Information & Ethics Committee on Oct. 23rd, 2017

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

But it's the subject matter.

[Duff Conacher]

I'm just saying you're adding a barrier. It doesn't need to be there.

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

Fair enough.

When it comes to proposed proposed subsection 6.1.... How much time do I have left?

[The Chair, Conservative, Bob Zimmer]

You have 20 seconds.

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

Okay, I'll leave it at that.

[The Chair, Conservative, Bob Zimmer]

Thank you, Mr. Erskine-Smith.

We'll go to MP Gourde for seven minutes.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Thank you, Mr. Chair.

I want to thank the witnesses here with us today for their statements and their expertise.

In all my time as an MP, I have rarely seen a bill so roundly criticized by everyone. Our committee has to conduct its examination, but everyone who has spoken on the bill is practically asking us to reformulate it.

In your opinion, what are the main changes we should make, in order to ensure that we aren't taking a step backwards with this bill? Rather than taking a step forward to improve access to information for all Canadians, we all get the sense that we are moving backwards. We want to go forward, and we don't want the status quo, but there will have to be some good recommendations.

You can all answer in turn.

[Cara Zwibel]

I think the most significant thing would be to bring the ministers' offices and the Prime Minister's office into the access regime itself. The proactive disclosure and the proactive publication provisions don't accomplish what the access regime can accomplish. That would be a key recommendation.

I mentioned the order-making power. I do think it's significant that this de novo review does undermine the ability of the commissioner to make orders. We know that sometimes when access requests are made, time is of the essence. If you're reporting on something, getting the record in three years—which is not at all uncommon under our current access regime—simply does nothing for you.

I think those barriers that I spoke of and the de novo review are other things that certainly need to be addressed.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

I am listening, Mr. McIntosh.

[Gordon McIntosh]

To tell you the truth, beyond the ministers' offices and the PMO being brought in under the act where they belong, I would like to see some sort of performance review on waiting times.

I filed my first information request way back in 1983. I can remember that back then, 30 days was reasonable, and sometimes you got your request back before 30 days. Over the years, 60 days has become the norm.

I just received a notice on a request I made about 40 days ago. I got an acknowledgement on day 38 that they had received my request, and then two days later they told me they needed a 120-day extension.

The excessive waiting has become normalized in the system. I think we need to look at benchmarks and I think we need to improve it the same way we have to improve wait times at hospitals. It has become something that is systemic. That's a change I would like to see.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Mr. Conacher, you have the floor.

[Duff Conacher]

I'll just go through my key recommendations very briefly.

All government institutions should be covered, and all public interest and publicly funded institutions should be covered. All should be required to record every decision and action. All the exemptions should be discretionary, with a public interest override and a proof-of-harm test. The commissioner should be given the power to not only order the release of records but also to order a cleanup of the information management system and penalize people for violations of the law and violations of those orders.

Finally, in terms of not just increasing funding but also making the Information Commissioner more independent, the appointment process has to change, and not just for this watchdog. Currently all these people are lapdogs, in that the cabinet gives them their jobs. Their jobs are also renewable. That creates bad incentives in both ways. If someone gives you a job and it's renewable, you owe that person, and it's easy for them to select a lapdog and then renew that lapdog.

That's where I think this is headed. We have these very few steps forward—the order-making power—so then the Liberals put in place a lapdog who never makes any orders, and then the complainants take them to court, and five years later maybe we can get some documents out. That's where this is headed, given that the promise to have an independent and merit-based appointment process has been broken.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

In the new bill, will the framework applying to the Information Commissioner restrict the scope of her actions, as compared to what she could do before? It does not seem to improve things very much.

My question is addressed to those who want to answer it.

[Duff Conacher]

I wouldn't say it limits the scope of her work, but we have an example in Ontario. I don't mean in terms of exemptions being closed, but I worked at the provincial office when it was starting up in the late 1980s with order-making power. It has existed for 30 years, so that whole process is well established in Ontario, and it has operated with most requests being solved by mediators. The order-making power does not have to be used most of the time.

Again, there are problems with exemptions and loopholes in the act, the fact that there are no penalties, and some of these other problems, but I don't think the act will reduce the scope of what the commissioner can do, other than these key measures in proposed sections 6 and 6.1 that will give the government even more reasons that would be justifiable under the law for rejecting requests. That's why those two sections are very dangerous. They expand the justifiable reasons for rejecting requests. Those loopholes will be abused, as others have been right back to 1983.

[The Chair, Conservative, Bob Zimmer]

Merci.

Next up, for seven minutes, is MP Cullen.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Thank you, Chair.

Thank you to our witnesses.

I'm looking back through some quotes: “After all, a country's access to information system is at the heart of open government”, said the now Prime Minister when debating his own Bill C-613. I think one of his favourite quotes became “Sunlight is the best disinfectant.” He said, “transparent government is good government” during the election campaign.

We had the two relevant ministers in front of us just recently. We seem to have a great divergence of views from the Information Commissioner. I'm not sure I've seen a watchdog condemn a piece of legislation quite so vociferously before.

I'm quoting from her report:

The government promised the bill would ensure the Act applies to the Prime Minister's and Ministers' Offices appropriately. It does not. The government promised the bill would apply appropriately to administrative institutions that support Parliament and the courts. It does not. The government promised the bill would empower the Information Commissioner to order the release of government information. It does not.

Let's just drill into something specific. What's the concern you have about trying to make proactive disclosure equivalent to access to information? We hear the government saying, “Isn't it wonderful? We have proactive disclosure. Why are you people complaining? We're just going to tell you about things. You won't even have to ask. We're going to tell you.”

Mr. McIntosh, from the media, from the point of view of the press holding government to account, what's the problem with government getting proactive in its disclosure?

[Gordon McIntosh]

It means that the requester—the citizen, the journalist, or whoever—is at the mercy of the largesse of whoever is in power at a particular time. I believe the list of proactive disclosures is not subject to any investigation by the commissioner. It's up to the government.

If I can have it, then all right, I should be able to ask for it.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Yes, what's the difference, if they're going to give it to me anyway?

I have a question for you, Ms. Zwibel, around the notion of a lost opportunity. I think it was Mr. McIntosh who said that.

Can you expand a little bit? We got into the weeds, and I think you were trying to get in a last point. I think it was around proposed sections 6 and 6.1 as to the public interest, or was it the ordering ability of the commissioner? Where was your concern?

The minister said that government was not going to take people to court, that they are not going to go through the exercise of court. It's almost placed out as some sort of a fail-safe measure, because that would be such a hassle and expense.

What's your reaction to that argument?

[Cara Zwibel]

I think the reality is that if there's an order made by the Information Commissioner and the institution doesn't want to comply with it, that's exactly what they will do. They will seek review. It can be a very lengthy process, so while that review is pending, no information is getting out. We've seen cases go to court about the reasonableness of requesting an extra 1,200 days for complying with a request.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Sorry, did you say an extra 1,200 days? They took that to court?

[Cara Zwibel]

Yes, there's a case that deals with that—

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

That's ironic.

[Cara Zwibel]

—question of delay.

There is no reason to believe that the provisions won't be litigated—

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Yes. There has been a pattern of litigation in the past. If I'm a government agency and I don't want to tell the public what a war is going to cost, what a fighter jet is going to cost, or what happened in a scandal. When the sponsorship scandal was going on, I remember how hard it was to get information about what was happening with these government contracts.

If I simply deny the request, if I'm in a government agency and there is information that is going to be politically damaging to my boss, we're taken to court. It takes two, three, five years. The war has already been exercised. It might be over. Whatever scandal was going on has long since passed. The information is no longer damaging, and I've essentially shielded the public from knowing by not providing the transparency that the Prime Minister talked about.

[Cara Zwibel]

Yes, and in doing that, shielded any possibility of accountability for the individuals involved.