Good morning, everyone. Colleagues, if I can have your attention, please, we have a quorum at the table. We're expecting one more of our colleagues to arrive shortly.
We have our witnesses here today. This is our ninth meeting on this particular issue, and we're pleased today to have with us from the Canadian Association of Journalists, Mr. Sean Holman; and from the Canadian Taxpayers Federation, Mr. Aaron Wudrick. Joining us on video conference is Mr. Edward Ring from the Office of the Information and Privacy Commissioner of Newfoundland and Labrador, and with him is Sean Murray, director of special projects.
Thank you all, gentlemen, for being with us here this morning.
The way we're going to start is that I'll go in the order in which I introduced you, allow you to have up to 10 minutes, give or take, in your opening remarks, and then we'll proceed with rounds of questioning.
We have about two hours today that we can allocate to this. I would appreciate everyone's co-operation. For those of you who haven't been here before, there is simultaneous translation. Hopefully we have some amazing wizards working in our technology area here that will keep us all on track.
With that I'll turn it over to Mr. Holman for up to 10 minutes, please, sir.
I'd like to begin by thanking the committee for inviting the Canadian Association of Journalists to comment on what we feel is one of the most fundamental challenges facing our democracy, namely, a lack of good information about what our public officials in public institutions are doing.
As was mentioned, I'm vice-president of the association, but I'm also an assistant professor of journalism at Mount Royal University, where my research has focused on the early history of the Access to Information Act, as I was mentioning to Mr. Long. I'd like to begin my presentation by talking about the past, because I think it will help inform our present discussion about the future of open government in Canada.
The history of freedom of information in Canada began in 1965, more than 50 years ago. That's when NDP MP Barry Mather introduced the country's first administrative disclosure bill. It's also when Carleton University political science professor, Don Rowat, presented an academic paper about the need for such a law. Back then, powerful societal forces including the consumer, environmental, and participatory democracy movements of the 1960s and 1970s were demanding more and more information from the state. In Canada, these demands were heightened by the increased availability of information in the United States, where freedom of information legislation had been signed into law in 1966.
Pierre Trudeau's government, which was in power during much of this time, wasn't completely unsympathetic to providing more information to the public. In so doing, it saw a solution to the problems of public ignorance and mistrust, the latter of which increased following the Watergate scandal. But the idea of introducing a freedom of information law in Canada was resisted by a political culture and system that has always favoured secrecy over openness.
For example, a 1974 Privy Council Office study recommended against such a law because the existence of cabinet necessitated a degree of built-in confidentiality in government decision-making. Three years later, a green paper on public access to government documents also stated that such confidentiality was necessary to ensure the civil service's advice was frank, not fearful; full, not partial; disinterested, not partisan.
When it was introduced in 1980, the Access to Information Act conformed to the contours of these twin concerns rather than challenging them. As a result, Rowat predicted that the sweeping mandatory exemptions for cabinet and related documents, and the broad permissive ones for deliberations, advice, or plans, would keep the public ignorant of anything that was happening at the summit or even the foothills of government in this country.
Indeed, within just two months of the law coming into force, that prediction had become both a prophecy and a punch line. In the Toronto Star, one writer quipped that the Access to Information Act's loopholes—you have to remember this was within two months of the act coming to force—were so wide that the Goodyear blimp could float through them without touching on either side. However, for the electorate, it was also a tragedy.
In the 1984 study testing the spirit of that law, public interest researcher Ken Rubin found the Canadian Government was still not willing to share much of the information it had collected at taxpayers' expense. In fact, Rubin wrote, “I have been able to detect that less information, not more may now be released”.
This history challenges the established narrative that Canada has gone from being a global leader in freedom of information to a laggard. Instead, we have always been and continue to be a laggard. That's because, in many ways, the Access to Information Act legally fortified the secrecy that is an inherent part of Canada's political system and culture.
Over the past 30 years, those fortifications have been buttressed by practices that allow public officials and institutions to thwart even the limited transparency the legislation provides. For example, in 1983, former Tory MP Gerald Baldwin, the father and grandfather of the Access to Information Act, wrote, “It will be a very sorry day when those obliged to make important decisions are so fearful of having their motives and their assumptions challenged that they will make such decisions on facts given orally.”
However, that sorry day is already upon us. Earlier this year, the country's information commissioners warned about an emerging culture of oral decision-making, where the activities of public institutions go undocumented.
At the same time, the government has constricted other means of accessing such information. For example, in 1979, then prime minister Joe Clark directed public officials to frankly discuss information within their areas of responsibility with the media, but today even the most routine requests for information usually have to be filtered through communications departments.
When taken together, such measures don't just thwart the public's right to know, they also threaten our democracy.
As such, the Canadian Association of Journalists recommends the government take five priority actions that address this threat.
First and foremost, the CAJ recommends the government close or shrink the 75 loopholes in the Access to Information Act, which public institutions use to censor records before they are released to the public. Of particular concern to the CAJ are the exemptions and exclusions that create an expansive zone of secrecy surrounding the government's decision-making processes. Section 21 of the Access to Information Act permits the government to refuse access to any advice or recommendations developed for public officials, as well as accounts of their consultations or deliberations for a 20-year period. In addition, section 69 prohibits access to any records related to cabinet, government's principal decision-making body. Together, these sections mean that Canadians often only know what the government lets them know about the reasoning behind the decisions and actions it takes.
The Canadian Association of Journalists recommends replacing those loopholes with a single discretionary exemption for policy advice or accounts of policy deliberations by public officials. This exemption would only apply to records that have been in existence for fewer than five years, or which relate to a decision or action that has not yet been made, whichever happens sooner. In addition, to apply this exemption, the disclosure of those records would have to substantially inhibit the free and frank provision of advice or exchange of views in government.
The CAJ further recommends that ministers' offices, and by extension the records they hold, be brought within the scope of the Access to Information Act.
Secondly, the Canadian Association of Journalists recommends public officials be required to document their decision-making, with penalties for those who don't. After all, an access to information act is useless if there is no information to access.
Thirdly, the Canadian Association of Journalists recommends public institutions be required to regularly, promptly, and proactively release broad categories of records in a machine-readable format. Neither the public nor the media should have to go on fishing expeditions to find out what their government is doing, by filing access to information requests for records that may or may not exist. Instead the government should simply publish records such as briefing notes, ministerial calendars, audits, and studies as a matter of course.
Fourthly, the Canadian Association of Journalist recommends the government permit and encourage federal employees to freely communicate with the media and the public, without the involvement of political or media relations officials. The government has already issued such a directive to its scientists, but we see no reason why this policy should not be clearly applied to all public officials.
Finally, the Canadian Association of Journalists is in agreement with those who have recommended the Information Commissioner of Canada be given order-making power. While the association feels it is more important to reform the loopholes in the Access to Information Act, we also feel it is important the commissioner be given greater authority to ensure the government does not abuse the remaining exemptions in that legislation.
But more important than any of these recommendations is the need for government and members of this committee to be willing to challenge the assumption that secrecy is necessary for decision-making. That happened in the 1960s and 1970s, when Canadians questioned the necessity of conventions and traditions such as cabinet and civil service confidentiality. If we want a government that is truly open in this country, you need to start asking those questions again.
Thank you for your time.
Good morning, my name is Aaron Wudrick. I'm the federal director of the Canadian Taxpayers Federation. I'm very pleased to appear today, and I thank the committee for its invitation to speak about prospective reforms of the Access to Information Act.
The Canadian Taxpayers Federation is a federally incorporated, not-for-profit citizens group founded in 1990, with more than 89,000 supporters nationwide. We are dedicated to three key principles in which we focus all our advocacy, those being lower taxes, less waste, and accountable government. It is, of course, on the third point of accountable government that I make my comments today.
My remarks are largely built around the recommendations made by the Information Commissioner, the large majority of which the Canadian Taxpayers Federation supports, and which of course serve as an excellent basis for any discussion of reform. If anything, our main critique of the commissioner's report is that, with 85 separate recommendations, there are simply so many that it is unlikely that each one will receive sufficiently thorough individual examination. I do want to take the opportunity, too, to echo the remarks of Mr. Holman. We're certainly in support of everything he said today.
In our view, most recommendations for ATI reform fall into one of two broad categories, those being the scope of the application of the act and the administration of access to information requests. We propose some key principles to guide any reform of the Access to Information Act.
With respect to the scope of the act's application, as a general principle the federal Access to Information Act should cover all of the federal government, including both government-controlled and government-funded areas. The principle here is quite simple—where taxpayers' money is being spent, the public deserves accountability and transparency. Many government entities, including the House of Commons and the Senate, are currently not covered by the act. There are others, which are relatively obscure to everyday Canadians, such as the commissioner for federal judicial affairs, which is probably unknown to 99% of Canadians even though its budget is over $500 million a year. Other little-known entities that are partly arm's length from the government, such as the Canada Health Infoway, which has received more than $2 billion in federal government funding since 2001, are also not currently covered by the act.
Additionally, proactive disclosure should include all information that is in the public interest. This can be achieved by way of a public interest override applicable to all exemptions, of which we also believe there are too many. Of particular interest to the CTF, in our role as a spending watchdog, is the proposal that third-party exemptions may not be applied to information about grants, loans, and contributions given by government institutions to third parties.
Now, many of these principles are encapsulated in several of the commissioner's recommendations, including recommendation 1.1, which would extend coverage of the act to entities funded or controlled in full or in part by government, entities that serve a public function, and institutions established by statute; and recommendation 1.4, which would extend it to the Board of Internal Economy, the Library of Parliament, and other entities that support Parliament.
Recommendation 4.1 proposes that a general public interest override be applicable to all exemptions to replace some of the other narrower overrides, and recommendation 4.19 proposes that, as I mentioned, third-party exemptions may not be applied to information about grants and loans.
Another recommendation of interest to us is recommendation 4.25, which proposes that “the solicitor-client exemption may not be applied to aggregate total amounts of legal fees”. That is to say, if you make a request about the cost to government of pursuing a particular legal case, the itemized information about that case is still confidential, but the global cost, the total cost, would be publicly available.
Turning to the second area, the administration of access to information requests, there's been considerable attention focused on the five-dollar access fee. Our view is that a five-dollar fee is an affordable, reasonable fee that does make sense insofar as it can prevent frivolous request-filing. However, the additional fees for research and production of documents should be eliminated or steeply curtailed, as they can be prohibitive.
Delays are also a concern for us. We are a group that files a lot of ATI requests. We have discovered that delays are the norm rather than the exception. We find that there are delays simply because the departments choose not to have the resources in place to complete the requests within 30 days. Given that there are no consequences for failing to meet the 30-day limit, it's not surprising that compliance with that limit is fairly lax.
With respect to the data, as mentioned by Mr. Holman also, they are often not provided, and in our experience, never provided in a digital-friendly format, like Excel files or CSV files. Information is, in fact, often very hard to read. It seems to have been printed and photocopied multiple times, so you can barely read it.
On this front some of the key recommendations by the Information Commissioner include recommendation 2.7, which proposes that institutions be required by default to provide the information in a digital, open, reusable, accessible format; and recommendation 3.1, which proposes that the extensions be limited “to the extent strictly necessary, to a maximum of 60 days”, so twice the 30-day limit. As well as recommendation 3.10, which would require specific reasons be provided as to why an extension is required.
In summary, it's fair to say that in our view the act is simply too narrow and littered with too many exemptions. We very much welcome the new government's promises with respect to increased accessibility and openness, and look forward to seeing it matched with concrete legislative action.
Thank you very much, and I'm happy to take questions.
First of all, I'm the commissioner for Newfoundland and Labrador. I've been in that position for almost eight and a half years. Mr. Sean Murray is the director of special projects. Sean has been in the office a bit longer than I have been and has excellent knowledge of the act and its development over the years.
We're going to break our presentation down into two pieces. I'm going to give a little bit of a history lesson on the evolution of access and privacy in Newfoundland, because it's fairly new, and I'll end by handing over to Mr. Murray, who will give some of the highlights and the major changes that have resulted from our latest new legislation.
In 2002, the access and privacy law was passed through the House of Assembly in Newfoundland and Labrador. In 2005, the access provisions only were proclaimed into force. It wasn't until three years later, in January 2008, that the privacy provisions were proclaimed as well.
I arrived in the office only weeks before the privacy provisions were brought into force. I will say that the following three to five years were a period of great turbulence and instability with this particular act. Soon after the privacy provisions came in and we were dealing with applicants and complaints and requests for information and so on, there arose a trend of more challenges to our office, which became problematic and troublesome. It got progressively more difficult as time went on. In 2009 we had major challenges to the jurisdiction of the office, particularly as it related to section 21 of the old act, which was the commissioner's authority to view solicitor and client privilege records.
Shortly after that, in 2010, the first statutory five-year review was scheduled. Again my office saw significant flaws with the process that was adopted by the government. Legislation called for a committee to review the act. In fact, there was a sole commissioner appointed. The entire process was very secretive. There were no public presentations. None of the presentations was televised. There wasn't a website set up so that any of the submissions could be viewed by others. It was a very secretive and difficult process, particularly for one that dealt with a law that was basically espousing openness.
The aftermath was Bill 29. After it was debated in the House, many of the recommendations made by that commissioner were accepted. There was a filibuster in the House of Assembly for a full week based on the outcry and resistance by the opposition party and the third party. Eventually, the bill was passed, Bill 29.
It was a regressive piece of legislation that stripped away many of the powers and much of the jurisdiction of the commissioner's office. Basically, it was more difficult for the general public to access information held by the government and public bodies.
There was a significant outcry by the general public. It continued for several years, it was relentless, and it resulted in the second statutory review being convened. This review was supposed to be a five-year mandatory review, but it occurred two years early. That was a direct reaction to the outcry of the general public against what was viewed to be a very secretive government that had stripped away individuals' right of accessing government information.
The next review occurred late in 2012. There was a blue ribbon committee convened, as per the legislation, to conduct this review. The former chief justice and former premier of Newfoundland and Labrador, Clyde Wells, was the chair of the committee. Former privacy commissioner for Canada, Ms. Jennifer Stoddart, was a committee member, and the third member of that committee was Mr. Doug Letto, an investigative journalist and eventually an executive with the CBC.
That process, in vast contrast to the first one, was very open and very transparent. All of the presentations were live-streamed. Every submission was published. It gave organizations, such as the commissioner's office, an opportunity to comment as required on any of the commissions that were provided.
It took about a year, or just over a year, for the committee to do its work. In early March in 2015 the report was provided to the government. It was a very comprehensive report, 600 pages and two volumes, and it included draft legislation. The report was provided to the media and made public shortly after it was provided to the government. The reaction was very positive.
There were 90 recommendations made by the Wells committee, if I could refer to it in that way. All of these recommendations were accepted by the government as was the draft new legislation that was provided by the committee, as well. Again, that was adopted, without change, by the government. The new act was proclaimed in force on June 1, 2015, so it's relatively young as far as legislation goes. We are dealing now with the transition from the old act to the new act.
What I'd like to do now is ask Mr. Murray to comment on some of the highlights of the new act that will contrast very much with the way it was prior to this new legislation.
Thank you, Commissioner Ring.
First of all, I'll just begin by saying that—as the commissioner referenced—government, with this latest review, explicitly stated they wanted to have the best access to information legislation in Canada when they were finished. The Centre for Law and Democracy, once it was enacted, called our new legislation “a strong...law by international standards” and “head and shoulders above other Canadian jurisdictions”. I think the Newfoundland and Labrador law, ATIPPA, 2015, is well worth examining in close detail by any jurisdiction in Canada that's looking at reviewing its access to information provisions.
As the commissioner mentioned, there were 90 recommendations accepted by government in relation to this new act. Obviously I'm not going to go into all 90 of them this morning, but I want to hit some of the high points I think might be helpful to you.
One of the things that changed in the new act was that the commissioner's oversight of certain provisions of the act was enhanced or restored. In the previous version of the act, the commissioner was not able to review certain types of cabinet records and was not able to review claims of solicitor-client privilege. Under the new act this was restored to the commissioner.
Furthermore the scope of coverage of the act was also broadened. In fact, one of the things we've had all along in our jurisdiction is that the legislature has been covered by the act for a number of years now, but in the new act even entities at the municipal level were added.
In terms of the oversight role, we have a unique model in Newfoundland and Labrador. Primarily, across Canada, you have either order-making power or the ombudsman type of model that we had in the past where the commissioner only makes recommendations. Our hybrid model now involves the commissioner continuing to operate as if it's an ombudsman model in terms of how it's set up. When the commissioner issues a report making a recommendation, and if a public body does not wish to follow the recommendation, they have to go to court to ask a judge for permission to not follow the recommendation. They would have to argue in court that our recommendation is not valid. If they fail to go to court to do that, the commissioner has the ability to file the recommendation as an order of the court. That model works for us. We've had it for less than a year, and so far so good. We have not yet had a situation, since the new act came into force, where a public body has refused to follow our recommendations. That's been helpful.
I know that timelines is one of the issues that has plagued the federal level. Public bodies have 20 business days to respond to access to information requests in our jurisdiction. If they feel they cannot meet that, they don't have the ability to extend the timeline on their own beyond 20 business days. If public bodies feel they need additional time, they have to request an extension from the commissioner's office. We've been fielding extension requests from public bodies since the act came in last June. It has not been overly onerous for us to handle these. We've been looking for strong arguments from public bodies and evidence as to why they need time extensions, and that process has worked well.
There is no fee to make an access to information, no five-dollar fee, and the fees are reduced overall. You don't get charged fees until either 10 hours of search time or 15 hours of search time, depending on the category of public body you are.
In terms of the time frame for the review process at the commissioner's office, our office has to complete our reviews within 65 business days. Now this only works if your oversight office has either order-making power or you have the hybrid model that we have. I don't think it's feasible if you have ombudsman power to limit the commissioner's time frame in that regard, because informal resolution becomes more important if you don't have some sort of order power, or some basis to ensure the public bodies will follow your recommendations.
We also have a public interest override provision, which applies to most of our discretionary exceptions. The clerk of the executive council can exercise a type of public interest override in relation to cabinet records as well.
With regard to the third-party business interest exception, we previously had the three-part test, which is the best standard in Canada up to now. Some jurisdictions in Canada have the three-part test. Under the previous legislation the commissioner referenced, which was overturned, it had reverted to a one-part test. We are now back to the three-part test, which is where we need to be.
The committee that reviewed our legislation recommended that government bring in a duty to document, which I know Commissioner Legault has spoken about extensively.
When the report was presented, the government of the day agreed with that recommendation. The current government, as far as I know, is working to make that happen. That is going to require a legislative amendment to Newfoundland and Labrador's Management of Information Act. The commissioner, according to the recommendations at least, will have oversight of the duty to document and be able to audit how the duty to document is being implemented.
In the advice and recommendations section of our legislation, we have a long list of types of records that are not covered by that exception. There is the advice and recommendations exception, but there are also a number of examples of types of records, such as factual material, which cannot be withheld under the advice and recommendation provision. I think that is a good way to go and I would recommend for you to have a look at it.
Our cabinet confidences exception was revised. We don't have a full substance of deliberations test. Substance of deliberations is applied to cabinet confidences material that might be found in records that are not cabinet records per se, but it's more of a categorical exception. That one probably could be better. I'm sure Commissioner Legault has put forward arguments as to what she believes it should be. I would recommend you have a look at those closely.
Some other acts, of course, are set out as taking precedence over access to information provisions in each jurisdiction in Canada. We have those in our jurisdiction as well. However, the committee that looked at our act ensured that they were kept to a minimum. Further, they recommended that these provisions be looked at in greater detail in the next review. Some of them were removed from the list, so that we have fewer now than we had before.
It's important, I think, to have a provision that requires that the act be reviewed every five years. Basically, the federal act has been perennially criticized from all quarters, because there has been no requirement to review the federal act on a regular basis. Probably one of the most important recommendations that anyone could make is to ensure that the act be reviewed regularly, as is the case in our jurisdiction and in some others as well.
Some other powers of the commissioner that we now have include the ability to audit compliance with the act. We have the ability to commission research. We have the mandate to educate the public about the act, as well as to educate public bodies about how to comply with the act. We have the ability to initiate own-motion investigations.
It is also mandatory for the government to consult with the commissioner's office on any proposed bill that could have implications for access or privacy. That's been excellent. Previous to that, government consulted with us on an ad hoc basis, but this makes it a requirement and ensures that it's consistent. I like to think, and certainly the reaction we've gotten to our input on legislation, is that the government has been happy to get our suggestions and has acted on them on several occasions.
The offence provision in our legislation has been updated so that it is practical to enforce. Our office has actually conducted two investigations under our Personal Health Information Act, and offence provisions and successful prosecutions ensued, so we think that's important.
Broadly speaking, in Newfoundland and Labrador we are satisfied that the act grants appropriate rights to citizens and that the commissioner has the necessary tools to achieve effective oversight. I would think that's where you'd want to go. You want to have an act that ensures that citizens have appropriate rights, and you want to ensure that the commissioner has all the powers and mandate to ensure that those rights are protected and upheld.
Thank you very much for the opportunity, and we're glad to answer any questions you may have.
Thank you, Mr. Chair, and thank you to our witnesses this morning.
I would like to start by pointing out one of the challenges that we have with this process today. We had excellent presentations from all of our witnesses, and each of our witnesses has touched on several issues as recommendations to our committee on what we may recommend to the government.
However, yet again the budget that has been tabled already deals with this, and it would appear that they have already made some decisions about what we do. Page 208 of the budget discusses what appears to be the government's decision already on certain items, such as moving to an order-making model. We're talking about debating the merits of an order-making model, yet it would appear that we have an order-making model already decided. Notwithstanding that, it has been very good to hear from more experts in these areas.
I would like to have some comments on certain items and maybe touch on some areas about which we've heard from other witnesses.
We had a very compelling presentation last week—or I thought it was compelling—from Professor Drapeau who in his presentation shared many of the concerns that Mr. Wudrick and Mr. Holman raised about the shortcomings and difficulties. In fact, Professor Drapeau said that the access to information system was thoroughly broken and was in a state of crisis, yet his recommendation—made very powerfully to us and stated in very strong terms—was that an order-making model was not necessary and that what really was necessary, among other things, was a change of culture within government.
I thank Mr. Holman for his bit of history on the culture of secrecy. I'd maybe like comments from both Mr. Wudrick and Mr. Holman on what the real problem is. Is it that the commissioner cannot make orders, or is the problem simply that you can't get the information you're asking for? Could this be addressed in other ways, and how do you change a culture?
Thank you very much. That's an excellent question.
As I said earlier, the new law came into force on June 1, 2015, so it's relatively young. Even though there was 100% buy-in, 100% acceptance by the government of the new act, certain things had to be done to ensure that the results that the act envisages come to fruition. One of these was to make the amendments that had to be brought to the Management of Information Act.
We said a little earlier that this is a work-in-progress. My office has been in consultation with the Office of the Chief Information Officer, and we understand that the work is moving forward. Once the draft is complete, it will contribute significantly to the open government concept that has been recently adopted by the Government of Newfoundland and Labrador and hopefully will facilitate the release of more information, a lot of it proactively rather than as the result of an access to information request.
Of course, things are moving a bit slower than we'd anticipated, because as you may or may not know, the act came into force on June 1, 2015, and a number of months after that there was political interest in getting ready for an election, which occurred on November 30, 2015, which led into Christmas. The new government was sworn in, I think, around the middle of December.
Another aspect of what is going on in this province is that the priority for this government has been preparing for the budget process, which was announced last week. I will say that it has not been the most popular budget that this province has ever seen.
All of this has been a preoccupation of the government. I think we're a little bit behind where we'd like to be in terms of the Office of the Chief Information Officer's moving that duty-to-document situation forward. There will be more on this in the near future, we hope.
Sean, do you have any comments?
Thank you very much for that question.
It's been the practice of our office to publish our reports, straight from the first report that was written. The public interest override is something that is new to our province. It didn't exist in the old act; it's only since the most recent review that we have it.
One of the first things we did in our office was develop a set of criteria that we thought would be helpful to ATIP coordinators at public bodies. These dealt with what conditions would have to exist, and how you would.... There will be a significant issue, if you have a mandatory discretion or exception that you basically won't follow. The reason for the exception has to be overridden by the importance of the public interest.
We've developed a good set of guidelines. In fact, we did some of the work in conjunction with the clerk of the executive council, who has, as Mr. Murray mentioned, the ability to override, in light of the public interest, cabinet documents.
We've not had any experience in dealing with that specifically—
A voice: We had one case.
Mr. Edward Ring: —except that we have an applicant who made a request through a particular public body and is not satisfied with the response. As recently as yesterday—actually, it was a bit earlier than that—we were notified that she has taken the issue to the courts, hopeful to get a decision from the court based on the public interest override that's in our act.
We think it's a very good provision. As the legislation matures, we will see how it unfolds and how it results for the general public.
Thank you, Mr. Chair, and to everybody here also. Thank you, Mr. Wudrick and Mr. Holman, for being here. To both Mr. Murray and Mr. Ring, thank you for being here via teleconference.
It was very interesting to hear, Mr. Murray and Mr. Ring, your presentation, particularly the part that outlines the hybrid model that you've chosen. I'd love to learn more. Obviously, today is just a short presentation, but I think there's some benefit from it.
Again highlighting an issue that my colleague brought up, it's unfortunate that the budget indicated that we're moving to an order-making model without hearing presentations such as yours first. It would have been excellent to hear them, particularly since the budget indicated that they're informed by consultations with the Information Commissioner, stakeholders, and parliamentarians. We on this committee haven't put forward a report yet. We were looking forward to doing so. I guess we've been scooped by the budget.
Again, I appreciate your taking the time to be here.
My questions in particular go to something Mr. Wudrick brought up. I think everybody in this room may be curious to know a bit more detail.
One of the recommendations from the Information Commissioner is to invite non-Canadians into the process of requesting ATIPs. A question was posed to a previous witness—Professor Drapeau, who has been mentioned before—about having a priority for Canadians first. This is something that makes sense to me. I'm not saying quite yet whether I'm for or against opening it up to non-Canadians—there's obviously the financial side of it, which worries me a little—but I've been thinking a lot outside of committee meetings about how we would give the priority to Canadians first.
Are there any suggestions, thoughts that you guys might be able to elaborate upon from your end? How could we pose a recommendation back to the Information Commissioner on that very opportunity, to give Canadians a first priority?
Let me explain that the banking provision is in relation to the review or appeal function at our office as opposed to being at the request level. There is no banking system in terms of public bodies banking requests from applicants when they first receive an access to information request. The banking provision only applies to our office.
I think it's important to have, because our office now has the tight time frame of 65 business days to complete a complaint investigation and issue a report. If we were inundated with complaints or appeals about access to information requests from a single individual, however, we would have the ability to bank those.
That has not occurred recently. It's something that, over the 11 years that our office has been in existence, we have had issues with. We have not encountered it and have not had to use the banking provision since it came in.
In terms of a public body that might receive a lot of requests, however, the public body has the ability to come to our office and request a time extension, and one of the reasons they can present is that they've received an inordinate number of requests, whether from the same individual or not. We will look at what their capacity is, at how in-depth the request is, and we will question in detail what resources will be required to respond to the requests and may or may not grant their request for an extension.
As well, they have the ability to ask us to disregard a request, if it's overly broad. If someone comes to a public body and says, I want every record produced from this year to this year, it's something that will be unreasonable for them to respond to. It would require all of their resources and detract from their ultimate mission, whatever their organization is. The public body has the ability to come to our office and ask that we grant them the permission to disregard the requests, which we have done on a couple of occasions.
I will say that prior to ATIPPA, 2015, our office could only undertake a privacy investigation if we received a complaint. Under the new act we can undertake own-motion investigations.
In fact, in terms of the public bodies reporting, it's a work-in-progress. As I said, the legislation is very new. One of the things the former government did, however, was initiate a couple of early actions. The legislation wasn't proclaimed in force until the first of June, but I think by the middle of March there had been some early actions taken, such as getting rid of the fees and mandatory reporting of all privacy breaches through the commissioner's office.
We thought that we would be inundated, because there are a lot of privacy breaches, many of them internal, many of them minor. For example, inside a large public body you could have faxes that are going to the wrong fax machine, but it's still within that same organization.
We set up a protocol, we have a reporting document, and we've had hundreds of public bodies report privacy breaches to us since March past. One of the tools we have in our tool box now that didn't exist before is our ability to conduct audits into access and privacy with the public bodies. We're just starting that process—we're involved in our first audit now—but during subsequent audits we'll be able to look at those kinds of issues.
We have no tool that is a blunt instrument at this point in time, but we have to develop ways to ensure, beyond just trying to encourage public bodies, that it's not bad to report a privacy breach to the privacy commissioner, because what we will hopefully do at the end of the day is make recommendations to that public body that can be used by others and will help make their system more solid, and the risk of breaches will be minimized, if not eliminated.
I appreciate the question and I appreciate the research that the member has conducted prior to this meeting.
I would say that elected officials are in a role different from journalists'. Elected officials were elected by the public to serve the public. Journalists serve the public in another way, but we are not directly, for the most part, paid for by the public; nor are we chosen by the public to do the job that we do.
I would say that there is a greater onus on transparency for public officials than there would be for journalists, although I take your point. We make decisions on a fairly regular basis, especially if one is functioning in an investigative capacity, about what information should be publicized and what information should not be.
The criteria that we use are far narrower than the criteria that are currently in the Access to Information Act. For example, we wouldn't necessarily publish something that is simply of a private interest as opposed to a public interest. That would be a big one. Is it necessary for the public, for their decision-making, to understand that something happened? In cases in which it isn't, we decide not to publish. That is very different, however, from what we're talking about when it comes to, for example, cabinet. I would argue that the vast bulk of what goes on in cabinet and in government is in the public interest.
Thank you very much for that question. I'll sum it up by saying that it's coming from the darkness into the light, and I'm not talking about the sunshine list that's currently being debated in St. John's.
I'm not going to take long with this question. I know we're short on time.
The initial act that we had in this province was probably biting on the heels of B.C. It was a very good piece of legislation, but it tended to be eroded and there was a trend that government wanted to give out less information. Steps were taken to.... For example, we went to court on the commissioner's ability to review solicitor-client claim records, and we won in the Court of Appeal. That was almost immediately overturned by government, whereby we couldn't review those again.
Things became very rough politically for the government. The general public were outraged, and it was that groundswell and that current that led to.... In fact I'll say it: one of the previous premiers said to me that Bill 29 was the worst thing that government had ever done, and I said, “I agree, man.”
When Premier Marshall, at the time, came out wanting to move forward with the review, it was like again coming out into the sunshine, and we've been very happy ever since. A lot more work was generated for our office, and we're hoping to get the appropriate level of resourcing to deal with it, but we have an excellent act, an excellent piece of legislation that the people now enjoy.
Colleagues, if it's okay with you and I have nobody else on the list, may I ask a few questions. Is that okay?
First of all, I want to thank the witnesses for coming today and providing what I deem to be excellent testimony in regard to this particular issue.
I do have one concern about the technical aspect of it. I think the notions and the commentary are all laudable. I really do. I think it's absolutely fantastic, and I'm hoping that this committee will have an opportunity to invite you folks back again as we review legislation line by line that deals with this. I'm not sure where that's going to go, but that's my hope.
I have a few concerns which may be technical. Mr. Holman started off by saying that moving from a 20-year to a five-year window of keeping things confident, and the cultural change of having the default setting being open information, and having very restrictive exclusions on why government shouldn't release the information, is a complete flip from how it's currently implemented. I would agree with that assessment.
Mr. Wudrick, you're very concerned on behalf of taxpayers. Making sure that the tax dollars are followed and that you have, as your organization puts it, the ability to fulfill your mandate to follow the money and make sure that it's spent in the most accountable way to taxpayers, is laudable to be sure. But there might be times, and I'll give you some examples, where too much information, or information being released at the wrong time, might not be beneficial. It might not be beneficial to taxpayers. It might not be beneficial to Canadians.
I'll give you a couple of examples and then I would like all of your feedback. If our colleagues in Newfoundland and Labrador, in their role as commissioner, could give us any examples of where the Province of Newfoundland and Labrador found itself in this situation, that would be helpful as well. I'm going to talk about negotiations.
Every once in a while the Government of Canada engages in negotiations. The negotiations might be with other countries in the form of trade agreements. The negotiations might be with public sector unions when it comes to wages and collective bargaining agreements. It might be in negotiations with companies around the world when it comes to procurement of large military contracts and so on.
Given the fact that we want to shine a light on these things, is there the potential risk to make things...because I would argue procurements take abysmally long. I would suggest that sometimes these trade negotiations take a long time as well, and even the union negotiations or contract negotiations can sometimes take a long time.
If we were to take your recommendations and put them into a policy and into action, in your opinion, would we be getting a better or a worse result on those fronts?
I think those are fair concerns. We don't take the position that every single piece of information inside the government needs to be disclosed. I think Mr. Bratina touched on this. There's a natural tension between privacy and accountability. I think the nature of public officials and of government is such that it has to be tilted more towards accountability than privacy, for the simple reason that government has power that no private citizen has.
At the end of the day, Mr. Holman and I can come here and make recommendations all day long, but those around the table are the ones with the power. Therefore, I think the onus for transparency and accountability is higher on government.
That said, I think there are reasonable cases, such as the ones you have cited, in which the information should either not be released, or not be released for a certain period of time after which point the information becomes less sensitive. I don't know that we go as far as Mr. Holman in saying that there should be no exemptions. There should be fewer exemptions and they should be justified.
I certainly take your point that it's not a simple, blanket “throw open the doors”. There are going to be situations in which the information is sensitive, and certainly not just with trade deals. You can envision military situations, intelligence information situations, in which that would also apply. I certainly take your point.