Information & Ethics Committee on Oct. 25th, 2017

[Drew McArthur]

No. It is not typically based on time, although if a public body does not respond to an access request within the amount of time specified in the legislation, we may get a complaint. We would then investigate that complaint to determine that they were not responsive in a particular period of time.

In our office, the processing of a complaint is going to depend on two things. It's going to depend on the parties to the complaint, but each one is given a certain amount of time to provide information in the mediation process. We ensure that both parties have an opportunity to review each other's submissions. From that point in time, an investigator will make a recommendation. Either party can then request a review. As I said, it's only maybe between 0% and 5% that actually go to the request for the review, and a separate adjudication process or an order is the result. The order will be to the public body to either disclose these records or not disclose them, if we are in agreement with what the public body says. It will be either one or the other.

[Peter Kent, Conservative, Thornhill, ON]

Is the appeal to you?

[Drew McArthur]

That is correct. The request for review comes to my office. There is a third and final level of appeal, and that is to the courts, if either party believes that they don't like our order. Our orders can be judicially reviewed.

[Peter Kent, Conservative, Thornhill, ON]

Does that happen on a frequent basis or only occasionally?

[Drew McArthur]

In the last 19 years, we've had 1,094 orders. I don't know the total number of judicial reviews on those, but I'm going to guess it's in the range of, say, 20%.

[Peter Kent, Conservative, Thornhill, ON]

Thank you.

[The Chair, Conservative, Bob Zimmer]

Thank you, MP Kent.

Next up is MP Cullen for five minutes.

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

Thank you, Chair. I'll try to go quickly.

I was looking through, Mr. McArthur, your office's recent records. You had about 20,000 requests over a five-year stretch. Only 20 of those went to an appeal to the commissioner after the request had been made. There was a complaint by the public, and you folks got involved.

I was looking at a recent survey—I don't know if it was by Mr. Nick Taylor-Vaisey's organization or another—looking at grading all the provinces and the federal government. You got a B. You didn't get one of the As that four other provinces got, but four got Bs, and two Cs, and three unfortunately got Ds. The loser in this was the federal government, which got an F, and was the worst.

I'm wondering about this condition of duty to assist. I have an access to information request that was done by a Canadian into Finance Canada asking for information with respect to the divestment of the finance minister. They wrote back saying, ”I must inform you that, after a thorough search, no records exist in the Department of Finance Canada concerning this request.”

Is the duty to assist, then, at that point when the officer would then find out where the records do exist, then assist the applicant in finding out where they are? Because that's where it ends. That's the dead end federally.

Provincially if someone wrote to Finance, and the records weren't in Finance, but they were over in the ethics department or some other department, would the duty to assist require that officer to then assist the public to get to the place where the records are?

[Drew McArthur]

One of the advantages in the B.C. system, I will say, is that the processing of access requests is done through a central group. It happens to be located in the Ministry of Citizens' Services right now. It was in the Ministry of Finance. That group is typically very familiar with where the records are going to be held. They put out the call. They get the access request, and they put out the call to the appropriate ministries.

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

Federally it goes right to the department. The department says, “All right, it's not here.”

[Drew McArthur]

If that happens in B.C., and that department says there's no request, and the individual doesn't agree with that, they can come to my office. We will determine whether or not the government had done an adequate search.

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

We all hope for good intentions by everybody in government and all folks working in politics.

I did an ATIP on the sinking of the Nathan E. Stewart. You'll remember the ship that went down near Bella Bella. This is what I got back. This is the unified command situation report, by the way, a publicly available document, but my ATIP looks likes this. What happened? When did it happen? Who was there? Who didn't show up? I can find these, but my ATIP proved this, hundreds of pages of this.

I have a question for Mr. Taylor-Vaisey.

Is it fair to say access delayed can be access denied? If a government simply doesn't want something to be revealed, be it embarrassing or costly in some way, is simply just running the process...? We heard about four years waiting on scientists being muzzled, and two years since this government took power....

Is that another form of accessibility delayed? Is transparency delayed transparency denied? Are those fair statements?

Does Bill C- 58 make things worse or better as it's written right now?

[Nick Taylor-Vaisey]

I think those are fair statements. I mean, as you know, if we put ourselves in the shoes of a journalist, they report stories all the time that reach back into history as long as that history is newsworthy and in the public interest. We're patient. We wait out these requests as long as it's feasible, given the resources of our newsrooms, which, as everyone around the table knows, are typically shrinking. There's a time limit on everything.

If a government loses power, and then another government gains power, and three years later there's an access to information request that comes back that has some pretty vital information in the public interest about the last government's actions, we might still report the story, but it sure would have been nice if we could have reported the story three years ago.

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

While they're still in office.

I have a question for our friends here. I'm looking at this notion.... You identified flaws in the bill as it stands right now. First of all, I don't know if you've read the Information Commissioner's recommendations to the committee on ways to fix it...access to the PMO.... You've got it. Do you support what she's recommended to the committee broadly?

Okay, that was a nod yes.

You mentioned that one good thing is that the mandate letters are public. I'm reading the mandate letter for Mr. Brison, who sponsored this bill, one of the few witnesses we've had who fully likes it. In the end, his mandate letter says, “...the Information Commissioner is empowered to order government information to be released and that the Act applies appropriately to the Prime Minister’s and Ministers’ Offices....”

In his mandate letter that is now going to be by default publicly disclosed, and that is good. They're not following.... There's some irony here somewhere that the one thing that's going to be made public is an example of one thing that they're just not following in the design of their own Bill C-58.

My question is the same for you. Does Bill C-58 move us forward? Does it move us backwards as it is? What would be the one or two main amendments to give it some chance of improving access to information for Canadians?

[The Chair, Conservative, Bob Zimmer]

We're actually out of time, but I'll let you answer quickly.

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

Oh, the preamble was too long.

[Kathleen Walsh]

You mentioned timelines. I think that certainly moves us backwards. The same thing applies from a journalist perspective to an advocacy perspective: timeliness is of the essence. That would be a major change that we would like to see.

Again, in terms of the clause 6 requirements on specifics in applying, we'd like to see that changed as well.

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

Thank you very much.

Thank you, Chair, for the indulgence.

[The Chair, Conservative, Bob Zimmer]

Thank you, MP Cullen.

The last question goes to Mr. Erskine-Smith. You have five minutes.

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

Thanks very much.

I'll start with you, Mr. McArthur.

Picking up on clause 6, the language that you indicated exists in B.C.'s legislation is more general in nature. It's not quite as possible to deny, based on a strict interpretation of the rule.

I take it from your submission that you might also agree with Ms. Walsh and Ms. Gibbs that we ought to remove clause 6.

Would that be fair?

[Drew McArthur]

That would be fair.

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

In B.C.'s legislation, you mentioned the reasonableness review. It's a JR with reasonableness There are other judicial reviews that are de novo.

The Information Commissioner has indicated some concern about the ability to enforce the order-making powers that should be granted pursuant to Bill C-58. In your legislation, I think it's section 59.01, it explicitly says, “the commissioner may file a certified copy of an order”.

Do you think that the federal commissioner ought to have the same power?

[Drew McArthur]

I do agree.

Having the ability to file that with the court makes it an enforceable order. There is always a point of review for a public body or an applicant, an opportunity for judicial review. However, having an enforceable order is a critical component to having order-making powers.

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

Do you publish the orders?

[Drew McArthur]

We do.