Information & Ethics Committee on Oct. 18th, 2017

[Peter Kent, Conservative, Thornhill, ON]

I would like a recorded vote please, Chair.

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

The specific wording of what you're asking is for the Privacy Commissioner to—

[Peter Kent, Conservative, Thornhill, ON]

—be added to the list of witnesses, with appropriate time for discussion before the committee, as well as the Information Commissioner herself.

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

I think we would welcome that. I don't think anyone here takes issue with him being on the list.

In terms of time, do we want to specify that it be an hour?

[Raj Saini, Liberal, Kitchener Centre, ON]

I think an hour is fine.

[Peter Kent, Conservative, Thornhill, ON]

I think the Privacy Commissioner could well speak to it.

Minister Brison seemed to give great import to what the Privacy Commissioner may add to the discussion.

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

We have the Information Commissioner who is more relevant to this, for two hours, so I think the Privacy Commissioner for an hour would be fair.

[Peter Kent, Conservative, Thornhill, ON]

Sure.

[The Chair, Conservative, Bob Zimmer]

The mover of the motion is MP Kent.

What would you like in the motion for time, specifically?

[Peter Kent, Conservative, Thornhill, ON]

I agree that given the two hours with the Information Commissioner, who is actually the most relevant to Bill C-58, that an hour for the Privacy Commissioner would be appropriate.

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

Yes.

[The Chair, Conservative, Bob Zimmer]

I see no further debate.

(Motion agreed to [See Minutes of Proceedings])

[Peter Kent, Conservative, Thornhill, ON]

Thank you.

I'm sorry for the delay, folks.

One of the recommendations—

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

We thought you wanted a recorded vote, though.

[The Chair, Conservative, Bob Zimmer]

That's correct. We'll follow through with that.

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

From what I saw on the floor, it was unanimous.

[The Chair, Conservative, Bob Zimmer]

Unanimous usually gets everybody.

[Peter Kent, Conservative, Thornhill, ON]

Thank you.

Moving to questions, among the recommendations of this committee last year that were not implemented, specifically recommendation 23 said:

That the mandatory exemption for Cabinet confidences would not apply to: purely factual or background information; information in a record of decision made by Cabinet or any of its committees on an appeal under an act; where consent is obtained to disclose the information; and information in a record that has been in existence for an appropriate period of time as determined by the government and that this period of time be less than the current 20 years.

Was there anything unworkable or inappropriate in that recommendation that the government has chosen not to include in Bill C-58?

[Jennifer Dawson]

The focus of what has been brought forward in Bill C-58 is strongly aligned to the government-specific mandate commitments.

That question of exclusions versus exemptions is something that can be considered in that first full review of the act, which would be one year within the royal assent of the bill. I don't have a view to offer on that particular recommendation, but we observe that there definitely is an intent to undertake a full review that would go much more broadly than the amendments that are proposed today.

[Peter Kent, Conservative, Thornhill, ON]

It's been punted for later deliberation, more or less.

Quite a number of experts have said of the provision of appeal to a decision made by a minister or a department that in fact it would be better if the appeal were made directly to the Information Commissioner.

Is there a problem with a more direct appeal process and the commissioner's ruling than the court's?

[Jennifer Dawson]

I apologize, I just want to make sure I understand your question.

Are you talking about in terms of a determination of whether a request could be declined to be processed because it's frivolous or vexatious, or—

[Peter Kent, Conservative, Thornhill, ON]

Well that's sort of a secondary question, but I'm talking about the original decision on cabinet confidence, or the refusal of decision without a reason.

[Jennifer Dawson]

On cabinet confidence, currently it's not subject to the act, so it's outside of the Information Commissioner's purview. Again, that's something we could be looking at in a future review of the act, but right now it's—

[Peter Kent, Conservative, Thornhill, ON]

With regard to a minister or the department refusing a request, though, the right of appeal directly to the Information Commissioner would seem to be logical, given her authority.

[Jennifer Dawson]

Under the existing system, if a requester asks something from a department and isn't satisfied that it has been provided, essentially they have recourse to the Information Commissioner, who can help to investigate the situation and who today has a recommendation power and would provide a recommendation to a head of an institution to do something in that regard.

The order-making power that we're proposing now would create a situation in which requesters may have concerns that they haven't received what they should have. There would be still the investigation power, working with the department. There would be still a capacity for mediation and discussion among parties to try to resolve it. Ultimately, however, if issues can't be resolved, the Information Commissioner will have an order-making power, will have the ability to issue an order that says to a department, “In my view, you must release.”

In those very rare circumstances in which an institution feels that there's something that absolutely can't be released, it will have to go to court to demonstrate that it is on the right side of the Access to Information Act and demonstrate that it has been applying the act appropriately.