Proceedings of the Standing Senate Committee on
Social Affairs,
Science and Technology
Issue 29 - Evidence, March 10, 1999
OTTAWA, Wednesday, March 10, 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 3:42 p.m. to give consideration to the bill.
Senator Lowell Murray (Chairman) in the Chair.
[English]
The Chairman: This committee is meeting today to continue its study of Bill C-208 to amend the Access to Information Act. You will recall that yesterday we heard from Ms Colleen Beaumier, M.P., the sponsor of this private member's bill in the House of Commons, and from several other interested parties.
Today it is our great pleasure to open our proceedings with the Information Commissioner, the Honourable John Reid, P.C.; who is accompanied by the Deputy Information Commissioner, Mr. Alan Leadbeater, who is on Mr. Reid's left; as well as by Mr. Daniel Brunet, their general counsel.
For those of you who have not been here as long as I have, let me tell you that the Honourable John Reid was elected six times to the House of Commons on what was called the "Liberal-Labour ticket." He was the only member of the House of Commons to bear that designation. He was elected six times beginning in 1965, from the constituency of Kenora-Rainy River. He was for a time a Minister of the Crown in one of the governments of Prime Minister Trudeau. He came to the House of Commons actually when his predecessor, the late William Benidickson, was appointed to the Senate. That is a thumbnail biography of Mr. Reid. Very considerable political and governmental experience qualifies him, I think, quite eminently for the position he now holds and for which he was appointed, if I am not mistaken, by unanimous agreement of both Houses of Parliament. Is that the case, Mr. Reid?
Mr. John Reid, P.C., Information Commissioner of Canada: Yes.
The Chairman: Congratulations on that. How long have you been in office now?
Mr. Reid: I was appointed to take office July 1 last year, which was the fifteenth anniversary of the proclamation of the act. I am the third Information Commissioner.
The Chairman: Thank you very much. Mr. Reid has a brief opening statement. He will then open the floor for questions and coments.
Mr. Reid: Thank you very much, Mr. Chairman, for your introduction, and also for the invitation to come here.
Bill C-208, if passed, would be only the second substantive amendment to the Access to Information Act in its 16-year-old life. The first gave persons with sensory disabilities the right of access to records in alternative formats.
In my judgment, the change proposed in Bill C-208 is long overdue. It would profoundly affect for better the vibrancy of the right of access to government-held records. As you know, this bill, if passed, would create an offence that is directed at public officials. Very few offences are of this nature. Indeed, I can think of only two others, breach of trust and torture. The offence is called for because of the enormous power public officials wield by virtue of their control over vast holdings of government information. Parliament, in passing the Access to Information Act, shifted the balance of power over information from the state to the individual. Officials are now compelled to disclose records, except in 13 narrowly-defined circumstances, such as privacy protection, law enforcement, national interest and private commercial interests. Moreover, officials are compelled to disclose records within specific deadlines, ordinarily within 30 days.
It goes without saying that the vitality of these rights depends upon the integrity of the officials who hold the records and receive the requests. If officials destroy, alter, hide or counsel others to do any such thing for the purpose of thwarting the right of access, then the right of access is undermined entirely.
I would like to take a very few moments and tell you something of my office's service experience with respect to record alteration and destruction. My goal is to demonstrate that the offence set out in Bill C-208 corresponds to a real problem. In recent years, three instances have come to light during investigations conducted by my office where my predecessor, John Grace, concluded that reports had been destroyed or altered for the purpose of thwarting the right of access.
In two of these cases, records were destroyed or altered to avoid possible embarrassment to departments. In the third, Mr. Grace concluded that the records were destroyed to avoid accountability and legal responsibility for a terrible human tragedy. The latter case, of course, was the destruction of audio recordings of meetings of the Canadian Blood Committee, where critical decisions were taken about the relevance of the Canadian blood system to the tainted blood tragedy. One case occurred at Transport Canada where an official sought to have all copies of an embarrassing, unflattering audit report destroyed to avoid having to disclose it in response to an access request. The other, more high-profile, case concerned the actions of DND officers, who altered records before disclosing them in response to an access request. In the DND case, the content of the records was not particularly sensitive. They contained suggested answers to possible questions the media might pose.
The embarrassing part was that DND had released an altered version informally to a journalist; and when the journalist made an official request, DND did not want the journalist to find out that the department had been less than candid the first time around. Consequently, the official access response was altered to conform to the informal response. To compound the error, instructions were given by a senior officer to destroy the original records so that no one would know that alterations were made.
In each of these three cases, senior public officials were involved in unacceptable activities. In the DND cases, two officers were court-martialled. One was acquitted of charges of suppressing a file and committing an act to the prejudice of good order and discipline. The other was charged with wilfully making a false statement in a document and negligent performance of duty. He pleaded guilty to the latter charge and received a reprimand and a $2,000 fine. The incident involving the blood records is under investigation by the RCMP. Transport Canada took no remedial action with respect to the official who sought to destroy the embarrassing purchase audit report.
Most public officials are honourable professional persons of integrity; but, as in any large organization, there are some bad apples at all levels. And even among the most conscientious, there is a lack of understanding of the fiduciary duty they owe the public for the government's information resources. Even after 16 years under the access law, many still think in proprietary terms about the records they generate and hold. Even the most conscientious of officials are guilty from time to time of removing and destroying the Post-itt notes attached to records, and very few give much thought to their legal obligation before deleting e-mail and voice-mail messages. Once Bill C-208 becomes law, there will be a powerful incentive for public officials to behave as careful custodians of records rather than as the owners of government records. Public officials will be more careful to ensure that records are only disposed of in accordance with approvals obtained from the National Archivist. It is the National Archives Act, not the Access to Information Act, which sets the rules regarding the disposal of government records.
I hasten to support the clear requirement of intent in Bill C-208. We want public officials to be careful and honest in their handling of records, but we do not want to scare them into inertia over the inevitable day-to-day decisions concerning the disposition of records. That would not serve the public interest. This bill strikes the right balance, in my view, by warning public officials against deliberately thwarting the right of access, while ensuring them that the exercise of informed, good-faith judgment, even if sometimes wrong, will not bring legal condemnation and punishment.
Mr. Chairman, I would be pleased now to answer any questions that you or the committee members may have.
The Chairman: Mr. Reid has given us some background, by way of illustration, as to why a bill such as this is necessary. He cites several instances during the time of his predecessor, John Grace. He is of the view that this bill provides a powerful incentive for public officials to be careful custodians of records. He supports the bill.
One of our witnesses yesterday, Mr. Reid, made the point that we do not have in this country a law respecting public records and how they should be kept, at least not one that is comparable to the law that exists in some other jurisdictions. Do you or your officials have any views on that, for the need for such a law here?
Mr. Reid: We do have a law. The National Archives Act regulates how, why and where documents can be destroyed or disposed of and what documents must be kept for disposition to the National Archives.
The Chairman: Yes, the discussion that was taking place at the time between the witness and myself concerned the taking of notes and the initiation of records in the government system. It appears that there are jurisdictions where there is a law that sets out how and when that ought to be done. The witness was making the point -- it was Mr. Rubin, as a matter of fact, who I presume you met last July, if not before that -- who believes that we need a law of that kind here. Have you or your predecessor looked at that?
Mr. Reid: He is correct. There is no law that compels the creation of records as you have described it. We have not looked at that, whether that is required or not.
The Chairman: Mr. Leadbeater.
Mr. Alan Leadbeater, Deputy Information Commissioner of Canada: Mr. Chairman, the United States has, for example, in its public archives legislation, a requirement that public officials create records that adequately document their major activities, decisions and considerations in the course of their duties. That has become a concern of ours, because some public officials under the Access to Information Act have felt that the best way to protect themselves is to stop writing notes and to stop taking minutes of meetings and so forth. That, perhaps, is misguided, because there are sufficient exemptions in the act to protect those. But I think that we have been looking at the possibility of having a provision in the National Archives Act here similar to the one in the United States. Our office has put forward a number of recommendations, and that one is included in it on that aspect of the life cycle of a record.
The Chairman: Is there a recommendation for some legislative initiative?
Mr. Leadbeater: That would be an amendment to the National Archives Act, requiring not only the retention of records with the approval of the archivist, but the creation of records that adequately document the activities, considerations and decisions of public officials in the course of their duties.
The Chairman: What has become of your recommendation?
Mr. Leadbeater: The recommendation has been provided to government and to Parliament. They were provided in 1993-94, along with a recommendation that the act itself be reviewed. To this stage, no action has been taken.
The Chairman: Has Mr. Reid's predecessor made some recommendations with regard to the act's other amendments?
Mr. Leadbeater: Yes, I think there are 43 recommendations in total, everything from the exemptions to the powers to the method of appointment and so forth of the commissioner.
The Chairman: Is there a parliamentary committee on the other side, in the House of Commons, to whom you report on a regular basis, much as the Commissioner of Official Languages, for example, comes to the Joint Committee on Official Languages? Is there an analogous committee?
Mr. Reid: We report to the Justice Committee of the House of Commons. I am told by my predecessor that this means that there is a discussion in general on the report, but there is no action taken on representations particularly by the committee.
The Chairman: In the Senate, we had the pleasure of having Bruce Phillips as Privacy Commissioner before a Committee of the Whole a couple of weeks ago. We thought it went very well, that it was an exercise well worth conducting. We might consider that.
Mr. Reid: I would be delighted.
[Translation]
Senator Gill: I only recently became a member of this committee. I don't know whether there has already been discussion of the potential impact of this legislation on information when the government delegates authority to a third party. What kind of impact would this legislation have on the people to whom this authority is delegated in a management context? How would the legislation be applied and what impact might it have on people who have received a mandate through the delegation of authority?
Mr. Daniel Brunet, General Counsel, Office of the Information Commissioner: As I understand your question, you are asking what impact the change proposed in Bill C-208 would have on people to whom the minister delegates the authority to decide whether to deny or grant access to certain records?
Senator Gill: In some cases, the government or a department delegates authority for one program or service component to private enterprise, to municipal organizations or, for example, to aboriginal organizations via the Department of Indian Affairs.
When budgets are decentralized, powers are transferred via the delegation of authority mechanism. Does this apply to people who receive this delegation of authority? What impact could it have on them? Ordinarily, this is the government's responsibility.
Mr. Brunet: The legislation only applies to records held by departments or government institutions. The Access to Information Act does not apply to private sector activities or to native bands, for example. They are not government institutions. The legislation applies to federal institutions that are subject to this regime. The clause found in proposed Bill C-208 is aimed at public officials. In other words, if in carrying out his duties, a public official commits one of the acts referred to in subsection 67.1(1), he or she is liable to be found criminally responsible and to have to go before a court of justice as a result of destroying records. That is the purpose of the bill.
Senator Gill: Management is normally a responsibility of government, and is carried out by public officials at the government level in a given department. If that department or organization decides to decentralize some of its responsibilities or part of a program it administers by transferring them to another party, that is done by means of a delegation of authority. The public official or the department delegates powers to a third party. Do those third parties not assume the same responsibilities that would normally be exercised by the government with respect to access to information and anything connected to it?
Mr. Brunet: I can give you a general answer, but in order to discuss a specific case, I think we would have to look at the actual provisions of the legislation. If we were dealing with an actual case where the kind of delegation you referred to was involved -- but exactly what are we talking about? If we are talking about a contractual agreement with private enterprise to manage a particular operation, then we are not talking about a federal government institution. Do you follow me?
Senator Gill: Yes.
[English]
Mr. Leadbeater: For example, when all the air traffic control services in this country were performed by officials that worked for Transport Canada, documents that they dealt with on a daily basis were subject to the Access to Information Act. Now that service is provided by a private corporation called NAV CAN, and its documents are not subject to the Access to Information Act. Therefore, if NAV CAN destroys records, it would not be for the purpose of thwarting the right of access, because it is not covered by this act. You are right, decisions by the government on how functions are handled will affect the reach of this bill. This will only reach organizations that are covered by the Access to Information Act.
Mr. Reid: I am concerned that NAV CAN is still performing what one might consider to be public functions, but it was decided that they should not be covered by the Access to Information Act. I feel that with any devolution of government authority, those institutions should continue to be covered by the Access to Information Act, as long as the bulk of their work is doing a public function of that nature. For example, we hear about the creation of special agencies. There is supposed to be a new special agency to collect taxes. One would anticipate that they would continue to be subject to the Access to Information Act, but it will be interesting to see how it works out in the end. I question whether we are weakening citizens' access to documents by taking things out of the ambit of the act. NAV CAN is a clear case of that having happened.
The Chairman: Parks Canada has already been set up as an agency half in and half out of the government. Surely, it is going to be subject to the information act.
Mr. Reid: It is.
The Chairman: And surely the new customs revenue agency will also be subject to the Access to Information Act. These people are public servants administering an act of Parliament. Can it be said of NAV CAN that they administer an act of Parliament or regulations?
Mr. Reid: I think they have changed the circumstances. Clearly, they are carrying out a public function, and they have no competition.
The Chairman: They have a monopoly.
Mr. Reid: They have a monopoly, yes. That comes under the federal government's authority.
[Translation]
Senator Ferretti Barth: I am not at all happy about the penalties that will apply to people who commit criminal offences; under the legislation, they will be liable to imprisonment for a term not exceeding two years or to a fine of $10,000. The other offence provides for imprisonment for a term not exceeding six months or a fine not exceeding $5,000. As far as I am concerned, that is ridiculously low. It is an insult to people's intelligence.
It is important to realize that we live in a society where people are very well informed, and yet this legislation is proposing imprisonment for a term of two years or a fine of $2,000, or in the second case, a fine of $5,000. I am totally opposed. It is not difficult for someone who commits a criminal offence to find $10,000 to pay a fine or to get out prison.
So, out of respect for our fellow Canadians -- I believe that even with police intervention, there were offences providing for higher fines that we were always being remitted until the legislation was passed by the House of Commons.
So, I do not agree what is proposed. This bill does not apply to the Privacy Act, which is part and parcel of the Access to Information Act. Do you not think that this legislation should apply equally to the two statutes, because you are only covering one area of information and ignoring the others, which are just as important. This has to do with the integrity of individual Canadians. I would appreciate some clarification from you.
[English]
Mr. Reid: I should like to make the point that this is the first time that the Access to Information Act can impose penalties. The act has a whole range of timetables and obligations that are imposed on the public service, but there is no penalty at all in the act except for obstruction. This is the first significant penalty. Secondly, the penalty for obstruction, I believe, is about $1,000. This is a significant increase in terms of the penalties for a more significant crime in its own way, so that there is a matching of the penalties to the level of crimes. But my main point is that this is a very significant change in the Access to Information Act, because it is the first significant amendment outside of the sensory deprivation one; and it is a penalty, and it strengthens the act from that point of view. Psychologically, this is a very good change for us. But on the substance, in terms of the levels of fines, I would ask Mr. Leadbeater to say something.
Mr. Leadbeater: I am not sure who is expert in deciding what is the right penalty for different forms of improper behaviour. This particular penalty, whatever its magnitude may be, will be a career-ender for any public servant who is convicted. It may be $5,000, $10,000, $100,000, or five or ten years in gaol, in some cases, if there is an egregious destruction of records. You may think it really is not enough, however, in some cases there will be such minor destruction of records that this will seem overbearing. I am really not sure how one decides. But this is an improvement over the current penalty for obstruction. Its order of magnitude is similar to the offence of breach of trust in the Criminal Code. I think it sends the kind of message you would like to send. I agree with you that it is hard to decide what the amount is; it is very hard.
As for the other issue, you are absolutely correct. The chances of interfering with the right of privacy because of records destruction is equally as unacceptable as it is for access to information. Individuals have a right to apply for and see their own file, and to correct it if it is wrong. If someone is destroying records to prevent you from seeing your own file, that is equally unacceptable. The real cases of this happening have been under the Access to Information Act. I think that put the steam behind this private member's bill. But I do not disagree with you that it certainly applies to the Privacy Act.
[Translation]
Senator Ferretti Barth: Would it be possible to add the Privacy Act to Bill C-208? We're talking about information held by the government and other government organizations, such as the public service and public officials. Since the same type of information is involved, why not have this bill cover the protection of personal information as well? Whether they are government or personal records, we're talking about unprotected information.
[English]
Mr. Reid: Mr. Chairman, there will be an opportunity to do that, because the Privacy Act has been opened up, and it is before the House of Commons now under the rubric of electronic commerce. That basically deals with the Privacy Act, and there would be an opportunity for the Senate and for members of the other place to be able to make those changes to the Privacy Act directly.
Senator Butts: Thank you very much for your presentation, Mr. Reid. You will have to help me. I am a little bit confused on some of this. It may be that I just did not have time to read your paper in advance. When you say there are three instances, you mean three out of how many? There must be billions of papers going into this system every day. I do not suppose you can tell me approximately how many were investigated, for example. I understand that three were. If only three out of millions of papers were investigated, it seems to me that we do not need a law.
Mr. Reid: In those particular cases, three very important pieces of paper were altered and changed. As I point out, generally speaking the act works well, and we do not have those kinds of problems as it is. In the last three or four years, we have had these very high-profile incidences that dealt with real practical cases. There is no question that there is a requirement for something, and this is the answer.
Senator Butts: But these three cases resulted in penalties or whatever without this amendment.
Mr. Reid: They did in the cases where a criminal charge was raised. As I pointed out, in the case of Transport Canada no action was taken. Action was taken in the case of the Department of National Defence, and we know that there was a Royal Commission into the blood question.
The Chairman: Was there a conviction in the Department of National Defence case?
Mr. Reid: Yes, one was acquitted, and one was convicted.
Mr. Leadbeater: It was a guilty plea. Our experience is that this is not the norm. Public servants very rarely destroy records for the purpose of thwarting the right of access; you are absolutely right. I do not think anyone is saying that it is an everyday occurrence. In the course of our investigations, and we do about 1,500 investigations a year, we would find in every year one or two instances where maybe a document is taken off the file; the little handwritten notes along the side of a document may be whited out before they are given to the requestor, or little Post-it notes are taken off. A lot of that has to do with ignorance, I think, on the part of public servants as to what constitutes a record. People think that records only mean official records. It really is everything as it exists. I think this will encourage public servants to make sure that they understand their obligations a lot better.
Senator Butts: Rather than three, 1,500 is the kind of number I should be looking at. That helps a bit. I would like to find out about the relationship between the National Archives and the National Archives Act and these civil servants. Your paper says that the archives act sets the rules governing the disposal of government records. Would somebody from the National Archives tell them that they may not destroy a certain paper, or that they may destroy that? What do they do? What is the process?
Mr. Leadbeater: The National Archives Act works out disposal schedules for the various classes of records that each government institution holds. Transitory records -- the records that are everyday little notes of telephone conversations, drafts and so forth -- can be destroyed without approaching the National Archivist. Your substantive records -- in our office this would be our case files, investigative records and so forth -- must be reviewed by archivists at the National Archives before they can be destroyed. The archivist will take samples and keep them for posterity and so forth. They will set dates for us; we can then destroy these after 10 or 15 years, whatever the time may be. Because that procedure is in place, people who use the Access to Information Act can be assured that when they ask for records, they are still there; that they have not just simply been destroyed as soon as they have been created.
Senator Butts: There is not as much onus on the civil servants as I thought. All these decisions are made by some other group. Perhaps some day you will have to investigate the other group rather than a civil servant. I asked the same question another way yesterday: "Is the person who is taking the orders going to be blamed here?"
If the Archives group tells a civil servant that something can be destroyed, and then something comes up in five years -- like the breast implant issue -- who is going to take the rap?
Mr. Reid: If it is destroyed according to the schedules as laid out by the National Archivist, in accordance with the act, it is a legitimate destruction, and this act will not apply. It is the proper exercise of lawful authority. This act moves against those people who would destroy without that kind of authorization.
Senator Butts: Perhaps someone could forge a document from the archives.
The Chairman: Thank you very much, Mr. Reid and your colleagues from the Information Commissioner's Office. You have been very helpful. We will be able to move along now.
Our next witnesses are Mr. Michael A. Dagg, President of the Canadian Access and Privacy Association, and Madam Jacqueline Bilodeau, Past President of the same association. They have sent us a brief, which is before you.
Please proceed.
Mr. Michael A. Dagg, President, Canadian Access and Privacy Association: I am very pleased to have the opportunity to address the senators here today. This is a very important issue. First, I should say that I am here in my capacity as president of an association of members, a lot of whom are public officials at the federal, provincial and municipal levels. We also have some others in the private sector. I am unique in that I earn my living filing access requests. I am not part of the bureaucracy, yet I share the concerns that they have. This law could adversely affect them. We wanted to take this opportunity to bring that to your attention.
We support the law. We believe that this law is very important, because you do need to add some moral force to the fact that you have to do it right, and that there is a standard. If you do not do it right, there are penalties. However, in my experience as a requestor, I have seen relatively few cases where I believe records have been withheld improperly, but the cases exist. There was no mechanism, really, to deal with it. This will provide a mechanism to address problems where people are unhappy with what happens to their request.
In our brief we also have outlined six concerns, and my colleague Jacqueline Bilodeau will address those.
At this point, I would like to go over the recommendations, and you can ask questions if you wish.
I think you should enact this bill despite any alleged flaws. We need to have something. Later on, our recommendation is that you should review this. The committee should undertake to review this bill in three years, to evaluate how it works. When they passed the Access to Information Act, that was the original recommendation, that Parliament would review the legislation to see how it worked. They did that in 1986. There is a need to look at and update things to make sure that they are properly tuned in to current circumstances and conditions. We also recommend that Treasury Board and the Justice Department prepare guidelines for officials regarding their obligations under the bill. We believe that this is very important. We request that all public servants be informed of their obligations under this bill. A lot of the people I consulted -- many of them public officials -- prior to preparing this brief were not even aware. When some people hear of the possibility of imprisonment or being branded a criminal, it certainly gets their attention. That is the positive side. As my colleague will explain, the other side is the concerns, how our members may feel. In the attachment to my brief, there is a comment from one of our members who is a lawyer and a former prosecutor that gives a slightly different twist to how the bill should be viewed.
[Translation]
The Chairman: Ms Bilodeau, would you like to add something?
Ms Jacqueline Bilodeau, Past President, Canadian Access and Privacy Association: I would like to address some of the concerns our members have passed on to us in a number of areas. The Canadian Access and Privacy Association is a national association with approximately 300 members across Canada, as well as in the United States, Europe and Australia.
Because of the short timeline we were given, we were unable to get feedback from all our members. However, I believe the comments we did receive fall into three main categories.
The main problem has to do with accountability and the obligations imposed on public officials, particularly staff working in the access to information area. This amendment to the legislation assigns criminal responsibility to individuals and that may not be entirely fair.
Senator Gill referred earlier to the delegation of authority, and very often that delegation of authority to information access coordinators working in government departments comes directly from the minister, who gives it to the deputy minister, who then gives it to the information access coordinators. In a situation where records are destroyed, concealed or altered, our members have major concerns as to who would be held accountable. Would it be the information access coordinator, since he is the one who signs the responses to access requests and releases records, since this responsibility has been transferred to him from the deputy minister and the minister, even though he may not be aware of errors, omissions or abuses of authority on the part of other people working in the department?
Our members are afraid that this would create a climate of mistrust inside the Public Service that would be completely contrary to the spirit of the legislation, which is intended to facilitate public access to records held by government institutions. It could also harm the reputation of information access coordinators and their staff, as well as any other public official, even one working outside of the access to information field.
Even if a public official were able to clear his name, it is possible that there would be some lingering doubt about him given that there had been a criminal investigation. There is no smoke without fire.
There is also the matter of whistle-blowing. I hate the word "whistle-blower" which always strikes me when I see or hear it. I know that it is often used in the Criminal Code, but it is a term that has a very negative connotation. We're almost talking about spying. It's the unhealthy atmosphere this may lead to that worries me.
Access to information coordinators and their staff wear two hats. They are government officials and at the same time they are responsible for enforcing the Access to Information Act. To whom do they owe their loyalty if they discover that their boss, who holds a senior position, has knowingly destroyed a record? The impact on their careers can be significant.
On the other hand, if there is no whistle-blowing, that public official might face significant fines or even be liable to a term of imprisonment. That is another concern of our members. We are wondering whether disciplinary measures would not be warranted in such cases. Some would prefer that a disciplinary process be put in place, to be administered by the Public Service Commission, and that a committee be struck to look at cases involving obstructing the right of access.
Our third concern has to do with the problem of records management which has not been discussed much. We mentioned that there are record disposition schedules, and that is true. We do have the National Archives Act. There is also the Treasury Board policy on Management of Government Information Holdings, as well as a security policy. Under the Access to Information Act, every record must indicate whether it is designated "protected," with attachment and rationale.
If this bill is passed, records managers in government departments will have to be educated so that all records are properly indexed and classified before being sent to the National Archives, in order to avoid the potential problem of a junior employee inadvertently destroying a record and having to pay a $5,000 fine.
That pretty well summarizes our members' concerns. I myself am familiar with these issues, as I worked in the access to information field for quite a long time. I am making these representations today both on behalf of the Canadian Access and Privacy Association and as a private citizen.
The Chairman: Thank you, Ms Bilodeau. I gather that you fully agree with the comment made by your colleague to the effect that this bill should be approved as is. You are not proposing any amendments to the bill. Is that correct?
Ms Bilodeau: Some members have told us they would prefer disciplinary measures to actual legislation. For example, they have suggested setting up a committee to be administered by the Public Service Commission. No such committee currently exists.
Is it possible to amend the legislation at this stage? I have described the practical concerns of members working in the field.
The Chairman: Yes, I appreciate that. As I understand it, you do not have any amendments to propose to this bill. You do not want the committee to amend the proposed legislation. Mr. Dagg, Ms Bilodeau, do you represent the same association?
Ms Bilodeau: Yes. At the very outset, we made four recommendations to the effect that the bill go forward but that the Access to Information and Privacy Acts be subject to a comprehensive review in three years' time.
The Chairman: On the last page of your brief, I see that there are four recommendations, the first of which is: "Please enact this bill," as well as three others. I also note that page 2 is entitled: "Concerns of our members."
[English]
Mr. Dagg: The point of our presentation here is that we support the bill, that it is needed. However, we also want to point out that in the world of bureaucracy, it is never clearly black and white. We want to indicate that people who have a lot of experience were preoccupied about certain things. Some of our members have great concerns because they work in places where they might run into incidences like this. They are absolutely convinced that they are going to be the ones hauled off to gaol. Somehow the system will work, and they will be the victims, rather than the people who are the real perpetrators.
The Chairman: After we decide what to do with the bill, the committee can take your recommendations on board and decide whether to incorporate them into a report or whether the chairman should draw the Senate's attention to them. We will decide then what action we should take on your recommendations. But for the moment, on balance, your view is that the bill should be passed as it is.
Mr. Dagg: Yes.
The Chairman: Just let me ask you one question here, because it relates also to something that Madam Bilodeau mentioned, and that is that this bill does not apply to the Privacy Act. This is something that Senator Ferretti Barth raised earlier.
This bill does not apply to the Privacy Act, which forms an integral part of the access legislation. This bill should apply equally to both statutes. There could be unintended negative consequences flowing from this decision.
Would you elaborate on that for me, because I do not think I fully understand what it is that you are saying here?
Mr. Dagg: I took a case to the Supreme Court of Canada, and it was decided in June 1997. The Supreme Court accepted the view that the acts have to be interpreted together. If you do not look at them as one statute, you could have problems. For example, the definition of personal information that is used in the access act is determined by a clause in the Privacy Act. You have to take into account that the two are intertwined. In some cases, a record is a record. A lot of people file under both the Privacy and Access to Information acts. Now in some cases, they might have been able to file only under privacy, and why should you have a lesser right, when in other jurisdictions, they would still call that access to information even though it is personal records.
The Chairman: I wish Ms Beaulieu were here; we would ask her before we dispose of the bill. She is not here.
Did you have occasion to discuss it with her or with anybody in the government?
Mr. Dagg: Not at this point. I simply wanted to bring forth the concerns of some of our members who work with this legislation every day.
[Translation]
Senator Lavoie-Roux: I want to thank Ms Bilodeau and Mr. Dagg for their presentation. Your fourth recommendation reads as follows:
d) We need a comprehensive review of the 15 year-old Access and Privacy law.
Should that not be a prerequisite to the passage of Bill C-208, because if we feel there are flaws in the Access to Information Act or in the way it is being enforced, this would be the time to correct whatever shortcomings we may have noted?
Mr. Dagg: In the past, there have been several opportunities to amend the legislation. The problem is that they did not yield any results. If we wait for a comprehensive review, we may have to wait another two or three years. This is a very complicated and political issue. Parliament will have to reach some consensus before the legislation can be amended in a way that suits everyone. That is the problem. Some organization is required here. We have a particular problem with the Defence and Health Departments.
Senator Lavoie-Roux: So, you don't think it's necessary to proceed with this comprehensive review of the Access to Information Act before Bill C-208 is passed?
Mr. Dagg: No.
Senator Lavoie-Roux: In other words, if we carried out this comprehensive review afterwards and discovered serious shortcomings requiring corrective action, we would make those changes later one?
Mr. Dagg: That is why we are putting forward our second recommendation. It should be noted that access to information legislation in Quebec provides for fines for officials who do not abide by the provisions of the act, but we wonder how many times that clause has actually been used. Ten years after the legislation was passed, there was a very serious case where some officials were fired after personal information was leaked. That was not even provided for in the legislation. They used other means in that case. For the time being, we believe there is a problem with the federal statute because it does not contain the clauses proposed in Bill C-208.
Senator Lavoie-Roux: Your position, then, is that Bill C-208 corrects certain flaws in the current Access to Information Act, but that a comprehensive review of the way in which the legislation is being enforced is needed subsequently in order that other problems can be corrected, as required?
Mr. Dagg: Yes. There are quite a few other problems. But a review of this kind requires a significant effort on the part of Parliament, if the results are to be acceptable.
Senator Lavoie-Roux: In the Access to Information Act as currently worded, was there no provision for legislative review after a certain period?
Mr. Dagg: The legislation was reviewed three years after it came into effect, but they did not want to revisit that issue. A comprehensive review was only carried out in 1997.
Senator Lavoie-Roux: Is the Quebec Access to Information Act still problematical?
Mr. Dagg: Yes.
Senator Lavoie-Roux: You are suggesting the bill be passed, as long as it is reviewed in three years' time. And even before those three years are up, you are suggesting that the Access to Information Act be reviewed. Is that your message?
Mr. Dagg: Yes.
Ms Bilodeau: Ideally, it would have been preferable to carry out a comprehensive review of the Access to Information Act before now. We heard earlier testimony from the Information Commissioner, Mr. Reid, who mentioned that his predecessor, Mr. John Grace, had presented 43 recommendations to amend the Act and that nothing had been done since 1992.
This bill only concerns one aspect of the legislation; it adds to the Access to Information Act without amending the other provisions. However, I believe the Act should be reviewed, because it has been in place for 15 or 16 years. A lot of things have changed since 1983. Increasingly we are dealing with electronic records. I think the Act should be reviewed and adjusted to fit current circumstances. If that could be accomplished at the same time the Privacy Act is being reviewed, through Bill C-54, that would be great, but I do not know whether it is possible. That bill is currently at third reading. Those are our recommendations.
Senator Lavoie-Roux: With respect to the bill amending the Access to Information Act, with the advent of electronic communications and the Internet, do you think the Access to Information Act is now more likely to be violated? That is one of the things that should be looked at to ensure that such violations are not possible. It would be easy for a public official to disseminate information on the Internet.
Mr. Dagg: I receive both documents and replies electronically. There are no regulations in place controlling that kind of access.
Senator Lavoie-Roux: So, it has more loopholes than it did initially?
Ms Bilodeau: A lot of public officials do not really consider an e-mail to be a document or record.
The Chairman: I want to thank our two witnesses. I am now going to ask the usual question as to whether you are ready to proceed with clause-by-clause consideration of the bill, although this bill only has one clause.
[English]
There is only one clause to this bill.
Senator Butts: Honourable senators, I move that the committee proceed to clause-by-clause consideration of Bill C-208.
The Chairman: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
The Chairman: Carried.
I will take you through this. This is like the litany of the saints, for those of you who are familiar with that. But I ask a question. Instead of saying "pray for us," you say, "carried" or "agreed," unless you want to ruin everything by moving an amendment.
[Translation]
Senator Lavoie-Roux: Before you start your litany, can we include in our report to the Senate a recommendation that the Access to Information Act be reviewed?
The Chairman: We can consider that after we have dealt with the bill.
Senator Lavoie-Roux: But I would like that to be part of the bill.
The Chairman: We will have an opportunity to discuss that in a moment.
[English]
The Chairman: Honourable senators, shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall I report Bill C-208 to the Senate without amendment?
Hon. Senators: Agreed.
The Chairman: Agreed. I will report the bill without amendment tomorrow afternoon.
Senator Lavoie-Roux has raised the question of whether we will incorporate in our report something of the recommendations, preoccupations or concerns that have been presented to us by two of our witnesses today. You know that in terms of the rules, the committee has the right only to report the bill without amendment, but there is a custom in the Senate that we can attach observations to this.
Perhaps I could ask you to address yourselves to the recommendations that our friends Mr. Dagg and Madam Bilodeau left with us. Do you want to recommend that this committee undertake a review of the impact of the bill in three years' time? Is that your wish, senators?
Senator Cools: Why not five years? I am curious as to whether there is some reason. I think it is a perfectly good recommendation; I was merely wondering about the number.
The Chairman: There is also a recommendation here asking that the Department of Justice and Treasury Board prepare guidelines for officials regarding their obligations under this bill.
I would have thought that would be done anyway. We can always attach this. We request that all public servants be informed of their obligations under this bill. It is probably a worthwhile observation to make.
Senator Cools: To make a request is not an observation. It would have to be scripted a little bit differently. I do not have any wording in front of me. I think the spirit of it, if it is something in a report, should be something like, "We hope that..." or "We are hopeful that it will happen..." It must be in the form of a recommendation. It cannot be in the form of a request.
The Chairman: We can urge the government.
The third recommendation states that we need a comprehensive review of the 15-year-old access and privacy laws. Do we want to take that on board?
Senator Lavoie-Roux: I think that is the most important of the four.
[Translation]
The Chairman: The recommendation of the witnesses we have just heard is that we need a comprehensive review of the 15 year-old Access and Privacy law. Do you support that recommendation?
Senator Ferretti Barth: Yes.
[English]
The Chairman: We can probably do it in our observations.
Senator Cools: We could say there is a need.
Senator Butts: We are dealing with the Information Act, not the Privacy Act.
The Chairman: When I speak to this in the chamber, I can refer to some of the concerns that have been reflected in the testimony of Mr. Dagg and Madam Bilodeau.
Senator Butts: We were told that they are dealing with reforming the Privacy Act.
[Translation]
Senator Lavoie-Roux: It is perfectly normal that the Access to Information Act be reviewed and that corrective action be taken, if need be. It seems that it is a perfectly legitimate request.
[English]
The Chairman: Our officials will prepare a draft report in terms of the observations.
Senator Cools: I would not mind taking a look at it.
The Chairman: Senator Butts will be happy to consult with you on that. These are really the observations.
Senator Cools: They are observations, yes.
The Chairman: They are not really part of the report.
Senator Cools: No, they are not part of the report, but when they are passed, they then become part of whatever is adopted by the Senate. It is a little bit more important. It does have some weight.
The Chairman: The Senate is adopting the bill without amendment. The observations are not adopted, really. They are there at the request of the committee.
Senator Cools: It depends on the motion. If it is in the report of the bill, then it can be adopted. I would not mind taking a look at it.
The Chairman: Senator Butts has made a note to get in touch with you.
The committee adjourned.