Thank you, Mr. Chairman.
It's a pleasure to be here. It's not the first time. Actually, when we appeared in 2009, in a previous demand for changes to the act, we mentioned that the act had been around since the Chrysler minivan was a new thing. I know the Treasury Board president was talking about the K-car earlier, so we have some things we agree with and a number of things we don't. Hopefully this committee will look at the recommendations as something that will be as long-lived as the minivan rather than as short-lived as the K-car.
There has been a crisis in terms of access to information for some time. The act has not been changed, as everybody knows, since 1983, not in any substantive way. You heard from a number of witnesses, including the commissioner, that a number of amendments need to be made.
The Treasury Board president talked about bringing forward a limited number of amendments this fall. He used the term “quick wins”, which in British Columbia has a rather unfortunate connotation. Be that as it may, we understand that what the government is looking at doing is a small number of amendments now, and then the comprehensive review in 2018.
Given the seriousness of the problems, we think this is very unfortunate. We would have preferred to see the major review happen sooner—at this time—to deal with the many, many required amendments. We have proposed a number. We've set them out in our written submission to you and in earlier submissions, which are referenced in that report. I'll just touch on some of the main points and try to reinforce some things that need to be dealt with.
We draw some comfort from the fact that the government proposals, which were released earlier, go beyond a simple restatement of what the Liberal Party promised during the election campaign. Hopefully the government will be as quick to adopt a number of vital changes that have already been proposed by a number of witnesses before this committee, particularly the elimination of the cabinet exclusion and the creation of a legislative duty to document.
We are much less pleased to see that a number of the additional changes set out in the proposals could have the effect of reducing or negating promised improvements. These include a possible ministerial override of the Information Commissioner's order-making power and handing government departments the power to ignore requests, or bar requesters, on the grounds that they are frivolous or vexatious.
I'll just quickly run through some of these things. I've organized them, just for simplicity, in accordance with what the government has proposed, but I would again draw your attention to the fact that there is a very long list of proposed amendments. We are not backing away from those. We are just dealing with these, if the government is proposing to bring in matters of priority, as some things that absolutely must be done.
First of all, we applaud the government for carrying through on its commitment to eliminate fees. We do find it a little puzzling, though, that a government that is having financial problems is insisting on maintaining the $5 fee for applicants to exercise their right to information. As the government's own materials point out, the cost for processing each and every one of those $5 cheques or $5 in cash is between $50 and $55. This is a net loss, a very large net loss, to the Treasury of Canada. We don't know why the government just doesn't bite the bullet, get rid of the $5 fee, and save the money. Even with electronic processing, where the cost is considerably reduced, if even 10% of requests come in with cash or cheques, the government is losing money. We urge you to save the taxpayers money and get rid of the $5 fee.
It also has the happy consequence of improving access.
We also look forward to appearing regularly on a five-year review. This is a very good idea, long overdue, and the B.C. Legislative Committee just reported yesterday after their review so I urge that to you.
We have been calling for order-making power for some time, and we look forward to seeing the commissioner being given full order-making powers. We are not in favour of half measures. The government's own studies have supported this for many years. It has been recommended for decades now, and we urge this on you.
We have a commissioner with order-making power in British Columbia as do a number of other provinces. The system has worked well. It provides more immediate relief and direct access for requesters, and we feel that is a much better way.
An item we are concerned about in the government's proposals is the inclusion of the possibility that the government may bring in a system similar to what they have in the U.K. with ministerial override of orders of the commissioner. We think this is a bad idea. In fact, the U.K. Supreme Court thinks it's a bad idea.
You may or may not be familiar with the Prince Charles's black spider letters where The Guardian fought a very long battle to get copies of Prince Charles's letters to a number of cabinet ministers. The government overrode this, and The Guardian took it all the way to the top court in the U.K., which said that the idea of a ministerial override of a quasi-judicial tribunal is contrary to a number of principles of the rule of law, and they struck it down.
Rather than heading down that road, we would urge you to follow what has been tried and true in a number of Canadian jurisdictions and give the commissioner full order-making powers.
We also congratulate the government in bringing ministers' offices and the PMO under the scope of the act. This is a good idea. It's something that has been called for for a while, and it's necessary in light of the 2011 case involving the Information Commissioner and National Defence.
However, we are concerned about a qualification that was not in the Liberal Party platform. The proposals say that the Access to Information Act applies appropriately to the Prime Minister's and ministers' offices. We don't know what the word “appropriately” adds or subtracts, but we don't get a good feeling about this. It should apply, and the commissioner with her order-making power or the courts will decide what is or is not appropriate. We don't see any need for this qualification.
B.C. ministers' offices have been covered since the beginning of the act in British Columbia back in the 1990s, and we have had no problems with this. There are existing models in Canada for this, and we look forward to seeing this coming about.
A very large problem, and a problem that overrides probably everything else if it's not dealt with, is the exclusion of cabinet documents. Every witness before you has recommended this be changed, or if they haven't, they certainly have not recommended that the cabinet exclusion be maintained.
We would like to see all the exclusions removed, as does the commissioner, as do a number of other witnesses. However, the exclusion means it ousts any possibility that the commissioner or even the Federal Court can look at records and review them if the government says they are confidences of cabinet, which means there is no third-party review.
This is not just a theoretical possibility. In her latest annual report Commissioner Legault found that, “Institutions invoked section 69 more than 3,100 times in 2013-2014. This is a 49-percent increase from 2012-2013, which followed a 15-percent jump the previous year.”
Clearly, this is being used more and more. There is no way to tell whether or not in good faith that this exclusion is being properly invoked. In B.C. and other jurisdictions our commissioners have been examining cabinet documents for decades. There has been no problem. We have not seen the collapse of responsible government or anything close to it. I would urge you that if any of the other reforms that are being proposed are to have any real effect, this loophole must be closed.
You've also heard from a number of witnesses, including the commissioner, calling for a legislative duty to document. This was not part of the government's proposal. It has been a matter of some controversy in British Columbia and in Ontario where documents have disappeared or documents have not been created. Our commissioner in British Columbia brought a report in October 2015, which I would urge upon you, outlining the circumstances of how documents are either not created or, in some cases, are destroyed even in response to an access request.
The British Columbia committee—your equivalent, the special legislative committee reviewing the B.C. act—made a number of recommendations in a report they released yesterday. One of them was the creation of a legislative duty to document. All of the commissioners in this country have called for this and we urge this upon you.
Something else that was not included in the Liberal Party program, which was part of this, is frivolous and vexatious requests. This problem is actually very rare. In British Columbia between 2010 and 2014 we've had 20,000 requests and we've had 20 applications—that's applications—not granted, not imposed, but 20 requests.
This is a very rare problem. We're not opposed to having this brought in but we do think that this must be done by the commissioner. This should not be done by the public bodies.
I believe my time is up. I thank you and I look forward to your questions.
Thank you, Mr. Calkins.
Thank you to the committee for this opportunity to testify—I'm tempted to say “yet again”—on the Access to Information Act. I was here in 2000, in 2006 with the Federal Accountability Act review, in 2009 with the committee review, again in 2011, and twice in 2013. Just over a year ago we saw the release of the Information Commissioner's report, and then finally we saw a statement in December 2014 by the Treasury Board President, Conservative Minister Clement at the time, acknowledging that the act needs to be changed.
So we've had all these consultations now going back 15 years and then back before that to July 11, 1994, when then Justice Minister for the Liberal government, Allan Rock, said the act was out of date and needed an overhaul.
Through all these reviews, thankfully, I have not been holding my breath. Otherwise, I would not only be greyer than I was back when the reviews started, but also dead. I'm hoping there's going to be action this time. I am greyer. I am also getting a bit tired of coming before the committee and having the committee recommend if not unanimously then almost unanimously significant changes and the government promising those changes as the Conservatives did in 2006, and yet nothing happens, over and over again.
What we have currently, if it were accurately titled, is a “guide to keeping secrets” act. We do not have an “access to information” act, and we haven't since 1983. Some argue that it was actually better before 1983 because there wasn't a guide that was so clear about rubber-stamping what was unethical and secretive as legal. I don't agree with that entirely but definitely the exemptions in the act are so broad that we have essentially what amounts to a guide to keeping secrets act, not an access to information act, and definitely not an open government act.
I echo very much what my colleague Vince has set out. Those recommendations and a couple of others that I'll highlight are endorsed not only by Democracy Watch, the group that I coordinate, but also by the Open Government Coalition, which is made up of groups with a total membership of more than two and a half million Canadians.
Let me just go through a few of these recommendations. They are all recognizable because they are essentially the same recommendations and promises that the Conservatives made in the 2006 election campaign, in terms of strengthening the act and the overall access to information system. Unfortunately, only one of the promises was partially kept and that was the extension of the act to dozens more institutions that were not covered before 2007 when the Federal Accountability Act came into force.
The Access to Information Act should cover all federal public and public function and publicly funded institutions automatically. They should not have to be added to a schedule by anyone. If an institution wanted to be exempt after it had been created, it would apply and the commissioner would decide whether that definition applied or not with an appeal to the courts. Having to add more and more institutions means creating new institutions that are not going to be subject to the act for years and years.
The Information Commissioner must be given the power to order the disclosure of any record and with that power, of course, comes the right to see any record. No exemptions should override the Information Commissioner's power to review a record and decide whether the act applies and the record has to be released.
The duty to document, as was mentioned, is very important. There should be a record of every decision and action and if the Liberal government is going to actually follow through on its promise to be open by default, that would mean that those records would be proactively uploaded onto a searchable Internet website system and therefore almost everything would just be available online and no request would have to be filed. That kind of an information management system would solve a lot of problems that are caused by the current guide to keeping secrets act.
Proactive disclosure beyond that, of course, would also have to mean closing a lot of the loopholes and exemptions, which are very excessive, that exist in the act. As the Conservatives promised in 2006, there should be a public interest override that covers all exemptions and even overrides all secrecy acts, the only exception being that disclosure could be refused under a “proof of harm” test.
The big, difficult areas, which almost everyone acknowledges are difficult, are the areas of disclosures that could harm relations with other countries, international relations overall, the defence of Canada, law enforcement, including national security, and also someone's personal safety or sensitive personal information. In those areas, yes, there will need to be exemptions, but give the commissioner the right to make the decision as to whether an exemption applies in every single case, with an appeal to the courts. That's the way the system would work most effectively and would ensure openness by default.
As well, in particular, as has been highlighted by my colleague, the act must cover the information and the options provided to cabinet ministers' offices and Parliament and also be extended to the Ethics Commissioner and the Senate ethics officer, who are currently exempt.
Finally, concerning information management systems, all information should be disclosed in a usable format for free, without unjustifiable delay. The public already pays for the creation of this information and its maintenance; they shouldn't have to pay to also get disclosure of it.
The Information Commissioner should be given the power to impose fines for violations and increase the fines for convictions. Convictions under the act should be faced with a more severe penalty than just things such as delay.
In terms of the Information Commissioner's being an independent watchdog, currently the commissioner is selected solely by the ruling party; yes, in consultation with the opposition party leaders, but the opposition party leaders don't actually have a say. It should be at least either all the opposition leaders, or a majority of them, approving the appointment—of all officers of Parliament, not just the Information Commissioner but anyone who is watching over, mainly, the ruling party in government.
The commissioner herself recommended that two-thirds of MPs approve the appointment. I don't like that method myself, because one party could hold two-thirds of the seats in the House, so then it's still the ruling party approving it only.
Beyond the act and the information management system, and changing it from a “how to keep secrets” act to an actual open government act, I urge the committee to continue, as it does, examining the overall open government system at the federal level.
There are still outstanding, serious issues with muzzling government scientists—the policy has not been changed concerning their being able to speak freely to the public and the media about their research—and with the Lobbying Act, or as it accurately should be called, the “only some lobbying” act, as it has massive loopholes that allow for secret and therefore unethical lobbying; and the Public Servants Disclosure Protection Act, which if it were accurately titled would be called the “public sector lack of disclosure protection” act and which also has enormous problems. Also, there are MPs' expenses.
The parliamentary budget officer lacks independence and powers that really echo what I'm saying about the Information Commissioner, and all the officers involved in disclosure should be given these powers to penalize and to oversee anything they want to with again an appeal to the courts, if the government feels they're acting unjustifiably.
I'll leave it at that. I look forward to coming back to the committee to talk about the “only some lobbying” act and the “public sector lack of disclosure protection” act, and hopefully on the “how to keep secrets” act.
Hopefully we'll get change sooner than that, so that I won't have to come back, because once again, I'm getting tired. But I welcome again this opportunity, and I'm not too tired to answer a few more of your questions.
Thank you very much for the invitation to be here. I'm grateful to be asked for my point of view on access to information. Unlike Vincent and Duff, I am not a subject matter expert, and my history on the file is not long.
For the past 15 months, I've run a small alternative news web site, TheRebel.media, and by nature we are contrarian, so access to information is important to us. First of all, we don't have a large enough staff to cover all the news events we would like in real time, especially in Ottawa, so access to information is important to us. I think it's going to be more important to other media whose staffs are shrinking.
But more importantly, even if we had a large staff, the news—at least critical, skeptical news—is not always found at official public events chosen and scripted by the powers that be. Even question period, although it can sometimes uncover some facts, is not called answer period for a reason. Again, there are some issues that even opposition parties don't want to talk about.
That's my motivation and my background.
In the past 15 months, our little news outlet has filed hundreds of access to information requests at all levels of government and institutions. But the most troubling case comes from Ottawa, and that's why I accepted the invitation to come here. I don't have the background of my friends, but I have a story I'd like to share with you. The documents I'm referring to are posted on a website called stonewalling.ca, if you want to examine them at your leisure.
Let me give you an example of a contrarian story that doesn't fit into photo-op journalism and frankly doesn't fit into the kind of journalism that risk-averse opposition parties might ask about. It's the kind of thing that only a cranky, independent news outlet might do. I refer to, for example—my one example today—the great immigration project of bringing 25,000 or 50,000 Syrian migrants to Canada in short order.
There were crafted photo-op opportunities even in Amman, Jordan watching migrants fill out questions on a questionnaire, being processed. There was the official news that was available to everyone. We asked one simple question in an access to information request. We said, “We saw the images of the questions being asked. Can we please have a copy of the questionnaire?”
That was a little bit contrarian; it wasn't photo-op journalism. Frankly, I don't think it's an issue that even the opposition parties want to talk about, because they want there to be a little more “sunny ways”.
We got a response on January 5 from the Immigration Department, from Audrey White, who said no such questionnaire existed. But I saw with my own eyes Minister Sajjan and Minister McCallum watching in a room as would-be migrants to Canada were asked questions.
So we wrote back and we said maybe there's a word game going on here. So we asked for “the list of questions, list of topics, checklist, form, screening criteria, or however it is being referred to internally”. Could we just see the questions? It's a real journalistic ask.
We were replied to again on January 27 and told that no such documents exist. That can't be, so we wrote back a third time quoting and citing a link to a news story in which the minister himself talks about the questionnaire. Finally, we got a letter back on March 9, and you can see all of these documents at stonewalling.ca. On March 9, finally they discovered that they did in fact have a questionnaire, which we knew because we saw the questions being asked, admitting that they had them but saying that they couldn't give those questions to us for various reasons, including national security reasons.
I guess anyone who walks in from Syria could get those questions; they could hear them themselves. They're not a security risk, but I'm a security risk for asking them. That doesn't make sense.
Let me give you another example from the same department. You can see this document on stonewalling.ca also. We asked a simple question, because we understood from press reports that the Turkish government was helping to provide the list of names that were being brought over. We asked if there were any issues or concerns regarding the Turkish government being delegated that list-building activity.
Hélène Bertrand wrote back and demanded a 300-day extension—300 days. I've never heard of that before. I guess it was too much to ask for more than 365.
There was a line in there that I want to especially bring to the attention of the governing party MPs, because I don't think this is in tune with the Prime Minister's statements on transparency. This morning I watched the Prime Minister's video, and I went through the Liberal Party website about transparency, with the default being to have openness. I watched that, and I know that especially new MPs for the government must still be enthusiastic and idealistic. I ask—especially the government MPs—if this line is appropriate, coming from a civil servant in the Trudeau administration.
Let me quote from Hélène Bertrand, explaining the 300-day exemption, which is another way of saying, “We won't tell you the answer until any news value is gone here and any chance to raise public policy concerns are gone.” This is what Hélène Bertrand wrote to us, “It is to be noted that, at this point of the process, the department is working to meet the mandate on Syrian refugees set by the Prime Minister of Canada.”
Okay, that's great, but what does that have to do with someone whose job is access to information? She's not flying to Amman, Jordan to intake refugees. She's not affecting the project. Her job is to get the emails and run the photocopier. I don't know if that was her way of deflecting blame onto the Prime Minister's Office, but she named him, in particular, and said that he said they have to be all hands on deck. What does that have to do with someone whose particular job is to furnish documents? I don't believe she left the photocopier and got on a plane to Amman to help with the work.
Ms. Bertrand said the same thing, and asked for a 300-day extension when we asked a question about media reports of migrants who were detained at Pearson airport when the Prime Minister himself went to meet them. I was concerned. Why were they detained at Pearson? Were they detained? Were press reports accurate? Hélène Bertrand said, “We can't tell you that urgent public policy answer for 300 days, because the PM says we all have to work together.” That doesn't sound in keeping with the spirit of what I watched the Prime Minister say about transparency.
We asked about how the religious needs of migrants were being met. On January 6 we were told that answer would take 275 days. I hope this is not the spirit of the new government, a government that won in part, in my observation, by promising more transparency and openness, and with the default setting to be open.
All these documents you can review with your own eyes at stonewalling.ca. Frankly if you could light a fire under the department to help us get those answers, I'd be grateful.
Let me turn the clock back a few years. Imagine if it was the old administration and former prime minister Stephen Harper was the PM. During the extreme situation of the war in Afghanistan, imagine if someone at the Department of National Defence's access to information office wrote back and said, “Well, yes, you have a simple and precise question, but the Prime Minister has said that we're in a war and that all efforts must be put towards prosecuting that, and so because the Prime Minister says that, we cannot give you answer for 300 days, because we're too busy.” The importance of the Afghan war itself means access to information is even more important.
The importance of this central project of bringing in 25,000 to 50,000 migrants means public scrutiny and accountability is all the more important. It's not an excuse for not complying. I don't know if that was a bureaucrat passing the blame to the big boss, or if she was honestly saying this was why she couldn't answer it, but a 275-day...a 300-day.... I think we even have a 330-day extension. That is the same as a stonewall. What's the point in telling me the news about a questionnaire being used in 2016, if I don't get the answers until 2017?
I have come here not as expert, as my friends are, and not as someone with a deep history here, but as someone who, over the last 15 months, has done hundreds of access to information requests at many levels of government and to some non-governmental institutions, like schools and hospitals. It is my candid report that I have not seen any response from any institution as resistant as those I've just described.
I've never seen anyone else ask for a one-year extension and I've never seen anyone else fudge that there's no questionnaire. I saw it with my own eyes. The minister referred to it.
I've never had anyone else say a questionnaire that the public has asked for is a national security secret to you. That's why I'm here. That's why I accepted the invitation to raise a particular issue that may be a symptom of a larger problem.
Thanks for letting me have my minute or 10 or 20.
There seem to be two parts to the question.
One is commercially sensitive information, which has its own exemption under the act. That gets applied, and should be applied in the normal way, hopefully by the commissioner with order-making power.
In terms of expanding the scope, and Mr. Conacher talked about that earlier, we in our larger submissions talked about extending this to private organizations that receive or carry out a governmental function and receive large amounts of government funding.
In terms of examples, in British Columbia there was considerable outsourcing done, which we take no position on in terms of policy. In 2004 we asked for copies of the contracts, and one of them was with IBM, for the maintenance and the running of the government computer system. The government fought us for eight years. After five years we started having birthday parties for the freedom of information request. They still fought us. They took us to court after we won at the commissioner...and they lost every time. Eventually they had to fold.
It does give you an indication of how sometimes these things can be fought.
Mr. Conacher, we agree that there should be a broader criteria, that it shouldn't be up to the minister to put something in a schedule rather than having it, by definition, included.
Yes. But I'll just say with the act, they're all allowed to be in a direct financial conflict of interest; they're actually able to make decisions that make themselves money. That's the act. That's why I call it the “almost impossible to be in a conflict of interest” act.
The appearance standard in the code, now called the “Open and Accountable Government” guide or document, dates back to when Brian Mulroney first released it, and even before that. Before it was released, Trudeau had those words in there, “appearance of a conflict of interest”. It's never been enforced by any prime minister since Trudeau Sr., even though that standard has supposedly been there as a requirement for every minister and minister of state, parliamentary secretary, since the late seventies. What does it mean? It means a reasonable person looking at the situation says you're in a conflict of interest.
In terms of potential, that one is more difficult. I'm not actually worried about taking that right out, because if you are in a situation now that creates the appearance of a conflict of interest later, then later, when it becomes relevant, you can't act. You don't need to be looking in the future and trying to predict what's going to happen, and what portfolio you may be given. It will arise at that time and be an appearance of a conflict of interest, and you won't be able to act.
Unfortunately, despite all of the rhetoric, we have another prime minister who's not enforcing that standard yet again. There's more than one situation, not just the justice minister, where we have appearances of conflict of interest, and the people who are supposed to follow that rule are not being required to follow it.
I want to come back to the theme of how we try to harness some of the goodwill and momentum and the positive rhetoric about openness and transparency to ensure that we do actually get meaningful reform within this mandate.
The last government, we know, came in on a white horse of openness and transparency and accountability and then proposed a two-step plan. There were going to be some immediate reforms and then there was going to be a more comprehensive kind of project to follow that would deliver the big goods.
If there are real issues about implementation.... I think we spoke earlier to the fact that the measures in the interim directive don't really speak to the larger issues that would have to be dealt with in the review. To say that we need to wait to see how those go before we can decide what we want to do on those larger issues is, I think, mistaken.
I've done a lot of organizing, whether political organizing or community organizing, and my next question is always, if we've had the general conversation and there's some agreement about what we want to do, how we take it to the next level so that we're getting some action. I think here it's pretty clear that this conversation isn't going to go to the next level until we have proposed legislation.
We can talk about the language the government is choosing to use, whether it's about having a ministerial override clause for the order-making power of the commissioner or whether it's examining what applying access rules appropriately to the PMO and to ministers' offices really means and what it would mean in the context of a larger act.
That's what I think probably needs to happen, if we're going to get any progress. What about the idea of moving more quickly on a substantive act, but not bringing certain clauses into effect, or giving either the President of the Treasury Board or whoever would be the sponsor of that legislation as a minister or the Governor in Council the opportunity to bring those into effect at a later date, if that's required for a kind of rollout of implementation within the civil service, but making sure that those commitments are in law and that it's clear what exactly the government intends to do over the next four to five years?