Information & Ethics Committee on Nov. 6th, 2017

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

Certainly, looking at the testimony from the Information Commissioner, this section was found to be most objectionable. I'm looking for which Liberal amendment is a government amendment, as opposed to a Liberal amendment, which is going to be defeated. Perhaps if someone could direct me to which one you believe will modify section 6 so that we don't have the impact that, unless someone essentially knows everything about the record they're curious about before they ask for it, they stand at risk of being denied.

The Information Commissioner said that records may change from a handwritten form to a digital form and back again. People may not know the exact date.

I want some clarification before dispensing with this, and my amendment will fall in the same category. Which amendment is essentially now a government amendment attempting to fix this problem?

[The Chair, Conservative, Bob Zimmer]

Do you want to respond, Mr. Erskine-Smith? You're next on the order. Would Mr. Baylis like to respond? It's up to you.

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

That's a valid question, because the next amendment coming up is on proposed paragraph 6.1(1)(a), I believe. There was, in what was originally put forth, the opportunity to deny this request if it wasn't complete, but it is our intention in the next step to remove that ability to use it as a denial. If we didn't remove that, then the concerns that Mr. Rankin brought up would be valid, because it could be used as an opportunity to deny the request. If we make this change coming up next, then it cannot be used as a way of denying the request.

[The Chair, Conservative, Bob Zimmer]

Go ahead, Ms. May. Do you want to respond? You asked the question.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I just want to clarify which amendment is it that you believe does that.

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

The next amendment that we're going to propose. It's coming up, LIB-3.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Okay, so we move to....

[The Chair, Conservative, Bob Zimmer]

Mr. Erskine-Smith.

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

I think Frank raises a really good point about refusal.

I just want to work through this. If we amend proposed section 6.1, as my colleague Mr. Saini has in amendment LIB-3, that will remove proposed paragraph 6.1(1)(a), and it would give the Information Commissioner the authority to grant departments the ability to refuse, which is an additional protection.

That authority doesn't relate to section 6 at all, so my understanding is—and correct me if I'm wrong—if someone doesn't make a request in writing, that request doesn't need to be fulfilled. Is that right? If that's the case, what's the difference between that requirement and the requirement for proposed paragraphs (a), (b), and (c)? Why is one sufficient to refuse a request, and the other is not, based on how this legislation is drafted?

[Ruth Naylor]

The best answer I can give you to that is that the need to receive a request in writing is necessary administratively for the system to operate. If the requester provides (a), (b), and (c) to the best of their ability, an institution is going to be required to respond to that request.

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

Required by policy advice or by legislation?

[Ruth Naylor]

Required by policy advice in addition to what we see set out here. There are supporting documents that give direction to institutions on how to apply the act.

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

If the next government changes that policy advice, and this legislation stands, an individual can have their request rejected if they don't meet (a), (b), and (c) as this legislation is written.

[The Chair, Conservative, Bob Zimmer]

Mr. Kent.

[Peter Kent, Conservative, Thornhill, ON]

I'd like to refer again to the commissioner herself, who said that these requirements, as Mr. Rankin pointed out.... Again, given the judgment of the day, it doesn't matter what may be intended, but the commissioner herself said these three conditions would have blocked Canadians' knowledge of the sponsorship scandal.

I think the amendment to assist is certainly a worthy one, but these three paragraphs, (a), (b), and (c), could also be removed if the intention is as the government claims.

[The Chair, Conservative, Bob Zimmer]

Mr. Baylis.

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

To Mr. Kent's point, proposed paragraph 6.1(1)(a), and this is the document as it was presented—and the Information Commissioner is correct—states very clearly that, if the request does not meet the requirements set out in section 6, it can be used to deny access. That's stated very clearly. That being the case, our government agrees with the Information Commissioner. It's going to remove proposed paragraph 6.1(1)(a) so that it cannot be used to deny access.

We intend to balance efficacy by asking for this information. Nonetheless, if it's not provided, it cannot be used to deny access.

The legal right and requirement of duty to assist would be such that even an incomplete section 6 would be assisted to be complete to move forward.

[The Chair, Conservative, Bob Zimmer]

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

I think it is positive that the government is prepared to delete this odious section that allows the government to reject requests simply because they lack the specific subject matter, the type, or the period. I think that is progress.

First, on this notion that somehow we could be happy that there's a duty to assist, I would point out that the remedy is a little bit indirect. If a public servant doesn't make every reasonable effort to assist the person with the request, the remedy is probably a disciplinary matter. I suspect it would be something indirect like that. Meanwhile, people aren't getting the records they requested and information delayed is information denied. Looking at that as the hook to say that everything is fine now is something I don't understand.

Second, these things you are now requiring—identify the subject matter, the type of record, and the period—are obviously to assist the public servant in discharging his or her responsibility to identify the record, but the section that's going to remain, 6.1, deals with the problem of large volumes or frivolous or vexatious requests, or people who've already been given the record. In keeping those things, it's hard for me to understand why you still need to have the things in paragraphs (a), (b), and (c), which put an obstacle in front of the right to know. They add nothing except an obstacle for reasons I do not understand.

[The Chair, Conservative, Bob Zimmer]

Mr. Baylis.

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

I have two points to answer Mr. Rankin.

First, if you have an incompetent bureaucrat, they may be incompetent, quite frankly, in their duty to assist. They may have all the information and be incompetent in finding it. I don't think it's useful to criticize a bill because the people who are going to implement it might be incompetent. They might be incompetent in any number of ways. But that's not our role here. Our role is to write proper bills with the assumption that the bureaucracy is competent. So your argument does not hold water.

The second point is about the request for this information. We also heard clearly that timeliness is important. We heard time and time again that the speed of answering requests is important. Now, what's being asked for in section 6—which is not mandatory in being able to deny a request—is to specify the subject matter. What are you looking for, and what is the subject matter? What is the record you're looking for and the period? These are simple things. If you're not able to provide that, through the duty to assist, you'll be assisted in providing it. You could say that the guy helping may not be that good at helping. Okay. The guy looking may not be that good at looking. There are any number of reasons that bureaucracy may not work properly, but that's not how you address the bill.

[The Chair, Conservative, Bob Zimmer]

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

You're the one, with respect, who said we should look to the duty of assistance by public servants to backstop this regressive measure, which was described as such not by me but by the commissioner. The duty to assist is only as good as the individual who is there. That individual may consistently thwart requests, I don't know. All I know is that the remedy will be so long in the disciplinary process that The Globe and Mail reporter who sought that article may have long since moved on. So I don't accept that.

Also, to suggest that the type of record and the period being requested is no big deal is wrong. It is a very big deal because you don't know. That's the point the commissioner made so powerfully before this very committee. You think you can rely on the good faith of some junior official who may not want the government to be embarrassed by the disclosure of records showing misspending or maladministration. That's the whole point of this bill. It's not to make things easy for the government. It's to give citizens what the courts have described as a quasi-constitutional right to know in our democracy. All this does, with great respect, is put obstacles in the way that are totally unnecessary and, as the commissioner said, “regressive”.

[The Chair, Conservative, Bob Zimmer]

Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I appreciate the latitude, Mr. Chair, because my amendments speak to this very issue.

The reason I asked earlier to be directed to the amendment from the government that attempted to solve the problem that was presented in clause 6 and identified so forcefully by many witnesses, including the Information Commissioner, was that LIB-3 does not do what I believe the Liberals think it will do.

If you read proposed section 6 by itself and you imagine statutory interpretation, you have mandatory requirements in several places. The request “shall” be made in writing. It “shall” set forth the following information and provide sufficient detail. There are a lot of requirements there.

I don't believe a government department will feel confident that it has to go to the Information Commissioner to get permission in order to say, “We've read the provision. We don't have to answer this request. It's very clear—black and white—that in requests for access to a record, the person requesting it shall do the following things mandatorily.”

The section that follows, proposed section 6.1, which is the only section being amended at this point—and I hope you'll consider my amendments—does create a discretionary opportunity:

The head of a government institution may, before giving a person access to a record or refusing to do so,

With that—before refusing to do so—the requirement of a head of government is discretionary. They “may” decide for these reasons.

There are absolute requirements for a person asking for the record under proposed section 6. They are required to have it in writing. They are required to speak to proposed paragraphs 6(a), (b), and (c) and to provide sufficient detail. Those are mandatory requirements of this act that I don't believe are obviated by the amendment put forward in LIB-3.

I think there's good intention here, so I hope perhaps we can work together and fix it.