Thank you, Mr. Chair.
Honourable members, I would like to start by apologizing for making my presentation in English. However, I will be happy to answer your questions in French.
The B.C. Freedom of Information and Privacy Association is a non-profit society that was established in 1991 for the purpose of advancing freedom of information, open and accountable government, and privacy rights in Canada. We serve a wide variety of individuals and organizations through programs of public education, legal aid, research, public interest advocacy, and law reform
Although we are based in British Columbia, FIPA has maintained an active role on the federal scene as well. We have joined the increasingly urgent calls for reform of this now outdated law. Earlier this year, in association with the Canadian Newspaper Association and the Canadian Taxpayers Federation, we wrote to the Prime Minister, asking him to follow the lead of President Obama and include ATI reform in the Speech from the Throne. He didn't. The same three groups also wrote to the Prime Minister during the last election campaign, asking him to bring in the reforms to ATI that he campaigned on in 2006. Of course, we are still waiting.
There is no doubt about the need for ATI reform. When the Access to Information Act came into force, in 1983, the world was very different from what it is today. The Chrysler Corporation was in financial difficulty, and the first minivan was introduced. The Berlin Wall was still up. Home computer enthusiasts could play Pac-Man on their Commodore 64s. In government offices, Wang word processors the size of Wurlitzer jukeboxes were just becoming available to process information.
Information and how it is handled has changed completely since then, but the law governing how Canadians get access to that information has remained fundamentally unchanged. Since that time we've been governed by seven Parliaments, with Liberal and Conservative majorities, as well as Liberal and Conservative minorities. Different parties have held the balance of power in these minority governments, yet reform is yet to come.
There have been serious detailed studies of the ATI Act, and many recommendations for reform. One of the earliest studies was conducted by the justice committee of this House. Their report was entitled Open and Shut, and it came out in 1987. The vice-chair was a young MP by the name of Rob Nicholson. I commend it to you, for the 1980's picture of the Minister of Justice--at least for that, although it does have some very worthwhile recommendations.
In November 2001, the committee on access to information issued a report called A Call for Openness. Again, nothing happened. This report was followed, in June 2002, by Access to Information: Making it Work for Canadians. This report was the result of two years' work, which included foreign travel and cross-Canada consultations, by a 14-member task force of senior specialists in the federal bureaucracy. The government released the report, but it never officially commented on it.
In 2005, then Information Commissioner Reid tabled a draft bill before this committee entitled the open government act. This proposed legislation would have made substantial changes to the ATI Act. FIPA supported this proposal, although we were disappointed with the commissioner's failure to seek order-making power.
In 2006 the Conservative Party platform contained extensive proposals for reform of the ATI Act, which FIPA supported. One of the proposals stated specifically that a future Conservative government would implement the Information Commissioner's recommendations for reform to the Access to Information Act.
In our 2006 submission on the Federal Accountability Act, which you have before you, FIPA expressed our disappointment that the government chose to defer most of these reforms and have them dealt with by this committee. We're concerned that reference to the standing committee could once again prove to be a graveyard for positive action.
Justice Canada also supported the Reid proposal, and the current commissioner, in his presentation to this committee, said he generally supports Mr. Reid's draft bill. In sum, this bill has been expressly supported by the last two information commissioners, Justice Canada, and last, but certainly not least, the current Prime Minister and his party.
It should also be noted that one of the eight commitments related to access to information legislation in the 2006 Conservative platform was the pledge to give the Information Commissioner the power to order the release of information. FIPA is of the view that a consensus was formed over the last four years that Commissioner Reid's draft bill with the addition of full order-making power for the Information Commissioner is the way forward.
I would now like to provide a brief response to the 12-step program the current commissioner has proposed. I will be pleased to elaborate on any or all of these points in response to your questions.
The first two recommendations are that there be a five-year parliamentary review, and that all persons have a right to request access to records under the act. FIPA agrees with both of these proposals.
Proposal three is that the Access to Information Act provide the Information Commissioner with order-making power for administrative matters. FIPA believes it is essential that the commissioner have full order-making power, not just the power to make orders regarding administrative matters. Order-making power is essential to ensure the proper functioning of the ATI Act. The information commissioners in four provinces have this power, and those systems work far better than the current federal regime.
Commissioner Reid expressed the view that order-making power would change the nature of his office. He was right, and FIPA believes this would be a positive change. By seeking the power to make orders on administrative matters, Commissioner Marleau has apparently accepted this change in the nature of his office. FIPA recommends against taking a half measure when full order-making power is clearly what's needed.
Recommendation four is that the Access to Information Act provide the Information Commissioner with discretion on whether to investigate complaints. FIPA is of the view that such a power would only be acceptable in situations equivalent to dismissal of a frivolous and vexatious lawsuit, and similar criteria should be used in these very rare circumstances.
Recommendation five is on the public education research mandate. Recommendation six is on the advisory mandate. Recommendation seven is that the application of the act be extended to cover the administrative records of Parliament and the courts. FIPA agrees with all three of these recommendations.
Recommendation eight is that the Access to Information Act apply to cabinet confidences. In most Canadian provinces cabinet documents are not excluded from review by the commissioner. This recognizes the fact that a cabinet confidence's exception, like all exceptions from disclosure, can be misapplied or abused. FIPA strongly recommends that cabinet records be made an exception to disclosure, subject to review by the commissioner.
Recommendation nine is that the Access to Information Act require the approval of the Information Commissioner for all extensions beyond 60 days. FIPA is concerned that while this proposal may reduce government's ability to take extremely long periods to reply to a request, it will have the unintended consequence of instituting an automatic 60-day delay for all requests.
This has been our experience in British Columbia, where the Campbell government has lengthened the response times from 30 calendar days to 30 business days, plus 30 more working days if the ministry felt that to respond faster would unduly interfere with the orderly operation of the department. In practice, although there is an appeal to the commissioner, no one does this because there is no way the commissioner's office could issue an order before the 30-day extension expired.
Recommendation 10 is that the Access to Information Act specify timeframes for completing administrative investigations. FIPA agrees and suggests a 90-day period, as set out in subsection 56.6 of the B.C. Freedom of Information and Protection of Privacy Act. We believe this 90-day period is supported by Commissioner Marleau.
Recommendation 11 is that the Access to Information Act allow requesters the option of direct recourse to the Federal Court for access refusals. FIPA is of the view that the Access to Information Act should provide requesters with an easy-to-understand, informal way of getting government information. This would include the procedures for resolving disputes over the release of documents.
The commissioner has provided this recommendation as an option, and FIPA considers this a prerequisite to supporting this idea. Sophisticated or well-heeled requesters may want to push things along more quickly and may be willing and able to pay for it, but the average requester, the average Canadian, should be able to get an informal administrative remedy and get their documents.
The person who is not familiar with the system and does not have money for a lawyer specializing in administrative law will need to have this informal process available. With full order-making power, the commissioner would be able to make an order for release of documents without requiring an individual to fight in court to exercise their right to information.
Recommendation 12 is that the Access to Information Act allow time extensions for multiple and simultaneous requests from a single requester. This recommendation would have to be subject to review and order by the commissioner, not the fiat of a government body.
In conclusion, I would like to repeat FIPA's view that we now have in this country a consensus that Commissioner Reid's draft bill, with the addition of full order-making power for the Information Commissioner, is the way to proceed, and time is of the essence.
Honourable members, you have the opportunity to make a real difference by bringing forward this proposal, which has widespread support. Many of Commissioner Marleau's proposals are useful, maybe even valuable. But FIPA does not believe it is necessary to settle for half measures. The small steps may be needed, but the big step is no less necessary. If you don't take the big step, Canada will be left further and further behind.
Thank you. I look forward to your questions.
As you said, I'm a long-time advocate for the public's right to know and an experienced access user. I'm also not bilingual.
I am thankful for this opportunity to contribute to the access committee's continued attempt to get more than a largely dysfunctional Access to Information Act.
This committee, back in the fall of 2006, was at the point of agreeing to send forward one modest reform legislative package, namely, the former Information Commissioner Reid's 2005 open government bill. That was an alternative then, but nevertheless a full bill, not a half measure.
But times change. Instead, piecemeal amendments to the access act were made in view of the Accountability Act in 2006. Unfortunately, while coverage was extended to more crown corporations, foundations, and parliamentary officers, it came at a price. The amendments brought with them broad exemptions and exclusions.
What Canadians are faced with now is even more of a right to secrecy, delay, and obstruction act. Leadership direction and vision to change this state of affairs is needed. Canada sits internationally at the bottom of the heap when it comes to the public's information rights. The short laundry list of possible amendments to the current Information Commissioner model does not provide that vision. His suggestions would have the effect of bureaucratizing further the existing dysfunctional access act and lessening the limited information rights the public would be accorded under the access act. I urge the committee not to adopt such a limited, shortsighted, and counterproductive administrative and punitive mix as Commissioner Marleau brought forward.
I come here, however, to respond positively to the House access committee's broader request for legislative bill options, with the vision to change the secrecy practices and bureaucratic mindset so prevalent in Ottawa. My proposed bill, which was circulated, entitled the Public Right to Know Act—and it would be good if the committee could table it in some form—is truly a second-generation freedom of information model act. It stands squarely for fuller transparency. It is a statutory effort to follow both the dollar trail and the safety, environmental, and consumer document trail, something the current act really falls down on. It seeks a way out of the current access to information crisis that is mostly about stalling release and issuing denials. It seeks to address for better information in growing economic and safety uncertainties, in these times.
The bill may be far from perfect in its drafting and was done on my own time, as a public service, but I'm reminded of how such access pioneers as MPs Barry Mather and Ged Baldwin must have felt as they developed model bills. They, too, sought a way out of the growing secrecy classifications being applied to government information and wanted a means to combat increasing public alienation and to restore trust in government.
Let me briefly explain the bill's twelve main features, many of which are found in progressive freedom of information acts around the world.
First, it would make information rights a constitutional right and not just a statutory obligation. Explicitly, then, the bill makes clear that the freedom of expression section found in Canada's Charter of Rights and Freedoms includes seeking, retrieving, and imparting information and opinion in any kind or any form. This is not a hard change to make, but a very, very significant one.
Second—and you have heard from other witnesses—there is a major change in the purpose clause of the bill, as it focuses exclusively on maximizing disclosure, and the previous Access to Information Act's emphasis on secrecy goals is dropped. It calls for universal disclosure codes in both the public and private sectors, so that public moneys and health, safety, environment, and consumer matters can be regularly and instantaneously traced and made available on the Internet. What is then created is a legal, mandatory obligation for widespread proactive disclosure, something the current act lacks. Proactive disclosure will not then be the last resort. It will no longer be limited to a few administrative selective records, like some senior official's travel costs that are belatedly posted on government websites with insufficient information.
Third, the bill enables much broader private as well as public sector coverage. How else, these days, can you monitor public spending and safety issues? It is especially meant to cover private agencies receiving federal benefits where many of those organizations now carry out public functions. No public moneys would go to those without proactive disclosure service. No corporate third parties would have special veto powers to object to disclosures. The Prime Minister and ministers would be included, as well as Parliament.
Fourth, the bill enables a legal duty to document decisions and key actions in detail. That duty includes an organization keeping up-to-date records readily retrievable, or otherwise facing penalties for non-compliance.
Fifth, the bill calls for quicker access at low cost. Twenty days, not thirty days, should be the norm. And much tighter consultation and time-extension rules are incorporated, with enforceable powers in place to get prompt service.
Sixth, fewer and narrower restrictions to disclosure are put forward for private personal information, national security, trade secrets, unannounced monetary tax or share decisions, criminal law investigations, and certain cabinet records. Gone are many sweeping special-interest secrecy claims like policy advice, or claims that only some general administrative records can be made public.
Narrowing the application of exempt areas also means greatly reducing the time periods for protection and applying significant injury tests. For instance, pre-decision or cabinet records, which in my bill are no longer called confidences, would be available within three years. But cabinet could release records earlier. Where the records are a factual analysis or the data involve safety, health, environment, and consumer or civil liberties issues or where there is no significant injury from their release, cabinet records would be releasable.
Most Treasury Board submissions and cabinet agenda items would be automatically discloseable and would no longer be hidden for up to 20 years.
One other example is that exact public employee salaries, bonuses, and benefits would no longer be exempted as protected personal information.
I would caution the committee not to fall into the trap of letting exemptions be class exemptions or be broadly defined or without injury tests or have short-term time restrictions. Further, the way the public interest override provisions are written in Canadian legislation is not all that useful. It is much better to have a proactive disclosure system than to greatly reduce the number of existing exemptions.
As well, no other acts of Parliament should supersede the Public Right to Know Act. All acts currently with blanket confidentiality clauses would be reviewed.
Seventh, a new administration whose main goal is facilitating proactive disclosure practices is legally necessary. This means replacing Treasury Board and the access officialdom with a new arm's-length public access authority whose prime goal is to release information, not to tangle it up and deny records.
Eighth, a tougher Information Commissioner with full binding order powers and broader functions backed up by enforceable penalties is proposed.
Ninth, the bill broadens transparency by providing for open meeting requirements for federal boards and commissions.
Currently, some organizations have provisions for holding general annual public meetings--in the case of the National Capital Commission, for public attendance at board meetings--but the real business is behind closed doors and there is no provision for appealing the necessity of in camera meetings.
Tenth, the bill provides that there be a permanent parliamentary oversight to advance disclosure practices.
Eleventh, the bill also provides for a public and court review program for those members of the public with fewer resources who need to have the means and support to challenge secrecy practices. Court injunctions could be sought as part of those challenges.
Finally, an arm's-length international centre for freedom of information excellence is proposed so that once again Canada can assist and make a contribution to global transparency as well as to developing intergovernmental pro-disclosure agreements.
I've doggedly persisted in getting data under the existing access regime. I've taken secrecy claims to the courts and been widely consulted on access matters, so I can see, 25 years later, that Canada's access legislation is in need of a major overhaul and not simply slight adjustments.
To name a few, I have had problems in getting or been denied food, drug, and air safety materials; environmental materials on toxic sites, climate change and tar sands; and data on the sponsorship program and on other government programs of questionable spending.
So I sought legislative solutions for everybody to be able to quickly and easily have this data. Hence my development of a public right to know act for Parliament and public use and debate.
I would ask that the committee carefully examine and make use of my alternative progressive access bill. It differs from the Reid bill in some respects. This is my contribution to the next stage of Canada's transparency journal, and certainly I'll be open to questions on things like what a proactive disclosure code is, why you need to trace safety and the dollar issues, what's wrong with the public interest safety override, what's wrong with just administrative records going out, timing solutions, what's paralyzing the access system now, what's the order power, and so on and so forth.
I thank you.
Which ones? I'm merely going further, based on my international experience. Certainly I have found, out of appearing in front of court and without a constitutional right, that gives you a lot more leverage. If it's a mere statute, you have a lot more leverage. That's a difference.
Mandatory disclosure codes are absolutely essential, because it turns the whole access around, instead of, like in the Reid bill, under policy advice, putting a list of exceptions as to who can get polls or statistics or whatever. I say no, put that right up at the front as the code.
In terms of open meeting requirements, sunshine act, we need that. Certainly at the National Energy Board, there's an office in NRCan that's dealing with the Mackenzie Valley pipeline and nuclear safety issues. Those things have to be brought out in open meeting arrangements, and we have the right to appeal. You don't wait 20 or 30 days for your access request; you appeal right to the commissioner and say you can't get into that meeting right away. That's called transparency in a good sense.
The right to sue I think is not in any bill because citizens are frustrated by commissioners. They need to have the means to go straight to the courts by dealing with a different twist.
ATI users.... There's a discrepancy between corporate users and the average citizen, and those people really do need help. Why do we have such a low usage? Part of the reason is it's complicated and a lot of citizens are alienated from the system.
There's no international system. Give order powers, is what I'm suggesting, and let me just tie in there. If you limit it to administrative order powers, you're making the attention in investigations to secrecy, which is the main problem right now, second-class complaints and appeals. And I found that very wrong.
The last thing I will say, which may be obvious, is that I have greatly reduced the number of exemptions and narrowed them quite considerably. That, I think, is absolutely essential, because the secrecy is the main problem right now. And if we don't deal with it, 25 years from now we'll have the very same act.
Gentlemen, you've been very helpful, both of you. It's good we're not hearing the same thing from everyone.
We know the productivity and performance of our ATI system isn't meeting the public's expectations or standards that we would like to have. Some have blamed the act; some have blamed the commissioner; some are blaming the minister responsible for it; some are blaming PCO for lack of leadership, etc. There's lots of blame to go around, but I think we're committed to pushing for the consensus issues.
It looks as if Mr. Reid seems to have some support in all sectors. I think maybe we should continue our work to the extent possible, but ultimately any changes that are going to happen are going to have to be tabled in Parliament by the government.
Thank you kindly, gentlemen. You're excused.
We have a matter we want to deal with very quickly.
Colleagues, there was a notice from Mr. Poilievre about a motion. It is on our agenda. I took the time to do a little bit of background checking with the Privacy Commissioner's office. The Privacy Commissioner is away this week, but I did talk to the Deputy Privacy Commissioner. She advises me that they have been under negotiation with Google for some time with regard to the street-view project, and they have come to a preliminary agreement on three conditions. First is implementation of the blurring technology for faces, licence plates, and other personal private information. Second, prior to activation of the street view, Google would give the appropriate notice to the Canadian public. It is a blanket global public notice of what's happening and why. Third, they finally reached an agreement with regard to the retention of identifiable images, the original pictures: the software has to deal with them, but they wouldn't be allowed to retain the original images; they would have to start dropping off and not be kept at all. Those discussions are expected to be completed when the commissioner comes back.
I'm also told that internationally a group has been lodging complaints in every jurisdiction that has these services or similar surveillance systems. They fully expect a complaint will be lodged, and the Privacy Commissioner is fully preparing right now to launch an investigation, which means that the parties to that investigation and the complainants probably won't be discussing any of their issues with regard to the complaint before us. They will be doing it before the commissioner.
It is interesting, but as we all know, all the surveillance issues fall under PIPEDA, the Personal Information Protection and Electronic Documents Act, not the Privacy Act. Technically, the chair should rule Mr. Poilievre's motion out of order. Under the circumstances, though, there will be some developments over the next couple of weeks, and I think I'd like to defer the item until the Monday meeting when we return. We'll probably have a little more information about whether there's a problem.
I read from this report from the Deputy Privacy Commissioner that there isn't a problem with PIPEDA. They're telling me that PIPEDA, which was amended or changed substantially two Parliaments ago, is technology-neutral. The principles within the act and the standards to be met with regard to protecting personal information are very clear and can be applied in virtually any application or use of private information. So if we do this, it may involve a little bit more than one witness from one party. If we're going to do something here, I think any motion that comes before us should be a more precise motion, that a study be done should it be found that there is an identified concern about the video surveillance and related types of issues, and leave it at that, because then the committee can decide the scope of witnesses, the timing, etc.
I think most members probably would agree that once we deal with this on that Monday, we should leave it open to the chair to determine whether we would attempt to do that, should a gap appear in our time schedule before the summer, just to make sure that we use our time. So it will give us another item to work with.
Let's clean up the motion just a little bit and resubmit it, and we'll deal with it on the Monday we get back.
Go ahead, Mr. Poilievre.