JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, May 31, 2000

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[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): I'd like to call the meeting to order. I know members of the committee are going to want to have all of the time available to discuss the issues of the day.

Today we'll be looking at the 2000-01 main estimates, vote 40, under the Department of Justice report on plans and priorities. Our witnesses are from the Office of the Information Commissioner of Canada.

Specifically, we have John Reid, the Information Commissioner of Canada. With Mr. Reid are Alan Leadbeater, the Deputy Information Commissioner of Canada—and, not to cut too fine a point, a Nova Scotian—along with Daniel Brunet, general counsel to the commissioner.

Welcome, all.

I understand, Mr. Reid, you'll be wanting to make some opening comments.

Mr. John M. Reid (Information Commissioner of Canada): Thank you very much, Mr. Chairman. I also want to thank you for rearranging the date for this. I had come down with whatever is going around and was incapacitated for about two weeks.

I have two things I would like to do today. I have good news and I have bad news. I'd like to bring forth the good news first—the report cards I tabled yesterday. They show a remarkable improvement in the approach the government is taking to time delays and getting access to information requests out to the general public. I have been really quite impressed by the way in which the government has moved to turn this around.

Some very significant changes have taken place. Perhaps the most striking has been the fact that organizations like Privy Council and Health Canada, which before had received Fs for failure, have now gotten As. They have been able to work in the last year in such a way as to be able to ensure that they are keeping track of what's going on. Those who got Fs have improved significantly from what they had been a year before. As a result, I feel they are on track next year to do significantly better than what they have been doing.

When I first made my complaints about the time delays, that was 60% of the workload of my office. The figure now, as of the end of the fiscal year, is about 49%. However, the intake we're having as we sit is about 35%. So I regard this as a significant improvement. The government has clearly taken this matter seriously. They have put the resources into it, and I have been very impressed by the results.

The details of the way in which we have approached this question are in the report cards, and we have given an explicit audit for each of the departments involved.

I should add one thing, which is that we extended our reach this year by two departments. One of them is Transport Canada and the other one is HRDC.

In the case of HRDC, for the time that we were auditing them they received an A. Our audit period, however, ended before they were lambasted by a tremendous number of requests arising out of the audit situation. All of those will be completed by the first week in June. They have worked very closely with us to make sure the delays were as minimal as possible.

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As you know, there has been great discussion about the famous database. A number of requests have come in under access to information. As well, about 26,000 have come in under the Privacy Act.

We understand that there is going to be a delay. They have undertaken to work with us, and we with them, to make sure those delays are minimized as much as possible. So we have been very pleased by their performance under stress.

Our philosophy is that if a department has properly resourced itself to handle the normal flow of access requests, we don't get very excited if they happen to get hit by an abnormal number of those requests, because nobody can resource those kinds of requests. So we give them kudos for the kind of work they have done.

Now the bad news.

I have been accused by a number of people of being a person who does not give enough credit where credit is due when it comes to the act. I have accused the civil service and the government of being in a secretive mode; the culture of secrecy is alive and well and very powerful within the Government of Canada. Sometimes I used to think maybe my rhetoric went too far. However, I have just gone through an experience in the last two days—in fact, I am still going through that experience—where the government has launched a direct, fierce attack on the Access to Information Act. That attack is contained in the money laundering bill.

The money laundering bill proposes to say that all of its information and data are exempt from the Access to Information Act. In other words, it becomes a black hole in the system. You cannot reach it. The Access to Information Act cannot reach it.

We had discussions with the Deputy Minister of Finance about the reasons for the requirement that they be outside the act. When we discussed all the information that they anticipated having, they were not able to give us one single example of information that was so important that it was not already covered by exemptions within the Access to Information Act.

We wrote to the deputy minister and we told him that we could not find any justification for this as a result of the discussions, and we did ask them to provide us with written documentation as to what the reasons were that this act was so important that it alone, above all other acts of Parliament, should be excluded from the ambit of the Access to Information Act. We did not get a reply.

Secondly, I wrote, and sent by hand, a letter to the chairman of the finance committee, which was hearing this bill, and asked to appear to discuss my concerns on this clause. I did not receive an acknowledgement and we were not called.

The bill is now in front of the Senate, and I have written to the chairman of the Senate committee to ask him for permission to appear to raise this issue with him.

I believe this is very important. If you take a look at the information contained within the money laundering bill, and examine what it is, and you say that this information is so important that the bill must be outside the ambit of the Access to Information Act, it means in effect there is no other possibility that there are many other acts that could also have that effect.

For example, I don't believe the information contained in this bill is more serious than what CSIS has. I don't believe the information the RCMP has is less serious than what's going to be in this bill. I don't believe the information the departments of foreign affairs and defence have would be any less difficult to deal with than what is going to be contained in the money laundering bill.

I feel this is a direct, deliberate attack on the integrity of the Access to Information Act. If we do not move to try to stop this, I feel we're going to see this pattern repeated as government continually brings down legislation that exempts chunks of government activity from the eye of the public, and particularly the eye of members of Parliament.

I say “eye of the members of Parliament” because I am aware that there is a study going on with regard to where members of Parliament get their information. I am told that the people who have been surveyed so far, all from the government supporting side, all have said that their number one source of information is access to information.

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Around this table, then, and around the House of Commons, the Access to Information Act has become the primary way in which members inform themselves as to the activities of the government. We are now seeing what the government is doing—removing information away from the ambit of the act, away from the citizen's control, and away from the trustees of the system, the members of Parliament, and removing their ability to gain control of it as well.

Mr. Chairman, thank you.

The Chair: Thank you very much.

Do either of your colleagues have anything to add? If not, we'll go directly to members.

Mr. Reynolds.

Mr. John Reynolds (West Vancouver—Sunshine Coast, Canadian Alliance): Thank you, Mr. Chairman.

In your comments, you mentioned that a study is going on as to where members get their information. Who would be doing that study?

Mr. John Reid: I believe one of the non-governmental agencies are doing it, public policy research or something of that nature.

Mr. John Reynolds: An agency funded by government?

Mr. John Reid: They may well have money coming from government, yes.

Mr. John Reynolds: I wrote you a letter—and I thank you for your reply—with regard to groups that are exempt from the Access to Information Act. I had a number of constituents write me letters, and they fully understand why corporations like the CBC, Air Canada, and Canada Post.... They may not agree, but they understand that they compete in some areas with the private sector. They understand why their information could be exempt, but they don't understand why the Canada Foundation for Innovation or Nav Canada would be exempt. In your reply you say it's a serious concern to you as well.

I'm wondering what the government uses for justification to exempt in these cases. For instance, at the Canadian Foundation for Innovation there are salaries being paid, there are expenses, and I think the public would like to know exactly what they're doing.

Mr. John Reid: As I say, we wrote to the deputy minister. I have provided the table with those letters that I mentioned. They can be circulated at any time. We did not get the favour of a reply from the deputy minister.

Nav Can was something that happened before my time, but it got through. My fear is that if we don't take a stand now with this particular bill, this will then become policy of the government that these new free-standing monopolies will be independent of the Access to Information Act. I believe that is what is going on.

It is my philosophy that any time the government creates one of these special operating agencies it should continue to be subject to the act as long as it is not in a competitive situation with the private sector.

Mr. John Reynolds: What can we do?

Mr. John Reid: Well, I would say that the nice thing I'd like to see you do is call the Minister of Finance and say “Why are you doing this, Mr. Minister? What is the rationale for it?” There may be a rationale, but they have not told us.

Mr. John Reynolds: Okay.

On the different government institutions that your office gets complaints about, do any one, two, or three of them stand out as being where the majority are coming from, or is it balanced right across the spectrum?

Mr. John Reid: No. There is a range of places, and we can give you a little bit of information about that.

If you take a look at the report cards, the ones I've listed there are basically your top operating departments from the point of view of requests. One in there that is also very heavy but you don't see is the Canadian archives. They amount to about 13% of total requests.

Those would be the ones that are the most extensive in terms of requests flowing into them. Of course, you get situations where a department will become hot and it will get a flow of requests at that time as well.

Mr. John Reynolds: Right.

In the last session Parliament adopted Bill C-208, amending the Access to Information Act by adding section 67.1 to it, making it an offence to hide, alter, or destroy government institution records, or to counsel such acts. The Treasury Board issued an implementation report to provide guidance to the public servants with respect to this new provision. You were very critical of this interpretation issued by the Treasury Board, saying, in an October 20, 1999, speech to the Canadian Access and Privacy Association, that this document diluted Parliament's strong message.

Could you elaborate on what your concerns were?

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Mr. John Reid: Yes. What they attempted to do in that document was to exclude the Office of the Information Commissioner from having any participation in those activities.

However, I am much more relaxed now than I was then, and the reason for that is that we have had two examples of difficulties under that particular section. The most famous was the one that happened in the Department of National Defence, when documents suddenly disappeared. We were called in by the minister to carry on an examination of what actually happened, and we did that. Since that time, we have done at least one other of which I am aware.

What has happened is that in spite of the policy by Treasury Board, ministers and deputy ministers have been more intelligent and have gone directly to us. We have not been pushed to the sidelines, as the projected recommendation by Treasury Board and the justice department indicated would happen.

Mr. John Reynolds: So you're satisfied.

Mr. John Reid: I'm satisfied with the way things worked out. I'm certainly not satisfied with the way in which Treasury Board and the justice department handled the consultations that went on with that. We had one meeting with them. We were told that there would be further meetings, none were held, and then we suddenly found out that this regulation had been passed.

Fortunately, we were not alone. Privy Council was part of that, and they too were surprised to find that they had not attended any other meetings.

Mr. John Reynolds: I have just one final question, a general one going back to the exempt organizations. You mentioned that the Minister of Finance or the deputy minister aren't meeting with you. Are there any powers in your act so that you could demand that government people meet with you to get you the answers you require?

Mr. John Reid: I can and do subpoena people.

Mr. John Reynolds: Well, in this case, if the deputy minister is not answering your questions, rather than us trying to get this committee to agree to bring the Minister of Finance to this committee, would you not just subpoena him?

Mr. John Reid: We can only do that if it's part of an investigation that has been brought to bear by a citizen. I can't do that in terms of negotiations that go on within the government structure.

Mr. John Reynolds: Well, let me put it this way. Let's say I'm trying to find out information about the Canada Foundation for Innovation and I'm told they're exempt. I'd like to know why. If there's a very legitimate reason that the public would accept, I think that's fine. But if we can't get an answer to your office from the government as to why they're exempt, is that not enough in that I have the request in to you for the information? If it's obviously not coming because of this exemption, can we not then have your office subpoena the deputy minister and tell him we'd like an answer to that question?

Mr. John Reid: I will look into that.

Mr. John Reynolds: I'd appreciate it if you would.

Mr. John Reid: I will look into that and get back to you.

Mr. John Reynolds: Thank you.

The Chair: Thank you.

On that note, Madam Venne.

[Translation]

Ms. Pierrette Venne (Saint-Bruno—Saint-Hubert, BQ): Good afternoon, sir. On 15 September, 1999, the Bloc Québécois, under the Access to Information Act, asked the Privy Council to have access to the studies and outside assessments that had been commissioned by it concerning the Supreme Court's referral on the secession of Quebec. The Privy Council will neither confirm nor deny the existence of such documents. So a complaint was forwarded to your office on 12 November, 1999, concerning that request.

Firstly, how can you explain today that your office still has not answered this complaint more than six months after it was filed? Secondly, do you find it normal that the Privy Council should withhold those studies? I wonder if they are not in the public interest. Those are the first questions I have for you.

[English]

Mr. John Reid: The answer is that we have received your complaint and it is still under investigation. The investigation has not yet concluded. It has gone on for much longer than we anticipate that these should go on. We usually try to close a file within four months. This one is proving to be, I think, more difficult than had been anticipated.

[Translation]

Ms. Pierrette Venne: I'd like to know if you think that the powers, the staff and the funding you have available presently are necessary and sufficient enough to allow you to discharge your duties. Would it be because of a lack of powers, staff or funding that you can't answer that kind of request more quickly?

[English]

Mr. John Reid: I can say that I am satisfied with my powers. While I do not have the power to compel documents to be released, any commissioner who has that power is always subject to the courts, in any event.

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I find that the types of ombudsman powers I have are quite satisfactory. I have very powerful tools at my disposal to carry on an investigation. I have the powers of the Superior Court. I can subpoena people. I can keep records. I am very satisfied with those powers.

You have asked another question, about the resources available. We have gone through, in the last year, a very exquisite examination of what resources we have and what our responsibilities are. We hired an outside consultant at the insistence of Treasury Board. The Privacy Commissioner did the same and so did our corporate management group. I can tell you that for three months we went through a very excruciating audit and examination.

As a result of those reports, Treasury Board agreed that we did have cause to ask for more resources. In time, a request went forward. This was called our A-base review. The result of that was that they gave us about 59% of what we requested, 59% of what they had agreed we needed to meet our obligations.

When we asked them for an explanation as to why it was 59%, we were basically told offhand that “nobody gets what they need, but you're getting 59%”. That's what we have received. We are taking those additional resources and putting the majority of them, about 90% of them, into hiring more investigators so that we can attack our backlog.

We are also going to go back to Treasury Board to ask them for additional funds to hire some additional investigators so that we can eliminate the backlog. I'm very unhappy with the backlog I have.

[Translation]

Ms. Pierrette Venne: Coming back to my first question, I'd like to know if there were many other investigations that lasted more than six months. You say that in general it takes four months but I'd like to know if there were many more of that ilk.

[English]

Mr. John Reid: That's our average. We have some that go relatively quickly because they're straightforward and simple and we have others that are extremely complex and difficult, that will sometimes, in some cases, take maybe a year.

[Translation]

Ms. Pierrette Venne: In this case, do you think that we could get an answer soon or do you have no information on the progress of this investigation? Can the members of the Bloc Québécois hope to obtain an answer before the next elections?

[English]

Mr. John Reid: I'm not privy to when the next election will be called.

Some hon. members: Oh, oh!

[Translation]

Ms. Pierrette Venne: Me neither. Within a year.

[English]

Mr. John Reid: Oh, really? Oh yes, much sooner than that.

[Translation]

Ms. Pierrette Venne: Fine. Thank you.

[English]

The Chair: Mr. Mancini.

Mr. Peter Mancini (Sydney—Victoria, NDP): We're told that the election will be within the next year, so—

[Translation]

Ms. Pierrette Venne: That's it.

Mr. Peter Mancini: That's it.

[English]

I have just a couple of questions, thank you, Mr. Chairman.

You've made numerous recommendations. Those recommendations, as I understand it, are not binding. They are recommendations that come from your department, and then of course it's up to government whether or not they want to make them binding. Should they be binding?

Mr. John Reid: I have looked at this quite carefully and I have come to the conclusion that I do not need an order power.

The reason for that is that in talking to my colleagues in the provinces who do have an order power, what they find is that where they issue an order that the department is in agreement with there are no problems—and they would usually get that by doing a finding. Where they issue an order where the department is not in agreement, they end up going to court.

I would prefer to have the powers that I have to negotiate a settlement. It's much quicker, much cheaper, and much simpler. We were looking at those statistics, and of the cases that come into my office we settle about 99.9% of them. We end up with 0.1% in the courts, so we think the system works very effectively. It is much speedier than the court process and it's a heck of a lot cheaper for the system, so we feel it also saves the government a considerable amount of money.

Mr. Peter Mancini: You've already answered my second question, which was, how often do you have to seek recourse to the courts?

Mr. John Reid: We try to go to court only when we see that there is a question of law at stake or where there is, in our judgment, a document that clearly should be released that the department is opposed to releasing. We are often called, of course, by others who are going to court. We have to participate in those but we try not to get involved in those if we can at all avoid it.

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Mr. Peter Mancini: Thank you. Those are my questions.

The Chair: Thank you.

Mr. Mackay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair, Mr. Reid, and all of you. I appreciate you being here today, and particularly for your very frank and direct information to us.

With respect to accountability to Parliament, as a former member of Parliament, I think you have a great insight into this area, as opposed to accountability to government or the executive branch. I read in some of your past presentations and information to us that you're not satisfied with the method of reporting that's currently in place and you would prefer to see a more direct level of accountability and direct reporting to Parliament as a means of increasing transparency, which is not the hallmark of this administration. I believe you favour a direct line to Parliament where, through members of Parliament, all Canadians would achieve this greater transparency. Are you still of that mind?

Mr. John Reid: I am of that mind because the scheme in the act is that my responsibility is to members of Parliament, and specifically to members of Parliament gathered in committee. One thing that's most important, I think, is that when that scrutiny by Parliament lessens, as it has lessened in the past, it means that the overall activity of government in trying to comply with the act diminishes. This is perfectly normal. Therefore, it's my responsibility to make sure you're aware of what my concerns are.

I also require the scrutiny of members of Parliament, because you are, in effect, my employers and it's important that you make sure I'm not getting away with anything and that I'm meeting my deadlines. That's your responsibility and it's outside the government's structure.

I also have another problem, which is that right now I have to report into the government, to ask for money and other resources, to the Treasury Board through the Department of Justice. Since my honourable opponent in court is always the Department of Justice, I find myself in a situation where I'm often in conflict of information and where I'm very reluctant in many cases to provide the Department of Justice with information they demand.

Mr. Peter MacKay: This is almost like reverse disclosure by a defendant to the prosecution.

Mr. John Reid: Precisely. I find this a very difficult and trying situation. I have suggested a number of mechanisms, one of which would be to have me report to the House leader, the reason for that being that the House leader is the one who is most in contact with members of Parliament.

Mr. Peter MacKay: Mr. Reid, perhaps I may continue along those lines. Some of the things you've said both today and in the past are very troubling and should be troubling to Canadians, not the least of which is what you've told us about the backlog. With an increasing caseload, I suggest the backlog is going to continue. Essentially, it's going to get worse, while all the while it appears from the main estimates that your budgets are decreasing, not increasing, proportionately at least.

Similarly, or along those same lines, it appears that this movement toward.... I'm paraphrasing here, but I believe you indicated that the government, through studies and through moves that they've made, are appearing to try to exempt large chunks of their department from your scrutiny. That is to say, they're expanding the number of areas under their purview to which you would have no direct access or ability to scrutinize.

All of this you've theorized. You're not sure what the rationale is, and we can all speculate. My own is that it's for the retention of power. I don't expect you to comment. Similar to the question from the Reform Party, why is this happening and what can we do to reverse this trend, short of raising it in the House of Commons and trying to get the wrath of Canadians?

Mr. John Reid: My own judgment is that no deputy minister wants to come before a committee and defend the undefendable. They don't like to look stupid and they don't like to be embarrassed. And when they can't justify a policy, that's in effect what happens.

I'm not privy to the reasons why they have taken Nav Can out or why they are proposing to take out of the system the money laundering bill, particularly when you look at the activities it is going to undertake and see that they are not in the extreme any more than CSIS, the RCMP, Defence, or what have you. There's nothing they need fear, but that is the proposal. It may well be that this is the policy that is being developed to take these stand-alone agencies and remove them from the purview of Parliament. That's what seems to be happening.

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I don't have a problem with the government trying to reorganize itself and to make its operations more efficient. And if that requires spinning them off, I'm in full support. But I do not believe the government should be spinning off organizations so that there is no accountability.

I believe accountability should continue because it is taxpayers' dollars that go to fund their activities. If taxpayers' dollars are there, then Canadian citizens have a right to know how that money is being disbursed, what decisions are being taken, and the way in which those decisions are taken. Thus, my philosophy is that the government can reorganize itself in any way it chooses, but it must not reduce accountability to Canadians.

Mr. Peter MacKay: Do you feel the creation of this Ethics Commissioner—and I guess this question is twofold. First, have you had any contact or ever had occasion to interact with this Ethics Commissioner that is supposedly a watchdog but appears to be a toothless Chihuahua? Have you ever had occasion to scrutinize complaints that were made to the Ethics Commissioner? Can you also comment on what level of contact you have with the Privacy Commissioner?

Mr. John Reid: I can tell you that the Ethics Commissioner was on my back for a year until I got my affairs into the order that was ordained by the Ethics Commissioner. It was not a pleasant experience. So he does have teeth, at least in the case of senior public servants, and I have a few scars.

Second, we have dealings with his office when people have asked for certain kinds of information. They have cooperated with our investigation and we have had no difficulty with them from that point of view.

The Privacy Commissioner and I are part of the Office of the Information and Privacy Commissioners. Although we have separate legislative acts, we do share the administration, and we pay our share to ensure that our computers work and our human relations and all of that is done. Mr. Phillips and I meet from time to time to discuss issues of common concern and also to indicate those areas where we often do have a disagreement.

Mr. Peter MacKay: Your computers are not connected or siloed, are they?

Mr. John Reid: We have a connection. We are separate but equal.

Mr. Peter MacKay: Separate but equal.

The Chair: Thank you very much, Mr. MacKay.

Madam Carroll.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): I don't have a question at this time, thank you.

The Chair: Mr. Maloney or Mr. Saada.

Mr. John Maloney (Erie—Lincoln, Lib.): I'd like to return to the comment about the money laundering bill and the attitude of the finance department. Section 39 of the act allows you to make a special report to Parliament. Is this something that can be done in this situation?

Mr. John Reid: The problem is that this act has moved extremely rapidly. That's why I was somewhat upset, because I discovered it had already gone out of the House of Commons over to the Senate. The Senate has scheduled three hearings on the act. I don't know how many were held by the House of Commons finance committee. But we did write to them and we did ask for permission to come and explain our concerns about the offending clause. But whatever happened, happened. We did not get an invitation to appear and we only picked up on it this morning.

Mr. John Maloney: This morning.

Mr. John Reid: This morning, when we discovered it had gone through the House of Commons.

Normally, the House of Commons—when I was there—is famous for taking a lot of time with legislation going through, but the system seems to be much more streamlined since then.

Mr. John Reynolds: A much more cooperative opposition.

Mr. John Reid: Well, that's—

Mr. John Maloney: Are you claiming you could have used section 39 but it's too late to use section 39?

Mr. John Reid: It's too late to use it now, because it's gone through the House. So my only hope is to convince the senators to send it back with a clause saying, reconsider the Access to Information Act clauses. And that's what I'll be trying to do.

Mr. John Maloney: You've issued a report card and things are improving—we're happy to hear that. The difficult part, of course, is that your workload seems to be getting higher as well. You have a backlog. Does that make you, perhaps, more sympathetic to some of the problems of the other departments that are trying to get information to you? Who, perhaps, should be policing the police? Who should be watching you and your backlog?

Mr. John Reid: I think you should be, because you're the ones to whom I report. And I'm trying to be as open and frank as I can about the difficulties.

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However, when all is said and done, the organization that has the responsibility for the proper administration of the Access to Information Act, which includes my office but also includes all the activities that go on in the departments, is Treasury Board. I have said many times before that Treasury Board has been very lax on this front. A lot or part of that goes along with its philosophy, which is, once we tell them what is to be done, they will automatically go and do it. But Treasury Board never goes back to check and see if in fact it has been done.

So I have been encouraging, both publicly and privately, and nicely and not so nicely, Treasury Board to become much more aggressive in making sure the necessary audits are undertaken, to ensure that the resources are in place and to ensure that the problems we have in delays are mitigated. They have moved to hire, I think, one or two people to begin an educational program to go into the departments and to explain to people what their obligations are under the Access to Information Act. So we see them taking some steps, haltingly, but we see them taking some steps and we're grateful.

Mr. John Maloney: Getting back to the money laundering, we see that bill as an important part of our tools in perhaps combatting organized crime. Could you briefly tell us what your concerns are?

Mr. John Reid: Yes. My concern is that all of the information in that department, when it's set up, will be exempt from the Access to Information Act. My concern is that once you start building these black holes in the system, a lot of other information can flow into it as well. We have already run into problems with Nav Can, because of accident reports and whatnot, where we can't get the information from them. They no longer provide it, but it used to be provided.

When we had our meeting with them we went into some detail to talk about what kind of information they were having that they basically had to protect. They had no information they wanted to protect that wasn't already protected by the Access to Information Act. So the question we asked them was, if in fact this information is already protected, why should they be exempt from the act? The answer, I guess, is simply, “We want to be.” You could look at it as sort of a macho thing, that “Ha, ha. We're exempt from the act and you're not.” I don't know if that's fair or not.

Mr. John Maloney: But if the information is already protected, what's the difficulty in having it protected again?

Mr. John Reid: Because it protects everything, including that information.

Mr. John Maloney: It's all-encompassing.

Mr. John Reid: That's correct. It means you can't see into it any more. You simply cannot see where they're coming from, how they're getting there. You then become the victim of the way in which they choose to let information out.

Mr. J. Alan Leadbeater (Deputy Information Commissioner of Canada): I'll give you one example, Mr. Maloney.

It's a fairly draconian bill in terms of obligations imposed on all Canadians to report suspicious transactions involving money, as you know. That information goes to a centre set up under the bill.

Evaluative information over the years about how well the bill is working, whether it is actually helping in the fight, how much money is being spent by the organization to do the work, whether there is a better way of doing it—all of that evaluative and administrative information would not be available to people.

I don't think it's a case of us saying we want to know who's reporting on who on the money laundering side. No. That can be protected by the provisions in the act. But this other evaluative information that would help members of Parliament and Canadians assess whether the centre was a good idea—is it doing a good job, is the money being squandered—that kind of information would not be accessible.

Mr. John Maloney: Thank you, Mr. Chair.

The Chair: Thank you very much, Mr. Maloney.

Back to Mr. Cadman.

Mr. Chuck Cadman (Surrey North, Canadian Alliance): Mr. Chair, just a quick question because I anticipate it might have a longer answer.

Could you maybe describe for us some of the challenges you see being presented to you in dealing with the World Wide Web, dealing with the information highway, and is the act sufficient to accommodate them?

Mr. John Reid: It's one of the questions that we're going to have to look at quite seriously and it's one of the reasons why I have been pressing for a review of the act as it now stands.

Let me give you three situations with the World Wide Web. One is an advantage to us. We have had cases, for example, where people have said they can't give out information because it belongs to third parties, yet we've had our investigators go on the web and find that information on websites, not on the website of the company that owned the data, not on the government website, but on third-party websites.

• 1615

We've had cases where they have said there's no possible way they can give out this information because it's too valuable, and we've found it under the government body's own website. We've gone to them and said, “Okay, we found it on your website. Release it.” They say, “Oh, terrible mistake. We have to get rid of it”. We go back a week later and it's still there, so we tell them they have to release it. So it does make more information available in a variety of ways.

One of the questions we have to deal with is what is publication. The traditional way of publishing is that it be published as a government document in the Gazette or that it be turned over to the library depository system. What happens if something is published on the web? Is that publication in the same way? Does it make it available to more Canadians or fewer Canadians than the traditional ways of doing it? We have to look at that because that has a lot of implications for departments. If the government's project of being online by 2004 is met, this is a question that has to be debated and understood.

How may Canadians have access to the World Wide Web? Do more Canadians have access to the web than have access to libraries or to the Gazette? These are questions that Parliament has to debate and look at.

The third thing with the web is that we're discovering that information is often published only on the website. Sometimes the website takes down that information after it's been up for a relatively short period of time. The webmasters don't always keep records as to what they put up. Sometimes the documents they put up are not necessarily the documents that were actually used. Sometimes the documents go up and they're in formats that ordinary people can't download.

So there are a lot of problems with the web, and we're trying to monitor what is happening. We can see that it opens things up, but it also has the potential to close things down.

I am very fascinated with the process the government is undertaking to make itself electronically available. That has to be done if the government is going to meet its obligations in 2004 to be the most wired government in the world. There are a lot of problems in there that have not been thought out.

I am concerned because I have been advising the people who are trying to do this that when you start to go electronically with all of your documents, you have to build into the system the questions of the Privacy Act and you have to build in Access to Information. These are the two fundamental pieces of legislation that stand above every other act of Parliament. Each has the notwithstanding clause, and it means that these are the two acts that control the way in which information is supposed to flow out.

My concern and that of Bruce Phillips in this case is that if the government doesn't do it right and doesn't think through what it's doing, it could end up costing the government much more to meet its obligations under the privacy and information acts than it does now in what is essentially a paper-based system with a hybrid amount of electronic documentation attached to it. So those are my concerns on that frontier.

I have two other concerns that you did not mention, but I will mention. One of them is e-mail, electronic mail. We have not yet worked out the appropriate ways of being able to handle electronic mail in a way that makes it easily retrievable. Yet when we start looking at the way in which decisions are made throughout the Government of Canada, a lot of the internal debate, which used to be done on pieces of paper, is now done through electronic mail. This becomes the internal debate that goes on within the government. The systems that track that are still extremely weak.

The other thing we don't have a handle on is voice mail. How many people keep backups of their voice mail? Right now there's no easy system. You almost have to have somebody come in, listen to it, and type it out. Voice mail has become very important as a way of moving information around a complex government structure, and none of that is being recorded and kept. Indeed, once the voice mail goes off, you may not recall exactly what the instruction was or what the information was. These are also questions that have to be discussed and debated.

• 1620

I think it's fair to say that the whole process of how we deal with information and how we get hold of it is changing very rapidly. Right now, I think all of North American society is caught up in a love affair with technology, but the whole question of knowledge management so that we can get that information and use it in a coherent, logical way is a study that is only beginning.

The Chair: Thank you very much. That was a very comprehensive question.

Pierrette.

[Translation]

Ms. Pierrette Venne: Mr. Reid, about the Money Laundering Act, to which they don't want the provisions of the Access to Information Act to apply, I'd like to know if you've thought of alerting the media to this fact. As you know, they're often a lot more powerful than we are. Did that ever cross your mind?

[English]

Mr. John Reid: Since I took this job I've always looked at my primary responsibility as being to inform members of Parliament of my concerns and my problems. I have studiously avoided giving press conferences of any kind, because I prefer to do it through the routes that I have before members of Parliament. The reason for that is that I am one of six officers of Parliament and I believe that is my fundamental responsibility.

I certainly do answer questions that the media bring to me, but I have been studious in not going out to them. Hopefully some of them will be reading the transcript of this and they'll pick it up. I will hopefully be accepted by the Senate to appear before them and to raise the issues there.

Again, one of the things you might want to consider at some point is whether or not I should be doing that sort of thing. I simply have, in a sense, fallen into the mould of my predecessors. I have always taken the approach that before I say anything, I should say it before members of Parliament.

[Translation]

Ms. Pierrette Venne: What we can do now is send you a few journalists. You're not the one who'll have called them, but they'll show up.

That said, I'd like to know if this is the first time, in your opinion, that the government has tried to exempt an act from the application of the Access to Information Act. Is this a first, in your opinion, or have they already tried this previously?

[English]

Mr. John Reid: I think I'll ask Mr. Leadbeater to answer that, because he was there before me.

Mr. Alan Leadbeater: No, it's certainly not the first. I think one of the other members already mentioned Nav Can this morning. That's another organization. The Access to Information Act has a schedule, schedule II, in which are listed all of the departments that can claim, without giving any reason, secrecy over their information. In that schedule there are.... I'm not sure of the exact number, but it's in the order of approximately 30 different pieces of legislation that have been added to the schedule over the years to enhance outside the purview of the act. This is the latest addition to schedule II.

Ms. Pierrette Venne: Merci.

The Vice-Chair (Mr. Chuck Cadman): Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair.

Mr. Leadbeater, just to go back to that last answer, are you saying that 30 have been added in recent years or that there are 30 currently in this schedule II?

Mr. Alan Leadbeater: I certainly would be willing to let you know that exactly. I neglected to bring a copy of the legislation with me. I could look in it easily and give you the number. I'm really just going off the top of my head. I'll be happy to give that to you in writing after I get back to the office and have a look at that.

Mr. John Reid: But the question was whether it has been increasing in recent years.

Mr. Alan Leadbeater: Oh, it has been increasing, absolutely.

Mr. Peter MacKay: And exponentially?

Mr. Alan Leadbeater: Well, that's a term.... I'm not sure what you mean exactly. It has been increasing, yes.

Mr. Peter MacKay: In your time in the department, have you seen it increasing more rapidly in recent years?

Mr. Alan Leadbeater. Yes.

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Mr. Peter MacKay: Going back to you, Mr. Reid, with respect to some of the concerns you've outlined, not the least of which has been the delay that's involved, and delay wherever, in the court system or with respect to the release of information, which has been called the deadliest form of denial. The justice department is notorious for it with respect to any citizen who comes into conflict with the government. It appears that this is a very weighty tool that can be used to the benefit of the Department of Justice.

I am particularly concerned about what you have outlined, not only today but in the past, as to how you are reporting directly to the department, the same department with which you often find yourself in direct conflict. To me, this is beyond perverse. Short of a legislative change, a legislative amendment, how are we going to fix this? Are we to move towards making your department completely independent of the Department of Justice? Or is that the remedy? That seems to me to be a fundamental change that will have to occur.

Mr. John Reid: It is not a change that has to take place by legislation. In point of fact, the government could do it tomorrow with the administrative protocol they have put in place.

There are a number of alternatives. I have suggested going through the House leader, because of his relationships with members. Another suggestion that has been put is that the House of Commons should undertake the responsibility for funding all the officers of Parliament. In other words, the government should provide funds, but Parliament allocate.

But I have gone for the minimal solution, which is to say I should report through the House of Commons, through the House leader, and that gets me away from the Department of Justice. I have told the Department of Justice that I have no problem with them continuing to “own” the intellectual property of access to information within the government structure, but I do feel that the relationship where before I can go to Treasury Board I must go through the Department of Justice is simply not an acceptable situation.

Mr. Peter MacKay: Again, I'm paraphrasing, but you referred to the use of computer technology as ballooning, and this, of course, is leading more and more challenges in the area of intellectual property and information and disclosure.

I'm quoting from page 7 of your report, in which you said:

As early as 1986, the Justice Committee reviewed the operations of the Access law and unanimously recommended changes to strengthen and keep it current with technological changes. Few significant reforms to the Act have been made since this review.

That leads me to believe that what you're calling for is a very comprehensive public review and reform to the act with respect to the use of technology—

Mr. John Reid: Yes.

Mr. Peter MacKay: —because the next logical step is to say, particularly in light of what is happening in the HRDC department, Canadians could be very vulnerable if our technology is not up to speed. Not only is there a danger of somebody getting into the system, but I would suggest that we have to be very conscious of safeguards about information getting out—that is, somebody working within the department just deciding at the flick of a key to post information to which they may have personal access.

I know we're getting into a bit of theory here, but what steps should we be looking at—

The Chair: Could you bring this to a conclusion?

Mr. Peter MacKay: Certainly, Mr. Chair.

What steps should we be looking at for internal policing, and is there anything currently available to do so?

Mr. John Reid: I think at the present time this is one of the elements that has risen to the top of the priority list, simply because of what happened to the servers that were put off, Yahoo and others, by the 15-year-old—

Mr. Peter MacKay: The love bug.

Mr. John Reid: —plus all the problems created by the love bug and all the viruses.

What is happening is that I think we, as a society, have spent a lot of time playing around with the hardware but not much time looking at the software side of it, and this poses a lot of problems for us. For example, one of the dilemmas we have seen has been the collapse of the filing system within the Government of Canada. They can't find what they already have. Treasury Board has done a study, and they have said 20% of the time of every civil servant is spent looking for information that the department has but can't find. The private sector is worse. So I don't say it's the government with the problem; it's the system that's in place for both the private and the public structures.

• 1630

But the government has a different responsibility. It is the trustee. It works for us. It's my information. So you can't treat it the same way the private sector can. It has to be treated in a different way. Their best model would be the banks and the trust companies, which act in a trusteeship relationship.

As you know, I have been very forceful on this subject, but the government really has to start putting together its filing system.

To go to your point, which is the question of security, this is a matter that troubles me greatly, because in my office we have come to a decision that to protect the documents we have, which belong to everybody else and which are in dispute, we do not connect our main internal computer system to the Internet. We have a second network that allows people to do their searches, but the two do not connect. We've done this because of my extreme security responsibilities under the act.

That's not the way to do it if you want to run an open government. It's not the way if you want to run an effective, information-based, knowledge-based government. So you're going to have to take some risks, but you're going to have to put into place—and this is a big challenge for the government and for the civil servants responsible—a system that's as open as possible but yet is going to catch a lot of that kind of interference.

There are people out there who just like to play with the systems, but they're very dangerous once they get in. If you're interested in this subject, there's a book I can recommend that's about 15 years old, called The Cuckoo's Egg, which shows how the U.S. defence department was invaded in the days before the Internet was as pervasive as it is now, and that was all done for fun, actually, by a couple of guys in Germany. It gives you an example of the techniques that have been developed.

Mr. Alan Leadbeater: Mr. Chair, can I jump in and save myself a letter back to Mr. MacKay?

The Chair: Most certainly.

Mr. Alan Leadbeater: Your research staff—and I speak of Mr. Philip Rosen in particular, who happens to be one of the most knowledgeable people around on access and privacy issues—has educated me. He has told me that indeed there are now 50 statutes listed in schedule II and that is up from 24 in 1987. So between 1983 and 1987, there were 24 statutes listed and now there are 50. You can see it's sort of—

Mr. Peter MacKay: Doubled.

Mr. Alan Leadbeater: —a 100% increase over that time.

Thank you, Philip.

Mr. Peter MacKay: Thank you.

Mr. John Reid: Mr. Chairman, as you know, I've been calling for a review of the Access to Information Act. I think this is one of the aspects we have to look at very carefully. That's not to say there isn't reason perhaps for some of those things to be in that schedule, but we really have to sit down and say maybe Parliament should write in the criteria you have to meet to get into that schedule, instead of having it done the way it is now, on an ad hoc basis.

The Chair: Thank you.

Mr. Maloney.

Mr. John Maloney: Mr. Reid, we've had the Access to Information Act since 1983. You've been calling for a review of it. Can you elaborate on what changes you think we should have to the act, other than what you may have touched upon today?

Mr. John Reid: I have taken the view that the Information Commissioner should not really talk about the exemptions in the act. I think that is a question that's better determined by public debate with members of Parliament. But I do have some concerns about the way in which some of the exceptions are handled.

For example, in some of them, there is a public need override and in others there is not. We should really look at the coherence, as to why it is done here and not there.

I am concerned about seeing us look at the question of the electronic documentation, about which we've already spoken. I am concerned that we take a look at the only exclusion in the act, and that is the exclusion of cabinet confidences. And I raise that because in all the provinces that have an access to information act, there is no exclusion for cabinet documents—not Nova Scotia, Quebec, Alberta, British Columbia, or Ontario. None of those governments have ever fallen as a result of that.

• 1635

I think it would be healthy if that exclusion were removed. The documentation, of course, would still be subject to the other clauses of the act, and probably not much more would come out, but it would give the Information Commissioner and the citizen who asks for those documents a large degree of confidence that somebody had looked at the documents and had concluded that these documents were excluded from their ability to get them. Right now this is what I call a sort of black hole in the system, and I'd like to see that black hole removed.

As I said before, I'd like to see a series of clauses inserted that say, this is how you can get things out into schedule II; these are the criteria you must meet.

There's a series of other things I have in mind. I have a document on that, and I'd be happy to send a copy to the committee. It's much more extensive than this shorthand.

The Chair: Thank you, Mr. Maloney.

[Translation]

Ms. Venne.

Ms. Pierrette Venne: In the Placeteco case, since March 23, the Bloc Québécois has been asking for access to the invoices justifying the granting of subsidies. Minister Stewart stated in the House that she had seen those invoices.

Do you think it's plausible that we might be witnessing a repeat of what happened last year when Minister Pettigrew was blamed by you, if I'm not mistaken, for having knowingly withheld information in the quotas affair? I'm talking about the quotas at Human Resources Development. The officials had been given orders to find the people who had received unemployment insurance benefits without being entitled to them and a quota had been set for those officials. Do you think that this is a repeat?

[English]

Mr. John Reid: I am always suspicious when information that is supposed to be provided is not provided within the 30 days. In the case of Minister Pettigrew, it was apparently the fact that his office had been involved in reviewing the information before it went in that caused the delay. At this point, I'm not aware of the circumstances of this particular case.

I should also tell you that I'm restricted from talking about any cases in front of me, because the law is very clear. It says the Information Commissioner can't talk about any investigation that is underway. So I must excuse myself.

[Translation]

Ms. Pierrette Venne: Okay. It was an attempt. Thank you.

[English]

The Chair: Mr. Maloney, one last question, I guess.

Mr. John Maloney: I'll come back again to the review of the act. As you are aware, there's currently a private member's bill, Bill C-206, the Bryden bill. As I understand it, your concern with the Bryden bill, among others perhaps, is that it is a private member's bill, instead of perhaps a committee of the House or a joint committee of the Senate and the House reviewing this. Do you feel that this is fatal for the Bryden bill, that there should be more public input?

Mr. John Reid: I am a supporter of the Bryden bill going to committee, because that would allow us to have an examination. And I have suggested to the government that if the Bryden bill does go, even before the Bryden bill goes, the government should basically send the Bryden bill and all the other private members' bills to a committee, along with the act, and allow the committee to do a full review of the act.

My concern about the Bryden bill from the point of view of doing a full review is that the Bryden bill doesn't cover all aspects of it. It covers about 20 clauses or so, and there are a lot of things that...technically, if it were being reviewed by a parliamentary committee, the committee would have to focus on the clauses in front of it. A lot of concerns that I and others have go beyond the scope of the Bryden proposals. So that is one of my concerns.

But if you ask me if I had my choice between having no parliamentary review and having some parliamentary review, I will always choose the parliamentary review. So I am a supporter of the process. I hope Mr. Bryden's bill does reach this committee and that we can have a vigorous debate on the legislation.

The Chair: Thank you. That's sort of like having half a supper-hour newscast or no newscast at all.

Mr. John Reid: Touché, Mr. Chairman.

• 1640

The Chair: Thank you very much, Mr. Reid, and other guests, and thank you all, members of the committee. I'll see you tomorrow on Bill S-10 at 9:30 a.m. in Room 253-D.

The meeting is adjourned to the call of the chair.