Thank you very much, and good morning, Mr. Chair.
I'm here this morning with Nancy Bélanger. Nancy is the general counsel in my office. Nancy is responsible for any legal advice, but she also supervises any kind of litigation that we have and provides input to all our investigative files, particularly the complex files, and generally provides advice about everything that goes on at the OIC.
I'm accompanied as well by Jacqueline Strandberg. Jacqueline is a counsel as well within Nancy's group. Jacqueline was instrumental in the production of the report we're going to discuss this morning.
With that, Mr. Chair, I'll start my presentation. I have very brief remarks.
I thank you and I thank the committee members for the opportunity to discuss my special report to Parliament entitled, “Striking the Right Balance for Transparency”, which contains recommendations to modernize the Access to Information Act.
During my appearance before this committee this past Tuesday, I recommended that the number one priority for the committee should be the modernization of the Access to Information Act. After over 30 years of existence, the time has come to take bold steps to transform this piece of legislation.
An eminent expert in the field of access to information, Professor Roberts, wrote the following in 2012:
||Around the world, our understanding about the importance of governmental openness has advanced substantially. We know much more about what works, and what does not work, in the domain of RTI [right to information] law. And we also know that system of responsible government is resilient. Fears that the constitutional order would be up-ended by the adoption of this sort of legislation were overblown. There is a world of experience to be drawn upon while updating the Access to Information Act, and no good reason why it should not be done with boldness.
The recommendations in my report are instructed by international, provincial and territorial legislation, annual reports, model law, reform proposals made by former commissioners and parliamentarians, and reviews of the act. The recommendations are also based on my own experience, after completing over 10,000 investigations during my mandate. The recommendations are drawn from the highest standards and best practices for access to information legislation.
The recommendations are aimed at allowing greater scrutiny by Canadians of government activities and decisions, by extending the coverage of the act to all public institutions, including those that receive funding from the government.
The recommendations are aimed at strengthening the information management framework to ensure that the government remains accountable and transparent. The recommendations are aimed at ensuring timeliness in the processing of requests. As the first Information Commissioner, Mrs. Hansen aptly said "Delaying access to information in effect destroys the purpose of the act."
The recommendations are aimed at striking the right balance between transparency and the protection of specific interests that require protection. They are consistent with open government objectives, such as the disclosure of information that supports the accountability of decision-makers and citizens' engagement in public policy processes and decision-making. To maximize disclosure, exemptions should be narrow and focus only on protecting the interests they are intended to protect. No more. In most instances they should be injury based, discretionary, time limited, and subject to a public interest override.
The recommendations are aimed at effective oversight, based on key fundamentals, such as the ability to review all the records at issue and to issue binding orders. In fact 68% of all the countries that have implemented an access law in the past 10 years feature an order-making model. In Canada, the provinces of British Columbia, Alberta, Ontario, Quebec, P.E.I., and to some extent Newfoundland have binding order powers.
The recommendations are aimed at aligning the act with open government initiatives, such as publishing information that is of public interest, disclosing more information related to the repayment of grants, loans and contributions, and requiring institutions to adopt publication schemes.
The recommendations are aimed at introducing a comprehensive regime of sanctions to address actions contrary to the quasi-constitutional right of access.
Finally, the recommendations are aimed at addressing inefficiencies and longstanding issues with the access to information system.
Let me give you a few concrete examples of issues that require a legislated solution.
In terms of the coverage of the act, the Supreme Court of Canada determined that ministers' offices are not institutions covered by the act. Decisions of Ministers can significantly impact Canadians. Ministers need to be accountable to the citizenry for the administration of their areas of responsibilities. Only a legislative amendment can extend the coverage of the act to their office.
In terms of information management, there is documented evidence of serious breaches by the public service of its obligation to create and preserve information of business value. Recent examples include the triple-deleted scandal in British Columbia and my report on the use of text messages. Information Commissioners from across the country co-signed a joint resolution in January calling on their respective governments to adopt a legal duty to document.
In terms of timeliness, Mr. Chair, delays are a frequent subject of complaints by requesters. On average, this represents 40% of the workload my office deals with in terms of administrative complaints. There is an efficiency to be gained in the entire system for dealing appropriately with the question of timeliness. One case in particular is a salient example of the lack of discipline currently in the act. Last year we finally had a decision in the case that I brought to the Federal Court questioning the reasonability of a 1,110-day extension applied by the Ministry of National Defence. Although the decision from the Federal Court is expected to have a positive impact on timeliness, the current legislative framework is inconsistent with progressive norms. It is truly compelling to think I had to take this matter all the way to the Federal Court of Appeal to have a decision that such a lengthy extension was unreasonable under the legislation.
In terms of maximizing disclosure, the Supreme Court of Canada recently interpreted the exemption for advice to government in the Ontario access to information law very broadly. The court's ruling extends far beyond in my view what must be withheld to protect the provision of free and open advice. The equivalent exemption in the federal law, section 21, uses similar language to its Ontario counterpart. Section 21 was already considered prior to the court's decision as the “Mack truck” of exemptions. The breadth of this exemption must be legislatively narrowed to strike the right balance between the protection of the effective development of policies, priorities, and decisions on the one hand, and transparency in decision-making on the other.
In terms of strengthening oversight, the commissioner's ability to issue orders would ensure that the processing of requests would be more timely, would instill more discipline and more predictability, would provide an incentive for institutions to make comprehensive and complete representations to the commissioner at the outset, would create a body of precedents that increases over time, and requesters and institutions would then have a clear direction as to the commissioner's position on institutions' obligations and requesters' rights under the act.
One of the most frustrating aspects of the work we do at the office, Mr. Chair, is that we find ourselves reinvestigating the same issues that have been dealt with many times by previous commissioners instead of having a body of precedents that will actually provide clear clarification. Again, there is a huge efficiency gain if we don't have to reinvestigate the same issues again and again.
In order to assist the committee, I will provide in the coming days a written submission with reference notes on each of the 85 recommendations. I have provided a sample of what we're going to provide the committee for chapter 1 of the recommendations. We simply didn't have time to translate the whole document before today, but the idea behind our table, Mr. Chair, is to provide the committee with an easy reference in terms of where the recommendations come from, where they were discussed before, and why they're in the recommendations. I will also provide to the committee a backgrounder that will enumerate the previous proposals to amend the legislation since its coming into force in 1983.
In closing, I would like to reiterate that the changes proposed in my report are, in my view, long overdue and urgently needed. Having a modern access law would assist Canadians in exercising their right to know. It would also facilitate the creation of a government culture that is open by default. In my view, unless we significantly modernize the Access to Information Act, we will not be able to effect this change of culture, which is absolutely essential to meet the government objective for an open and transparent government.
It would also re-establish Canada's position as a world leader in access to information. I strongly believe that the time has come to modernize this act. We need a new act, one that will pass the test of time, and one that will pass the test of successive governments.
Thank you, Mr. Chair.
Since the coming into force of the act in 1983, there have been several reviews. We'll provide that to the committee.
In 2006 the previous government, when they came into power in 2006, had promised to implement all of the recommendations of Commissioner Reid, who had actually worked with the previous committee and had produced the open government act, which incorporated a whole series of amendments.
The government in 2006 actually passed legislation in the Federal Accountability Act. That legislation contained a subset of some of those recommendations. It increased the coverage of the act to a lot of the crown corporations—CBC, Canada Post, Via Rail—and agents of Parliament, including my office and the office of all the commissioners, except for the Ethics Commissioner. The other commissioners are now subject to the Access to Information Act. That was part of that reform.
As part of that reform as well, there were some very specific either exemptions or exclusions that applied to all of those entities. I talk about that in the recommendations. That was done, and there was also a duty to assist put into the legislation.
Aside from that, in the history of the act, there was one other significant amendment, and I think it was in 1999. That's when the criminal offence was put in. That's section 67.1 in the act, and that flowed from a private member's bill. In terms of looking at other coverage, in terms of looking at the exemptions, in terms of looking at the timeliness, in terms of looking at the order-making power....
The other thing that really was not part of the 2006 discussion at the very least, and reform, was how do we modernize the act in the context of open government, open government by default. That's fairly new, actually.
If you don't ask, you don't get, right?
I want to come back in a very loose way to recommendation 1.2 about expanding coverage to ministers' offices, but on a more general note. You're absolutely right that ministers' offices are making important decisions, but I think there is a general tension, and I don't think an insurmountable one. As an amateur historian, you want to have the records there, but as people have more access to certain records now, it discourages actually making those records, and then you can never find out why that decision was made.
I'm just wondering how we can be sensitive to that tension, to try to create records that the public could have access to, but still maintain what, I think, on the face of it makes sense. When I'm in a meeting, for instance, I want to make private notes. I may have things that I don't want on the record forever. They're fleeting ideas. They're things that I just want to explore later that I'm not committed to. It really wouldn't make sense to have them be part of the record.
We talk about making people's notebooks accessible. Granted, if those are the only records of a meeting, then I think there's a far better case actually to make those accessible. Granted, there really ought to be some sort of record of the meeting and decisions, but how can we proceed? I think often that tension is used as an excuse not to provide any form of access at all, and that's partly how we're getting to where we are. That argument ends up trumping, and people say, well, don't we have the right to be able to consult and have our own decision-making process, and won't you be impeding on the good decision-making of government if we don't have that?
I'm just wondering how we could proceed in a way that recognizes that people need time, that some people think on paper, and they need to be able to have that process before they come to decisions. How do we do that so that this argument can't be used as a fig leaf for those who would just want to deny access for the sake of denying access?
What you're saying is something that we hear quite a lot.
When I talk about changing the culture of government, that's exactly what I'm talking about. People actually have to understand that all of us are carrying a public function. We are working for other people, all of us, in everything we do every day.
The other misconception is.... The Access to Information Act is actually structured in a way that what needs to be protected is going to be protected: solicitor-client privilege, personal information, advice and deliberation; all of these exemptions are there for that specific reason.
In the example I gave about the notes, obviously these notes would have been covered by the national security exemption. There is nothing improper about that. When people and institutions are covered by access to information, it does generate a certain decorum. The decorum should not be that you don't take notes. The decorum should not be that you do not create records. But the decorum can be that you don't make disparaging comments about a colleague in your notes because those will be disclosed. You will find that there has been quite good discipline instilled in the public service in the way that communications occur in the workplace. Those are good things, actually.
But in terms of taking notes, yes, they would be covered and they are covered for all of us within public institutions, and that is not necessarily a bad thing. We just have to own up to fact that these notes are part of the record. Probably in many instances they would be transitory records, so they are subject to an access to information request. If they exist at the time the access to information request is made, they are part of what is responsive to the request. Unless they are really crucial notes that you need to put into your file, they would become part of the official records, and if they are part of transitory records that you're allowed to let go after a while, then that's fine. It becomes a question of whether that's a record of business value or whether that's a transitory record.
The purpose of many of the recommendations in the report is to make complaints processing more efficient. This will also address Mr. Jeneroux's concerns about the efficiency of the complaints process.
Every year, 35% to 40% of the complaints we receive are administrative, in other words, they have to do with timeliness. The answers simply are not being sent by the institutions. That makes up roughly 40% of the complaints we receive annually.
On average, we receive 1,800 complaints a year. This year, we will receive more, but there are other years when we receive less. The rest of the complaints, or 60% of them, have to do with a refusal to disclose information.
The complaints about timeliness, which we refer to as administrative complaints, are processed rather quickly by the OICC. Those types of complaints do not stay in our inventory long. Refusal complaints take the longest to process. Currently there are more than 3,000 complaints. Out of that number, 88% are refusal complaints, or more complex files.
Out of those 3,000 files, roughly 400 are about national security, 400 are about the Canada Revenue Agency, and 150 are about the CBC. The rest of the files are about different institutions. This represents the bulk of the files.
I also have files that have been lingering for quite some time. In 2009, when I arrived at the OICC, I was processing files from 1997. This year, I will be closing my last file from 2005-06. I could provide you with a table that gives a snapshot of the years for which we have an inventory, how old the files are, and the large blocks that have to do with the Canada Revenue Agency. It is the dashboard I use when I look at my inventory. It gives a good overview of what is going on.
The biggest problem right now is that it takes almost a year before a refusal complaint can be assigned. It's a real problem.
Generally speaking, once a file is assigned to an investigator, it is settled in more or less 90 days. Of course there are special cases, with files that are 20,000 or 30,000 pages long that take us a great deal of time to get through, and rightly so. There are other files that are not very big that take less time to process and are less complex.
That gives you an idea of what we are dealing with.
I do not have a study on that. The comparative study we have comes from the Centre for Law and Democracy, which did an evaluation of the Access to Information Act. Again, that was an evaluation based on certain criteria in the legislative framework. It does not address implementation, or the infrastructure in place to respond to the requests and so forth.
It is very difficult to compare countries. Some countries have more progressive laws, but those laws do not necessarily result in more disclosure of information. India has a very progressive law, but does not manage its information. That system is practically impossible to manage.
In 2002, when Mexico passed access to information legislation, it put a system in place on a very advanced technology platform. When it comes to technological infrastructure, Mexico is very organized. When someone requests information from an institution, that institution responds electronically on the same technology platform on which the complaint was filed. Mexico has a commission, which has very strict deadlines for making a decision, but I am not sure whether Mexico does what we do. We do a page by page review of the file to determine whether what was redacted by the institutions was appropriate or not. In that sense, our system is in a way more sophisticated.
The other thing is that we have a lot of information and documents in Canada because we have good information management. In Mexico, before President Fox, there were no documents. It is therefore very hard to make a comparison in terms of efficiency.
However, we might look at the provinces. When you do your review work, I suggest you invite commissioners who have order powers relative to the experience in an ombudsman model because in our experience, application of the act and processing complaints becomes much more efficient.
That's where, if you don't respond, you're deemed to have consented. It only applies to Canada.
For international jurisdictions, we are recommending to seek consent if it's reasonable to do so. The reason we put that there is we did a study a few years ago on these international consultations. Most of them are done with the United States. They're reasonable to consult, and then see if you receive an answer. In other jurisdictions, it's not reasonable to do so for various reasons—diplomatic relations; Iran or Iraq when we didn't have diplomatic relations, or when there is no infrastructure there for us to consult with, which was also an issue raised during our investigation.
The distinction is made, and it's only in that context.
It does happen to us quite a lot in investigating those files, and that's why we put that there. We don't get responses from national institutions in cases of historical records. We get a lot of complaints dealing with archival records. A lot of the time it involves police investigations that occurred some time ago, or other types of investigations, and we need to seek consent or the institution needs to seek consent, and the institutions in the provinces or territories don't respond. So we ask them to send letters, and so on.
It was meant to address a very specific issue, and that's why we are recommending to split those between national and international, specifically what you're raising.
This is a very good question, and I can give you very concrete examples.
I was telling you that 40% of our files deal with administrative matters. If you're able to just say to the institution that they shall disclose the information by this date, it's a lot more efficient than having to do an investigation.
By the way, the Federal Court of Appeal case for the 1,110-day extension is not because we didn't try to mediate that with the department. We tried extensively to mediate. We could not get the department to agree to a date for disclosure, and it had to go all the way to the Federal Court of Appeal.
In an order-making model, that would have been settled within days. We would have looked at the situation, looked at how many records were involved, looked at the necessary consultations, and if we could not come to an agreement with the institution, we would have just ordered disclosure by a certain date.
This is what happens in Ontario, for example. If you speak to my colleague in Ontario, you will find that they don't have issues with delays, because the institutions know.... It's a reasonable mediation process once the institution is in default. It does happen. It will continue to happen. But the institution comes to the oversight body and there's a conversation about when this information can be disclosed, and then there is a decision that's made and the information is disclosed. That's the first step. It really solves a lot of those issues. That's one thing.
The other aspect of real efficiencies in an order-making model is the mediation aspect, and that is key. Right now when we investigate refusals to disclose information, we try to mediate. However, you have to understand that in an ombudsman's model, it's the same body that mediates or tries to negotiate something as makes the decision at the end, or the recommendations. There's no real mediation privilege around that discussion.
You will also find with my colleagues who have the order-making model that the mediation component is a lot more effective, for two reasons. One, you can have mediation privilege, i.e., if you don't agree, there's a separate adjudicative process, with separate parties. In our ombudsman's model now, we do try to negotiate, but there's no real protection or privilege for that conversation.
In an order-making model, if you don't mediate, then it goes to adjudication. That's a lot more costly. It's a lot more time-consuming. The last efficiency is that the institution has the burden to give all of its representations to justify the non-disclosure at that time.
In an ombudsman's model, if they want to give us not very strong representations, they know that ultimately I'll have to take it to court. If the government does not want to disclose, the incentive in an ombudsman's model is to not do a very solid job to justify non-disclosure, but in an order-making model, that incentive is completely reversed and the burden is truly where it should lie.
These are the three huge differences in efficiency components to that model, which are truly in sync with the quasi-constitutional right of access.
We investigated some cases recently.
With this issue of public-private partnerships, we're getting into a lot of subcontracting for the work that's being done within government. Public Works does a lot of big contracts. The big contracting companies subcontract to a lot of other smaller entities, and we're finding it's getting more and more difficult for people to have access to those records.
We had quite a difficult investigation. We were trying to establish that Public Works is still responsible for those records, but as you move through third and fourth subcontractors, it's very difficult to get the records. That's one issue.
In terms of protecting third party commercial information, we have put in specific proposals to amend section 20. The reason we're recommending proposals here is that it also deals with appropriate protection, trade secrets, and commercial and financial information. Also, the way the act is done right now leads to a lot of inefficiencies in the investigations, because there are about four grounds for refusing disclosure. They all overlap. Some of them are mandatory and some of them are discretionary.
Our investigation is very complex, because we have to go through each step. Everybody quadruple-banks all of these exemptions. This is really our experience in all of our investigative files with third party commercial information. We're recognizing the importance of protecting it, but we want to really streamline the way that exemption is crafted so that it really simplifies the investigation while protecting the information.
That's a very good question.
We live in the Westminster style of parliamentary system. If you look at our parliamentary system historically, there's a lot of secrecy.
We grew up as a democracy in that kind of system. It's interesting when you look at history to see that parliamentary debate used to be held in secret. In London—in fact the Mayor of London.... Somebody called Hansard decided to publish these in a rogue manner, because he thought the public should be made aware of what parliamentarians were discussing in the British Parliament. And then the person was actually jailed in the Tower of London. But eventually the debates got to be published, and look: all of your discussions are now televised.
That's what I mean by a culture change. We have to go through the same culture change in the public service in the way we administer the Access to Information Act.
The way people administer the act is to look at a record and say, “Section 19 applies, section 21 applies, section 23 applies, but oh, I can also apply section 20, and oh, I think it's probably also covered by section 69 and section 15 and maybe section 13 as well.” We will see cases in which we have a full slew of exemptions applied. The way we apply it is that whatever possibly applies is an exemption to disclosure, because we're risk averse in the public service; we're afraid of disclosing something we should not disclose. There is that culture that exists for sure in the public service.
What do we have to do? I think there is a very significant difference with the new generation, the millennials. All of us who have children who are in that category truly see the way that people work. I think as public institutions we're going to have to profoundly change the way we communicate our information from government, because our millennials, not only Canadian citizens but our public servants, want to share this information. They need it to work. They work this way, by using a whole broad source of information.
I also think we need to do it because sharing information with the public in today's time actually creates an innovation society, and we have to do that as well. The whole idea behind open government, in the U.S. particularly, was really based on creating an innovative society. Why? It's because we have cut a lot within our public service, and information and innovation occurs a lot outside of the public service. There needs to be this interaction so that we maximize the opportunities for innovation.
I truly believe in that. Yes, I know that people think I'm a bit of a Pollyanna, perhaps, in holding this view, but I don't think that necessarily has to be the case. If you speak to people from the Swedish government, you will find that their public servants' perspective on what needs to be disclosed is very different from ours. They have 250 years of experience with access to information laws, but their culture of disclosure is very different from ours. As part of your study, if you speak to some representatives here from the Swedish embassy you will find the way their public servants deal with disclosure information tremendously interesting.
This goes to some of the comments about how we administer this efficiently. The way they administer it is much more efficient than the way we administer it. They put much of the responsibility and the accountability on public servants directly: they make decisions on disclosure. They don't have a centralized process; they don't have approval processes; it isn't reviewed by communications people. It's a lot simpler.
There are things to think about in the change of culture, and there are examples in other jurisdictions. We need to really think about not just the risks but the opportunities of doing something like that as a country and as a public service.
Oh, agreed. I'd be very curious to find this out.
So now we're going to Scotland and Sweden, it sounds like.
Voices: Oh, oh!
The Chair: The second question I have for you is on the generation gap you were talking about. I mean, you talked about the millennials, so I interpret that as a generation gap.
Let's take a look at the departments in the Government of Canada right now. I know there are some issues here within Parliament as well that we're talking about, but in the bureaucracy, there's a generation gap between the millennials, who are likely working in front-line or mid-management positions right now, and the folks who might be a little longer in the tooth, who are working in senior management positions. There's a cultural generational gap: a culture of secrecy, or the old way of doing things, versus the new culture, the millennial way of doing things, which is a much more collaborative, open, and transparent process.
I'm wondering if there are any good examples you can give us of where we might start looking to see how we can get government to be more open and to just kind of change that culture within the bureaucracy.
My last question, on behalf of the entire committee, is that you indicated to us that the Swedish model might be of interest to this committee. You also talked a little bit about Scotland, about how they might have some befores and afters that would address my previous question.
Through the document that you've published, is there anyone that you feel this committee should be meeting with? Are there models not only provincially but from other federal governments around the world, other governments at the state or provincial levels in various other countries that we should be taking a look at with respect to incorporating or bringing in witnesses or studying the models they have? This would be from a positive perspective, as something we could do, but not necessarily only from a positive perspective; we'd like to look at it from a cautionary perspective as well, at some models that aren't working to make sure we don't go down that road.
I don't expect you to have a fulsome answer to that question right now, but perhaps you could get that to this committee in the very near future as we try to delineate who we need to talk to, or who we should be talking to. I think your recommendations would be very important, very insightful, and very helpful.
On behalf of the committee, I want to thank you and your staff for coming here today.
Yes, Mr. Erskine-Smith.