This is the eighth meeting of the Standing Committee on Access to Information, Privacy and Ethics. Today, pursuant to Standing Order 108(2), our study is on the Access to Information Act reform.
We have before us again, from the Office of the Information Commissioner of Canada, Mr. Robert Marleau, Information Commissioner; Andrea Neill, assistant commissioner, complaints resolution and compliance; and Suzanne Legault, assistant commissioner, policy, communications, and operations.
As you know, we invited Mr. Marleau to come back to specifically address the 10 recommendations he left with us at our last meeting. Mr. Marleau also left us suggestions on five witnesses who are up to date, in his view, and proactive on the Access to Information Act and would be prepared to be witnesses. We contacted them, and three are available. They are all from out west, and it is my intention to call them to be witnesses on Wednesday so we can keep the continuity of the current work we're doing. So that's coming up.
You also have before you the matter from the Oliphant commission. We will deal with that at the end of the meeting. I'll give you an opportunity to look at it and consult, if necessary.
I agree with you fully. There was a bit of a tight timeline, which was part of the problem. I know at least one could not be here physically, so we were going to have to do teleconferencing anyway. We went that route simply for efficiency and cost-effectiveness, but I take note of your point. Thank you.
In conjunction with those witnesses, I wonder if I can get a motion from someone. We need a budget, over and above our ordinary budget, of $5,900 in total. That includes $3,600 for our witnesses' expenses, $1,800 for the video conference, and $500 for miscellaneous.
That is moved by Ms. Simson.
(Motion agreed to)
Thank you, Mr. Chairman, and thanks to the committee for the time it's providing me to address you once again on the issue of access to information reform.
With me today again are Suzanne Legault, the assistant commissioner, policy, communications and operations; and Andrea Neill, the assistant commissioner for complaints resolution and compliance.
At my appearance before you last week I tabled a document that elaborates on 12 recommendations to strengthen the Access to Information Act. These 12 recommendations are urgently needed to modernize the access to information regime from a legislative perspective and catch up with more progressive regimes both nationally and internationally. While I'm not presenting them to you as a package that is entirely take it all or leave none, there is a thread that runs through these recommendations, and I hope it'll come out in my remarks.
These changes address the general themes of parliamentary review, providing the right of access to all, strengthening the compliance model, public education, research and advice, coverage, and timeliness.
I want to stress that the list of recommendations represents an important first step in meeting the challenge of modernizing the act. The list is by no means exhaustive. The recommendations only tackle the most pressing matters. I will quickly go over the twelve recommendations I am prepared to respond to some more detailed questions in a moment.
First, I recommend that the act be amended to require a review by Parliament every five years. This schedule will provide an opportunity for parliamentarians to identify systemic issues, consider best practices in other jurisdictions and recommend changes to legislative or administrative structures.
In an environment of increasing globalization, people require access to information regardless of their physical presence. It's becoming difficult to sustain the concept of limited access. It prevents our regime from moving to the Internet age, which ultimately affects timeliness. It also increases costs by adding intermediaries.
Therefore, I recommend that the right of access be provided to all.
I also recommend providing the Information Commissioner with order-making powers for administrative complaints. This model would facilitate an expeditious resolution of administrative matters, which account for about 50% of my office's business.
Fourth, in order to exercise a measure of control over the complaint process and the utilization of resources, I recommend that the commissioner have the discretion to investigate complaints. Currently the Access to Information Act requires that I investigate all complaints received.
The two next recommendations deal with my mandate as Information Commissioner. I believe that these changes will assist in promoting greater dialogue, transparency, and increased accountability.
First, many of my counterparts, provincially and internationally, are expressly empowered to promote a public understanding of access rights and to conduct research into issues affecting the public's right to know. This expanded mandate would help ensure that Canadians are aware of how to exercise their rights to know. And therefore I recommend that the Information Commissioner be given a public education and research mandate.
In addition, I recommend that the role of the Information Commissioner in providing advice regarding proposed legislative initiatives be expressly recognized so that federal institutions are obligated to consult with my office in developing legislative proposals to ensure proper account is taken of the impact on freedom of information.
Canadians expect all publicly funded bodies to be accountable under access to information legislation. This is why the administrative records of the Senate, the House of Commons, the Library of Parliament and the judicial branch of government should be covered by the act. This is my recommendation number 7.
Another important proposal relates to cabinet confidences. The status of cabinet confidences has been under constant debate since the inception of the legislation. Currently, they are excluded from my review, which goes against one of the fundamental principles of freedom of information legislation — independent oversight. Therefore, I recommend that the Access of Information Act apply to cabinet confidences as discretionary exemptions.
As noted in my special report to Parliament, tabled last week, a greater oversight is required to ensure that extensions do not undermine the timely release of information. Therefore, I recommend that the approval of the Information Commissioner should be required for any extension that is greater than 60 days.
And timeliness of investigations is also an issue. My office is trying to tackle that. I briefed you last week on the backlog of cases. I believe it is appropriate to establish a 90-day timeframe for completing administrative investigations. That's my recommendation number 10.
The Access to Information Act does not provide direct access to the Federal Court for requesters. Instead, the Information Commissioner must first complete his investigation before a complainant can go to court if he or she desires. The time required to obtain a binding resolution of a complaint can be too long for some requesters. Recommendation number 11 provides for this option.
Institutions are sometimes faced with multiple and simultaneous requests from the same applicant. And as it currently stands, the provision for extending time limits cannot be applied to these situations. Therefore, I recommend that government institutions have the option of claiming time extensions when responding to multiple and simultaneous requests from the same requester that would unreasonably interfere with their operations.
In closing, Mr. Chairman, I would like to reiterate that I support, in principle, the Open Government Act, which was developed by my predecessor at the behest of this committee. However, the recommendations I am making in this document I believe should be implemented without delay. They would go a long way to appreciably improving the effectiveness of the regime in providing significant benefits to Canadians. And indeed, should Parliament adopt my first recommendation of a five-year review, if this legislation were amended accordingly today, five years from now we'd be in a position to report back on any changes that these recommendations may or may not have brought to the system.
Thank you for inviting me to share my thoughts on the reform of the Access to Information Act, Mr. Chair. We would be pleased to answer any questions you may have.
I think there are three recommendations that target different behaviours on the part of government responding to requests.
The first is the order-making power for administrative complaints. Should the commissioner have this order-making power, it would fill what has been identified as a flaw in section 30 of the act. That section lists the items upon which one can file an administrative complaint. But there's no recourse; you can't go to the courts on this. This way, administratively, the commissioner could address some of these issues and build an administrative jurisprudence that would guide departments in meeting their obligations under the statute. That's one component where I think this rule would change the culture.
The other, which was the body of my special report, is the restriction on extensions. We found that they average 120 days and, in some departments, much longer than that. We've cut it in half and modelled it on some of our provincial legislation, so that the commissioner should be the one to approve any extensions beyond 60 days. Those are the 30 days within which they are normally supposed to respond under the statute, and then they can claim a perfectly legal extension, but to a maximum of 60 days, so that within 90 days there should be an expectation that service will be provided to the requester. I think this would change the culture, because after they've come to the commissioner two or three times to justify the extension, there's a hesitance, I think, to keep coming back. So I think this would enforce a different behaviour within that 90-day window. This, I think, would change the culture.
The other is the recommendation I make that the commissioner have discretionary powers over investigations. Right now, the act says “I shall” investigate, and as a consequence, it doesn't matter what the context is or the content is; they just used to line up in a queue. Having a little discretion, I think, would help in dealing with some of the issues—which, in other legislation, are called vexatious and frivolous—and with departments in terms of how they respond to that. So it's a question again of changing behaviours and culture, but this time on both sides of the fence.
I'm sorry I took so much time, but those are the three components for cultural influence.
Mr. Chairman, there are two reasons.
First, I did take general advice from the users and practitioners, and I also took into account former Justice La Forest's report to the Governor in Council in a previous administration, the Martin administration.
On the one hand, there is a bit of a flaw in the legislation under section 30. You can go to court for refusals if you're not satisfied, but there is no recourse for an administrative review, other than a complaint to me. And if you're not satisfied with my results, if I say this extension is perfectly reasonable, you have no recourse. At the same time, if I say to the department that it's not reasonable and I recommend X, and they don't do it, I have no recourse. So the recommendation would fix part of that and bring, I think, more structure and discipline to the use of extensions and on other administrative issues.
I think Justice La Forest made a very strong argument, in that the Federal Court of Canada, as a public judicial body hearing fundamental issues on refusals, has heretofore been useful to Canadians. I was a little loath to go all the way, so as not to throw out the baby with the bathwater. There is some argument to be made, I think, in favour of a court process on the issue of disclosure and non-disclosure, versus what's happening in Alberta, where you litigate errors in law made by the commissioner. By the time we get to the Federal Court, we're on to a fundamental issue of interpretation of our legislation. Quite often the document that's being asked for becomes less important than the fundamental issue there.
Going one step still leaves the door open for the next. Should Parliament, five years hence, accept recommendation one, you will have the benefit of our experience over five years in this administrative area. Then it's up to you to decide if you want to open the door all the way.
Mr. Marleau, I'd like to continue along the lines of what Mr. Poilievre was just questioning. I think what he seems to be pointing to is a cumbersome process that's not very cost-effective. However, I think the conclusion he's heading toward, that we should restrict access, is the opposite conclusion that I believe you and most Canadians would arrive at.
From all indications, we seem to have a mid-20th century process for access to information. Yet we have seen all these tremendous technological advances that indicate that we could provide, very efficiently and cost-effectively, transparency in a democracy. I believe you or someone else gave the example of New Zealand, where information is automatically posted. It's proactive as opposed to entailing that people fill out forms, have those forms processed, and then have clerks go through and search archives.
Wouldn't it make sense, in the 21st century, to not be using this arcane 20th century method? Not only is it cost-ineffective, but it also allows the potential for abuse. I'm not sure if there is a correlation, but in the last couple of years we've seen an increase, a very significant increase, in the number of complaints about the actual process.
On that point, last week before the public accounts committee, I raised the issue of the testimony of RCMP officers who worked in an ATIP section. One officer in particular raised the whole issue of how he prepared an ATIP request to be sent out, was called in by a deputy commissioner into the commissioner's boardroom, and was asked for a switcheroo to take place. The deputy commissioner had prepared a different package and wanted it to be switched with the package that the officer had presented.
We heard other disturbing testimony as well. In fact, a parliamentary committee made a request for documents from the ATIP section within the RCMP on a Wednesday evening. On the Friday, right at close, one of the deputy commissioner's key staffers arrived requesting those very same documents, documents that I would assume they would already have copies of within the deputy commissioner's office, so I'm not quite sure why they would have been requested.
You see, what I'm getting at is this. How can you have confidence that the system is working when there isn't an arm's-length relationship between the department and those access sections? As for most people who would be requesting, either they have an academic interest.... But the average citizen, journalist, or MP would be requesting because they have concerns. We're making those requests for people to be absolutely forthright and transparent with us. We're making requests to the very people who may in fact have made mistakes or, in the worst of all worlds, who may be engaged in a cover-up.
I'll try to respond very briefly, Mr. Chairman.
We hear anecdotes of ATIP coordinators under pressure by management to delay, to not disclose, to amber-light to buy time, and all that sort of thing. We hear that. Part of it, I think, is mythical and part of it is probably true, but in terms of what we see through investigations, it is a rare occasion that we can actually pinpoint an individual in that kind of behaviour you are describing.
What's wrong with the ATIP coordinator's relationship with the head of the institution is that too many times they are so far down the rung that they have very little influence on the system within their own department. They're under-resourced, and sometimes that may be deliberate, I can't say for sure. But certainly there isn't the commitment to fix it such as they did in the Department of Justice recently.
Unless these people are specifically trained and have their own identity, the competencies and the certification, like internal auditors who have professional accountabilities that they must live up to, that won't change. I think that would go a long way in building confidence, expertise, and professionalism in the corps of ATIP coordinators.
If we take just the crown corporations as an example, the CBC was really an exception last year, which was the first year they came in under the statute. For all of the other crown corporations, we've seen normal activity, either in terms of numbers of requests globally or in numbers of complaints.
The CBC was facing a situation, as I described in recommendation 12, of multiple similar requests by a single user all at the same time. No institution, in my view, could have responded within 30 days, and no institution could have responded, with a reasonable extension that we're proposing, in terms of 60 days. At the same time, I got 435 complaints or whatever it was. There's no way I could respond to those within 90 or 120 days.
We have to take the CBC out of that mix, I think, if we want to look at the curve. In terms of the extension of the scope of the act to the extra agencies, the total requests in the system came to about a 6% impact, year over year.
On the complaints side, the 142% increase was not due to the specifics of the added institutions but partly due to the fact that the complaint period was reduced to 60 days from one year. Requesters are complaining sooner; they must complain sooner or lose their right to complain.
It's not expanding my mandate to cover more organizations, because I deal with complaints; now I have more organizations who can complain.
But in response, in terms of the recommendations I'm making today, I would say that while it's true the scope of the act was expanded, and that while it's true Parliament acted in a proactive way to increase the reach for more transparency, we've created a bigger problem. Now we have these many more agencies who essentially have the same kinds of issues to deal with--paper-based, extensions, lack of resources, not enough trained individuals in the system. As a matter of fact, the crown corporations cherry-pick some of the best away from the public service, including from my office, in order to get up to speed.
So while it was well-intended in terms of scope, if we don't fix some of the structure and some of the mechanics, we just create a bigger problem.
We'll resume our meeting.
Colleagues, on Friday Mr. Walsh, who is with us right now, the law clerk of the House--and he's joined by Mr. Greg Tardi, who's senior parliamentary counsel for the House as well--received a letter from the Oliphant commission, counsel to counsel, as it were, or lawyer to lawyer. He raised it with me on Friday; he sent me a copy of it to look at and asked for my input.
I shouldn't talk to this yet, because there is a procedural matter we have to deal with, but I thought it was important to bring it to the committee. I asked Mr. Walsh to write up some matters, and I personally only considered the very last item, which is the motion itself, to be relevant here. I was concerned that the commission is going to proceed with its work unless we respond. I'm sure Mr. Walsh is going to respond, and I think he's basically asking whether or not this committee should reaffirm the undertaking it made to our witnesses with regard to parliamentary privilege.
So I'm asking to bring it to the committee for consideration. My concern is simply with regard to times, since those hearings are going to start. If we don't respond to them, they're going to go and try what they can, but I do understand efforts will be made to use the testimony before the public inquiry, as a consequence. I think it's important that we decide whether or not we want to reaffirm our view and get that communicated to the commission as early as possible so there's no misunderstanding as to the rules of Parliament.
First of all, I have to ask whether or not the committee will waive the 48-hour notice required to bring an item before the committee.
An hon. member: Agreed.