Highlights of Meetings - External Advisory Committee

MAY 28 - 29, 2001
OTTAWA

Members Present
Dean Beeby
Paul-André Comeau
Norman Hillmer
Arthur Kroeger
Aldéa Landry
Gaétan Lussier
Wayne MacDonald
Paul Thomas

Facilitator - Roger Tassé

Chair - Andrée Delagrave

Presenters
Mary Anne Stevens, ATIRTF
Sherry Moran, ATIRTF
Barbara McIsaac
Dave Stephens

May 28, 2001

Report on Discussion:

The following is a summary of the discussion of the meeting of the External Advisory Committee, May 28-29, 2001.

Key Insights From Other Jurisdictions

Members continued their review of ATI regimes in other jurisdictions. Articles and observations made during a recent visit to Canada by Professor Rick Snell of Australia were shared with Members. Discussion related to the best features of other jurisdictions and whether any would be appropriate for the Canadian ATI framework. Members expressed an appreciation for the New Zealand approach which emphasizes when information should be released rather than if. Members recognized that the New Zealand approach was working within a political and bureacracy context which is different from that of Canada. According to Professor Snell, Canada's access context is closer to Australia's in its legalistic and adversarial approach. Lessons from the New Zealand model included the importance of stated values, clear policy focus and trust between the various players. Members supported the pro-disclosure emphasis found in other jurisdictions such as New Zealand and Sweden and discussed changes to the Canadian framework that would provide a presumption in favour of release in law and in practice.

The Task Force will provide more details on some aspects of the New Zealand framework at a future meeting.

Towards A Better ATI Regime

A general discussion followed on desirable traits for an ATI regime. Members support a framework with a focus on release of information (instead of its protection) but advised that a move towards more openness and transparency will require a change in culture within government both at the political and bureaucratic level. The significant challenges of shifting culture and the importance of getting rewards and incentives right were part of the discussion that followed. Members recognized the difficulty of fostering openness in government when public expectations were for "error free" government. The EAC agreed to have a further discussion at a subsequent meeting.

There was strong support among Members for recommending improvements to data collection and reporting on ATI. Members felt improved ATI data collection and reporting should be a priority for the Task Force. Members repeated concerns over information management in government and its negative impact on access to information. Information management will be discussed at a future meeting.

Members discussed how best to articulate the principles of openness in the legislation. However, should principles be included in a preamble or a purpose clause, they would have to be carefully drafted to ensure that requestors are treated equally and that principles are not used to restrict access on the basis of motivation of the requestors.

Some of the factors identified as key traits for the design of the ATI framework were: link ATI to a broader purpose; promote public understanding; state clearly fundamental principles; achieve appropriate balance between legislative and administrative measures; include a service orientation; get incentives and reward right to foster cultural change; ensure competent, stable, resourced and supported ATI staff; ensure compatibility with the nature of the relationship between ministers and public servant and its evolution; encourage ministers to support openness; encourage interest in Parliament - educate Parliamentarians about ATI; provide leadership and accountability; provide training for all levels of public service - fostering understanding and support for ATI principles; include a principle of "release unless" good reasons; foster co-operation between the Information Commissioner and public service in resolving issues and promoting access, and respect for all the players in the system.
Overall Structure of Exemptions - Public Interest/Injury Tests

Barbara McIsaac, a lawyer doing research for the Task Force, provided an overview for Members on the structure of the ATI Act and explained the elements of exemptions under the Act. The exemptions can be categorized as either mandatory (where the institution must not disclose) or discretionary (where the institution may choose to disclose). In the current framework mandatory exemptions are used to cover information that is provided by a party outside the government (individuals, other governments, commercial third parties), whereas discretionary exemptions are used to cover information that is originally collected or created by the government. She spoke of the Canadian experience and described other models and approaches. She noted that the interests protected by exemptions in the Canadian legislation are the same ones that are protected in the legislation of other jurisdictions. The Canadian legislation contains various specific public interest or injury tests but does not have a general public interest override or general injury test. The appropriateness of including one was discussed as well as the issue of who should be the ultimate judge of the public interest. Ms. McIsaac echoed the concerns of the members about the lack of comparative data available that could help in assessing the current Act. Ms. McIsaac offered her view that the Canadian Act is generally a good piece of legislation. It has a sound structure, is easy to understand and well drafted when compared to the freedom of information legislation in other jurisdictions. Members discussed the impact of the wording of the Act on the delivery of ATI and whether incentives for release could be built into the legislation.

Issues Related to Exemptions/ Exclusions

Members reviewed the exemptions and exclusions included in the ATI Act. A description was provided for each exemption/ exclusion and Members were given an overview of previous recommendations or suggested amendments as they related to each section. Last year, where complaints were about the application of exemptions, the Information Commissioner agreed with the government in almost 80% of the cases. There was discussion of some anecdotal evidence that suggested that where an exemption was available, it was claimed without a lot of weighting of the public interest. Members asked several questions about departments' practice of claiming exemptions/exclusions including if appropriate guidelines were provided to public servants. Members will be provided with the Treasury Board policy and guidelines on exclusions and exemptions. Again discussion turned to the importance of maintaining useful data and the importance of establishing a culture of releasing information. It was agreed that the EAC would have a further opportunity to review issues related to exemptions and exclusions.

Operations of Government Exemption - s. 21

Dave Stephens, a consultant completing a report for the Task Force on the exemption related to the operations of government, provided an overview of the key elements of section 21 of the ATI Act. Members discussed the interests the exemption is intended to protect (ministerial responsibility, full and frank advice to ministers, neutrality of the public service) as well as the respective roles of Ministers and public servants and the evolution of these roles. Included in the discussion was the possible addition of a list of records which would not qualify for the exemption and coverage of advice and recommendations provided by consultants in some instances. Members were of the view that, as in the New Zealand approach, it is important to be clear on the interests s.21 is upholding and ensuring that it is not out of step with current practice. Mr. Stephens indicated that his work on section 21 is in progress and thanked Members for their input and comments. It was agreed that further discussion on s. 21 would take place at a subsequent meeting.

Cabinet Confidences Exclusion- s. 69

Members participated in a discussion of issues related to Cabinet confidences, specifically section 69 of the ATI Act. They reviewed the components of the section, approaches in other jurisdictions and previous proposals and recommendations. Members expressed strong support for changing Cabinet confidences from an exclusion to an exemption under the legislation. Members impressed upon the Task Force the importance of its recommendations on this section of the legislation in that what is recommended with respect to the exclusion for Cabinet confidences will be viewed as a signal from the government of its position on openness. At the same time Members acknowledged the challenge in reviewing s.69 is to maintain a balance between the value of public access and the value represented by Cabinet solidarity and the additional challenge posed by the provision of s.39 of the Canadian Evidence Act.

Next Steps

Research progress was discussed, including how best to ensure that the Committee is both informed by research and has the opportunity to provide its views about the issues to be considered and the research to be conducted.

The research papers discussed are at different stages of completion with some almost finished while others are at a much earlier stage. Most should be completed in June, however, the research program is still evolving, with new issues for research being suggested by the two Advisory Committees to the Task Force. The Chair of the Task Force clarified that research will inform the recommendations of the Task Force, as will consultations and advice from the Advisory Committees, but will not determine them. It was agreed that as much as possible, the researchers working on an important piece of research will be invited to discuss it with the Committee. The Committee explored the possibility of an extra meeting this summer to review final research results, but no decision was made.

Finally, the Committee was of the view that its essential role was not to study in-depth each provision of the Act and recommend specific amendments but to provide overall principles and approaches to guide the Task Force in dealing with specific issues. It is agreed that on June 25 and 26, the Committee will discuss overall directions for reform of the Act in light of their previous comments and recommendations.

Next Meeting

June 5 - 6, 2001

External Advisory Committee Highlights