Yes, and/or other witnesses. It's to allow us that flexibility. If, as, and when we get those witnesses, we'll have an approved budget.
If there's no further commentary, all those in favour?
(Motion agreed to)
The Chair: Thank you.
With regard to our review of the 12 fixes of Mr. Marleau, the Information Commissioner, we have Mr. Michel Drapeau, who is a professor with the University of Ottawa, and Marc-Aurèle Racicot, who is a lawyer. Those two individuals, as you know, co-authored a very interesting article in last week's The Hill Times. We also have with us someone who I've been with at meetings before, who is very active on parliamentary matters, Mr. Duff Conacher, the coordinator from Democracy Watch.
Welcome to all three of you.
I thought what we would do is allow each of the witnesses to make some appropriate but brief opening comments. I think the issues before us have been made known to you. Mr. Marleau's recommendations are substantively administrative, although a couple do have some impact, potentially, on amendments to the act itself. I thought there were some very interesting points raised in the discussion so far and in the article that was written. The committee felt it was important to explore those a little further and to have that opportunity. I think all of you are experienced in being witnesses. The most useful and constructive work is in the questioning and answering.
Let's move forward. Who would like to begin?
Mr. Drapeau, please.
Mr. Chair, let me open by thanking the members of the committee for permitting me to appear before you this afternoon.
I wish to keep my opening remarks short for two reasons. First, I have a sense that our article published in last Monday's The Hill Times has already alerted you to our position on the 12 recommendations submitted by the Information Commissioner on March 9, 2009. Second, we have provided each of you with a written submission that contains additional reasons and details on why we oppose these recommendations for change.
We are absolutely convinced that what ails the access regime cannot be cured by tinkering with the act. We believe that for the time being the act should remain as it is. Instead, energy should be deployed to identify and correct the systemic deficiencies and obstacles now afflicting the access regime. For example, in the previous Parliament the act was modified by adding a number of crown corporations and by including a positive duty to assist requesters. These changes were in and of themselves very positive, and they represented a significant step forward for freedom of information. Regrettably, however, these improvements to the act have been drowned by a significant worsening of the performance of institutions and of the Office of the Information Commissioner. Hence, if I may be so bold as to say so, government has been let down by its own administration.
We believe this committee has the stature, the authority, and the mandate to ensure that the act is properly administered, as was intended by a past Parliament. There was at that time a very careful and deliberate study, commencing in 1977 with the publication of a green paper and followed by two major cabinet discussion papers. This went on until 1982, when the enactment of the fundamental democratic right of access was provided to citizens. You will agree that before this quasi-constitutional statute is changed Parliament should be certain of the objectives and careful not to disturb an essentially good, clear, and well-structured statute that has served as a model for many countries.
You also have before you some brief biographical notes that outline my professional background and identify my contribution to the field of the access to information law. However, with your indulgence, I would strongly recommend that the following persons, whom I consider to be renowned in the field at both the national and international levels and whose experience and reputation for professional excellence is both proven and exemplary, should also be asked to appear before you to provide their sage advice before you proceed with any change to the current statute. I name Mr. Alan Leadbetter, who has served as deputy information commissioner under three commissioners; second, Professor Alasdair Roberts, who is a recognized academic authority in the field of access to information. I can also think of several more, such as Commissioner John Reid, but you have already benefited from his work. I must also add Mr. Justice Gomery, who made eloquent comments in his commissioner's report, which advanced the access rights of Canadians.
As I understand it, you have received an article that I recently wrote for the Open Government Journal on the state of paralysis of the Canadian access regime. I say “paralysis”. I felt compelled to write these comments because in my opinion the Canadian access system has never been in such a sorry state. For all intents and purposes, it is now dead in the water.
One can juxtapose this situation to that in the United States, which has received a great boost recently through an initial act of leadership by the new President, on his first day in office.
It is for these reasons that I decided to answer your call to appear before your committee, despite the fact that I knew my spouse, who is here today, did not relish the thought of discussing this subject on this day, our 45th wedding anniversary.
Some hon. members: Hear, hear!
Thank you very much.
Mr. Chairman, members of the committee, it is a great honour for me to accept your invitation to come and appear before you today.
I have been interested in access to information issues for close to 10 years now. In recent years, I have done a great deal of research and thinking about this fundamental right in any democracy. I am the co-author of Federal Access to Information and Privacy Legislation Annotated. After a work term at the Federal Court of Appeal of Canada, I worked for a few years at the Office of the Information Commissioner of Canada as a legal advisor. I also helped establish a bilingual training program offered over the Internet on access to information and privacy at the University of Alberta. I am the editor of the Open Government Journal, a scientific journal available free of charge on the Internet that has to do with issues of access and transparency. I am currently a lawyer in private practice.
The Access to Information Act sets out the basic principles regarding access to information in Canada. In the last 25 years, the act has been tested and interpreted on many occasions both by Canadians and by the government. The Federal Court has handed down many decisions regarding the Access to Information Act. The act works only if all the people involved play their proper role and assume their responsibilities. The basic principles that appear in the current legislation are valid, even though times may change.
For example, in 1982 when the act was passed, the Internet did not exist or was in the embryonic stage. However, the travel expenses of senior managers in federal institutions are now posted proactively on the Internet. In 1982, there was no e-mail. And yet, e-mails are included in the definition of a "record" that is contained in the act and are routinely disclosed in accordance with the act.
These few examples show that this legislation, which sets out basic principles, can easily be adapted to changing conditions, without being amended. The people who use the act, the government, the Office of the Commissioner and the courts have been able to use and interpret the act in such a way that it has been able to function since July 1, 1983, the date on which it came into force.
Great caution must be exercised in any attempt to amend this basic legislation. The problems we are experiencing at the moment do not stem from the act, but rather from the fact that some of the people involved are not performing their role properly.
The Access to Information Act, which has quasi-constitutional status, is good and valid legislation.
Thank you very much to the committee members for the opportunity to testify today on this very important, good government subject, namely access to information.
I should be practising my French, but since there is a lot of technical terminology in this field, I will be making my presentation in English.
Since the act was passed in the early 1980s, it unfortunately has proven to be ineffective in requiring government institutions to make information created, gathered, or maintained by the government and all government institutions easily accessible to the public. Of course, some information, in particular personal information that the government requires individuals to submit, must be kept secret by governments to prevent harm or injury. Because of the many exemptions in the act and the very weak enforcement system, essentially the disclosure of information is discouraged, and keeping things secret is encouraged. As a result, the public is denied the right to information about actions and decisions it has paid for and has a clear right to know.
Essentially, the act is currently a “guide to keeping information secret” law, not an open government law. As in all areas of regulating the activities of humans in large organizations, especially when there are many incentives to violate the rules, the system, to be effective, must be changed to meet the following standards: we need to have strong rules without loopholes, because the many loopholes that currently exist in the act allow for abuse; we need a fully independent, fully empowered, well-resourced enforcement agency; and we need high penalties for violations.
The history of government and government institutions in all areas of the democratic process--honesty, ethics, openness, representations, waste prevention--has shown that you need a system that meets those standards to ensure that the rules, and the spirit of the rules, are followed.
To transform the current act and enforcement system to meet these standards, the following changes must be made. These changes were, most of them, promised by the Conservative Party during the 2006 federal election. They've also been recommended by many others, including the open government coalition in which Democracy Watch participated in 2000-01. Other groups in that coalition included the Canadian Association of Journalists, the association of libraries, community newspapers across the country, and several other citizen groups from a variety of areas.
I'll go through the key changes.
First of all, any type of record created by any entity within the government or that receives significant funding or that plays a public purpose must be automatically covered by the act. The act must require every entity to create records of all decisions and actions. They must have information management systems so that there are individuals responsible for each record. And most importantly, the act must require them to routinely disclose records so that records don't come out based on requests but are made public on a routine basis after being screened to see whether any exemptions apply.
All exemptions under the act must be made discretionary, limited by a proof-of-harm test and a public interest override, as applied by the Information Commissioner. A couple of provinces have that proof-of-harm test and that public interest override.
As in many other jurisdictions, including Ontario, B.C., and Quebec, the Information Commissioner must be given explicit powers to make orders, including the order to release information. As well, extending coverage of the act to any government institution is a decision that should not be left in the hands of cabinet. Also, very importantly, the commissioner must be given the power to require systemic changes to government institutions' information management systems to improve compliance. Finally, the commissioner must have the power to penalize violators of the law. There's no danger in turning the Information Commissioner from an ombudsperson position with the power only to recommend, which he is currently, into a judge who can actually make binding orders.
The experience in Ontario, B.C., and Quebec has shown that this is a major change that changes the way the system works, because essentially, information institutions know that very quickly they can face a binding order to release documents, so they are less resistant to releasing them in the first place.
As well, I know from my experience working with the Ontario commissioner's office that there is a mediation system that can be set up to also quicken the release of documents and make orders not needed. There's less cost for everyone involved. No lawyers are needed by requesters for information. They can go through a very simple, easily accessible, and low-cost mediation system that can possibly lead to an order if there is no agreement reached.
Moving on, I'll quickly highlight a few other key changes.
Significant penalties must be established in the act for not creating records, for not maintaining records properly, for unjustifiably delaying responses to requests, and for denying access to information that is clearly required to be made public.
Because the Information Commissioner could possibly develop a backlog--as is current, but it could be at any time--requesters must be given the right to go to court if the commissioner refuses or fails to deal with the complaint within a specific time period. And we suggest 120 days.
Finally, funding to the system must be increased to solve backlog problems instead of increasing fees or other administrative barriers as an attempt to decrease the costs. There is a cost to this system, but if there is proactive routine disclosure of documents, the costs will decrease enormously because requests and complaints will also decrease.
Of course, if these changes are made, an extensive training program must be created to ensure everyone in the government is aware of the new standards and powers.
Finally, just to make a general point, some commentators, such as Donald Savoie of the University of Moncton, have claimed that since the act and its overall disclosure system was created, public servants have not been able to “speak truth to power”, and cabinet ministers have, as a result, not received as good information and advice as before the act.
Democracy Watch's position is that if this is true, the problem is not the act; it is the fundamental attitude and operation of the government and government institutions. An actually democratic government or government institution would welcome all information and advice on each issue, even if it were contrary to the position of its leaders, and would not hesitate to make all that information and advice public as part of a process of meaningful consultation with the public, which is the best way, as has been shown in many cases, to come up with actual solutions to societal problems and actual accountability measures that measure whether solutions are actually working. It is only when a government seeks to impose its ideology and will on society, in defiance of what the majority want or what best practice standards require, or when it seeks to help its own members, their relatives or friends, that a government needs to keep information and advice secret. As too many examples from the past have shown, this secrecy causes abuse and waste.
True, it is difficult to imagine a government operating in such an open and democratic way, but that is only because governments to date have not operated this way, not because it is not possible or advisable for governments to be open, engaging, and accountable. Changing the Access to Information Act in the ways that I've highlighted today would very much help move the federal government in this democratizing direction, but to be truly effective these changes should be accompanied by the passage of a law requiring meaningful consultation by the government before any significant decision is made. That would truly open up the government and ensure that decisions are made with all information available and advice in an open public debate. As a result, very likely those decisions would be better than decisions that are made behind closed doors, in secret, with only a few people allowed to participate in the deliberation and the dialogue.
This change both in access to information and meaningful consultation has been advocated by many citizen groups in many areas for decades, and hopefully very soon--sooner rather than later--we will see a ruling party and all political parties respond and make these changes to truly open up and democratize the federal government.
Thank you very much. I welcome your questions.
You have two questions in your presentation.
First, on the suggestion that the increase in backlogs is a result of extending the act to a number of new organizations, I don't know. I'm not the Information Commissioner so I don't have the statistics, but somehow, from reading last year's report, I don't get this impression from it.
Certainly there has been an incremental increase, as you would expect to have, because VIA Rail, Canada Post, CBC, and some others have been made subject to the act. That may be an adjustment from one year to the next, but that's the mandate, and the Information Commissioner has the staff--he got additional staff--required to deal with these. I don't think we should increase the coverage of the act on the one hand and then deplore the fact that there will be additional requests and additional complaints as a result of it. It's a consequence of it, and I think a happy consequence of it.
I know the Information Commissioner seems to have a bee in his bonnet when repeatedly he alludes to those requesters that make a number of requests. I know some of them personally, because they represent people in the media, or people like you as members of Parliament, or industries, or whatever. My answer to that is, “Bless them.” They have a skilful use of the Access to Information Act. Their requests are normally targeted. They're not vexatious or superfluous. They use the act the way it should be used and they direct their requests to the appropriate institution.
Ultimately--and I will finish on this point--I hope you will ask the question of me later on as to how many requests we are getting in Canada and whether it is excessive compared with other democracies. I would be pleased to answer that, to perhaps better focus that answer.
The point I want to make is that order-making power is not a panacea. It's not the end of the road. It doesn't mean that you'll have compliance. You are now opening a new door where the institution or the requester will say, “Let me go to court now, because I'm not happy with this.” So you go full circle. What have we done now? What have we accomplished?
In the meanwhile, you have dramatically and drastically transformed the role of the ombudsman into a judicial officer. He's going to be in his office; he's going to be acting at administrative tribunals. He will no longer have persuasive power. He will no longer have the very vast powers that he now has. Probably in the process you're going to be asking requesters to engage the services of lawyers, because there will be an administrative law process that we now have to go through.
That's not what your predecessors meant, and I say “your predecessors” in the long range from 1966 to the green paper of 1977, and I'm referring to a couple of cabinet discussion papers. All the discussion that took place in Parliament before the enactment of the act itself was a careful balance of asking, what model do we want?
This model, ladies and gentlemen, we have exported to a number of countries. A number of countries have followed our example of how to have an access to information law, and they've adopted basically what is the Canadian Access to Information Act. The principle that was also accepted by a Committee on Human Rights at the United Nations is a carbon copy of the act.
So change if you must, but why are we changing? If you think that by changing it, giving it order power, things will now happen and institutions will now respond to it, my point to you is that if they're not responding to the sovereign power and the authority of this committee and of the Information Commissioner, why would they now all of a sudden respond adequately to a decision by an Information Commissioner?
Yes. Let me try to make it as short as I can.
There's often talk about the vast number of requests and how that explains why we have such a backlog and so on. Let me give you some perspective on it, please.
In the 1977 green paper a detailed analysis took place, and we had at the time the experience of the States. The States had had an act in place since 1966, and making allowances for size of population, temperament—we're far more reverent in Canada and less nosy, maybe, than our southern colleagues, and so on—the talk was that perhaps we could anticipate 70,000 requests a year. That was in 1977. The highest number we have had in the 26 years the act has been in place is 29,000 requests, last year.
Let me give you some perspective on it. In Thailand in the past three years, under the act in place since 2005, a million Thailand citizens have applied under the access regime. In the United States last year, four million requests were put in. So 29,000? In the 15 years before last year, we had an average of 13,000 requests a year. We're just barely scratching the surface, so volume is not a problem.
If I may, I am not philosophically opposed to it, because I think the time will come when we should do this. This is what's happening in the United States. In my own practice, I use the Freedom of Information Act in the States to gain access to records on behalf of my clients. I've also used the U.K. act, which is universal.
But before you make it universal, there are some things you need to do that Mr. Marleau has not touched on. I'll give you some examples. First, you need to change the act so that you can submit a request by e-mail, not in a letter. You don't expect someone in Africa to send a letter to us. Second, you need to drop the fees. You don't expect someone in the U.K. or someone in Nebraska to send a $5 Canadian postal thing. So there are some minor changes that you need to make.
The system is so swamped now as not to work. Why would we want to be an embarrassment on the world scene by saying, “Come on board. Put in your request. And by the way, you, Canadian, go to the back of the queue, because we're now swamped”? The institution can't respond. They sent me a request for a delay of 210 days. If the Information Commissioner cannot respond to a simple complaint within two years, why would we want to open it to anybody, particularly the States? If they submit four million requests and they all get together, we'll do nothing else but answer access requests.
Let's clean up our act first, and then once we do, we should open it. We'll be certain by the time we open it that we can show the world that when our law says 30 days, we mean 30 days, not six months or two years. Otherwise, we'll become an embarrassment, and for now we're not. Most countries--and most of them that have adopted our act--look to Canada for leadership. They've accepted our act, our model, and they look to us. A vast body of jurisprudence that we have has something to emulate. Let's not destroy the good thoughts that they have about us. Clean up our act first, and then we can open it. That won't happen today or tomorrow. I'll have time to celebrate my 50th anniversary before that happens.
Some hon. members: Oh, oh!
It's the flavour of the month. Because we have a backlog, it's easy in some cases.... And I've heard it a number of times, that if we could only do away with the commercial users, industrial users, or frequent users, whatever you want to call them, somehow it would make the system disappear. It's a quasi-constitutional act.
To give you my personal experience, I have clients who come to me because they don't want to reveal their identities, for political, commercial, or whatever reasons, and they ask me to submit a request. Now, whether I submit 10 or 20 requests in a given year, whether that makes me commercial....
As I said before, I certainly know the act well. But to suggest that there be two classes of citizens, that somebody, because of commercial or professional reasons...because you work for the CBC and make several requests or you work for a pharmaceutical company and make several requests, or you're in administrative law, as I am, and have clients who have to file complaints on human rights or they have a complaint before the Canadian International Trade Tribunal and they need access to their information....
Keeping in mind that the Access to Information Act is the only legal means by which to obtain access to government records, why would we want to penalize someone? If you do, then you will have mailboxes being created. In other words, someone will have multiple identities to try to get around the 100 ceiling or the 200 ceiling.
My point--and the courts have said this repeatedly, and it's universal--is that whoever submits a request should attach no motive to it. In other words, whether you're doing it on behalf of your sister who's trying to find out whatever on the medical side, or you do it on behalf of one of your constituents, or whether I'm doing it on your behalf, on behalf of MPs, which I have done on several occasions, my motive or your motive has nothing to do with anything. You have a right to submit a request. You pay your fees. You sign your name to it, and your address. You're a Canadian citizen and you're exercising your rights.
As a lawyer and someone who is into human rights, among other things, I would object as robustly as I could to the suggestion that there be two classes of citizens in exercising a quasi-constitutional act. It puts me in the wrong frame of mind.
Thank you, witnesses, for coming out.
And congratulations on your anniversary. I hope you have a great evening with Madame Drapeau after this committee meeting.
Mr. Drapeau, I just want to follow up a little bit. I'm new to this committee or am just on it today, but I have a couple of things I would like to bring forward for some clarification.
I know the committee has had different witnesses before it and in that time has been told about the small number of complaints that come forward from individual companies. It says in one of the reports I read that there were about three individuals. I don't know what “individuals” means, but you referred to them.
And we discussed the costs, 99% of which, or the majority, actually get picked up by the taxpayer. You are opposing having any fee for this. I agree with you based on the fact that if it were a $5 fee, we know what administration does with $5. So we should never create a negative balance sheet just by creating some sort of silly fee of $5.
My point, though, is that if we have such a load, whether from large law firms—and these firms are collecting substantial fees from their clients—or the media or brokers.... We don't know who it is, but if it is mostly those who are making requests through the system, should there not maybe be a limit to the first amount they seek? You could get 10 or 15 requests, I don't know, and then after that, quite honestly, you're occupied with requests from an individual, the Bev Shipleys of the world who may want to put in a complaint or get access to information. I would tend to think that if it is important enough for me to ask for information, then it is likely important enough for me to pay something for it. We do that in just about every other system within our government.
So there should be some sort of user fees. I'd like you to consider if any part of this should be charged a fee, because you have said no to it.
But on the other hand, my further question will be about people basically wanting to be anonymous. Now, we have a major group of people, a handful, who are making most of the requests. And we aren't charging them, on the one hand, but are giving them a free lunch, asking them to the banquet hall and saying, here's a free lunch. But the reality is that you, the requester, never has to tell us that you have a company. You never have to indicate that. And these may be the same people time after time after time, repeat after repeat after repeat, who are making the requests.
So at some point in time, is there an obligation so that the one being requested to provide the information can find out who is actually making the requests for information?