Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 8 - Evidence, September 21, 2006 - Morning meeting
OTTAWA, Thursday, September 21, 2006
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-2, providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability, met this day at 9:10 a.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
The Chairman: Honourable senators, I wish to call this meeting of the Legal and Constitutional Affairs Committee to order. We are meeting today to continue our study of Bill C-2, providing for conflict of interest rules, restrictions on election financing, and measures respecting administrative transparency, oversight, and accountability. The bill is more commonly known as the proposed federal accountability act.
As senators, our witnesses and members of the public, both here in the room and those watching these proceedings on television across Canada, know, this bill reflects a central portion of the new government's agenda and is one of the most significant pieces of legislation brought before Parliament in recent years. The committee is giving the bill the extensive, careful and detailed study that it deserves. We have already held over 54 hours of meetings on the bill and have heard from more than 80 witnesses.
This week, we have been considering various aspects of the bill, including accountability, ethics and conflict of interest, political financing, the parliamentary budget office, access to information and privacy. This morning, we are particularly focused on privacy and access to information.
I am very pleased to welcome to the committee Jennifer Stoddart, Privacy Commissioner of Canada. The Privacy Commissioner of Canada is an officer of Parliament who reports directly to the Senate and the House of Commons. The commissioner is an advocate for the privacy rights of Canadians and works independently from any other part of the government to investigate complaints from individuals with respect to the federal public sector and the private sector.
Ms. Stoddart was appointed to this post in the year 2003, after having served as President of the Commission d'accès à l'information du Québec, and in several senior positions in both the federal and Quebec public administrations, including the Canadian and the Quebec human rights commissions.
Ms. Stoddart is joined today by Patricia Kosseim, general counsel in her office.
On behalf of the committee, I want to thank you for joining us. Without further ado, I would like to turn the floor over to you, after which we will go to questions and a discussion which, I am sure, will prove to be very beneficial to Committee members.
Honourable senators, before hearing from our witnesses, Senate communications wishes to take pictures of this committee in action for two or three minutes, and with your permission and with your leave, they would do it as we begin our proceedings. Under the rules, the chair needs to have the consent of the members to do it. Is everyone agreed?
Hon. Senators: Agreed.
Senator Day: Some honourable senators feel that to make it appear more real, it should be late in the afternoon rather than first thing in the morning.
Jennifer Stoddart, Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada: Thank you very much, Mr. Chairman. Honourable senators, thank you very much for inviting me here on this very important proposed law. As you probably know, I have supported this bill in its attempt to bring more transparency to government operations from the outset, and certainly the history of the Office of the Privacy Commissioner speaks to the need for transparency and accountability in all the operations of the government, including those of the officers of Parliament.
I wish to stress, today, that privacy is key to achieving the goal of greater accountability in government.
Bill C-2 makes some amendments to the Privacy Act, but much more needs to be done to make this nearly 25 year- old law meet modern privacy requirements. A real Privacy Act reform is a pre-condition for achieving true government accountability and transparency.
Honourable senators, I support the current provisions of Bill C-2 that expand the number of government institutions covered by the Privacy Act through a broad, inclusive definition of government institutions. While I fully support the underlying goals of greater accountability and transparency, I am concerned about the impact Bill C-2 will have specifically in respect of some major Crown corporations — which, in my view, goes directly against the intended objective of the bill. Remember, Bill C-2 is about transparency. It also proposes to modify part of the Privacy Act, and, ironically, it has the effect of diminishing the transparency in some of the Crown corporations, as I will explain to you.
As a result of Bill C-2, corporations such as Canadian Broadcasting Corporation, Atomic Energy of Canada and VIA Rail would effectively be removed from our modern private sector privacy legislation — that is PIPEDA — and included instead under the out-of-date public sector Privacy Act. Currently, these corporations are subject to the newer PIPEDA, which provides far more robust privacy protection than the Privacy Act. Putting them now under the Privacy Act umbrella would significantly lower the privacy bar, not only for the people who work in those organizations but for every individual who deals with these organizations.
The reality in Canada is that, until we fix the Privacy Act, legal protections are far stronger for the personal information held by businesses in Canada than the personal information held by government bodies.
For instance, right now, someone can come to my Office with a complaint about how either VIA, the CBC or Atomic Energy has improperly collected, used or disclosed their personal information. We investigate and we make recommendations. If the organization does not fix what is wrong, we pursue next steps, which can include court action.
Under the Privacy Act, there would be nothing my Office could really do — other than to make recommendations, hope they are implemented and ultimately express regret about the situation. In essence, under the Privacy Act, our hands are tied.
Imagine a case where a VIA Rail passenger complains that the railway has given her travel itinerary to an abusive ex-spouse. Imagine an Atomic Energy worker who loses out on another job because a corporate official has improperly disclosed personal information to a prospective employer. Worse yet, imagine if the information disclosed was inaccurate. The Privacy Act offers those people no real redress.
Privacy rights would also be eroded in another very significant way. These three corporations are currently required under PIPEDA to adhere to a modern standard of personal information protection, including regularly updated technological safeguards. There is simply no such requirement under the Privacy Act.
So, in my opinion, we are in some ways going backward in time. Considering the harm that misuse of one's personal information could cause, such as the risk of identity theft, it is clear that moving these Crown corporations from the broad protection of PIPEDA to the very narrow protection offered by the Privacy Act is not an insignificant change.
Atomic Energy, CBC and VIA Rail have been subject to PIPEDA since 2001. They have already done all the work in establishing procedures and hiring and training staff to comply with that law. Under Bill C-2, the privacy burden imposed on these three Crown corporations would be much lighter. Imagine, then, that the CBC will be held to lower standards than its competitors, such as CTV or Global Television or any other television chain.
I should like to move on now, honourable senators, to the question of the Office of the Privacy Commissioner as an entity covered in the law.
This bill, as you know, makes officers of Parliament, including my own office, as well as several additional foundations funded by the government, subject to both the Privacy Act and the Access to Information Act. I applaud this change. As I have always said, and my predecessor, interim commissioner Robert Marleau said, I believe my office should be subject to the Privacy Act and the Access to Information Act, that we should at least be held to the same standards expected of the organizations we investigate.
However, since my office has not previously been subject to either of these acts, there is currently no independent mechanism to receive privacy or access complaints against our office under these acts. That would be complaints about how we handle privacy investigations.
While I support being covered by these acts, it would be clearly and entirely inappropriate for me to investigate complaints against myself, as it would be for the Information Commissioner to investigate him or herself. Whether we could investigate complaints against each other's offices could equally be problematic in some cases, because we often come at questions from different directions because of our respective mandates. Bill C-2 does not provide a mechanism for investigating complaints in these circumstances. It is my expectation that changes would not come into force until an appropriate complaint mechanism is in place.
I am pleased to see an access to information exemption for information my office obtains or creates during the course of an investigation or audit. This is crucial to meeting the confidentiality obligations in my role as an ombudsman. By their very nature, privacy complaints arise out of situations where individuals feel that their personal information rights have been violated. It would only add insult to injury if their personal information contained in an investigation file were made publicly accessible — further exacerbating their sense of privacy violation. While I will accept Parliament's wisdom to open up certain parts of my investigation files upon completion, I intend do apply the personal information exemption with full vigour — in the interest of protecting the privacy rights of individuals consistent with my mandate and my mission as Privacy Commissioner of Canada.
I should now like to talk about the very important question of Privacy Act reform, which is integrally linked to the issue of greater accountability.
Bill C-2 includes the first wave of important new amendments to both the Access to Information Act and the Privacy Act. A number of the changes proposed in Bill C-2 to enhance government accountability under the Access to Information Act should be mirrored in the Privacy Act. For example, the responsibilities of government institutions to assist access requestors should be specified not only under the Access to Information Act, but also — and necessarily — under the Privacy Act. Increasing government accountability clearly requires greater access to government information as well as strengthened privacy rights when it comes to how government handles the personal information of Canadians. Privacy Act reform is thus as equally important for achieving meaningful government accountability and transparency as reform of the Access to Information Act.
Individuals need stronger rights under the Privacy Act to gain access to their own personal information. We think of the access act as giving access to information, but in fact the primary role of the Privacy Act is to allow individuals to gain access to their own personal information held by the government, as well as to protect that personal information from unwarranted access by unauthorized persons or institutions.
Individuals have to know what personal information government institutions have about them and how it will be used, in order to assure themselves that the personal information being collected is necessary and accurate and that it will be rigorously protected from unlawful use and disclosure. Like private-sector organizations, government institutions must be required to be open with their personal information management processes, to be transparent about their privacy safeguards, which include publishing results of privacy impact assessments of new programs or initiatives.
I have detailed how much these steps should be included in a much-needed reform of the Privacy Act in a report that was tabled with the House of Commons Standing Committee on Access to Information, Privacy and Ethics in June.
In conclusion, honourable senators, I hope I have given you a sense of my office's view on the new provisions of Bill C-2. I strongly support the proposed act and the many advances that it will achieve with government transparency and accountability, as you have heard, but I do have a few reservations concerning its impact on the Privacy Act — reservations that I have already shared with the House of Commons committee — in particular, the weakening of privacy standards for certain major Crown corporations. I hope that you can address these in your committee.
Secrecy may be the antithesis of access, but privacy is something very different. Privacy is based on fundamental principles of accountability, openness and access. In addition to some of the other issues I have raised today, bringing meaningful accountability to the government must include long-overdue changes to both the Access to Information Act and the Privacy Act.
Thank you very much, honourable senators, for giving me this time. I and the general counsel are open to any questions you might have.
The Chairman: Thank you very much for that excellent overview. Yesterday, we had officials from the Office of the Information Commissioner; your testimony follows quite logically upon that.
It has been recommended by a number of academics for some time that perhaps the Office of the Information Commissioner and the Privacy Commissioner should be united and joined. We can now see, based on your presentation today, the importance of having a stand-alone, separate commissioner of privacy to protect the two things that you just outlined in your report.
You mentioned that you tabled a report with a House of Commons committee outlining detailed steps on the reforms that are needed. I am interested: Have you given that same report to any committee in the Senate?
Ms. Stoddart: No, we have not. We were asked to table the report with the House of Commons Standing Committee on Access to Information, Privacy and Ethics and we did that in June. It has not been discussed by that committee and we have not tabled it elsewhere for the moment.
The Chairman: In your opening remarks, you made a number of suggestions for things you would like to see. You have not suggested amendments, per se, but you said that it is your expectation that the changes would not come into force until an appropriate complaint mechanism is in place. Is that the kind of thing you would like this committee to send by way of a recommendation to the government?
Ms. Stoddart: Absolutely. Before this proposed law comes into force, we must think about its practical application. Some suggestions have been made for mutual investigation procedures, and those could be adopted or recommended, presented to us, so that when complaints against us inevitably come in we would have clear guidance on how to treat them, and your committee could make suggestions of that kind.
Senator Milne: Ms. Stoddart, you are not suggesting an amendment to the bill to delay the coming into force of these particular parts of the bill?
Ms. Stoddart: No, we are not, honourable senator. I do not know whether the proposed legislation will come into force immediately, but we are suggesting that thought be given to recommending appropriate mechanisms.
Senator Milne: That comes in as a recommendation. It seems to me that it is a very reasonable one.
To begin with, you spoke about AECL, CBC and VIA being taken out from under PIPEDA. Since they have recently come under these more rigorous standards and are now being taken out once again and having less rigorous standards applied to them, do you have a suggested amendment on that issue? How would we go about wording something like that?
Ms. Stoddart: We have not looked at the technicalities, because that is the role of legislative drafts people.
Senator Milne: Unfortunately, this Senate committee is not made up of legislative drafts people. We have to be quite specific if we want to improve something. I would ask you to be specific, if you could get something to us that would help improve this part of the proposed act.
Ms. Stoddart: The idea is that the Privacy Act should apply to all Crown corporations, except for those previously came under PIPEDA. It does not seem to me that that should be that hard to do because the Privacy Act has a lower standard. Those are already or could be covered by PIPEDA, I would argue should stay there. Perhaps there could be some kind of synergy between the two. They could be covered by the Privacy Act by those parts that do not come into conflict with the personal information protections of PIPEDA.
Senator Milne: When we heard from the Information Commissioner yesterday, he expressed concern that not only is the bill expanding the number of Crown corporations — for example, CBC and VIA Rail — that will be covered under the Access to Information Act, but also, in effect, there is a whole series of pre-existing bodies that will be included under this bill. He was very concerned that ``certain provisions of Bill C-2 would authorize new and broad zones of secrecy, which will have the effect of reducing the accountability of government through transparency.''
We are constantly being told that this is an accountability bill, yet all of the organizations that are now newly covered under Bill C-2 will, in effect, be able to keep things private forever under some provisions of the bill. Does this give any concern?
Ms. Stoddart: The Information Commissioner is coming at it from a different perspective than I am. I am concerned with personal information protection, not about access to minutes of meetings or things like that, which is the domain of the Information Commissioner.
My position is that, in general, this is a good step because it does broaden for some, probably from nothing to something with the extension of the Privacy Act, the protection of personal information that is there. For those corporations that may have been subject to PIPEDA, or could have been subject to PIPEDA, we do not know, because there were no complaints, so we do not have an exhaustive list. My understanding is that many Crown corporations deal in commercial activities, many of their subsidiaries deal in commercial activities.
Senator Milne: Some of the witnesses who appeared before us yesterday expressed their concern for protection of privacy for other entities that they are dealing with commercially that might become accessible through this.
Ms. Stoddart: From the point of view of the protection of personal information, it is a good idea that those organizations be covered at least minimally by the Privacy Act, even better by PIPEDA, because it has a better standard of personal information protection, while we await the reform of the Privacy Act, which is many years overdue. That would be my position, honourable senator.
Senator Milne: You talked about reform of the Privacy Act in the report you tabled with the House of Commons committee, but we are floating in a nebula here — we do not know what you recommended to the committee. Perhaps we would be able to have a copy of that.
The Chairman: That is the report that you gave to the House of Commons.
Ms. Stoddart: Yes.
Senator Milne: I do not know if that is in the public domain or not.
Ms. Stoddart: It is on our website, honourable senator.
Senator Milne: That is good. We can then access it.
Senator Stratton: Just by way of clarification, we had been talking about Justice doing a discussion paper, and they want us to put on the record that the government's intention is not to bring the provisions that bring the Privacy Commissioner under the Privacy Act until a complaint mechanism is determined. The issue of the nature of the complaint mechanism is raised in the Minister of Justice's discussion paper currently before a committee in the other place. That discussion is taking place.
Senator Milne: Mr. Chair, Senator Stratton is constantly telling us what the Department of Justice wants us to hear. Perhaps we should wait and hear all of this from that department. They could keep a running record of what they want us to know and we could hear from them directly.
Senator Stratton: It is important, Mr. Chairman, that in our discussion of issues to hear more than the one side. It is important and critical that, if the government has a position on something that is taking place, the public should be aware of it.
Senator Milne: I have never before, in this committee, had constant interjections on what the government thinks on any issue when a witness is appearing before us. We hear from that witness and then we move on to another witness who presents a different point of view. The Department of Justice, of course, will be attending before this committee again.
The Chairman: That is the main point. I know this does not affect you, Ms. Stoddart, but the Minister of Justice and the President of the Treasury Board will be coming back before this committee at a later date. They have both presented here already, but they will be reappearing, and at that time honourable senators will have an opportunity to put a number of questions to them arising from the testimony and evidence we have heard from the 80-some witnesses who have followed.
Senator Day: I will try to make this question a supplementary. First, I must comment on the last point. Since we agree that the Minister of Justice will be coming back here, can we also agree that any points the ministry wants to put forward will be put forward by the minister and that we will not have injections of what the government's position is from time to time, as has been pointed out by my colleague?
The Chairman: Senator Stratton might have a bona fide question or clarification.
Senator Day: He is not qualified to give evidence on what the Department of Justice is doing.
The Chairman: I did not finish what I was saying. I did not say he was giving evidence. I am saying that if Senator Stratton has a bona fide point of clarification or a bona fide request for further information or clarification from a witness, it is a proper thing to come before this committee at the appropriate time by way of an intervention.
Senator Day: It is hard for me to argue with your bona fide qualification there. I will leave it at that. A good point has been made. What was the question you were asking?
The Chairman: I will now return the floor to Senator Milne.
Senator Day: I had a supplementary, actually.
With respect to the report and your submission to the House of Commons, may I assume that you were talking in the broader long range about where you should go generally and that none of the recommendations in that submission to the House of Commons deals specifically with items in Bill C-2?
Ms. Stoddart: Our paper, in fact, was drawn up independently of Bill C-2. Unfortunately, as I explained to the House of Commons committee, we were not consulted on Bill C-2. We had hoped that it could bring about some of the reforms I talked about previously on the Privacy Act. I would hope that this is not, as I think the honourable senators referred to, a long-term proposal. We are saying that reform of the Privacy Act is urgent. The Privacy Act deals with access to your personal information. It is also an access and transparency issue: What is the government doing with your personal information? I regret that reforms to the Privacy Act were not undertaken in the bill that is currently before you.
I am urging the government and urging Parliament to tackle this in the immediate future, and the Standing Committee on Access to Information, Privacy and Ethics, because of their interest in this question, had asked me to table this paper in June. My understanding is that the committee will be holding hearings on this in the fall.
The Chairman: We do not have such a committee in the Senate, regretfully.
Senator Joyal: I am sorry to interject, but traditionally — and I have been sitting on this committee for nine years — amendments or bills that deal with the Privacy Act are referred to this committee, the Standing Senate Committee on Legal and Constitutional Affairs. We would normally be the committee to be seized with the report or a proposal to review the act.
The Chairman: It would have been wonderful if somehow even the subject matter of that proposal could have been given to this committee at or about the same time it was given to the House. It would have been useful.
Senator Milne: Ms. Stoddart, you asked what the government is doing with our personal information. That is what the Privacy Act is concerned about.
Is it illegal to reveal the name of somebody requesting documents under the act?
Ms. Stoddart: The Privacy Act takes it as a principle that your personal information should stay personal in your dealings with the government. A reading of the Privacy Act would suggest that unless it is necessary to disclose your name, it should not be disclosed, as I understand it.
Senator Milne: I understand that keeping the identity of a person secret is designed to protect him or her from government reprisals, perhaps.
Ms. Stoddart: That is my understanding. In the access to information legislation, the question of what information an institution gives out is based on the type of information it is, not on the identity of the requester.
Senator Milne: What do you do when it has been revealed in the press that officials from various government departments and even the PMO were involved in hearing the revelation of someone's name?
Ms. Stoddart: I have read that press report. I understand from my office that we have received a complaint asking us to investigate that report. Therefore, I cannot comment any more on what we will investigate or whether the allegations in the newspaper are proven for the moment. I am also meeting with the Honourable John Baird, the President of the Treasury Board, to go over principles of personal information protection in government administration.
Senator Milne: You will be nailing home the point, I hope.
Senator Joyal: I would like to come back to the involvement of the Privacy Commissioner in the preparation of Bill C-2.
My understanding of the answers you gave earlier is that you were not consulted per se, in other words you were not provided with the eventual amendments to your act as well as to the Access to Information Act nor to any other legislation falling under your jurisdiction. Is that correct?
Ms. Stoddart: That is correct, honourable senator. And you have touched upon an important point. We did not see the bill; we were not consulted.
I have been saying this over and over, for a long time now. If we want the principles of privacy protection to be included in the legislation you have before you and which is also before the House of Commons, then we should be consulted and we should be in a position to examine the bills. As we all know, once a bill is before the House, it is more difficult to have amendments passed.
I continue to ask to be involved so as to be able to offer my advice to the government with regard to bills, but that is not yet the practice.
Senator Joyal: The development of a bill entails two stages. First of all, there is the consultation stage during which the general objectives are set out and the organizations involved are invited to explain how they see the application of these general objectives within their daily operations, in the management of the policies they are responsible for. Following upon this consultation, after having obtained this information, a text that is supposed to take into account the opinions expressed at the consultation stage is drafted. Then, there is feedback because, from a legal point of view, the issues involved are very complex, the terms used have a certain impact and when they are placed in correlation with or in opposition to other parts of the Bill, the reader encounters contradictions or vagueness. The legal language used in this type of document is very complex.
You therefore were not consulted and you did not see the text that was tabled before Parliament?
Ms. Stoddart: We were not consulted and we did not see this text. Generally speaking, we are consulted for certain bills that could have an impact on privacy. But in this case, we were not consulted and we did not see the draft of the bill.
Senator Joyal: You are saying that generally speaking you do not have the opportunity to see government bills and to analyze them as to their impact on the Privacy Act?
Ms. Stoddart: Indeed. And this is what I deplore because, given our experience in the area of privacy protection, we could on occasion suggest improvements.
Senator Joyal: You therefore have to run to catch up after the fact, so to speak?
Ms. Stoddart: Exactly. Consequently, the result for Canadians is that the legislation we wind up with offers less protection than if we had been involved in the study of the bill.
Senator Joyal: I would like to come back to the first point you made with regard to the transfer of VIA Rail, CBC/la Société Radio-Canada and Atomic Energy Canada from the Privacy Act to PIPEDA. In your view, what could have led the government to conclude that it was necessary to make this transfer, in other words to reduce the protection of citizens' privacy as far as personal information held by the CBC, VIA Rail and Atomic Energy Canada is concerned? In your opinion, what could have justified or explained this decision?
Ms. Stoddart: I believe that the explanation is the following. The government simply banked on simplicity in the drafting, neglecting the importance of protecting personal information. Greater efforts could have been made at the drafting stage so as to maintain a higher standard with regard to privacy protection.
Senator Joyal: In your view, it is administrative reasons rather than reasons of substance that tie in with arguments of private sector competition that these entities are confronted with.
Yesterday, we heard representatives from Canada Post and other organizations that are in competition with the private sector and that wish to protect some information in order to maintain their ability to compete as equals on, as we say, a ``level playing field.''
You do not therefore believe that it is this type of argument that led to this decision?
Ms. Stoddart: No. On the contrary, under PIPEDA, since 2003, all commercial entities in Canada, including Crown corporations and those that are regulated by the federal government, are subject to the Privacy Act in the private sector, unless there is similar provincial legislation in place. Therefore, there already is, as you say, a level playing field.
This amendment simply imposes upon some, in a regressive fashion, a lesser obligation with regard to privacy protection and offers less redress for employees and for the public than that which was previously provided. This is a step backwards for legislation governing federal institutions.
Senator Joyal: If I understand your explanations correctly, under PIPEDA, in the case of the CBC, if an individual files a complaint under the Privacy Act, alleging that information pertaining to his or her private life, personal status or whatever has been disclosed, you investigate and all that you can do is make recommendations?
Ms. Stoddart: You have it.
Senator Joyal: In the case of PIPEDA — to once again use that horrible acronym — not only there is an investigation, but the individual could even decide to go to court if the remedies and corrective measures you suggest are not implemented. The person could even sue for damages, given that one's reputation can be targeted through all sorts of allegations.
I am not drawing a parallel with a very well known case that is presently making the headlines in Canada, where a person is seeking redress for having been the victim of false allegations. In the case of PIPEDA, is the person truly protected under the rule of law?
Ms. Stoddart: Yes, a person is completely protected by the mechanism provided for by PIPEDA. However, I would hasten to add that PIPEDA contains an exemption for journalistic purposes. In this particular case, I am not sure of the way in which this would apply, but let us take the example of the CBC that has on file personal information on someone, information that is not related to that individual's artistic or journalistic activities.
Senator Joyal: Are you referring to Clause 188 of Bill C-2, on page 134?
Ms. Stoddart: Might I ask General Counsel to find this clause?
Senator Joyal: I am not trying to put you on the spot. I have the Bill right here in front of me.
I am looking at the section on the Privacy Act that goes from page 131 to page 134. On page 134 there is an exception. Is that the exception in the Bill that you are referring to?
Ms. Stoddart: Yes, there is a similar exception, but that does not change the fact that overall, redress for, say, CBC employees, would be more limited under the proposed bill than it is presently under PIPEDA.
Senator Joyal: Therefore, if we accept your recommendation that the CBC, VIA Rail and Atomic Energy Canada be once again subject to PIPEDA, then we could retain this exception contained in Clause 188 of the Bill to protect personal information that the CBC can retain for journalistic, artistic or literary purposes?
Ms. Stoddart: Yes, because there is a similar exception under PIPEDA. Please allow me to further explain.
Senator Joyal: Yes, it is important. We are talking here of reporters' sources.
Ms. Stoddart: We used the example of Atomic Energy Canada, the CBC and VIA Rail because these are major corporations that are well-known. But it is possible that with Bill C-2's present wording this might apply to other Crown corporations as well as their subsidiaries that carry out commercial activities, and which would not be covered by a substantially similar provincial law and would therefore come under PIPEDA. We have not received any complaints relating to them, at least not that we are aware of to date. But it is not limited to those three organizations. We simply use then as examples. They are mentioned in Bill C-2 but in fact, the bill's aim, which is to cover an entire sector rather than a series of designated entities — which, in my view, is an improvement —, might result in the inclusion of other organizations subject to PIPEDA, and we have not been able to do a case-by-case analysis. And, once again, would this be covered by PIPEDA or not? We simply wished to draw your attention to the fact that the ramifications of this are not limited to these three corporations only.
Senator Joyal: You are referring to the fact that Schedule 1 of the Act is amended in order for this to be replaced by a generic definition?
Ms. Stoddart: Exactly.
Senator Joyal: As we saw yesterday, I believe that Senator Day brought up this matter with regard to the Access to Information Act. In other words, the same change is being made to the Privacy Act as to the Access to Information Act, but since there is in a way a link with PIPEDA, by amending the Privacy Act, there is an immediate impact on PIPEDA.
Ms. Stoddart: Precisely.
Senator Joyal: We therefore must ensure, when considering amendments such as the one you are requesting, that we take into account this new definition regarding the list of organizations subject to the Privacy Act.
Ms. Stoddart: In bringing up this issue, I wish to remind you that ultimately, the question is not that of amending the legislation in the short term, but rather of ensuring that in the long term Canadians, in their relations with the government, should have at least the same protection of their personal information as that which they have with commercial entities.
Senator Joyal: The other question that I wished to discuss following upon your statement pertains to the revision of the Privacy Act, which is under you jurisdiction. Yesterday, a representative of the Office of the Information Commissioner discussed the fact that the government had tabled in the House of Commons a white paper outlining the approaches the government will eventually ask Parliament to decide upon in view of a legislative proposal.
If I understand correctly, the government is telling us that these are temporary amendments because everything is eventually going to be reviewed. This morning, you are not telling us that there is a similar white paper pertaining to the Privacy Act that the government has tabled or is about to table at this stage of Parliament's work, and which would provide for a review of the provisions of the act that might be affected by this bill, is that correct?
Ms. Stoddart: I cannot give you an answer as to the relationship between the white paper and a possible amendment to Bill C-2.
Senator Joyal: One of the arguments that was presented to us is that we should adopt the amendments to the Access to Information Act such as they appear in Bill C-2 and that if, upon studying the government's white paper, we came to the conclusion that it might eventually be necessary to change these provisions, then we would change them since the parliamentary legislative process would already be under way. We had a white paper. You see the process.
In your case, you are saying that if we make these changes, the risk is that they remain in law for a long time since there is no legislative process under way in view of a reform or a revision of the Access to Information Act, contrary to the situation with the Privacy Act vis-à-vis the Access to Information Act.
Ms. Stoddart: You are absolutely right. There is no white paper and as Privacy Commissioner I do not believe I have seen any document outlining possible reforms of the Privacy Act. This is why we prepared a small document that was tabled with the Committee in the other place and which is available on our website, but I do not believe that the government is at that stage yet.
Senator Joyal: In the document that you tabled in the other place, are there any recommendations that could have an impact on the provisions of Bill C-2 as it now stands?
Ms. Stoddart: Yes, that would be something altogether different. These are quite broad and fundamental reforms. They go much further than what is found in Bill C-2. It is a change of perspective. It is a new generation of laws that is being proposed. The conceptualization of privacy protection in the post-Google era has undergone tremendous changes since 1983, since the coming into force of the Canadian Charter of Rights and Freedoms. What we are proposing is very different. I do not believe that what we are proposing could be included in a document such as Bill C- 2.
Senator Joyal: You therefore go further than what is provided for in Bill C-2 with regard to the protection of personal information and privacy and the transparency of government operations and accountability in public administration?
Ms. Stoddart: Exactly. In fact, it would more closely resemble PIPEDA, which is an act that dates back to the year 2000.
Senator Joyal: I know that this is not on our agenda for this morning because we must examine those provisions that are before us and not others, but does this go as far as recommending that there be an open legal mechanism, accessible to an individual who considers him or herself to be adversely affected, having not obtained satisfaction or having seen his or her personal information misused?
Ms. Stoddart: Absolutely. We find it unacceptable that there be no redress and the Murdoch decision, that General Counsel Kosseim could discuss with you if you are interested, confirms the fact that there is no redress at the disposal of Canadians whose personal information is inappropriately used by an institution subject to this Act. I consider that to be unacceptable. One can ask to see one's file, request that it be corrected, but a person cannot insist to obtain a correction if he or she is of the belief that there is a mistake. And if the information is false and the institution confirms that it is false, there is not very much that can happen practically speaking, whereas with PIPEDA, if there is a difference of opinion, the aggrieved person can always turn to the Federal Court. The federal institution could be right or wrong, but at least it is the court that will decide. If you have suffered harm, at present you can obtain no compensation whatsoever.
Senator Joyal: Might General Counsel Kosseim summarize for us the conclusions regarding the Murdoch case?
Patricia Kosseim, General Counsel, Office of the Privacy Commissioner of Canada: This case revolved around the illegal disclosure of information on Mr. Murdoch by the RCMP, and Mr. Murdoch lodged a complaint under the Privacy Act as it pertains to the public sector.
In our conclusions, we were in agreement with Mr. Murdoch in this case and we concluded that his personal information should not have been disclosed by the RCMP. Mr. Murdoch then moved on to a judicial review of our inability to go any further stating to the court that, under the Privacy Act, even if there is no express corrective measure, it must be interpreted as providing for such; otherwise, if there is no remedy whatsoever, it simply defies logic in cases of illegal disclosure.
The court unfortunately concluded that we were correct in the sense that we were unable to do anything further for Mr. Murdoch, apart from deploring the situation. The court in fact stated, and this was confirmed by the Court of Appeal, that the act, in its present form, provides for no corrective measures for persons finding themselves in Mr. Murdoch's situation. And that is where it ended. There are no corrective measures presently in the law, going back to the example of Mr. Murdoch, for cases of illegal disclosure or communication of personal information to an entity — the person's employer — that should not have occurred.
Senator Joyal: In your submission tabled with us this morning, you quote the decision of the Supreme Court of Canada, a recent decision of 2006 rendered in the Heinz v. Attorney General of Canada [1 S.C.R.] on page 4 of your brief. You underscore the fact that the court found that there was some complementarity between the Access to Information Act and the Privacy Act.
Senator Comeau: The Senator is referring to a submission made in writing by the witness and I believe that there are senators on this side of the table who did not receive the document. Perhaps it would be good if these documents were distributed to us, since you are referring to them.
Senator Joyal: It has been distributed in both languages.
Senator Comeau: It has been distributed on your side but not on this side. We did not get it.
Senator Joyal: I apologize.
Senator Joyal: I am sorry, senator, but the documents were available on the table this morning.
Senator Day: When my friend said ``on this side'' he was not referring to political sides. He is referring to sides of the table.
Senator Comeau: I would never suggest that, Senator Day.
Senator Joyal: Sorry, Senator Comeau. I will repeat my question: in your submission of this morning, on the bottom of page 4, you refer to a very recent decision of the Supreme Court, a decision it rendered in 2006 and in which it concludes that there is some complementarity between the Access to Information Act and the Privacy Act. In Bill C-2, do you see a difference in treatment between the Privacy Act and the Access to Information Act, since it would go against what the Supreme Court views as the true nature of these two acts?
Ms. Stoddart: Thank you for your question, Senator. I would ask General Counsel Kosseim to give you concrete examples, given that she has the bill in front of her.
Ms. Kosseim: I would refer you to two concrete examples. Clause 143 of Bill C-2 details a responsibility of federal institutions to make every reasonable effort to assist the person in connection with the request and to respond to the request accurately and completely. This is an addition that we believe should also be reflected in the Privacy Act.
Senator Joyal: You are referring to Clause 143, on page 117, are you not?
Ms. Kosseim: Correct. We indeed believe that this is positive, that this is a constructive change. And we do not see why this could not also be paralleled in the Privacy Act.
Senator Joyal: In other words, this could also apply to your act.
Ms. Kosseim: Yes, at present this only amends the Access to Information Act and this is an example of a provision which, to maintain parity, could also just as easily be included in the Privacy Act.
Moving on now to another example, in Clause 163, paragraph 2, on page 124, Assistant Commissioner Alan Leadbeater spoke to you yesterday about an amendment in Bill C-2 that would add to the Access to Information Act the possibility of setting criteria for purposes of the addition of other organizations to Schedule 1, and you had a discussion on that. In a sense, it is positive and constructive that there be criteria; we would also see this fit quite nicely in the Privacy Act.
Those are two examples, just to give you a concrete idea of the work that remains to be done with regard to Bill C-2 in order to maintain this parity.
Senator Joyal: May I complete with my last question? I know there are other senators waiting.
The Chairman: There are 19 minutes to go.
Senator Joyal: I would like to request that our witnesses go through the bill with their respective legal experience and see if other sections of the bill where there is a parity of treatment with the Access to Information Act. With that information, we can respect the principle that the Supreme Court stated this year concerning the two acts. If they could do that and come back it would be helpful.
The Chairman: It is a very good question.
Senator Joyal: It would be very helpful, not that we are lazy and we do not want to do this exercise ourselves, but you will understand that — and I try to defend myself — there are hundreds and hundreds of sections that would be a complex job to do and I feel your expertise and experience would be helpful to us.
Ms. Stoddart: Certainly, we will do that, Senator.
The Chairman: Honourable senators, we have 18 minutes yet and we have other witnesses this morning.
Senator Comeau: Thank you, Mr. Chairman. Ms. Stoddard, you stated this morning that you were not consulted and that you had not seen the Bill before its tabling in Parliament. My question is the following: is it not the practice that you not see bills before their tabling?
Ms. Stoddart: Yes, that is the practice. Bills are not brought to us before their tabling. Personally, I would like to see this practice change. I know that in other jurisdictions in Canada the practice is a different one. I believe that if the government wishes to benefit fully from our expertise in the area of privacy protection, then it should consult us — not on everything obviously, but on what comes under our jurisdiction.
Senator Comeau: I put the question to you because I wanted to know if in the past that had been the practice. I appreciate this information as well as your suggestion that this practice be reviewed and that we find a way for you and for parliamentarians to be able to see bills before they are tabled.
Ms. Stoddart: In fact, I was not speaking for parliamentarians, because their role is different from mine. I give advice. My role is to deal with complaints. Therefore, it is from that point of view that I would like to see this practice change. I have no decision-making role with regard to bills.
Senator Comeau: There may be some way of fulfilling your wish.
Ms. Stoddart: Absolutely.
Senator Comeau: It might be a little more difficult in the case of parliamentarians.
Senator Day: The discussion that you have had with Senator Joyal points out to us very clearly the close relationship, the hand-in-glove relationship almost between the access to information and the PIPEDA legislation, particularly the privacy legislation. I tried to do some of the analysis between the two. As far as Bill C-2 is concerned, the bill that we are studying, that is what we are focusing on. Regretfully, we do not have the mandate at this stage to study your broader approach. I do appreciate the importance of getting on with this.
In your submission with respect to these Crown corporations, for example, CBC, Atomic Energy of Canada Limited and VIA Rail, you regret that they are being moved under the Privacy Act because PIPEDA is broader; is that correct? If you had the amendments to the Privacy Act and had in there the provisions that you want, then you would not feel so badly about these Crown corporations. Is that correct?
Ms. Stoddart: Exactly. If the standard was the same, then it would not be a problem, because the rights of Canadians who want to access or complain or have a concern about how their personal information would be used would be similar. Now they are not. Canadians have more rights under PIPEDA than under the Privacy Act. That is why I think it is a backward step.
Senator Day: There would be two ways to handle your concern. One would be to amend the Privacy Act to bring it to this higher standard like the private sector PIPEDA legislation.
Ms. Stoddart: Right.
Senator Day: The other would be to make some amendment to the current proposed legislation, keeping certain of these Crown corporations over under the PIPEDA side of things.
Ms. Stoddart: In fact, honourable senator, I think we should do both. To come back to your previous comments, one is short term and one is long term. In the short term, we could look at making an exception in the legislation that simply says that this legislation covers the Crown corporations, with the exception of those that are already or could be covered by PIPEDA, or words to that effect, by a legislative drafter.
Second, it is urgent that Parliament undertake reform of the Privacy Act, but that would necessarily be on a longer term than the bill that is already before the Senate.
Senator Day: While other questioners were posing their questions, I can see how these Crown corporations will now fit under the Privacy Act, but I cannot see where they are being removed from PIPEDA. Is there an amendment somewhere that says they are no longer under PIPEDA?
Ms. Stoddart: Yes, there is. If you will give us a few minutes, we will find it.
Senator Day: Do you have it at hand?
Ms. Kosseim: PIPEDA applies to organizations that are not covered by the Privacy Act.
Senator Day: That is the easy way to do it.
Ms. Kosseim: To the extent that you now subsume these Crown corporations under the Privacy Act, they will escape the application of PIPEDA. You need another overriding provision in Bill C-2 that has the opposite effect.
Senator Day: It sounds like a ping-pong game or a tennis game — going back and forth.
Senator Stratton: Done by lawyers.
Senator Day: The general approach with respect to the Access to Information Act and these two amendments, one to the Access to Information Act and one to the Privacy Act, under this Bill C-2 legislation, is to rely on a very broad, general definition of ``government institution'' as opposed to being able to go and look at a schedule that is attached and say: ``If you are in this schedule, you are subject to this act.''
We have sections in here that say all these companies that are listed in Schedule I, or the schedule in your case with respect to the Privacy Act, are no longer in the schedule, but they are caught up in the definition of ``government institution,'' and presumably more. You have just pointed out that these Crown corporations are caught up in it. There is also a schedule, but that is in addition to the broader wording.
Are you developing a schedule on your own so that you know who is now subject to it — that is, what companies, organizations, foundations, agencies are now caught up? It was easy before. We just went to the schedule. Now we do not have the schedule as the exclusive list. Do you have and have you developed something?
Ms. Stoddart: We are not in disagreement with the broad approach. We advocate a broad approach, because organizations are created, they are changed, they assume new mandates, and it is always a question of fact as to whether they are covered by the law. I am not in disagreement with the broad approach to the application of access to information and privacy legislation.
However, as I pointed out, we did not think of how this would affect those already covered by PIPEDA. We will be working on a list, if and when this legislation is passed, but a list is perhaps hard to make in advance of a concrete complaint because PIPEDA is based on the fact that organizations carry out commercial activities.
We would probably undertake general publication and say, ``You know your business. If you are undertaking commercial activities, these are the consequences for you.'' If the act stands as it is, all these corporations will be covered by the Privacy Act, so that is fairly clear to them — that is, their obligations under the Privacy Act — if they have not been covered by anything before.
Senator Day: Thank you for that answer. In response to your answer, I find it easier to go to a list to find out if I am in the list rather than go to general wording and say, ``Am I or am I not?''
Ms. Stoddart: With respect, honourable senator, those lists may often be out of date. The organizations change their activities; new ones are added. It is certainly easier on first blush. It would be good if they were updated every three or four months, but years pass and they are not updated. The law's application to them depends on the facts. When we make up the lists, did we get the facts straight? There is always that problem.
Senator Day: Do you still have a schedule to your Privacy Act?
Ms. Stoddart: Yes, as it stands now.
Senator Day: Does the Access to Information Act have a schedule?
Ms. Stoddart: Yes.
Senator Day: Is it for government institutions?
Ms. Stoddart: Yes.
Senator Day: A section in the Access to Information Act was referred to earlier in questions. You could interpret that section to say that the schedule can be updated and the Governor-in-Council can from time to time make regulations and provisions for who should be included in the schedule. I have not found that. Do you have it in your legislation as well? That will provide that continuous update for the schedule that you just pointed out is a potential problem.
Ms. Stoddart: Yes.
Senator Day: There are certain institutions, foundations, that have been added, and the list is different. I think two were left off; one is the Pierre Elliott Trudeau Foundation, but I have forgotten the other.
Ms. Kosseim: It is the Asia Pacific Foundation of Canada.
Senator Day: Is there a reason why they are in access to information but not in privacy? Could you explain the policy reason for me?
Ms. Stoddart: I am unaware of the policy reason, senator. I do not know.
Ms. Kosseim: I do not know.
The Chairman: That is something we can ask the officials, Senator Day, when they come back.
Senator Day: Maybe Senator Stratton has the answer now.
The Chairman: I did not think he would be allowed to give it.
Senator Day: I am just kidding.
Senator Stratton: I would give it anyway.
Senator Day: I have one further line of questioning, with respect to adding you and your office to the provisions of both the Access to Information Act and the Privacy Act. You said that that is good, and I think it is good, because you are enforcing the law, so you should be respecting and doing what you expect other people to do.
Ms. Stoddart: Exactly.
Senator Day: I would like to know from the point of view of a citizen what impact I am likely to perceive. The best way I can get at that question is to ask you what role you play with respect to the names of individuals who have asked for information. How do the various government departments that have received requests for access to information maintain those names?
Ms. Stoddart: If a complaint is lodged, we investigate whether the treatment of the facts that are alleged to be contrary to the Privacy Act do in fact violate the law. The naming or not of various individuals could be within the bounds of the Privacy Act or without it, but it would depend on the facts of each case.
Senator Day: If I had applied under the Access to Information Act for some information, my name would then have to be used in that department to answer my request, so my name would be made available to the people necessary for that purpose.
Ms. Stoddart: The necessary people, according to the accepted practice, are those who are in the first line of dealing with your request. They have to know to whom to give it to and how to file the information. Then the people who handle the requests, the people called the ATIP — access to information and privacy coordinators — handle requests for the whole department or organization. When they ask for this or that file they do not divulge the name of the person. The decision to release information is not dependent on who is asking for it. Rather, it is dependent on the type of information, the way it is treated in the Access to Information Act.
Senator Day: If you do not have a complaint, whose responsibility is it to make sure that that system is in place and that these names are not being divulged for purposes other than what you have just described?
Ms. Stoddart: Usually, it is with the people who handle the access to information request.
Senator Day: Is it the requirement of each department to set up a system that makes sure they protect the private information?
Ms. Stoddart: Exactly.
Senator Day: That is personal information that would fall within the definition of personal information under the Privacy Act, which is referred to in the Access to Information Act. Personal information should not be divulged as defined in the Privacy Act. Is that correct?
Ms. Stoddart: Yes.
Senator Day: If I were a media person, a reporter making a request for information, would it be proper for my name not to be divulged to other people and other government departments, but rather the name of the company for which I work? Is that personal information, or is it okay to divulge that? Say I work for The Globe and Mail. We are getting many requests for access to information from The Globe and Mail. It is not okay to divulge my name, Reporter Day, but what about The Globe and Mail? Is it okay to divulge that information?
Ms. Stoddart: I have to think about that one, senator. You are asking me particular questions outside of a concrete fact context. All I can repeat is that my understanding is that the duty of people who handle access to information requests is not to try to qualify them, that they come from this organization or this organization, this person or this person. That is not the issue. That is not what the law says. It does not say you give information to people depending on who they are or with whom they work. It says you can release information if it is publicly available, unless it falls under one of the exemptions.
The Chairman: Ms. Stoddart, as I heard your earlier evidence today before this committee, you said that you will be meeting today with the President of the Treasury Board on this very issue to work out lines of communication. Did I understand that correctly?
Ms. Stoddart: It is to make suggestions for strengthening the practices of personal information handling within the Government of Canada, which we have already made publicly, but the minister would like to be reminded of these.
The Chairman: That is what I thought I heard you say before.
Ms. Stoddart: You did. Thank you.
Senator Day: I was trying to get an understanding of your role other than once some crisis has broken in the media. In a normal, day-to-day situation, what is your role with respect to this kind of personal information in each of the government departments under the Access to Information Act?
Ms. Stoddart: We have no direct role in that. We are in the role of an arm's-length ombudsman agent of Parliament. We make standards or suggest standards for information-handling throughout the government. We cannot bind the government. We will entertain complaints if there is a complaint on that against government departments or institutions, but we do not handle the day-to-day requests. That is done by the government. We are a recourse mechanism, and as well we have an education role in talking about best practices for protecting personal information.
Senator Day: I would like you to look at Bill C-2 and, in particular, the fact that your office is coming under Bill C- 2. I am assuming that that would have no impact on what we have been discussing in government departments other than yours, where someone has taken advantage of his or her rights under the Access to Information Act. His name is on file there as having requested some information. It is clear to you that if that name were divulged to someone else, another department, where someone has requested to know who has been asking for information on a particular subject, that would be contrary to the Privacy Act as it now exists. Is that correct?
Ms. Stoddart: Senator, I have referred to the general principles. I will stick there because, as I say, we do have a complaint on a question that is very much like the hypothetical questions you are putting to me.
The Chairman: It is an amazing similarity.
Ms. Stoddart: I will reserve further comment on this, but our basic role within the government as a place where people can take complaints if they feel their personal rights have been violated stands in Bill C-2.
Senator Day: Would passing on that information and circulating it to other people also be in breach of the Privacy Act as it now exists?
Ms. Stoddart: Again, can I refer you to my previous answer? For my comfort, I should end my comments on that question because of the complaint that my office will be looking at.
Senator Day: Is there anything in Bill C-2 that has an impact on this issue that would change things?
Ms. Stoddart: Not that I understand, no. Those principles are not affected by Bill C-2.
Senator Day: None of this hypothetical situation would apply.
Ms. Stoddart: These general principles are not affected by Bill C-2, which talks to other things.
Senator Day: When the Information Commissioner was here, he begged us not to allow these provisions to proceed with respect to access to information because it is haphazard, and, as you have pointed out, it reduces rights in certain areas. They would much prefer to see a holistic approach to this subject matter dealt with.
Do you adopt the same position, without the begging, of course, or are you or content to let some pieces go forward with the hope that in the near future the standards will be raised to a level similar to those of PIPEDA?
Ms. Stoddart: My position, as I have said in my submission, is rather the second approach that you have mentioned. I welcome the transparency brought by Bill C-2 and the added accountability. Overall, it should go forward. I have, however, pointed out in my submission some of the places where, from the point of view of protection of personal information, it is a step backwards.
Senator Milne: Ms. Stoddart, you pointed out that there have been many changes since 1983, I believe, when the act came into existence.
Ms. Stoddart: There have been many changes in the world, yes.
Senator Milne: One of those many changes, of course, is the world of computers and the world of the Internet. I have to warn anybody who may be watching that there is at least one company in the United States that claims that, if you want a list of every single left-handed fly fisher in the United States, they can give it to you. The amount of information about each of us that is out there now in the hands of private companies is absolutely astounding, so I recommend you highly for the job you are trying to do within government.
Mr. Leadbeater told us yesterday that some of the bill flies in the face of the Gomery report, and it guarantees secrecy forever for many of these government institutions and arm's length bodies. However, you are concerned not with the privacy of government departments, Crown corporations or foundations; you are concerned with the protection of the privacy of individuals.
Ms. Stoddart: That is right.
Senator Milne: I would ask you to take a look at the specific amendments that were suggested by the access to information people yesterday, and let us know if you have problems with any of them. That would help us very much in our deliberations. You do not have to do it immediately off the top of your head.
Ms. Stoddart: Thank you, honourable senators, yes. I have just seen this.
Senator Milne: If you could get it to us shortly, the committee would appreciate that.
Ms. Stoddart: We will.
Senator Stratton: Thank you very much for your attendance here today.
We know that legislation evolves over time, and hopefully your concerns will be dealt with by the new government.
As to Senator Day's questions — this is more of a statement than a question — we all know that the theoretical/ hypothetical problem we talked about this morning is a real one. The public should be aware of it, although we should not talk about it. It is a practice that has been carried out by and started by the previous government, and is being dealt with by this new government.
Senator Day: Do we have evidence of that?
Senator Stratton: Thank you.
The Chairman: Thank you, Senator Stratton.
Ms. Stoddart and Ms. Kosseim, I wish to thank you both not only for your presentation but also your responses to the numerous questions from honourable senators. As I said at the beginning, your evidence and appearance here today is particularly important because you followed the officers and officials from the Office of the Information Commissioner, who have a strong point of view about Bill C-2, and it was important for us to hear yours, so thank you for being so forthright.
I am pleased to welcome Mr. Ken Rubin to the committee. Mr. Rubin has been active in investigating a wide range of issues for over three and a half decades and has aided in uncovering various high-profile stories over the years. He is the author of numerous articles and papers on public issues and has done workshops, spoken at conferences and testified at various legislative bodies on secrecy, record alteration, privacy invasion, health, safety and environmental matters.
We are also joined by Mr. David McKie, an award-winning journalist who is a member of the CBC investigative unit. He has used access to information for many of his stories, including a series on adverse drug reactions and their effects on children and seniors. He also teaches computer-assisted reporting and research techniques at Carleton University's School of Journalism.
The committee is very grateful for your presence here. I will now turn the floor over to you, after which we will have a question period and a discussion which, I am sure, will prove very beneficial to committee members.
Ken Rubin, Public Interest Researcher, as an individual: Thank you. There are several themes within Bill C-2. All of the items have a common tie-in; whistle-blowing, lobbyists, conflict of interest, contracts, prosecution office, appointments commission, parliamentary budget office and access to information, which is your theme today — they all involve disclosure situations. Unfortunately, all of them come down on the wrong side of disclosure, and that is the problem I want to emphasize today.
I would like to characterize something so that you can see the impact and devastation that secrecy throughout the bill will have. In Canada we talk about peace, order and good government in our Constitution. I am afraid Bill C-2 changes that phraseology to information warfare, suppressive order and bad government. I am trying to dramatize a very serious situation here. I know the Information Commissioner did that yesterday as well.
The right to information is a newer right. It came in around the same time as the Canadian Charter of Rights and Freedoms. It is certainly in the United Nations Declaration of Human Rights as well. Bill C-2 pushes us back a long time.
I have been involved in access to information for at least 35 years. I have been lobbying for it for 10 years. Over the years, I have been one of the main or most frequent users of the legislation as a citizen or working with a huge variety of different groups. As a result, I have quite a bit of experience with access to information and its limits. To have the door further shut on access is most disturbing because we are living in an Internet age, and it is high time we moved in the other direction.
As an independent watchdog monitoring Ottawa, I have often seen officials and politicians toss around the ``A'' word — accountability — and mix in the word ``transparency.'' The outcome usually disappoints. Bill C-2 is shaping up to be no exception in its mix, however dressed up it is in its legislative clothing.
Despite initial expectations, the proposed accountability act hardly reshapes the way Ottawa will engage in public commitment, debate and policy-making. If anything, it will make it even more difficult for public credibility to take hold or for public engagement and access to Ottawa to occur.
As a House of Commons witness on Bill C-2, I outlined three basic flaws: the bill extends rather than curbs the culture of entitlement in Ottawa, it puts in place a weakened, secretive system of review and auditing, and it raises false expectations of better government performance and conduct.
These serious flaws remain even after the House of Commons amendments. How, then, can Bill C-2 honestly claim to do much for public accountability in Ottawa when it still entrenches secrecy, weakens government monitoring, increases centralized powers and strengthens special influences?
It is a bill full of contradictions, loopholes and pretensions. It is impossible to generate trust and get cleaner government via Bill C-2 by making Ottawa a more secretive place. Sober second thought and a cooling-off period are indeed warranted. When you enter into an arrangement with a used car salesmen, there is a cooling-off period. It is time for a cooling-off period, to think and reflect. This is a reflective place.
Bill C-2 does little to change the existing culture of Ottawa. For instance, the bill wants to record only after the fact that some meetings between lobbyists and officials took place. However, the bill refuses to make it an obligation to record all kinds of meetings of officials or make those meetings more transparent. As a result, instead there will likely be a lot of chance informal encounters between Ottawa officials and lobbyists at grocery stores and dining rooms in order to avoid recording such meetings.
Bill C-2 projects the image of fixing Ottawa up, yet it states that something as simple as poll disclosures will be subject to up to six months of legal delay for public access. So much for lawful commitment to the routine, enacted disclosure that I advocate, especially when the bill limits release to outdated polls. Later I will suggest some very simple amendments along that theme.
Bill C-2 claims that the contract and procurement process will be both fair and transparent, but then the bill proceeds to increase the level of secrecy protection possible under commercial and government economic interest claims so as to hide such contract and procurement information. Bill C-2 grants even broader secrecy exemptions to much of the data held by agencies like Export Development Canada, Canada Post and VIA Rail. It is no wonder, then, that other agencies covered — and you have heard from one or two of them — under access legislation, such as the Business Development Bank of Canada, have already complained that they do not get such extra secrecy protection deals.
The claim is made that as a result of the House of Commons amendments to Bill C-2 there is less of chance of an excessive audit secrecy protection regime, because some drafts of audits will be releasable before the 15-year waiting period. However, Bill C-2 still prevents the public from obtaining audit notes or working papers for up to 180 months or 540 days. You may well be retired or not around by then. Still, some agencies find it best simply to stop doing audits. This bill allows for creative avoidance.
For example, Transport Canada is considering an end to completing air safety audits. Instead, it is setting up another system of air safety management reporting with the air industry that is not open to public access. Nothing in Bill C-2 prevents agencies from ducking out of undertaking public audits.
One other creative way of getting out of providing any real public transparency is initiated in Bill C-2 and was endorsed in the 2006 Department of Justice Canada's so-called discussion paper on access to information. The goal is to limit public access to certain narrow administrative records and exclude the more dynamic operational records held by agencies.
I am still enunciating all of the problems access creates. Bill C-2 begins to shrink what is considered a government record by allowing Atomic Energy of Canada Limited a wide exclusion that permits only certain administrative records, along with some already public regulatory ones, to be publicly accessible. So much for the public learning the straight goods about nuclear safety and sales.
During the House's clause-by-clause consideration of Bill C-2, AECL was momentarily worried that the House of Commons would alter their special secrecy exclusion arrangements, such as what happened with the National Arts Centre. They lobbied furiously for retention of such special secrecy arrangements, including a June 1, 2006, submission to MPs. They are reluctant though to come directly before Parliament.
General administrative records become more narrowly defined within Bill C-2, with travel expenses being the only cited examples of such records. Records themselves are more restrictively defined in Bill C-2 as documentary materials — so much for raw data. Accountability, then, gets more equated with some surface factual materials that can be managed when and if disclosed. The real stuff gets even further secrecy protection.
Canadians are supposed to welcome the shrinking world of public access. The current government nonetheless is intent on perpetuating the myth that Bill C-2 means broader access. Bill C-2 does not strike out to boldly cover many agencies receiving federal funding, when it is supposed to say it does broader coverage.
Let us look at the example of Canada Health Infoway, a non-profit group with federal and provincial officials on board receiving considerable public funding. In July, in the spirit of Bill C-2, I requested from them their basic contractual and financial data. Last month I was told that they were denying me all such data, including the particulars on the large $332,900 amount set aside as of March 31, 2006, for their president's pension, as reported in their annual 2005-06 report without sufficient explanation.
Recently, one government operational matter that has received much public attention — but not thanks to routine transparency, or quickly or fully should Bill C-2 have been in place — is Ottawa's procurement program plans and exceptions to, or options for, existing regular purchasing roles.
The media coverage has been about the use of expensive consultants and the lobbying that is going on about how to divide such largesse. At the centre of this controversy is none other than Public Works and Government Services Canada; yet who is responsible and accountable, in Bill C-2's mangled lingo, for such events that feature ballooning expenses and questionable activities?
The amount that governments will pay for the Vancouver 2010 Olympics is another example where sparse releasable data is available. Yet the B.C. auditor general is indicating publicly that there is a wide gap between announced costs and real costs.
It is ironic that as the Senate discusses the accountability bill, the Prime Minister recently came before a Senate committee on the issue of Senate tenure, with the reputed intent to make the Senate more accountable. His scheme to do this is to limit senators' initial stay to eight years under a yet-to-be-determined advisory electoral scheme not anticipated under Bill C-2's electoral contribution reforms. Prime Minister Harper, however, does not see accountability taking the form of opening up his Prime Minister's office or his ministers' offices to greater public scrutiny under Bill C-2 and the Access to Information Act.
In conclusion, Bill C-2 does not adequately ensure that Ottawa's mandarins and power structure are held to account or that their conduct will be exceptional and transparent. The answer, then, does not lie in the mindless passing of a bill that makes those officials more powerful, less reflective and more able to retreat even further behind closed doors. Every government wants to brand itself as a new one, although few have put this on a letterhead at public expense like the current government has with the slogan ``Canada's new government.'' There is nothing new to government's wanting to avoid public scrutiny, however. What is disgraceful is when it is done in a bill with a claimed ethical conduct theme to it. Bill C-2 cannot stand as it is.
However, I do not want to leave on that note, so in a constructive fashion I am outlining, as I did in the Commons, dozens of areas of improvement. Some, I believe, can be implemented right away. I prefer to see all of them done. They are as follows:
One, adding a purpose clause that enshrines accountability standards in the public's right to know as part of the Canadian Charter of Rights and Freedoms, as I said in the beginning.
Two, ensuring public access to records of the Prime Minister and ministers.
Three, making the appointment commissioner an independent agency accountable to Parliament rather than the arm of the Prime Minister's office.
Four, treating Crown corporations no differently than other agencies in reducing rather than adding special exemptions and exclusions.
Five, broadening what the public knows about lobbyist activities, government finances and contracts.
Six, releasing immediately audits and health, safety, environment and consumer reports upon completion.
Seven, regularly posting the exact salary and benefits of public officials.
Eight, following through on the commitment for a tougher information commissioner's office with binding order powers, including for ensuring proper records are kept, plus some new ideas.
Nine, requiring boards and commissions like the National Capital Commission to hold public meetings.
Ten, the Auditor General to hear and respond to complaints about government audit and works and procedures.
Eleven, penalties for altering, withholding and distorting government financial records.
Twelve, more coordination with accountability systems and joint investigations being possible by such parliamentary officers as the Information Commissioner and the Auditor General.
Thirteen, an arm's-length international centre for transparency, accountability and anti-corruption to be set up in Canada.
Fourteen, and last, periodic statutory review of the accountability standards by a designated permanent parliamentary committee.
I will turn to particular sections where I suggest some small wording that maybe will give the message as to how to make some changes immediately.
Please consider and discuss my suggestions for helping drastically improve and reverse the further slide away from bringing in open government measures. Transparency in government is a necessity that I have thought about over the decades. Ottawa now needs, more than ever, a more accountable, transparent, compassionate and credible government.
The Chairman: Thank you very much, Mr. Rubin. As the expression goes, there is a lot of food for thought here and you have made many recommendations.
No we will hear from Mr. McKie. I gather you do not have a formal written presentation.
David McKie, Journalist, as an individual: No. I have something written down but I do not want you to think of it as formal per se. We are used to thinking on our feet in the media, so I will try to do that. I offer my apologies for not having submitted anything formal, but what I have to say is pretty easy to follow.
I am a journalist with the investigative unit for CBC news. I am here to speak for myself and, by extension, other journalists who use the federal Access to Information Act to help tell the public important stories. I am also here as an educator, someone who teaches journalism students at Carleton University how to use the act, and as someone who has written about the act and ways to get information in a recent book called Digging Deeper. I am not here as a representative of the CBC; they have people who are paid a lot more money than I am to handle those kinds of things.
This is an appropriate moment to be talking about the Access to Information Act when it is very much in the news. I was thinking about this last night as I was watching Paul Hunter's piece on The National. I do not know if any of you saw it, but a lot of that footage about access documents came from my desk, so they were busy last night.
Mr. Hunter was talking about what we have learned recently from the The Gazette, which is that Canadian Press reporter Jim Bronskill was the topic of political conversation after he had filed requests dealing with the CIA. An article that appeared in this morning's Toronto Star refers to a meeting in which it was ``Noted there will shortly be another Bronskill/CIA planes article.'' The quote is attributed to one communications official in the minutes of the meeting but was requested by the Gazette reporter through access to information.
Mr. Bronskill is one of the most prolific users of the act, especially when it comes to security concerns — hence the government's interest in what he has to write about. He is also an educator; someone who teaches journalism students at Carleton how to use the act and why it is important; and I teach that class with Mr. Bronskill. I am sure that this episode will be fodder for our class when it begins in January.
I mention this because as educators, we have to explain to our students, the next generation of journalists, why this stuff matters. It is significant that we are not only users but also educators hoping to usher in a new generation of journalists. This is an important discussion.
Jim Bronskill's name came up when the PMO communications director, Sandra Butler, seemed to be aware of names of reporters who had filed requests. This, of course, is against the law, although we have always suspected that they know who is asking for things, whether it be Mr. Rubin or myself. I think that is a basic understanding, but here it is in black and white. Something must be done about that.
An item also ran this morning on the CBC's World Report. My colleague Mark Blackburn told a story about access to information getting in the way of Canadians' knowing about how our money is being spent in Afghanistan — this at a time when that country and our involvement in it are subjects of intense debates.
These latest developments happen when the Harper government is set to pass a bill that promises more accountability, hence its name, the proposed federal accountability act. What I have just described to you is certainly not accountability. It speaks to some of the concerns that I have and some of the concerns that Mr. Rubin has pointed out.
Here is a brief history lesson to remind you of why this act is important. For the past several years, I have been part of a team of journalists who have used the act to uncover important facts. To name a few, there was the fact that a clinical file at the Children's Hospital of Eastern Ontario in which a little boy died was never sanctioned by Health Canada. Anne McLellan was the health minister at the time. There was the fact that Health Canada's own adverse drug reaction database showed that the number of children harmed by prescription drugs had been sharply increasing since 1997 and without the department's knowledge. We may be heading to federal court to fight Health Canada on this because they are still denying us information, unfortunately.
Another fact is that about a third of this country's seniors are on prescription drugs that they are not supposed to be on. A third of the country's seniors — that is, 1.5 million people, are on drugs they are not supposed to be on either because those drugs are too dangerous or because there are safer alternatives. Many of those seniors have become statistics in Health Canada's database, which is now available online thanks to our efforts to push the department in that area using access to information.
These stories and many more we have told would not be possible without the Access to Information Act. Even at that, we had to fight to get the material — fights that Mr. Rubin is aware of. We fought for years to obtain Health Canada's adverse drug reaction database. In the case of clinical trials, it took us two attempts to obtain proper documents and for months those documents sat on the minister's desk as they figured out how to spin this for public consumption. I am sure that they knew who was asking for it, although I do not have specific proof.
If we step back and take a broader look at this act's application, we need look no further than the stories of the Somalia affair and the military's attempt to hide documents having to deal with the death of Shidane Arone; the infamous Shawinigate affair and the trouble former Prime Minister Jean Chrétien found himself in; and we all know about the ad scandal. One of the reasons for our present political configuration is that scandal, and it is one of the reasons that we are sitting here in this room talking about the need for a new bill.
I should also point out that it is not only journalists who have managed to use this act; dare I say politicians, too, have used it to great effect. All parties have managed to ferret out important information that in some cases embarrasses the government but, more importantly, outlines shortcomings in public policy. That is why I am here this morning.
My colleague Mr. Rubin has already explained some of the shortcomings and some of his concerns, and I share them. What troubles me even more is that the flow of information to which we have a legal right is in some cases slowing to a trickle. Earlier this year, I filed two complaints. I am always filing complaints with the Information Commissioner, but these ones stick out. The first was against the Department of National Defence for fees ranging in the thousands of dollars. We are a public broadcaster. We have a bit of a budget for these things. In a way, I guess we can afford it, but that is not the point. Citizens should not have to pay thousands of dollars to get these documents. That is why the fight is worth it.
A second complaint was filed against Foreign Affairs and International Trade Canada for denying me a document, David Emerson's mandate letter, that I feel should be a matter of public record. We are also locked in a battle with Health Canada over the adverse drug reaction database to which I referred earlier. That is a federal court battle that could cost a lot of time and money. That is rather unfortunate.
This past spring — this is very troubling and harkens back to some of the comments I made about students — there was a student whose master's program I was helping come to fruition. She ran into such profound troubles with Transport Canada that I had her write about her experience for Media Magazine, a magazine I edit published by the Canadian Association of Journalists. In her article, this former UBC master's journalism student recounted the frustrations and threats — yes, threats — that she endured while trying to extract information from Transport Canada on the exemptions that they were employing to deny journalists information after the September 11 attacks in New York, Washington and Pennsylvania. It is a rather disturbing lesson. The next generation of journalists already has a tainted view.
We face enough obstacles without having to endure new ones. In many instances, departments do not respect the spirit of the act. Instead, officials insist on narrow interpretations for liberal exemptions such as advice to the minister or security concerns to keep information secret. It is becoming increasingly difficult for us to do stories such as the safety at airports, problems that concern segments of the population who may be having problems with prescription drugs, and policies that our correctional services have to endure with dangerous offenders. The list of stories is endless. These stories are not being told and they should be.
I applaud the initiatives that would bring Crown corporations and foundations into certain aspects of the act's sphere. The spirit behind the legislation, one that promotes openness and accountability, should also be applauded.
I would urge you to watch the loopholes, the vague language, the addition of exemptions and other potential obstacles that could become roadblocks. This does not deal with legislation per se, but it is a real obstacle. I would also urge you to argue for more funding so that departments can adequately staff their access to information and privacy offices. I deal with harried access to information officers who are literally crumbling under the weight of requests. At Health Canada alone, I have a three- or four-page document of requests that I filed that are backlogged for two years. They are trying their best to deal with the requests, but they do not have enough staff. You can have all the legislation you want and you can have all the best intentions in the world, but if you do not have enough staff, the delay of access to information requests amounts to a denial. That is the problem we face. That is one reason some of these stories are not being told.
Finally, I would ask you to act with haste. I do not know how many stories I have done on efforts to study the act or on private member's bills, on John Bryden et al, over and over. Let us get on with it. Yet, for all of the meaningful study, here we are again talking about many of the problems.
It is good that this discussion is happening. Hopefully it will be one of the last times that we have to appear before a committee to talk about the need to strengthen a very important act. That is it for me. I will entertain your questions in both languages.
The Chairman: Thank you both very much for very interesting approaches based upon your personal experiences.
Mr. Rubin, you talked about not wanting a veil of secrecy to fall over Ottawa because it is important that things be open and transparent. Your fifth amendment suggested broadening what the public knows about lobbyist activities.
As you know, lobbyists have written and said that the more they are forced to disclose whom they see, what they do, whom they talk to, what they want, the more people will seal their mouths and not say anything. Yet you say that we must broaden what the public knows about lobbyist activities. Could explain to us what you mean by that? In explaining it, perhaps you could answer the rebuttal that we can anticipate from the lobbyists that the more you do that, the more there will be a chill over Ottawa.
Mr. Rubin: I do not think lobbyists are your typical Canadians, and most typical Canadians do not use the act but are very cynical about it. Perhaps one reason they are is because they figure it will not change very much how Ottawa works.
Let me backtrack and give you an example. Once the act came in, I certainly noticed and it has been reported that different agencies decided then not to hold meetings, so the oral tradition more and more took hold. It was part of the creative avoidance tactics. Then Information Commissioner Reid says that we should revert back to the duty to document and record such meetings, and for a valid reason. You cannot have it both ways.
Yes, I am sure certain officials may be put off by having to record. By the way, the recording does not talk about the content of meetings, nor does it include all the lobbyists. However, I think it is very important. I have used the example of a Technology Partnership Canada program that was subject to certain abuses. We know very little about how many lobbyists actually got those billions of dollars and what transpired. The public has a right to know. There is a great deal of money involved.
Mr. McKie: I would add to that, if I may. It is fine for lobbyists to argue this, but I have also spoken to many lobbyists who welcome as much transparency as possible, who say that if we do open the system up, it will be good for everyone; it puts everyone on the same footing. Transparency could be a good thing.
Businesses would make the same argument as well. If you look at the statistics, businesses are the most frequent users of access to information, especially pharmaceutical companies. On the one hand, they want a restrictive system but, on the other hand, they want to use it to their business ends.
If you argue that more transparency means that it is harder for people to do their jobs, where does that argument end? Anyone can use that argument. We would be back to square one. It is a slippery slope and a dangerous argument to make. No one should be exempt. Things should be opened up.
The Chairman: You used the word ``broadening'' in the document: broadening what the public knows. What new categories would you broaden to include?
Mr. Rubin: In terms of broadening the act more generally, broadening to me means coverage, and coverage means Parliament, the Prime Minister and ministers' offices.
The Chairman: You say broadening what the public knows about lobbyists' activities.
Mr. Rubin: You have to know what the communications are actually about and what the follow-ups are. You have to include more people who use influence.
Let me draw an analogy that shows the inconsistency with Bill C-2. Here you have all these special Crown corporation secrecy deals, forever exempting things consistently on the basis of being confidential — a term I have fought in court because it has destroyed my getting drug safety material on the basis of a public-interest override. The problem is that the communications with all those people who influence Ottawa are kept secret. That is what happens when we or our clients want to have confidential communications. However, that is not what transparency is all about. If lobbyists are influencing government and getting money from government, everyone should be on an equal level playing field.
When I talk about broadening the definition of lobbyists, I mean broadening to include all kinds of people who are influencing government. Regarding the commercial confidentiality exemption, which is broadened at the behest primarily of the Crown corporations, the Information Commissioner and I have said that that section of the commercial confidentiality exemption under the act should be taken out; that section only leads to winks and nods and people saying, ``It is confidential; I will stamp it such, and so it is.''
However, it is wrong when people have an inside track to agencies or to the government when public money is involved and public policy is being developed. It is not just a narrow group of lobbyists we are talking about. That is why I am trying to get this act right. It twists and turns too many different concepts.
Mr. McKie: Basically, we have to know to whom lobbyists are talking and why. Without getting into specific names, I think that the advertisement scandal was very instructive. Certain people were speaking to consultants or lobbyists, whatever the case may be. If we know who those bureaucrats are, we can through access to information check how accountable they are; we can keep track of their actions. But if we do not know who the lobbyists are speaking to in the first place, as a matter of public record we are at ground zero; we have no place to start.
Senator Milne: It was a bit of a surprise to me hearing from the Privacy Commissioner this morning that investigations are only complaint-driven. In other words, for anything to be investigated, someone has to be caught in the act. I commend you for continuing to try to catch people in the act. Keep on filing complaints, because that is the only way anything happens.
She was also asked a question this morning about the incident that you spoke about so eloquently. She refused to comment because a complaint has been filed and the matter is under investigation. She would not say anything about it whatsoever. However, just the fact that the matter is under investigation is rather interesting.
She also spoke about the fact that this proposed new legislation takes the CBC, Atomic Energy of Canada Limited and VIA Rail out from underneath the requirements of the Protection of Personal Information and Electronic Documents Act, under which they have had to operate in the last few years, and puts them into the Privacy Act, whose requirements are less stringent than those of PIPEDA. Have you or Mr. Rubin any comments on that?
Mr. Rubin: I am a privacy advocate as well as an access to information advocate. The Privacy Commissioner is saying that the Privacy Act, which was passed at the same time as the Access to Information Act, back in 1983, is rather outdated. You get a better deal with those agencies under the PIPEDA.
The problem I am addressing here today is that the Access to Information Act is outdated as well, and instead of updating it — PIPEDA being an example of mild improvement on privacy protection — this bill goes the other way, so that, ironically, those three agencies under access to information get special deals for secrecy. They might have got better privacy protection under PIPEDA than under the Privacy Act. Do you see the irony? There is something wrong here.
Senator Milne: Is there greater protection for individuals' private information under PIPEDA?
Mr. Rubin: Yes.
Senator Milne: It will be less possible for people like you to access the information under the Privacy Act.
Mr. Rubin: There will be fewer situations where you can get information from those agencies under the Access to Information Act. Under the Privacy Act, of course, the use and disclosure codes are outdated and so are some of the preventive means for evasion. On the access side, secrecy is invading almost every crack of what was not even there before.
Senator Milne: All these new ones that have been brought in under it.
Mr. Rubin: I thought the access act was dying, and that is why I wanted reform. This sort of drives a knife through it. When everybody says I want better deal for secrecy, nobody is talking about a better deal for disclosure. I am.
Mr. McKie: One concern CBC has always had about being included is whether, if we are conducting an investigation, our notes and the material that we depend on to do our work become accessible. We are pretty comfortable with the notion that that will not be the case. Journalistic organizations have that concern, because we also compete in the public sphere against other broadcasters as a commercial entity. We do need certain protections to make sure that that fire wall is there.
Senator Milne: Mr. McKie, I would like you to expand on a notion that you raised when you appeared before the House of Commons committee. You spoke about the U.S. having the best access to information system possible before September 11.
Mr. McKie: It used to be a lot more liberal.
Senator Milne: Could you tell us what we could learn from the U.S. system?
Mr. McKie: In a general sense what you can learn is that the starting point is that there is no defensive crouch. Here, when you ask a public official for a database, which increasingly we ask for, or a particular record, the default position is, ``No, you cannot have it,'' whereas before September 11, the position in the United States was, ``Yes, you can have it.'' There were exceptions, but the big difference seemed to be more of a spirit of openness. In the United States, we can get all kinds of records. Their privacy laws are less stringent than ours. I do not know that I would want to go in that direction, but certainly they were much more open in terms of the records we could get. Ironically, if I wanted information from Health Canada, I would go through the U.S. Food and Drug Administration to get it because I figured they would release it sooner than Health Canada would. I and other reporters were in that situation because we knew that they were a little more liberal. They were faster. Again, their default position was much different than is still the case here in Canada.
Senator Milne: Does Bill C-2 take us closer to that ideal or farther away from it?
Mr. Rubin: Neither the United States nor our provincial or territorial legislation has the deep-sixing secrecy notions. Do you think any American jurisdiction would allow the phrase that has been used before this committee, namely, ``Let us carve out more secrecy under the access act''? My goodness, the knives are out, but they are out not in the public interest.
The actual words ``public interest'' and ``access to information'' are in Bill C-2 under the prosecution office or, I think, in the conflict of interest section. No, it is just not there. Something is really out of whack here. I go beyond the public interest exemptions because I want immediate public interest disclosure. That is why, for instance, in the amendment on polls, I would say immediately within 10 calendar days, instead of within six months. That is how I would amend it.
Similarly, I would amend the contract amendment that was added to this bill, and say it cuts for the public disclosure of contracts of over $10,000. I would add the words ``the immediate disclosure of public contracts within 10 calendar days.''
In other words, I am talking about not simply a public interest override system, but a system for immediate, routine disclosure of records, particularly audit, health and safety records. That is not built into the American legislation or the provincial legislation. What happens with this bill? Will every province follow the federal lead and carve out more secrecy?
Senator Milne: For how long is the publication of polls prohibited before an election?
An Hon. Senator: Forty-eight hours.
Senator Milne: Forty-eight hours, so that is about how long they are good for.
Mr. Rubin: I was not being very liberal with the 10-day period.
Mr. McKie: There was a piece in this morning's Ottawa Citizen about information that came out of focus groups held earlier in the spring in which the public was canvassed on all kinds of opinions. That is important information that we should have had access to back then and not necessarily now. Then we get tapped into public attitudes about Afghanistan or public attitudes towards the GST. Now we learn, for example, that people care more about wait times than they do, with all due respect, about accountability. It is in the public interest to know that information sooner rather than later.
Senator Milne: Mr. Rubin, with respect to your remark about the provinces having more open systems, on May 30, the President of the B.C. Freedom of Information and Privacy Association made the following statement before a committee in the other place:
Finally, we wish the committee to know FIPA disagrees strongly with the addition of a blanket of secrecy over draft internal reports and working papers for 15 years, the proposal to keep secret predominantly all records related to investigations of wrongdoing in government, and the government's opposition to extending the reach of the ATI Act into the Prime Minister's Office and other ministers' offices.
If this proposed act were in force for the last 10 years, let alone 15, could you estimate what percentage of your work would be negatively affected? In your estimation, would we have heard about the activities that generated the Gomery commission or the alleged disclosure that Mr. McKie has mentioned about the staff of a minister during a conference call?
Mr. Rubin: I have a difficult time as it is in the thousands of applications I file. At times I have documented that the audit process does not have integrity, and now they want to protect it more so will it have more integrity? I see a problem. This does not apply only to financial audits but also to the audits I go after, namely, health and safety audits. It applies to personal situations of human resources audit. It applies to many different things.
The government runs several complex programs, and to blanket certain things out like that is highly unreasonable. Regarding the example I mentioned of the technology partnership program, I am about to receive the audits that led to Bill C-2's outlawing the contingency fees for lobbyists. The audit reports are done there. I asked for the notes. They are taking their cue from Bill C-2, which has not passed. They will exempt most of it. That is because they got the green light. As is the case with many final audit reports, those audit reports do not really get at some of some of the real situations that you and I as taxpayers should know about. We have a problem here.
Senator Milne: There are many amalgamating amounts.
Mr. McKie: Let me add something very quickly about drafts. A couple of years ago, the former Liberal government — I believe Elinor Kaplan was the commissioner at the time — commissioned a study to determine whether or not border guards should carry guns. That report went through many manifestations. In the final report released, guns were not part of the equation; they had been included in one of the drafts and subsequently taken out.
If we do not have access to drafts and notes, then the audit is only the tip of the proverbial iceberg; it only tells part of the story. It is very important to know what the government is leaving out in addition to what it is putting in. That is why it is so important for us to have access to the drafts and notes that Mr. Rubin talked about.
Senator Milne: Mr. Rubin, you spoke about Transport Canada's ending the completion of air safety audits. I am pretty sure that Canadians will be very concerned to hear that. Transport Canada will use another method, which may or may not be as effective.
Mr. Rubin: In the notes I received, they say when the first major incident under the new system occurs, maybe then the public and the press will be concerned. We do not need fatalities to be concerned.
Senator Milne: We do not need a crash, either.
Mr. Rubin: No. The internal linking in this bill is subtle. Under the bill, the definition of records has been changed and narrowed to documentary materials. Conceivably, you could say that a document is not raw material. Therefore, a draft, if not applied for under the access act on a timely basis, is not a record. It is not a document.
Why do they want to change the definition? In whose favour are such changes? They are certainly not in favour of us really understanding the operational dynamics of the government. Not everybody is looking only for the things government got wrong. People want to know, and it is their right to know. That is what the act is supposed to be about, but it will not be about that under Bill C-2.
Mr. McKie: Let me expand on that because this is a very important point. A record can be anything. A document is only one manifestation of a record. However, if it were determined that a record could only be a document, that adverse drug reaction database I mentioned would not be considered a document because it is electronic. More and more often we ask for databases that track drug safety, food safety, air safety, workplace safety and all kinds of things that are directly in the public interest.
Remember that the default position is the defensive crouch. If they have the ability to use this language, they will say a database is not a document. Or they will print it out and give you thousands and thousands of pages of information that cannot be analyzed using our electronic methods of today.
In Canada, the United States and Europe, computer-assisted reporting using databases is being used to uncover all kinds of very important public policy questions such as air safety, rail safety, food safety and the like. The exposure of these issues is leading to real change. We have a very dangerous situation here with the narrowing definition of record.
Mr. Rubin: Two of your previous witnesses were economists, one of them in a high position in the Department of Finance. Their presentation was a very good illustration of financial data and I found the discussion quite interesting. You want to create a parliamentary budget office that will not be covered under the Access to Information Act. I would not be able to obtain information. Nor is Parliament covered under that act.
Mr. Drummond stated that a person who applied formally may not get information for a year. That is why I continue talking about the threat of non-disclosure under this bill. The economists also mentioned the difficulties around obtaining basic financial data or projections.
It will be very difficult under this bill for the average person to obtain information. One would think costs are the bottom line, but they are not; contracts are now being defined more than ever before as commercial information, while security matters are taking over in other areas. It is claimed that those are not records because they are draft contracts. That is just wrong.
Senator Milne: The access to information people here yesterday pointed out that many of the proposed additional exemptions within this bill have no time limit. In other words, many of these issues can be private and secret forever, for 100 or 150 years from now. That is absolutely ridiculous given that a poll is outdated within 48 hours.
Mr. Rubin: I think cabinet meeting minutes and many of those records should be available within at least five years, and agendas should be available the next day or the same day.
Things must be done differently in Ottawa to decentralize the way things are handled and to obtain real information. We cannot go on in the manner suggested in this bill.
Senator Milne: Mr. Rubin, have you had a chance to think of what percentage of your investigations would be negatively affected?
Mr. Rubin: First, I am sure they are always trying to do damage control. Second, you cannot look upon access to information or the right to know as simply ``gotcha.'' To learn about government involves building blocks and a lot of hard work.
Senator Milne: Would all of your investigations be negatively affected?
Mr. Rubin: Canada Post has always objected to anything I have asked about them through whichever department or minister was responsible and they have gone to court. With respect to AECL, I went all the way to federal court on the CANDU China agreement, and they were behind the Department of Foreign Affairs' blockages.
I think that the message will be reinforced and other people will want more. Instead of agencies' having what I call positive disclosure codes, many of them will end up with extra secrecy deals that are not even codes of conduct but are outright permanent deals.
With respect to cabinet confidences, I was about to say earlier that you may get something in 20 years. I would like it to be less than five years. Situations with respect to parliamentary agencies, certain Crown corporations and security material are gone forever. As a result of doing work for Mr. Arar and his wife, I will not see those things. However, I think I should be able to, and I think Canadians should also be able to see them.
Mr. McKie: To answer your question quickly, if they are allowed to define a record as only a document, that will severely restrict what information we can obtain.
Senator Milne: That is a big concern. Thank you.
Senator Zimmer: Thank you for your presentations. They were very refreshing. Mr. McKie, your remarks inspired me so much, I am considering taking one of your classes.
Mr. McKie: Thank you. You would be welcome.
Senator Zimmer: Mr. McKie, you have mentioned that over the years you have made many requests for information. I would like you to expand on that a bit. What is considered a normal time frame for a response? How long have the responses taken, by and large? There is a need for timely information in the industry in which you are both involved.
Mr. McKie: It is not unusual for it to take anywhere from six months to a year to obtain information. Right now, Health Canada is behind the eight ball to the tune of about a year with many of their requests. Generally speaking, I will not get anything within the 30-day time limit.
Senator Zimmer: Is 30 days the norm?
Mr. McKie: The norm is supposed to be 30 days. Much of the delay is a result of the nature of the information we request. We are not there to sing the praises of anyone. We are there to ask tough questions and to probe. Therefore, our requests set off alarm bells and red flags within the administration. Fair enough; they take time to consult third parties, they take time to consult whomever they have to within the department. More often than not I wait 60 days or 90 days or even longer.
That certainly precludes getting timely information out there, but that does not prevent us from getting the information out when it is available. That is what we did with all of our drug information. When we obtained database five years, we put the database online, we did the stories and we forced Health Canada's hand and now they have put that very same searchable database online for Canadians.
I try to advocate with my students and my colleagues that we do not have to adhere to anyone else's timetable. Just because an issue is not on the government's agenda does not mean that the issue has passed. If we obtain information we can still put it out there. That happens more and more, which is good.
Senator Zimmer: Do you find the opportunity to bring back issues, even when they may have passed, and follow up when you have information to release?
Mr. McKie: Absolutely. Our bosses are amenable to that. If we get something that we deem as newsworthy, we can get it on the air.
Senator Zimmer: Mr. Rubin, did you want it add to that?
Mr. Rubin: The existing act is reactive, not proactive, which is a problem. It can take several months to get information. You have to know that — not to accept it — but complain and hold them to account.
I want to go beyond some of the vision and certainly the non-vision of Bill C-2, which talks about permanently wiping out records as opposed to timely getting records in certain categories. Proactive disclosure to me means not just audits, but contracts, polls, salaries of individuals in the government, on a very timely basis. Just lay out the documents daily, or put them on the Internet.
The act is being used to box in people, and Bill C-2 not only boxes them in further, it prevents them from using the act at all. It is like wait 20 years for cabinet, wait a lifetime for other things until death do us part. I thought it was just taxes, now it is the Access to Information Act. What is going on here?
Senator Zimmer: Do they give you any reasons for the delays, especially if they go longer? What are the reasons?
Mr. McKie: For example, as soon as the new cabinet was sworn in I asked for all of their briefing books. They are still coming in, believe it or not. One of the problems is third-party exemptions, if they have to consult with other departments or individuals or institutions outside government. That admittedly takes time. I really do think that it comes down to the embarrassment factor. They do not want to be embarrassed and they have this notion that if they delay it long enough then it would not become a story.
Senator Zimmer: You also indicated threats and types of threats. What form do they take? Would it be something like, ``I am going to talk to your boss''? What threats do you receive?
Mr. McKie: I have not really received any threats directly. I put some of my former student's concerns into the record because she received blanket intimidation. I invite you to read the article.
However, I do not receive any threats per se. They are smarter than to threaten a reporter who uses the stuff a lot. In any case, all they have to do is to hide behind exemptions; they do not have to threaten because the bottom line is to try to stem the flow of information. Often they succeed.
Senator Zimmer: Mr. Rubin, in your report you suggested some amendments to the bill and also some new ideas. Your eleventh point is about penalties. Are you talking about financial or disciplinary penalties? Can you elaborate?
Mr. Rubin: Bill C-2 creates a parliamentary budget office in one place and in other place refers to procurement officers, auditors and rules, and near the end of the bill there are those fine words about contracts being open and transparent, but what happens if in one of those areas of financial or cost records someone does not disclose the information? Right now there is a provision under the Access to Information Act for altering records or destroying records. The right to know starts with at least knowing how much it costs or what it is all about. There are not enough penalties. The Privacy Act is much tougher in terms of penalties.
I came before the House and Senate to help MP Beaumier pass the record penalties under the Access to Information Act. I believe the fine should be at least up to $250,000 and there should be jail terms. The compromise in the Access to Information Act was two years' summary conviction. I think it should be up to five years. To distort or alter records is very serious. There should be consequences to keep people a little more honest. Perhaps that would also help the problem of time delays.
Mr. McKie: I do not have anything to add to that. I totally agree with Mr. Rubin.
Senator Joyal: As you know justice delayed is justice denied, and I think information delayed is sometimes information denied. As you said, procrastination sometimes may kill an issue or make it so obsolete that there is no merit in pursuing it.
Would it not be better to amend the legislation to include a time limit that once reached would trigger an investigation by the commissioner into the reason for the delay? I have no specific time in mind, but if there were a step-by-step approach, at the end of it you could at least obtain what is allowed under the act. For some of the Crown agencies that will be open to access, it will be a matter of resources and training. At least a person requesting information could be told that the agency does not have the resources to provide all the information. In fact, in the implementation you can make it almost so far away from the result that you want to achieve that in practical terms it will be denying the information.
I did not see any specific recommendations on that subject in either of your presentations that would make your day-to-day work easier.
Mr. McKie: That is a good idea. Departments hate having the Information Commissioner come calling. It means that they have to stop what they are doing and go through their files; it is a pain. If the commissioner were to come calling on a proactive basis, say after a delay of 60 days, that would put them on notice. Hearken back to the remarks I made about understaffing. That applies as well to the Information Commissioner's office; if you put more work on their plate but they do not have the staff to carry that out, it is really a moot point. An amendment like that would require an additional staffing component to handle the increased workload, but I believe it would increase the flow of information.
I would add to that the requirement that if the wait exceeds the 30 days, then the department or agency is required to issue a partial release. A record might be delayed because there are various bits and pieces of information that must be sent out for consultation or something, but the rest of the material can be released. Maybe there should be a proactive obligation to institute a partial release. Usually requesters have to ask for that. If the requesters are not familiar with the act, they do not know to ask for a partial release. If the Information Commissioner in question is not as much of an advocate, shall we say, for our cause, they will not suggest it. Instituting a partial release along with your suggestion would help increase the flow of information, but there would have to be an increase in staff as well.
Mr. Rubin: The parties who receive special extra secrecy privileges under Bill C-2 seem to want a two-year delay in implementing the bill, whereas they have had about 25 years to apply. They have certainly had the resources to block any of my requests when there are third parties when I file with the departments involved. I am sure that they will want to delay their requests for a long time. That is an immediate problem.
Let us get to your situation. I have thought about this. I would like to present my public right to know act, which would dramatically change the way Ottawa operates. I thought long and hard about how to do this. If we are still adopting the reactive vote as opposed to putting a lot of things in the proactive vote, we should not have the legal limit in the act at 30 days. Instead, there should be a clause that reads something like this: ``Within 10 days of receipt of a formal access request, a requester shall receive in writing or otherwise notices of any fees, the specifics of identified consultations, any specific time exemptions claimed, any transfers, any claims of records not existing, notice of exemptions to be applied, and notice of records to be created.''
Many agencies wait until 30 days have passed and then say: ``Oh, I am sorry, I have not done anything,'' or ``Here are your fees; here are the consultations.'' That is not good enough. If you are doing your job properly, 10 calendar days is more than enough time.
Let me look at it another way: you are instituting this system because the act's principles call for the right of access on the part of Canadians, as well as independent review. That is why the act should be amended as well. You must have binding order powers in order to enforce a time limit of 10 days or 30 days or to rule on whether an extension is necessary or a consultation is necessary or just so much obfuscation. If the commission had order powers in this area — and they do have order powers; I have used them in provincial jurisdictions — for sure you would get action right away if there were a problem. You would not have to wait 30 days if you suspect that they have not complied with the requirements that I am referring to under the act as part of their necessary due diligence to get the process moving.
Senator Cochrane: My question is for Mr. McKie. If you did not receive the information within a certain period of time, you could be given partial information. Have you had a situation like that? If you have, were you satisfied with that?
Mr. McKie: I have had that situation. I had to cut many deals to get the briefing book material, because we wanted to get it out there to our reporters in our radio and television bureaus. Yes, that has worked. Partial information is a compromise, but it is better than nothing.
Senator Cochrane: Absolutely. We all compromise.
Mr. McKie: It is a compromise I live with, but it should not be up to me, as the requester, to ask. I do this for a living so I know to ask for that. Do not forget that of the people making requests, only about 10 per cent are journalists. Most requesters fall into other categories. Most citizens will not even know that they have the right to request information. The act should be amended to make it proactive, so that it is incumbent upon the officer in question to say, ``You have a right to a partial release if we are late.''
Senator Cochrane: Many of our citizens are quite persistent.
Mr. McKie: Absolutely; more persistent than journalists. God love them.
Senator Joyal: I wish to continue with that point. I was intrigued by your first recommendation, Mr. Rubin, which would add a purpose clause that enshrines accountability standards and the public's right to know as part of the Canadian Charter of Rights. We have been involved before in the exercise to amend the Charter of Rights. I agree with you on the principle, but I am more concerned with the following: Let us put into place the system that normally implements a right. If you have a system that implements a right, you do not have to wait until the rights are formally enshrined to benefit from the rights. We can amend the legislation to add the obligations and responsibilities that the public would have if the right were formally recognized in the Charter or in any other instruments, for example, the Canadian Bill of Rights or any other enabling legislation that recognizes fundamental rights.
Would it not be better to use such a systemic approach rather than trying to play with little things here and there not addressing fundamentally how the system works?
Mr. Rubin: I return to my first opening remark about the lack of peace, order, and good government; that is a constitutional right and so is the Canadian Charter. Within the Canadian Charter, under section 2 and the section under freedom of expression — and I think the courts have interpreted it this way — comes the right to information. I do not think that is a stretch, but I do think that if you have that there and courts have agreed to it, it sends a clear signal to insiders and to the public that this is a right; it is not just a statutory right, it is a constitutional right. I think it is high time to do this. As I said earlier, these are newer rights that we have adopted, but they are rights that are on everyone's mind now because they use the Internet and they do not think twice about getting instant material. They have their own issues and their own problems. They want the information and the process is less important to them. That right is the issue at hand. If it is not guaranteed, then there is a problem.
The Universal Declaration of Human Rights contains clauses for the right to information. Simply including them would give the act a much greater stature, in general and in the courts. It is a no-brainer: put in those clauses and you have a better act, an act that has a rule of law standard rather than a creative avoidance standard or an extra secrecy protection standard.
Senator Joyal: The way I understood the answers that were given to us this morning by the legal counsel of the Privacy Commissioner on the Murdoch case, there seems to be an important point about where to draw the line regarding the rights of a citizen to have access to his file and access to information. In particular, there is the last case of the Supreme Court in 2006, H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General). Are you familiar with that case?
Mr. Rubin: I am familiar with it. I was actually the original applicant.
Senator Joyal: Maybe you can comment on what you feel are the needed initiatives following that decision of the Supreme Court, and how you intend to act upon the decision and how we should be evaluating the act in the context of that request.
Mr. Rubin: I am not a lawyer. I once appeared in front of a committee where the late Senator Forsey said that it is wise not to answer certain questions if you are not a lawyer.
I know on the privacy side that there are certain hoops to jump through, but if you do not start from the basic premise that openness is a right, first and foremost, then it goes downhill from there. Granted, there will always be some restrictions. I see some with a time sensitivity, some with an injury sensitivity, but I also see many things that could be routinely released. It would be much more helpful to elevate this act rather than to de-elevate it, putting it into Bill C-2 the way it is, so it will never recover. It is much more helpful to the next generation.
Senator Joyal: Let us go to the issues of safety and security. In terms of the security — which is a larger concept — in the last number of years it has become an open gate to deny all kinds of information that normally would have been made accessible because ``security'' is a buzzword, a keyword, a magic word; you just have to allege security and immediately you can deny a lot of information that has in fact very little impact or no impact on security. How should we address that issue?
Mr. McKie: If you flip the argument on its head and start with the default position that Mr. Rubin has just outlined, which is basically the public's right to know, you could address the whole area of airport security this way. When we asked for the results of the national infiltration tests after September 11, and you all know what those are, they said no, despite the fact that they had been routinely releasing these. They said ``no; national security.'' That is fine.
Let us flip that argument on its head. Does a traveller flying out of Ottawa not have the right to know how safe that airport is or how it fares with regard to airport security? A traveller should know that. The way to answer your question is to flip it on its head and to say, when it becomes a matter of security, short of a real threat that would tip off a would-be terrorist or whatever, we have the right to know how secure a mode of transportation is. That is no different from our right to know the safety details of a drug we are ingesting, or the safety of the food we eat or the water we drink. It is like any other public safety concern.
Mr. Rubin: I am very concerned because Bill C-2 includes many things, but it does not talk about what is happening in security and secrecy. It has just assumed the chill is there. The chill has gone further, because in front of the O'Connor inquiry the Government of Canada presented a position that went way beyond the Access to Information Act. In the final submissions of the Juliet O'Neill case, the government went way beyond the normal way of looking at things and linking the Security of Information Act, section 4, and the Access to Information Act as its fallback position.
I am concerned because I do see national security being used in too widespread a fashion. You tell me in Bill C-2 whether all the contracts and all the fine notions of open transparency will apply to the Communication Security Establishment Agency, who have denied me their contract list, or CSIS or the RCMP, and the answer will be no. You tell me why I am denied certain information about pesticides. It is reputedly because terrorists might find out about that material when there is a health and safety risk about it. You tell me why I cannot find out much about the budgets of certain of these very expensive programs the security agency has.
There is a serious problem. In the Arar case, I am aware of the citations of material that Justice O'Connor, who had more privileged material than I was able to get on behalf of Mr. Arar and his wife, came out with that should be in the public domain and probably more. We have a problem that is not being very well articulated. There is a statutory review in another place about the Anti-terrorism Act. How does this relate to Bill C-2? It does, because many areas related to lobbying for certain security contracts, what those security contracts are about and things that are interrelated to them are out.
Senator Stratton: It is rather interesting to hear from a media angle what you folks think about life in general when it comes to access to information.
I am curious about the delays, because you think it is rather inappropriate to wait beyond 30 days, and I do not disagree. My concern is this: If you say the Department of Health is up to here and you have to wait for a year and they only have one staffer, then you can understand the strategy behind it all. That could be looked at.
However, if you put a demand on saying that you must respond within, say, 10 days or 30 days, or put out a partial response, what happens if you hit an issue that is a real hot potato, where every media person and private citizens want that information, and it is impossible for the Department of Health to react? How do we deal with that situation? As well as dealing with your reality, you also have to deal with the flip side of it. How do you think we can deal with that?
Mr. Rubin: I personally feel that the Government of Canada can afford to put more than a lot of useless information on their websites, that they can share with Canadians much more material, starting with cabinet agendas and opening up the Prime Minister's office. The reality check has to include having access to certain records or being given certain records. I have opened up new fields time and time again. People said it was impossible to get the briefing notes of the Prime Minister. Of course, now they have cut off the agendas, but I sometimes find a way. Just like they try to avoid it, I try to go through a back door and find that out.
Senator Stratton: It sounds like a hacker.
Mr. Rubin: You have to be persistent. You have to look for the opening. However, you should not have to look for the openings. You should not have information advocates such as me; everyone should just get the information and use it selectively.
Senator Stratton: I was dealing more with the reality of having to wait for a year to get a response from the Department of Health. You can say throw more staff at it. If you have a situation in the Department Health, as an example, where you are dealing with an issue that is a hot potato and all of a sudden everyone in the world wants access to that information now, how do you balance the two? That becomes a real issue to me.
Mr. Rubin: You must have the will. You need certain resources. You need a much more efficient records system. You do not do, as has been in the news the last few days, divert all your attention to creative avoidance by trying to second-guess what the access requester wants and delaying things more. You do your job honestly, you try to communicate forthright and you do not zip the mouths of every minister.
I have a request in for the access to information changes and correspondence with the government and some of the parties with the extra secrecy deals. They want two and a half to three months to deal with that, yet they have come in front of the committee and stated their cases. Why can I not get that information from the government?
Prior consent is a big one, particularly in health and safety records. Instead of these extra secrecy deals, you have disclosure deals and part of that disclosure deal package is getting prior consent to the release, or the government takes it upon itself to devote some of its resources or its technology to a proactive system.
I am not saying that you can do it in each hot potato case, but time and again issues like climate change keep coming up. Rather than getting blank pages 10 months later about what Environment Canada or Natural Resources Canada thinks about one thing or another, you should get something about the content or whether a clean air act will come in advance of the climate change initiatives.
Mr. McKie: Let me suggest something practical, and I will use National Defence as an example. They have had to deal many hot button issues with Afghanistan, and they have dealt with them effectively. When they get a request, they will scan the documents and create a PDF right away. They anticipate that people will call. I call, and that afternoon I can either pick it up or have it couriered to me. I get a CD that has all of the requests on there. Nothing has to be photocopied and nothing has to be retrieved from the archives. It is an efficient system and it is done.
There was a reference made to poor recordkeeping. The problem, however, is that more often than not we have to deal with poor recordkeeping, that is, departments that have not come out of the dark ages when it comes to dealing with documents, and we pay the price for that. It is a simple thing that can be done because there are no bottlenecks at DND. Once something is released, it is out there and it is not a problem whatsoever. More departments can routinely do that and post the information on their websites, for example. That way, you can direct someone to the website and to that PDF file.
There have been cases where certain departments have been overwhelmed because of some requests that I have made. They have hired a consultant to come in for a month or two and help with the backlog. I know that Health Canada does that, and I am sure other departments have discretionary budgets that allow them to do that. Those are two practical ways that departments can deal with the bottlenecks.
Senator Stratton: You would not mind seeing a recommendation to that effect.
Mr. McKie: Absolutely, to get their technologies up to snuff.
Senator Stratton: With respect to policy papers or position papers within the ministerial realm, you are throwing ideas back and forth, essentially. From department to department, there is a crossover and your thinking is evolving. What you start off with here can be 180 degrees different from where you end up. That is not abnormal at all.
Because that is a policy thinking, an evolution of an idea into an actual policy, would you not think that that should remain confidential, as it evolves, until a certain date thereafter? When you first start with an idea for a policy, you are not aware of all that is out there. As you get fed information from other departments, your thinking evolves, and that thinking should remain confidential for a certain length of time. Would you not agree with that?
Mr. Rubin: There are so many policy shops in Ottawa doing work — I am not sure what kind — whose meetings are not necessarily recorded, so that is part of the problem right there.
The policy advice exemption is something that should not even be there. That might sound startling, but does this business of full and frank discussion really occur? If it does, why should Canadians not be privy to it? Why are there not verbatim transcripts kept of the meetings? If the issue is that of a security, legal or budget nature, then that is understandable. However, much of the broad swath of what is called ``policy advice'' is factual discussions, and there are options.
Things can be misinterpreted. For example, the meat packers went to court to prevent me from getting access to meat inspection reports, because they could be misinterpreted. The fact of the matter is that inspectors do their jobs professionally; people try to put forth their best efforts; public servants are doing that. I do not see what the problem is in most cases.
In my view, hiding behind acts and exemptions is not helpful to a democratic dialogue. I do not have a great dilemma with that area. There are other things in law enforcement and security where I can see certain narrow exemptions, but the 20 years in the Bill C-2 regarding policy advice being upheld is out of date and self-defeating.
Mr. McKie: It speaks to the definition of what we mean by ``public sphere.'' Do we want the public sphere to be a place of sober discussion? The problem with much of the depiction of policy is that it is always presented as a done deal, and Canadians rarely have any insight into how that policy has evolved and what options were considered. For democracy, it is important for us to have access to those things.
There may be occasions where it is not helpful for us to have that information, but that should not be our default position; that should be the exception. I mentioned the case of whether border guards should have guns. It was important at that time for Canadians to know — and they did find this out — that having guns was an option that was discussed, because the border guards were concerned about their safety; nevertheless, that did not end up in the final public document.
Without recourse to those drafts and that kind of discussion, Canadians have no way of knowing. Sometimes, the only way to judge the quality of a decision is to know how they got to that place. As the saying goes, you do not want to know what goes into a sausage because you would never eat it; the same cannot be said for policies. That is on the other side of the ledger. We need to know what goes into a policy discussion so that things are not depicted as black and white, just operating out of the blue. As you know, life is filled with shades of grey. We in the media end up reporting on the black and white, and that is one of the reasons people are tuning out, and that goes back to some of my academic work. People are saying life is not like that. Life is not just this answer or that answer. It is the stuff in between, and we are not getting that.
Mr. Rubin: I will add the example at hand, namely, policy advice in terms of Bill C-2. Where is it? Where are all the private consultations and the deliberations that went on behind the scenes? It would help you and us to intelligently understand the bill.
I happened to go to a technical briefing when the bill was first introduced. I found some of the explanations very confusing at the time and not forthright. That is a prime example right here and now of what is wrong.
Senator Stratton: In the private business sector, in determining the direction your company will take, say, the discussions can get off the wall, as they should, as you well know. Are you not afraid of creating chills by allowing that kind of freedom of thought and searching for the appropriate answer?
Mr. McKie: Yes, I am. It is a scary thought to know that people would have access to all your discussions. One would censor themselves. What is the alternative? What is the trade-off? If the trade-off is public safety and public interest, maybe that is something we must live with.
Senator Stratton: I think you would be stuck with a pretty good chill there.
Mr. McKie: Yes, that could happen.
Senator Stratton: I do not think any government or business would want that.
Mr. McKie: That is where certain exemptions will and do kick in.
Senator Day: It is refreshing for you to tell us how it really works. We have talked about this theoretically for some time now. Some of your answers have prompted the questions I will be asking.
The fundamental aspect of this is that you have right of access under certain conditions to government institution records.
You are quite right that the definition of record is very important. Bill C-2 is changing that definition under the Access to Information Act. ``Record'' means any documentary material, regardless of medium or form. The existing definition reads as follows:
``record'' includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine readable record, and any other documentary material, regardless of physical form or characteristics, and any copy thereof;
The portion of that definition that reads ``and any other documentary material, regardless of physical form or characteristics'' is similar to the proposed new definition — ``record'' means any documentary material, regardless of medium or form — which is, therefore, is restrictive. It is considerably less than what appeared in the first definition. In other words, the definition in the proposed amendment is one part of the current definition.
It is important to get that on the record. You have made the point already. I did not want to interrupt the flow of discussion, but it is quite restrictive compared to the existing law.
Mr. Rubin: You should look at that part of Bill C-2 in conjunction with clause 163 on pages 123 and 124. If you cannot accomplish it in the proposed legislation, you accomplish it by regulations. You prescribe limits in respect to the format in which records are to be provided, and you prescribe limits in respect of records that can be produced from machine-readable documents.
There are implications to doing that because if you have narrowed in the documentary evidence definition your idea of records — and I think the courts will acknowledge that documentary means less — then you have taken on regulations and given civil servants behind closed doors the ability to say that Dave McKie is not going to obtain his database for clinical trial investigations and so on. Not only is it raw data, but it may be in a machine-readable format that does not allow for it to be extracted immediately. Therefore, we will say no.
Senator Day: I thank you for bringing this to our attention. You spoke with respect to the regulations that can be generated. That is at page 124 of the bill. That flows from a new right that appears to be granted, which will be influenced by new regulation, as you indicate.
On page 117, clause 143 purports to add a new section, (2.1) to section 4 of the existing act. Proposed new section (2.1) states, in part, ``and, subject to the regulations'' — that is what we just talked about — ``provide access to the record in the format requested.'' Therefore, you can request in a format —
Mr. Rubin: Subject to the regulation.
Senator Day: Yes. They giveth and then they taketh away. That is something we will want to look at.
I should like you to look at this proposed new section. You talked earlier about the purpose and importance of the clause, as well as creating some obligation on the government. Does this give you some comfort? Proposed new section (2.1) reads as follows:
The head of a government institution shall, without regard to the identity of a person making a request for access to a record under the control of the institution, make every reasonable effort to assist the person in connection with the request, respond to the request accurately and completely...''
Does that reading give you some comfort? Will that help you?
Mr. Rubin: Not particularly. With respect to the words ``reasonable effort'' —
Senator Day: The wording is, ``every reasonable effort.''
Mr. Rubin: I am sure one can document any situation you want, but ``reasonable'' has implications, even in the courts. It means not your best effort. That is where I have a problem with this proposed new section.
If the intent of this was to put in what I have been talking about, a more proactive service, they have not addressed the delivery. They have not improved the record management system or given more force to the access community in terms of how they can deliver the service to the public. They have added new exemptions that will complicate the lives of those in government by creating more work and more delays.
How can one call this section a meaningful section, particularly without a purpose section that says you have a statutory obligation and a right to know? Your service is not because you feel it is reasonable; there is an obligation and a service to perform, a duty to document and a duty to provide that service.
Senator Day: Mr. McKie, do you have any comment regarding that wording — that is, ``make every reasonable effort to assist the person in connection with the request''?
Mr. McKie: People will always insist they make reasonable efforts, but it is a matter of definition. The spirit of the act now is such that you should always make a reasonable effort, but people do not, for whatever reasons.
Senator Day: That must be part of the reason for this proposed new section.
Mr. McKie: Maybe. I also see it as an escape hatch, where people can say, as they have said to me, I have taken my best shot and that is all I can do.
Senator Day: It says ``every reasonable effort to assist...with the request, respond to the request accurately and completely...'' Would you be more comfortable if the word ``timely'' were in there as well?
Mr. McKie: That would help, yes.
Senator Day: I am just following from your discussion earlier of how responsive they have been in the past.
Mr. McKie: ``Timely'' again is one of those elastic terms. What does ``timely'' mean? We as journalists are always asking when such and such a policy will be announced, and the politician will say ``in a timely manner.'' What does that mean?
Senator Day: Lawyers will say ``in due course.''
Mr. McKie: That is my only concern with that.
Mr. Rubin: I would word it this way: ``The act provides a right to full and timely proactive disclosure and to widespread transparency for greater accountability.'' Let us not beat around the bush. It is not just a service. It is more than a service. I think that is more to the point.
Senator Day: We received your material, Mr. Rubin, and we will study it. We appreciate your suggestions. We have had a chance to talk about some of them here today.
Let me turn to another area, and that is what happens in practice with respect to the obligation of a head of a department when a request is made. The reason I want to look at the current practice is to determine whether we need to fine-tune it in order to allow it to work better. Mr. McKie, you talked about the 30-day requirement in section 7 of the ATI, which talks about within 30 days after the request is received the head of the department gives written notice to the person who has made the request as to whether or not he will allow access and (b) says that if access is to be given, give the person who made the request access to the records. Are you saying that you do not get it within 30 days?
Mr. McKie: We get the letter, but not much else.
Senator Day: Does the letter say you can have access?
Mr. McKie: Yes, when they have the material you can have access to it, but it will be an extra 60 days or, increasingly, 90 days.
Senator Day: Have you made the argument with them that it says within 30 days you are supposed to get access to the material?
Mr. McKie: Yes, and they say they have all the legitimate reasons for extending this. Third-party consultation is really one of the major reasons they cite.
Senator Day: There is provision for extension of time, but this triggers what you were saying. They do not like the Information Commissioner to get involved, but any extension on the 30 days a notice must be sent to the commissioner, so the commissioner is involved — any extension of time. Does that not help you?
Mr. McKie: Not necessarily, because I believe the mindset of the commissioner is always going to be very reactive and that is that you have to complain. They just do not have the staff to be that proactive. They would never get anything done if they reacted to every situation like that. Perhaps it would help if there were an accompanying obligation for some kind of interim release. In other words, the third-party stuff is holding up a certain portion of the records, but give me what you have within 30 days. I believe that would go a long way.
Senator Day: You said that informally that is what you negotiate in terms of a partial release.
Mr. McKie: That is what I do as part of being my own advocate.
Senator Day: That is helpful, because there is a clause there now, but maybe it is not tight enough. It is a pity that we cannot ask the Information Commissioner to clarify this process, but we have already had him here.
Representatives from the Office of the Information Commissioner who did appear indicated to us that there is a need for a much broader amendment process than the few amendments that appear here. They feel there are far too many restrictions and therefore they advocated not proceeding with the portions of the Access to Information Act in this bill. They said they would much rather wait and do this in the broader picture — in other words, leave things the way they are. What is your position on that?
Mr. Rubin: I do agree that one should delete most of the special extra secrecy provisions, which is the majority under the access to information section. To maintain momentum, like the purpose clause I was suggesting or the tightening up of records, there are few things we could deal with now. There is a section to the effect that officials can hide their perks and salaries, and so there is a section that talks about deputy ministers and their remuneration and so on.
Even if we delete the most offensive parts of Bill C-2, we must still content with a whole swath of disclosure or non- disclosure things, and the whistle-blowing bill or other things, which do a disservice to openness. When the poll section is not under the access act, or the contract section is not under the access act, it gets confusing. Perhaps that is the intent. These things should all be part of a disclosure package.
Just to give you the idea, on page 92, clause 106, it says that the Governor-in-Council may appoint persons to the following positions and fix their remuneration. I would add to that the following: ``...and disclose their exact remuneration.'' The Conservatives in particular, at least provincially, and the provincial acts do have this, say it is time and do legally allow the details of certain benefits, perks, severance and so on to be released. We should be able to get the will and attitude changed through the simple means of disclose your own and then you will disclose more. That is my way of looking at it. A simple amendment like that, even under the current act, could be useful.
To answer your main point, I do see this as very damaging to the bill if it stands as is; however, the analysis and implications of this have to be clear.
Let me put it to you this way: Back when Mr. Harris introduced the common sense revolution in Ontario, introduced Bill 26, which was an omnibus bill like this one in many respects — it had sections that dealt specifically with the freedom of information and protection of privacy, added exemptions, jacked up fees. I do not think the Ontario act, as a frequent user there as well, has ever recovered from that. That is what will happen if you do this here now too.
The Deputy Chairman: Mr. Rubin, could I ask you please to try and shorten your answers a bit.
Mr. Rubin: The only other point I was going it make is that Mr. Harris' Bill 26 had other implications for disclosure in other sections of the bill, just like Bill C-2 does. It is a shame that people have not been forthright or have hidden from these sections in other parts of the bill. They should be a group together because they all relate. Why keep lobbyist meeting records when you do not keep records on other kinds of meetings? Where is the consistency and disclosure?
Senator Day: Have either of you have had any experience with respect to the Canada Elections Act and the disclosure provisions under that act? We have been informed that Bill C-2 will bring the Access to Information Act into play with respect to the Canada Elections Act, so the Chief Electoral Officer is concerned that he has two pieces of legislation and sometimes inconsistencies with respect to disclosure. Rather than amending the Canada Elections Act for election matters and keeping it all there, now we have the Access to Information Act and the Canada Elections Act with disclosure provisions.
The Chief Electoral Officer's particular concern — and I wish to have your comment — was the possibility that election documents could now be subject to disclosure, and that gets into privacy issues. That was the discussion we had when the Chief Electoral Officer was here. Have you had any experience in that area?
Mr. McKie: No.
Mr. Rubin: I have applied for certain records, or attended there and seen certain election records. If the Access to Information Act will not take the back seat, and it is a predominant notion as a right, and the Chief Electoral Officer is now one of the officials covered under the proposed amendments — certain other officials are not, like the parliamentary budget officer and the conflict of interest and Ethics Commissioner should be — then you will have to deal with the dual situation. That is what is called accountability. It does not mean that certain things will not be exempt, but it may mean, particularly if you are appointed by both Houses, as I understand for quite a period of time as a Chief Electoral Officer, your office too should have certain records open. It does not mean records that are sensitive records in terms of the whole voting process. I know he was referring to the chit system in the Gore/Bush situation and so on. I do not know if that kind of thing does a disservice. I think it should be taken on a case-by-case basis, but you do just boot the Access to Information Act out of this new area like other agencies are saying. I believe he was genuinely trying to work out how this would work. That is positive.
Senator Cowan: I was going to explore the business about security as a reason for not disclosing, and also the policy discussions that Senator Stratton spoke about. Those areas have been covered, so I will defer.
Senator Joyal: You gentlemen testified at the House of Commons. Were any of the suggestions you made there received and introduced as amendments in the legislation?
Mr. Rubin: A small, positive one was introduced in the regulations on page 207. It is the contract situation where you could disclose contracts.
Senator Day: Is that at page 207 of this bill?
Mr. Rubin: Yes. Clause 312 says that ``the Governor-in-Council may make regulations.'' I would change that to ``shall make regulations.'' I consider part (e), on contracts, to be an advance. Under (e), I would add the words ``immediate, within 10 calendar days.'' Then that piece would read ``requiring the immediate, within 10 calendar days, public disclosure of basic information on contracts entered into by Her Majesty for the performance of work, the supply of goods or the rendering of services and having a value in excess of $10,000.'' That was one of the few additions.
Some play has been made that adding in draft regulations and taking out the 15-year exemption was an advance. I do not think it was, given the working papers and auditing notes. Unfortunately, I do not think they listened too well. I do not see very many substantive changes here. It is very disappointing, as I said in my opening remarks, that agencies that get such sweet deals like AECL do not bother to come in front of you — maybe they were invited — to give a greater degree of accountability. We are opening ourselves up to question, and they should as well.
The Deputy Chairman: Thank you very much. I have just a short question just to wrap up, if I may.
Mr. McKie, in response to Senator Cochrane, you noted that you often compromised with government departments in order to get some information rather than none. With that spirit of compromise in mind, do you see a compromise available in regard to clause 150 on page 120 of the bill? It concerns the secrecy of audit records. I should point out that when he was before us yesterday, the Access to Information Commissioner strongly suggested that clause 150 be removed completely from the bill.
Mr. Rubin: If you were listed off on proactive disclosure legislation, you should make it very proactive that audits are immediately releasable because they do play such a significant role. If you were to leave in a clause, put it in a positive sense, which it is not there. It could then stay; otherwise, it should be deleted. Recognizing the importance of the auditor or that process is useful.
Mr. McKie: I have nothing to add.
Senator Stratton: This is on an entirely different topic, if I may.
I wanted to bring to the attention of the committee that the committee has received a letter from Mr. MacKinnon, National Director of the Liberal Party of Canada. It is addressed to Mr. Lafrenière, as I understand it. You may or may not have it, madam. If you do not, my apologies. That is why I am bringing it to your attention. If we have not seen it, could I suggest that the letter be distributed? I think it should be so that we are aware of it. It gives both sides a chance to react. I will read it briefly; you can take a look at it so you have the opportunity to respond.
Senator Day: I find it strange that the letter should be coming from you when we have not had a chance to see it.
Senator Stratton: That is why I am suggesting to you that it should be distributed so that we are all aware of it.
Senator Day: Why do not we take our break now and let us see this letter and then we will deal with it immediately thereafter.
Senator Stratton: I think we should deal with it immediately because it is a continuation of the issues that we have been dealing with.
The Deputy Chairman: Senator Stratton, I would suggest that you raise that at the beginning of this afternoon's session.
Senator Stratton: Yes. I want to be fair to make sure that everybody knows. It is just that he is refusing to respond.
The Deputy Chairman: Senator Stratton, thank you very much.
Gentlemen, thank you for your forbearance. You are excused and we are excused.
The committee adjourned.