Information & Ethics Committee on Nov. 6th, 2017

[The Chair, Conservative, Bob Zimmer]

Okay.

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

Go ahead.

[Ruth Naylor, Executive Director, Information and Privacy Policy Division, Chief Information Officer Branch, Treasury Board Secretariat]

In fact, we have counsel here today, so if you give me a second, we'll get you an answer for that. I just want to make sure that we have the best answer possible for you.

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

Okay.

[Ruth Naylor]

Thank you for your indulgence, Mr. Chair.

The best answer we can give you is that the duty to assist would require the ATIP coordinator to clarify with the requester, to try to get as much information as possible there, and then they'd have an obligation to proceed with the best information they have.

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

I understand that to be the case, but if proposed paragraphs 6(a), (b), and (c) are not met, then they can decline the request.

[Ruth Naylor]

If the request would be impossible to fulfill, but.... There's already policy direction, which would pertain in the new world as well, which would say that if you have enough information to fulfill the request, the request has to be fulfilled, but—

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

Correct me if I'm wrong—I'm sorry for this—but that policy guidance doesn't overrule legislation. If the legislation specifically says that what is in proposed paragraphs 6(a), (b), and (c) “shall” be provided, that actually overrides any policy guidance. It has to. A department could, in accordance with this legislation, say no to a requester if the request doesn't meet 6(a), (b), and (c), irrespective of anything in proposed section 6.1.

I just want to make sure. Is that correct?

[Ruth Naylor]

The policy guidance helps an institution interpret the legislation, so that interpretation would still be the case, which is that as long as there is then.... These pieces of information are requested, and as long as there is “sufficient detail to enable an experienced employee of the institution to identify the record with a reasonable effort”, our policies would say to proceed with the request.

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

If (a), (b), and (c) are all provided?

[Ruth Naylor]

Yes, to the best of the requester's ability. Yes.

[The Chair, Conservative, Bob Zimmer]

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

With great respect, it doesn't say that. It says they “shall set out the following” three things. That's the additional change.

The policy guidance, which may or may not be the case tomorrow or the day after or five years from now, may say something different. We're here to pass legislation, and those are three mandatory requirements, as plain as can be. They amend a section that simply says all you need to do is make a request “in writing” and let somebody who has control of the record and is an experienced person identify the record “with reasonable effort”. That's how it has been for some 30 years.

This is clearly a regressive step. It doesn't say “may”. It requires you to do the three things that are listed. Policy guidance comes and goes.

[The Chair, Conservative, Bob Zimmer]

Mr. Baylis.

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

If I understand it, and if we take a real-world example, the idea behind this change was to make the departments more efficient, and when you look at it, it's a very reasonable three things that they're asking for. However, this being said, there might be certain instances where the requester is not able to provide those. We accept that.

If that happens, would it not fall, then, to the duty to assist, wherein the person receiving this request would say that it's not meeting the criteria, but they have a duty to assist; ergo, they know what the person is looking for, and they're looking for such-and-such a document. The person can then inform them to write it down on their request and then will be able to provide it for them.

Would the duty to assist be such that if an incomplete request is there, the person receiving that request must assist that person by requesting to fill in the data? They cannot use it.... As to what my colleague Nathaniel said, it is our intention to remove the right to deny that request based on if they don't have the full information. If we take that part away in our next step, the department cannot use the fact that it's incomplete to deny the request.

[Ruth Naylor]

That's correct. The duty to assist would require the institution to work with the requester to try to fill in any blanks.

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

That duty to request is part of the law, right? That will not change.

[Ruth Naylor]

That is already in the Access to Information Act.

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

That's not going to be an interpretation document that someone could change a couple of years from now. That is mandated.

[Ruth Naylor]

Yes, in subsection 4(2.1). It's set out in the law now.

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

Yes, so the valid concern that Mr. Rankin is raising would not in fact play itself out. As he mentioned, the sponsorship scandal could not have been done, but in this case, because of the duty to assist and the fact that a request is incomplete cannot be used as a reason to deny the request, it could work its way through the system nonetheless. All this would actually do is help us to be more proficient and effective in other requests.

[Ruth Naylor]

That's the intent of asking for that information from requesters, and without proposed paragraph 6.1(1)(a), that situation that you're asking about—

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

If we remove proposed paragraph 6.1(1)(a)—

[Ruth Naylor]

Then that's correct.

[The Chair, Conservative, Bob Zimmer]

Ms. May.