Mr. Chairman, and members of the committee, thank you very much.
I want at the outset to emphasize, for the record and for the media and members of the public present, that we're here at the invitation of this committee. We're not here seeking to make a presentation on behalf of anybody, and in particular I want to emphasize for you that we are not speaking on behalf of the Government of Newfoundland and Labrador or any agency of that government.
We're here because in an earlier life, a year or so ago, we were the members of a committee that was then functioning. That committee has now finished. We have no jurisdiction left to do anything or to express any views on behalf of any committees. I want the record to be very clear that we're here as individuals who happen to have been involved in that endeavour. You have asked us to come and speak with you about our experience in that, and we're happy to do that, but we're not representing anybody other than ourselves.
It may be helpful for me to outline how we approached the work that we were given. The preparation of the report and the drafting of the legislation were driven by the findings of the committee that were derived from four major factors.
The first was the circumstances that gave rise to the appointment of the committee some two years ahead of its statutorily scheduled time. I won't say anything about that unless you ask, and then we'll provide you with whatever information we have available. Otherwise, we'll say nothing about it.
Second, there's the premier's publicly stated description when he announced the appointment of the committee. He asked the committee to provide recommendations for “a strong statutory framework for access to information and protection of privacy, which when measured against international standards, will rank among the best.” We more or less took that to heart and set that as an umbrella objective of what we were doing. We used that constantly as a guide when we were developing it. We will elaborate on that and any questions you may have.
The third is the specific directions that were in the terms of reference. There was nothing terribly remarkable about them. They were essentially what one might expect in terms of reference for a committee being asked to do this kind of work.
The fourth was the committee's assessment of the practices and procedures of the Office of the Information and Privacy Commissioner as it had been working and as it was then working in the discharge of that office's oversight duties and how, even though well intentioned, those practices and procedures resulted in diminishing public access instead of enhancing it. We had to look very carefully at the way that functioned.
We concluded at the outset that we could not pursue and achieve the objectives that we were being asked to achieve without first assessing the stature of the right of access. What was it? What were its underlying principles? Why was it there? From that we would develop a guide as to what its character should be, what the rights were and their extent, and the limitations on them.
The extremes we heard from people were quite wide, indeed. They ranged from the view of the Centre for Law and Democracy, which categorized it as a human right and all of its characteristics and rights, with virtually no limitation to be determined because of the fact it was described as a human right. They ranged from that position to the view expressed by a professor from the university that the government “does not exist to finance the provision of information to its critics” and secondly, that “if requests are too frequent then the government will be required to divert excessive public funds to subsidize an insatiable appetite for information searches.“
Well, we didn't accept either of those extremes. Instead, we looked at how access to information rights had been treated and assessed in Canada. We did go to the Supreme Court side. We considered the decisions of the Supreme Court, and how they viewed it.
It was not described by them as either a human right or a constitutional right, but a quasi-constitutional right. They described its purpose as being to facilitate democracy, to enable people to participate meaningfully in the democratic process and, finally, to enable the citizenry to hold politicians and public servants to account. Those are the purposes of access to information.
From that, we decided early on that if we were to be successful in the objective, it would be best for us to include in our report an actual piece of legislation that we would recommend. Instead of describing what we thought it should be, we thought the best approach would be to actually draft the legislation that we would recommend. Then there could be no doubt, no misinterpreting, no misunderstanding, or no difficulty in interpreting what the committee was recommending, as the committee was expressing it in the legislation. We engaged the services of a person experienced in legislative drafting, and she did a great job for us. That was the approach we took to it.
The next slide shows the areas we looked at in particular, described in general terms. We will be happy to discuss any of them in detail, but rather than talk about things you're not interested in hearing about, we'd sooner give you the general framework, and you can ask whatever questions you want.
It first became necessary for us to repeal the sections of what was described as “Bill 29”. This was the legislation the government brought in a couple of years before that and created such a furor in the province and needed to be repealed, because it was the antithesis of what good access to information legislation should be. We had to deal with those issues.
Seen in the next slide is the next matter we dealt with, which was about the administrative matters, including the role of the coordinators in the different departments and agencies of government, and the question of fees, what they should be, whether they should be, and what limitations there should be on them. In particular, in dealing with the duty to assist, it was about emphasizing or trying to provide a basis for building within the public service a culture of obligation, an obligation to provide information to the public that didn't seem to exist earlier, and to also provide for limiting the power to disregard requests. There was a statutory power, as there is in the federal legislation, to disregard requests.
The next area we looked at was the office of the commissioner. We were not happy with the results of the existing ombudsman model. The commissioner's office was resisting an order-making model and emphasizing for us the flaws and defects in an order-making model. They made a good deal of sense, so we developed a hybrid, a combination of the two. It starts out, of course, being an ombudsman model, but the treatment of the recommendation of the commissioner after the recommendation is made and the procedures that have to be followed gives it the effect of being an order-making model. As far as the public, the requesters, are concerned, the burden shifts to the government department to establish that the information requested ought not to be released, instead of the other way around.
We discussed in detail the total role of the commissioner, not just the general administration of the office and the time limits for responses. We were very concerned about the time that had been consumed in getting access. As a matter of fact, the overwhelming majority of the complaints that we heard were about the time it took. They were focused on the departments and agencies of government as being the cause of this and had totally overlooked the impact of the role of the commissioner's office in these delays. We had to do a detailed examination of that.
The other general area that we looked at was modernizing the existing system, particularly in light of the instruction from the government to provide recommendations for legislation that, when examined or compared with other legislation in the world, would rank among the best. We had to do some modernizing of the existing system, and we did. We expanded the public interest overrider provided specifically for public interest override. That seems now to have been well received. We made recommendations for the provision of data sets and recommendations for implementation of a duty to document—not in the access to information statute, but in the statute regulating maintenance of information and documentation in government services generally, which is where we thought they should be. We gave the general recommendation in our report.
We also dealt with the development of publication schemes and acting proactively in getting information out without waiting for it to be requested, recognizing the importance to the general public of having this information. If they are to participate meaningfully in the democratic process, the general public needs the information. We felt there was an obligation on government and all of its agencies to be engaged in active publication of the information without waiting for requests.
We also felt there should be better development of privacy information assessments for new governmental programs and legislation and that before any of it was proceeded with, there should be an assessment of the impact on privacy rights, so we provided for PIAs as well.
Finally, we addressed requests for exemptions and kept those exemptions at a minimum. We rejected most of the ones that had been requested specifically to us and eliminated a good deal of the other exemptions that were in the old legislation. That enabled us to produce the legislation that government readily adopted without changing one single item in the legislation.
We were happy with that result, needless to say, and we're happy that generally speaking, we've heard good comment and widespread acceptance of the approach from stakeholders all across the country.
That's where we're going to stop, Mr. Chair, and leave it to you.
Did you want to add anything, Jennifer? I'm sorry.
We had a great deal of discussion about the issue, as you can well imagine. It started at the outset with the commissioner complaining about the inordinate delays, of sometimes two, three, and four years, before the information was released—an incredible portion. All the details of what they were are in our report, so I don't want to go into them now, but the standard and times involved were so unacceptable that we couldn't let them remain.
We were the ones who raised, with the commissioner, an order-making model, and we were inclined to go to that model, but the commissioner kept speaking against it and expressing his view that the ombudsman model worked better. He argued that the order-making model would introduce even longer delays than were already being experienced because they would have to do a detailed assessment and write a supporting decision that would stand up to legal scrutiny on appeal of any such order. He believed it would introduce even longer delays because of the hearing processes, and so on. That made some sense, at least to me, having experience with delays in courts with hearings and processes.
We wanted to find a procedure that would work best. By the end of the hearing, there had been an overwhelming number of complaints about delays and so on. As a result of the discussions, it started to come to light what was driving some of the inherent delays, and the commissioner came around and said, “Well, we could live with an order-making model. It may work all right, but we think the ombudsman model is best for Newfoundland and Labrador.”
When we then did the detailed assessment of what was driving it—and all that information is in the report—it was clear that the commissioner's office was the cause of 90% of the delay. The procedures and the approach being taken weren't greatly different from what they were in most other provinces.
So the delay was just inordinate. We worked on a system that would speed it up, and the hybrid model is what we produced.
When the commissioner made his recommendations, we had very strict time limits placed on the time frame. There is provision for expansion, but it's very rigidly controlled. When the recommendation of the commissioner is made, if it's unacceptable to the public body, the public body has two choices: follow the recommendation and release it if it requires release, or apply to the court right away, within 10 days, for an order that you would not be required to release it.
As a result, the burden shifts to the public body, not to the requester to provide it. That's effectively making it an order, but it doesn't place the commissioner in the position where he or his office feels they have to go through these processes of hearings and to write this learned, extensive “court of appeal” type of judgment on the issue that takes all of this time, and then have the appeal of it go to a court, which hears the issue de novo, all over again.
One of the witnesses said to us, “We can understand having these rights, but why do you have two complete hearings?” And that made a lot of sense. So it was to avoid these problems, and this is where we see there would be delays in an order-making type of oversight system. You would not avoid the delays.
That was my point of view on it.
Doug, you may have something you want to add to that.
Our report indicates that nothing would be terrible about it. We recommended a much more open regime, and the structure we put in place in the legislation we drafted provides for a much more open regime. However, it doesn't provide for a totally open regime.
Government still has to function and has to function efficiently. It sometimes makes it a great deal more difficult if, every hour on the hour, government has to report to the public exactly what it's thinking and that it may or may not go in this direction or another direction. It would create a great deal of confusion and result in public chaos, as well as governmental chaos.
Some level of confidentiality in the process of government is essential to the efficient working of a cabinet system of government in a parliamentary system. You have to have that.
There are also certain things like the following. For instance, you can't have judges' notes and drafts of decisions released. You can't require that they be released. You can't have police investigations, prosecutors' decisions—preliminary assessments and decisions—released. If you do, you run the risk of brandishing about people's names, who could end up being determined to be totally innocent. That's grossly unfair to people. You can't do that. There are certain things that must be kept confidential.
However, the overwhelming majority of the information that government possesses can be made public, if not immediately, then on a very timely basis after the decisions are made. It's more difficult to have the process during which matters are being considered before decisions are made.... You can't be making that public. That would make government very difficult. However, once decisions are made, the overwhelming majority should be made public if we're to have a proper democracy.
No, I don't have any doubts about it.
Everything government does, in the end, must be in the public interest, or government shouldn't do it. That's the standard I would apply.
If it's not in the public interest, government shouldn't be involved, because it's in the private or personal interests of those involved in government or their friends in the private sector. Everything government does should be in the public interest, and government should be able to demonstrate by the release of information relating to it that it has acted and performed in the public interest in the long run.
Certain circumstances, the ones I've mentioned, are justifiably off limits and shouldn't be released for the reasons we've given. In some cases—matters affecting national security, national defence, and international relations—they must have a level of confidentiality, and understandably so. Other than that, the day-to-day affairs of the governing of Canada and all it's provinces must be in the public interest.
The public can only exercise their democratic right on the basis of judging the government's performance in the public interest. If they don't have the information, they can't judge. At least they don't have the ability to judge. They're being deprived of the ability to judge, and that shouldn't be in a democracy.
It was a counter-narrative.
Many of the people who came before us felt that public bodies, in some cases, were not welcoming of their effort to find information. We discussed it not only in terms of what we were hearing in our province, but we also looked at guidance from other places. We quickly came to the conclusion that the citizen who is coming to a public body for information is coming because they she wanted it. They want some information. They may not know exactly what they want.
As the holder of the information, there is a certain obligation to help them arrive at that happy moment where you can say, “This is what I want.” The first part of it is actually to engage with that person right from the start, to respond to them quickly and say, “Mr./Ms. Smith, we have your request for information. We're starting the process.”
We actually recommended that instead of your having this letter or application going into the system for information and then your hearing that you either will or won't get the information, there be progress reports at specific times. I think that within 10 days there's a requirement that an acknowledgement be sent out.
Part of the duty to assist is not just to say, “You can't have this information because of section whatever”, but to explain to people in language they can understand why that's the case. More importantly, you need to to work with people on their requests to say, “There is some confusion about what you are asking”, and to engage with that person to help them get to a place where they get what they want or what they think they want.
One of the good things that's happened is that all the access coordinators have now gone through customer service training.
Colleagues, if I may, I'd like to ask a few questions while we have some time. I seem to exercise this right probably more than I should as chair. First of all, I want to thank all of you for coming and making your way here today. I found the conversation to be very enlightening.
As we wind down our study on access to information, we'll be going through the draft report that our analysts have prepared for us and will likely add some of the testimony that we've heard today. This meeting is also a segue into our resuming the existing study we have on the privacy legislation.
Given the fact that your study actually rewrote the legislation, because it's a joint role and responsibility in Newfoundland and Labrador.... Here at the federal level, of course, we have a commissioner for each role. Even though the budgets for the Privacy Commissioner and Information Commissioner are basically jointly held when it comes to the estimates and how those budgets are passed, each one has its own autonomy and authority to look after its legislative mandate.
Ms. Stoddart, I think you are uniquely positioned as a former privacy commissioner to tell us any of the things we need to look for as we move forward and transition into the study of the privacy legislation. My question for you is severalfold.
One, does it make sense at the federal level to even look at a potential model in which Canada would have commissioner for both access to information and privacy, or should we maintain the current yin versus yang, where we have an Access to Information Commissioner and a Privacy Commissioner? Would it make any sense having one such commissioner in terms of economy of scale, and would it make any sense in terms of the entirety of the process and an overall oversight point of view?
We also received a letter from the Privacy Commissioner as part of our mandate, who was very much concerned about opening up and broadening access to information as it pertains particularly to individuals' personal information and the ability of the Information Commissioner to have order-making powers to that effect. I'm wondering if you can give us any insight as we move forward on some of those concerns that have been brought up?
I think all those concerns are valid, and I would encourage the committee to look with an open mind at all the possibilities, at this point, and all the factors that should be considered.
I have a few comments. First of all, when I came to the Office of the Privacy Commissioner, I understood that there was a history of, shall we say, less than complete co-operation between the two commissioners and their offices. I felt strongly that was not in the interest of the Canadian public. Mr. Robert Marleau, who was the interim privacy commissioner after John Reid, and I did the most possible to set up cordial relations, which continued between me and Commissioner Legault. That situation of competition, I guess—I don't know what it was, I wasn't there but just heard about it—had been extant for several years. I don't think that's appropriate between government agencies. We know it happens, but we know that individuals all have their own personal information rights and their access to information rights. It's important that if there are two commissioners, it be made clear that they and their offices should work together.
One of the results of that competition, shall I say, was that the offices then developed their separate administrations. You could logically ask, “Why isn't there one administration for the two offices?“ That was how it developed, so there are things like that you should know.
Secondly, I was fortunate in the time I was federal commissioner to benefit from several fairly generous increases in funding from Treasury Board and the government on submission of the appropriate proposals and requests. I don't know what the budget is now. I think it's about $17 million or $18 million, or something like that. It depends on how you count it with benefits and so on. The point I'd like to make is that I believe it is still far in excess of the Access to Information Commissioner's budget. Worldwide, even when you look at a joined-up commission, like in the U.K.—it's always been that way in the U.K.—since the access to information law was passed, it was added to the duties of the existing privacy commissioner.
It's in the nature of the access to information function that it tends to take a lot of the funds, and there is perhaps an understandable pushback from the government of the day to not be as excited about funding more access to information requests about its own activities. The Privacy Commissioner rarely gets into such a possible contradictory position with the government, because lately many of the privacy issues have been about technology and about third parties, notably what the private sector is doing or what we should be doing in terms of national security and about surveillance policy, for example, in which the government is actively looking for advice.
We have two different positions, and the Canadian privacy office has been able to do good work—I am partial—over the years because of the generous budgets and because of the support it got from the Canadian government. There are a few things to take into account. There's a bit of jurisprudence where the Access to Information Commissioner is contesting a decision of the Privacy Commissioner, but it's usually settled in a way that doesn't involve going to court.