documents. In a number of cases, the ombudsman has said that a release should be done “immediately”—that's the word I referred to—which means the same day. If an official, a public servant in the Swedish ministry, gets a request, it's mainly for that person to act immediately. If it's a more complicated matter, it can be referred to the head of the department and finally to the minister, but it is for each public servant to act immediately when they get a request for the release of a public document.

I would say that we have a culture of openness, which leads to relatively few formal complaints to courts and government, but I will come back with the exact numbers.

[Raj Saini, Liberal, Kitchener Centre, ON]

If a matter is referred to the court, and let's say the Supreme Court, is there a cost associated with that? Does the individual or the entity have to pay out of their own pocket to plead that case at the Supreme Court level?

[Per Ola Sjogren]

I don't believe so, but I will also have to come back on that and confirm it.

[Raj Saini, Liberal, Kitchener Centre, ON]

Do you get a lot of requests from foreign governments or foreign individuals for access to information? Do you deal with them separately or...?

[Per Ola Sjogren]

No, I wouldn't say so. I don't have exact figures, but it's rare, I must say.

[Raj Saini, Liberal, Kitchener Centre, ON]

But are those requests dealt with the same way as a domestic request would be dealt with?

[Per Ola Sjogren]

If we get the request from a foreign government?

[Raj Saini, Liberal, Kitchener Centre, ON]

Yes, let's say a foreign individual, a foreign government, asked your government or an entity within Sweden for information, would that information be dealt with in the same manner that someone—

[Per Ola Sjogren]

It would certainly be dealt with at the ministerial level. It would not be dealt by an individual, so it will be raised at that level. I'm quite certain about that, yes.

[Raj Saini, Liberal, Kitchener Centre, ON]

Do I have any more time?

[The Chair, Conservative, Blaine Calkins]

You have a minute and a bit.

[Raj Saini, Liberal, Kitchener Centre, ON]

Mr. Mendel, I have a quick follow-up question for you.

You had mentioned the Newfoundland and Labrador model. Could you give us a brief outline of some of the weaknesses and strengths of that model?

[Toby Mendel]

My main point about Newfoundland and Labrador was that they undertook a comprehensive process of reform, where they really looked root and branch at the legislation, at what to change and so on, and ended up with legislation that is very substantially stronger than their legislation had been. In other words, they really went through a process of reform that was genuine and very substantially improved the legislation.

For example, on our RTI rating it jumped by 20 points, and we are now, I think, 15th in the world. Only countries are rated, so we're not really 15th, but if we were a country we would be 15th.

I was encouraging the federal government to do the same thing, rather than engage in some piecemeal reforms at this point and put off real reform until later.

The Newfoundland and Labrador model is kind of a hybrid model. We are still to see how well it works. It's very unique. They have given a lot of powers to the commissioner in terms of, for example, approving further delays in responding to requests and in extending the overall period for the presumption of secrecy of 20 years. I can't remember exactly what it is under the law. They have very significantly tightened up their regime of exceptions, so it looks very different from the Canadian federal or many of the other Canadian jurisdictions. They have improved the procedures so that the way and manner of making requests, fees, online extensions, as mentioned, have to be approved by the commission.

Many of the issues that I raised in my presentation have been addressed in the Newfoundland model. Of course, it's not perfect. It's really being tested, so it's a bit difficult to say whether this hybrid model is going to turn out to be the success they hope it will, but my main point really was that they did not engage in a smaller or piecemeal reform. They really engaged in a proper process of reform.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Mr. Saini. We're already at eight minutes. The time goes by really fast. It's now Mr. Jeneroux's time.

We're starting the five-minute rounds, so let's keep the questions and answers concise and we'll get through this.

Mr. Jeneroux.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Wonderful, and thank you first to both you two gentlemen for coming here today. It helps us immensely to have you here, and Mr. Mendel, thank you for calling in today and coordinating with us.

If you don't mind, Mr. Chair, before I begin my questioning I want to express some of the disappointment in seeing this in the budget. It was something that we had undertaken and was something as a committee we were prepared to put a lot of time into. We had a lot of witnesses lined up, and unfortunately it appears that the government is moving ahead with making a model, without hearing the fulsome discussion of the committee.

That being said, I'd like to hear your thoughts, hopefully from all three of you depending on time, but maybe we'll start with you, Ambassador.

One of the Information Commissioner's recommendations is to open this up to people who aren't citizens, people who aren't Canadians but make requests here. I am hoping to get the thoughts of all three of you on what you think that means for the volume of requests, and Ambassador Sjogren, in your country's example of how much resource and financial commitment that may potentially bog down the office.

If you don't mind, all three of you, could you elaborate a bit more on that.