Evidence of meeting #73 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 c-58.
A recording is available from Parliament.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Is there legislative authority for doing so, or do you simply do it by virtue of practice?
Acting Commissioner, Office of the Information and Privacy Commissioner for British Columbia
I don't know the answer to that question. We've been doing it for as many years as I've been involved and as many years as I recall.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Okay, I open this to Evidence for Democracy, as well, this notion of proactive disclosure and oversight. The Information Commissioner recommended that we delete proposed section 91. It would preclude the Information Commissioner's authority for having oversight with respect to proactive disclosure.
I'm wondering what that looks like. What does it look like for her to review proactive disclosure?
There are certain timelines. For mandate letters, there's no timeline, from what I can tell, but for other briefing materials, there are between 30-day and 120-day timelines, depending upon the content of the briefing materials.
Is it an enforcement of timelines? Is it if things are redacted? How would we give the Information Commissioner appropriate authority over proactive disclosure?
Director of Policy, Evidence for Democracy
That's a great question.
I think that timelines are certainly part of it. However, without oversight, our concern is that there would be materials that would never be proactively disclosed. We wouldn't know, and we potentially couldn't find that.
What would oversight look like? I'd have to think on that and get back to you, but I think timelines are certainly part of it, and the content of what is actually released.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Which timelines would you recommend changing? Would it be imposing a timeline, perhaps on—
Director of Policy, Evidence for Democracy
On mandate letters. That would be helpful.
It seems right now that it's quite immediate. A timeline on mandate letters would be quite helpful. Also, shortening the 120 days, obviously depending on the content, if possible, would be great.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
On vexatious and bad faith, in B.C., you indicated that departments have to apply to the commissioner's office in order for requests to be disregarded, so you don't have a vexatious rule.
Acting Commissioner, Office of the Information and Privacy Commissioner for British Columbia
Yes, we do.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
What other factors are considered in agreeing that a department ought not to fulfill a request?
Acting Commissioner, Office of the Information and Privacy Commissioner for British Columbia
Over the years, we have established jurisprudence in our orders on how we determine “frivolous” and “vexatious”. There are very few circumstances where that is the final result.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
If something is frivolous and vexatious, you can say to a department that they don't have to fulfill that request.
Are there other instances where you would say to the department that they don't have to fulfill that request, or is it simply vexatious and frivolous?
Acting Commissioner, Office of the Information and Privacy Commissioner for British Columbia
No, there are many other reasons under the act where access is—
Acting Commissioner, Office of the Information and Privacy Commissioner for British Columbia
Exactly.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Other than exemptions, I guess, where there is a legitimate request pursuant to the act, but it's a—
Acting Commissioner, Office of the Information and Privacy Commissioner for British Columbia
Well, if it's solicitor-client privileged information.
Acting Commissioner, Office of the Information and Privacy Commissioner for British Columbia
The list is long.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Taking Mr. McArthur's point and putting it to Evidence for Democracy, you indicated concerns about vexatious and bad faith. It occurs to me that the appropriate way is not to try to delineate in legislation but to allow the commissioner's orders to create a jurisprudence over time. We do it with civil procedure. It seems to be done in B.C. when it comes to access to information.
What might you have to say to that?
Executive Director, Evidence for Democracy
Our concern isn't so much about that being included. It's about who makes that decision. Our concern is that as it's stated, it's actually the departments and agencies that can decide that; whereas we feel that these requests should have to go to the Information Commissioner, who would then be able to make that decision.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Do you mean even if there are order-making powers, where the commissioner can rule that the department has inappropriately deemed it to be vexatious and frivolous? That doesn't strike me as—
Executive Director, Evidence for Democracy
I still think so. I think that would be a shorter timeline than having it denied and then having to go through that route.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Okay.
The final question I have is with respect to the duty to assist. There is a duty to assist in the federal legislation. Perhaps you could point me to the section in the legislation, and I can compare—
Acting Commissioner, Office of the Information and Privacy Commissioner for British Columbia
I think it's section 6 in the B.C. legislation.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Great. I'll compare it on my own then and see the difference in language and whether yours is more forceful.
Thanks very much.