Information & Ethics Committee on Oct. 23rd, 2017

[The Chair, Conservative, Bob Zimmer]

I'd like to bring the meeting back to order.

If you have a conversation you would like to continue, please do so outside the room. You can do so at your leisure, but for now we need to get going.

I want to announce to the committee that we are going to handle some committee business at the end of our meeting. At about 15 minutes before the end, at about 5:15 p.m., we will move into committee business, so just be prepared for that.

Right now I'd like to welcome Peter Di Gangi from the National Claims Research Directors and Heather Scoffield from The Canadian Press.

We'll start with Mr. Di Gangi for 10 minutes.

[Peter Di Gangi, Director, Policy and Research, Algonquin Nation Secretariat, National Claims Research Directors]

Thank you, Mr. Chair and committee members.

I'd like to start out by quoting a Federal Court decision from 2006 that related to a judicial review of an access request that had gone to Statistics Canada.

What the court said was this:

It would be absurd and wrong if the Crown had the evidence the Aboriginal people required to prove their land claim, but the Government was entitled to suppress it. This would be inconsistent with section 35 of the Constitution Act, 1982.

With that, I'd like to introduce our presentation.

I represent a group of organizations, first nations, and tribal councils that carry out research for first nations largely to document claims, grievances, and disputes between them and the crown. This can be for the purpose of specific claims, which is a federal government policy related to lawful obligations of the crown, but also for aboriginal title issues, treaty disputes, and litigation generally. Together we submit hundreds of ATIP requests formally and informally every year. We know from experience what will facilitate or hinder access to information.

Our interests are twofold. First, the majority of evidence related to claims, disputes, and grievances of first nations is held by the crown. It's the defendant in these cases, but it's also the one that holds the evidence. There's an inherent conflict of interest there. That's part of the reason paragraph 8(2)(k) of the Privacy Act was inserted when they did the original legislation in 1982. It mentions that if you're a bona fide researcher for a first nation, you get access to information that would otherwise be deemed as covered by the privacy sections of the act, so there are exemptions for the purpose of documenting first nations research into claims. It's gone to the Federal Court, and the Federal Court has confirmed that it's a legal duty beyond what many Canadians have a right to. It triggers the fiduciary duty of the crown—the honour of the crown, as they call it—and the Federal Court has indicated that it sits within section 35. There are some significant issues there in terms of the right to access when it comes to first nations documenting their claims.

Another reason we need access to federal records is for public policy issues, to obtain information directly affecting a political, social, economic, or cultural interest. For example, between February 2015 and June 2016, we submitted over 37 ATIP requests and nine complaints to the Office of the Information Commissioner because government was stonewalling. If you were the defendant, you wouldn't want to give up the evidence the other side needed to prove its case, and that's the case with the federal bureaucracy.

In terms of our concerns about Bill C-58, we're opposed to the bill. It's a bad bill. It will introduce significant new barriers to first nations and organizations that are trying to access information to document their claims, disputes, and grievances. It will interfere with their right of access. It will also hinder efforts by Canada to meet the standards of redress for historical wrongs that are articulated in the United Nations Declaration on the Rights of Indigenous Peoples. Also, the Minister of Justice—in the summer, I believe—introduced 10 principles respecting the Government of Canada's relationship with indigenous peoples. It breaches those.

I guess our concern is that this government in particular set a very high bar in terms of its relations with indigenous peoples, and it seems to have broken the bar with this bill. There's been no consultation. There's been no consideration of first nations rights or interests. There's been no consideration of any of the briefs or evidence that we've presented to Treasury Board or to this committee. We're really concerned that it seems to be a matter of “say one thing and do something entirely different”.

I'd like to also talk a bit about the process we have to go through. After the original access to information legislation was introduced in the early eighties, the government agreed that for the first stage you would make an informal request to the government agency. Quite often that's what's known as INAC now, Indigenous and Northern Affairs Canada.

They had the capacity to respond to those requests, and you'd receive the information, and only if there were problems with it would you need to go to the formal ATIP process.

That worked pretty well for a while, but it has fallen into disrepair, and over the years we've seen a gradual rolling back of our access through arbitrary measures and gratuitous use of exemptions by the people at federal departments in responding to our requests. That has meant an increase in formal requests and complaints to the Office of the Information Commissioner.

In June 2016, we only found out very late about the initial consultations on modernizing the act, so we did submit a brief, but it was late coming in. I think your hearings had ended by then, but I believe it is in the record. If not, maybe we can have a chat afterwards to make sure it is.

At that time we presented a range of concerns to the committee. We expressed hope. The mandate letters that had gone out to the ministers seemed good, and focused on transparency and improving indigenous relations. Treasury Board had announced interim directives on access to information in May 2016, but we said at that time that there was a need to consult with first nations and these organizations to make sure that the rights to access were considered, first of all, and acknowledged in the legislation, and that adequate resources were required to respond to requests.

Also, with regard to training, we found that over the past 10 or 15 years, training of staff just didn't happen. You'd make a request, and staff would not understand why you needed the information. First nations claims are a world unto their own sometimes, and you need staff who understand the nature of your request.

Also, we recommended decentralization and encouraged human contact. We were finding over the last few years that we'd make requests and instead of dealing with a human being, we'd get form letters coming back that didn't provide any opportunity to engage.

We also recommended that there shouldn't be a ministerial veto for powers of the Information Commissioner, and at that time we also supported the other recommendations that the Information Commissioner had made in connection with the announcement to modernize the act.

We weren't contacted about our submission. We gave copies to INAC and to Treasury Board. Nobody followed up. We never got any traction on any of that.

Fast forward to this year. We submitted a document to you folks, I believe it was last week, that builds on the presentation we made in the summer of 2016. We've had it endorsed by over 70 first nations and tribal councils, as well as the Indigenous Bar Association and the Assembly of First Nations. They're all very concerned about this bill. The more they hear about it, the more they ask what is going on, and why does it contradict all these explicit promises that the federal government has been so glad to trumpet? It just seems a strange contrast.

We have concerns about Bill C-58. I think you've already heard testimony to this effect, but I'll make a few comments.

It was created unilaterally, without any effort to consult. There's a legal duty to consult first nations. It wasn't followed in this instance. The only time Treasury Board has been in touch with us, and they've been very cordial, has only been to tell us what they're going to do.

The crown has a duty to disclose records to first nations. Instead, this bill will provide many new opportunities for officials to delay or deny information access, not just for claims but for matters that are integral to first nations governance, such as membership records and treaty pay lists.

Clause 6 is of significant concern, and I'm sure others have explained their concerns as well. We believe this is going to provide legislative justification for the suppression of evidence that we need to document our claims against the crown. The crown is in a conflict. If you give this kind of tool to officials, they'll use it to the max, and we've seen it already under the existing regime, especially, as I mentioned, given that our first route is to make an informal request. Sometimes that comes back with huge redactions, or it might take a year to get the information back, and then we'll file a formal request if the first informal request didn't provide full disclosure. Our reading of the act is that we wouldn't be able to do that anymore. If you've already made a request and received partial disclosure, they could refuse your second request, the formal one.

Again, the act does nothing to address the conflict of interest whereby federal officials are in a position to deny access to the evidence needed to prove claims against the federal crown. There is nothing in the act that deals with that.

[The Chair, Conservative, Bob Zimmer]

Mr. Di Gangi, that is time. Do you have any closing words that you can finish with?

[Peter Di Gangi]

We recommend that the bill be tabled and go back to the drawing board. We support the Information Commissioner's recommendations and we think this government needs to take another run at it and give proper consideration to first nations' rights to access and reflect those in any bill that goes forward.

Thank you.

[The Chair, Conservative, Bob Zimmer]

Thank you.

Next, with The Canadian Press, we have Heather Scoffield.

[Heather Scoffield, Ottawa Bureau Chief, The Canadian Press]

Thank you very much for asking us of The Canadian Press to appear before your committee.

Here is a little about who we are. We're celebrating our 100th anniversary this year. We provide news and reporting from across Canada on all platforms to almost every daily newspaper and broadcaster, as well as to numerous corporations and government departments. In Ottawa, we are a team of about 20 French and English reporters, editors, and photographers.

Access to information is a crucial tool for us, and we are very anxious about the government's attempts to improve transparency and accountability. We spend about $7,500 a year, give or take, on requests, until the price was dropped recently. Even now we're on track to spend about that much this year. It's one area in which we have not cut back in terms of expenses.

Just to give you an idea about how important it is to us, it is very central to what we do every day. Familiarity with the Access to Information Act is a basic requirement for anyone who wants to work in our bureau.

We've had a lot of successes over the years in using the act for our common goal, which I think is to provoke national debate on public policy. The use of tasers by the RCMP, initial indications that the number of missing and murdered aboriginal women was more than just a coincidence, crucial information about Afghan detainees, and the sponsorship scandal are all stories that we not only broke but enhanced through our use of access to information. They are important, weighty stories that have changed Canadians' perception of how their country works.

We also used the act to expose the fact that the former international development minister, Bev Oda, spent $16 on a glass of orange juice, and that the former foreign affairs minister, John Baird, ordered unilingual gold-plated business cards.

You could argue that those are examples of frivolous requests, or you could argue that they gave Canadians important indications of the culture within cabinet and how cabinet ministers are treating taxpayers' dollars. Bev Oda had to resign over that story, so what is considered frivolous and vexatious is very much in the eye of the beholder and a very nebulous and subjective concept.

We are increasingly forced to rely on the Access to Information Act for basic facts that support or explain government policy, but there was a time when we could ask a bureaucrat or a politician for an explanation about just why we were heading in a certain direction. I'll give you an example from last year, when the government was moving to expand the Canada pension plan. It was only through the act that we were able to fully document why the government thought such a move was necessary—just basic facts. After the expansion was announced it was only through ATIP a year later that we were able to say exactly how much extra money the CPP Investment Board would have to invest. These are basic facts that should be readily available, but aren't.

Despite our successes in using the act, it's also a constant source of frustration for our reporters. Sometimes we wait years for the government to get back to us with documents. Frequently the documents we do get back have so much blacked out that they make almost no sense. That leads to a problem in and of itself. Especially when a reporter spends so much time digging into an issue and gets back a pile of documents that are all blacked out, there is a temptation to write something, a temptation to connect dots that perhaps shouldn't be connected. We try very hard not to do that, but it is a risk. Similarly, exemptions for cabinet confidence or advice to ministers are so pervasive that we suspect they're used cavalierly.

Consistency is another issue. For example, we ask routinely for lists of briefings. Sometimes we receive full lists with some information blacked out. Other times we receive only a partial list, but when MPs ask for the same thing through Order Paper questions, for example, they will get different responses altogether. They are usually more extensive and come much faster. We double up and do both, but it is baffling that they're different.

We're a bit alarmed when we look at the proposals on the table here and we see more ways for the government to turn us down and deny us information.

The requirement to meet three criteria for every request is detrimental to the goal of understanding government and reporting on policy. By requiring users of the act to know exactly what type of record they're looking for, on what subject matter, and during a specific time frame, the legislation would effectively eliminate many of our more general queries and attempts to find out what is actually going on within government. Only in rare cases do we know with that kind of detail what we are looking for, and even in those cases we would depend on a leak from within government, telling us to look for a certain specific document.

We're also concerned about the move toward proactive disclosure. As a matter of principle, we are always in favour of the government disclosing more information. However, in this case, there is often either no fixed timeline or the timelines are longer than the ones we face under the existing legislation. Also, with proactive disclosure it's the government that decides what will be disclosed, shutting out the ability of citizens to assert their own demands to know and understand what the government is up to. If proactive disclosure were backed up by the act, and ministers and departments were to understand that if they did not follow the disclosure rules there would be consequences through the Information Commissioner, then proactive disclosures would be far more meaningful.

Finally, we're concerned that the bill does not apply to ministers, MPs, senators, and the courts, as initially proposed. The government has promised repeatedly to be open by default, yet the bill does not allow for any further citizen-driven insights into these very important and influential offices.

We're intrigued with the measures that are proposed for the order-making powers, but as we read the bill, we suspect the Information Commissioner's new powers would be curtailed by the courts, and we take to heart her own testimony on this subject.

Your committee is doing very important work that will have a large influence on the quality of our own reporting in the future.

I was only asked to appear here on Friday, so I have a lot of information back in the office that I can share with you later. If you want some things in more detail, I'd be pleased to provide that. Besides that, I'd be pleased to take your questions.

[The Chair, Conservative, Bob Zimmer]

Thank you, Ms. Scoffield.

We'll open it up for questions.

First of all will be Mr. Erskine-Smith, for seven minutes.

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

Thanks very much.

I was trying to get at this with the previous panel, but you perhaps have identified the issues with clause 6 in terms of adding additional barriers.

Mr. Di Gangi, when you say this bill should be withdrawn and that it is going to add new barriers, you are specifically talking about clause 6. Is that fair?

[Peter Di Gangi]

In our brief we mentioned that we've only really had a chance to look at the bill recently. We haven't had the time we need to really give it a thorough review. Clause 6 is the one that jumps out most. Already, when we make requests for specific subject matter and state the type of record being requested and the period for which the record is being requested, we're getting stuff back from INAC saying, “We need 220 days.” They're saying it's an interference in government operations already.

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

Yes, we studied the issue many months ago. There is a phrase that repeatedly came back to us, “culture of delay”, and certainly we don't want to add things to the act that would increase and exacerbate that culture of delay.

When it comes to clause 6, you also highlighted concerns about proposed section 6.1. One thing you highlighted in your written brief was this notion that if information has already been provided, that could cause an additional barrier. Would there be any magic if we added the word “identical” in front of “information”, so that it would only preclude a response when something exactly the same had been provided? Would that be of assistance? If not—

[Peter Di Gangi]

Theoretically it's possible, sir, but again I'm just wondering why this stuff needs to be in there.

Our biggest issue right now is behavioural. It's the behaviour of officials in the way they deal with requests. I don't see anything in the bill that really speaks to the issue of changing behaviour. If you give people more tools, they will use them for what they know how to do, which is to stonewall.

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

They just deny, yes.

You said in the brief as well:

We agree with the Information Commissioner that these requirements will act as deterrents and are inappropriate in instances where First Nations researchers must investigate broadly, and in the absence of departmental finding aids, or access to file organizational structures.

On the latter part to that phrase, we've had some testimony about Info Source. Have you found it to be helpful? I note that it's in section 5 of the current act, which is fairly front and centre. Do you think we ought to be removing Info Source, or merely updating it for a digital environment?

[Peter Di Gangi]

It is probably appropriate to update it for a digital environment, but what we're talking about in that section of our presentation is a bit different. If you go to Library and Archives Canada, which is the repository of records that have been transferred from federal departments for historical purposes, they have finding aids. You can consult those finding aids. You can see what the file structures are. You can dig down and identify the material you want before you order it. You don't get access to that in a federal department.

INAC has the second-largest holdings of historical material next to the archives, yet you don't get access to their file system. You don't get to be able to do searches on their database. You are entirely reliant on their staff, and that's what we were getting at. When you start off with a claim, you don't really know the nature and scope of it until you do the research, so your initial requests have to be general.

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

It's hard to know what's there if it's not itemized in a clear way.

[Peter Di Gangi]

They don't tell you.

Those are all issues that need to be worked out.

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

Okay.

Ms. Scoffield, I'll go through some of your concerns.

In terms of “frivolous or vexatious”, I put it to the previous panel but I'll put it to you as well: if the Information Commissioner has authority to deem that the department has improperly called something vexatious or frivolous and to order that it be disclosed, would that satisfy your concern?

[Heather Scoffield]

Not really. If we're required to jump through those hoops initially and explain why we want something and have to name it, then even if the Information Commissioner can go back at them—

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

No, I don't mean those requirements.

We heard a lot of testimony when we were first studying the act that there were instances of certain individuals—not reporters, to our knowledge—putting many requests in and bogging the system down in some ways. If we were able to take those requests out of the system and ensure that there's a safeguard there with the Information Commissioner, it was certainly one of our recommendations. There has been some blowback on it. I don't fully understand it, as long as there is a safeguard there through the Information Commissioner and ultimately the courts. It's separate from the section 6 concerns.

[Heather Scoffield]

Right. If she were able to come in and say, “Yes, this is wrong—”

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

Yes. Exactly.

[Heather Scoffield]

I would caution, though, that there has to be a definition of what would be unacceptable, because as I was saying, “vexatious” is a very subjective concept.

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

Well, it can be. In my previous world of civil procedure, we don't define it. It's the courts that define it. Thus, one recommendation of the Information Commissioner that I think makes a lot of sense is this notion of published decisions. If she were able to publish decisions in relation to her findings of vexatious and whether the department has appropriately found something vexatious or frivolous, that might address your concerns as well. That definition could evolve over time, and we would be able to see examples of it in her decisions.

[Heather Scoffield]

Yes, that could be.

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

You also indicate authority over proactive disclosure. I wonder how that might work in practice.

There are certain items that have to be proactively disclosed. Is it the concern that departments are not disclosing them or that they would be redacting information, or is it both?

[Heather Scoffield]

Do you mean as it stands, in the bill?