Information & Ethics Committee on Oct. 30th, 2017

[Robert Mundie]

If I could raise a different point, it's important to realize that for almost every government department or agency, it's the same people who are working on both the records for access to information as well as for privacy.

One of the only issues I would have is if the Information Commissioner orders a department to proceed with a given request that could have an impact on our ability to address other requests in a timely fashion, which could be both on the access to information and the privacy side.

It's always a trade-off between the volumes on each side. You try your best to address the time constraints on both sides. It would depend on the degree to which that order-issuing power was exercised.

[Peter Kent, Conservative, Thornhill, ON]

Briefly, there's been a great deal of discussion over frivolous and vexatious and good faith.

I wonder if, rather than going into a long prologue, you could address your perceptions of frivolous and vexatious requests and in requests made in good faith, as referenced in Bill C-58.

Is frivolous and vexatious an issue for you today?

[Michael Olsen]

For the most part, I would hesitate to use the word “frivolous”. I think that's wrong. “Vexatious” might be a little bit closer, but I certainly agree with my colleague's view that sometimes, perhaps increasingly, there are fishing expeditions. People make a request for email subject headers. They're not requesting information. They want to know what's on the menu before they decide what to order. In this context, I'm not sure that's what the act was originally intended for. Certainly the act goes back to 1983. There was no email at that point, so I don't think that's what was intended.

I think to the extent that we can avoid requests like that.... They take up a lot of the time of the people who are being requested and also the people processing the ATIP request, and it would be nice to be able to limit those in some ways.

[The Chair, Conservative, Bob Zimmer]

Time's up. Next is MP Cullen, for seven minutes.

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

Thank you, Chair.

Thank you to our witnesses.

Let me pick up on that last stream there, Mr. Olsen. In your own purview in having watched the act perform, would you deem somebody doing what you called “fishing”, looking up subject headers, as frivolous or vexatious?

[Michael Olsen]

It could be.

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

Isn't that sometimes the nature, though, of trying to get access to information from government?

One of the concerns that's been raised by journalist groups, advocacy groups, and first nations organizations is that sometimes knowing exactly the document you're looking for is rarely the case for Canadians trying to get some information that they are entitled to.

I'm looking back at some of the access to information requests that have revealed important public policy decisions, Afghan detainee transfers, the F-35 purchases, and those types of things. The person requesting the information didn't know specifically what document they were looking for and had to spread that net first before they could start to focus in.

Is not the duty to assist where that starts to come into play? If somebody has gone so broad, don't you ask what exactly they're after, and then you start to refine the search that way?

I think there's a false.... I'll let you answer that question first.

[Michael Olsen]

When we get requests for email subject headers of 100 or 150 varied employees for a period of three or four months—

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

Right.

[Michael Olsen]

—and there's no real strategy to this request—

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

Right.

[Michael Olsen]

—in these requests, if I can put it that way, there's no specific information or even a specific subject that is being looked at.

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

But is that not where the duty to assist kicks in? Then you're able to communicate with the requester and say, “You've done a very broad ask. Is there something we can help you with in terms of focusing your efforts?” Doesn't it work that way?

[Michael Olsen]

If someone wants to know something about the permanent residence program, sure, we'd be happy to help, and we have not turned down such requests in the past.

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

What percentage—and this is going to be anecdotal—or how many of these requests would you deem as vexatious?

There's this notion out there that there are people just trying to muck up the wheels of government or trying to cause pain, but we've heard from advocates of access to information that it's quite a rare circumstance. Maybe there are Canadians out there who just like to cause trouble and want to use ATIP because they're bored, but I think the vast majority we hear from are doing this in some effort to pry government information from government.

[Michael Olsen]

There are a handful per year.

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

Right. Are they repeat offenders, if we could use that term—specific people who just keep going at CBSA and various agencies?

[Michael Olsen]

Not necessarily. There are a handful per year.

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

You can understand the concerns about who gets to interpret these very broad terms.

[Michael Olsen]

Of course.

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

If somebody has a piece of information they suspect will be damaging to their department or to their minister, there may be a temptation, which we're concerned about in future, of their saying they deem that request to be frivolous or vexatious.

Vexation is in the eye of the beholder, as we all know, so could it be true in the application of this act?

[Michael Olsen]

We would rely on guidance from the Treasury Board Secretariat in that regard. We're not about to set our own guidance.

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

I'm not sure that's [Inaudible--Editor] though, if you follow me, if they may be concerned about the same embarrassing documents being slipped out.

The ministers were before us. They tried to make an equivalency between proactive disclosure and access to information, as if they were equivalent.

I'd offer that those are false equivalents. Who's going to argue against the notion of government offering up more information by default? However, when we we seek to correct government behaviour, curb waste, or any of those things that happen in government, it's a very large institution with a very large budget. The idea that they're equivalent seems like a false equivalency in my mind.

Mr. Mundie, you seem to think Bill C-58 is okay. I just went through the commissioner's report and added up as she went through it piece by piece. She saw 13 categories in this bill as regressive, three of them as neutral, two of them positive, and two of them outstanding.

Is she wrong? You seem to pass it, to think it seems okay. She's looking at it from the perspective of the public seeking information. She sees 13 negative, three neutral, two positive, two outstanding. Is she wrong?

[Robert Mundie]

I don't have an opinion on whether she's right or wrong. I'm looking at it in terms of our responsibilities under the act and our ability to fulfill our responsibilities under that act. That's the perspective I take.

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

And that perspective is from someone who has to fulfill these access to information requests.