Information & Ethics Committee on April 19th, 2016

[Aaron Wudrick]

I think perhaps we are overestimating the demand amongst foreigners for filing Canadian ATIPs, but the principle is simply that Canadians are the ones who are taxpayers. Accountability and transparency are triggered by the fact that they are the ones paying for it, so it would seem logical to us that they would have first priority. As mentioned by the commissioner, if a foreigner wants to file a request, they can get a Canadian agent to file it for them. That is fine, but if there's an additional cost involved, I think it's reasonable that they pay it since they are not also contributing through the tax system.

With respect to the sensitivity of the information, I think we probably have less concern there, because if it's information that could be released to a Canadian, it would obviously be released publicly anyway. It would be hard to envision information that would be sensitive if released to a foreigner but not to a Canadian citizen, so I don't think that's our biggest concern. It's just a question of priority, in terms of who gets to move up the line faster.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

I should have put this in a bit more context for you both before posing the question. We had the immigration department in and their comments, when posed a similar question were that it could be huge and that they would have to rethink how they do this because it simply wouldn't be possible to hire enough people, and it wouldn't be a good way of dealing with business. They also said they would have to think of a completely different approach to make sure that everything was out there.

I'm just putting that on the record before perhaps you answer the question, Mr. Holman.

[Sean Holman]

I guess I would ask you why people who are not Canadians should have less of a right to information that may impact them. It's interesting that one of the reasons we ended up getting freedom of information legislation in this country was because Canadians were able to use the United States Freedom of Information Act to request information that related to Canada from the American government. It seems somewhat unfair that we have a law that does not allow Americans to do the same thing. In fact, I get requests from American journalists who are looking to file freedom of information requests in Canada, because they cannot do so, even for an issue that relates to their jurisdiction. I would just ask us to think about the fairness of not opening up the access to information system.

[The Chair, Conservative, Blaine Calkins]

Okay, that's five minutes, Mr. Jeneroux.

We now move to Mr. Lightbound, please, for five minutes.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

Before I begin, I would like clarify for Mr. Jeneroux that the budget was not a scoop. If he goes back to our platform, which he's quoted plenty of times, it's there fair and square. That's not a scoop to me, but I think the work of this committee can inform the government as it moves forward.

One of the things that really struck me last week, when we had Professor Drapeau here—and I'd like to have your take on it—is that he mentioned the role of ATIP coordinators within each department. In his remarks to this committee he said:

At present, they are subservient to the wishes and dictates of the mandarins, not the public or the ATI users which they are mandated to serve. These ATI Coordinators need the status, independence and authority which flow from a [Governor-in-Council] appointment in order to properly perform their [functions]....

I'd like to have, from the three of you, your take on an increased role and that specific recommendation by Mr. Drapeau to have them appointed by the Governor in Council.

[Sean Holman]

I listened to Professor Drapeau's testimony with interest and this particular recommendation that he made to the committee. For my own part, I would say we would disagree with the idea of turning access to information coordinators into political appointees. I understand Professor Drapeau's point that access to information coordinators need more power and authority. I would also say they need more independence from the system, but I do not think that his cause is served by essentially making them political appointees.

[Aaron Wudrick]

I think my sentiments are similar to Mr. Holman's. The sentiment is clear. The problem is that these coordinators do not have sufficient independence. I think that the professor's recommendation is an attempt to find an alternative solution to that. The question, then, turns on whether you think a coordinator is more independent when they report to a mandarin or when they depend on an appointment, which, at the end of the day, could be traced to political motives.

[Sean Holman]

Would it be possible, for example, that access to information coordinators be put under the jurisdiction of another independent body? For example, would the Auditor General be a possibility?

I haven't given a lot of thought to what the solution might be, but I think the solution that has been proposed by Professor Drapeau is not the right one, although he has identified correctly a problem within the system.

[The Chair, Conservative, Blaine Calkins]

Mr. Ring, I remember that in your testimony you said that some people were double- or triple-hatted who had this mandate. I think this is relevant to Mr. Lightbound's question.

[Edward Ring]

Yes, that's correct. We have several very large bodies, such as the university and so on, that have a small office with dedicated staff, and other large-bodied bodies, such as government departments, that are double- and sometimes triple-hatted. That filters down to the smaller groups as well, in which you may have someone there just part time, such as in a municipality.

But I think something that has to be stressed here is that it's not the ATIP coordinator who has the authority to release or authorize the release of the information. It's the head of the public body. I would strongly support the ATIP coordinators being in the position of authority—at the director, executive director, even the assistant deputy minister level—at which they can have the ear of the head and be able to speak, I suppose, more frankly. When you have to work through the bureaucracy, there is only so much that the ATIP coordinators can do.

We've seen over the years a significant amount of frustration when the recommendation is made, but it's up to the head to make the decision.

Sean, is there anything you can add to that?

[Sean Murray]

No, I think....

[The Chair, Conservative, Blaine Calkins]

Mr. Lightbound.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

I'd like you, Mr. Holman, to elaborate on your single exemption, which you mentioned earlier, and how it squares with the commissioner's recommendation.

[Sean Holman]

What I'm trying to do with the single recommendation is to rationalize the system and provide greater openness.

The commissioner has made various recommendations regarding the exemptions and exclusions within the act. I think the Canadian Association of Journalists' position would be that we need to go further than that. We believe that these two sections of the act, as well as established practices and traditions and structures within government, create an unacceptable zone of secrecy for government decision-making. Canadians cannot easily, if at all, access information about why their government has made the decisions it has made.

I would ask the committee members to ask themselves why that is. Why is that kind of secrecy really important? Do we want a government that is scared of the public? Do we want a government that hides from the public? Or do we want a government that is open to the public and treats the citizenry as participants in this thing we call democracy? Do we want an informed public? I would hope that the members of the committee will agree that we want citizens to have a better understanding of why government made the decisions it did.

Senator Daniel Patrick Moynihan—

[The Chair, Conservative, Blaine Calkins]

I have to cut you off, Mr. Holman. We're well into what should have been Mr. Kelly's time, but I think you'll have an opportunity to come back and elaborate.

Mr. Kelly.

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

Thank you, Mr. Chair.

Although I was enjoying Mr. Holman's answers, I'm sure we'll have more time as we go on.

I'd like to start by bringing in Mr. Murray regarding the dual mandate of being a commissioner for both privacy and access to information. Notwithstanding my colleague's comments on what the governing party's platform was, we have indeed in the budget, seemingly, a conclusion already drawn as to how we are going to proceed, so I hope that this time is productive.

I'm very interested in the idea of the dual mandates. We've heard from three different provincial commissioners who are commissioners for both access to information and privacy, as is the case in Newfoundland and Labrador. We've heard from many witnesses who uphold the Newfoundland and Labrador model as being the example and the standard in Canada. We also had Mr. Drapeau's recommendation that the two are intertwined and ought to be under one roof for a variety of reasons, including the efficiency of staff resources.

Please comment on the relative merits of having two different commissioners for privacy and access to information versus conferring a dual mandate.

[Edward Ring]

Yes, thank you very much for another excellent question.

I would start by saying that it's a question of proportionality. I understand that in some cases, when you consider all the factors involved, you have conflicting factors when looking at the individual's right to information and the protection of individual privacy. In my view, the size and magnitude of the work involved in the federal bureaucracy requires two offices. Even in our own small jurisdiction—that's about half a million people—we find that there is sometimes a huge balancing of what should be released and what should not be released. I think it's an order-of-magnitude question and that the size of the jurisdiction will make a huge difference.

[Sean Murray]

I like having the separate federal offices. I think it makes sense for the provincial and smaller jurisdictions to have the combined oversight, but at the federal level it has been nice that some of the spokespersons who have represented those offices on the national and international stage have represented Canada very well in talking about privacy rights and access to information rights. You can get into very fundamental issues of society and democracy.

I like the idea of having them separate at the federal level. Whether there are efficiencies to be achieved I'll leave it to those commissioners to comment on.

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

I had certainly thought of the sheer proportions and numbers and about Newfoundland and Labrador being a small province, but we had heard from joint commissioners who were representing both Ontario and Quebec.

I'd like, if I have time, to invite both Mr. Wudrick and Mr. Holman to comment as well on the dual mandate.

[Aaron Wudrick]

I think Mr. Ring and Mr. Murray's comments are germane here. The bigger the jurisdiction, the harder it is for one office to do two things. We think keeping these offices separate just in terms of resources might be a wise idea.

[Sean Holman]

The Canadian Association of Journalists would also be opposed to the idea of a commissioner who wears both hats. When he was justice minister, John Turner delivered a speech entitled “Twin Freedoms”. He was referring to both the freedom to privacy and also the freedom of information. I think that in this country we sometimes give greater priority to privacy than we do to freedom of information. We can even see this in the reporting of the actions of provincial information and privacy commissioners, who are repeatedly referred to as privacy commissioners even though they are talking about information issues. I think it would be a mistake to combine the two offices.

[The Chair, Conservative, Blaine Calkins]

Thank you very much. Your time is up. I left momentarily and everything went well, and I'm so relieved.

Mr. Saini, take up to five minutes, please.

[Raj Saini, Liberal, Kitchener Centre, ON]

The one question I have to Mr. Murray and Mr. Ring is about what Mr. Wudrick highlighted, the fact that there's a five-dollar fee for access to information. I think part of the reason for that was to minimize any kind of frivolous or vexatious information request that might have come forward. You also highlighted the fact that the five dollars did not really serve any purpose because the cost to administer it was higher.

You've also come up with a very intriguing system whereby you bank requests. I want to ask you a question on that. When you get multiple requests from certain people—and in some cases they may be vexatious or may be follow-up to other requests—how does your banking system work? Have you found it to be helpful in making sure that the requests are more targeted rather than just a splatter or disarray of requests coming through that are going to plug up the system?

[Sean Murray]

Let me explain that the banking provision is in relation to the review or appeal function at our office as opposed to being at the request level. There is no banking system in terms of public bodies banking requests from applicants when they first receive an access to information request. The banking provision only applies to our office.

I think it's important to have, because our office now has the tight time frame of 65 business days to complete a complaint investigation and issue a report. If we were inundated with complaints or appeals about access to information requests from a single individual, however, we would have the ability to bank those.

That has not occurred recently. It's something that, over the 11 years that our office has been in existence, we have had issues with. We have not encountered it and have not had to use the banking provision since it came in.

In terms of a public body that might receive a lot of requests, however, the public body has the ability to come to our office and request a time extension, and one of the reasons they can present is that they've received an inordinate number of requests, whether from the same individual or not. We will look at what their capacity is, at how in-depth the request is, and we will question in detail what resources will be required to respond to the requests and may or may not grant their request for an extension.

As well, they have the ability to ask us to disregard a request, if it's overly broad. If someone comes to a public body and says, I want every record produced from this year to this year, it's something that will be unreasonable for them to respond to. It would require all of their resources and detract from their ultimate mission, whatever their organization is. The public body has the ability to come to our office and ask that we grant them the permission to disregard the requests, which we have done on a couple of occasions.

[Raj Saini, Liberal, Kitchener Centre, ON]

The second question I have is something a little bit different. It concerns privacy breaches. Your ATIPPA says that every public body must report a privacy breach.

My question is two-fold. What is the onus on them to do that, and what enforcement do you have to make sure that they comply with that part of the legislation?