Good morning to committee members and especially to the vice-chair, Joël Lightbound, our former colleague.
First I'd like to introduce ourselves. I am an associate with the law firm Fasken Martineau. In the Montreal office, we both work in access to information and privacy protection, with respect to both federal legislation and Quebec provincial legislation.
In the private sector, I've had the opportunity to argue cases, lecture and publish papers on access to information. My most recent article, on notification requirements when there is a breach of confidentiality, was published in the latest issue of the Revue du Barreau.
My colleague Marc-André Boucher published his master's thesis, entitled La Loi sur l'accès à l'information et la protection des renseignements personnels commerciaux en droit fédéral in 2014 through Éditions Yvon Blais.
This is my second time appearing before a parliamentary committee this year. I also appeared before the National Assembly as part of Quebec's review of the act respecting access to documents held by public bodies and the protection of personal information.
We would like to address three subjects with you. The first is the issue of notifying third parties. The second relates to access to Cabinet documents, and the third is the administrative framework, including the procedure and deadlines set out in the Access to Information Act.
I'll start with the first subject.
I would refer you to the 2012 Supreme Court of Canada decision in Merck Frosst Canada Ltd. v. Canada (Health), which discussed the matter of the notification requirement for third parties. The Supreme Court of Canada decided to recognize a criterion that access to information officials were not systematically required to notify third parties when they intended to release documents if they were of the opinion that there was no possibility of harm within the meaning of section 20 of the act, which we think leaves a loophole.
We represent public bodies and access requesters, but we also often represent third parties. We have several points of view. In terms of federal legislation, we often represent third parties, and we found that it left an uncertainty. What we told the companies that are going to provide information to the government or to departments is that it might be possible to release the documents without the knowledge of the individuals involved. This is something that we are asking you to review and that you must question, to determine if it's the right mechanism to ensure the protection of third parties, when the access to information official is not an expert in third-party business affairs to be able to judge the applicability of section 20.
With that, I would refer you to pages 69 to 78 of my colleague Marc-André Boucher's book, in which he addresses notice to third parties. That's the first subject we feel that the committee should consider for reforming the Access to Information Act.
The last issue, which is in fact closest to my reality as a practitioner, has to do with the administrative framework of the applicability of the act.
As I said in the beginning, we have experience both federally and in Quebec. You've already heard from Diane Poitras, the vice-president of the Commission d'accès à l'information. You are probably also aware of the mechanism that exists in Quebec and the administrative tribunal with binding powers. However, before speaking about that, I would like to talk to you about some delays that cause frustration to third parties and access requesters. And since it can take an excessively long time to process requests, it may also create a lot of uncertainty. When an access-to-information request is made at the federal level, there is no way of knowing how long it will take to get an answer. The act sets out an indicative time limit that can be extended depending on the willingness of the public body, and the requester doesn't know when an answer will be received.
When third parties are consulted, they are often left in the dark, and they don't know whether a decision has been made or not. In my experience, when the public body decides to accept third party representations and not release the documents that the third parties are asking not to be released, we don't know about it. We have to follow up, chase after the bodies, and we have no information about when the decision should have normally been made. This can vary greatly. However, I don't think it is a question of bad faith by access-to-information officials. Depending on the department, the wait may be very short or very long because of the scope of the access requests.
The mechanism is two-pronged at the provincial level. First, there is a specific time limit of 30 days maximum. Then, there is a valve that allows public bodies to request that a much too onerous request not be processed. At the federal level, we often see mammoth requests where a vast number of documents is being requested. They pay $5 and try to make sure that the list of documents is as long as possible to cover everything. However, processing those cases may take months, if not more than a year. The first source of irritation is therefore the time limit framework for processing access requests.
The second source of irritation that contributes to time limits concerns the lack of powers given to the Information Commissioner, who acts more as an ombudsman than a decision-maker in access-to-information matters. Once again, these are time limits and decision that are not binding. So when you are a third party or access requester, in addition to the uncertainty about time frames, the answer that is slow to come and the outcome of the process, there is the Federal Court. So if you want to exercise your rights to the end and want a binding decision, you send people to the Federal Court after a lengthy wait. The Federal Court is probably one of the least accessible tribunals for citizens because of the excessively unwieldy process they have to follow.
When we compare Quebec, which has a relatively simple administrative tribunal, where a simple letter can start the process, with the Federal Court, where there are requirements and high fees, we see that the administrative process in place between the request and the completion of the decision-making process for the request is long and can be costly.
Therefore, the main thing that should be done regarding the Access to Information Act would be to re-examine this process. We should determine how we want requests for access to government documents to be handled, within what time frame and how we want to come to a final decision within a reasonable time frame and at a reasonable cost.
That is our presentation. We tried to be as brief as possible to give you an opportunity to ask questions.
Thank you, Mr. Chair and members, for inviting me.
I'm here because Saudi Arabia human rights reports are released late, after the minister makes his export permit decision. There are four drafts of it, that go back to the Conservative times, heavily blanked—different.
I'm here because Treasury Board takes a six-month extension to tell me about transparent government.
I'm here because I'm a long-time person who knows, who's been in front of Parliament dozens of times, and who would like to get somewhere.
I'm here for basic structural change. I'm not here for technical changes.
Canada needs to embrace transparency legislation that is bold. For too long, Ottawa's antiquated and dysfunctional act has blocked fuller transparency and encouraged secrecy practices. The right to access should not be hindered by barriers that include lengthy delays, high fees, creative avoidance, and multi exemptions and exclusions. Governments and information commissioners to date unfortunately have sought housekeeping and quick-fix changes that do not—do not—abandon the culture of secrecy.
The best way to move forward is with a comprehensive bill for open government that brings together several transparency measures. That's because better access to government information alone will not bring about transparency or a culture of openness without a combination of measures to create more effective means for greater public disclosure.
In other jurisdictions, New York state, for instance, they combine such transparency measures as a sunshine open meeting component with record disclosure in their information laws. Other countries, such as Mexico, have shown the way by designating specified categories for proactive disclosure that go beyond digital data banks and traditional access to few records. Brazil incorporated inquiries into historic truths side by side with its transparency legislation.
Sweden is one country—I don't know if you heard from their ambassador—with a long tradition of transparency that has successfully combined freedom of the press and protection against censorship with access to public records in companion legislation. New Zealand, where I visited and gave a workshop at the ombudsman office, is a parliamentary democracy that treats access to cabinet records more as an invitation to open government at work rather than as the centre cornerstone of a culture of secrecy.
Canada must catch up and toughen and expand its right to know legislation and become a leader, finally.
Central to this substantial effort is the creation of a proactive disclosure code and transparency agreements with the purpose of guaranteeing information rights, freedom of expression, and freedom to participate. I will go through some key ingredients.
One, you need a clear purpose clause, which we don't have. It would be part of a new right to know act that enhances the freedom of information and maximizes public disclosure and accountability. It is an essential part of the Canadian Charter of Rights and Freedoms; it's just been downplayed under the current act, whose emphasis on secrecy goals is right in the principles.
A proactive disclosure code would help this transition. It would create a legal mandatory obligation, making data on public monies, health, safety, and environmental and consumer matters widely available via the Internet in a digital, machine-readable, usable format on a regular and instantaneous basis. The code would set up the operative principles, including the right to transparency and broad access, right to proactive service for access, right to wide coverage, right to effective decision-making and record-keeping retrieval, and right to independent review. Under this code, proactive disclosure will no longer be limited to a few selective administrative records.
Next, and tied to that, governments and corporations would put in place agreements to actively disclose their information and explain their actions consistent with the code. It would mean enacting federal, provincial, and international information disclosure codes. Proactive disclosure would as well become an integral section in all legislative bills.
What we also need is a proactive disclosure code system that would enable much broader private as well as public sector coverage. No public money would go to those private agencies receiving federal benefits or to those organizations carrying out public functions that do not have disclosure service agreements.
Coverage would include the PM, the PMO, cabinet ministers, and Parliament. No corporate third parties would have special veto powers to object to disclosure. We also need available records from institutions that are wide coverage, including procurement, budget, infrastructure, government operations, and safety and health data. Restrictions would be removed on accessible machine-readable records. There's a court decision that does that.
In order to achieve this, we need other things, too. We need open meeting requirements. Effective public entry to the decision-making meetings of boards and commissions should be required instead of the real business being done behind closed doors. We also need early public policy notification and participation requirements, so the public early on can be involved and be consulted, and it not be token. We also need a system that can be reliably connected to the Internet and where institutional data can be transmitted and set out. We also need, and I think this is really part of it, an independent parliamentary budget officer who provides a fuller picture of financial costs and projections, ensuring that Parliament and the public are better served. In addition, we need a parliamentary legislative officer who would make public analysis of ever increasing complex legislative proposals available to the public and Parliament.
Administrative tools are many, and I'll try to go through them quickly.
There is the duty to document. No transparency and accountability system can do without an up-to-date and immediate retrieval of information, as well as responsive management and effective information management systems. We need to preserve and document decisions, their background, day-to-day operations, and matters of significant public interest.
I'm also putting in here a duty to investigate, because I think a triggering mechanism is needed so that public inquiries can be generated to gather and collect significant material in the public interest. These are matters like food safety, indigenous rights, and health care. Just as the Truth and Reconciliation Commission sought out information on residential schools, and various inquiries sought out data and reported, we need to have an embedded public inquiry mechanism that gets at the truth through investigation, documentation, and public reporting.
We also need, and it's sometimes overlooked, proactive service and interaction. Instead of codes of silence, which is what we have now even under this government, and public relations, enforceable codes of service and disclosure are required. We also need no fees and prompt service. Data needs to be immediately available, and proactive disclosure agreements should eliminate the need for lengthy consultations and time extensions. Along with that, an administrative arm's-length agency is needed whose prime goal is to encourage getting answers and releasing information, not to tangle it up or deny it.
Yes, we need a broader commission with order powers, but with broader powers to order release of documents, duty-to-document documents, access to meetings, and whistle-blowing data that's hidden. We need to have a commissioner who undertakes mediation, but who can also do inquiries and issue binding order powers. We need a commission that leads an audit and education mandate, and that can help look at the implications of legislation.
The courts have a bigger role to perform. Right now they perform more of a conservative role. They need a broader role of protecting rights of disclosure and freedom of expression, and prompt and affordable access to justice.
You can't do a lot of this without some penalties for altering, withholding, and distorting records. You need those kinds of things and tougher sanctions.
You also need a parliamentary oversight committee, because you need to promote the legislation. You need a regular committee that is going to examine all the secrecy provisions in federal acts and assist...reverse that and pass legislation with all proactive disclosure codes, and pass an act that I'm suggesting.
You also need for those members of the public who have few resources, some means to support and challenge secrecy practices. You need the mediums of the Internet and telecommunications, and an independent media to help make all of this possible.
You sure don't want censorship and publication bans and not having net neutrality. You need whistle-blowing protection for both the public and private sectors because that helps bring transparency and accountability.
You can't just—and that's the problem with the current act and the culture of secrecy—elevate secrecy to a principle. The top-down approach in this country that places cabinet records out of reach of Canadians and hides policy options and ongoing work as advice must end.
A mandatory general public interest override would apply to the few narrower exemptions. Narrowing the application of exempt areas also means greatly reducing the time periods for protection, and applying significant injury tests and eliminating secrecy overrides in other legislation.
No one would dispute that the access act is broken, but there's a great divide to what steps to be taken. I was around before the act and I was a consumer advocate back then when I started to make submissions in 1975. I can assure you the act we got is not what I wanted, not what other people voted on. I believe one of your other witnesses went into that. It's broken, and we need to fix it.
The Liberal government is saying to delay to 2018, just like they're delaying my access request and claims it can introduce order-making powers before that, which it cannot without amending the act and looking at it comprehensively, and it cannot if it doesn't look at the prime problem, which is exclusions and exemptions in the act. The current Information Commissioner unfortunately has very limited administrative changes. They won't fix this. They won't fix the legal secrecy framework and practices entrenched in Ottawa.
A basic change in attitude and political will is required that makes information rights, freedom of expression, and freedom to participate as paramount. What is not wanted is more default and delay systems, codes for silent conduct, and superficial chat dialogues, as the minister is doing. There should be no confusion with open data sets as equivalent to giving Canadians the right to know how the government operates.
What legislators, 34 years later, need to address in a non-partisan way.... I was here for the 1987 non-partisan report which at that time went as far as it could with those administrative changes. Now it's 2016, almost our 150th anniversary. We need more. We need a system where disclosure and a culture of openness becomes the norm, not a consolation prize secondary to the many entrenched special claims with special interests. Starting with cabinet and senior officials, the privileges can no longer by law be sacrosanct and claimed as confidences. Canada needs more than access to public records. It needs mechanisms to finally create a public disclosure atmosphere that rejects fear, avoidance, deception, and secrecy, and I've had enough of that and I've had it for over 30 years, or 50 years as an investigator/researcher.
Canadian legislation should not be lulled into doing very little on transparency reform and must significantly roll back—do not look at cosmetic changes—government delays and denials and put forward bold multi-transparency initiatives.
Thank you very much. Hopefully, I'll get some questions, including on the so-called 2016 budget.
Thank you for this opportunity to come before you and answer your questions. My name is Mark Weiler. I am a web and user experience librarian at Wilfrid Laurier University. I am speaking today in my capacity as an individual, and not on behalf of the university.
As an academic librarian, my professional responsibility is to advocate for the value of access to information within society. As a user experience librarian, I am interested in how to make the Access to Information Act more user-friendly. In my own academic research I have used FOI laws many times, and I have helped academics use FOI laws for their own research.
It is an honour to discuss the Access to Information Act with you this year as 2016 is the 250th anniversary of freedom of information legislation. On December 2, 1766, Sweden passed the world's first freedom of information law. Coincidentally, 250 years ago on this very day, April 21, committee members of the Swedish Parliament were debating the issue of government censorship in the context of larger discussions about freedom of the press and access laws. Government censorship is a topic I will raise here today.
I would like to note that the Swedish Parliament has commissioned an edited volume by eminent Swedish and Finnish historians on the topic of their freedom of the press and access laws. I've organized an international petition, supported by 114 people from 33 countries, asking the Swedish Parliament to translate the book, so that lessons of Sweden's past will be accessible to current debates, such as the ones we will have in the next few years.
Although that FOI law has been around for 250 years, most of the world has only adopted FOI laws in the last 15 or so years. Canadians have only had the Access to Information Act for about 30 years.
Many people say the Access to Information Act is in a crisis. They will cite delays or redactions as irrefutable evidence that the law is broken. However, I disagree with such blanket statements, because they risk throwing the baby out with the bathwater. What is rarely discussed is how utterly amazing the Access to Information Act is when it works. In 1981 it would have been inconceivable for Canadians to access any significant amount of unpublished information held by a federal department. Now, with the Access to Information Act, it is possible for Canadians to know more about what goes on in a department than most employees who actually work there. Critics do not generally acknowledge this astounding development.
Now, to be very clear, I am not saying the Access to Information Act does not need improvements. It most certainly does. Rather, I'm saying it has revealed itself to have breathtaking promise that is worth the highest degree of protection.
I applaud the government for wanting to make more information proactively available and for improving the Access to Information Act; however, sometimes open government, open data, or proactive disclosure becomes conflated with meaningful improvements to the Access to Information Act.
For example, in 2013 when the Information Commissioner of Canada was conducting a public consultation on reforming the Access to Information Act, the Australian Information Commissioner made a submission endorsing a transformation from a reactive to a proactive framework. However, when the Australian commissioner was asked for clarification, he revised his statement, saying that proactive disclosure should operate alongside the right to access unpublished information.
I strongly object to any conflation of proactive disclosure with freedom of information legislation. Freedom of information legislation is rooted in the rights of Canadians to decide what unpublished information held in the custody of government departments they will access. In contrast, while proactive disclosure positions the government as a publisher of information, it simultaneously positions the government as a censor, in that the government decides what to publish but also what not to publish.
A report presented to the Swedish parliamentary committee on April 21, 1766, exactly 250 years ago to this day, said that it is no less certain that the government censor must also show greater partiality towards the publication of those works that support its opinions than those in which the faults of the party with which he sides.
Freedom of information legislation prevents governments from becoming censors of government information. Now, to be sure, I most certainly think there is a place for governments to publish information. But government publishing programs can never replace a robust access to information law that enhances the abilities of Canadians to access unpublished information.
To avoid harmful conflation, I recommend creating a new, separate law dedicated to publishing government information or data. Call it the mandatory information publication act. It could be rooted in the principle that governments have a responsibility to publish information that Canadians need to be informed citizens. Parliament or cabinet could debate the publication schemes it would include.
The Access to Information Act is fundamentally different, which is why it needs to be separate. It is rooted in the principle that governments are custodians of unpublished information and Canadians have a general right to access that information. I encourage strengthening the Access to Information Act by revising sections or adding new ones that enhance the ability of Canadians to identify and access unpublished information. I can speak to specific areas that I think are in need of improvement.
Thank you for your time. I am happy to answer any questions.