Information & Ethics Committee on Nov. 21st, 2022

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

Thank you, Chair.

Through you, I would like to direct my questions to Kirk LaPointe who was my boss and, I believe, the editor-in-chief at The Hamilton Spectator when I worked there back from 1999 to 2001.

I can attest that it's true that you have long been a proponent of the ATIP or FOI system. I've told this committee on a number of occasions that back in those days, we had a mandate. We had to file a certain number of FOIs every week or every month and I think that was your decision.

I'm wondering if you can talk a little bit more about why the volume of FOIs is so important to a journalist to be able to access information that way.

[Kirk LaPointe]

Thanks very much. It's also good to see that one of us has had an advancement in our career.

The reason is that so much of information is staged for us today. So much of journalism is actually taken from whatever is laid in front of us. Then there's also a certain amount that we have to react to, whether it's a tragedy or an event of some sort where we have to simply be there to respond and be the chroniclers of that.

I don't think there is enough room in the public sphere for material that is of a journalist's own basic initiative. I think that access to information—freedom of information, as it's called in the province—is an opportunity for journalists essentially to devise what they believe the public wants to know and then go about getting it without necessarily being just at the trough of what governments will lay out before us.

It also sheds important light on what is sometimes a bit of a chasm between what the public is told and what is really happening.

Lastly, I think it also serves as a bit of an instrument for the public to have input into journalism and to demand certain things from us—to go and seek the information that the public wants. Without it, I don't think that we come close to even approximating the activities of government.

In a system that's absent a very effective ATIP, we're left with a system that is largely rolled out, orchestrated and choreographed by governments of the day. I don't think that this is anywhere near the service that the public needs.

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

Thank you.

The system has changed quite significantly since those days. Since Bill C-58, we've eliminated all fees beyond a five dollar application fee, and there's a system of proactive disclosure for ministers' offices, ports and other government institutions.

Back in the days when I was at The Hamilton Spectator, we would get a summary of how much it would cost to fulfill our requests. Sometimes it was hundreds of thousands of dollars, and we would just drop it.

Would you say that with the changes this government has brought in, the government has become more open and transparent in some ways? Can you reflect on the changes since those days?

[Kirk LaPointe]

I used to say that the system was cumbersome, confusing and costly. Now it's just cumbersome.

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

Do you understand why that might be?

I think there's been a huge increase in the number of FOI requests. You can now make your request online. You don't have to fill out those little pages, which we used to have to fill out, and send them off by snail mail. It's a lot faster and a lot easier to do.

Do you feel it would be a better system if the government could respond to people within, say, 30 days, but without fulsome information, or would it be better, from your perspective, if the government had more time to respond to these requests and responded more fulsomely?

[Kirk LaPointe]

I'm in support of.... I think the Information Commissioner has basically said that there ought to be a cap on the amount of time that a delay could take place. I would be open, as I think most journalists would, to partial disclosure and a kind of rolling file that would come out. A certain amount during the 30-day window would be important.

Ultimately, I think what we have to stop are these incessant delays that, in a lot of cases, appear to delay the important research of access to information for months and sometimes many years. That has to be something this committee is very firm on in order to make sure that we really are getting a new culture introduced inside the public service to respond quickly.

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

We heard from the Information Commissioner at this committee that she has the ability to approve institutions declining bad faith requests, and she thinks that this power should be used more often.

Do you think that would help?

[Kirk LaPointe]

“Bad faith” is a subjective term, as are terms like “vexatious”. We'd certainly not want to give a blanket to that without quite clearly understanding the criteria.

I saw some of the criteria of the Information Commissioner around this, but I would hold the fort on that before seeing a pretty extensive list of criteria to ensure that what we're getting are truly vexatious requests.

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

Thank you. I only have a couple of seconds left.

Are you concerned at all that if we removed the number of exclusions that are now within the ATIP system, it would make government more closed off and people would find other ways to communicate so that they wouldn't have to be subject to the legislation?

[Kirk LaPointe]

It's definitely a worry, as has been the introduction of technology to let public and political staff obviate normal requests. I think, though, that it can be countered to some degree with a much wider amount of proactive disclosure of certain records.

[The Chair, Conservative, John Brassard]

Thank you, Ms. Hepfner.

Mr. Simard, you have the floor for six minutes.

[Mario Simard, Bloc, Jonquière, QC]

Thank you, Mr. Chair.

Mr. LaPointe, in your presentation, you said that government action could sometimes lead people to be distrustful or even cynical about political involvement, because they don't really have the relevant information to look at and evaluate.

I don't know if you saw it, but today in Le Devoir there's an article by journalist Émilie Bergeron, which reports that as a result of an access to information request, she happened to read in a Treasury Board document that the access to information issue was not a priority. So a Treasury Board document states clearly that for public servants, access to information is not a priority.

On the basis of your experience, and Mr. Wernick's, is this state of affairs widespread in the federal government? Is this idea that access to information is not a priority common to all the departments?

[Kirk LaPointe]

I'll defer to Mr. Wernick in a second here, but in my experience in dealing with the law now, dating back more than 30 years, I would say there still exists a very strong culture of protecting the bureaucracy and in some cases protecting the political masters. I understand that is a very broad generalization, and probably very unfair to a great number of people who I think are excellent advocates of disclosure within the system and are basically fighting for public access to the right to know. But in my experience at least anecdotally and on the basis of the thousands of requests that I've had some kind of hand in, it still is a culture that prevails.

[Mario Simard, Bloc, Jonquière, QC]

Would you like to add anything, Mr. Wernick?

[Michael Wernick]

I'd like to expand upon some of the messages in my document.

Records are not just required under the Access to Information Act. There is an infrastructure of document management, storage and retrieval that feeds requests under the Privacy Act: discovery and litigation proceedings, public inquiries, written parliamentary questions, questions and requests from House committees and Senate committees, and examinations from over a dozen officers and agents of Parliament. There are lots of people involved in the management, storage and retrieval of documents and records within the Government of Canada. It is quite an undertaking.

I would say that if you want to impose deadlines and penalties, you're pushing on a rope unless there is a lot more investment, care and attention to the issue of records and document management by future governments.

[Mario Simard, Bloc, Jonquière, QC]

Okay, understood.

In addition to the need for more resources, there is one question that always comes to mind.

I'm thinking of what happened during the summer. I don't know whether you were monitoring the glyphosate incident, in which the GMO watch group called Vigilance OGM, in response to an access to information request made a year earlier, received 200 blank pages that had been completely redacted.

That leads me to wonder who, under the current act, is accountable. There is an overriding principle in politics, and that is accountability. People are accountable for what they do.

From the standpoint of information, how can decision-makers be kept under control? Are decisions made only by public servants? At the end of the line, shouldn't ministers be held accountable for information that is disseminated and information for which dissemination is denied?

[Michael Wernick]

No. However, a deputy minister or someone of equivalent rank has to establish a process. In fact, accountability initially rests with the public service and the head of the institution.

A minister, or people in the minister's office, shouldn't be getting politically involved in decisions made in response to requests under the Access to Information Act. I believe that there has to be some distance between politicians, their offices and the public service.

[Mario Simard, Bloc, Jonquière, QC]

Could a mechanism be introduced to penalize certain public servants who might tend to withhold information or use it to get themselves out of bothersome circumstances?

Information is transmitted very quickly these days. In view of the time it takes to process access to information requests, any political issue has lots of time to simply disappear from the media before can get the whole picture.

How can public servants who do not respond to access to information requests be held somewhat accountable?

[Michael Wernick]

To begin with, there is feedback from the commissioner through institutional performance records and investigation reports. There are also committees like yours.

[Kirk LaPointe]

I will say there are a couple of things we used to do that we don't do any longer. We used to ask, under the act, for the process of responding to requests and how long those requests would stay in a deputy minister's office, or even a minister's office, before coming to us. It provided a little bit of accountability that way, shaming, if that was necessary. I think in journalism, in general, we often go away quietly when we don't get what we want. It's our fault. I think we ought to be telling the public a lot more about what we don't receive when we make a request.

[Michael Wernick]

One of the things that could be covered by the proactive disclosure provisions that I'm recommending would be that departments and agencies would have to post every single request that has been filed, every request that has been disclosed and the elapsed time. That would create a feedback loop.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Wernick, Mr. LaPointe and Mr. Simard.

Peter Julian, you have the floor for six minutes.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you very much, Mr. Chair.

Thank you, Mr. Wernick and Mr. LaPointe. Your testimony is very useful to us in connection with the current work of this committee.

I'm going to start with you, Mr. LaPointe.

You did an interview a few years ago in the Courier where you talked about Germany's transparency law, which creates, as you know, that legal obligation to disclose information and puts the onus on those who don't want a document released to argue against its release, as opposed to putting the onus on those who do want a document released to argue about why it should be released.

How would this approach have an impact on access to information nationally? Is it the kind of approach you think should be implemented federally?

[Kirk LaPointe]

Well, it would be the ultimate judo move.

I love the approach that they're taking. They're still having troubles in Germany with that approach, because an awful lot of companies have raised their hands and said that there's a great deal of commercial confidence that is potentially leaking into the system. However, it would clearly put the onus where I think initially it was designed to be, which was that governments needed to make the argument as to why things can't be released and third parties would have to make the argument about why they can't be released. Otherwise, there would be an automatic disclosure.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

The commercial confidence is because the onus is to protect that information. That's something that companies of course can advocate for, to keep that confidential.