[Recorded by Electronic Apparatus]
Thursday, June 13, 1996
.0934 
[English]
The Chair: Order.
The first thing on the agenda for today on the main estimates is the Office of the Information Commissioner. We have John W. Grace, the commissioner, along with Mr. Dupuis andMr. Leadbeater.
.0935
Mr. Ramsay (Crowfoot): Madam Chair, on a point of order. For the information of the committee members, I have filed a motion with the clerk. You may wish to announce this to the rest of the committee members so they'll be aware of it.
The Chair: I'm sure they'll receive a copy of it.
Mr. Ramsay: Good. Thank you.
The Chair: Mr. Grace, I understand that you have a statement to make, and then we will proceed with questions. You have roughly an hour.
Mr. John W. Grace (Information Commissioner of Canada): Perfect.
[Translation]
Madam Chair and members of the Standing Committee on Justice and Legal Affairs,
[English]
thank you for finding a place for my office on your crowded agenda of this spring.
Your invitation to appear today sends the message that you view the right of access of information as being essential to keeping citizens informed, to keeping governments open and more accountable, and to exposing and deterring extravagance or waste or stupidity, or all of the above.
If you were interested only in scrutinizing our spending - which, after all, is the formal reason why we are here - then you might never bother with us. You have much bigger financial fish to fry.
As you will have noticed in scanning our estimates, we are small. In this fiscal year we will spend some $2.5 million. The entire office employs only 33 persons, comprised of a management team of three, including myself - you're looking at the whole team here - 21 investigators who will handle some 1,800 complaints this year, three lawyers, and a support staff of six.
We share with the privacy commissioner's office an administrative group of 14.
My office does not have a policy unit, a research group, or public affairs officers. Those functions have fallen victim to budget cuts.
All of this is to say that if any government wanted to diminish or rid itself of a law that may sometimes be irksome to ministers or public officials, it could not claim with any credibility that it was doing so in the interests of balancing the budget - not that I believe that a serious assault is being planned on the right of access or on the existence of an independent officer of Parliament to investigate complaints.
But I must tell you that in the federal bureaucracy a wind of hostility blows against access. It is born of indignation against the perceived waste, especially in times of thrift, of being required to respond to sometimes annoying requesters seeking information that may be voluminous or hard to find or that reflects badly upon an institution. Even after living for 13 years with this legislation, openness in government remains, for some managers, an alien concept.
Perhaps that's why I caution that the rhetoric of fiscal responsibility may be a convenient cover for the lingering resentments against a sometimes uncomfortable law.
Yet the benefits of this law are tangible and profound. I am convinced that there are, courteousy of the right to know, greater care, frugality, integrity, and honesty in government. Fear of exposure is a powerful motivator for acting in the public interest. More importantly perhaps, access to government-held information by right - not merely by grace and favour - has become, in an age of cynicism and distrust of authority, essential to a healthy democracy.
This act represents nothing less than a shifting of power, modest though it may be, from the state to the individual. The law is a standing rebuke to what Max Weber noted more than 50 years ago, the instinctive effort of every bureaucracy to increase the superiority of the professionally informed by keeping their knowledge secret. This is not an evil impulse. The motives may be good. But bureaucracies balk at sharing the power that knowledge may confer.
.0940
Yes, there is room for improving the access act, and I have been advocating some reforms. Three years ago I made 43 recommendations to Parliament for changes, based on what we have learned over the years. These changes would not add measurably to the cost of access to information, but they languish in the special limbo reserved for old annual reports. Though I have been heartened by promises to strengthen the access law, and I do not doubt the intentions are good, I regret that no proposals for change have yet seen the light of day. I know a committee of public servants is considering some amendments, but I also regret that so far there has been no public discussion of reforms. More about that a little later.
However, here let me say that more important than fine-tuning the existing law is a strong public commitment by government and the bureaucracy to the principles of openness. Amending the existing legislation will not end the chronic delays in answering access requests. The act is now clear, the law is clear: a reply is due within thirty days. You don't need an amendment to improve that.
No, the beginning of reform is not new amendments but greater respect for the law as it now stands. The will to make it work the way Parliament said it should work - that takes leadership from ministers and deputy ministers. By their example the tone is set for how well or ill their officials live up to the obligations of the law. I regret that tangible signals of such leadership have not been as strong as I had hoped.
A culture of simmering animosity towards access remains, and in such a culture we should not be surprised to see tampering with records, unreasonable response delays, and the brushing aside of requesters with a factitious claim that they are being frivolous or vexatious. In my admittedly biased view, administering the act effectively should be as accepted and at least as important as any other responsibility of a well-run government institution.
All that being said, I want to report that despite the few enclaves where problems have become endemic, such as National Defence, on the whole this law is working surprisingly well. Hardly a day passes when I don't read or hear in the media about the release of important records thanks to access to information. I am sure you have noted these stories as well.
Media requesters represent only about 11% of users of the act. The largest group of requesters, by the way, is business users, who account for some 43%, while individual members of the public make up 35% of requests. The rest come from academics and assorted private organizations.
Members of Parliament are finding the access act helpful in obtaining information they need for their work. I very much encourage and welcome the increasing use of the access act and my office by you and your colleagues. From my own selfish perspective, the more MPs obtaining first-hand experience with the strengths and weaknesses of the law the greater the pressure for improvements. You have the power to turn any of your frustrations into pressure for constructive change.
For three years Parliament has had my blueprint for making a good act even better and bringing it into the information age. Although you already have much on your plate, I urge that the development of reform proposals should become, at an early stage, a responsibility of this committee, or if necessary a special committee.
As it now stands, only insiders are working on the development of proposals for reform. Only the insider perspective is being brought to bear. By entrusting the reform exercise to a parliamentary committee, as was the case the last time the act was reviewed, back in 1986, proposals for reforming a complex law can be enriched from the start by a variety of perspectives, in particular the traditional champions of open government, members of Parliament, where it all came from in the first place, the media, academics, business, private citizens, even, of all people, the information commissioner. The infusing spirit of reform should be the conviction that the best citizens are informed citizens and the best government is open government.
.0945
I want to keep these remarks short, and I will, but I feel compelled to make brief reference to the troubling incidents encountered this past year involving altered or destroyed records. During the year, my office has conducted five investigations in four departments into the destruction or alteration of records, allegedly for the purpose of thwarting the right of access to those records. One investigation has been or is being conducted in each of Health Canada, Transport Canada, and the Immigration and Refugee Board, while two investigations involve National Defence. In one National Defence case, I found the allegations to be well founded. In the Health Canada and the Immigration and Refugee Board cases, investigations continue. The National Defence investigation has been reopened as a result of new evidence that has recently come to light.
These incidents are alarming. First, their number is unprecedented. Second, they bring home, with shocking suddenness, the realization that the right of access is fragile and can be easily undermined.
You have my annual report at your desks this morning. It is being released today. For once, members of Parliament are getting it before the media. That's the way it should be, and I'm grateful for that.
I'm recommending in this report that the access law be amended to include an offence covering acts of commission and omission designed to thwart the right of access. There is no such offence now.
These incidents have also made it crystal clear to me that whistle-blowing protections are also needed. Incidents of document-tampering and destruction come to light only if insiders - and we're talking here of public servants - are willing to come forward and report misbehaviour to authorities. At it now stands, as we've seen in the National Defence case, disloyalty is treated by some as worse than document-tampering. Those who come forward in any department fear the almost certain possibility of being vilified or penalized. Legal tools are required to deter and censure any retaliation against a whistle-blower who acts in good faith to expose a wrongdoing committed against the access law.
That ends my sermon. Thank you for hearing me out. I will of course be pleased to turn this monologue into a dialogue.
Madam Chair, I'm in your hands.
The Chair: Thank you.
We'll now have a ten-minute round. Mr. Langlois.
[Translation]
Mr. Langlois (Bellechasse): Could you somehow evaluate the departments and agencies you deal with and who are covered by this act? Could you tell us which departments are really cooperative and which ones are less so? Could you do a brief critical analysis and tell us what, in your opinion, prompts these departments or agencies to cooperate more or less?
Mr. Grace: Thank you for your question.
[English]
I'll give you the statistical answer first. This year - and this list changes - the most complained against department is the Department of National Defence. There have been some 421 complaints. Next on this list is the Department of Finance, with 205 complaints against it; Citizenship and Immigration, with 159; Revenue Canada, way down at 58; and Health Canada, 56.
I'd say it's a shifting list. I don't see any serious, endemic problems in those latter four departments. There are different reasons each year as to why one department will receive an increase or decrease in complaints. Sometimes a very active requester will come along and overwhelm the department with requests. But that's the honours list this year.
.0950
The great majority of these cases are cases of delay, not any wilful attempt to cover up, not to release, but simply these departments haven't got their act together in access sufficiently to respond within the statutory thirty days. So we ourselves get overwhelmed with complaints of delay, and delays do represent the great majority of our complaints. They're the easiest ones to handle, by the way.
You might be interested to know, sir, the number of complaints we receive against exemptions, against information that's being held back, that's being challenged as information that should not be released. We don't get into big problems with that kind of information. Departments know the act. They know what they can hold back. Our problems come when requests pile up.
On the second part of your request, I think I covered that in my quick analysis. But please ask another question if you want a supplementary.
[Translation]
Mr. Langlois: I'm going to rephrase my question, particularly with respect to the Department of National Defence. We came to the realization, particularly after the Somalia incident, that several things have been disclosed, not by the Commissioner, but by external, parallel channels, which apprised us of certain things.
This type of information, which often is not identified, reached the media, particularly with respect to the Somalia affair. Since you are not privy to this information, could you tell us whether or not you feel that someone wanted to conceal it from you? What is your opinion?
[English]
Mr. Grace: Well, sir, I would suggest a large amount of the information that was released to Canadians did come as a result of access to information requests and as a result of our office becoming involved. People have said that without the Access to Information Act the Somalia affair would not have received the scrutiny of public attention it has. I don't agree with you when you say most of the information the country has about the problems in Somalia came from elsewhere. A great portion of this information came as a result of one persistent access requester. We know the department did not perform well under access. We are in fact taking the department to court as a result of excessive secrecy on Somalia. But I don't think my office or the act failed at all in the Somalia business. In fact, I think it's a success story.
[Translation]
Mr. Langlois: It would appear, in your Somalia inquiry, that certain documents were destroyed. I would like you to tell me whether or not, to your knowledge, certain documents were indeed destroyed.
Furthermore, are you under the impression or do you have any evidence that you could have been forwarded documents pertaining to this matter that could have been considered fraudulent?
[English]
Mr. Grace: Yes, we conducted an investigation into allegations that a requester received information records that had been altered. Our report on that investigation is reproduced in its entirety in this report you have before you, sir. We made it public because the complainant gave us permission to make it public. Normally our complaints are private matters.
So yes, we did find records had been altered, and I think as a result of this finding the commission of inquiry has taken up the same case. That report speaks for itself.
.0955
As I said in my statement, as a result of more information I have reopened that case. Pending the result of that investigation, I can't go too much further into the precise events involving destruction or alteration of the Somalia documents.
The evidence of altered records went to the heart of a very important, serious investigation.
[Translation]
Mr. Langlois: In your opinion, when you are sent a document that has been intentionally falsified or altered, does that not cause, according to our law, an offence against the Criminal Code with respect to fabrication and forgery, and is it not possible to lay criminal charges against people who have taken such action?
[English]
Mr. Grace: That's a very good question. I understand that there is a section of the Criminal Code that makes it an offence to violate a law of Canada. I understand too - and I am not a lawyer - that it's a law that's not used very often. I think it's too general. That's why I believe that, as a result of our experience recently...
The Access to Information Act now provides for a fine of $1,000 for anyone obstructing the information commissioner and his office in the conduct of an investigation. I foresee that section being extended to cover the instance of destruction of records. There's something in the general Criminal Code, but it's too far removed. I'd rather see something in the law.
Mr. Ramsay: Thank you, gentlemen, for appearing before us this morning.
At the bottom of page two of your brief you say that you made 43 recommendations three years ago. If those recommendations had been followed, could these changes have affected what happened within the Somalia affair?
Mr. Grace: I don't think so. As I said, you can change the laws all you want, but if people want to evade the law, avoid the law, if the will is not there to obey the law in letter and spirit, then people will evade it, will avoid it.
I don't think that putting those amendments in place would have changed anything.
What I think might have changed something is if there had been a signal from the top that, whatever happened in the past, this new government believes in access to information, wants to make it work, wants to be an open, transparent government - not just in general terms, but by speaking precisely to the law that's on the books on access to information. I think a signal from ministers to their public servants would be a significant deterrent against fiddling with records.
Mr. Ramsay: If your recommendations wouldn't have made much difference in that particular case, and in view of what your brief has indicated, that there is almost a natural reluctance on the part of bureaucracies to reveal information that might be critical of decisions that have been made by people within that bureaucracy, then is having the federal government express its support for ready access to information by citizens of Canada the only measure we could adopt? Is that the only measure we could hope for in order to have our institutions of the federal government abide by the access to information requests?
Mr. Grace: Clearly, pious exhortation would be a good place at which to start.
Some of the recommendations I made are quite technical.
.1000
I think your questions suggest a lack of faith in the impact of the leadership from the top; and I mean from the deputy minister particularly. We've had examples of deputy ministers we hear, people in high places, really pooh-poohing the access law: it's a bother, it's irrelevant, it's costing us money. That attitude becomes pervasive in a department. It establishes a milieu in which people feel they can tamper with records with impunity, indeed perhaps even curry some favour with their superiors.
Mr. Ramsay: Mr. Langlois asked you a question I want to follow up on. What about establishing a penalty for the deliberate alteration of documents?
Mr. Grace: I have made such a recommendation. It's in this report.
Mr. Ramsay: Was that in your 43 recommendations?
Mr. Grace: Yes. I'm recommending it become a criminal offence to destroy or alter documents requested under the Access to Information Act.
Mr. Ramsay: So at present government officials at the federal level can alter and destroy documents and it's not a criminal offence?
Mr. Grace: Except, as I replied to Mr. Langlois, if a little-used section of the Criminal Code, that it's an offence to violate a law of Parliament... But apart from that it's not a criminal offence. You can get into trouble, as some departments have got into trouble -
Mr. Ramsay: What law of Canada is violated when a government official destroys or alters documents?
Mr. Grace: In my view, no specific law spells that out.
Mr. Ramsay: So they can... So today in Canada any federal official can destroy or alter documents with impunity.
Mr. Grace: It's against the Access to Information Act to do that, but the Access to Information Act does not provide penalties.
Mr. Ramsay: Then there is no penalty for government officials destroying or altering documents. They can create a false statement, they can alter a document so it's reflecting something that is false, and nothing can be done about it in terms of penalty.
Mr. Grace: In practice, yes, sir.
Mr. Ramsay: If that's the case, what kind of penalty would you recommend?
Mr. Grace: I've recommended a penalty of something like a $1,000 fine. Now you get a nice question. Suppose someone doesn't pay the fine? Do you put people in jail for tampering with records?
Mr. Ramsay: What do you think?
Mr. Grace: Fortunately I don't make laws. I guess you'd have to have a sanction. Yes, if the fine isn't paid, there'd have to be some kind of sanction. I don't think it should be very good for anybody's career in the public service, I'll tell you that. That's probably a more serious penalty than paying a $1,000 fine.
Mr. Ramsay: If access to information is as important as your brief indicates it is - and I agree, it's very important - then it should be a serious matter when someone falsifies documents and lies to the person seeking information. That should be a serious matter, and I don't think it should be a fine. There should be alternatives that go beyond that. Yes, perhaps a fine, perhaps dismissal; but dismissal is usually left to the chain of command.
These bureaucracies - and I've lived in some - usually do not function along democratic lines. They're very autocratic. They're top-down decision-making and there's a chain of command. We're seeing that in the DND, where apparently one lady was ordered to destroy documents. We have a situation where these bureaucracies are created to serve a democracy but they're very autocratic in nature. So which is going to influence which? Is it the autocratic institutions of government which are going to affect the democracy or is it the democratic traditions within our government which are going to affect our institutions? Who would you say is winning the battle today?
.1005
Mr. Grace: I'd say in the long term openness is winning. I think access to information is irreversible. I'd point to the many success stories. I think the good guys would be winning if government put itself behind it, if senior managers came to respect the law, in both spirit and letter.
You and I are not far apart on this. I agree that there should be some sanctions.
Mr. Ramsay: If Richard Nixon had destroyed the Watergate tapes, he might have served out his term as President of the United States. Surely there has to be some serious consequences to the actions of a federal government official who destroys and falsifies documents. It seems strange to me that there are no laws that would create a consequence.
Mr. Grace: I'm recommending precisely such laws, sir. That's just what I'm recommending.
Mr. Ramsay: In the absence of such laws, then, when this kind of information is revealed, I'd ask you, is this the tip of the iceberg we're seeing?
Mr. Grace: I don't think it is. I think we've seen most of the iceberg - or I hope we have.
Mr. Ramsay: How ongoing is this kind of feeling to withhold information and falsify documents when the news media or some other concerned citizen asks for information that, if revealed, will embarrass the individual or the institution?
Mr. Grace: I can't quantify it, but I know how many complaints we've had and how many specific incidents of possible alteration or destruction of documents have come to our attention.
Mr. Ramsay: If all I have to do as a senior bureaucrat is simply falsify a piece of information to protect some wrongdoing, whether it's deliberate or otherwise, that I don't want to be embarrassed by, and all I have to do is falsify a document and send it out as the factual information, particularly without consequences, there's an enormous temptation to do that.
Mr. Grace: But I think we've been seeing that there are consequences.
Mr. Ramsay: What are the consequences?
The Chair: Your ten minutes is up, Mr. Ramsay.
Mr. Grace: Public exposure.
Mr. Ramsay: That's a consequence.
The Chair: Mr. MacLellan.
Mr. MacLellan (Cape Breton - The Sydneys): Thank you very much, Madam Chair.
I would like to welcome you, Mr. Grace, and your associates, and to compliment you on doing a job that is not easy. The very nature of the job requires you to have a high degree of frustration, because it's only with your frustration and desire to get more accountability that we will succeed. It's a never-ending battle, so I can imagine it's a never-ending sensation.
I would just like to follow up on some things. You mentioned that you would like to see the same $1,000 maximum penalty imposed for someone who wilfully destroys records as is in place for someone who frustrates or interferes with the course of your work. Frankly, I think the destruction of records warrants something a little more serious than the $1,000. I'd like to get your feeling on that. It's a very serious offence.
Mr. Grace: It is a very serious offence. It goes to the very heart of the act. If we can't have some assurance that the documents aren't being destroyed, it undercuts the whole thing.
Look, that $1,000 figure is just on the table. I don't make the laws. If Parliament decides to make it $5,000, or to put people in jail for two years, that's fine with me. It's a good question. One can discuss what an appropriate penalty would be. I thought $1,000 was a good starting point. It's certainly a lot better than nothing. But I don't think we should dismiss the impact of exposure, either, because that should be very career-limiting, I'll tell you that.
So I'm not wedded to $1,000. It's just a starting point.
Mr. MacLellan: There's a letter dated June 10 from a Major Drapeau. Are you aware of that letter? He makes some very pertinent comments and some very serious allegations. He talks about the fact of the legal branch and the public affairs branch of National Defence actually having an influence that is far greater than their numbers, and that in fact there is a policy now there, and perhaps in other departments as well - and I want you to comment on where you think it's increasing - of not keeping records.
.1010
In fact, in your annual report you make a suggestion that the law be amended so that there will be a requirement to keep records, particularly with respect to shifts in policy decisions and policy directions. Otherwise, we're never going to know what these shifts are.
To me, to say at an accountability session, ``Well, we changed our policy on that, but there's nothing on the record'', is quite unsatisfactory.
Will you be pursuing this in ways other than just by making the recommendation in your report? I ask this because I think it's very serious. If it's allowed to continue, then you know that it's going to increase in practice.
Mr. Grace: I am certainly aware of Colonel Drapeau's letter, if only because he quoted my recommendation made a couple of years ago. Let me just read it to you for the benefit of the whole committee. I said that new clear and comprehensive rules for the creation and safe keeping of information should be developed. These rules would rebuke the disdainful practice of some officials who discourage the creation and safe keeping of important records in order to avoid the rigours of openness - and accountability, one could say.
I recommended that the archives act be amended specifically to impose a duty to create such records as are necessary to document adequately and properly government's functions, policies, decisions, procedures, and transactions. That requires a change in the archives act. Maybe we could have a parallel section in a revised, amended Access to Information Act. Clearly, not every little scrap of paper has to be kept.
The act should move into the information age. The whole question of E-mail is the next problem for us. What should be kept? The whole issue of E-mail, electronically held and stored records, needs examination. That's the kind of work I think a committee could do in recommending changes to the act.
I can't really do more than call Parliament's attention to these issues. I have no power to act. I scream about it from time to time and make speeches and tell you folks about it here, but beyond... I do take credit for having alerted people some years ago.
Mr. MacLellan: Certainly you've been on the record as having requested this.
Do you think that things are getting better, or do you think that with this trend of not keeping information or records of policy decisions...? I agree that there's a very subjective section to this in that you can't keep notes on everything and I think it's unreasonable to ask that this be done, but changes in policy direction are quite something else. Do you think things are improving generally?
Also, I want to comment on Major Drapeau's recommendation that there be a special minister responsible for information to whom you would report other than the Minister of Justice, who he is saying really in effect has a conflict of interest because the Department of Justice must defend those who are found being in a position where they should be charged.
Mr. Grace: I believe firmly that the situation is improving. We shouldn't allow this Somalia business of one or two incidents that happened to come together to distort the picture. As I said, access is here to stay. It's irreversible. The impact is there.
I continue to be amazed by the number of records that are released without the involvement of my office at all, without anybody having to make a complaint. Many managers, many departments are living quite comfortably with this act.
We have a new generation of public service mangers now who have really grown up professionally with access to information. They didn't come with the old inherited British culture that we all had that you don't talk about what you do, that somehow we know best, paternalistic or maternalistic or whatever. But a lot of people out there, the self-confident people, put their records out there, let the chips fall where they may. They know the worst stories come not from the information that may be revealed but when people try to evade, when they try to hide, delay, extend the whole thing. That's where the embarrassment is.
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I'm glad you asked this question. We should not lose perspective. The act is being used more and more. The figures are way up. We've had 1,600 complaints this year. The number of requests is going up in the same proportion. Volumes of information are being released. So let's not lose perspective because of one or two unfortunate incidents.
I agree with Mr. Drapeau's recommendation that perhaps the responsibility for access should be taken away from Justice and placed somewhere else. In fact, I proposed something like that some years ago. Justice, as you suggest, Mr. MacLellan, has an inherent conflict of interest. They're hired by departments looking for advice on how to react to a particular access to information request. They go to Justice not to ask ``should we put it out'' but I guess normally ``how can we justify keeping this in''.
While Justice has done some good things historically in bringing the act forward, to avoid this inherent conflict of interest I think the responsibility for the administration of the act should be transferred. I've suggested, for want of a better place, the Treasury Board as a repository, perhaps. Justice could go on advising its clients to the best of its ability. The same department that tells clients how to keep back information, if they think it should be kept back, finds it pretty hard, I think, to act as a beacon of openness.
The Chair: Mr. Langlois.
[Translation]
Mr. Langlois: I have a question for the witness, if that suits Mr. MacLellan.
[English]
Mr. MacLellan: One short one, just to follow up.
You've been doing investigations on some departments, but those are routine, are they, and there's nothing to be written into any of these investigations into the Department of National Health or anything like that? Are these in the normal course or can we expect something quite sensational there?
Mr. Grace: Those investigations you refer to are not normal investigations. They're investigations into allegations that records have been tampered with or destroyed to avoid an access to information request. In the National Health case evidence of such record tampering was given before Mr. Justice Krever's blood committee. We just couldn't stand by and let that pass without notice, so we are investigating that very complex issue. We were held up because there was a challenge to our jurisdiction. That's been cleared up. Within a few weeks we hope to have our report on that incident released to the public. I can't anticipate the reaction. It will depend on what we say.
But no, I can assure you the kind of request dealing with record alteration or tampering... These are unusual investigations. They strain our modest resources and we take them very seriously.
[Translation]
Mr. Langlois: Could you explain the main legal questions raised in the Rubin case and tell us what impact this may have had on the way your service operates?
[English]
Mr. Grace: I understand, Mr. Langlois, you wondered about my reaction to Mr. Rubin's case before the Supreme Court of Canada. I missed the translation.
[Translation]
Mr. Langlois: I would like to be informed of the points of law raised.
[English]
Mr. Grace: That's an interesting case. It was the first access to information case that reached the Supreme Court of Canada. I wish I could say it were a more important case. It's not.
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The case arose in this way. Mr. Rubin applied to the Privy Council Office for some records. He was denied the records. He complained to my office. We investigated it and agreed with the department that these records should be exempted, and justifiably exempted. He lost his case.
After the whole case was settled, he then went to the Federal Court to obtain exchanges of letters between my office and the Privy Council Office in the course of our investigation of his original request. I should tell you that I'm compelled under the law to investigate in private, to give both complainants and departments confidence that what they tell us is protected and will be kept confidential. The whole issue is that you can't publicize the record you're fighting about or discussing.
So he challenged the rejection of that subsequent request for records of correspondence between my office and the PCO. He went to the Federal Court and the first court agreed with Mr. Rubin. The court said yes, the law says you can't disclose records during the course of an investigation. The judge said the investigation was over, so maybe they should go out now, and ruled that the records should be released. The government appealed that lower Federal Court ruling, and the Court of Appeal overturned the judgment that the records should be released.
You might be interested to know that my office did not participate in those court cases. I never want to be seen to be on the side of keeping information in. Frankly, we could have lived with either decision. But departments keep telling me that these records should be kept confidential, that they had good reasons why they didn't want the world to know about that information.
I think I would lose credibility if I were the first to say, no, my correspondence or my dealings with the department, after the case is finished, should somehow be restricted. So we didn't get involved, because we could have lived with both, either way. Mr. Rubin appealed the ruling of the Federal Court of Appeal to the Supreme Court. The Supreme Court, without even leaving the bench, dismissed the case. So the law stands that information exchanged between my office and institutions is privileged information.
It's not a major point of law. Despite some newspaper reports at the time, it was not, in my view, a setback to access to information. We didn't argue either side of the case.
That's a rather quick and superficial view.
The Chair: Mr. Discepola.
Mr. Discepola (Vaudreuil): Mr. Grace, do you view your role as mainly that of an ombudsman?
Mr. Grace: Yes, sir, I am exclusively an ombudsman.
Mr. Discepola: Are there any mechanisms within each department right now where they can take care of an awful lot of the complaints with access to information within each department, or is the only recourse for somebody to come to you directly?
Mr. Grace: The procedure is that individuals ask or request a department for information. If the department turns them down, the department tells the requester that if they are unhappy with the decision, they may complain to the information commissioner. My name and address is given to the complainant.
So there's no mechanism in the department itself for adjudicating its own decision to reject a request.
Mr. Discepola: Are there any fees for access to information?
Mr. Grace: Yes, there are. There's a $5 application fee upon making a request. That $5 gives you five free hours of search time to obtain the record. The act also provides for justifiable incremental costs of processing requests, paying for costs of reproducing records. If there's a great bulk of records and many hours are required, the law says individuals who are making the request should pay the costs. I agree with that. I don't think the taxpayers as a whole should be supporting business or anybody else who wants information for their own purposes.
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Mr. Discepola: But you agree somebody should be penalized for - and I don't want to put the two on the same level - altering documents?
I guess what I'm getting at is I've had cases at the municipal level where there's been a tremendous abuse of access to information. It was always just before municipal elections or just before the union negotiations. Some union would come in and ask for four years of requests, and we'd have to have the bureaucrats sit down for weeks at a time to access all this information. It was very timely. When somebody asked for all invoices over $100 to such-and-such a company in the past four years... Have you seen any types of abuses? And if somebody abuses the privilege - and I think it is a privilege to be able to access any information you want - should any penalties or sanctions be put against the user? Or do you agree with the philosophy that all these requests should be user recovery?
Mr. Grace: I think there's a possibility of some users, some requests, being frivolous and vexatious. In fact, in one of those recommendations I have suggested there should be a provision in the act to handle requests that are clearly vexatious. Now, in my experience this is very rare, but the possibility is there. What you speak of I think rings true.
Two things. First, charges should be made. Legitimate costs should be assigned to those searches. To keep the whole thing honest, I have recommended that the person who... Well, it's in the act now, that individuals can challenge the cost estimate. They can ask me to investigate the validity of such a cost. You have to worry about costs being made prohibitive to discourage legitimate requests.
But I can see there is a possibility of requests bogging a department down. The law says look, you can't bring our department to a standstill to answer a couple of access to information requests, and that's a legitimate exemption. If the department says they can't do it in thirty days, and this is why, and if you don't like it, complain to Grace, we'll be understanding. We'll be sensible about it, I hope. We'll say yes, this is an unfair request; they could have required three months to do it. We'll buy that.
Mr. Discepola: I'd like to ask you one last question. When you talk about transparency and openness in government, other than for cases of national security, why should anybody have to go through access to information to get a document? Why shouldn't they get it all the time?
Mr. Grace: It's a good question. The act says this law is not intended to supplant informal access. People should go formal only when they foresee a difficulty, I suppose - only when they want to ensure their rights. The answer is systemic openness. I preach it all the time. Don't wait for a formal request. Put it out informally.
But yes, it's a question of attitude, Mr. Discepola. It's a question of attitude. Many departments say you had better go formal. I don't like that attitude.
The Chair: Ms Torsney, just to finish the time, one little question.
Ms Torsney (Burlington): Obviously opposition parties sometimes use your office to try to get information, and that's something every party would totally support. But sometimes the opposition parties could get a response from your office and then use that for politically opportunistically motivated needs. I wonder how you deal with that and how you stop people from using things that come out of your office and switching things around.
Mr. Grace: Well, first of all, the information doesn't come out of our office. The information comes from the department that has held the information originally.
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When it comes into our office, we might be successful - and I hope we are - in helping a complainant obtain information that was originally denied him or her. We make no editorial comment to a complainant, except maybe that he got shoddy treatment by the department. We might say that sometimes, but we don't talk about the nature of the information that's been requested.
By the way, the motive of the requester is completely irrelevant. Once you get into the business of motives, there's no end.
The Chair: My question will be brief, but I may trigger something that isn't. I'll leave it to you.
Why do we need to have your office and a privacy commissioner? Why can't we do what most of the provinces do and have just one office to deal with both? It seems to me that we could be more efficient by having just one office. Do you agree with that?
Mr. Grace: Yes, I do agree. I've made that recommendation several times. Having been privacy commissioner for seven years and now in access for six, I see the two offices as being in the same business, the access business. Privacy has a special side to it, to worry about how personal information is treated, but I think you build that into the role.
I think there should be a single office. I think you'd save money. I'm impressed by the fact that, as you say, every province that has examined it has decided on a single office - Quebec, Ontario, and more recently British Columbia. I don't see any lack of efficiency out there.
Perhaps most importantly of all, I think people are often confused by the fact of there being two offices, even members of Parliament sometimes. What's the difference between privacy -
The Chair: I find it hard to believe that members of Parliament could ever get confused,Mr. Grace.
Mr. Grace: The word ``access'' is ambiguous.
So I believe in one-stop shopping. I don't know of any other jurisdiction that has the two. It's an anomaly to have two commissioners.
Another reason why I have favoured a single office is that not often but occasionally each commissioner will give different advice to a department on the same issue. It puts the department, the minister, and the deputy in an awkward position, because whichever way he or she goes, he or she is going to be in trouble with one commissioner or the other. I've had ministers say that one person should settle it: in this case does the public interest override personal privacy?
In access we make that judgment quite often, because the biggest single exemption under access is the privacy exemption. Personal information cannot be obtained under access to information, but if in a given case the evidence is that the public interest is so great that the personal interest should be overridden, it might go out. It's a judgment call.
So, for those quick reasons, over the years I've come to believe that a single office would serve both causes very well. Because I'm on my way out, I can say that with some disinterest.
The Chair: Some of us may be too.
Thank you very much. It was a very informative and very candid session.
We'll now adjourn.