External Consultations

Proceedings for Review by Participants - Roundtable on Access to Information Review, Ottawa - June 6, 2001

Conducted by the Public Policy Forum

Facilitator: Paul Lepsoe

Participants introduced themselves and stated their key areas of concern. Issues raised included:

• the spirit of the Act and the matter of solicitor/client privilege
  
  
• whether this privilege exemption is being used according to the spirit intended, or expanded to include any discussions in which "there was a lawyer in the room"
  
  
• the need for quicker and easier access to information
  
  
• the perceived lack of a "culture of openness" within government
  
  
• the perception of a "Lack of Access to Information Act"
  
  
• delays and inconsistencies in what information is ultimately received
  
  
• information that is "blacked out", exempted or denied
  
  
• protection of privacy of third-party information, particularly that relating to private companies
  
  
• the irony of holding closed-door sessions to discuss the Access to Information Act. (A participant reported that many others had commented on this to him, prior to the meeting, and that he voiced a strong desire to discuss the format of the consultations themselves.)
  
  
• the need for accountability, particularly in relation to health care
  
  
• information is never received within 30 days

Nancy Averill gave an overview of the submissions and telephone input from stakeholders:

Context

• The growth of electronic formats has meant that more information is available and there are new methods of retrieval.
• Globalization has ATI implications.
• How can the revised ATI process complement the alternative service delivery, new public management and citizen-centred services? What is the appropriate balance?

Scope

• There is inconsistency with regard to ATI across government departments.
  
• A proactive release system was advocated.
• Exclusion from the Act of Crown corporations, First Nations and public / private partnerships is an issue.
• There are gaps in privacy versus access.
• Protection of personal information and trade secrets is an issue.
  

Implementation

• There is inconsistency in the application of the Act across government departments.
• Fees are an issue - should there be any? Should the structure reflect the cost? Are they consistently calculated?
• Delays are a deterrent.

Redress

• Delays in rendering a decision are an issue
• The role and powers of the Information Commissioner should be discussed
  
• Merging the roles of the Information and Privacy Commissioners should be considered

Overall concerns

• The lack of an overall government standard for interpretation constitutes a barrier.
• The complexity and variety of the system results in requests being put in the hands of consultants.
• How can the Act be used to foster trust?

Participants first discussed the context and design of the Act, focussing on Section 2, the Purpose Clause.

• The “purpose behind the Act” will not work unless those behind the bureaucracy believe in free and open information. What was intended as the minimum amount of information to be released has become the maximum amount. The concept of openness must “start at the top” and reward openness on the part of employees, "as opposed to the current system".
  
  
• The manner in which issues are approached should not be "public versus private". For example, with alternate service delivery, since public money is used, the public has a right to know how the money is spent.
  
  
• Many past scandals were based on senior level perks. These are now private money perks, giving these same bureaucrats the power ‘lost’ through the public Access to Information.
  
  
• The purpose of the Act was to allow public participation and government accountability.
  
  
• The sensitivity surrounding the decision-making process is largely a logistical, administrative issue. The original context of the Act focussed on transparency, while jobs and the economy are now based on information - to have and to use. This has resulted in new pressures, as the government is the single largest holder of information on the economy.
  
  
• Has the Act has made any difference at all? Previous attempts to address this concern about the "closed door" meetings had not been met with a response.

The facilitator noted that he had heard concerns about the nature of the consultative process from a number of participants and would be willing to have the topic added to the agenda as a separate item if the group were willing to remain longer into the lunch period. All agreed to delay lunch in order to allow time for this item but still finish the previously –announced agenda for the substantive discussion in the time allotted. .

• Civil servants now seem to be watching what is recorded, taking care to code and protect material they do not want released. They are concerned about what could happen to them if the information is released. New information management styles have to be developed to include e-document management.
  
  
• There is a “siege mentality”, based on the underlying assumption that information is requested because “you’re out to get us”. Noting that most Access requests “want information for information’s sake”, individuals need worry only if they have done something wrong.
  
  
• People have learned to protect themselves from the Act. For example, a nuclear facility organization changed its minute-taking style once it realised its minutes were accessible through the Act. The organization now records only decisions, not the discussions leading up to those decisions. This is undesirable from both a journalistic and administrative point of view. There are now no records detailing why certain decisions were made, a matter of concern for the future safety of the facility.
  
  
• Unless questions are phrased "exactly right", those requesting information receive no information. Any missed term or title will result in no release of information. Those outside government often know more about programmes than those working inside government do, as government employees may rotate through job assignments every 24 months.
  
  
• The 1983 wording of the Act reflects the mindset of 1983. Conversations on the subject, "even around this table today", now include words such as ‘war’ and ‘state of siege’. The purpose clause of the Act should no longer refer to “records under control of the government”, but should be amended to read “under control or in partnership”. This would give access to some, but not all, private company information-only that relevant to public work.
  
  
• This section of the Act was not meant to refer to records but to information, with the emphasis on public information.
  
  
• A private sector participant noted that the value and wording of government contracts with the private sector could generally be disclosed.
  
  
• Accountability must be captured in the Act.
  
  
• While the word “accountability” may not be in the text of the Act, the entire Act was built on the foundation of parliamentary accountability, and is about accountability.
  
  
• While accountability is now implicit in the Act, it should be made explicit. Who among the drafters of this legislation would have ever thought that the Information Commissioner would be suing the Prime Minister? For this reason, accountability must be explicit.
  
  
• Accountability is to the public; Parliament is merely an intermediary.
  
  
• With privatization of public sector organizations, there ceases to be access to information, a serious issue that demands addressing.
  
  
• Crown Corporations should not be excluded as a category. Plutonium waste at Chalk River was not removed, and yet information regarding the situation was exempted from the Act because the operation is a Crown Corporation. Salaries of television hosts provide another example-those on TV Ontario were disclosed under provincial law, while those with CBC were not as the latter is a federal Crown corporation not subject to the Act. The Canadian Medical Review Board-unpaid and providing full information disclosure-was contrasted with the Canadian Foundation for Innovation (CFI), whose board is paid but does not disclose information even though it uses public money and acts ‘for the public good’. It is precisely for this reason that information on the CFI should be accessible.

A participant noted the implications of the proliferation of what he called “quangos”, which are not subject to the Act. The facilitator noted that “quango” was a British acronym which stood for “Quasi-Autonomous Non-Government Organization”.

• A functional definition of institutions needs to be included, and we should move toward data protection legislation. There is also a need to look at exempting information on the basis of the content itself rather than based on the institutions holding the information.
  
  
• CBC has suffered by not being included all these years: a “culture of secrecy has strangled the place”. This is an example of what happens to institutions that are not open, and the CBC must be included for this reason.
  
  
• Given the gaps in the design and purpose of the Act, should there be a public interest override? As some have changed records in an effort to ‘adapt’ to the Act, the exemptions should be more restricted.
  
  
• A non-profit organization housed at the Corrections Canada offices is exempt. There is no information available on the organization’s spending of the public funds it receives.
  
  
• There are mandatory and discretionary exemptions, and the public interest override should extend beyond the privacy exemption.
  
  
• The Commissioner does not have the power to order the release of information. He can only make recommendations. If the Commissioner were to have order-making powers for information disclosure, the public interest override should be applied consistently, as a blanket application is “not good either”.
  
  
• “Cabinet Confidences should not be exempt”, stated one participant calling for reason in the use of exemptions.
  
  
• Information initially denied on grounds of privacy was later included in a CD-ROM that was published and sold at “exorbitant cost”. When the participant inquired again about the information, she was instructed to buy the CD. Upon asking for only the background information (as originally requested), the request was again refused on privacy grounds.
  
  
• Information on an agreement that affected Public Service Union members is protected, but how can any information be provided without harming some private competitive advantage.
  
  
• A blanket exemption goes against the spirit of the legislation.
  
  
• The Judge Advocate General (JAG) at DND used ‘solicitor-client privilege’ to keep documents which the Ombudsman later released. The JAG has still not released the information. The Ombudsman had said there was no client-solicitor relationship-he was not a client and the JAG was not his solicitor. § Health Care is our largest spending area, yet much information is exempted and not much, if any, is shared. Accountability, authority, and sanctions are needed. The Deputy Ministers of Health are meeting but "we can't get the agenda".
  
  
• A participant wondered “Who decides?” The participant argued that it is those with a vested interest in secrecy who have the authority to decide whether information is released. The participant “wouldn’t be against a harm test” as a tool for determining which information can and cannot be released.

The facilitator invited comment, in terms of right of access, regarding the requirement for access requests to be filed in Canada by persons present in Canada.

• From outside Canada one simply needs a friend in Canada to obtain information; there is no need for a “high-priced lawyer”.
  
  
• It is easier to acquire information from the United States and the United Kingdom than it is to obtain information in Canada.

Implementation

After a break, the discussion turned to the implementation of the Act. The facilitator drew the group’s attention to the discussion points on pages 8 and 9 of the consultation paper, and particularly question 5.1. The following comments were made.

• When ATI was first introduced, it was hard for departments to respond to a request within the time lines because the information was hard to find. Information management was and still is deplorable and contributes to the cost of ATI. Information management has suffered with cutbacks. There is no accountability regarding the length of time it takes to respond to a request or the condition the information is in when it is delivered. A creative solution would be to make the holdings available unless there is a reason to exclude a particular item. It should be published to an electronic information system that the public could access.
  
  
• Journalists laughed when asked if the 30-day commitment is ever met. They reported delays of up to two years. The problem is not only the delay: no reason is given, and no indication of when the information may become available. Delays are often the result of staffing and funding problems rather than deliberate withholding of information.
  
  
• The problem is twofold. The government is stonewalling those requesting information, and caseworkers who are supposed to helping with requests in information offices are not pushing hard enough to get it for them.
  
  
• The government does not know what information it has. The information should be inventoried and released routinely. Forms make it difficult to sever personal information from general information. The system pays no attention to potential requests; they should be anticipated. The 30-day commitment is not respected and cannot be. Better document management and better proactive procedure is needed.
  
  
• The onus should be on the government to expand its resources to make sure it can follow its own guidelines-the 30-day promise, for example. This is necessary for transparency.
  
  
• ˜While more resources would help, they will not change the fact that the information management task has been neglected at the business unit level. (A business unit is an organizational piece, a logical cluster under a program or activity.) Records management protocols have not been followed, even though they are in place, and there is no accountability. There is no inventory of information; often it is only on the C drives of computers. This escalates costs because it cannot be found.
  
  
• There is no anticipation of requests.
  
  
• The public will not tolerate the government internal processes now that there is new private sector legislation. High fees will not be tolerated either. The paternalism of waiving of fees should not be relied upon.
  
  
• The fatal flaw in the Act is that enforcement is lacking and there are no incentives for self-enforcement. It is similar to the issue of ethical behaviour.
  
  
• Perhaps all access to information coordinators should work for the Information Commissioner, just as all government lawyers work for the Attorney General.
  
  
• With regard to records management and access, a major part of the inertia is that inventory and collection are just not there any more. In the past a file used to contain all the history of an issue. These days, when one takes over a file one starts from scratch and when one leaves there is no one to hand over to. With technology and movements of departments there is a great need for document management. The access law imposes a regime on the government, so it performs a service whether or not people use it. Because of the messy state of information within the government, people are reluctant to open up.
  
  
• In Quebec it is mandatory to inventory all documents.
  
  
• The process has become politicized. For example, the establishment of a list of what ATI requests have been made to the Prime Minister’s Office has profound implications for democracy.
  
  
• Resources are applied to keeping information from going out. A request often triggers a search for leaks, because it is thought to be the result of a tip-off.
  
  
• When a department causes delays, it should not be allowed to charge retrieval fees. The Information Commissioner should have the ability to track requests in a systematic way. The results of a review of all the departments’ performance should be published. Requests should be tracked as they go through departments. This could result in changes in the worst offending departments. An ATI request could be made to follow ATI requests.

The facilitator drew the attention of the group to the data on page 15 of the consultation paper, and to question 5.5. The discussion continued as follows.

• There is no discussion of the benefits of ATI, just the costs. A more philosophical position should be taken and cost recovery should be “stamped out”. The public has already paid for the information. At Statistics Canada, cost recovery is built into its enabling legislation, but in the United States access to this kind of information is free. The notion of charging for information is contradictory. It is not the government’s to sell, so cost recovery should not be an ATI principle.
  
  
• Cost recovery is prohibitive to many people looking for information in the health and safety field. They turn to the Internet, where the information is not always reliable or useful.

The facilitator drew the group’s attention to questions 5.3 and 5.4 of the consultation paper. The discussion continued as follows.

• There should be no categories; all requesters should be treated equally. Often the walls of secrecy go up when it is learned that a requester is from the media. Only when applying the public interest override does the nature of a requester (e.g. media) become a factor.
  
  
• Has the Task Force uncovered information about the class of requesters? This seems to be a question without context. The United States seems to like having different categories; maybe it works somehow for them.
  
  
• Since the cost of filling 14,340 requests came to $28 million (about 100 requests per department) the system does not appear to be being abused. This does not explain the delays or costs. It is probably not necessary to define numbers or categories.
  
  
• Serial requesters are disruptive to the system, but if access laws were working properly, the number of requests could diminish.
  
  
• In the United States the requests from media are expedited, because they are in the public interest and speed is usually an issue. It seems to work. The fee system should be based on cost recovery. The $5 fee creates more paperwork than it is worth. Retrieval and copying fees should be based on market prices. There should be no profit in disclosing information.
  
  
• The serial requesters are the people in the business of using the Act. If it worked properly, these people would disappear.

Redress

The facilitator drew the attention of the group to the first question on page 10 of the consultation paper. The discussion continued as follows.

• The process and powers of the Ontario Information and Privacy Commissioner are superior to those of the federal Information Commissioner (IC), who should have broader powers, including power over the records management system. The figures in the consultation paper do not show whose fault the delays are - it looks like an internal records management problem. The Information Commissioner’s power should cover this.
  
  
• The IC should have the right to collect information about the retrieval process, compliance, and delays. That would make it possible to see where the problems are. It should be possible for the IC to track a request.
  
  
• The IC should have more authority. Accountability goes with authority, as in the Justice model, where the ATI coordinators would report to the IC. To whom should the IC be accountable - Parliament or Canadians?
  
  
• Well-trained people with consistent practices would be a money saver. The IC should be accountable to Parliament.
  
  
• Since Treasury Board established the budget, underfunding looks politically motivated. If the IC’s budget were voted on in Parliament separately, rather than as a part of the whole budget process, it would be exposed to more scrutiny.
  
  
• The IC should have the power to levy penalties. Lack of penalties rewards delays, exemptions and non-compliance. The penalty should be like a library fine, increasing with the delay. There is currently a sheriff in jail in Florida for ATI non-compliance.
  
  
• There are fines and jail terms for non-cooperation with income tax and census laws. However, it would be difficult to assess who is ultimately responsible for delays and not finding the information.
  
  
• The manager of a business unit should be as accountable for information handling as for his or her budget. Currently they have no knowledge of what they have and they do not apply the same importance to it as they do to managing their budgets. The incentive for changing the mindset of government should be examined. How much information is available without ATI, already in electronic format? The protection mentality must be reversed.
  
  
• There does need to be protection for employees reporting others (superiors, for example) who are thwarting the ATI process, like whistle-blower protection. This would help in the Redress process.
  
  
• Giving the IC order-making power legitimizes the ATI process, results in greater access and develops binding precedents.
  
  
• Question 6.3 in the consultation paper assumes staying with the same model. That route of staying with the ombudsman and the Federal Court is inappropriate. It would be better to enhance the powers of a specialized tribunal.

Consultation Process

An extra topic, “Consultation Process”, was added to the agenda. Participants were informed that the roundtable infrastructure would stay and reconvene after the lunch break if desired. The facilitator and Ms. Averill outlined processes of the establishment of the Task Force and the stakeholder consultation.

Participants made the following comments about the consultation process.

• MP John Bryden has announced that 14 MPs will sit through the summer in open sessions on ATI in Room 306 West Block. The sessions will not be reported in Hansard, although there will probably be a transcript.
  
  
• The Ministerial decision on the structure of the process is of concern. Agencies are reviewing themselves. These agencies are involved in litigation, defending the restrictive interpretation of the Act. It brings into question the impartiality, integrity, and fairness of the process. Factors of good consultation are missing: resources are lacking; the external advisory committee was appointed late; the time frame is compressed. This process violates the draft guidelines on how to consult with the public, which are currently before Treasury Board. The process is low on the Ladder of Citizen Participation-it is at the level of manipulation by government. The speaker said he was in attendance to protest; his participation was not an endorsement of the process. He said he hopes that this will not be the only opportunity for consultation, that the public will be consulted in a meaningful way, following best practices in citizen consultation.

To avoid several participants feeling the need to take the time to “go on the record”, the facilitator indicated (with the concurrence of Ms. Averill of the Public Policy Forum) that the recored of the proceedings would specifically note that participants were assured that participation in this consultatiave process would not be construed as agreement with the process itself: people did not have to agree with the process in order to participate.

• Several groups supported public hearings. Choosing the groups allowed to participate in the roundtable, rather than holding public hearings, is a semi-privatization of the democratic process. There should be an all-party Parliamentary committee. This roundtable should not be a substitute for the democratic process.
  
  
• Many people declined to participate because the process could be a “whitewash” of their opinions. One of Canada’s top academics on the subject of access to information tried to obtain the Task Force documents and found that some were held back. He is not taking part in the process, as it would seem to be an endorsement. Bureaucrats have had years and resources to prepare for this process. Why has there been no money for a benefits study, if this is the only process?
  
  
• The three weeks’ notice to participants was not adequate. The Task Force or Public Policy Forum should consider asking the opinions of the 19,000 requesters of information from last year. It would be a more systematic way to review.

Ms. Averill confirmed that the PPF would pass on to the Task Force the comments on the consultation process. A draft copy of the minutes from this roundtable would be circulated within seven days and, after people had had an opportunity to comment, they would be posted on the web sites. The outcomes reports from the roundtables will form the basis of reports to the Task Force.

In response to a question about further input, a member of the Task Force, said that other opportunities would be considered. Also, submissions to the Web site are encouraged.

A representative from the Task Force said that while the deadline is somewhat flexible, submissions cannot be left too long. The clock is dictating deadlines for submissions and roundtables. The Task Force report will be released to the public. Participants were told that the summary of discussions from this roundtable would be distributed to them for comment and were invited to provide PPF with their e-mail addresses.

Wrap-Up

The facilitator invited participants to each make a one-minute concluding comment. He re-iterated that the roundtable would reconvene after lunch if necessary. Participants made the following comments.

• The Act is generally good, but changes should be made in the application as well as in the tools given to people. More responsibility should be taken for the process. Protection of personal information should be retained. § It is reassuring to find out that others are being thwarted by ATI too. The spirit of the ATIA is not being enforced, as there is no political will to do so.
  
  
• It was never discussed at this roundtable whether more openness would be good or bad for government.
  
  
• As a result of ATI, no one keeps notes for fear those notes will be accessed. The result is that no one knows how decisions are made.
  
  
• Today’s discussion illustrates the need for an in-depth public review of the legislation with regard to exemptions and institutions. The few minutes spent discussing exemptions at this roundtable did not really amount to an analysis or a study.
  
  
• The goals of the review should be three-fold: making access as great as possible; making it as timely as possible; and ensuring that it is inexpensive or cost-free.
  
  
• Those present at this roundtable are only a small segment. The discussion should be projected to the whole nation.
  
  
• ATI is not just a challenge; it is an impediment.
  
  
• It is shocking that little of the Act’s purpose is evidenced in its application. Real work must be done on who and what is covered by the Act. It is repugnant that this review is being carried out on such short notice. The IC should be given greater and wider powers. The huge issue of contracting out needs more thought.
  
  
• Currently the incentives in the Act to violate it and deny access are much greater than the incentives to comply and give access. If this imbalance does not change, the current situation will not change. The incentives add up to not protecting the public interest. Enforcement may be needed rather than incentives.
  
  
• The consideration of electronic information should have been added to today’s agenda. With the electronic age, the IC must have more power to respond quickly.
  
  
• The ATI legislation is sound in intent, but it was prepared as a fallback. The current mindset must be changed and public servants should be protected from being penalized.
  
  
• Public funds should be devoted to some basic research on the benefits and value of ATI. The short timelines for this consultation are a problem, particularly in the academic world. The inconsistency in implementation and administration of the ATIA must be addressed.
  
  
• This roundtable did not deal with exemptions, particularly third party exemptions that are subject to immense abuse. The Act sets an ominous tone because it is based on exemptions. Hopefully the tone will change with the review. The burden of proof should be with the government, not the requester. Hopefully the issues of privacy will not co-opt ATI.
  
  
• More discussion must take place on exemptions and enforcement.
  
  
• The major problem with ATI is that the people who have the power to change it are the people who benefit most from its not working.
  
  
• The way the Act works currently hurts democracy because information on why politicians are taking the decisions they are is not being shared.
  
  
• This roundtable has barely scratched the surface. It is disappointing that this is a major element of the public consultation process. It is not so much an issue of government information, but rather public information held by other people. Fees should be limited to only covering the cost of copying.
  
  
• An essential starting point would be with incentives to comply. Further, Parliament’s role in developing incentives should be strengthened.
  

The facilitator suggested a 40-minute session devoted to further discussion of exemptions after the lunch period. A number of participants indicated they would like to stay for it. He thanked those who could not stay and adjourned the meeting for lunch.

Exemptions

• The province of Quebec maintains that one’s name is not personal information. The federal Access to Information Act, however, states that if a person’s name is mentioned then it does constitute personal information.
  
  
• This interpretation expands the exemption greatly. Knowing a name does not equate to giving out personal information.
  
  
• Guidelines for public consultation are currently at Treasury Board in draft form. Someone else commented that these guidelines are more opinions than they are categorical applications.
  
  
• Cabinet Confidences should be listed under Mandatory exemptions.
  
  
• There will be exemptions in the next/revised Act. How then, do we get precedents and consistencies in the application of these exemptions? "What is the premise of the exemption?", a name? What constitutes a breach of privacy? We must know the public benefit of an exemption. Those proposing it must justify why an exemption is included.
  
  
• An indication of the harm "intended to be avoided" by an exemption should be required.
  
  
• Given that there will be exemptions in the next or revised Act, how will these exemptions be consistently applied, and what premise will they be based on. Those proposing an exemption must justify the public benefit of it.
  
  
• Relating to a personal name as private information, prison guards and RCMP officers have expressed concern about their names being included in information released through the Act. In other cases staff have been overworked ‘round the clock’ through a fear of job loss, but the union was unable to access sign-in sheets. The employer used the Privacy Act to block the release and “hide abuse of the employees” and the system. The case went all the way to the Supreme Court.
  
  
• With no information on alternate service providers available through the Act, there is a need for a harm test instead of blanket exemptions. However, “harm” is a difficult concept to quantify-embarrassment is not enough to constitute harm.
  
  
• The harm test should be “a reasonable person test”.
  
  
• There should be a requirement for justification of a harm-based exemption. The burden of proof should be to deny access, not to force access.
  
  
• There is a need for enforcement. It is difficult not to have concerns over the way requests are handled, dealt with and ruled on fairly, as the individual must take on government and the courts.

The facilitator asked if the offices of the Privacy Commissioner and Information Commissioner should be merged.

• "No!" There is a definitive conflict between access to information and privacy. The purpose of the Privacy Commission is to keep a “lock box” around information, while Access is based on openness. They are opposites.

If the Commissioner is given the power to rule on what information is private, the facilitator asked, then what is the role of the Privacy Commissioner?

• As the two are competing structures such discrepancies should be solved in public, not in a closed forum, and thus not in one office. "Duke it out in public".
  
  
• There should be advocates from each side to balance the players. They should always be separate-the tension between the offices provides that balance.
  
  
• The offices should not be merged, but measures should be in place to ensure that there are no overlapping responsibilities. This process involves revising more than just one Act. The example of Atomic Energy was used-how it altered its minute-taking style in direct response to the Access to Information Act. The Act should be changed to stipulate that discussion and the rationale behind decisions must be included in minutes.
  
  
• An “Anti-avoidance Clause” is stating that one is breaking the spirit of the Act, and therefore the Act itself, if one is adopting procedures to avoid the ATI Act.
  
  
• “Who takes the fall?” The Minister or “whoever made the decision to do this”. The facilitator asked whether this throws Ministerial responsibility out the window.
  
  
• People working on Access requests have an interest in not releasing the information.
  
  
• The system as set up to fail, as it is not committed to Access. Dedicated staff should be rewarded for good work.
  
  
• While prosecution would be highly unlikely, there should be a clause against avoiding the Act.
  
  
• Reinforcing the idea of Ministerial responsibility, even if a middle manager directs actions to avoid the Act, employees are still abiding with the Minister’s wishes in the interests of their careers.
  
  
• Employees are not stealing or concealing documents, they are simply not creating them.
  
  
• In one instance, access to information was denied because the information was deemed private; it was later published and sold for $7500, but the underlying information was still denied as private. This was avoidance.
  
  
• Solicitor-client privilege is also used to avoid the release of information. It is frustrating to see a lawyer used to defend an access request, only to have the solicitor-client privilege invoked to deny the information. The requirement should be for demonstration of harm if information is released, not the reverse, stating that all information should be available unless the government can prove why releasing it would be harmful.
  
  
• Solicitor-client privilege does not need to be in the Act, as it is already protected outside the Act. The protection afforded the privilege in the Act provides more blanket cover than it does in common law where it is very carefully reasoned protection.

In summary, the facilitator suggested that this group seemed to want all exemptions to be subject to a harm test.

• The Act states that all information is available, "let's operationalise this!"
  
  
• Should some Mandatory Exemptions (from the current table of exemptions) be made discretionary? The Act should be revised so that the harm test will be used to justify exclusion from release. This had been suggested 15 years ago, and we’re “going over the same ground again, 15 years later.”
  
  
• Prior to attending this consultation a participant was asked how anyone could be sure that e-mails aren’t being deleted. In this regard, the Act must address consistent record-keeping regulations. The issue of monitoring e-mail and employees’ phone calls was discussed, and it was noted that these e-mails are not the employee’s property.
  
  
• In order to post information to federal government Websites, it must be translated, which would prove costly.
  
  
• A participant noted that in Quebec, the government’s Website is a very effective tool for accessing government-held information, but that unfortunately, information is posted only in French. Not all sites are completely bilingual and that there is therefore a wealth of Access expertise unavailable to unilingual Canadians.
  
  
• Government websites need to be completely redesigned as they load too slowly, and information is difficult to find on these sites. Web designers should be connected with those whose expertise is in providing accessible information on the Web, making sites easier to use. There is a department that provides access to a hard-copy list of all Access requests-by whom, for whom, and for what they were made.

The facilitator thanked the participants and adjourned the meeting.

Consultation