Proceedings of the Standing Senate Committee on
Social Affairs,
Science and Technology
Issue 29 - Evidence, March 9, 1999
OTTAWA, Tuesday, March 9, 1999
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-208, to amend the Access to Information Act, met this day at 10:05 a.m. to give consideration to the bill.
Senator Lowell Murray (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we are meeting today to begin our study of Bill C-208, to amend the Access to Information Act.
[Translation]
May I point out that Mr. Gérald Lafrenière from the Library of Parliament is sitting on my right. He's the one who prepared the background notes you have in front of you.
[English]
We have three groups of witnesses today, beginning with the sponsor of the bill, Ms Colleen Beaumier, MP.
This private member's bill was introduced in the House of Commons in September 1997. It went to the House of Commons Standing Committee on Justice and Human Rights in April 1998, and was passed by the House of Commons on November 16, 1998, after having been amended at the committee stage.
Unusual for a private member's bill, this bill went through all stages and was passed in the House of Commons. Even more unusual, if my reading is correct, it received unanimous approval by the members of that fractured and highly partisan body, the House of Commons. Congratulations, Ms Beaumier.
Colleagues, I will not tell you anything about the bill, since that is why we have the sponsor here. Ms Beaumier is the member for Brampton West--Mississauga. She is a social worker by profession and has been in the House of Commons since 1993. She has also been comptroller of a trucking firm and a community member of the Ontario Board of Parole.
Ms Beaumier, I invite you to say a few words about your bill and then to answer questions. I would note also that, if you wish, you may come back here tomorrow after we have heard all of the witnesses. You have the right to have the last word and to reply to any questions that senators may have at that time.
It is a pleasure to welcome you here, and I invite you to speak to your bill.
Ms Colleen Beaumier, Member of Parliament: Honourable senators, this is one of life's moments when you feel the need to pinch yourself to see if it is real. Thank you for having me here today.
In 1983, Prime Minister Trudeau proclaimed the new Access to Information Act. Despite the fact that Canada is one of only a few countries throughout the world that have such an act, government bureaucracy has sabotaged the intent of the act. Examples of such instances are numerous, and it is unnecessary to list them again. Canadians have been lead to believe, owing to testimony at the Somalia and Krever inquiries, that it is not uncommon for officials to lose, destroy, or tamper with documents. Those are but two of the better known examples.
Many people claim I am taking on the civil service. On the contrary, Mr. Chairman, I believe that Bill C-208 gives support to the civil service. I worked as a public servant in one of my many roles before entering Parliament, and I took a great deal of pride in the work I did. I resented scandals. I resented talk of the members of the civil service not carrying their weight, because I worked hard, as do most civil servants. Only a few select individuals are irresponsible, but they have tarnished the entire public service. Bill C-208 identifies the perpetrators and therefore addresses the issue of accountability.
There are not many things that we as politicians, and especially as backbenchers, can offer our constituents, but we can strive to give them accountability.
I feel that the majority of the public service is conscientious and would welcome these sanctions.
The time has arrived for legislators to ensure that actions with the intent to deny access to information are penalized. Currently, section 67 of the act states:
(1) No person shall obstruct the Information Commissioner or any person acting on behalf or under the direction of the Commissioner in the performance of the Commissioner's duties and functions under this Act.
(2) Every person who contravenes this section is guilty of an offence and liable on summary conviction to a fine not exceeding one thousand dollars.
I have not been able to find any instances in which this penalty has ever been imposed.
Bill C-208 is about protection of public records and, more important, what the destruction of public records represents to Canadians. This bill will strengthen democracy and accountability in Canada by offering the measures and recourse necessary to prevent further occurrences of document tampering and destruction.
Manipulation of documents in this manner is not an acceptable operating principle. The issue of increasing the accountability of those denying access to information through the behaviour outlined in Bill C-208 is essential. Accountability it the essence of Bill C-208. This bill is the insurance policy of political integrity. It will forge better public trust and assurances.
Canada is only one of a dozen countries in the world with access-to-information legislation. Bill C-208 demonstrates the Canadian resolve to offer access to information in an accountable and open manner. Strengthening the Access to Information Act by enacting Bill C-208 will serve to illustrate that Canada's approach in matters of this kind is unique, or almost unique with respect to most of the world.
Bill C-208 provides for prosecution of an individual by way of indictment or summary conviction. This legal flexibility permits greater possibilities for prosecution, therefore making the Access to Information Act more effective. Bill C-208 strengths democracy in Canada. Individuals scheming to manipulate records in order to keep them from public access need to be called to account for their actions. That is the basis for Bill C-208.
Passage of this legislation will be to Canada's credit and will be remembered as yet another instance of the Government of Canada's endeavouring to protect and benefit Canadians.
Bill C-208 began as a private member's bill. The Department of Justice was opposed to it. Originally, I had asked for a maximum of up to five years in prison and up to a $10,000 fine. With some reluctance, I accepted a compromise. We reduced the sentencing provisions. It was to be an indictable offence; however, we turned it into a hybrid offence. Thus, it can be prosecuted under an either/or scenario.
I must tell you that I am usually very stubborn. It is not easy for me to compromise on things in which I believe strongly. However, I felt that the passage of this bill was extremely important. It is not the be-all and end-all, since we know that the Access to Information Act has to be overhauled, but it is a beginning. I am hoping that it will be the impetus to have the act overhauled.
The vote in the House of Commons was 203 to 0 in favour of the bill. While I appreciated the support of all my colleagues in both the opposition and the government there, I hope that honourable senators will also give this bill speedy passage through the Senate.
Senator Cohen: I do not think there is anyone who could be against the intent and principle of this bill. I understood you to say that in the civil service it takes only a few people to spoil it for the rest of us, and we in the Senate understand that completely.
However, I am concerned that those people who refuse to destroy public documents, or refuse to get involved with any aspect of their destruction, have no form of protection offered to them in this bill. Do you think there should be another amendment to make it an offence to retaliate against someone who refuses to commit this type of act?
Ms Beaumier: In my first session of Parliament, I tried to bring forward whistle-blowing legislation. The public service sector was very much in favour of it. However, I am not sure anyone in the government was. As a result, it was deemed not to be votable. Certainly, there needs to be a lot more done to the Access to Information Act. However, this is probably not the bill in which we can do that, since it deals mostly with sentencing.
Senator Roche: First, Mr. Chairman, I should like to welcome Ms Beaumier and congratulate her on this bill. Any politician who can get 203 members of the House of Commons to agree to vote on a bill must have something going for her. Perhaps Ms Beaumier could give us a few lessons about how to get legislation through. In any event, she has my full support for this bill.
Ms Beaumier, you spoke about officials and their penchant for secrecy, or at least for not providing information to its fullest. You also referred to the need, in approaching this issue, to strengthen democracy, to strengthen accountability and to increase our access to information. I want to concentrate on your evaluation of how officials approach these questions. Are there some officials who perhaps get a little carried away with their position or with their power to suppress legitimate information?
That question is in my mind at the moment because of a bureaucratic error that is now being made in the Department of Canadian Heritage. Certain officials there have, for some unfathomable reason, ruled that the information-dissemination system employed by Catholic newspapers in our country is wrong. They say that having one person employed to gather information and disseminate it to Catholic publications in various regions counters a ruling that they insist be followed, namely, that material be original in each publication. This is occurring at the same time as the government is trying to help Canadian publications by another bill that is before the House.
That is as an example of an ill-conceived bureaucratic action that, in this case, if it were allowed to stand -- but I am confident that the government will come to its political senses and not allow it to stand -- would demolish the Catholic press in Canada. That would be the result of that bureaucratic action, which, I am sure, most politicians have not even heard about. Indeed, I would be surprised, Ms Beaumier, if this matter has come to your attention.
Ms Beaumier: No, it has not.
Senator Roche: I am drawing it to your attention now in an effort to support your bill.
Having said that, may I as you, Ms Beaumier, if you were led to put this bill forward in your name by an evaluation that you yourself had made about the need to curb excessive bureaucratic actions that have a deteriorating effect on the legitimate development of information and public opinion in this country?
Ms Beaumier: Honourable senators, I think I may be one of the new emerging breed of politicians who believe that the public can accept it when you make mistakes, although they would like acknowledgement of an error having been made. I do not believe that the public expects their bureaucrats or their politicians or their senators to be flawless. When documents are destroyed, it is usually to cover up for actions of an individual. Given the facts, Canadians can make informed decisions by themselves.
I am sorry that the events you are talking about have not been brought to my attention; certainly, the danger of this action being concealed, including the individual who is doing it, together with any documents, is that, if it comes before me as a politician, I cannot make an informed decision. If I do not know where these statements are coming from, and exactly what has prompted them, how can I make an informed decision? If I cannot make an informed decision, and I make an incorrect decision, I cannot be accountable to my constituents.
Ultimately, this is about accountability. It is about accepting the fact that we have made errors, and about dealing with them head on, instead of trying to have covert operations on everything that happens within government. I do not know how that relates to the events that you discussing now.
Senator Roche: Thank you for your response. It relates, I would say, to a general democratic principle that we ought to be providing as much access to relevant information as possible, in order to strengthen our society. It seems to me that that is the core of democracy. I would be happy to write to you and give you the facts of the incident I alluded to a moment ago, thus seeking your good offices in overturning this terrible bureaucratic decision that has been made.
Senator Butts: Ms Beaumier, is a document considered mutilated, if one word is crossed out?
Ms Beaumier: I suppose that would depend on the word. For example, in the report on the Meme breast implants, if you crossed out "unsafe," then that would be pertinent. In other words, the document would be mutilated if crossing out the word changed the intent.
Senator Butts: That is assuming that you know which word was crossed out.
A little gnawing fear I have is that, if a lowly bureaucrat is given orders from above to do something, does he get punished for obeying orders? It is the old story that you hear in the military every so often, where the defence is, "I was just doing what I was told." That was the occasional reply at the Nuremberg trials. "Why should you punish me for doing what I was told?" Is there some protection for that bureaucrat, who is just doing what he is told?
Ms Beaumier: The civil service is not the military.
Senator Butts: It is close to it.
Ms Beaumier: I am not so sure. It is very difficult for me to be able to give you an answer to that, because, as you can see, I am quite opinionated and not intimidated easily, and I have refused to do things in the past and have not been punished for it. I understand what you are getting at. However, I would think that the threat of going to jail would deter someone. It also indicates that anyone who orders a document to be destroyed is liable to punishment. I would think you would be a little more cautious about ordering people to destroy documents.
[Translation]
Senator Ferretti Barth: I am very pleased with the amendment you made to Bill C-208. I strongly support the recommendation of my colleague, senator Cohen, to protect the people who refuse to commit this offence. I'm not fully convinced that the maximum penalty is right. For an indictable offence that compromises the well-being of the public, the maximum penalty should be a five-year term of imprisonment and a $50,000 fine. For a summary conviction, the penalty will be a six-month term of imprisonment and $5,000. You have to pay for such crimes.
[English]
It scares people. "If you do this, you will see what will happen to you." This is too easy.
[Translation]
There is no shortage of money right now. Money can be found anywhere. You just have to knock on the right door. It will be a breeze finding ten thousand dollars and getting out of jail. The same can be said for five thousand dollars. These are just token penalties you are recommending for such offenses.
[English]
Ms Beaumier: Senator, where were you when I needed you?
Senator Ferretti Barth: Tell me and I will come.
Ms Beaumier: When I was before the Justice Committee, they asked if I would consider changing the sentencing provision, and I said I would be delighted to increase it. However, in order to get this through, I was willing to compromise. I acknowledge that it is a compromise, but at least it is a start.
I think what is important about this bill is that it is a wake-up call to say that this act needs to be changed. Prior to this, although we had the act, violations were not punished. The act was never enforced. By making this a hybrid offence, so that it can be indictable or not, depending on the seriousness, we give it more strength. However, I do agree with you.
[Translation]
Senator Gill: We know that even well-informed people now have a hard time obtaining the information they need from an agency, a Crown corporation, a government department, et cetera. It is not easy to trace people. I am not very familiar with the Access to Information Act. Is there someone in each department or somewhere who is responsible for providing information?
[English]
Ms Beaumier: I am not sure how each department works. I would think, on sensitive issues, there is probably someone who makes that final decision. However, the ultimate enforcement of the Access to Information Act is through our Information Commissioner.
The Chairman: Senator Gill, in a few minutes you will have the occasion to question Treasury Board and Department of Justice representatives, who will tell you exactly how this is done. I think they will tell you that in each department there is an access to information officer or section responsible for responding to these requests. There is probably a central clearing house as well.
Ms Beaumier: Trying to get information is also a discouraging process because you are told that you cannot gain access to documents, even though you know that they are not classified documents. It is difficult to obtain information. The few times that I have gone after something, I was a little discouraged and perhaps gave up too soon. However, this is the result.
The Chairman: We will also have Mr. Rubin before us. He is the true expert. Certainly, he is the most experienced in putting forward access to information requests.
Ms Beaumier, we always accord the privilege of returning for the last word to the bill's sponsor, if you want to come back tomorrow afternoon. Meanwhile, I thank you for your testimony this morning.
I now wish to invite representatives of the various government departments to come to the table.
Mr. Richard B. Fadden, Assistant Secretary, Treasury Board Secretariat, Government Operations Sector and Canada Infrastructure Works Program: I am here to speak to you on behalf of the Treasury Board Secretariat, both as the employer for the public service and as the institution that supports the president of the Treasury Board in his role as the designated minister under the Access to Information Act. In that role, the president is required by the act to prepare and distribute to government institutions directives and guidelines, basically the means for making the act operational.
I can easily summarize our position by stating that we support this bill. On behalf of my minister, I wish to congratulate Ms Beaumier for proposing this amendment to the Access to Information Act and on her efforts to see it through.
Most people would probably prefer to think that this type of penalty is not necessary. They feel that no one would behave in the manner it prohibits, or that other disciplinary measures would suffice. However, we have, unfortunately, seen a few examples where this is not always the case. The principle of the Access to Information Act is that government information should be available to the public, and my minister and his department stand firmly behind that principle.
[Translation]
The people who drafted the legislation were aware that it would probably not get everyone's enthusiastic support, but no doubt they never dreamed that some would go as far as destroying or altering records to deny the public's right of access. That might explain why the legislation did not provide penalties for such behaviour.
[English]
The passage of this bill would be the catalyst to better informing the public service about their responsibilities under the Access to Information Act and about the proper application of the National Archives records disposal schedules. Coincident with the passage of the bill, should the Senate pass it, we expect to issue directives to the institutions covered by the act to ensure that all public servants are aware of their amendments and the obligations under it. We anticipate that a suspected contravention of this section would be treated in a similar fashion to a suspected theft or destruction of property. In the appropriate circumstances, this would mean an immediate response by management and/or the law enforcement authorities to halt an ongoing destruction of records and to initiate a longer-term investigation.
[Translation]
This bill provides significant maximum penalties for anyone who attempts to deny right of access to information under the Act. It also includes strong support procedures for public officers who try to blow the whistle on such behaviour. The bill states clearly that the right of access to information must be taken seriously.
[English]
As the employer of the public service, I can tell you that at Treasury Board we do not think that this bill will have any significant impact on the vast majority of public servants because they would never entertain the thought of falsifying or destroying records in order to deny the right of access. We have a firm belief in their public service and in their high ethical standards. Of course, this section cannot be fully assessed until it is applied -- something, I am sure, none of us would like to see. The greatest success of this bill would be that it would act as a deterrent to anyone who might contemplate this behaviour, and its provisions would never be applied.
Mr. Brian Jarvis, Legal Counsel, Justice Canada Public Law Policy Section, Policy Sector: Honourable senators, I believe it is safe to say that one apparently simple but nevertheless absolutely crucial requirement when contemplating the amendment of an existing piece of legislation is to know exactly what problem one is trying to fix. In this case, as Ms Beaumier has said, the problem is quite easy to state. The Access to Information Act currently contains no penalty for people who destroy or alter documents in order to thwart someone else's right of access. As Ms Beaumier also said, her bill would correct this in a straightforward way and, more importantly, her bill would further accountability. Her bill would close the gap in relation to accountability in that, if her bill is passed by the Senate, a person would be punished for destroying or altering a document in order to thwart the right of access. As Mr. Fadden has said, we hope that this will be a deterrent. It might not actually be applied often.
In both his 1995-96 and 1996-97 annual reports, the previous information commissioner recommended that an offence -- and, this is essentially the same as what is contained in this bill -- be added to this act. From another perspective, the Supreme Court of Canada stated that this act is crucial to our democracy because it furthers accountability by allowing people to gain access to records in order to check up on the government.
The Department of Justice supported the goal of Bill C-208 in its first reading form, but we had certain specific concerns about a couple of points. These concerns were expressed by the Minister of Justice's parliamentary secretary during the second reading process. At the House committee stage, we suggested a number of amendments to the bill as it was then drafted, and Ms Beaumier was good enough to agree to our suggestions. The House committee also suggested that the bill add better coverage in relation to the situation of a senior civil servant telling a more junior one to do the prohibited acts. As it is now drafted, the Minister of Justice entirely supports Bill C-208. We second Mr. Fadden in congratulating Ms Beaumier on her bill.
The Chairman: Mr. Fadden, how long have you been in the public service?
Mr. Fadden: Approximately 16 years, Mr. Chairman.
The Chairman: You therefore have some experience in the federal public service before the Access to Information Act came into being and since. Are you in a position to say whether there has been much change within the government in the way records are kept since the advent of the Access to Information Act?
Mr. Fadden: I think I can in a general sort of way, Mr. Chairman. I have two general comments.
I think the act has a significant effect on how departments organize information. This act is of absolutely no use if the information being sought cannot be retrieved. It seems to me that, since the act's passage, the various government departments have become better organized to retrieve information, and they keep a great deal more of it.
A complicating factor would be the advent of computer-generated information. At one time, it was thought that this would eliminate paper. In fact, it has had quite the contrary effect. We now have more paper and more electronic information than we can deal with.
Again, we have the classification and retrieval problem, which underlies the government's basic capacity to make the information available. We may have so much information that it is difficult for people to articulate the need that they might have for it.
From our general perspective, we think information is being kept in a more accessible form than it was. We have a challenge in dealing with electronic information, as do both the public and private sectors generally, and, conceding Ms Beaumier's point, we probably have some room for ongoing improvement.
The Chairman: Have you seen any evidence from public servants in particular that the act creates a chill? Knowing that their recommendations and their views might well become public, are they inclined to pull their punches or be less candid or forthright than they might otherwise be, or, indeed, to resort to a verbal communication instead of a written communication of their views? Is there any evidence of that?
Mr. Fadden: That is a very good question. I think the act to some degree takes this into account when it sets out a number of exemptions. Most public servants who deal with information on an ongoing basis will tell you that they recognize that advice to ministers and things of this nature are protected. By and large, I think people accept that if the system is to work, you need to be pretty frank in conveying advice to ministers.
On the other hand, the effect of the Access to Information Act in some ways is very similar to the effect of having a free press. I am sure that you have heard that in Ottawa there is what is called "the Citizen test": Will I do something or authorize something that will make me look like a fool on the front page of The Ottawa Citizen? If the answer is "yes," people take a deep breath. I suspect in some cases that the same thing happens with access to information considerations.
I reiterate my initial comment. The act provides for reasonable exemptions, and people who deal with these issues on a regular basis acknowledge that. They do not really pull their punches when it is critical for ministers to have information and advice.
The Chairman: What about the way notes are taken at meetings? If you had occasion to look at the kinds of notes that were taken by public servants at meetings before the act came in and after, would you find any difference in the detail or identification of who said what, et cetera?
Mr. Fadden: I do not think so, Mr. Chairman. I am not an expert on the details of the act, but, rightly or wrongly, most people view their meeting notes as being personal, and they tend to be fairly up front in what they put on paper.
The Chairman: They are accessible.
Mr. Fadden: They are. My personal experience is no, in respect to your particular question.
I have no doubt that there are occasions when people have thought about it. I believe that people make a judgment call depending on what they are dealing with. If something is particularly sensitive and it is not absolutely necessary to put something on paper and there is no requirement in law or any other way, people may not. That is not telling you anything, Mr. Chairman, that you do not know.
The Chairman: If you think this next question is unfair, do not answer it. Do you think that the advent of the Access to Information Act has been a positive factor in the governance of this country?
Mr. Fadden: Absolutely, Mr. Chairman. I think all very large institutions, of which the government is an example, have a tendency to try to protect themselves a little bit. They try to do this through a variety of means. One such means is to have a sense of how information about it goes out. The act has had the effect of opening up the government. As I think has been said in the media, in the House of Commons, and I am sure in the Senate on occasion, this is all to the betterment of our democracy. I would say yes, unequivocally, Mr. Chairman.
Senator Butts: Perhaps I am just exposing my ignorance of the act itself, but I am wondering about the new agencies that we seem to be creating on a regular basis. How do they fit in relation to this bill?
To give you a specific example, I was at one time, in another life, a chair of a regional health board, under provincial jurisdiction. I had requests from reporters or media people for minutes and budgets and things like that. Unfortunately, I was so busy that, by the time I got around to the request, the reporter had often disappeared. Would I have to pay this fine today?
Mr. Jarvis: Senator, I am not sure I understand. You did not destroy documents or alter them.
Senator Butts: I am the only one who knows that.
The Chairman: She withheld it inadvertently.
Senator Butts: It takes a lot of staff and money and time to dig through all this stuff. If you are a small agency in the health care system, you would have to do it yourself, and I just did not have the time to do it.
The Chairman: They cannot prosecute you for anything you say here, senator, so if you have any confessions, you may make them.
Senator Butts: I am beyond that.
I am curious, because this may hinder people from volunteering on the boards of small agencies. I would think twice now if I knew about this. Ms Beaumier is shaking her head.
Mr. Jarvis: You have touched on a slightly different issue. Yes, answering access requests can and does require time. But no, given what you have described, the offence that Ms Beaumier's bill would create would not cover that situation.
If you were with an entity that was subject to the federal access act -- and I think what you are talking about would not have been subject to it -- and you simply did not respond, then there are procedures for that in the Access to Information Act. The person would complain to the Information Commissioner about you not responding, and you would have to speak to the Information Commissioner about why you did not respond. Other than that, you would not be touched by this offence.
Senator Butts: This was under provincial jurisdiction. I am wondering whether this is a deterrent to mutilating documents or a deterrent to volunteering to do something.
Mr. Jarvis: I hope not. I should stress that this does not just cover acts of destruction, falsification or concealment, but those acts must be connected to the intent to thwart someone's right of access. Based on what you have described, I do not think there would be any connection between that and this offence.
The Chairman: I would not say that the commissioner is lenient. However, my recollection is that the commissioner would give several warnings before you found yourself facing a warrant or a subpoena, and several reminders from him about an ATI that was overdue.
Senator Gill, who had to leave, wanted to know about how the government is organized to deal with ATI requests in departments. Would you like to address that while you are here, Mr. Fadden?
Mr. Fadden: It varies a little bit from department to department. However, the act is very clear about the obligations of the deputy head. As is the case with most administrative matters in the Government of Canada, the deputy head is the first level of responsibility. Just about every department, as you have suggested, Mr. Chairman, has created an access to information division or section headed up by, I would say, a middle-ranking public servant whose sole duty, in most cases, is to process access requests through those departments and to consult.
It is also fair to say that in almost every instance a department would have in place a variety of procedures to ensure that any particular access request that comes in is dealt with by the various parts of the department or the government that might be touched by it. Given the complexity of the issue, you might find it being referred to the Department of Justice, legal counsel or a variety of other sources.
I would like to leave you with the thought that it is not a mechanical process in that the act requires some severing and exemptions. It also provides the agency or deputy head with an opportunity to make those decisions as to whether or not everything can be issued.
It is both a fairly challenging administrative role as well as a substantive role that involves applying both the substance and the letter of the access law. In various departments, deputy heads have delegated one or two levels down the authority to release. In other departments, the deputy head does it himself or herself.
The Chairman: The ATI request goes to the department and comes out of it. Is there a central clearing house?
Mr. Fadden: No, there is not. However, in a couple of instances, because a particular issue might be of interest to a large number of departments, my department might ask access to information coordinators to let us know what is being sought so that we can ensure that the left hand has some sense of what the right hand is doing.
The Chairman: Does the department know who originates the request? Would you know if I originated the request?
Mr. Jarvis: The access office at Justice would know because your name would be on the access request. If you were requesting material that I produced, I would not know and I would not be told. I would not be able to find out. If I asked the access officers to tell me, they would not tell me.
The Chairman: Is it right that the minister would also not know?
Ms Lita Cyr, Legal Counsel, Justice Canada, Information Law and Privacy Section: Under the Privacy Act personal information is protected. The fact that you made a request is personal information.
The Chairman: That is good to know.
Ms Cyr: Whoever gets access to this information only gets access on a need-to-know basis where it is required within the government.
The Chairman: The minister would not know. He would not need to know that it was me who was asking for the information.
Ms Cyr: Generally, he would not know.
The Chairman: I cannot conceive of any circumstances in which he would need to know.
Senator Roche: Mr. Fadden made reference to electronic-based information, after which there was a reference made to the paper trail. I would like to follow up by asking both Mr. Fadden and Mr. Jarvis if they could give me a ballpark estimate of how much electronic-based information gets converted into a paper trail.
With regard to information of a sensitive nature that is not converted to paper, how susceptible is that information to some person accidentally deleting it and thus there being no record of it? How would you then be able to come at such a person and charge them with a violation of this act if there is no paper trail and it is deleted by "accident"?
Mr. Fadden: There is a great deal of day-to-day operational information that is never converted to paper. The use of e-mail in government has allowed public servants to accomplish a great deal more in a short period of time than they had been able to do prior to that. In the ebb and flow of daily business, a great deal is not converted to paper.
However, in terms of dealings with ministers, other government departments and the pulling together of substantive reports of any length, paper does flow.
In terms of the difficulty caused by possible deletions, that is a real problem. Most departments have a policy that requires the back-up of information. In my department on my personal computer, for example, there is a subprogram that duplicates files after a certain period of time.
Senator Roche: It would have to be deleted twice.
Mr. Fadden: That is right, which would give one cause to wonder.
The Chairman: When something is deleted, is it really deleted?
Mr. Fadden: I am told not. It requires a great deal of effort to recoup information, but it can be done. I am told that departments that worry about matters of national security, such as National Defence, for example, and agencies within the Solicitor General's office and Foreign Affairs, have made arrangements to ensure this does not happen and that the information is protected from unlawful access as well as destruction.
Mr. Jarvis: If information recorded only electronically were accidentally destroyed, which would require more than simply pushing the delete button, or if you were in the process of creating something and your computer crashes, the document would be gone. If that were the case, you would not be caught by the offence that is proposed in this bill because you would not have had any intent to thwart someone's right of access. It would have simply been an accident, based on what you said. If you did it intentionally to thwart somebody's right of access, that would be different.
Senator Roche: If a person with malice aforethought really wants to get information out of the system and has a way to delete it two or three times so it is gone, how do you know that the information existed in the first place even to charge the person with deleting it?
The Chairman: There would have been a conspiracy to do so with the person to whom he was e-mailing.
Mr. Fadden: It is my experience, and I suspect that it is the same for all my colleagues from both departments, that the instances in which an e-mail is shared only between two parties could probably be counted on the fingers of one hand. Electronic communications has allowed for a multiplicity of stakeholders to be copied on every piece of information.
My office in the Treasury Board received an access to information request requiring information between one of my directors and one of her officers. We thought initially that it would be fairly easy to pull the information together. In fact, it was. However, we then found out that some of the stuff has been deleted. Thus, we have had to do a search in a variety of other computers because this has been copied time and time again.
In practical terms, you would find that most communications are copied widely. If you were determined to pursue the matter, you would have other sources on which to draw.
The Chairman: I wish to thank the representatives of Treasury Board and the Department of Justice.
Our next witness is Mr. Ken Rubin. Most honourable senators will have heard of Mr. Rubin. He is an Ottawa public interest researcher, citizens' advocate, author, civil libertarian and organic farmer. He uses, and comments on, access and privacy legislation in Canada. More to the point, in connection with this bill, he has filed, analyzed and appealed hundreds of requests for public and personal information. He has acted as an access consultant to a variety of media, public interest groups, political parties, labour unions, research groups, trade associations and individuals.
Mr. Rubin, you have heard the discussion here with the bill's sponsor and the government representatives. You have a submission for us. Please proceed.
Mr. Ken Rubin, Independent Public Interest Researcher: Honourable senators, I am not at all intimidated to come after the many witnesses representing the government. It is kind of strange to hear that they may issue a directive 16 years after the act was passed to tell public servants to start obeying the Access to Information Act a little more.
I will give you my comments in summary form. Bill C-208 shows that you need not wait for official Ottawa to take legislative action against those deliberately intent on destroying, falsifying or mutilating publicly paid-for records. It provides, for the first time, for fines and jail terms for record tampering practices.
After seeing dozens of legislative initiatives passed by Parliament that erode and override the 1982 Access to Information Act, it is heartening to finally see Bill C-208 so near passage. This bill offers a psychological turning point to counter the existing malaise in government information practices. Its most key feature is to introduce penalties that will apply to senior officials who direct, propose, counsel or cause record abuse practices. This sets up an internal 911 warning apparatus against excessive secrecy abuses at the top, and that includes deputy ministers, ministers and ministers' staff. This provision will likely provide the best deterrent to record abuse.
Many public-spirited officials are willing to actively respond to public information requests. I may add that I do not think this is a question of just a few bad apples. There are pervasive secrecy practices in this city. However, I think this bill makes people who want to release information freer to do so. Once Bill C-208 is enacted, junior employees can tell their superiors that they can no longer be ordered into considering illegal actions or carrying out the dirty work of record shredding and manipulation.
I know that Bill C-208 is a compromise and that it has its limits, as the sponsor said. The jail sentence was reduced from five years to two, and they created hybrid offences, instead of indictable offences only. The implication is that offenders who actually get caught -- and it is difficult to get the evidence, I agree, to catch them -- will likely not go to prison at all or will receive only suspended sentences or short jail terms of a few months. Still, that will be a rude shock for some here in Ottawa. As the Minister of Justice's assistants put it in their internal e-mails, they were working to soften the punishment and to add a lighter sentence option. Potential offenders will know that, if they are caught, they will merely have to pay, on summary conviction, $5,000, and on indictment, $10,000, and they may not even have to pay it themselves. It may come out of the government treasury.
However, another government bill that is currently before Parliament makes me wonder why they watered those provisions down in this bill. Bill C-54, which if passed will extend the privacy protection provisions to the private sector, has tougher penalty provisions in its clause 28. They include, on summary conviction, possible jail time and fines of up to $10,000, and on conviction for an indictable offence, a jail sentence that is not limited to two years. In addition, offenders could be subject to fines of up to $100,000.
Bill C-208 itself cannot drastically improve the whole Access to Information Act. To combat the delays and the many exemptions and the chaotic manual and electronic record retrieval practices, to provide protection to whistle-blowers, and to encourage proactive information disclosure, a much more concerted effort will be required.
We have to set the positive impact of Bill C-208 realistically against a government that has no desire to develop public policy in an open fashion. The Prime Minister can write out as many "I'm sorry" signs as he wants but he has never issued written directions telling public officials to end sleazy record practices. He has never decreed that public access queries should be answered in a timely and truthful fashion. The Prime Minister cannot even bring himself to indicate publicly what ethic standards he applies to his own cabinet.
Recent access experiences tell me that creative avoidance and unabated secrecy practices are still very much alive in Ottawa, which Bill C-208 alone cannot overturn. Take, for example, the partial facts put forward by National Defence, and their efforts at damage control, in response to the demand by some military personnel to know more about the health effects of vaccines and injections they were ordered to take and about the injuries and diseases to which they have been subjected. It is a case of National Defence being at war with its own soldiers, and the public's right to know all the facts involved.
Nonetheless, Bill C-208 is a significant beginning, and must be publicized both inside and outside government. Regular reports to Parliament should be mandatory, regarding those actually caught offending and convicted for it. Then those who scheme to erase and manipulate records from public access may be less likely to consider attempting such offences.
Along with passing Bill C-208, there should be a change in the secrecy practices of the Senate and the House of Commons with regard to their rising costs. Up against those costs, $6 million is a very small amount to pay to set up a record disclosure operation. Open government legislation would help ensure greater public accountability in the operations of public institutions. Already there are those in Ottawa intent on limiting the effect of Bill C-208 and wanting to narrow what is meant by record abuses.
For instance, destroying the many loosely defined transitory records held by the federal government, particularly if no one knows how to bring forward an access request before record destruction occurs, is still seen as officially okay, and not as a form of record concealment and destruction. A good illustration is the ordering of the destruction of breast implant records, which include a draft transitory report, transitory memo and a telephone message connected to the ordering of that destruction. I placed these before you in the package I submitted. That telephone message is something that Treasury Board says you can destroy. It was not destroyed only because the scientist, who was eventually fired by the government, decided not to destroy it in processing my request. That is the evidence that was needed to show that the record was destroyed. That record, his draft report, said that the material was unfit for human consumption. Hindsight has proven that to be the case.
That is why I suggest attaching a full explanation to Bill C-208 before final passage, when the Senate refers the bill back to the House of Commons. The explanatory note should make it clear that listed record offences for record alteration, falsification, destruction and concealment are very broad in nature. In addition, it should make it clear that record offences not specifically listed are still subject to prosecution under the bill's basic purpose clause to prevent record abuses that reads that "No person shall, with intent to deny a right of access under this Act..."
No one should be left off the hook for any type of record abuse. The clear parliamentary message, then, should be that "no" means "no." That is to say, there is no excusable record abuse and that, if anything, Ottawa -- and, I hope you are listening, Treasury Board and Justice -- had better tighten its record-keeping rules. Do not keep whole classes of information. That is to say: Do not keep those minutes; have many transitory records. Those things must be brought under control in this context. It is not the chill but, rather, the management of the chill in Ottawa that we must be concerned about.
I will now indicate to you why Bill C-208 is needed, and then I will be open to questions. There were still examples happening last year -- and not just with the Somalia record alterations and the destruction of the Canadian blood committee transcripts. I will briefly summarize these examples that are contained in the submission that I gave to you. There are five cases, two of which involve record abuse and are actions that I brought before the Federal Court.
First, there is the chemical rBST, which the Senate has been hearing about. Here, it is a question about why my access applications were stalled and kept in the minister's office for so long. Were there missing records, and so on?
The Chairman: To which minister do you refer?
Mr. Rubin: I am referring to the Minister of Health. The question that must be asked is: What happened to these records? Why did it take so long? In his recent findings, the Information Commissioner said that it was not handled in a professional manner. He agreed with the related application made by Bob Robson and the Senate recommendation that Health Canada's record system needed great improvement.
Another case involves the National Capital Commission. I had been applying for meeting notes since 1983. People were saying, "Let us keep meeting notes." They were recording the meetings in full, as they had recorded the Canadian blood committee transcript records in full -- not the sanitized summaries that they have been giving out for years. In March 1998, I found out that those records were recorded verbatim and had all been destroyed. Coincidentally, after I made the application, they decided never to keep them again. The commissioner said, "Maybe those things would have had archival value," but he held them up as transitory records and upheld the fact that they could be destroyed. I disagree with that. They are key decision-making meetings and should be recorded verbatim just like cabinet meetings should be recorded verbatim, but they are not.
Revenue Canada is another example. Their representatives have been in front of the Senate in committee. They waited and stalled until the last minute -- that is, a few weeks ago, while the minister was here in front of the National Finance Committee. They then released some of the cost data to me the very hour that he was testifying before the Senate committee. What was the reason for the delay? Well, they told me that "Since April, we have had trouble finding our records. The records on the newly created tax agency are hard to find."
There are two other examples. First, there is the Department of Foreign Affairs on the sale of the CANDU reactor to China and the environmental aspect of that sale. They indicated that one of the records that was requested, "...is no longer in our possession. It is in the possession of the AECL. When it was in our possession, you did not put in an Access to Information Act request." The issue, in part, is: when is there an obligation to keep a record in a particular department? Is that concealment, or is it not? Similarly, there is the case of Health Canada, on the controversial issue of calcium blocker drugs, which are widely used in Canada and are controversial because there have been reported fatalities and serious side effects. Health Canada has said that they would publish some records but then they delayed the publication. When I received the record, the information was not totally there. It was highly censured. I did get more of it, but they did not bother to tell anyone that I had received more of it. I am in Federal Court now on that issue because I do not think that the whole file is there. The commissioner backed me up, because the department decided to publish the so-called record with exemptions after I put in my access application.
I will not belabour this further, but I wanted to bring to your attention that there are not just a few bad apples or only a few examples. The practices here are a little more widespread than you are led to believe. Despite the appalling access practices in Ottawa, Bill C-208 is a small step forward and it can help in dealing with these bad policies.
The Chairman: What are "substandard record keeping" practices? Would you require that every time two or more are gathered together, notes should be kept?
Mr. Rubin: We do not have a public records act. The foundation of the Access to Information Act, although it has helped to stimulate better record keeping, is very weak. There are no penalties if you do not keep things in order. It is all done in a loose fashion. It is even more difficult with electronic records. When the act first came in, I did a study for the Canadian Rights and Liberties Federation. I asked various departments what their record systems were like. I found that manually and electronically, most of them did not have good record directories. Certain branches within departments did not know the total of their records.
Has this changed much? In some cases, yes; in other cases, no. In the first stage of Ms Beaumier's bill, it contained a penalty for not keeping required records. However, that section was quietly dropped. If you do not have proper record standards and if you do not say, "I will keep records for certain types of deliberations and I will ensure that the quality of record keeping for retrieval and for management purposes is adequate," then it will be much more difficult to locate that information years later.
The Chairman: With most organizations, if someone is keeping "the minutes," then at the next meeting, "the minutes" are presented to those who attended the previous meeting and they have an opportunity to make additions or corrections or complaints about "the minutes." In my experience, that does not exist in government. Frequently, there will be a note taker at your meeting, but you will never see the notes that were taken. The person who actually participated in the meeting -- perhaps even presided over the meeting -- has no idea what record was kept or how accurately the note taker summed up the deliberations. You may see a record of a decision or a consensus, but you have no idea how accurately the deliberations were summarized by the note taker.
Mr. Rubin: That is partly why this bill may stimulate people to keep a better record. They could then be accused of not wanting to keep records in an effort to conceal, in effect, what their deliberations are about.
The Chairman: Those who attend the meeting should have an opportunity to view the records that are kept.
Mr. Rubin: Certainly, they should. Under the access act, you can get notes that people made in addition to the official minutes that were kept. I have given you two examples, but I can think of a few others where people used to keep larger minutes. However, either they do not keep them any more or they keep them -- and, this is directly because of the access act -- in a highly sanitized form. People have said that the full and frank deliberations will be lost, but the public has a right to know what is going on. There may be some highly sensitive matters, but in most cases it is the usual thing. Even in cabinet, most of the matters discussed are rather mundane and are not something that should be subjected to a 20-year exclusion.
The Chairman: I will not pursue the question of how much the Senate and the House of Commons need to be opened up. Perhaps my colleagues will wish to ask about that, however.
Senator Butts: Mr. Rubin, I admire your enthusiasm for this crusade. I am wondering what you do with the information that you receive. Do you circulate it? Do you have a way of giving it out to people?
Mr. Rubin: Sometimes it is a matter of my personal interest. If I am concerned, such as on health and safety issues, I try to circulate it to the groups affected or to the media. I am a consultant as well, so I also do work on behalf of others.
I have one rule of thumb. If someone says, "I want this information," I want to make sure it is out and as open as possible to the public. The idea is not to have the media bury the information either.
Unfortunately, there is no corporate memory in Ottawa. Although there is a system that records the access requests that have been made in the past, there are over 10,000 per year. There is what is called "new grade" literature. Information released must be kept; however, much of it has been destroyed -- including some of the records that were needed to judge whether the Canadian blood committee records were destroyed -- because of the rule that after two years records get destroyed, including access responses in many cases.
We have a problem in knowing what information is significant or "archive-able." It is partly a problem that our record foundation is rather weak. We do not have tough rules as to what should or should not be kept, and enforcing rules is also a problem. This act addresses that, at least in part.
Senator Butts: I was taken by the statement in your submission that this should be circulated both within the government and outside. I am looking at the outside. If I take your submission on the calcium channel blocker and the danger of that, is there an onus, for example, on the doctor who prescribes that to know the effects and to convey them?
Mr. Rubin: That is part of his oath and his work, but he cannot get from Health Canada the basic information. There is no mandatory adverse reporting scenario, so you only get part of that. If you cannot even determine when the department reviews all the information that is brought to the department's attention -- some by the drug companies producing it, others by foreign governments -- then you have a problem, because you do not have adequate knowledge on which to base your decision to tell your patient or the public what is going on.
I can assure you that I am not an expert, but I have had people ask me, "Can you find this out for me?" It is sad when someone is under stress or in ill health and they ask if this is their best choice and where they can get the information.
That is why I asked -- even with the recent federal budget, where they said they would put millions of dollars into health care information -- that is why I asked if the information will be timely, uncensored and truthful, or will it be self-serving, free advertising for the drug companies and others interests? What will this information be? Will it be on the Internet where I can find out if I have a health problem? Is that what my government will do? Or is the intent something else?
When I go to Health Canada and try to find out what drug companies are doing -- and these are licensed drugs -- I do not get all the information I want; they say it is commercially confidential, or there is some other reason.
Senator LeBreton: On the question of the need to know, the Justice Department officials testified that the subject of the access-to-information request would not know from where the request originated. Do you find that believable?
Mr. Rubin: Some departments, such as Health Canada, tell everyone in the department who the person is. Most people come up to me and say they know that it is my request, even if the name is struck out.
Senator, I believe it was your assistant who was investigated by the RCMP because he happened to ask about the Prime Minister's car, and I guess it had a little security around it. They investigated him under the RCMP Act, because it is sort of an unheard of thing when someone freely asks for something under the Access to Information Act.
The message here is that when we are talking about whether this bill will send a chill down the ranks and so on, it is more that they have already managed to chill, because in many cases they know who the requester is. They spend a lot of extra time consulting about the request, despite what was said here, with other agencies, particularly if it goes to several departments. It can be massaged by the communications department before it is released. It can go to the minister, and the minister can know the person's name. It can go to many different places.
I wrote this up in The Hill Times a little while back, the early warning signs of what is and what is not releasable. They have the resources. I do not have those kinds of resources, nor do many other parties. It is not just, "I am here at the counter, you are there, let us talk and you will give me the information." I press the button on the numerous expensive web sites, and I find out real information. Or do I? That is the problem.
I do not think we are dealing with the fact that most information in Ottawa is free, timely, and accurately given out. This bill only addresses the tip of the iceberg. As Ms Beaumier said, it is a wake-up call, because we have not had many wake-up calls in Ottawa on this issue.
Senator LeBreton: Since you raised the point about my assistant, all we were asking about was the costs; we were not asking about security; but he was investigated by the RCMP, which takes you down a whole other expense.
The people who are the targets of Access to Information Act requests, often want, for their own reasons, to do everything they can to deny those requests, and they give some other person who is working for them direct instructions not to provide that information. If the intent of the bill is to keep people from destroying records, how does the person get around disobeying a superior, and is that the person who will be charged under the act, or is that person protected?
Mr. Rubin:That is a very difficult question. In the examples of the Canadian blood committee and the Somalia record alteration, the people at whom the fingers were pointed -- because I talked to two of the individuals -- said, "We were the scapegoats. It was the higher-ups who subtly, or not so subtly, told us to do it."
That is why this bill has value. Now, when your superior says, "Do this or that," even with transitory records, you can say, "I am not going to do it. I will call the Information Commissioner or the minister. That is just not on any more. Why should I take the rap?"
It is important to convey that. That is why public education for this bill is needed. In the case that I mentioned on the breast implants, where the doctor was fired or resigned from the government over the breast implant issue, the only reason that the trail is there is that he left the trail there, and I found the trail under the Access to Information Act. It will be very hard to catch people. You will need to rely on the fact that many people in government are honest and want to do the job, want to convey information to others, but there are always these exemptions and rules that they must obey, unfortunately. Many of those rules must be changed. However, with this act, the fact is that they now have a means of saying to their superiors, "Bug off. I have in front of me a bill that says you will have a problem if you are considering this, and you are coming down with me too. Hopefully neither of us will go down that path."
The Chairman: Senator Cohen, can you ask your question and get an answer in 60 seconds?
Senator Cohen: No, because it refers to privacy in the Senate.
The Chairman: We can devote a full meeting to that another time. Privacy of the Senate? What privacy?
Mr. Rubin: A little more disclosure would help too.
The Chairman: Where, Mr. Rubin, and on what?
Mr. Rubin: On your administrative costs. Everyone is bugging you about attendance records, activities, trips and junkets. There is a lot of information that does not come out in public, and it is high time that it did. Take your accountability just like every other institution.
The Chairman: We will end on that note.
The committee adjourned.