Evidence of meeting #9 for Access to Information, Privacy and Ethics in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was bodies.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Sean Holman  Vice-President, Canadian Association of Journalists
Aaron Wudrick  Federal Director, Canadian Taxpayers Federation
Edward Ring  Information and Privacy Commissioner, Office of the Information and Privacy Commissioner of Newfoundland and Labrador
Sean Murray  Director of Special Projects, Office of the Information and Privacy Commissioner of Newfoundland and Labrador

10:10 a.m.

Information and Privacy Commissioner, Office of the Information and Privacy Commissioner of Newfoundland and Labrador

Edward Ring

Thank you very much.

I will say that prior to ATIPPA, 2015, our office could only undertake a privacy investigation if we received a complaint. Under the new act we can undertake own-motion investigations.

In fact, in terms of the public bodies reporting, it's a work-in-progress. As I said, the legislation is very new. One of the things the former government did, however, was initiate a couple of early actions. The legislation wasn't proclaimed in force until the first of June, but I think by the middle of March there had been some early actions taken, such as getting rid of the fees and mandatory reporting of all privacy breaches through the commissioner's office.

We thought that we would be inundated, because there are a lot of privacy breaches, many of them internal, many of them minor. For example, inside a large public body you could have faxes that are going to the wrong fax machine, but it's still within that same organization.

We set up a protocol, we have a reporting document, and we've had hundreds of public bodies report privacy breaches to us since March past. One of the tools we have in our tool box now that didn't exist before is our ability to conduct audits into access and privacy with the public bodies. We're just starting that process—we're involved in our first audit now—but during subsequent audits we'll be able to look at those kinds of issues.

We have no tool that is a blunt instrument at this point in time, but we have to develop ways to ensure, beyond just trying to encourage public bodies, that it's not bad to report a privacy breach to the privacy commissioner, because what we will hopefully do at the end of the day is make recommendations to that public body that can be used by others and will help make their system more solid, and the risk of breaches will be minimized, if not eliminated.

10:15 a.m.

Director of Special Projects, Office of the Information and Privacy Commissioner of Newfoundland and Labrador

Sean Murray

There are no penalties for failing to report a privacy breach. However, as the commissioner pointed out, we certainly would have the ability to conduct an audit of the privacy practices of a public body, and their breach reporting practices are certainly something we could audit or investigate.

10:15 a.m.

Conservative

The Chair Conservative Blaine Calkins

Thank you very much. We went well over time, but we're going to have lots of time at the end.

To finish up the formal questioning, we have Mr. Dusseault, for three minutes. Then I have Mr. Bratina and Mr. Long as potential folks who haven't gone on the record yet. Then time permitting, colleagues, if you have any other outstanding questions, we should have enough time to get them all dealt with.

Mr. Dusseault, please.

10:15 a.m.

NDP

Pierre-Luc Dusseault NDP Sherbrooke, QC

Thank you, Mr. Chair.

I would like to talk about the fees and costs. We should give that more thought. However, I think that one of the potential risks is to place the organizations that are subject to the Access to Information Act in a difficult position.

Let me give you an example of that. CBC, which is a crown corporation, is clearly limited in terms of the information that it can provide because it operates in a very competitive field with private companies. In 2011, Quebecor, its main competitor, flooded CBC with access to information requests. In the span of one year, 80% of CBC’s access to information requests came from one and the same requester. I think the number of requests was more than 1,000. That is a potential risk. The cost per request is $5. So that amounted to at least $5,000. So there is some deterrent effect, but it is not desirable for a private company to be able to flood the public entities that are subject to the Access to Information Act with access to information requests.

In Newfoundland and Labrador, has a competitor ever deliberately flooded a public agency with access to information requests with a view to harming it, to the point that it was not able to respond by the deadline?

10:15 a.m.

Director of Special Projects, Office of the Information and Privacy Commissioner of Newfoundland and Labrador

Sean Murray

The only situations like that we've really encountered are situations of disgruntled former employees who have filed a large number of requests over a long period of time.

That's not something we're currently experiencing. That's something of a historical experience we've had. Even with the Quebecor example, I would question whether $5,000 is significant to a large enough organization like that, which has a purpose in mind. If it's something that's being experienced at the federal level, there may be some other means of addressing it, if it's considered to be an abuse of the act in some way.

10:20 a.m.

NDP

Pierre-Luc Dusseault NDP Sherbrooke, QC

I will let Mr. Holman add to what he was saying before.

My understanding is that we could at least be allowed to know the decision-making process that helps cabinet make a decision, although it is completely legitimate for its deliberations to remain secret. In this way, the public would at least have access to everything that cabinet ministers had in their hands when they made their decision and the final decision, which is in the public domain. As a result, people would be able to know the information that the decision-makers had at their disposal and determine whether or not the decision is appropriate. The process should be as open as possible, with the exception of cabinet’s deliberations.

10:20 a.m.

Vice-President, Canadian Association of Journalists

Sean Holman

I would concur, and I would even question whether or not it is necessary to have those deliberations protected. What are we really protecting here? Are we protecting cabinet ministers from embarrassment? Are we protecting a fiction that more than a dozen people in a room will always agree with one another?

What are we really protecting when we talk about cabinet confidences, when we talk about cabinet confidentiality? Is that something that is deserving of legitimate protection, or is it something that is an archaic part of our political system that is contrary to the wishes of the public?

I do an interesting exercise with my students when I talk about access to information. I get them to write on a board all of the information they want, which they would expect to have from the government. Then I take a piece of chalk, and I begin to cross out all of the pieces of information they are not allowed to access under our Access to Information Act and under our political system.

It seems passingly odd to me that the principle decision-making body in government is entirely secret. I wonder whether or not it seems odd to anyone else in this room.

10:20 a.m.

Conservative

The Chair Conservative Blaine Calkins

I'm going to have to leave it at that, because we went well over five minutes on a three-minute round, but I'm sure we'll have opportunities to ask questions.

Colleagues, I'll move to Mr. Bratina and Mr. Long for up to five minutes each, and then we'll see where it goes from there.

10:20 a.m.

Liberal

Bob Bratina Liberal Hamilton East—Stoney Creek, ON

Thank you.

Thanks, everyone, for participating today.

When I became the mayor of Hamilton, I was asked on my first day on the job what my first priority was. My first priority was the live-streaming of all committee meetings. The reason for that was that the public required the reporters to tell them what was going on, whereas now they could just figure it out for themselves.

There is a tension here, obviously, that we're trying to correct through these meetings, but what responsibility do journalists have with regard to the use of this data? There is always a concern, ethically speaking. For instance, I've read the CAJ code of ethics, and it says that you do not give out all of the information that's brought together to form a story. Sources and other data are not divulged. On the other hand, the issue is that we should be divulging.

I'd like to hear your comment on this ethical imbalance, if you will.

10:20 a.m.

Vice-President, Canadian Association of Journalists

Sean Holman

I appreciate the question and I appreciate the research that the member has conducted prior to this meeting.

I would say that elected officials are in a role different from journalists'. Elected officials were elected by the public to serve the public. Journalists serve the public in another way, but we are not directly, for the most part, paid for by the public; nor are we chosen by the public to do the job that we do.

I would say that there is a greater onus on transparency for public officials than there would be for journalists, although I take your point. We make decisions on a fairly regular basis, especially if one is functioning in an investigative capacity, about what information should be publicized and what information should not be.

The criteria that we use are far narrower than the criteria that are currently in the Access to Information Act. For example, we wouldn't necessarily publish something that is simply of a private interest as opposed to a public interest. That would be a big one. Is it necessary for the public, for their decision-making, to understand that something happened? In cases in which it isn't, we decide not to publish. That is very different, however, from what we're talking about when it comes to, for example, cabinet. I would argue that the vast bulk of what goes on in cabinet and in government is in the public interest.

10:25 a.m.

Liberal

Bob Bratina Liberal Hamilton East—Stoney Creek, ON

The issue, though, then becomes what information is kept and how it would be accessed. In view of what's being created here, one might say, “Let's go play golf this afternoon”, and nothing is passed, nothing is written down. We want to do the right thing as government, as officials sitting around this table, but I'm not sure how you can ensure that every last thought we had that led to a policy outcome was specified.

10:25 a.m.

Vice-President, Canadian Association of Journalists

Sean Holman

I suppose it is the principle that is more important. Yes, no system is ever going to be perfect. Every system we create is a human system and human systems are not perfect, but you mentioned for example the idea of whether the public should know you are going to golf with someone. I would argue that it depends upon who that person is. In my former career as a journalist in British Columbia, there were certainly instances when it would be important for me, as a journalist, to know whether you were golfing with a particular individual, as it would be in the public interest if that person were, for example, a lobbyist.

10:25 a.m.

Liberal

Bob Bratina Liberal Hamilton East—Stoney Creek, ON

Thanks.

10:25 a.m.

Conservative

The Chair Conservative Blaine Calkins

Thank you.

Mr. Long.

10:25 a.m.

Liberal

Wayne Long Liberal Saint John—Rothesay, NB

Thank you, Mr. Chair. Thank you to the presenters this morning. This is very interesting.

One of the problems with going last is that most of the good questions have been asked, so I'll have to bump myself up in the batting order, I think.

I'm going to start with Mr. Ring. Your presentation was very interesting. I have many good friends over in St. John's, Newfoundland.

I want to talk more about Bill 29—in 2012, when it happened—and about what was surrounding it. In 2012 you went with Bill 29, which had a culture of cabinet secrecy, and ministers' briefings were off limits, and so on, and in 2015 to a total overhaul of ATIPPA and a much more progressive style. I want to get your comments and input as to how you went from such a dark era in 2012 to a new era in 2015 and the change in culture that you've seen between the two periods.

10:25 a.m.

Information and Privacy Commissioner, Office of the Information and Privacy Commissioner of Newfoundland and Labrador

Edward Ring

Thank you very much for that question. I'll sum it up by saying that it's coming from the darkness into the light, and I'm not talking about the sunshine list that's currently being debated in St. John's.

I'm not going to take long with this question. I know we're short on time.

The initial act that we had in this province was probably biting on the heels of B.C. It was a very good piece of legislation, but it tended to be eroded and there was a trend that government wanted to give out less information. Steps were taken to.... For example, we went to court on the commissioner's ability to review solicitor-client claim records, and we won in the Court of Appeal. That was almost immediately overturned by government, whereby we couldn't review those again.

Things became very rough politically for the government. The general public were outraged, and it was that groundswell and that current that led to.... In fact I'll say it: one of the previous premiers said to me that Bill 29 was the worst thing that government had ever done, and I said, “I agree, man.”

When Premier Marshall, at the time, came out wanting to move forward with the review, it was like again coming out into the sunshine, and we've been very happy ever since. A lot more work was generated for our office, and we're hoping to get the appropriate level of resourcing to deal with it, but we have an excellent act, an excellent piece of legislation that the people now enjoy.

10:30 a.m.

Liberal

Wayne Long Liberal Saint John—Rothesay, NB

Right back at you. Obviously Commissioner Legault had her 85 recommendations. To what extent did you influence the process in Newfoundland? Did you also submit recommendations? Were you active in the process?

10:30 a.m.

Information and Privacy Commissioner, Office of the Information and Privacy Commissioner of Newfoundland and Labrador

Edward Ring

I'll quickly give an answer and then I'll hand over to Mr. Murray.

We were extremely active in this. We met with the review committee before the hearings even commenced. We were the first group to present to the committee. We provided a 95-page submission with numerous recommendations made in it, a large number of which were accepted by the committee. We had the opportunity to interact with the committee in reaction to other submissions that were made by public bodies and other interest groups. We were also the last ones. We summed up on the very last day of the hearings. We were given outstanding opportunity to make our points and we took full advantage.

10:30 a.m.

Director of Special Projects, Office of the Information and Privacy Commissioner of Newfoundland and Labrador

Sean Murray

Commissioner Ring and I spent eight hours in total in front of the review committee, reviewing every aspect of the legislation and discussing all of our recommendations. We had ample opportunity to debate and discuss back and forth, while it was carried on the parliamentary TV channel in Newfoundland. It was carried online as well and hundreds of people could tune in. It was a great process and very effective.

10:30 a.m.

Liberal

Wayne Long Liberal Saint John—Rothesay, NB

Mr. Holman, thanks for coming in. Again, it was a great presentation. I appreciate your passion.

When we spoke before the meeting, you made a comment that you're writing a book about the history of ATIP.

10:30 a.m.

Vice-President, Canadian Association of Journalists

Sean Holman

That's right.

10:30 a.m.

Liberal

Wayne Long Liberal Saint John—Rothesay, NB

What you said to me was that we tend to forget our past and that there are a lot of answers in our past. Could you elaborate about that and your comments?

10:30 a.m.

Vice-President, Canadian Association of Journalists

Sean Holman

Yes. As I mentioned earlier, there is an established narrative when it comes to the history of access to information that we have gone from a global leader to a laggard. It's this idea that, over time, freedom of information has eroded in Canada.

While there certainly have been practices that have been adopted since the Access to Information Act took effect that make access more difficult, it is important to understand that the legislation itself was built to be broken and was fundamentally flawed, and it was recognized as being fundamentally flawed when it was introduced.

I think we create the mythology that somehow there was a golden time when we had more freedom of information under the current legislation, but that is not correct. On this point, I think I differ with Professor Drapeau who, if I understand his testimony correctly, seems to be of the opinion that the problem is not with the act but with the culture.

I agree that it's with the culture, but it's also with the act and it's also with the very structure of our political system.

April 19th, 2016 / 10:30 a.m.

Conservative

The Chair Conservative Blaine Calkins

Great.

Colleagues, if it's okay with you and I have nobody else on the list, may I ask a few questions. Is that okay?

First of all, I want to thank the witnesses for coming today and providing what I deem to be excellent testimony in regard to this particular issue.

I do have one concern about the technical aspect of it. I think the notions and the commentary are all laudable. I really do. I think it's absolutely fantastic, and I'm hoping that this committee will have an opportunity to invite you folks back again as we review legislation line by line that deals with this. I'm not sure where that's going to go, but that's my hope.

I have a few concerns which may be technical. Mr. Holman started off by saying that moving from a 20-year to a five-year window of keeping things confident, and the cultural change of having the default setting being open information, and having very restrictive exclusions on why government shouldn't release the information, is a complete flip from how it's currently implemented. I would agree with that assessment.

Mr. Wudrick, you're very concerned on behalf of taxpayers. Making sure that the tax dollars are followed and that you have, as your organization puts it, the ability to fulfill your mandate to follow the money and make sure that it's spent in the most accountable way to taxpayers, is laudable to be sure. But there might be times, and I'll give you some examples, where too much information, or information being released at the wrong time, might not be beneficial. It might not be beneficial to taxpayers. It might not be beneficial to Canadians.

I'll give you a couple of examples and then I would like all of your feedback. If our colleagues in Newfoundland and Labrador, in their role as commissioner, could give us any examples of where the Province of Newfoundland and Labrador found itself in this situation, that would be helpful as well. I'm going to talk about negotiations.

Every once in a while the Government of Canada engages in negotiations. The negotiations might be with other countries in the form of trade agreements. The negotiations might be with public sector unions when it comes to wages and collective bargaining agreements. It might be in negotiations with companies around the world when it comes to procurement of large military contracts and so on.

Given the fact that we want to shine a light on these things, is there the potential risk to make things...because I would argue procurements take abysmally long. I would suggest that sometimes these trade negotiations take a long time as well, and even the union negotiations or contract negotiations can sometimes take a long time.

If we were to take your recommendations and put them into a policy and into action, in your opinion, would we be getting a better or a worse result on those fronts?

10:35 a.m.

Federal Director, Canadian Taxpayers Federation

Aaron Wudrick

Thank you, Mr. Chair.

I think those are fair concerns. We don't take the position that every single piece of information inside the government needs to be disclosed. I think Mr. Bratina touched on this. There's a natural tension between privacy and accountability. I think the nature of public officials and of government is such that it has to be tilted more towards accountability than privacy, for the simple reason that government has power that no private citizen has.

At the end of the day, Mr. Holman and I can come here and make recommendations all day long, but those around the table are the ones with the power. Therefore, I think the onus for transparency and accountability is higher on government.

That said, I think there are reasonable cases, such as the ones you have cited, in which the information should either not be released, or not be released for a certain period of time after which point the information becomes less sensitive. I don't know that we go as far as Mr. Holman in saying that there should be no exemptions. There should be fewer exemptions and they should be justified.

I certainly take your point that it's not a simple, blanket “throw open the doors”. There are going to be situations in which the information is sensitive, and certainly not just with trade deals. You can envision military situations, intelligence information situations, in which that would also apply. I certainly take your point.