Highlights of Meetings - External Advisory Committee

May 9-11, 2001
Ottawa

Members Present
Dean Beeby
Paul-André Comeau
Norman Hillmer
Arthur Kroeger (May 9 p.m., May 10-11)
Gaétan Lussier (May 10-11)
Aldéa Landry
Wayne MacDonald

Member Absent - Paul Thomas

Facilitator - Roger Tassé

Chair - Andrée Delagrave

Presenters
Mary Anne Stevens, ATIRTF
Sherry Moran, ATIRTF
Jerry Bartram

May 9, 2001

Report on Discussion:

The following is a summary of the discussion that took place at the first meeting of the External Advisory Committee (EAC) to the Access to Information Review Task Force (ATIRTF).

Information on Access to Information Review Task Force (ATIRTF)

Andrée Delagrave, Chair of the ATIRTF, outlined the mandate of the Task Force, provided a review of the structure of the Task Force, and explained that two advisory committees are supporting the Task Force, the External Advisory Committee and the Assistant Deputy Ministers Advisory Committee. She provided historical background on ATI with a brief chronology of key events and explained that a review was taking place to modernize access in light of key changes in the way government does business; changes in information technology; and to acknowledge evolving expectations of Canadians and public pressure.

The Chair then reviewed the work of the Task Force over the past few months and explained the information on the Task Force available to the public on its web site.

General discussion turned to the quasi-constitutional status of the Act in that it overrides the provisions of other acts unless specifically provided in statutes. Other statutes such as the Human Rights Act, the Official Languages Act, and the Privacy Act have similar status. Although practices, statutes and conventions can all be used to enrich the intent of the Constitution, a suggestion was made that an item for future discussion might be the merit of special constitutional status for access.

EAC Terms of Reference and Approach

Members reviewed the EAC's Terms of Reference and discussed the Committee's role to provide advice and act as a sounding board. There were no changes to the Terms of Reference as drafted. However, Members indicated that they felt some need to speak for the constituency they were from. Members also discussed procedures for meetings. It was agreed that a summary of discussion would be prepared by the Task Force after each meeting. A copy of the summary will be sent to Members for review prior to posting on the Task Force web site. There was consensus that the summary of discussion would not attribute comments to members by name, but some Members advised that they would expect to publicly discuss their own viewpoints. There was general agreement that members would be free to discuss issues on the understanding that they would not discuss the positions of other members and that advice by the EAC is likely to evolve as members explore different views and look at different options. It was agreed that the Task Force will provide support to Committee Members. Meetings will be conducted with language interpretation, space permitting.

Proposed Issues for Discussion

Members reviewed a list of proposed issues for discussion reflecting the issues outlined in the Consultation Paper. In addition to these issues, Members asked to discuss resources for ATI, including ATIP offices and the Office of the Information Commissioner; how to change the culture of the Public Service to make it more transparent; and an explanation of the system of classification of documents be added to the list of issues. It was agreed that at any time Members could suggest further issues for discussion.
Follow-up: Issues for further discussion will include resourcing for ATI, public service culture, and an explanation of the classification of documents.

ATI Background Information

The EAC was provided with background data related to the current ATI framework. Questions were raised on available information on the costs of ATI. Members were supplied with the 1999 Consulting and Audit Canada study on costs. This study is posted on the Task Force web site.

Key Findings from Other Jurisdictions

The Task Force Chair gave a summary of the insights gained by the Task Force from other jurisdictions. Information was gathered from interviews with the Information Commissioner or equivalent, the departments responsible for the legislation, the departments responsible for the administration, and users. The Task Force Chair noted in a general way that there were many commonalties among jurisdictions, outlined key differences with the Canadian regime, and some of the features from other jurisdictions which could provide the review with food for thought. More specific information on other jurisdictions will be provided for each issue discussion.

Task Force Problématique

Members discussed the Problématique drafted by the Task Force to articulate the work and mission of the Task Force. This document is a tool for the Task Force and is evolving to incorporate new insights and learning as the work of the Task Force progresses. The Members agreed with the objective of modernizing access and were pleased that it was put in a broad governance context. Some Members indicated they would like to see the problematique statement to be more citizen focussed and reflect that the onus is on government to provide information in a way that supports a vibrant democracy.

During the discussion Members also commented on their own observations on issues related to ATI. Members noted the changes that have taken place since the Act was first introduced. These changes include technological advances, increased citizens' expectations and the way in which records are managed within government.

There were several references to the impacts of culture on the implementation of a more open and transparent ATI framework and it was agreed that the impacts of culture would be an issue that would require further consideration throughout discussions on other issues.

In terms of technological advances, while it was acknowledged that this could be used to provide more information to citizens, concerns were expressed that it could be used to sanitize or provide less information. It was pointed out that technology is advancing at such a rate that information stored on fast outdated formats can be difficult, if not impossible, to retrieve.

May 10, 2001

Report on Discussion:

Principles - Purpose Clause (s.2) Access to Information Act

Members were asked to consider whether the purpose clause of the current legislation is still relevant. Several Members noted that the title of the Canadian legislation is different from other jurisdictions and questioned whether the Canadian statute should be renamed "Freedom of Information". It was discussed whether one of the reasons for the current title was to distinguish it from the U.S. Act and the difficulty of rendering the concept of "freedom of information" into French.

Others expressed concern that the intent of (s.2(2)) was not always followed in that there are examples (30-year rule) where the ATI Act has in practice limited access to government information which was previously available.

It was suggested that the true purpose of the Act may not be to "provide" a right of access but to "enshrine" the right of Canadians to information.

Discussion on this issue ended with a consensus that the purpose clause of the ATI Act is still a valid statement but Members agreed that they may want to revisit this issue.

Overview of ATI

The Members were provided with an overview of the ATI Act and how it is administered. General discussion followed on the impacts of the Act on how the Public Service functions, how records are kept and the availability of information. It was agreed that an issue for further discussion is the division of access and privacy and the responsibilities of the Information and Privacy Commissioners.
Follow-up: Item for further discussion - access and privacy and the responsibilities of the Information and Privacy Commissioner.

What the Task Force Has Heard - Public Service Experience

The Task Force Chair gave Members an overview of the comments and input received during consultations with a cross-section of groups within the Public Service. Members suggested that the Task Force interview Ministers and their staff to understand their experience. The Task Force was also asked if increases in efficiencies and openness in the last 18 years could be documented. The Chair of the Task Force indicated that there are no statistics but that the Task Force was gathering data on best practices and improvements.

During the discussion the importance of culture was again raised. Members see the impacts of culture as both critical and fundamental to establish a more open and transparent government. Also discussed was information management and classification of documents. It was suggested that a proactive policy be developed to classify documents for automatic release, possibly on the web.

Persons Right of Access

There was discussion on whether the right of access under the ATI Act should continue to be restricted to Canadian citizens, permanent residents and those present in Canada, or be extended to all persons. The broader approach is that taken in most other jurisdictions. Despite concerns about a possible increase in the number of requests and related costs, Members generally agreed that extending the right of access to all persons would provide reciprocity with jurisdictions that allow Canadians to make requests under their freedom of information statutes and would help to change the perception abroad that Canada is falling behind other jurisdictions in ATI.

Fees

There was discussion on the current fee schedule. Questions were raised as to the purpose of fees and whether they act as an appropriate incentive for requestors to focus their requests. There was general recognition that the fee schedule could never reach full cost recovery, nor was it advisable. Some Members were concerned that any fee increase would only affect individuals or small organizations using the legislation. A majority of Members favoured eliminating the $5 application fee, at least because of the symbolic value that would have. Some expressed the view that the existing schedule of charges for search and preparation, copies, etc., is the only means of providing discipline to the system. There was support for the idea that a graduated fee schedule could be designed based on the volume of information released in response to a request.

Time Limits for Processing Requests

There was discussion on whether time limits contained in the ATI Act should be adjusted.

Some Members indicated that the current provisions of Section 9 seem to provide the flexibility required and institutions should apply these provisions if required. Others commented that time limits are closely linked with the issue of adequate resourcing and even the issue of culture within an organization. A suggestion was made that the Task Force should explore the advisability of introducing time limits for the Information Commissioner to dispose of complaints.

Some Members were concerned that requests from the media automatically generate a more guarded response requiring more levels of approval, and as a result take more time to process.

There was some discussion of possible penalties for missing deadlines, from either losing the right to collect fees, to losing the right to apply discretionary exemptions. In Quebec, penalties have had a very positive effect on delays.

There was general agreement that all requests should be posted on the web and that once information has been released, it should be widely distributed in most cases, e.g. posted on the web.

There was general agreement that time limits should be changed from calendar days to working days.

Administrative Limits

The role and function of administrative limits in the ATI Act were discussed. Members discussed whether the current situation - fees being the only tool to discipline requests - is appropriate or if additional mechanisms should be added as in other jurisdictions. General concern was expressed about the negative impact of a provision to control a few frivolous and vexatious requests might have on all legitimate requests. One suggestion was to add a new section to the Act but avoid attributing motives to requesters. Members requested examples of what are perceived by departments to be abusive requests so that they would have a better understanding of the impacts. And also requested an overview of how other jurisdictions address the issue be provided and brought back to the EAC.

There was consideration of the difference between systematic, repetitive, or abusive requests, and very large requests, and that the approach taken to them should be different.

There was a recognition that we have to look at the spirit of the Act and that access is a right but as with all rights it has limits.
Follow-up: Task Force to provide additional information on what might be considered abusive requests to discuss with EAC.

May 11, 2001

Report on Discussion:

Scope - Institutions (Schedule I)

Dr. Jerry Bartram, a consultant working for the Task Force on the issue of Scope - Institutions, explained to Members that the issue of which government institutions are covered by the ATI Act has been a concern since the Act was proclaimed. The Committee was provided an overview of previous recommendations and approaches in other jurisdictions.
Dr. Bartram explained that there are currently no criteria for including or excluding institutions in the ATI Act. General discussion took place regarding possible criteria and the impact of inclusion for different types of entities. This issue will be discussed again.

Statutory Prohibitions (s.24, Schedule II)

The Committee discussed section 24 of the ATI Act which provides a mandatory exemption for records containing information the disclosure of which is restricted by one of the statutes listed in Schedule II to the Act. The issue is whether section 24 should be amended or repealed. Members felt that the issue needs to be reviewed but, without more background on the statutes listed on Schedule II, the EAC was unable to offer informed advice. Members recommended that an on-going arms length process, such as a Parliamentary committee, be put in place to review the schedule. The Task Force was asked for more information on how Canada's legislation compares with that in other jurisdictions and whether a transition period would be required in the event that Schedule II is reduced or repealed.
Follow-up: Task Force to provide more information on approaches in other jurisdictions.

Time Limits: Exemptions/Exclusions

The Committee discussed the issue of whether time limits should be imposed on any or all exemptions and exclusions in the ATI Act. Members were especially interested in the 30-year rule that was in place before the ATI Act and how it was affected by ATI. Concern was expressed that the ATI Act had effectively restricted access to information previously available under the 30-year rule with significant impacts on historical research. It was agreed that this issue required further exploration.
Follow-up: Task Force to look into the specific concerns raised and report back to EAC.

Published Material

Members discussed whether a definition of "published" should be added to the Act to encourage more proactive electronic dissemination of governmental information. More departments and agencies are posting information on their web sites and the question is whether, and in what circumstances, this information should be considered published for ATI purposes. Members discussed how technology had changed since the Act was first enacted. Concerns raised included the number of Canadians without access to the Internet and the difficulty of finding information on government web sites.

Next Meeting

May 28 - 29, 2001

External Advisory Committee Highlights