OGGO Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Government Operations and Estimates

EVIDENCE

CONTENTS

Tuesday, June 3, 2003

º

1615

The Chair (Mr. Reg Alcock (Winnipeg South, Lib.)

º

1635

Mr. John Reid (Information Commissioner of Canada, Office of the Information Commissioner of Canada)

º

1640

º

1645

º

1650

The Chair

Mr. Ken Epp (Elk Island, Canadian Alliance)

Mr. John Reid

Mr. J. Alan Leadbeater (Deputy Information Commissioner of Canada, Office of the Information Commissioner of Canada)

º

1655

Mr. Ken Epp

Mr. John Reid

Mr. Ken Epp

Mr. John Reid

Mr. J. Alan Leadbeater

The Chair

Mr. Robert Lanctôt (Châteauguay, BQ)

»

1700

Mr. John Reid

Mr. Robert Lanctôt

»

1705

Mr. John Reid

The Chair

Mr. Paul Szabo (Mississauga South, Lib.)

Mr. John Reid

Mr. J. Alan Leadbeater

»

1710

Mr. Paul Szabo

Mr. J. Alan Leadbeater

Mr. Paul Szabo

Mr. J. Alan Leadbeater

The Chair

Mr. Paul Szabo

Mr. John Reid

Mr. Paul Szabo

»

1715

Mr. John Reid

Mr. Paul Szabo

Mr. John Reid

Mr. Paul Szabo

Mr. John Reid

Mr. Paul Szabo

Mr. John Reid

The Chair

Mr. Ken Epp

Mr. John Reid

»

1720

Mr. Ken Epp

Mr. John Reid

Mr. Ken Epp

Mr. John Reid

Mr. Dan Dupuis (Director General, Investigations and Reviews, Office of the Information Commissioner of Canada)

The Chair

Mr. Robert Lanctôt

»

1725

The Chair

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CANADA

Standing Committee on Government Operations and Estimates

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NUMBER 047

l

2nd SESSION

l

37th PARLIAMENT

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EVIDENCE

Tuesday, June 3, 2003

[Recorded by Electronic Apparatus]

º  (1615)  

[English]

    The Chair (Mr. Reg Alcock (Winnipeg South, Lib.): Mr. Reid, I need to begin by formally thanking you for your patience.

    As Mr. Reid pointed out to me, as a former member of the House he is one of the people around here who best understands the difficulties we have at times. This time slot is a difficult one because almost invariably we have votes right at 3 o'clock on Tuesday, which is a relatively new practice, and it crowds our time.

    If I may have the attention of the members, I'll just refresh everyone's memory. Mr. Reid in his previous report--not his last report because he just tabled one, very quickly out of the box, I note--had included a reference to the work that was done by the Delagrave commission. There he stated his feelings that a House of Commons committee should pick up on that work, that it was too important to leave just to an administrative process.

    That was discussed at this committee. Monsieur Lanctôt and others were quite interested in having you here, Mr. Reid, to introduce that topic and to help us really get a sense of the work the committee might undertake to assist us as we work towards new law in this area. So maybe I could leave it to you to open the subject, and I'm sure you'll have some lively discussion.

º  (1635)  

    Mr. John Reid (Information Commissioner of Canada, Office of the Information Commissioner of Canada): Thank you very much, Mr. Chairman.

    I want to introduce Mr. Alan Leadbeater, who is the deputy commissioner, and Dan Dupuis, who is the director of operations for the Office of the Information Commissioner.

    I want to thank the members for the opportunity to come and talk to you about the parliamentary review of the Access to Information Act.

    It's been 20 years since the act was passed, and the only amendments, basically, that have gone through on that act were the ones done by Colleen Beaumier. These were the changes that made it a crime to destroy government information that might be the subject of an access to information request. On that basis the act is basically as it was when it was passed.

    You'll recall that the last time I was here to talk about substantive matters, it was the question about the crisis in government information management. That's important to us if we consider it from the point of view of access to information, but it's even more important, I would suggest to the committee, if we consider it from the point of view of our being able to carry on effective, efficient government. If the government is unable to locate its own information and unable to use it in an intelligent way, it means the government is going to spend an enormous amount of time reinventing the wheel. Unfortunately, that's the situation we find ourselves in now.

    My solution to this has been to develop a special act of Parliament that deals with the creation, utilization, and life cycle of information. I know there are problems with that concept, but my experience with policies generated by Treasury Board and other agencies of government is that people can drive trucks through them, and they do. I think if we're going to be serious about this, we will have to somehow encapsulate it in a piece of legislation that makes sense.

    I'd like to talk about the process a previous committee went through in dealing with the Access to Information Act. This was back in 1986, when the justice committee looked at the act. It was mandated to do that after three years. It produced a report called “Open and Shut”. No government has taken up that report to make any changes, but if you go back and look at that report, you'll find it is very sensible and very useful. I think it's an appropriate starting point for you.

    Second, the way in which the report was done, it dealt with both the Privacy Act and the Access to Information Act. I would suggest you look at only the Access to Information Act or only the Privacy Act because doing both would be quite a burden. We have had the example of the Delagrave report, which looked only at the Access to Information Act, so it can be done in that way. That would be the way I would suggest you go about it.

    You know that not only is there the Delagrave report, there's also my response to the Delagrave report, and there are other mines of information you should look at. The first is the report done by my predecessor, John Grace, for the office's 10th anniversary. It is still very valid and you can have a look at that, plus there is a gold mine of interesting ideas in the private members' bills put forward by a variety of members of Parliament. The most elaborate one, I think, is one of John Bryden's, Bill C-206, which nearly came to a vote.

    As a matter of fact, what's really interesting about Mr. Bryden is that he presented one about every Parliament, and it kept changing. It's quite fascinating to go back and look at the things he did and the way he changed it over time.

    Last, there's the recommendation I made in my report. I'll just read it to you because it encapsulates everything. It said:

The Minister of Justice must decide how best to deal with the proposals for legislative change. These are highly controversial and do not reflect a broad range of perspectives drawn from the relevant stakeholders. In this context, the Commissioner urges the minister not to draft new legislation based on these Task Force recommendations. The right of access is one of those rights which, by design, is uncomfortable for governments to live with. This is the type of legislation which justifies giving Parliamentarians and the public more freedom to influence the shape of amendments than is possible once a government bill has been tabled. It is to be hoped that the Minister of Justice and the government will support a public review of the Task Force proposals, by a Parliamentary Committee, prior to introducing proposed amendments in the form of a Bill.

º  (1640)  

    It's important to recognize that the task force was made up of insiders and it consulted deeply with insiders. It had a little bit of activity on the outside. It did commission some focus groups done by the Public Policy Forum, and it did have a group of people drawn from the outside as an advisory committee, people who, I am told, never saw the final proposals as they were printed. While they had some interesting discussions, they never had a chance to comment on the final set of proposals as they went forward.

    Those are the reasons I advance for you to take on the challenge of reviewing the act. There's a wealth of analytical information available and there's a comprehensive set of recommendations by my predecessor, John Grace. I have also made recommendations from time to time, and I will consolidate those for you if you decide to go ahead.

    I'd like to go back now and look at the way in which the original committee proceeded. The first step they did was to hire two research agents from outside, one for privacy and one for access. They then developed a questionnaire and a list of issues of concern to the committee. They made that public and they issued invitations, both publicly and directly to certain people, and out of that they received some eighty briefs. After going through the briefs they invited about 31 witnesses to come before them. The committee weighed the evidence and worked on draft reports until the final report was issued in 1987.

    Now, it took 16 to 18 months to do that, but remember that they were dealing with both the access and the privacy acts, so one could assume you could cut the process down somewhat and do it much more speedily.

    It's my view that it is useful to at least review both acts together because they're joined at the hip in a variety of ways. For example, 40% of the work of the Information Commissioner is based on the Privacy Act, and we are always in the business of making judgments about privacy and access in a variety of areas. Having said that, I do recognize the work the Delagrave commission did, but you will want to look at the relationships between the two acts, which are really quite important.

    In its last decision on the RCMP case dealing with the privacy rights of public servants, the Supreme Court made it quite clear again that the Privacy Act and the Access to Information Act are to be regarded as a single piece of work; decisions to be taken where there's conflict between the two are to be done in such a way that it does the least damage to both acts. That's a consideration you may want to think about.

    I should tell you that I have a personal involvement in this because when the act was passed, I was a member of Parliament and I was one of the people who, along with Ged Baldwin, pushed for it. Mitchell Sharp provided Mr. Baldwin and me with money and staff from the Privy Council Office to do a survey of Scandinavian countries, which we did and subsequently reported on.

    While I had a great deal of activity in that area, I want to say that one of the essential things you have to do is re-examine the exemptions that are in the act. They were crafted in the late seventies. We had gone through a very bad patch with the explosions and whatnot during the Quebec separatist violent phase, so the security provisions and a lot of provisions were drafted with that kind of background. They were drafted very carefully, I think, and over time they have proven to be adequate to the task.

    But you will want to look at all of the exemptions that are in there. These are the heart of the act in a sense because not only does the act operate to give you and everybody else access to government documents, what's more important, through these provisions it governs the way governments can release information in any event. They have to meet the provisions of the Access to Information Act. When you deal with those, you are dealing with the way in which the whole flow of government information flows within and outside the government.

º  (1645)  

    The last point I want to make is that this was a particular act that was generated from among members of Parliament. It was not an act that was imposed on government. It wasn't that there were enormous lobby groups out there for this. This was something members of Parliament and, I might say, the higher reaches of the bureaucracy at the time thought was necessary and useful. The members felt it was necessary because they were terribly dissatisfied with the way in which information flowed to them from the government, and they were seeking another way to go about doing that.

    Second, the civil servants thought there was a requirement for the opening up of the process. When you're running very large organizations, you need to have a free flow of information to make sure the people throughout the system understand what the department is doing, how it's going about it, and what the constraints and the difficulties are. It was one of those things where the interests of the members of Parliament, cabinet, and the bureaucracy meshed, and that was the result in terms of the Access to Information Act.

    I want to conclude by saying that in my judgment the act as it is structured is a very good, healthy, strong law, but it is 20 years old and needs to be looked at. You need to examine it from the point of view of what changes have to be made. There are user groups out there, there are citizens out there, there are lobby groups out there, and there are civil servants out there who all have views. I think it's important to make sure that you hear from them so you have a lively debate and to make sure that after that debate you can make intelligent decisions.

    I hope you will undertake this challenge. I think it's important that it be done. It would be an appropriate way to celebrate the fact that the act has been around for 20 years.

    Thank you, Mr. Chairman.

º  (1650)  

    The Chair: Thank you, Mr. Reid.

    Mr. Epp.

    Mr. Ken Epp (Elk Island, Canadian Alliance): Thank you.

    I found your presentation very interesting.

    We have what I call it a tension between your office and the Privacy Commissioner, where on one hand you're saying information should be available, yet on the other hand the other agency says no, this is private and you can't have it.

    I'm just wondering whether one could ever properly codify exactly where the line is between things that are and should be accessible and things that are and should be kept confidential. In my view, most of the situations that would arise would have to be dealt with on an individual basis, and it would probably be impossible to codify them except perhaps with broad, sweeping principles and basic objectives that are to be reached.

    What's your reaction to a statement like that?

    Mr. John Reid: I would say that's what one would think is the case, but when you really look at what happens, there is not that much conflict between the Privacy Act and the Access to Information Act, the reason being of course that they're joined together.

    If you look at the court cases that have put the Information Commissioner and the Privacy Commissioner at loggerheads with each other, you'll find there are very few. In fact, what I'd like to do is ask Alan Leadbeater to talk about those few cases because it illustrates how harmonious the legislative scheme is.

    Mr. J. Alan Leadbeater (Deputy Information Commissioner of Canada, Office of the Information Commissioner of Canada): Thank you, Commissioner.

    The conflict between freedom of information and privacy here in Canada really comes into play only with respect to public officials and how much privacy public officials get.

    I think there have been three court cases. One involved the residential tenancy rates of the NCC leased properties and whether they should be public; one involved the sign-in sheets at the Department of Finance after hours and whether they should be public; and the most recent one involved the previous postings of RCMP officers and whether they should be public. The courts have given us some guidance to the effect that the key is the payoff in accountability. Is there something for the public in terms of understanding government; is there an accountability payoff?

    But it's rare for the rest of Canadians that their right to privacy for their own personal information comes into conflict with someone else's right of access. We don't have those kinds of cases because it's instinctive. The test that's in the act now, I think, is a good use of how you codify this. The test is, does the public interest in disclosure clearly outweigh the invasion of privacy that would result?

    And you're right; in each case that has to be applied, but where it is difficult tends to be only with respect to public officials.

    I'm not sure if that helps.

º  (1655)  

    Mr. Ken Epp: Yes, it helps a lot.

    Mr. John Reid: Let me give you a little bit more information. Some of the people you should talk to are the provincial commissioners who deal with both access and information. I can tell you that the conflict between the information commissioner's office and the privacy commissioner's office from disparate interpretations of both our acts are very few and far between.

    Mr. Ken Epp: I've been an MP just short of 10 years, and I have observed even in the short time I've been here that the access to records I need to keep the government accountable has actually tightened up quite a bit.

    For example, when I was first here, we had the unfortunate scenario of a cabinet minister using government credit cards for personal purchases. We were able to get at least copies of those credit card statements with the personal things whited out. I said okay, there it is, I rest my case; if it's personal and it's whited out, then it shouldn't be there; you shouldn't be using your government credit card for personal reasons. By looking at the beginning balance and the end balance, I was able to actually come up with the numbers because I could do basic arithmetic. In that way we were able to hold the government accountable, although I will admit there were still gaps.

    Now that information is just plain blanket not available to us. I think it should be because it's in the public domain: it's government and it's taxpayers' public money that's being spent. I don't think there's anything wrong with having a cabinet minister or the Prime Minister disclose the actual costs of travel and other expenses he or she incurs.

    Do you agree with that?

    Mr. John Reid: I couldn't agree more, Mr. Chairman, and that used to be the pattern until a little while ago, when an interpretation of a Supreme Court decision surfaced at the request of the Privy Council Office, and Treasury Board changed its regulations.

    You may recall, at one time they were going to provide no information about ministerial expenses on the grounds that ministers were not subject to the Access to Information Act. The outcry in the public and the House of Commons was such that the government decided that by grace, some information would be made available. That information is what is now held within the departments, which means you only get the overall headings.

    There is a series of court cases on that, and perhaps, Alan, you'd like to talk about that.

    Mr. J. Alan Leadbeater: If this committee were to decide to review this act, one of the things it would certainly want to look at is the extent to which records held in ministers' offices are subject to the right of access. This is a matter we're investigating ourselves in response to complaints about the Prime Minister's agenda books and about certain records held by the Minister of National Defence.

    We haven't come to a conclusion ourselves as to what the status of those records is under the act, partly because our investigations have been blocked on numerous occasions by court cases brought by the Crown against our investigations. Those will be argued in the fall, but they will still leave to any committee that reviews the act this policy question: quite apart from the legalities under the existing act, what should be done?

    The Chair: Thank you, Mr. Leadbeater.

    Mr. Lanctôt.

[Translation]

    Mr. Robert Lanctôt (Châteauguay, BQ): Thank you, Mr. Chairman.

    First of all, I'd like to thank the witness for coming. This issue has been very dear to me since the committee's inception and I want to thank every member for agreeing to review this legislation.

    I for one believe that this act can be examined separately. I agree that the two acts are interconnected, albeit indirectly. The Access to Information Act should be considered as legislation that pertains to privacy issues as they involve the government. Conversely, the Privacy Act protects citizens, not the State. That explains why it is drafted the way it is. I think that answers your question. For this reason, it's possible to examine each act separately. We're here to review the Access to Information Act, that is to take a closer look at access provisions enjoyed by the State. Given the way in which we use the Access to Information Act, we are closer to this legislation than the average citizen who could avail himself of the act's provisions, but doesn't always have the time to do so.

    When we do invoke the legislation's provisions, we realize that although worthy, they are extremely impractical because they are slanted toward public servants or the State. The government knows how to get around the act's provisions, particularly through the use of overly stringent exclusions. It's become impossible to access the information requested. Why is it that a person wishing to do business with the public is excluded, when all he wants is a contract? We saw what happened with sponsorship contracts and in a number of other cases. Access to information requests are submitted, but rejected on the grounds that the information is confidential or disclosure could hurt business.

    I think this legislation needs to be amended. When someone enters into a “public” contract with the government, that party has to expect that the details of that contract are open to disclosure. As things now stand, it's impossible to find out the number of hours involved, the lump sum value of the contract, or the hourly rate charged. Yet, this is critical information. If we're told each time that disclosure could hurt private enterprise, then people shouldn't be doing business with the public.

    If we really want to see how things work in government, it's critically important that we know the details of these contracts. This information isn't confidential. We're not asking for information about the company's operations or about any other contracts it may have. We want to know about the contract it signed with the government, and no exclusion should apply in this case. On the contrary, we should be able to review the contract in detail. Indeed, this information should be available to everyone. What do you think?

»  (1700)  

[English]

    Mr. John Reid: You have put your finger on one of the most interesting dilemmas with third-party information the government has. Generally speaking, we get a fair number of requests from people who want to know about government contracts. There is a protocol, and by and large the lump sum has to come out, but sometimes the way that lump sum is arrived at is considered to be proprietary knowledge.

    One of the things I recommend you look at is the whole question of third-party information. The reason for that is that increasingly the government is entering into public-private partnerships. What we see happening is that very often it becomes more difficult to get information about these new entities, and it can be used as a way of escaping the control of the Auditor General, the Information Commissioner, and sometimes the Privacy Commissioner. The whole question of what this means has to be examined.

    We also have the problem of the foundations that have been created with lump sums of money but are not subject to the Auditor General or the Access to Information Act. We have other organizations like NAV Can that actually exercise federal jurisdiction but are beyond the powers as well. These issues have to be dealt with.

    The way the act is structured now, the Information Commissioner has to deal with the act as written, and there are certain things we can do and certain things we cannot do. We can deal, I think, adequately with third-party information, but because of this growing development of what I'd call the third structure of government, the private-public partnerships, I think you'd want to pay a fair amount of attention to that in the future and to incorporate those kinds of decisions into the Access to Information Act.

[Translation]

    Mr. Robert Lanctôt: In my opinion, each committee member will have expanded access and will want the act to be amended. However, at the same time, the public service needs to change as well. We've looked at Bill C-25 and it does not contain any provisions for dealing with whistleblowers. We'll have to wait and see what happens. Personally, I think we're heading down the wrong road by attempting to modernize the public service in this manner. This is an attempt to change the culture, but not the framework, of the public service. I commend the government for taking action, but not for the decision reached.

    How would public servants feel about changes to the legislation? And I do hope that changes are in the offing with a view to achieving, as the government persists in saying, “transparency and accountability”. To achieve this goal, the legislation needs to be amended. That's what the government is proceeding to do, but public servants will enjoy only minimal, if any, protection. Whistleblowers will have problems getting promoted, because only one candidate can be selected, and whistleblowers are not likely to be promoted. In any event, we'll have to live with this for the time being. How will public servants react to the legislation? Will they be tempted to be even more tight-lipped?

    I've even quoted you on occasion, because some of what you said was very important. You once said that public servants take fewer notes and produce fewer documents so as not to leave a paper trail. Is that still true? The situation is complex. However, the act needs to be amended so that the culture of the public service can be changed. There was no inclination to do so in the past.

»  (1705)  

[English]

    Mr. John Reid: One of the things I would like to see this committee look at is mandatory education on the access and privacy acts. At one time, when the act was brought into being in the early eighties, the Treasury Board put a lot of effort into educating everybody about the Access to Information Act and the Privacy Act. They hadn't really had an educational function for the public service as a whole. They really tried to focus their educational activities on the ATIP officers, but there should be a proper regime for senior civil servants.

    My colleague the national archivist went to CCMD about a year ago with a proposal that there be some mandatory courses put together on the creation and the preservation of documents and the Access to Information Act; as he said, there's a whole generation of material that is being lost because of poor record keeping.

    That's one way. Perhaps he could have that mandate, it could be given to this office, or it could be given to Treasury Board, but there should be a mandate. Once people understand what these acts are, a lot of their fear will disappear.

    The second point is, as I have suggested, there should be a piece of legislation to mandate the control, the creation, and the disposal of information. I know there are problems with that, but at present I don't see any great movement in terms of trying to create basic documentation and records within the government.

    As a result of our work, we've found that there are only two places in the government of Canada where minutes are kept. They are in the Parliament of Canada and in the cabinet; you can't find minutes of meetings within the public service.

    The Chair: Thank you, Mr. Reid. We'll come back.

    Mr. Szabo.

    Mr. Paul Szabo (Mississauga South, Lib.): Thank you.

    Mr. Reid, do you have any estimate as to what it used to cost for the operations of our access to information system before fee recovery?

    Mr. John Reid: Yes. For their report the task force had done a calculation along with Consulting and Audit Canada. The estimated cost for the access and privacy acts, as I recall, was about $29 million. That included the operation of the offices as well as the time taken to fulfill the requests made.

    Mr. J. Alan Leadbeater: The total cost including the cost of the Office of the Information Commissioner is $28,845,000, which is less than $1 per year per Canadian, and the per-request costs are dropping. That figure comes from the Delagrave task force study; that's not a figure from our office.

»  (1710)  

    Mr. Paul Szabo: So this would include...?

    Mr. J. Alan Leadbeater: That includes the total costs for delivering services on the rights and obligations under the act, including the investigation of complaints by the Information Commissioner.

    Mr. Paul Szabo: That's not what I asked. Forget about your office and all the good things you do.

    Mr. J. Alan Leadbeater: No, but that includes processing the requests in departments, searching for records, and producing the records. Those costs are reported by each department every year in annual reports to Parliament and to Treasury Board, and those figures were developed as a result of a study Treasury Board asked Consulting and Audit Canada to do for it.

    The Chair: You'll recall that when Mr. Judd was here from Treasury Board, you asked a question about the cost of this. I have received a letter from him that will be circulated to committee members, detailing the costs over and above the cost of the office.

    Mr. Paul Szabo: I know something from my own experience. I had sent a letter to the justice minister about a bill that was in process, sharing my views. I subsequently received a letter saying my letter was being captured by an access to information request, etc. When you think how many people touch these things and how they move around, I'm going to bet it's a lot more.

    Your comment about privacy and access being joined at the hip was kind of interesting. This has been discussed at our ad hoc committee, John Bryden's committee. Since our situation is somewhat unique in that we have two separate offices--most jurisdictions I am aware of, if not all, actually have a combined office or functionality--I'm wondering whether you have an opinion as to whether or not we should consider combining the offices of the Privacy Commissioner and the Information Commissioner.

    Mr. John Reid: To my knowledge, this is the only example worldwide where there are separate offices for privacy and for information. I would think that when the decision was taken early on to divide the offices, it was because we didn't really know what was going to come about. This was one of the first experiments where we put commissioners in who were going to be ombudsmen.

    I think the legislation is mature now, and I think it would be possible for you to look at it from the point of view of joining the two offices, because that is the pattern worldwide.

    Mr. Paul Szabo: So your suggestion to us is that maybe the study should be on the broader question. Not only should we update the Access to Information Act but we should actually consider a consolidation to avoid duplication and look for the synergies that would be possible if the offices were combined.

    I know that when we talked with the Privacy Commissioner, there was quite a bit of interest in the public education and advocacy role that's played. It's almost as if we're trying to drum up business.

    I'm not sure, but I guess there's always this temptation where if you have an office or a position, you look for opportunities to leave a mark, as it were, as opposed to doing the job. I know it has to be terrible. As a former parliamentarian, you know you're always kind of fighting for some attention to legitimize your existence.

    On the roles, I would be interested in your comment. Do you believe we should be trying to educate not only the public but even parliamentarians on your job rather than educating...? I guess the question is, why would parliamentarians have to be educated on the Access to Information or the Privacy Act when in fact you are there to make sure it works? I would rather, with all the other things I have to do, simply do my job and rely on you, because that responsibility has been delegated to your office.

»  (1715)  

    Mr. John Reid: With respect to the Privacy Commissioner, I think it's important to recognize that he is actually responsible for two acts. He is responsible for the Privacy Act, which is the equivalent of the Access to Information Act, but he also has responsibility for the PIPED Act, which has national implications, and he does have a mandate in that act, I understand, for public education. In the Privacy Act and in the Access to Information Act we have no such mandate.

    One of the things we get into all the time is this question of whether or not we should be out there educating. The response I've made is to try to do it by my website; I have a very heavy schedule for public speaking and I try to discharge it that way. But I don't think you can judge the two as equivalent because he does have another responsibility that's larger than what I have in my case.

    Mr. Paul Szabo: Just as a comment, I have to say I really have some difficulty understanding why any member of Parliament should have to go through an access request to get information. It just doesn't seem right.

    Mr. John Reid: Well, as somebody who ran that system for five years in the House of Commons, I can tell you that you don't have to go through the Access to Information Act, which is the control for the flow of information for the Government of Canada. But if you go through the Access to Information Act, you get two things you don't get when you go through the House of Commons system.

    The first thing you get is that it will go through the ATIP office, and if you're not satisfied with what you get, you have an appeal to the Information Commissioner and subsequently to the courts. Those two things are very important.

    Mr. Paul Szabo: This is the last question, and it's to help me understand your philosophy and your attitude towards this.

    There was a request to a minister to please provide a copy of every letter the department had received from third parties on a subject matter, and it turned out there were 250,000 pages or something like that. Now, I really have to question why it is the responsibility of a minister or the government to provide anything unsolicited that was received from third parties. Should not the onus be on individuals to go to these parties with vested interests and ask to get it from them directly? It does put a burden on the system, and it's hard to understand why that burden should fall on the government rather than on the third party who generated the documents.

    Mr. John Reid: The problem is that when a government is dealing in public policy, a third party writing to a minister is in effect engaging in public debate; that's the way in which many third parties can engage in it. So the question becomes, who owns that information, the minister or the third party? When you engage in public debate, do you give up a certain amount of privacy? Why should people who are in the midst of public debate, members of Parliament in particular, not have access to the full knowledge the minister has as a result of the submissions that are made to him?

    Mr. Paul Szabo: Does the government need to get permission from all those companies to release their letters?

    Mr. John Reid: No.

    The Chair: Thank you, Mr. Szabo.

    Mr. Epp, do you have a follow-up?

    Mr. Ken Epp: I have a few more. Knowing that you were coming here today to help us consider the review of the act, you must have thought to yourself, hmm, now if I could change anything in the act, it would be this, this, this, and this. Have you such a list and would you care to share it with us?

    Mr. John Reid: I have a list I made in a previous report. That is the response to the report of the Access to Information Review Task Force. This was a special report I made to Parliament about a year ago; there's my wish list.

    If there are two things I would like to see changed, the first is that I would like to see the cabinet confidence privilege altered. If you take a look at all the parliamentary organizations worldwide, Canadian provinces, Great Britain, Australia, and New Zealand, what you find is that in their access to information act they have an exception. That is to say, you can't see the stuff but the information commissioner can review it to make sure that what is being held back is appropriate. In Canada that material is excluded from the act and the Information Commissioner cannot see what is being done.

    You had that issue yourselves when you asked the Privy Council for certain reports associated with the legislation that passed today. The reports you got were not really cabinet confidences, but if you had appealed to me, I wouldn't have been able to look at them to find out. It's important to make sure that change takes place to normalize that kind of information investigation.

    In saying that, I want to tell you that I firmly believe there has to be a zone of comfort for debate within the government and within a ministry for making decisions. However, it is important to be able to say to Canadians and members of Parliament that yes, indeed, the outside agency has looked at this information and confirms it is in fact a cabinet confidence. That's one of the real irritants in the system because almost every complaint we get comes up against this concept of cabinet confidentiality, and we would like to eliminate that.

    The second thing I would like to see is that there be added onto the Access to Information Act a piece of legislation that says, you must create this kind of information and you must protect it; you must do it. This is the legislation I have proposed, and the reason I'd like to see it there is because it would give us a tool to ensure that the government keeps records it needs for its purposes as well as those records the citizen needs.

»  (1720)  

    Mr. Ken Epp: I'm sure I read this document when we got it a year ago, but I'm going to have to take some time and reread it.

    Mr. John Reid: It's appendix A.

    Mr. Ken Epp: Yes, I'll do that.

    The other thing I would like to know from you is, in terms of the work in your office when you get requests, do members of Parliament bog your office down, or is it other groups? Who are your clientele who actually come to your office? I'd like to know just what proportion of your work has to do with MPs, if you know that.

    I didn't say mean to say “bog down”. Sorry, fellows.

    The question isn't just about when we have conflicts. When there are appeals, they come to the commissioner's office. Are they mostly from MPs or are they from ordinary citizens? What is the rough breakdown? I don't need exact numbers.

    Mr. John Reid: I'd like to ask Dan Dupuis, who's director of operations, to answer that.

    Mr. Dan Dupuis (Director General, Investigations and Reviews, Office of the Information Commissioner of Canada): First of all, you have to recognize that we only get the complaint side, so we only get 10% of the work that is actually out there. For complaints, yes, we do get members of Parliament. Yes, we get journalists. Yes, we get business. Yes, we get private citizens. It's pretty well even, but it's more business than private citizens for third-party information, probably for some of the reasons the other gentleman talked about.

    The Chair: It is interesting how it gets used strategically by business.

    Mr. Lanctôt.

[Translation]

    Mr. Robert Lanctôt: Mr. Chairman, I see that time is short, but I would like to say a few more words.

    We shouldn't stray from the subject-matter at hand. I'm worried that we're once again putting off our review of the Access to Information Act and of the Privacy Act. Moreover, we mustn't lose sight of the fact that the Privacy Commissioner isn't the only person responsible for privacy protection issues. The Privacy Act also applies to individual citizens.

    I don't want to get into the specifics, but we have an opportunity to act here. It's taken us 16 or 18 months to get to this stage together. A report was presented in 1986 and nothing has been done since then. It isn't hard to adopt stalling tactics. If, after this amendment goes through, meetings are held, we could review the other act separately and then we'd be done with both. The two acts could then be merged during another legislature.

    In my view, we have to seize this opportunity. The problem is not the fact that the Privacy Act is poorly conceived. On the contrary, we invoke its provisions and try to obtain as much information as possible from people. The act per se isn't the problem; the problem is how people and the government use the legislation.

    However, the problem that we face as ordinary citizens, as MPs, as journalists and as people in search of information, is that information about the government is increasingly hard to obtain. This information is guarded so closely that documents are no longer being produced, to avoid leaving a paper trail. This is a problem that needs to be addressed.

    As I was explaining earlier, the two acts are very different, in my opinion. They are interconnected, as we have seen, but not that closely. We need to review them separately, starting with the first act.

    Mr. Reid has told us that we could probably review the new act in mid stream. It's true that the legislation was enacted 20 years ago and that the exclusion provisions should be reviewed. Mention was made of private contracts. There's also the question of special operating agencies.

    The Auditor General can't even verify the financial statements of some of the newly created special operating agencies. Consider the case of VIA Rail. The list goes on and on, and includes Canada Post as well as other crown corporations. A lot of taxpayers' dollars are tied up in these agencies and the Access to Information Act does not give us access to the information we want.

    I see the clock is ticking, but I wouldn't want us to get bogged down by taking a global approach. I hope that in the fall, we can review the act to find ways of improving it so that more information can be obtained from the government.

»  (1725)  

[English]

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

    I appreciate that last point of yours that as government has moved to increase the use of special operating agencies and other forms of organization, they have tended to remove them from the purview of the Information Commissioner's office.

    It occurred to me as you were speaking that there are two issues here. There is the public release of information, where part of the concern is the protection of that in a more commercial environment, but the other piece of that is the right of the Information Commissioner to go in and examine the information that's being sought, because of the importance of information in accountability. These agencies still have accountability, many of them, to the House, and you're absolutely right; I think that would be an important issue to undertake.

    Our time has drawn to a close, and I do want to make a couple of quick comments.

    One of the things that came to light as we were doing Bill C-25 was the enormous schizophrenia that must exist and sort of emanate from your office. Every time we hire a new public servant, the first thing we do is make them take an oath not to release any information. Then we have an act that says all government information should be released except that which is specifically excluded. We have two forces here that are somewhat in opposition.

    In a world where government is much larger and much more complex, information always has been but is even more so today a vital tool in support of any kind of democratic process. How do you hold your government to account if you don't know what the heck it's done? I noted some interesting comments in the Delagrave report.

    I think it's important what Mr. Reid was saying about starting with how information is first collected and held. An awful lot of information can be made accessible at the get-go, but it gets inside the box and then needs to be extracted,

    But there is a reframing of the cultural issues in government, and I've encountered that a little bit. I was over in Stockholm recently, and I asked some colleagues in the Swedish government the question you've been involved with, Mr. Reid, which is access to a schedule, for example. I said, what would happen if somebody requested the daily schedule of the Prime Minister of Sweden? They said, well, they'd get it. I said, what's the process you go through? They said, well, anybody, including a foreigner--in my case--could simply phone the office and ask for it; the government had to provide it within 24 hours, and they could not ask why you wanted it.

    So part of that is that there is a cultural issue here, and we still obviously have to move a little further on it if we're ever going to get to that kind of openness.

    The second thing is, I think it was the archivist who talked about a hole in our memory with the move to electronics. We have all this paper--some would say too much--collected about what government did prior to that move, but as e-mail and other electronically based forms of documentation have become more common, we've been in danger of losing a big chunk of that and the ability to track it.

    The second recommendation here is around legislation that actually provides a framework for identifying and holding information. The chief information officer also referenced that, so I think some very fruitful work has been done.

    I thank Mr. Lanctôt for bringing this before the committee and asking us to get into it.

    Obviously, the House is going to rise soon, but perhaps we could have appropriate officials meet the people in your office and canvass members on how we might proceed with this in the fall.

    Thank you very much again. I apologize for the delays in getting started, and I thank all the members.

    We are adjourned until Monday at 11 o'clock unless I need to call you back for some important reason.