Information & Ethics Committee on Nov. 6th, 2017

[The Chair, Conservative, Bob Zimmer]

Mr. Erskine-Smith.

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

I just have one other question. If proposed paragraph 6.1(1)(a) were to stay in the act, and the Information Commissioner were to have that discretionary authority to deny government institutions the ability to refuse, wouldn't that actually create more protection than deleting proposed paragraph 6.1(1)(a) and leaving proposed section 6 as is? At least then we're giving the Information Commissioner the authority to determine whether refusal can be granted, whereas right now, removing proposed paragraph 6.1(1)(a) and leaving in proposed paragraphs 6(a), (b), and (c), the Information Commissioner has nothing to say to it.

I could be wrong, but that would be my legal interpretation.

[Ruth Naylor]

Just to clarify, the requester has a right to complain to the Information Commissioner now, under the current proposed section 6, if they feel that an institution, inappropriately, is not responding to their request. A complaint could be made. Similarly, in the future, if the act is amended as proposed here, if an individual feels that an institution isn't fairly making a determination about how to respond to their request, they have a right to complain to the Information Commissioner. So the Information Commissioner would have oversight over any decisions here.

Just to give an example with regard to “type of record being requested”, typically an institution is looking for something from the requester. Do you want all emails? Do you just want briefing notes? Are you looking only for the paper records that we have? Do you want us to search our emails? The institution is looking for enough information to provide the requester with what they need.

Now, if someone's unable to respond to that, the duty to assist doesn't resolve that, and there's a sense on the part of the requester that they're not getting the service they should be getting, they have an ability to make a complaint to the commissioner.

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

I guess what I was trying to drive at was if we remove proposed paragraph 6.1(1)(a), the department can refuse if (a), (b), and (c) are not provided. You're saying they won't, but under the legislation they appear to be able to. But if we were to keep proposed paragraph 6.1(1)(a) and add that the Information Commissioner had the discretion to grant the ability to refuse, that would seem to be more protection.

Again, though, maybe I'm wrong.

[Ruth Naylor]

I won't speak to what's more protection or not, but I agree with you that this would be the effect of keeping both in. You're talking about a situation where the Information Commissioner must approve the use of proposed paragraph 6.1(1)(a).

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

Okay. I think I understand. Thanks very much.

[Ruth Naylor]

Thank you.

[The Chair, Conservative, Bob Zimmer]

Is there any more debate on NDP-4?

(Amendment negatived [See Minutes of Proceedings])

Just for reference, Ms. May's motion is PV-2. PV-2 is identical to the NDP motion we just defeated, and therefore it's defeated.

Next is Liberal amendment 3.

Mr. Saini.

[Raj Saini, Liberal, Kitchener Centre, ON]

I want to make sure that the department will have a very narrow power to decline a request to release information. I think this may answer some of the questions that have already been discussed.

[The Chair, Conservative, Bob Zimmer]

If adopted, amendments NDP-5, NDP-6, PV-3, and PV-4 cannot be moved because of a line conflict.

(Amendment agreed to [See Minutes of Proceedings])

We're going to go all the way down to LIB-4.

Mr. Erskine-Smith.

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

This is to amend 6.1(1)(b). There was some concern about the specific language used, as to whether someone had already received the record. We went back, and the Information Commissioner had actually proposed different language in a previous report. That's the language I've used.

(Amendment agreed to [See Minutes of Proceedings])

[The Chair, Conservative, Bob Zimmer]

We'll move to PV-5.

Ms. May.

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

This is based on the recommendation, again, from the Information Commissioner that we delete lines 26 to 31, which deal with records that were frivolous or a large number of records that would be unreasonable. Per the Information Commissioner's recommendation, this amendment is very straightforward. It deletes the lines that include “the request is for such a large number of records or necessitates a search through such a large number of records that acting on the request would unreasonably interfere” and so on.

Thank you.

(Amendment negatived [See Minutes of Proceedings])

[The Chair, Conservative, Bob Zimmer]

Next is LIB-4.1

Mr. Saini.

[Raj Saini, Liberal, Kitchener Centre, ON]

The amendment reads:

That Bill C-58, in clause 6, be amended by adding after line 34 on page 3 the following:

Limitation (1.1) The head of a government institution is not authorized under paragraph (1)(b) to decline to act on a person's request for a record for the sole reason that the information contained in it has been published under Part 2.

[The Chair, Conservative, Bob Zimmer]

Is there any more to say, Mr. Saini?

We've all seen the amendment. We received it before the meeting.

(Amendment agreed to)

Shall clause 6 carry?

Go ahead, Mr. Erskine-Smith.

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

Ms. May had an amendment to delete 6.1(1)(c). I understand the reasons for doing so, but in some cases it may slow the machinery of government down unduly. I think refusal should be granted. My only concern is that there's no balance between the large number of records and the fact that it would undermine government operations and the public interest. I don't expect this to pass, but I would put it forward for debate. I would move that we amend 6.1(3) to read, “In exercising discretion pursuant to 6.1(1)(a), the Information Commissioner shall balance the reasons for non-disclosure against the public interest in the disclosure of any records”.

Again, this is only because I think that Ms. May raised a real concern and it's worth discussing if that's a possible solution. I'm putting it on the floor now. I don't expect it to pass, but it's worth talking about.

[The Chair, Conservative, Bob Zimmer]

Okay, for the sake of the committee, Mr. Erskine-Smith, would you mind repeating it just a little more slowly so we can all—

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

You have my copy.

[The Chair, Conservative, Bob Zimmer]

We can read it then.

I'll read out the amendment by Mr. Erskine-Smith: “In exercising discretion pursuant to proposed paragraph 6.1(1)(a)”—

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

Sorry, it should be proposed subsection 6.1(1), not paragraph (a).

[The Chair, Conservative, Bob Zimmer]

That's clear as mud.

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

We've deleted proposed paragraph 6.1(1)(a), so proposed paragraphs 6.1(1)(b), (c), and (d) remain, which will now be 6.1(1)(a), (b), (c). But they all relate to reasons for refusal, proposed subsection 6.1(1). So remove the reference to paragraph (a).

[The Chair, Conservative, Bob Zimmer]

Okay, let's do this again. Hopefully I have it right this time. It's a potential amendment to proposed subsection 6.1(3) and reads: “In exercising discretion pursuant to 6.1(1), the Information Commissioner shall balance the reasons for non-disclosure against the public interest in the disclosure of any records.”

I can repeat that if you need me to.

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

Go slowly.