Evidence of meeting #47 for Access to Information, Privacy and Ethics in the 44th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was lapointe.
A recording is available from Parliament.
Conservative
Bloc
Mario Simard Bloc Jonquière, QC
Thank you very much.
Mr. Wernick, in your introductory remarks, you spoke about restyling the information commissioner role to that of a transparency commissioner. You said earlier that the legislative basis had to be changed to ensure more proactive disclosure. You also said that the commissioner's mandate should be broader.
I understand that it's something that might be found in a new legislative structure, but what do you mean by a broader mandate?
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
I think it would be possible to follow the example of the other commissioner, the Privacy Commissioner of Canada.
Privacy commissioners have not been shy about conducting studies, issuing reports, and commenting on the privacy practices of government entities and, indeed, private sector firms. I think it's entirely possible to give a specific mandate to the transparency commissioner to conduct ongoing studies and make recommendations on the continuing improvement of transparency practices.
My view is that it should cover the entire federal public sector, not just the executive branch departments and agencies but also all Crown corporations, Parliament itself and the courts, all of which are part of our system of governance.
Bloc
Mario Simard Bloc Jonquière, QC
Thank you.
Mr. LaPointe, you said something earlier that caused me to raise my eyebrows. You said that journalists represented only 10% of those who make use of the federal act. Earlier, in an answer you gave to my colleague Mr. Julian, you said that provincial and municipal statutes were perhaps better structured and used more often than the federal act.
Do you have any figures that could be used for comparison? Are there many more journalists who use provincial and municipal statutes rather than the federal act to gain access to information?
Vice-President, Editorial, Glacier Media; Publisher and Editor-in-Chief, Business in Vancouver
Yes, there are. There's some data to that effect. In British Columbia, I think journalists use the law here upwards of 35% to 40% of the time. I can understand entirely the reasoning behind all of this, and I think some of it has to do with distance and the relationship of local government and provincial government to any news organization. There are national organizations that focus in Ottawa, Montreal and Toronto in particular that would have a more acute interest in national affairs, so I can understand where they would be the ones using the law there, and in various provinces across the country you would see local and regional organizations using the law locally.
Bloc
Mario Simard Bloc Jonquière, QC
Okay.
I'm asking this question because you mentioned a help desk.
What I'm wondering is whether the federal act is more complex to apply than the same types of measures at the provincial and municipal level. If so, that would appear to indicate, as you mentioned, a certain kind of assistance for people who want to use the Access to Information Act.
Is the federal act more complex?
Vice-President, Editorial, Glacier Media; Publisher and Editor-in-Chief, Business in Vancouver
Well, don't get me wrong, but I'd be very happy to see a help desk at a provincial and even a municipal level too. A lot of it has to do with the vast array of records at the federal level and the fact that many of them don't have as concrete a relationship to a community as would provincial or municipal records. I think that in itself directs journalists away from taking a look at national issues when they're in one of the regions of the country. I think there's obviously far more focus on federal matters in the capital and in Montreal and Toronto, the larger business centres of the country.
Conservative
The Chair Conservative John Brassard
Thank you, Mr. Simard.
Mr. Julian, you have the floor for five minutes.
NDP
Peter Julian NDP New Westminster—Burnaby, BC
Thank you, Mr. Chair.
Mr. Wernick, I'm sorry that we weren't able to consult the documents you submitted. We'll have them tomorrow, as the committee chair mentioned.
If the information I'm about to ask you about is already in your documents, just let me know.
I wanted to ask you about this. Since you indicated agreement with Mr. LaPointe on the idea of both a help desk and a reverse onus, to what extent do you think that having that reverse onus on disclosure would help to increase the ATIP process, improve it?
Also, I'd like to ask you the question I asked Mr. LaPointe. What are the models that you see internationally that Canada should be looking at? You mentioned how we do records management, and I quote the word—I have it in yellow and circled—“shambolic”. I appreciated your comments on that. Is that part of the problem, that compared to other countries we don't do a good job of managing documents?
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
I don't have at my fingertips any international comparisons. Frankly, I think probably no government does a great job on records management. It's just not something that politicians are attracted to investing in. It's seen as overhead. It's seen as bureaucracy. There's much more priority given in times of growth and in spending reviews.
Every time a spending review happens—and I've lived through many operating budgets being cut—priority is given to externally facing services to citizens. Things that get cut are internal services, like finance and audit and records management, because they aren't seen as investments in better service; they're seen as just overhead. I think that's a big mistake and I hope it will be avoided in the next spending review, which is inevitably coming, just like winter.
I would make the point, though, that there are areas of the federal government in which provinces are not heavily involved that require a careful consideration of national security. Provinces for the most part don't do a lot of international negotiations. They aren't involved in international conferences and discussions. They're not taking positions at international bodies. The federal government has to be very conscious of that. There are federal areas that are immensely interesting to foreign governments and their agents, so I think some screening, to make it less easy for the Chinese or the Russians or the Iranians to interfere with Canada, will have to be taken into consideration in the drafting of these provisions. I do think, however, that there is a lot of room for proactive routine disclosure.
A long time ago the hope was—and I remember the discussions—that proactive disclosure of procurement opportunities—contracts, grants, contributions, travel, hospitality, research studies, audits and evaluations—would eventually reduce the demand in access requests. It never happened, because people have moved upstream to the deliberative processes of government and they want to know about things before decisions are made.
I'd ask you to remember that a request is not a request is not a request. Some of them are extremely focused and they know what they're looking for and it's relatively easy to decide whether it should go out or not or to apply the screens. But there are also requests formed, particularly by the brokers and resellers, which are kind of like the trawl nets that go over the ocean floor scooping up everything that lives. I used to get a monthly request, when I was a deputy minister, for every note I had ever sent to the minister that month. There are often those kinds of requests for every communication between person A and person B going back the last five years, including all text messages and all emails and so on. These create a lot of challenge in going back and require a lot of effort to be put into processing requests. Then there are these trawl-net requests for everything that can be found, and the resellers and brokers then approach people and say, “Here's something that would be interesting to you.”
NDP
Peter Julian NDP New Westminster—Burnaby, BC
Just coming back, then, to that reverse onus, if you're supportive of proactive and mandatory disclosure, what are the documents, in addition to the ones you've just mentioned, that should be mandatory to disclose or proactively disclosed? In other words, can you add to that list you just gave us?
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
You can either hard-wire them into the legislation or you can create a list you can add to through regulation. It's up to you to decide how to construct it, but I will say that the government tomorrow could roll back any of the practices around posting research on travel, hospitality, procurement, contracts, grants and contributions and public opinion.
I would like to see a requirement to post final audit reports, final evaluation reports, any research studies commissioned by taxpayers, any scientific research paid for by taxpayers. You'll recall there was an agreement reached with government scientists about the muzzling of research a few years ago. That could be repealed or revoked. You could see some of that transparency around scientific research put into legislative language. I'd like to see all of the results of any environmental testing, product testing, health testing and safety inspections having to be posted. Those are some examples, and I'm sure the committee could come up with others.
Conservative
The Chair Conservative John Brassard
Thank you, Mr. Wernick.
Thank you, Mr. Julian.
We're going to Mr. Kurek for five minutes.
Conservative
Damien Kurek Conservative Battle River—Crowfoot, AB
Thank you very much.
It's been very informative, so thank you for this.
I'll ask both of you my question, but I'll start with Mr. Wernick.
With respect to redactions, I've received responses to access to information requests in which 40 pages have been redacted, and there are references to the act, and then you have 48 pages, which can in some cases include an entire document that is not available.
My question is quite broad. How do we make sure redactions are done properly and are not done to avoid accountability when it comes to the public's right to know?
Mr. Wernick, I'll start with you, and then I'll go to Mr. LaPointe.
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
Whether it is a request-based model where something is released, or something is released unless there's an argument not to, redaction is the process of separating the releasable from the unreleasable. It does require the exercise of judgment and interpretation of the law and the practices.
The first screen should be clarity and definitions, with very precise and clear language and definitions, which could be updated from the 1980s version of them to catch up with current practice. Then I think you have to give the commissioner a role in challenging and overseeing, and the ability to call out what he or she sees as inappropriate redaction.
At the end of the day, you can go to the Federal Court, and the courts would have the final say on a lot of issues. I believe the Federal Court should have the final say on any issue to do with whether cabinet confidences are involved or not.
My recommendation, which you'll see in the brief, is that the definition of cabinet confidence is far too broad right now.
Conservative
Damien Kurek Conservative Battle River—Crowfoot, AB
Thank you.
I want to hear from you, Mr. LaPointe, but first I'll follow up with Mr. Wernick on the need for resources for the Information Commissioner.
We've heard a number of witnesses say that it's all well and good to have the ability to make orders, but if there aren't enough resources to ensure that it's a meaningful process, or if those in the access to information commissioner's office don't have the resources to meaningfully follow through on those things, it's problematic.
Do you have any brief comments on that?
Then I'll get to Mr. LaPointe.
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
It's ultimately up to Parliament to decide how much to appropriate. You have a range of officers, agents and feedback loops from the Information Commissioner, the Privacy Commissioner, the Auditor General, the Parliamentary Budget Officer, the official languages commissioner, the Conflict of Interest Commissioner, the lobbying commissioner, the integrity commissioner, and on and on.
There are about 3,000 people and about $40 million invested in watchdogs, and that doesn't go to the people who work in departments and agencies actually having to chase down information in computer systems, filing cabinets or old archives and paper documents.
The private sector uses a term “cost of sales” or “cost of production”. There is a cost of transparency within the federal system, but you have the power of the purse and you have the ability to affect the appropriations and supply to those agencies.
Conservative
Damien Kurek Conservative Battle River—Crowfoot, AB
Thank you.
You have about a minute, Mr. LaPointe, if you have something to add.
Vice-President, Editorial, Glacier Media; Publisher and Editor-in-Chief, Business in Vancouver
My world record for a redacted document was a 2,700-page one. I got lovely new sheets of paper to put into my fax machine at the time.
I would say that it probably does best in empowering the Information Commissioner to have greater oversight and, if necessary, to then have a small agency, a small board or a small adjunct to the Information Commissioner's office in order to help arbitrate redactions so that the public interest is served better.
Conservative
The Chair Conservative John Brassard
Thank you, Mr. Kurek.
We are now going to Mr. Bains for five minutes.
Sir, you have the floor.
November 21st, 2022 / 4:35 p.m.
Liberal
Parm Bains Liberal Steveston—Richmond East, BC
Thank you, Mr. Chair.
Thank you to our guests for joining us today.
I'm going to Mr. Wernick first.
I think you briefly mentioned something about the Federal Court. One of our previous witnesses, Monsieur Drapeau, suggested changes to the Information Commissioner process to help speed up the process of ATI. Specifically, he said to introduce a one-year period before complaints can be brought before the Federal Court.
What are your thoughts on his analysis?
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
I don't have enough knowledge to recommend anything. I think that some sort of reasonable period for disclosure, especially if something is subject to proactive disclosure, should be accommodated, but I am not in a position to offer what that cut-off should be.
The Federal Court is not a place you can just go to and get a ruling tomorrow. It's a busy place dealing with all aspects of federal law. Yes, they do expedited hearings, but be careful what you wish for. You may be clogging up the Federal Court if there's too easy an access to it for smaller matters that could perhaps be solved by some sort of dispute settlement mechanism or an intermediate body, as Mr. LaPointe suggested. I find I'm agreeing with him an awful lot this afternoon.
