Good morning, everyone.
Welcome back from a fairly lengthy constituency break. I hope my colleagues at the table all found some time to connect with their constituents, and maybe even found some time to relax. We're in for the long haul now until the end of June. We have nine weeks of Parliament, with only a couple of weeks' break in-between. We have a lot of work ahead of us.
I want to thank Mr. Lightbound, who I think was the chair in my absence, when I was gone the week before.
We have with us Mr. Drapeau, who is no stranger to coming before Parliament. We welcome you this morning, sir, from the University of Ottawa. We also have the ambassador from Sweden, Mr. Per Ola Sjogren. We welcome you, sir. And we have Toby Mendel by video conference from the Centre for Law and Democracy.
Gentlemen, we appreciate your being here with us this morning. We are going to start with your opening remarks.
We are studying the access to information legislation. We'll hear you for up to 10 minutes each, with your opening remarks, and then we'll proceed to our questions. I'll go in the order you appear on the list.
We'll start with Mr. Drapeau, please.
Mr. Chair, thank you for this introduction. Thank you also, members of this committee, for giving me the honour to appear before you this morning.
Let me begin by saying that I have been interested in the administration of the Access to Information Act since 1992, as a requester for my clients, as someone who has written about the act, and as a professor who teaches access to information law.
Over the past two decades I have watched the access to information regime slip more and more into irrelevance. I hold the strong belief that this state of affairs is not because the access law is so much defective or outdated in recording radical changes. In my opinion, the slip into irrelevance is due instead to two interconnecting factors.
First is the interplay between a systemic lack of motivation on the part of federal institutions to observe both the spirit and the letter of the access law, and the absence of oversight on the part of anyone holding to account a recalcitrant or delinquent department. Consequently, there is no penalty or reprimand for inuring Canadians from having their quasi-constitutional right of access violated, with the result that flaunting the access law is now an accepted practice in many parts of the federal bureaucracy. Year in, year out, thousands of users of the access system see their requests for information treated with more or less total disregard for the rights to have their access requests responded to fully and within the statutory delays.
Second, only a small number of disenfranchised users of the access system actually file a complaint, as they are entitled to do under the access law. However, more often than not, those who do file a complaint must wait, if not a year then two or more, for obtaining any results. Obviously, they soon learn that the longer they wait, the more pointless their complaints become. Also, they will likely be less inclined in the future to rely on the right to complain to obtain disclosure, and it becomes a process of a vicious circle, disempowering the access requesters.
As an aside, during the last fiscal year there were 78,000 access requests submitted to various federal institutions. Of those, 1,600 complaints were made to the Information Commissioner. This means that a meagre 2% of the original requests gave rise to a complaint to the Information Commissioner.
As noted in my brief, I have concerns with the ongoing debate about reforming the access legislation. First, I disagree with giving the commissioner order power to deal with some of the complaints. Second, I take issue with the unproven assumption that giving order power to the commissioner might ameliorate the access regime.
Let me elaborate.
First of all, I truly believe that giving the commissioner order-making powers would repudiate the doctrine and fundamental principles of the access regime. This would dramatically alter the role of the commissioner, making her a judicial officer who would not have the slightest influence on the outcome for the vast majority of access requesters.
Secondly, I hold the strong belief that the fathers of the access regime got it right in the 1977 white paper by adopting the parliamentary option. Under this option, the commissioner has a right of access to Parliament and he's held directly accountable to this committee for its performance.
Under such a scenario, Parliament remains a dominant player in the management and control of the access regime. However, as stated earlier, giving the commissioner order power will necessarily change that relationship. The commissioner will then become a judicial officer, and as such will be required to act judicially towards Parliament, federal institutions, and the access users. This will also require the commissioner to further augment their already large staff complement.
Hence, I am anything but certain that the grant of order power to the commissioner will impact positively on the current malaise affecting the access regime. I'm suggesting instead that the basic function of the commissioner not be substantially changed. What I am considering and recommending is the conduct of a wall-to-wall, systematic review of the construction, the configuration, and the staffing at that office by the Auditor General to ensure the existence of the most economical and effective organizational structure possible. In my opinion, that is not presently the case.
In the same vein, I am also recommending a common administrative service, something similar to that we now have in the courts administration service, to be re-established between the Office of the Information Commissioner and the Office of the Privacy Commissioner. I also recommend that the management, administration, and legal positions found to be redundant by the Auditor General be reassigned to augment the current complement of investigators, if for no other reason than to reduce the very large backlog of complaints. At the moment, it's two years.
In my brief, I set out 12 reform proposals. For instance, I proposed that the access to information coordinators, who are spread out in some 200 federal institutions, now be appointed by Governor in Council. These coordinators are, after all, on the front lines, as they are the first, and often only, actors within the access regime. They also have the heavy burden of responding to access requesters, while bearing in mind the access directives and decisions made by officials higher up the chain in each department.
If they were appointed by Governor in Council, these coordinators in the various departments would also have the requisite authority and independence to uphold requesters' access rights.
Before closing, one of the recommendations contained in my brief is that the House of Commons and the Senate should also be brought under the ambit of the access legislation. As you probably know, this is currently the case in the U.K., which provides the residents of the British Isles with a meaningful and welcome right of access to some of the records under the control of parliamentarians. Canadians should expect no less.
In conclusion, Canada deserves an open, honest, and accountable government. This can be achieved at least in part by having a working access to information regime. Yet at present, the access to information system is in a state of crisis. The current focus of giving the commissioner the power to order the release of records should not be seen as a panacea capable of redressing the access law, which has been rendered more or less nugatory. The Province of Quebec has learned that particular lesson. Quebec appears to be balking at continuing with this use of order power mechanism as the modus operandi for their information commissioner.
However, even if such order power were to be granted, one should keep in mind that this would only address a very small proportion of the tip of the iceberg. Respectfully, therefore, I urge this committee to focus instead on the 90% of the other requesters, or the rest of the iceberg, which is currently being managed exclusively by the ATIP coordinator within each one of the institutions. I am of the view that the commissioner plays an important role in the access to information regime by receiving, investigating, and reporting a complaint by users of access and keeping Parliament abreast. The Access to Information Act provides the commissioner with quite an arsenal of extraordinary powers to investigate complaints, and these need to be used to the fullest. They are currently not. The commissioner also enjoys a potent right of access to Parliament to alert the Canadian democracy when government and the civil institutions fail to live up to their obligations. This, gentlemen, should continue.
That concludes my presentation.
Thank you, Mr. Chairman.
Thank you to the committee members for inviting me to give an overview of the Swedish legislation when it comes to freedom of expression and access to information.
Allow me first to say that one of the core values in Sweden is openness. One of the cornerstones in an open society is freedom of opinion, speech, and also respect for the principles of free access to public documents, so the issue that is before the committee is one of concern to us.
Allow me to say a few introductory words about the Swedish constitution. The constitution regulates the manner in which parliament and the government are appointed and the way in which these organs of the state shall work. Freedom of opinion and expression, as well as other rights and freedoms, enjoy special protection under the constitution. Out of the four basic laws which form the Swedish constitution, three of those laws regulates the rights and freedom of opinion and expression, so it has a firm basis in our constitution.
If I may refer to the documents that I have forwarded to committee members, the first document is a brief overview of the three basic laws that refer to the freedom of speech and expression and opinion. The first is the instruments of government and in chapter two it refers to the protection of personal freedom of expression "whether orally, pictorially, in writing, or in any other way".
The second basic law is the Freedom of the Press Act, which protects the freedom of printed press as well as the principle of free access to public records, the case before the committee today, and the right to communicate information to the press anonymously.
The third basic law is the Fundamental Law on Freedom of Expression, which extends the protection which is an extension for the Freedom of the Press Act for printed media, also to other media, including television, radio, and websites on the internet. It's the most recent Swedish basic law.
The fourth law, which is not a basic law but it is of relevance to this issue, is the Public Access to Information and Secrecy Act, which was adopted by the parliament in 2009. It contains provisions that supplement the constitution, especially the Freedom of the Press Act, on the right to obtain official documents. Openness is the basic rule and secrecy has to be clearly defined, which is laid out in that act.
The Freedom of the Press Act was introduced in Sweden in 1776 and became the fundamental law in its entirety already then 250 years ago. Sweden then became the first country in the world to permit freedom of the press.
Under both the Freedom of the Press Act and the Fundamental Law and Freedom of Expression, constitution protection implies that the public administration is prohibited from intervening against any breaches of the freedom of expression other than in the cases and in the manner prescribed under these two fundamental laws. A ban on censorship is also a central feature of the Law of Freedom of Expression and was already laid down in the 1766 version.
It's also important to recognize that the Freedom of the Press Act is directed against administrative and other public bodies.
The Freedom of the Press Act and fundamental law of freedom of expression provide protection for providers of news and information in two different rulings dealing with the public nature of official documents and the protection of sources respectively.
The constitution rules on the public nature of official documents are contained in chapter 2, article 1, and it's the third paper that I distributed today. The wording is the following:
||Every Swedish citizen shall be entitled to have free access to official documents, in order to encourage the free exchange of opinion and the availability of comprehensive information.
The documents kept by public authorities are official documents per se, regardless of whether they were received or drawn up by the authority and regardless of their content.
An official document may thus be public or confidential. Chapter 3 in the Freedom of the Press Act also contains other definitions and eliminations. For example, electronic data registers and other mechanical and electronic records are treated as documents.
In the case of documents drawn up by a public authority, the general rule is that they become public when they receive a final form. Drafts and proposals also become public documents if they are filed and registered after a matter has been settled.
An official document is public in principle. It must be kept available, normally in the original, to anyone who wishes to pursue it, and the private subject is entitled to receive a transcript or a copy of the document, and may also reproduce or copy it using equipment of his or her own.
Exceptions from the principle of the public nature of official documents, that is, cases in which an official document must remain secret, need to be provided for in a special law, by which is meant the Public Access to Information and Secrecy Act, which I just referred to, and in exceptional cases, other laws making reference to this law.
In the next paper distributed, I refer to the Freedom of the Press Act, chapter 2(2), which lists the interests governing secrecy. There may be no secrecy other than in accordance with this principle and in subsequent and subordinate laws.
I will not read out these seven principles, but, for example, for my ministry, the first principle, the relation with another state or international organization, is naturally the most frequently referred ground to consider a document to be secret.
If a public authority other than the Parliament in Sweden or the government refuse an application to see a public document, an appeal may be lodged with the administrative court in the first instance. If the appeal is rejected by the appellate court, the appellant can be pursue the matter further to the Supreme Administrative Court. The appeal is regulated in chapter 2(15). An appeal against the minister is lodged with the government.
All questions concerning access to official documents must be dealt with expeditiously. The more exact wording in the Freedom of the Press Act, 2(13), the last paragraph, is that application for transcripts or copies of official documents shall be dealt with promptly. In practice, that means immediately. When we receive a request for handing out the document, we have to act immediately on that request.
I will briefly mention two other principles that are relevant to the principle of free access to public documents.
It's the freedom of sources from legal responsibility, which is laid down in opening provisions of both the Freedom of the Press Act and the Fundamental Law of Freedom of Expression. Protection from legal responsibility applies not only in relation to legal proceedings. On account of an item alleged to be in breach of the law, a source cannot be held legally responsible under special procedures in the event his or her communication of information constitutes an offence per se. In practical terms, the most important case is one in which a civil servant or local government official passes on to a competent recipient, for the purpose of publication, information that is covered by the Official Secrets Act. The main rule is that he or she cannot be convicted for being in breach of this obligation to maintain secrecy.
The second principle, which is also relevant to the issue before the committee, is the right to remain anonymous, which is covered in chapter 3 of the Freedom of the Press Act. It is a punishable offence for anyone engaged in the production of printed matter, or an item protected under the constitution, to disclose the names of sources or authors who wish to be anonymous. The obligation to maintain secrecy is waived only in very special cases, which is mentioned in the Freedom of the Press Act, 3(3).
This is what I wanted to say as an introduction when it comes to the general legislation and how the freedom of access to information of public documents is regulated in the constitution and its subsequent laws. I will be happy to participate in the panel and to do my best to answer questions. I would also say that if the committee wants to bring a constitutional expert from Sweden before the committee, we are very positive to work toward that end. If the committee would also like to visit Stockholm to take a further step in an in-depth study of Swedish rules on these issues, you are most welcome.
It's a pleasure to be with you at a distance. I hope Ottawa has recovered from its recent snowfall. In Halifax we're used to snowfalls and slush like that, so we have some sympathy for you.
I'll give you a couple of introductory comments about my organization, the Centre for Law and Democracy, or CLD. We are based in Halifax. We are an international human rights organization. We promote foundational rights for democracy, including what we call the right to information, or access to information in Canadian parlance, because it has been recognized internationally as a human right under international law.
We work globally on this issue. I think it's fair to say that we work with all of the leading intergovernmental organizations that focus on this right—the UN special rapporteur on freedom of expression, other UN bodies, the Council of Europe, the Organization for Security and Co-operation in Europe, and so on and so forth.
The position of CLD, which I don't think differs from the broad position of civil society in Canada, is that the federal access to information system is broken. Although we're a civil society organization, we measure our words fairly carefully. We don't throw around terms like “broken” very easily, but I think at this point that is a well-charted position on the act, supported by numerous studies over a very long period of time. We feel it's an appropriate term to use.
I agree with most of the criticisms that Mr. Drapeau put forward, but I have to differ from his position specifically in respect of the act. My organization has worked with another organization, Access Info Europe, to develop the right to information, or RTI, rating. It is an internationally recognized methodology for assessing the strengths or weaknesses of legal frameworks for the right to information. I would say that this methodology is globally recognized. It is, for example, frequently relied upon by such actors as the World Bank and UNESCO in their work in different countries on access to information frameworks. I was contacted just yesterday, for example, by UNESCO. They are looking into the possibility of applying the RTI rating to a draft access to information law that's being prepared in Palestine. We have frequently worked with the both the World Bank and UNESCO on using the rating for that kind of purpose.
On the rating, Canada, the Canadian federal framework, scores 79 points out of a possible total of 150 points. I think that's quite a dramatic score. The top-scoring country, surprisingly Serbia, scores 135 points, showing that the rating is not an unrealistically stringent set of measurements. It's a set of measurements that many countries go over 100 on.
Perhaps even more significant is that Canada is now in 59th place out of 102 countries whose laws we have rated, and each year Canada falls further and further down the rating as other countries reform their legislation to improve it or as new countries adopt legislation that is stronger than the Canadian legislation. I think the RTI ratings show pretty clearly that there are very serious problems with the Canadian legal framework.
The first point we would like to make is that we very much welcome the quick gains that the announced on March 31. We had called for all of those changes to the legislation. We feel that all of them are crucially important. At the same time, and I think as the RTI rating clearly demonstrates, that is not nearly enough. We feel that a much more profound reform of the act is absolutely necessary to bring it into line with anywhere near what most Canadians would consider a respectable position for Canada in respect of an international human right like the right to information.
We do not support the idea that a full review of the act should be put off until 2018. We feel that Canadians, across all political stripes and from all different sectors, have been calling for reform of this act for many, many years now. We feel that putting it off for another two years would be an unnecessary and essentially unacceptable delay.
We also note with concern that the quick-gain reforms that the Honourable Scott Brison announced are identical to the commitments in his mandate letter.
We would be concerned that putting the reform off until 2018 would perhaps lead to further delays and further extensions of that, so we would not see this reform happen within the life of this Parliament. We feel that would be very unfortunate.
In January 2013 we prepared a submission as part of the Office of the Information Commissioner's review of the act, and we have four main areas where we have proposed reforms.
The first is the scope or coverage of the act. This is where the proposed quick gains have the greatest impact and therefore the greatest amount of improvement. At the same time we notice that there are several areas where the scope would remain too narrow even after those quick gains. We note the blanket exclusion of the cabinet in the scope of the act; the limited nature of the schedule 1 list of public bodies that is not regularly updated as the nature of those public bodies change; and we also note that the act is restricted to citizens and residents rather than individuals, unlike the Swedish act that we heard about, and many other acts.
The second area where we identified a need for change is in respect of the exceptions in the act. The quick gains do not make any proposals for change there. We note that schedule 2 includes nearly 60 secrecy [Technical difficulty—Editor] for secrecy. We just heard from the Swedish ambassador that in that country they have one law that sets out the principles for exceptions, and that other laws are not allowed to go beyond that. We strongly support that approach. Unfortunately the schedule 2 exceptions go way beyond the principles that are established in the access to information law or are better recognized under international law.
We note as well that several exceptions are overbroad or by nature are illegitimate. Many exceptions do not include a harm test. The disclosure would be expected to be injurious to a specific interest—that kind of language. Under international law the principle is that all exceptions should be conditioned by harm. Only where release of the information would harm a protected interest should the information be withheld.
Finally, we note in terms of exceptions again that the law includes only a very limited public interest override. In 2010 the Supreme Court of Canada substantially extended that public interest test to all non-mandatory exceptions, so that public bodies are now required to consider the public interest for any non-mandatory exception, but all of the mandatory exceptions still fall outside of that and don't have a public interest test.
In terms of procedures, I'm sure that other people who have appeared before you have mentioned these. There are two key problems with the act as it presently stands, and one is the time limits. Mr. Drapeau also referred to those, whereby public bodies are given very broad discretion to extend the time limit in which they respond to access to information requests. The result is that requests are often only processed after very long delays, unlike in any other countries where there are strict and fixed timelines. We have very concrete proposals for improving that system. We feel that's one of the most important things that need to be addressed.
The other issue with respect to procedures that needs to be addressed is the issue of fees. Under the law, fees can be charged. A schedule of fees has been prepared. It is not in line with realistic cost estimates. Even the charge for photocopying is far in excess of what any Canadian would expect to pay for fees at any commercial enterprise.
Those are two areas in respect of procedures.
Finally, coming to the issue of appeals, again I would have to differ with Mr. Drapeau on the question of order-making powers for the Information Commissioner. This is an issue that my organization has studied very carefully. In many other countries and in different Canadian jurisdictions there is, as you know, a mix of practices across jurisdictions. We feel that the overwhelming evidence, from both international jurisdictions and from within Canada, is that an order-making power is a far more important and a far more effective power. We note that order-making powers would be likely to have a strong positive impact not only on the decision-making processes undertaken by the commissioner, but also on the mediation processes.
There is good evidence showing that having the order-making stick, if I can put it that way, in the background when there are mediation procedures, which are the lifeblood of dispute resolution under access to information laws, renders them much more effective. So we strongly support order-making powers for the commissioner. We agree that it's not a panacea under the act. There need to be a lot of changes, and we also agree that there needs to be a groundswell of cultural change with respect to the way the act is applied. But we feel that these important changes need to be made to the act.
I will end by saying that across Canada there has been a bit of paralysis in reform of access to information laws, often with different Canadian jurisdictions looking at other Canadian jurisdictions and saying that their own law is not much different from the other Canadian jurisdictions' and that it's working well enough. We note that Newfoundland has broken the mould in that respect. It has engaged in bold reforms of its law, fundamentally changed its law, shot far ahead of any other Canadian jurisdiction on the RTI rating. We would strongly encourage the federal government to engage in a similar process of reform with respect to the Access to Information Act.
If I can be blunt for a moment, and I think it's my task to be so, your predecessors in office, going back a long time, under the government in 1979, listened and had a green paper on access, and they looked at various options including order-giving. On the other end of the scale, they looked at the ombudsman version, which they called the parliamentary option. Why? They wanted to hold a minister responsible to the House, to the public, and to the taxpayer for the effective use of access, and to be accountable before this committee. Under the act, the commissioner is in fact a commissioner, a mediator, an ombudsman.
We use the Swedish model and it has served us well. I have spoken with Mr. Clark and , the then minister of communications in 1980, responsible for the introduction of the original act, for bringing it through the House, and for eventually having it enacted into law in 1983. That's the way our system has been. It's kind of mediation, and the Information Commissioner only investigates complaints reported to this department annually and to this committee as often as is required in order to keep public pressure upon the decision-makers, the decision-makers being the ministers.
This committee has played a huge role throughout the years, a huge role in the creation of access to information back in 1983. I've spoken to each one of the commissioners from the past to the present. To change that would change the mechanism, would change the relationship. The commissioner would no longer come here and report to you. You would no longer play the role that you are, by definition in the act, supposed to play. When she becomes a judicial officer, as is the case in Quebec, she will no longer conduct the investigations that are being done now. It will be a judicial process with each party submitting in writing or verbally. In Quebec you come before the committee after you submit your complaint. You travel to Montreal, you go before the committee, you hire yourself a lawyer, and you make representation; then the commission issues a statement and issues a decision on it. If you're not happy, you go to court. Few people do, because the process is so long. I've represented corporations in the Quebec regime, and they decided to abandon their complaint halfway. Why? Because a year and a half afterward, they still hadn't been called before the committee. Is that what we want?
Have a look at the size of the Office of the Information Commissioner at the moment, the staff and the 14 lawyers they have and everything else. It's going to balloon even more. You will lose control, and you are going to read in The Globe and Mail about the decision being made, but you will have no sense and no control over which way the access to information ought to go.
I have one last comment. The comments being made by your leaders and in the budget are not the creation or the intellectual exercise of this committee, because you were not formed, or of the committee before. This is what many well-interested parties in the civilian society suggest, and the Information Commissioner suggests. I object to that. The Information Commissioner is there, as designed, to apply the act and apply the law as written, not to change it, not even to reform it.
I'm begging you, as elected representatives, on something as fundamental as a quasi-constitutional right. That's what the Supreme Court, the Federal Court of Appeal, and the Federal Court said. It's up to you to decide and to structure the law. You may want to restructure it. I encourage you to do that, but it should come from this committee. It should not come from people outside, let alone bureaucrats whose purpose it is to apply the law.
Under international standards, exceptions should conform to a three-part test. The first part of the test is that they should protect legitimate interests. We heard from the Swedish ambassador that they have a list of seven principles in their law that responds to seven categories of interests. We have a lot more exceptions in the Canadian law. A better practice around the world is to have a relatively limited number of types of interests that can be protected. Of course, the specific modalities of that protection might be elaborated in another law. For example, the access to information law recognizes privacy as an interest. Then you have the Privacy Act, which protects that in more detail.
The second metric under international law is that it should apply only where disclosure of the information will cause harm to the interest.
I see you nodding here because it's just so logical and obvious.
It's only where harm would be caused by the disclosure of the information that it could be withheld or its disclosure refused. Many of the exceptions in the Canadian act do not correspond to that value. There's no harm required. Cabinet documents are covered, period—no harm, no interest even. If a third party deems information confidential, it is confidential, even though no harm to any legitimate interest would be caused by disclosure of that information. It's kind of a third-party veto. There's a whole list of exceptions in the Canadian act.
Finally, under international standards and better practice, there is a public interest override. Where the overall public interest would be served by disclosure—keeping in mind that the right of access is in most case recognized in Canada as a human right, as part of the right to freedom of expression—the public interest should override the secrecy interest. I may have a minor privacy interest, but information discloses evidence of corruption. The information should still be disclosed.
In many other pieces of legislation—the Swedish act, the Indian Act, the South African act, the Mexican act—their exceptions correspond to those three tests. Ours do not. I think that if were to apply those three principles, we would come up with a very different set of exceptions under our law. I think this would be more logical and easier for civil servants to apply, and less abusive grounds to refuse to provide information for no good reason. I think there's a lot to be done in the area of exceptions.
When it comes to the government, which then would be a decision by a minister or ministers, the issue is referred to a government decision on appeal on that. That would be the procedure.
When it comes to the constitutional committee in our Parliament that scrutinizes and reviews on a regular basis all the different ministers that work in relation to openness when it comes to public documents, they have an annual administrative scrutiny of each minister. Within that review, they can also report on delays and malpractices in relation to the release of documents.
It can also be done on demand from a parliamentarian. A parliamentarian can ask the constitutional committee to look into a ministry's habit or practice when it comes to release of documents. For example, in my ministry, the Ministry of Foreign Affairs, there are, on an annual basis, a number of issues for which the minister has to report to the constitutional committee on these matters. It can concern both secrecy and the time delay, the timing.
Then we have our ombudsman, who follows the whole public administration. The ombudsman works on a complaint basis and makes recommendations to the administration on how it should relate to a request for the release of a document or documents. In a number of cases, the ombudsman has said that a release should be done “immediately”—that's the word I referred to—which means the same day. If an official, a public servant in the Swedish ministry, gets a request, it's mainly for that person to act immediately. If it's a more complicated matter, it can be referred to the head of the department and finally to the minister, but it is for each public servant to act immediately when they get a request for the release of a public document.
I would say that we have a culture of openness, which leads to relatively few formal complaints to courts and government, but I will come back with the exact numbers.
My main point about Newfoundland and Labrador was that they undertook a comprehensive process of reform, where they really looked root and branch at the legislation, at what to change and so on, and ended up with legislation that is very substantially stronger than their legislation had been. In other words, they really went through a process of reform that was genuine and very substantially improved the legislation.
For example, on our RTI rating it jumped by 20 points, and we are now, I think, 15th in the world. Only countries are rated, so we're not really 15th, but if we were a country we would be 15th.
I was encouraging the federal government to do the same thing, rather than engage in some piecemeal reforms at this point and put off real reform until later.
The Newfoundland and Labrador model is kind of a hybrid model. We are still to see how well it works. It's very unique. They have given a lot of powers to the commissioner in terms of, for example, approving further delays in responding to requests and in extending the overall period for the presumption of secrecy of 20 years. I can't remember exactly what it is under the law. They have very significantly tightened up their regime of exceptions, so it looks very different from the Canadian federal or many of the other Canadian jurisdictions. They have improved the procedures so that the way and manner of making requests, fees, online extensions, as mentioned, have to be approved by the commission.
Many of the issues that I raised in my presentation have been addressed in the Newfoundland model. Of course, it's not perfect. It's really being tested, so it's a bit difficult to say whether this hybrid model is going to turn out to be the success they hope it will, but my main point really was that they did not engage in a smaller or piecemeal reform. They really engaged in a proper process of reform.
Wonderful, and thank you first to both you two gentlemen for coming here today. It helps us immensely to have you here, and Mr. Mendel, thank you for calling in today and coordinating with us.
If you don't mind, Mr. Chair, before I begin my questioning I want to express some of the disappointment in seeing this in the budget. It was something that we had undertaken and was something as a committee we were prepared to put a lot of time into. We had a lot of witnesses lined up, and unfortunately it appears that the government is moving ahead with making a model, without hearing the fulsome discussion of the committee.
That being said, I'd like to hear your thoughts, hopefully from all three of you depending on time, but maybe we'll start with you, Ambassador.
One of the Information Commissioner's recommendations is to open this up to people who aren't citizens, people who aren't Canadians but make requests here. I am hoping to get the thoughts of all three of you on what you think that means for the volume of requests, and Ambassador Sjogren, in your country's example of how much resource and financial commitment that may potentially bog down the office.
If you don't mind, all three of you, could you elaborate a bit more on that.
I would like to return to Mr. Drapeau.
It seems that you may not be fundamentally opposed to the order-making model. Perhaps your primary concern is, rather, that other things should be addressed before such a model is adopted. As Mr. Erskine-Smith noted, this model would reverse the burden of proof, placing it instead on the government. If these quasi-judicial powers were granted to the commissioner, they would enable her to order the publication of certain documents. It would then be up to the government to appeal the decision and to defend confidentiality in the case of exceptions and exclusions.
Reversing the burden of proof in this way might be a good way to reduce turnaround times. Although it would take time to evaluate all the facts on both sides before releasing documents, the fact that the commissioner could order their publication could improve matters. If the committee or the government were to recommend this course of action, additional resources should, in my opinion, also be provided.
If the order-making model were adopted, would you agree that additional resources should be provided to support it, along with a clear mandate, instead of requiring the affected institutions to cover the costs themselves, for instance, by making changes to their expenses or internal operations?
As a former public servant and former secretary to the Armed Forces Council, I can tell you that we had problems in two areas. As I recall, the first problems date back to 1986-87, when there were drastic cuts to the administration. We simply lost all the administrative staff that archived documents.
For files prior to 1990, the National Archives' records are usually very complete and well indexed, which facilitates research. Things have changed since then because the centralized document control services in the large departments have disappeared, roughly at the same time as email came along. I would say it has become a free-for-all. The measure of control and the ability to access certain information on request depends on the file, the department, and the branch.
I think that the government as a whole and the various departments are trying to put some order back into things, but it is time-consuming and difficult. It also requires financial resources and significant information technology. The documents we receive under access requests vary accordingly. In some cases, we receive what we expected. In others, it takes a long time, and in others still, there are gaping holes because the files have not been retained.
I think this is a 21st-century problem. It derives from the great volume of communication by email and similar tools. Sometimes unexpected finds turn up in an email exchange, which surprises everyone, and the departments probably as much as us.
There is no obvious solution. I keep current on the various procedures the government uses to try to keep things under control, something that it has an interest in doing. Its attempts are full of pitfalls, however, and it is very painstaking work.
The issue of culture is very important, and I believe we have a strong culture when it comes to openness and disclosure of public documents. There are several reasons for that. First, we have a long tradition of access to public documents dating from 1766, and the law has not been changed.
The way it works in practice is that we are trained on this issue in our education in schools, and when we enter into a public function we are trained in it—it's one of the key issues. The responsibility is not, in the first instance, with the head of a department or management; it's with the public official himself or herself. If I, as a public official at any level in our administration, receive a request, the general direction is to leave everything else aside and deal with that request and hand out the document the same day. The recommendation from our ombudsman, which sets the general practice rules for this, says a maximum of two or three days; it's not a complicated matter.
It could be a document of several hundred pages, etc. What we do then, sometimes, is hand out documents consecutively. If there is a document of 500 pages, we can deliver 100 pages one day and another 100 the next day, in order for them to read it to see whether there are any secrets in it. There is also prestige for the ministers in not being criticized for having a ministry that has long delays in handing out documents.
We don't have a fixed time, but we have these very strict rules, which are followed internally both individually and by the government, and eventually by courts and the ombudsman.
I understand the questions about our appeal system, but there are relatively few appeals on this issue. There are appeals, and they are complicated, but it's more a question of how we manage it on a daily basis.
And thank you to all the presenters today. It was very informative.
I was going to ask this question of Mr. Drapeau, but I think I'll direct it to Mr. Mendel. I'm from Atlantic Canada too, so I'll throw some questions to Atlantic Canada.
Again, the presentations today were very good, but the more I hear.... I'm new to politics, and certainly new as an MP here, and I've become concerned and unsettled. You hear quotes like “slip into irrelevance”, “state of paralysis”, “two-year backlog”, “the act is applied to deny disclosure”, and “interests of government trump the interests of the public”. And then, Mr. Mendel, you talk about the RTI rankings, where we're 59th out of 102 right now, and falling.
In my past life I was president of a hockey team and several businesses. I just want to drill down again on culture. You can change a culture, but culture doesn't change overnight. It takes effort; it takes reinforcement. At times it can take many years to change a culture.
Mr. Mendel, why has there been such a culture of delay, or basically a culture that's just not right, with respect to this? Can you give me your opinion on that?
Then maybe if we have time, we'll shift over to Mr. Drapeau.
I think there are a number of layers to that. For me the law and the culture interact very seamlessly.
If the law allows you to set a long time limit for responding to a request without essentially any accountability—and Mr. Drapeau has described quite well how that works, because if you want to appeal it is going to take you even longer—then you're basically telling civil servants, “If you're okay giving it out...but if you don't want to give it out, stick a long delay on it.” If the law is full of broadly worded, malleable exceptions that pretty much allow you to make an argument that anything could be secret, you're telling civil servants, “This is not that serious. We want to give you lots of grounds to protect anything you don't want to give out.” That is basically how the culture around this issue has developed in Canada.
We work internationally, and I've seen in lots of other countries, especially developing countries, which are often coming from periods of really harmful secrecy, countries like Bulgaria, like Mexico, like India, where civil servants have kind of lorded it over the public, and now they have this tool, and from the civil society side as well as from the citizens' side, they don't accept that kind of culture and their laws are not designed to allow it to build.
I think in Canada we have now fallen into an attitude of apathy on the part of the public, because it is a huge hassle to make a request, and it will take you so long and whatever, and you may not get the information, so why really bother? But definitely within the civil service there is an attitude that this is not that serious, that there's no accountability and there are no sanctions. There are sanctions in the law, but they have never been applied—never once in the whole history of this law.
So there is a cocktail of things. I think the lack of clear and binding powers on the part of the Information Commissioner is another important part of that. If the Information Commissioner could force public bodies and make statements that this is completely outside of the law, that they have to do this.... There is a whole bunch of ingredients to it. But to us, and we have studied systems around the world, we really need to start with reforming the law. It is going to take time to change the culture within public bodies, because as you said, cultures are difficult to change, and not sort of snap-change things.
It's not that quick to change the law, but it's quicker than changing culture. We feel that's needed to push the cultural change.
Finally, it boils down to one word: leadership.
When Mr. Obama got elected eight years ago, his first act upon reaching the White House was an executive order about freedom of information giving orders throughout the bureaucracy that from then on access was the key. The possible embarrassment to government was not at issue. Things changed dramatically from that time onwards.
Under the previous administration with Clinton, Attorney General Janet Reno made it a rule that heads of agencies, which are similar to our departments, would also be assessed. For promotions, bonuses, and so on and so forth, their performance would be assessed on, among other things, the ability of their agencies to respond to access to information.
If our and the Clerk of the Privy Council were both to come out and say that they believe it's a quasi-constitutional law, that it is the law and they want everybody in the chain to be respecting and responding to it, there would be a change tomorrow, because people would say that there is direction from the top. At the moment, it doesn't exist.
What if the Clerk of the Privy Council were to say to his deputy minister that from here on in he would assess performance based on official languages, gender, and whatever happens from the Auditor General's reports, and so on and so forth, and on their performance as leader of their organization, but that access to information, including the number of complaints, the number of requests, and so on, would also be assessed? Overnight, the access to information coordinator would be called into the deputy minister's office and asked, “Do you need more resources and do you understand what your job is?” and told “Your job is to make me look good”. Then there would be a change.
At the moment, it isn't that way; it's almost the reverse: “I don't want to have any Globe and Mail story or stories being released through the disclosure of access to information records”. Those are the subtle, unspoken words. As a result, access is basically mired into inefficiencies.
Mr. Long is very clever. He got almost 10 minutes of the committee's time.
Waiting till the end—maybe we're saving the best for last—I have a couple of colleagues at the table who would like to ask a couple of supplementary questions. We have about 10 minutes left.
Colleagues, with your permission I'd like to ask a few questions. I don't want to run out of time so I'm going to ask you guys before. I don't want a mutiny. I have one or two questions and if we have time we'll go back to members. Is that all right?
My first question is going to be directed primarily at Mr. Drapeau and Mr. Mendel simply because they commented about it and there's a disagreement on the order-making power.
Mr. Drapeau. I got very excited when you started talking about empowering politicians, committees, or members of Parliament, and making Parliament more accountable. I think this is absolutely fantastic.
Mr. Drapeau, if you don't agree with the current system and the current requests that are made by the commissioner in so far as order-making powers, where should those powers lie, keeping in mind that this committee does not have any real official power? We do have some rights as a committee. We can compel witnesses to come, but we can't even force the minister to testify before our committee. I want to ask you for clarification on how you think this committee's role should change with any change to the legislation and what kinds of empowerments there should be and where they should lie, if they shouldn't land in the lap of the commissioner.