Good morning, everyone.
It's great to see everybody back after our constituency week. This is our first meeting. Before I get to our witnesses and our guests this morning I'll remind members who are new, which is all of us, that when we're doing video conferencing you'll find that there is a delay between here and whether it's Montreal, Toronto, or Alberta in this particular case this morning.
What I would ask that you do is that you hesitate for a couple of seconds if you're going to switch languages or if you're going to begin your questions after someone is done speaking. You'll find that it's like a cellphone conversation when two people try to start talking at the same time because of the delay. Sometimes these things happen. For the sake of our translators and to make the meeting go as effectively and efficiently as possible for those of you who haven't done a video conference before just note that delay.
Colleagues, when we last met we had plans to have certain witnesses here. We had talked about having privacy commissioners from other provinces and information commissioners from other provinces as well, and they were able to join us today.
I would like to welcome from the Commission d'accès à l'information du Québec, Diane Poitras and Jean-Sébastien Desmeules. From Toronto we have Mr. Brian Beamish, and from my home province of Alberta we have Ms. Jill Clayton.
Ms. Clayton, we are glad that you're up bright and early this morning. You have with you Kim Kreutzer Work and Sharon Ashmore.
You've been briefed on what the topic of our study is. The way we will proceed is I will give each of you an opportunity to provide some information to the committee and then we'll proceed to rounds of questioning.
We'll go for about an hour and a half. If each of our witnesses gives us up to 10 minutes that would give us about an hour or 50 minutes for questions and answers. We'll make sure everyone has an opportunity to ask questions and then we'll have about 20 to 30 minutes at the end of the meeting again to further refine the details of our study.
Without further ado I will start with Ms. Poitras.
You have the floor for 10 minutes.
Thank you kindly, Mr. Chair.
My name is Diane Poitras and I am the vice-president of the Commission d'accès à l'information du Québec. I am stepping in today for our president, Jean Chartier, who is currently out of the country. Joining me is our secretary general and chief of legal services, Jean-Sébastien Desmeules.
I would like to thank you, Mr. Chair, as well as the committee members, for inviting us to appear before you today. We appreciate the opportunity to speak to you briefly about access to information and privacy laws applicable in Quebec and the role of the Commission d'accès à l'information du Québec.
In terms of Quebec's legislation, An Act respecting Access to Documents Held by Public Bodies and the Protection of Personal Information was passed in 1982 and applies to approximately 2,700 public bodies in Quebec. Essentially, that means the government, the National Assembly, government departments and agencies, municipal and school bodies, as well as health services and social services institutions. Under the act, every person has a right of access, on request, to the documents held by these public bodies. Like other access to information laws, Quebec's legislation also sets out situations where a public body can or must deny access to a document.
The act also provides that every person can make a request to examine personal information concerning them or to have it corrected. There again, a public body can, of course, deny the request for specified reasons. A public body must give the reasons for any refusal to disclose an administrative document or personal information. The person may then apply to the commission for review of the decision.
To promote transparency, the access to documents act and accompanying regulations provide for the proactive disclosure of some information and documents by government departments and agencies. For instance, any document made accessible further to an access request must be disclosed on the body's website for the overall public good. The same is true of studies and research reports in the public interest, as well as information relating to a public body's contracting or spending activities.
Finally, the access to documents act requires public bodies to protect the personal information they hold. To that end, they are subject to obligations throughout the lifecycle of the personal information, from the time it is collected or created until it is destroyed.
Next, An Act respecting the Protection of Personal Information in the Private Sector was passed in 1994 and applies to all enterprises doing business in Quebec. In fact, the province was the first government in Canada to pass legislation to protect personal information in the private sector.
The legislation requires private enterprises to protect the personal information they hold and disclose, even outside Quebec. This act also stipulates that a person can request access to, and the correction of, personal information concerning them being held in a file by an enterprise. If the enterprise refuses to grant the request, the person can submit an application to the commission for the examination of a disagreement.
Both of the acts I just described override all other applicable legislation in Quebec, attesting to the desire of lawmakers to underscore the paramount importance of the acts and the rights they give citizens.
I would like to point out one last thing about the legislation. Every five years, the commission must report, to the government, on the application of the acts. The commission makes recommendations designed to improve government transparency and privacy protection in Quebec. The report is submitted to the National Assembly and then studied by a parliamentary committee, so it can give rise to legislative amendments.
Now I'd like to say a few words about the role of the Commission d'accès à l'information du Québec.
The commission was established in 1982 and has approximately 50 employees, with 7 members appointed by the National Assembly. They serve for a renewable term of 5 years. Under the act, the commission's mandates are split between two divisions: an adjudication division and an oversight division.
I'll speak first to the adjudication division.
The adjudication division acts as an administrative tribunal and decides applications for review made by any person who has been denied access to administrative documentation or personal information. The adjudication division receives approximately 2,000 new files annually.
Members appointed to the adjudication division generally hold hearings during which representations are made by the parties concerned. When deemed appropriate by the member reviewing the file, representations may instead be made in writing.
After hearing the parties concerned, the commission can decide on every matter of fact or of law and make every order it considers appropriate to protect the rights of the parties. In particular, it can order the release of a document and fix such conditions as it may deem advisable to facilitate the exercise of a right conferred by the act.
The commission's decision is public. It is executory 30 days after its receipt by the parties, subject to the person's right to appeal the decision before the Court of Québec on a question of law or jurisdiction only. This right of appeal is tantamount to a judicial review.
From the time a decision becomes executory, it may be filed with the Superior Court, granting it the force and effect of a judgment of the Superior Court.
The commission makes a confidential mediation process available to the parties, on a free and voluntary basis, to encourage amicable settlements. Approximately 80% of the applications filed with the adjudication division are settled through mediation, and 30% of those are resolved within 90 days of the file being opened.
Ensuring that files are settled to the satisfaction of the parties in this way allows the commission to reduce hearing wait times for other files. Furthermore, even in cases where the parties are unable to reach an agreement, the information provided by the mediator can help them narrow the focus of the debate and better prepare for the hearing.
I will end with a few words on the commission's oversight division.
In its oversight role, the commission is responsible for promoting the principles of access to documents and the protection of personal information. Clearly, it must also ensure compliance with relevant legislation. To that end, the commission investigates potentially problematic situations brought to its attention, thus ensuring that public bodies and private enterprises adhere to the provisions in the legislation.
The commission can make executory recommendations and orders further to its investigations. If an order is not implemented, the commission can notify the government, describe the situation in its annual report, submit a special report to the National Assembly or, in the case of a private enterprise, release a public notice. Penal proceedings may also be instituted.
The commission recently introduced a preliminary complaint-handling process, which has allowed it to resolve 60% of cases. This is a quick and effective way of changing the practices of public bodies and enterprises.
In conclusion, I would point out that the Government of Quebec announced its intention to modernize its access to documents act, by implementing a number of the commission's recommendations. These were set out in reports produced by the commission every five years. The government and several stakeholders nevertheless believe that one of the current model's strengths lies in the commission's power to make executory orders. The commission agrees, reiterating, as part of its modernization efforts, the importance of providing citizens with an effective remedy that allows for an executory decision at the initial recourse level.
Thank you, Mr. Chair.
I would be pleased to answer any questions you or the committee members have.
Good morning, everybody.
My name is Brian Beamish. I'm the information and privacy commissioner for the Province of Ontario. I appreciate the opportunity to speak to you while you continue to review the federal Access to Information Act.
I'm really pleased to be able to speak to you about Ontario's experience with access to information, or freedom of information, as we call it. In my 10 minutes, I am going to concentrate on the issue of oversight powers and particularly on our experience with having order-making power here in Ontario as compared to the ombudsman-style regime that is set out in the federal act.
Before I do that, let me just give you some context on the work we do here. My office oversees three laws: the provincial Freedom of Information and Protection of Privacy Act, the municipal counterpart to that, and Ontario's health privacy law, the Personal Health Information Protection Act.
In terms of exercising powers under those acts, when it comes to access to information, we have full order-making power, which means that ultimately we resolve issues by making an order that can range from situations where institutions have not made a decision, to fees, to requiring additional searches to be performed for records, or at the end of the day, to the refusal to disclose records. Under the health privacy law, we have, again, full order-making power so that when we conduct an investigation, we can order a health information professional or organization to take particular steps to comply with the law. On the public sector privacy side, we have very limited order-making power. We can only order an institution that is collecting information; otherwise, we have a review and recommendation function.
Again, it's context. I think it's important to understand that, even though on the access to information side we have full order-making power, we only issue orders in a relatively small percentage of cases. In May 2015, provincial and municipal institutions in Ontario received approximately 58,000 access to information requests. Those are the initial requests coming into government bodies. Of those, our office received 1,400 appeals, which represents about 3% of all of those initial access to information requests, and we were able to resolve about 77% of those appeals without issuing an order, which meant that we ultimately issued only 243 orders. So you can see that there's a real winnowing effect from 58,000 requests to 1,400 appeals to 243 orders, and I think a lot of that can be attributed to the fact that we do have order-making power.
Let me turn then to our experience with that power. I can say that it has been overwhelmingly positive. Before becoming commissioner, I was the assistant commissioner with responsibility for our tribunal services, so I did have direct experience with this, and I'm a very strong supporter of the order-making model. I think the bottom line is that it presents a benefit not only to requesters but also to the institutions that are covered by our act, and it promotes an expeditious, cost-effective, efficient access to information regime that has a real element of finality to it.
Let me turn to the specific benefits that we see. The first is that I think the order-making model does help to enforce the right of access in an efficient and effective manner. There is a clear incentive for institutions at the initial request stage to maximize the amount information that they are disclosing and to reduce the administrative burden both on themselves and on the requester.
I think it's important to remember as well that there can be a real power imbalance in the access to information system. The majority of our requesters are individuals who don't necessarily have the resources to engage in a prolonged battle with a government institution that may end up in the courts, and our system is designed to give them greater access to the information system and the review of the initial government decisions.
We are able, because we have order-making powers, to put systems in place to ensure that the review process of an institution's initial decision does not drag on. If it does, we are able to bring it to closure by issuing an order.
I know that one of the criticisms of the ombudsman style, particularly at the federal level, has been a low compliance level. The federal Information Commissioner makes recommendations, but they're not complied with by institutions. Binding orders don't have that difficulty. Our orders are final. They are not appealable to the courts.
Institutions or unsatisfied parties can seek judicial review, but that's a very narrow review process. In fact, last year, of the 243 orders we issued, there were only six cases where they were judicially reviewed. For the most part, our orders are final and binding on the parties and bring finality to the system.
The second benefit we see is that by our ability to issue orders we create a body of jurisprudence that can be relied on by requesters, the public, government institutions, and our staff themselves. Over the years, we have issued thousands of orders that have interpreted the act and how it should be applied. I believe that gives guidance to all the parties, makes for better and full decisions regarding disclosure by institutions, and also provides guidance, should there be an appeal, to the parties on how our organization will resolve those appeals.
The third benefit I see is that order-making power helps to facilitate settlements. Our order-making [Technical difficulty—Editor] not work to the exclusion of mediation. In fact, I believe it helps facilitate the mediation process. Parties, when they come to us on an appeal, have a very strong incentive to mediate and to find common ground, rather than have an issue move on to adjudication and a potential order.
Commissioner Legault noted last week in her comments that one of the benefits of order-making power is that there's a clear distinction between the mediation process and the adjudication process. In our system, if a file does not mediate, it moves on to adjudication, at the end of which an order can be issued. The mediation process is confidential. The parties can engage in mediation in a frank and open discussion, and they don't have the worry that anything they say during mediation might prejudice their case at adjudication. I think that's another way in which mediation is facilitated.
In 2015 we were able to fully mediate 63% of our appeals. I think that demonstrates that order-making power not only can operate in conjunction with a mediation style but in fact enhances it.
The fourth benefit we've experienced is the ability to deal with what we would term “administrative” or “procedural” appeals. Again, I note that Commissioner Legault last week suggested that up to 40% of the caseload she carries are cases that are administrative in nature, preliminary procedural issues that don't get to whether or not an individual has a right to information.
Our stats show that we [Technical difficulty—Editor] less than 10% of our caseload on administrative appeals. Last year it was around 8%. Generally, these are cases where an institution, having a duty to provide a response within 30 days, has not done so, and the requester has come to us to say that they're not getting any action out of the institution. We're able to deal with those directly, because the parties know that we can and will issue an order to require a decision out of an institution. We go to the parties. We go to the institution that hasn't provided a response. We try to renegotiate a deadline for a response. If we don't get that, we will issue an order requiring them to provide a response. We do have cases where months go by and an institution has not complied with their duty to give a response to a requester.
Again, looking at last year's stats, we did not have to issue an order in a deemed refusal situation. We were able to negotiate all of those, and we were able to do that in an average of 40 days. I think it's a very quick and efficient manner of getting responses out of institutions.
Finally, the last benefit I want to point out, and I mentioned this already, is some finality that's brought to the access to information process. There is no right of appeal to the courts. There's only that very rarely exercised ability to seek judicial review. Requesters are not dependent on the courts to exercise their access to information rights. I really believe that making the average requester, the average citizen, go to the courts to exercise their rights is, in many cases, really access denied, and it is not the type of remedy that is suitable for an open and transparent government.
I will wrap up my comments with that. I'm happy to take questions. I note that we understand that having order-making power presents an enormous duty on us to exercise it judiciously—not capriciously and not arbitrarily. We take that duty very seriously. I believe that it really is a fundamental element of a sound access to information regime.
Thank you very much.
Thank you very much, Mr. Chair.
I appreciate the invitation to be here to talk to you a bit about the work of my office. I'm joined by Kim Kreutzer Work, who is the director of knowledge management in my office, and Sharon Ashmore who is general counsel and director of legal services.
As the information and privacy commissioner of Alberta, I am an independent officer of the legislature responsible to provide oversight for free access to information and protection of privacy laws. The first is the Freedom of Information and Protection of Privacy Act, which applies in our public sector, the second is the Health Information Act, which applies in our health sector, and the third is the Personal Information Protection Act, or PIPA, which applies to provincially regulated private sector organizations.
I have broad powers under all three of these statutes, including the power to conduct investigations both in response to complaints and on my own motion, and also to review responses to requests for access to information. I also provide general advice and recommendations, inform the public about the administration of the acts, comment on access and privacy implications of proposed legislative schemes or programs, review privacy impact assessments, and as a quasi-judicial administrative tribunal I have the power to hold inquiries and issue binding orders.
For the most part I will focus my comments today on our public sector legislation, the Freedom of Information and Protection of Privacy Act, otherwise known as the FOIP Act. In Alberta the FOIP Act is both access to information legislation and protection of privacy legislation. It applies to public bodies, which includes provincial government departments, boards and agencies, and schools and chartered schools, as well as local government bodies, municipalities, police services, housing management bodies, universities, and those types of institutions. At its core the FOIP Act provides applicants with a right to access any information in the custody or control of the public body subject only to specific and limited exceptions set out in the legislation.
In the over 20 years since the act came into force the FOIP Act has been reviewed three times by all-party special committees of the legislative assembly. Two of those reviews, the first in 1998-99 and the second in 2001-02, resulted in amendments to the legislation. There was a third review in 2010 that resulted in a number of recommendations to amend the legislation that did not go forward. In 2013 the Government of Alberta announced its own review of the legislation. There was a consultation process, but that has not led to any report or recommendations for amendment.
I made two submissions to the government's 2013 review, both of which are available on my website. One of those submissions was focused primarily on technical amendments to the legislation. The other provided ideas, suggestions, and recommendations for modernizing and strengthening the FOIP Act.
Some of the key recommendations from that second submission included reviewing the scope of the act to ensure that publicly funded entities that should be subject to the legislation are, and confirming the need for existing exclusions. Another recommendation was to review the exceptions to access set out in the FOIP Act to ensure they are appropriate, require public bodies to identify categories of records that should be made publicly available without requiring formal access requests, and ensure there is an appropriate statutory and policy framework in place for records and information management practices that support transparency, accountability, and compliance with the FOIP Act. This includes requiring that public bodies create such records as are reasonably necessary to document decisions, actions, advice, recommendations, and deliberations.
Both of the recommendations I've just referred to are similar to or consistent with those found in the Information Commissioner of Canada's report “Striking the Right Balance for Transparency“, which sets out recommendations for modernizing the federal Access to Information Act.
In addition the Information Commissioner's report also recommends strengthening oversight of the right of access by adopting an order-making model similar to what is already in place in Alberta and in other provincial jurisdictions. I understand our experience in Alberta with order-making powers is of particular interest to this committee, and I will use my remaining time to describe how that works in our office.
Similar to the federal Access to Information Act, our FOIP Act provides a right of access to records in the custody or control of a public body subject to limited and specific exceptions. If an applicant is not satisfied with the response that he or she receives from a public body, the applicant may ask me to review any decision after a failure to act by the public body. For example, a government department may disclose some records to an applicant but withhold others, citing an exception to access. Perhaps the disclosure would be an unreasonable invasion of a third party's personal privacy or could reasonably be expected to harm a law enforcement matter or the economic interests of a public body.
If the applicant asks, I can review the public body's claim that these exceptions to access apply. We call this a request for review in my office. When an applicant requests a review of a public body's decision to deny access, typically I authorize someone on my staff to investigate and attempt to mediate or settle the matter. This is our informal process, which results in non-binding recommendations and resolves approximately 80 to 85% of cases in our office.
If the matter is not resolved through this informal process, I can authorize an inquiry process, which decides all matters of fact and law. Inquiries are a quasi-judicial administrative tribunal process where the burden of proof generally lies with the public body to prove that the applicant has no right of access to the record or part of the record.
On completing an inquiry I, or the adjudicator I have delegated to hear the inquiry, will issue an order. Examples of orders include requiring a public body to give an applicant access to all or part of the record, confirming a public body's decision to deny access, confirming or reducing a fee for access, or requiring that a duty imposed by the legislation be performed.
A commissioner's order made under the FOIP Act is final and may be filed with the clerk of the Court of Queen's Bench. After filing, the order is enforceable as a judgment or order of that court. Since the FOIP Act came into force in 1995, we have issued more than 675 orders under that legislation and we have had 100% compliance with those orders. All orders are made public on my office's website and through publicly available legal databases. They not only provide finality in resolving a particular matter but also set precedents that can be helpful to other public bodies and lead to improved information management practices.
Orders issued by my office and other jurisdictions as well constitute a body of jurisprudence that educates and guides public bodies on interpreting and applying the law. Publicly issued orders may also help to reduce duplication of effort in mediating, investigating, or adjudicating similar matters over and over again.
There are also significant benefits to individuals in the finality that goes along with a binding order that resolves a matter. My office's processes do not require that the parties have legal presentation, for example, and there is no cost. This is not to say that matters heard in an inquiry never make their way to court. Although orders are final, they are subject to judicial review, and since the FOIP Act came into force we've seen approximately 30 judicial review applications. In about half of those cases, the order was upheld as issued.
As I've just outlined, it is my view there are significant benefits to the order-making model in Alberta and our experience is that it provides clarity, enhances consistency of decision-making, and can be more timely, less expensive, and less adversarial than the courts while still providing finality for the parties involved.
Overall, in my view I think order-making power has been to the benefit of access rights in Alberta. I would be pleased to answer any questions that you may have.
A number of considerations come into play.
The commission would like more organizations brought under the access to documents act. Currently, certain organizations that are entirely, or mostly, publicly funded, as well as those carrying out functions comparable to public functions, are not subject to the act.
The biggest challenge when it comes to modernizing the act has to do with the wording of the restrictions around access to documents. The act is more than 30 years old, and the restrictions are worded in very general terms that are quite open to interpretation. That can result in more remedies and more refusals by institutions, who have more discretion in denying access to information. I'll give you a specific example.
Under Quebec's legislation, a public body can refuse to disclose an opinion or recommendation that is less than 10 years old. The public body not wanting to disclose the opinion or recommendation is not under any obligation to show that the disclosure could have a negative impact. “Opinion” and “recommendation” are very broad concepts, and it was necessary for the commission to define how they should be interpreted.
There is something else I can tell you about that. In the provinces of my two counterparts who are joining us by videoconference, the acts contain a provision authorizing the refusal to disclose opinions and recommendations. But they also stipulate that the restriction cannot be applied to certain types of documents in specific situations. We don't have that in Quebec. As I see it, that's one of our biggest issues when it comes to access to information.
As far as the privacy component is concerned, without going into too much detail, I will tell you that the legislation was drafted at a time when most documents and records were on paper. There isn't enough flexibility in the act to adequately address issues arising from the use of new technologies, in terms of safeguarding privacy and protecting personal information.
Another principle that didn't exist in 1982 but is becoming more common nowadays is proactive disclosure, versus disclosure in response to an access request.
In Alberta, under all three of the statutes that I have oversight for, there are offences and penalties.
Under the FOIP Act the offences tend to be wilful contraventions of the legislation and not just a negligent human error type of incident—which is the sort of thing we mediate and make recommendations around—but wilfully not complying with the legislation, or for example destroying records that are subject to the act, or directing someone else to do that with the intent of evading an access request.
The penalties under the legislation include for individuals a fine of not less than $2,000 and not more than $10,000, and in the case of other persons a fine of not less than $200,000 and not more than $500,000.
I should note we have not had any successful prosecutions under the FOIP Act. On the other hand under our health legislation, which has similar offences and slightly different penalties, we have conducted a number of offence investigations that have resulted in successful prosecutions in court. We do the investigation, we turn our evidence over to the crown, and the crown conducts the prosecution. I believe we've had four successful prosecutions in Alberta, and this year under the Health Information Act we've had charges laid in four other offences.
Under the Health Information Act these tend to be wilfully snooping in other people's health information. I think one of the reasons we see more of that in the health sector than we do in the public sector has to do with the fact that in the public sector most of the cases in front of our office have to do with access to information. Complaints around snooping don't make up the majority of the cases in front of the office. We're far more likely to be looking at a response to a request for access and whether the information was improperly withheld. It's not always an easy thing to find evidence that somebody has wilfully destroyed records to evade a request.
I think it's the nature of the types of files that have led to prosecutions under the Health Information Act and not so much under the access to information act.
Commissioners, we thank you very much. We certainly appreciate your taking the time this morning.
A shout-out to our friends in Alberta; even though this meeting is over, you're still early for work. At least you got to miss the rush hour on your way into the office this morning. As an Albertan, I know well the differences in time zones. I know how early you have to get up in the morning to be here.
I would also remind both of you, and Mr. Beamish, who had to leave, that this committee will also be studying the privacy legislation. We'll start with our Privacy Commissioner this Thursday, and then outline the scope of study, so we may very well be inviting you back to discuss the other side of your jurisdiction and responsibility, which is the privacy legislation that you administer on behalf of your respective provinces. If we should happen to make that request, we hope you will make yourselves available.
On behalf of the committee, I want to thank you very much for your considerations in our deliberations. I think it will be most helpful as we move forward in hopefully modernizing the access to information legislation that we have at the federal level. I want to thank you kindly for your time.
We will now move in camera to discuss future committee business.
[Proceedings continue in camera]