Evidence of meeting #72 for Access to Information, Privacy and Ethics in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was request.
A recording is available from Parliament.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Can we talk about the order-making powers for a second, and maybe open this up to all? That power was presented by both ministers as being a great thing. We have this order-making power. The idea was that we're giving teeth to the commissioner to drag this information from reluctant officials if they so choose. Why should we not feel reassured about this new aspect?
I'll start with you, Ms. Zwibel, and I'll go around the table.
Acting General Counsel, Fundamental Freedoms Program, Canadian Civil Liberties Association
As I said, this de novo review does really undercut that order-making power. It basically means that none of what the commissioner decides, none of what the commissioner looks at, is relevant to a court looking at it. The courts can look at brand new bases for refusal. They can look at brand new information that the government department brings forward. It's really sort of dangling something for the Information Commissioner to have this power, and then it just adds a step, really. The order-making power is important, and if it were subject to an appeal or a review at the commissioner's order itself, that would make it much more powerful.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
I'll turn to the table. Just as a parenthetical note around the language commissioner, we did suggest a slightly higher bar to the government, suggesting that it should be an all-party committee making recommendations on these watchdogs to the government. It would then have selection power, rather than having all the power sitting with the Prime Minister to appoint watchdogs over himself, in this case. That suggestion was refused by the government, by the way, much to my shock.
I'll come back to this order-making power. You're presenting it as a toothless power, or is it inefficient? What's the problem with it?
Co-Founder, Democracy Watch
It's not toothless. It is a step forward. It's just not enough of a step to increase transparency, because the appeal process will continue the delay and be on grounds that it shouldn't be on. The commissioner is an administrative tribunal, and it should be a review based on reasonableness of the commissioner's order, as with other administrative tribunals, as opposed to, as Ms. Zwibel has highlighted, a de novo review of the entire request. There's just no reason for that.
Conservative
Liberal
Frank Baylis Liberal Pierrefonds—Dollard, QC
I'd like to touch a bit on the concept of balance. You're all good advocates for having more open transparency. In theory, that's always a good thing, but in the real world, we need to have balance, because we can be overrun.
Ms. Zwibel, you had a concern about limitations on frivolous or vexatious requests. What would you suggest should be done?
Acting General Counsel, Fundamental Freedoms Program, Canadian Civil Liberties Association
I don't object in principle to that being a basis for refusal, but there needs to be criteria spelled out in the act as to how an institutional head decides what constitutes a frivolous, vexatious, or bad-faith request. We need to make sure there is a provision that says the basis for the refusal has to be communicated to the requester. I don't know how detailed that basis will be.
If I make a request and I'm told that it's refused because it was considered frivolous, vexatious, or in bad faith, which I imagine would be the extent of what I would —
Liberal
Frank Baylis Liberal Pierrefonds—Dollard, QC
Let's assume you are doing exactly that. Let's assume you are someone who is not using this act in the way it's intended, and you are making a frivolous or vexatious request. Then you're told it's frivolous or vexatious, and you're going to say you want more.
How do we deal with that person? What would we tell them?
Acting General Counsel, Fundamental Freedoms Program, Canadian Civil Liberties Association
What I want to know is how you came to the determination that my request is frivolous, vexatious, or in bad faith. Bad faith, in particular, suggests that you know something about me that makes me put in a request when my genuine intent is not to get the information that I'm asking for. So—
Liberal
Frank Baylis Liberal Pierrefonds—Dollard, QC
If there were a guidance document that specified what a frivolous or vexatious request was, and then it was determined to be that way, what more would the government do?
Acting General Counsel, Fundamental Freedoms Program, Canadian Civil Liberties Association
I would say those kinds of criteria should be in the legislation, not just in a guidance document.
Liberal
Frank Baylis Liberal Pierrefonds—Dollard, QC
Then you do accept that there is a need for a limitation on requests with regard to their being frivolous or vexatious, but you just don't like the way it's not specified. Is that correct?
Acting General Counsel, Fundamental Freedoms Program, Canadian Civil Liberties Association
I haven't seen evidence that there's a need for a limitation, but I know that you've heard evidence that there's a need. Assuming that there is a need, I don't have a problem with it being in the legislation, but I think there need to be some criteria.
Liberal
Frank Baylis Liberal Pierrefonds—Dollard, QC
Yes, we've heard the evidence that there is a need. You'd just like to see the criteria, but you do accept the need. Okay.
Mr. Conacher, you made the statement that every single decision and every single action should be documented and made available.
In business, for example, we have software that tracks salesmen and we have software that tracks the development and the manufacturing of the device. There is always a trade-off, because the more time you take putting in that data, the more granular you can get, but also the more inefficient everything else is. Nothing's for free. If I have to document every single decision, every single action, that's wonderful, and I have phenomenal granularity, but I might have to double the manpower in every single department just to do that.
Where do you see the balance? It doesn't seem to be reasonable to say it has to be every department, every person, every time, every action, every decision. There has to be a balance.
Co-Founder, Democracy Watch
You say you might have to double the number of people working—
Liberal
Frank Baylis Liberal Pierrefonds—Dollard, QC
I was talking about in private industry. I was in private industry. I'd imagine in government, we'd have to triple it, but we'll go....
Co-Founder, Democracy Watch
No, you wouldn't have to. Someone goes to a meeting. Someone at the meeting notes who's at the meeting and what was discussed and then takes a picture of the note and uploads it. They have administrative assistants.
Liberal
Frank Baylis Liberal Pierrefonds—Dollard, QC
Well, Mr. Conacher, I could tell you that prior to this meeting, I was in meetings. When I leave it, I'll be in another meeting, and if I had an extra four hours a day, I could document every decision and every action I take, but I can't. There will need to be a balance, and a blanket statement saying we want everything done all the time is not reasonable.
Co-Founder, Democracy Watch
Yes, it is. That's what the Internet's for. Documenting your decisions and actions doesn't mean that you're documenting every step of your day.
Liberal
Frank Baylis Liberal Pierrefonds—Dollard, QC
Well, you said every single decision and every action, so If I decide after—
Liberal
Frank Baylis Liberal Pierrefonds—Dollard, QC
—this to go to the bathroom, do I need to document that?
Liberal
Frank Baylis Liberal Pierrefonds—Dollard, QC
If I have to document that if I go to the bathroom, I will miss some testimony, then I have to document why I missed certain testimony.
Co-Founder, Democracy Watch
I'm talking about government actions. That's not a government action.
