Information & Ethics Committee on April 25th, 2023

[Dean Beeby]

Yes, I'd love to.

She was given so-called order-making power in Bill C-58 in 2019, but it wasn't what she had argued for. It was a watered-down version, so her orders do not have the same effect as a Federal Court judge's order.

A Federal Court judge's order cannot be ignored. There are sanctions that will be applied to people who ignore that order. In her case, there are no sanctions. It's simply that her order goes out, and it can be ignored or the institution can go to court. It has no power, impact or authority.

She argued against this watered-down power when Bill C-58 was being debated, but she didn't get it, so we now have this really weak system.

[Matthew Green, NDP, Hamilton Centre, ON]

Is it your recommendation that the Information Commissioner have more stringent order-making abilities, on par with a judicial equivalent?

[Dean Beeby]

They should be on par with those of a Federal Court judge, yes. That will bring into play sanctions.

[Matthew Green, NDP, Hamilton Centre, ON]

What would you contemplate as sanctions?

[Dean Beeby]

To ignore a Federal Court order is to risk being thrown in jail. There is a range of sanctions—fines, whatever—but the thing is that they're taken seriously, whereas the Information Commissioner's orders can be ignored without consequence.

[Matthew Green, NDP, Hamilton Centre, ON]

In the same article, you describe the ongoing case in which PSPC was ordered to release a file requested under access to information and where the department argued that it did not have control of the file because it pertained to a subcontractor. The Information Commissioner ordered PSPC to deliver the file. PSPC told her they would not be implementing the order and went to a Federal Court with an application asking the judge to overturn it.

Can you describe the impact of departments declining to abide by an order and requesting that a Federal Court judge review the matter?

[Dean Beeby]

Well, it undermines the authority of the Information Commissioner absolutely, and when they go to court to challenge her order, that judge can hear the case from the very beginning. The judge isn't looking specifically at her decision-making. The judge is looking at the whole case de novo—that's the legal term.

That's not order-making power. That's some reduced version of order-making power. It gives departments free rein to snub their nose.

[Matthew Green, NDP, Hamilton Centre, ON]

That's a problem, you would agree—a considerable problem.

[Dean Beeby]

Absolutely.

[Matthew Green, NDP, Hamilton Centre, ON]

Do you believe that the Office of the Information Commissioner should be tracking non-compliance and reporting back to Parliament in regard to the commissioner's orders?

[Dean Beeby]

It should. The commissioner does not have that power in the act as it stands now, but she should be empowered to collect statistics and report to Parliament on the recalcitrant departments that are ignoring her orders.

[Matthew Green, NDP, Hamilton Centre, ON]

Do you have any other recommendations regarding the Information Commissioner's order-making power, to improve compliance?

[Dean Beeby]

No, nothing significant. It would be a major leap forward if she got the power that a Federal Court judge has.

[Matthew Green, NDP, Hamilton Centre, ON]

In your blog post regarding the Treasury Board's review of access to information, you stated that the Treasury Board is not even trying to connect with ordinary citizens, especially not those who are the access to information users they claim they want to “engage”. Can you expand on this?

[Dean Beeby]

Well, I don't know if you've read the report that came out last December from Treasury Board, but it's almost indecipherable. It's written in a bureaucratese that's not meant to connect with ordinary Canadians. I think it's full of obfuscation and dodges.

[Matthew Green, NDP, Hamilton Centre, ON]

I believe you said that it dodges any hint of concrete reform and calls for more study. This is pertaining to the report, I believe. You wrote about that in December. What was your takeaway from that report?

[Dean Beeby]

It was that they had not lived up to their responsibilities to listen to users and others who are telling them what's wrong with the system and to use the solutions that were offered to them.

The minister said last week that it was all a misunderstanding, that they had never intended to put solutions in place in that report. I didn't understand that until she said that last week.

[Matthew Green, NDP, Hamilton Centre, ON]

I think that might have been in my line of questioning when I was quite adamant that the application of amendments to the legislation be used to help actually support the course of the work.

In your opinion, you would have heard her, then, referring to the previous legislation as being the solution. Just so that we're 100% clear here today, you did not agree that the last iteration of this solved the problems we were setting out to solve.

[Dean Beeby]

Yes, she seemed to say Bill C-58 was the big improvement. Bill C-58 had some improvements. Order-making power was a half improvement. It also had some restrictions. It introduced for the first time the problem of frivolous and vexatious requests. Certain requests can be ignored. It wasn't all in favour of the user. Some of it was actually against the user.

[Matthew Green, NDP, Hamilton Centre, ON]

In your opinion, it went—

[The Chair, Conservative, John Brassard]

I'm sorry, Mr. Green.

In doing the math here, I think we have time for a second round of five, five, two and a half, two and a half.

We will start with Mr. Gourde.

Also, we started 15 minutes late, but I've been assured by the clerk that we are able to make that time up with an extra 15 minutes.

Mr. Gourde, over to you.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Thank you, Mr. Chair.

I would like to thank our two witnesses. I will quite probably ask them the same question, starting with Mr. Beeby.

Canadians are concerned about access to information. All the witnesses that we have heard have spoken at length about the issue. They also have concerns about what will come out of the work that our committee is doing today to improve access to information.

Mr. Beeby, what is your greatest concern, and what would be your best recommendations so that Canadians can once again have confidence in access to information?

[Dean Beeby]

Well, as I said before, we need to reduce the brick wall around cabinet secrecy.

We need to reduce delays. There are things you can do legislatively that would help reduce delays. Delays are probably the biggest problem.

There's a section in the act, section 21, that refers to advice. It's a grand loophole. It's a Mack truck-sized loophole for government to withhold anything that it construes as advice. That needs to be narrowed quite a lot.

I also think we need to put a time limit on the Information Commissioner's investigations. They take too long. They don't allow users to go to court if she's taking years to solve cases. I've had personal experience of her taking years to resolve my request.

Those are four things that I think would go a long way to solving problems.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

And what is your take, Mr. Conacher?

[Duff Conacher]

Well, I mentioned them before.

Require a duty to document all actions and decisions. Close all of the secrecy loopholes that allow for excessive secrecy. I agree with Mr. Beeby with regard to the advice and cabinet confidence. That is one of the most abused.

In terms of the commissioner's powers, I mentioned penalties, but also, the commissioner should have the power to audit the information management system of a government institution and make recommendations in terms of cleaning it up so that records are kept in a way that can be accessed easily. That would help a lot with the delays and would spur changes in a lot of institutions that simply are not managing records in ways that can be retrieved so that requests can be fulfilled in any timely manner.

I would emphasize those—but again, there are the penalties. People will react in government when there's a possibility that they could be personally penalized for failing to comply with this act, as with any other law. There are lots of penalties in place for parking illegally, for speeding. You actually have a better chance of paying a higher fine for parking illegally anywhere in Canada than the penalty that would be paid by any public servant for denying the public's right to know. It is a quasi-constitutional right, so the penalty should be quite high for violating that right.