Information & Ethics Committee on April 19th, 2016

[Sean Holman]

I think that giving the commissioner order-making power would be a good idea. However, to use a sports analogy, it's great to give the referee more authority to clamp down on cheaters, but when the rules of the game are unfair, it is more important to change the rules of the game. By that I mean the exemptions and exclusions in the Access to Information Act. That is the principle problem. The Information Commissioner can have all the power you want to give her, but at the end of the day it won't matter if the commissioner is making rulings based on unfair rules. That, to our way of thinking, is the real problem.

I would also, as I had earlier stated, encourage the committee to think about the culture of secrecy in government and the structural issues that create secrecy in government. It's hard sometimes to do that because there is an assumption in this country that privacy is necessary for decision-making, and I think we need to challenge that assumption. I think the public is mature enough to understand the differences in government, and differences of opinion do not necessarily equate with dissent. We constantly infantilise the public in our handling of access to information.

[Aaron Wudrick]

I think one of the merits of an order-making system is maybe not even the exercise of the power itself, but the threat of being able to use it. Bodies that are now taking their sweet time, and perhaps withholding information they shouldn't, if they knew there was an order-making power standing over them that would order them to do it anyway, perhaps they wouldn't be so reluctant to do it. We're not dead set on the order-making model, but I think the reason it's come up for discussion is that the ombudsman model has seemed powerless to do anything about some of the problems we face.

To go back to one of your earlier points, we believe there are too many exemptions and we believe there's a cultural problem, but some of it is just that it's taking so long. We file requests and there are incidents where we'll get them back a year later. It's not a question of a few weeks too long. I started this job 18 months ago, and I just got something filed by one of my predecessors last month. This is from before I showed up on the job. If we were getting this information in a timely manner, I think there would be less angst about what we need to do about it.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Yes, many witnesses have commented on this, but I was quite struck by Professor Drapeau's assertion. He felt strongly that it wasn't a question of resources; it wasn't a question of power. It was really a question of culture, and he questioned the utilization of the resources available to the commissioner. He recommended the Auditor General be brought in to investigate the expenditure of the existing budget of the commissioner. Do you have any comments on the current functioning of that office?

[Sean Holman]

I would question our overall spending on access to information. If we had fewer exemptions and exclusions in the act, then it would cost less to have government documents released to the public. That simply makes logical sense. As an example, in fiscal year 2014-15, in Canada, the cost per closed request was about $1,000. In the United States it was $623.76 U.S. That is less than we are paying in Canada to administer the access to information system.

In addition to resulting in greater openness, fixing the exclusions and exemptions in the act will also reduce the amount of time and the cost associated with the access to information system.

[The Chair, Conservative, Blaine Calkins]

That does it for that particular round.

Mr. Dusseault for up to seven minutes, please.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Thank you, Mr. Chair.

My thanks to the witnesses for sharing some of their time with us today.

I will first make a comment about the reviews carried out every five years. I paid close attention to what you said about the requirement in Newfoundland and Labrador to review the legislation every five years. The absence of a requirement to do so at the federal level is perhaps the reason why the Canadian legislation hasn’t been significantly amended in 30 years. However, this requirement applies to many other pieces of legislation. I am pleased that the committee is looking at this issue today to perhaps recommend changes to the government.

Mr. Holman, something has piqued my curiosity. You are saying that some access to information requests sometimes go all the way to the communication services of ministerial offices. Have you seen that happen on some occasions? Have you actually felt obstruction from ministerial offices and perhaps from directors of communications? They may have tried to withhold information and to delay the response so much that, when the information is finally released, it is no longer very useful.

[Sean Holman]

To be clear, I was actually referring to just simple requests for information from media and the public. We would phone up a communications officer, or we would have to go through a communications officer, in order to get information from the government. But to your point, yes, there certainly have been well-documented circumstances where there has been political interference or communications involvement in the access to information system, both at the provincial level and at the federal level.

That was actually highlighted by a colleague of mine, Ann Rees, whom I would commend to the committee as a potential witness. She's a professor at Kwantlen Polytechnic University in Vancouver.

But yes, it is a significant problem. I'm not exactly sure how you fix that problem. There's always going to be, I think, the potential for improper involvement by political staff and communications staff in these kinds of processes.

To go back to your first point, I'm actually not certain that having a regular review process would assist this situation. As everyone in this room knows, as a result of party discipline within our political system, if the government does not want to do something, it will not do something. Yes, a regular review would provide an opportunity for this kind of forum for a review of the legislation, but changes are not going to be made unless government actually wants to make those changes. By the way, the lack of power that individual MPs experience under our system of government was one of the reasons why the Access to Information Act was put in place. Gerald Baldwin ran something called the “League to Restore Parliamentary Control”, and one of its mandates was actually to bring forward freedom of information legislation.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

I would like to continue along the same lines.

Would the solution be to have tighter deadlines, not only tighter but also mandatory deadlines?

I often use the example of the Department of National Defence to show the importance of deadlines. That department asked for a delay of 1,110 days to respond to a request without necessarily explaining why it had done so. The department actually told the requesting party that it needed 1,110 days to respond to the request. It provided no explanations. Unfortunately, Canadians have no choice but to accept such delays.

What do you think about a process that would require shorter deadlines, but that would also include a requirement to provide a logical, well-founded reason for having to extend a deadline? Ultimately, the commissioner is the one deciding whether the delay is truly warranted.

Mr. Wudrick and Mr. Holman, can you answer that question?

[Aaron Wudrick]

No, we would agree. One of our concerns is that there's no point in having a prescribed timeline if there's no consequence for not meeting it. For any rule that is broken, if there's no punishment and if there's no consequence, then there's no incentive to respect the rule.

We understand there's going to be instances where there's a lot of information being requested. It may take a great deal of time to get that information, but it should be explained to the requester then, at least the broad outlines of it. Otherwise there is a big feeling of powerlessness on the requesters part, in that you've been given an answer that it's going to take months or years to do something, you have no idea why, and you don't have much recourse other than to complain to the commissioner.

We definitely think these timelines should be enforced, one way or another, and that reasons should be given when they can't be met.

[Sean Holman]

We would concur with the view that's been expressed by the CTF. Again if there were fewer exemptions and exclusions in the act, then less time would be required to release information to the requester.

This is a major problem. I joined Mount Royal University four years ago, after a career as an investigative journalist that lasted 10 years in B.C. At the provincial level I still have a freedom of information request that is outstanding and that has been in process for more than four years.

Information delayed is information denied, especially in a political, democratic environment.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

You have said that, in Newfoundland and Labrador, it is possible to issue penalties to organizations that are subject to the Access to Information Act. Could you elaborate on that?

[Sean Murray]

Yes, that would be the offence provisions. The offence provisions are oriented toward non-co-operation with the commissioner's office, wilful destruction of records, wilfully evading an access to information request, and things of that nature.

In terms of penalties for delay and something like that, there's no penalty under the offence provision for delay, but there is a maximum time period. There is a 20 business-day time period for our response to an access to information request. A public body that finds they cannot meet that time frame must make their case to the commissioner's office for a time extension. We can grant them a time extension or not.

If a public body fails to meet either the 20 days or an extended time period that we may grant them, they are deemed to have refused the request and the applicant has a right to come to our office.

We have to deal with our complaints within 65 business days. At the end of that period of time, if the applicant has not received a response, we could potentially recommend the release of that record, and the public body would have to go to court to try to convince a judge why they shouldn't get it.

There are no circumstances in Newfoundland where a request would carry on for years anymore.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Mr. Dusseault and Mr. Murray.

We now move to the last seven-minute slot in our first round.

Mr. Massé, you have the floor for seven minutes.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you, Mr. Chair.

I would like to follow on the same topic as Mr. Kelly, the issue of culture raised by Professor Drapeau. I personally had the opportunity to ask Mr. Drapeau whether it was only a question of culture, or also a question of management of information.

Mr. Ring and Mr. Murray, could you comment on the management of information issue? By amending the legislation in Newfoundland and Labrador, have the government and the ministries adapted their policies, their tools and their processes to ensure a better transition in terms of access to information? We know that information is now provided in many formats and is accessible on various platforms.

Could you talk about the management of information?

[Edward Ring]

Thank you very much. That's an excellent question.

As I said earlier, the new law came into force on June 1, 2015, so it's relatively young. Even though there was 100% buy-in, 100% acceptance by the government of the new act, certain things had to be done to ensure that the results that the act envisages come to fruition. One of these was to make the amendments that had to be brought to the Management of Information Act.

We said a little earlier that this is a work-in-progress. My office has been in consultation with the Office of the Chief Information Officer, and we understand that the work is moving forward. Once the draft is complete, it will contribute significantly to the open government concept that has been recently adopted by the Government of Newfoundland and Labrador and hopefully will facilitate the release of more information, a lot of it proactively rather than as the result of an access to information request.

Of course, things are moving a bit slower than we'd anticipated, because as you may or may not know, the act came into force on June 1, 2015, and a number of months after that there was political interest in getting ready for an election, which occurred on November 30, 2015, which led into Christmas. The new government was sworn in, I think, around the middle of December.

Another aspect of what is going on in this province is that the priority for this government has been preparing for the budget process, which was announced last week. I will say that it has not been the most popular budget that this province has ever seen.

All of this has been a preoccupation of the government. I think we're a little bit behind where we'd like to be in terms of the Office of the Chief Information Officer's moving that duty-to-document situation forward. There will be more on this in the near future, we hope.

Sean, do you have any comments?

[Sean Murray]

The previous government also initiated an open government process that the current government is carrying on. More and more information is being made available proactively, and in formats that are easily usable by recipients. We have, then, seen some progress in that direction.

For example, in all access to information responses, the documents that are provided to the applicants are, a number of days later, put on a government website. That's one change that has also been made recently.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

That’s great, thank you.

You have also answered the second question I wanted to ask about the preliminary transition issues that you have observed.

If you don’t mind, I will ask Mr. Saini to use the rest of my speaking time.

[The Chair, Conservative, Blaine Calkins]

Mr. Saini.

[Raj Saini, Liberal, Kitchener Centre, ON]

Thank you very much, everybody, for coming here today. It's been a very thoughtful discussion.

The question I have is to either Mr. Ring or Mr. Murray.

I notice on your website that you publish your completed access to information requests, that you make them public. You also appear to have a broader definition of the public interest override than, let's say for example, Ontario or British Columbia.

Can you elaborate on how your office interprets that override and how that interpretation affects the way you process your requests?

[Edward Ring]

Thank you very much for that question.

It's been the practice of our office to publish our reports, straight from the first report that was written. The public interest override is something that is new to our province. It didn't exist in the old act; it's only since the most recent review that we have it.

One of the first things we did in our office was develop a set of criteria that we thought would be helpful to ATIP coordinators at public bodies. These dealt with what conditions would have to exist, and how you would.... There will be a significant issue, if you have a mandatory discretion or exception that you basically won't follow. The reason for the exception has to be overridden by the importance of the public interest.

We've developed a good set of guidelines. In fact, we did some of the work in conjunction with the clerk of the executive council, who has, as Mr. Murray mentioned, the ability to override, in light of the public interest, cabinet documents.

We've not had any experience in dealing with that specifically—

[A voice]

We had one case.

[Edward Ring]

—except that we have an applicant who made a request through a particular public body and is not satisfied with the response. As recently as yesterday—actually, it was a bit earlier than that—we were notified that she has taken the issue to the courts, hopeful to get a decision from the court based on the public interest override that's in our act.

We think it's a very good provision. As the legislation matures, we will see how it unfolds and how it results for the general public.

[Sean Murray]

We have a guidance document available on our website about how to interpret the public interest override. It is certainly available. If anyone wishes to contact us, we can direct you to it.

Our assessment of how the public interest override should work was based partially on research about the application of that provision in the U.K. There has been a lot available, I believe, on the U.K. information commissioner's website about the public interest override and how it should be applied.

As the commissioner mentioned, there will be a case going to court soon in this jurisdiction relating to the public interest override, so we may have a court decision interpreting that provision soon.

[The Chair, Conservative, Blaine Calkins]

Thank you very much. We're well over eight minutes in that seven-minute round. That ends the very first round, and we'll have lots of time for questions as the day goes on.

We'll move to the five-minute round, with Mr. Jeneroux, please.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Thank you, Mr. Chair, and to everybody here also. Thank you, Mr. Wudrick and Mr. Holman, for being here. To both Mr. Murray and Mr. Ring, thank you for being here via teleconference.

It was very interesting to hear, Mr. Murray and Mr. Ring, your presentation, particularly the part that outlines the hybrid model that you've chosen. I'd love to learn more. Obviously, today is just a short presentation, but I think there's some benefit from it.

Again highlighting an issue that my colleague brought up, it's unfortunate that the budget indicated that we're moving to an order-making model without hearing presentations such as yours first. It would have been excellent to hear them, particularly since the budget indicated that they're informed by consultations with the Information Commissioner, stakeholders, and parliamentarians. We on this committee haven't put forward a report yet. We were looking forward to doing so. I guess we've been scooped by the budget.

Again, I appreciate your taking the time to be here.

My questions in particular go to something Mr. Wudrick brought up. I think everybody in this room may be curious to know a bit more detail.

One of the recommendations from the Information Commissioner is to invite non-Canadians into the process of requesting ATIPs. A question was posed to a previous witness—Professor Drapeau, who has been mentioned before—about having a priority for Canadians first. This is something that makes sense to me. I'm not saying quite yet whether I'm for or against opening it up to non-Canadians—there's obviously the financial side of it, which worries me a little—but I've been thinking a lot outside of committee meetings about how we would give the priority to Canadians first.

Are there any suggestions, thoughts that you guys might be able to elaborate upon from your end? How could we pose a recommendation back to the Information Commissioner on that very opportunity, to give Canadians a first priority?