REVIEW OF FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT, 1987
CANADIAN POLITICAL SCIENCE ASSOCIATION
CONTENTS
Wednesday 5 June 1991
Report of subcommittee
Freedom of Information and Protection of Privacy Act, 1987
Stadium Corp of Ontario Ltd
Canadian Political Science Association
Adjournment
STANDING COMMITTEE ON THE LEGISLATIVE ASSEMBLY
Chair: Duignan, Noel (Halton North NDP)
Vice-Chair: MacKinnon, Ellen (Lambton NDP)
Cooper, Mike (Kitchener-Wilmot NDP)
Frankford, Robert (Scarborough East NDP)
Jamison, Norm (Norfolk NDP)
Marland, Margaret (Mississauga South PC)
Mathyssen, Irene (Middlesex NDP)
McClelland, Carman (Brampton North L)
Morin, Gilles E. (Carleton East L)
O'Neil, Hugh P. (Quinte L)
Owens, Stephen (Scarborough Centre NDP)
Villeneuve, Noble (S-D-G & East Grenville PC)
Substitution: Mills, Gordon (Durham East NDP) for Mrs Mathyssen
Clerk: Arnott, Douglas
Staff: McNaught, Andrew, Research Officer, Legislative Research Service
The committee met at 1602 in committee room 151.
REPORT OF SUBCOMMITTEE
The Chair: Seeing a quorum, I call the standing committee on the Legislative Assembly to order. The first order of business is a report of the subcommittee meeting on Tuesday morning. I call on the clerk to give the report.
Clerk of the Committee: The subcommittee met to consider the committee's schedule of business and recommended that the committee consider presenting an interim report to the House with respect to its comprehensive review of the Freedom of Information and Protection of Privacy Act.
The subcommittee also recommended that the committee call as its last witnesses the Office of the Information and Privacy Commissioner to respond to presentations heard to date.
The subcommittee also recommended that a draft advertisement of the second phase of the committee's hearings be prepared and circulated to committee members for placement as soon as possible.
The subcommittee also recommended that, as it is required, the committee schedule the Clerk of the House and Sergeant at Arms to appear in the next week or two before the committee, and the subcommittee recommended that the committee request authorization for meeting time of two weeks during the summer adjournment, in addition to the week allotted for the subcommittee to travel to the National Conference of State Legislatures conference.
Mr H. O'Neil: Was that two weeks or just one week for the meetings in the summer?
Clerk of the Committee: I understood it was to be two weeks. One week for certain and one week if required.
The Chair: Any discussion on the report? Is there a motion to adopt the subcommittee report?
Mrs MacKinnon: I so move.
Motion agreed to.
REVIEW OF FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT, 1987
Resuming consideration of a comprehensive review of the Freedom of Information and Protection of Privacy Act, 1987.
STADIUM CORP OF ONTARIO LTD
The Chair: The next order of business is to continue the comprehensive review of the Freedom of Information and Protection of Privacy Act. I would ask the first witness from the Stadium Corp of Ontario to come forward at this time, please. Thank you for coming here this afternoon. Please state your name and the position you hold in the organization.
Ms Novak: Thank you for asking me. Good afternoon. My name is Lisa Novak. I am vice-president general counsel of Stadium Corp of Ontario Ltd, which operates the SkyDome. As you know, a representative of the Stadium Corp has been requested to appear before you. Accordingly, I did not prepare any formal written submission to be made to the committee. What I thought I might do was outline generally for you the manner in which we have functioned under the act since its implementation, just to give you a bit of a picture of how it has applied to the stadium, and then I would be happy to answer any questions that anyone might have.
Basically, to date under the act the majority of the requests we have received have pertained to what I guess could be called a few specific categories or types of information. Before I came here, I did a review of our file history and the types of requests we have received. Essentially, and this is just a rough estimation, it appears that approximately 80% to 90% of our requests pertain to contractual information that we have with third parties we deal with in the course of our business. When you add to that the second-largest category of requests, which tends to pertain to board minutes, the two of those together appear to approximate 95% or more of the requests we have received. The balance of the requests generally pertain to things like details of financial arrangements that we have with third parties we deal with in business, financial projections and then another, miscellaneous category.
The types of information we would release on a straightforward basis -- and I can give you some examples of the types of information that have been requested and released -- are things like a list of board members, some of our French-language services information, evacuation plans for the stadium, certain job description information, lists of law suits, upcoming events, statistics on accidents and injuries and that kind of thing. By and large though, as I said, those types of information constitute a very, very small proportion of the information that is generally requested from us.
The other thing that is interesting to note about how the act has worked for us is that there are generally a small number of requesters who make repeat requests for the same types of information. Again, these tend to be in the contractual area. We tend not to receive broad ranges of requests or requests from a broad range of requesters.
That is just a general outline of how the act has applied to us to date.
What I thought I might do now is give you a bit of a view of the issues that arise for us in terms of processing a request that tend to result in appeals where there are appeals made of our requests.
The first, I think, is that there is a somewhat unique aspect to the SkyDome in that although we are a crown agency and we are an agency of the government through our shareholder the Ministry of Treasury, we operate very much in a competitive manner with other private businesses or private entities in the marketplace. As a stadium, we compete with other stadiums and other venues for events and for stadium business, like Maple Leaf Gardens, the O'Keefe Centre, Roy Thomson Hall, stadiums in Buffalo and on an international basis as well.
By virtue of the fact that we are subject to the act, it can be said in a general sense that we are at somewhat of a competitive disadvantage to the extent that our business information is requested. Again, the major area where the issue arises tends to be because of the large number of requests pertaining to contractual information. As a general principle, to disclose our contractual information can put us at a competitive disadvantage.
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As you know, the act does contemplate certain exemptions for that type of situation. We have relied on those exemptions, because ultimately, as a crown agency owned by the government, we are accountable to the taxpayers. To the extent that we are uncompetitive or we lose the ability to compete or are unable to negotiate favourable terms in our business affairs, it directly affects the taxpayer as our shareholder.
I think the second factor that largely impacts our processing of requests is that almost invariably the types of requests for which a refusal is given and appealed deal with information that pertains to third parties. Again, the contracts are the main example.
As you also know, we are bound by the act to give third-party notices in that type of situation, and invariably third parties object to disclosure of contractual information. Understandably, it is sort of a natural response of private industry to react in that manner, because private businesses that are competing in the market place do not ordinarily disclose their contractual affairs, in order to maintain their competitiveness and their ability to negotiate favourable contractual terms in their business affairs.
The last thing I thought I might do is outline a few problems that we have experienced in complying with our obligations under the act, and I just put these to you the in hope that they might assist in your review of the act. Again, we have not made a formal review or a formal presentation or recommendations on how the act might be improved.
One is that, by and large, the exemptions that we find the need to rely on when they are applicable are the section 17 and section 18 exemptions, again pertaining to third parties' competitiveness and financial damage that may potentially result from a disclosure of the information. As you will also know, the commissioner has held that "clear and convincing evidence" is required to show the harms that are contemplated by those sections.
The difficulty we have experienced is that it is almost impossible to show clear and convincing evidence that an event may or is likely to occur when it has not actually occurred. We have now gotten to the point, I think, in our experience under the act that we do in fact have evidence, as a result of our experience under the act, indicating that we have suffered damage in certain cases. Particularly in the contractual area where party A has awareness of the terms of party B's contracts, party A will try to negotiate similar favourable terms where those terms are favourable. Again, that can operate to the corporation's detriment.
I think that the requirement of clear and convincing evidence is a very stringent one, because it effectively results in having to acquire evidence of damage, of the harm having occurred in order to support your position or support the likelihood of a harm occurring again in a subsequent appeal.
We also now have the types of evidence that we could use to support what is contemplated under section 17 of the act as a likelihood that the information will no longer be supplied. We are now getting that kind of response from parties with whom we deal, that they are reluctant and are refusing to provide us with information that would assist in the operations of our business for concern that it might be disclosed.
There are other examples, such as interference with negotiations or inability to effectively carry out negotiations, again because of the third party's awareness that there could be disclosure. There are specific cases of that. However, the "clear and convincing evidence" criterion is a difficult one to satisfy.
The second problem we have experienced is in relation to the third-party provision. Again, virtually invariably the information requested of us does tend to relate to third parties. Under the act we are obligated to notify those third parties in order to permit them to make submissions. However, that can sometimes put us, or any institution for that matter, in a sort of catch-22 situation.
I have just prepared an example of how this can happen. This is something I have made up completely. It does not relate to any real incident, but it gives a sense of how this can occur. Let's say we were having a board meeting to discuss the issue of whether we wanted to sue party X for breach of an arrangement we had with party X, and we have an ongoing business relationship with party X. After some discussion at the board, and it is recorded in the minutes and so on, there is a decision made that in view of the long-standing relationship and the future business benefits and so on, a judgement call is made that, weighing the benefits of the likelihood of success in a lawsuit against other factors and benefits, we decide not to proceed with a lawsuit against party X.
If those minutes are then requested to be disclosed, we are put in a situation where party X has been discussed in the minutes and is therefore an affected party. However, we do not really want to notify party X that the information relating to it is that we were considering bringing a lawsuit against party X. It puts you in a very difficult situation in that the third party, which the institution is obliged to notify in order to obtain its representations, may in fact be one of the very parties you do not want the information disclosed to for good business reasons.
That example also reveals another problem we have experienced, that there have been a large number of requests for board minutes of the corporation. The problem this poses is that to some extent it hampers the board's ability to conduct and oversee the business of the corporation. I think that is ultimately to the detriment of the corporation and therefore to the detriment of the taxpayers who are our shareholders.
It makes it difficult for management to go to the board for direction, for the board to feel that it has the ability to discuss openly the business issues affecting the corporation. Again, ultimately one wonders whether that type of a result is in the public interest or in the interest of the taxpayers.
In considering that and the problems I have just reviewed, it is important to bear in mind the purpose of the act. When one reads the stated purpose of the act, it refers to providing access to information under the control of institutions. To some extent, I think some of the background I have tried to give you reveals that a significant amount of the information we deal with is not necessarily information under our control. A large portion of it deals with the business affairs and activities of third parties.
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The principle of the act as stated is that information should be available to the public. I think that implies a public interest, and the act does not address this directly; it does address it in certain sections indirectly. I think something that is key in the implementation of the act is that it does, or it should, contemplate that the type of information that is desirable to be released to the public is information that is in the public interest in some fashion. I think that to some extent may get lost in the shuffle of processing requests, because the requester is not under any obligation to support the basis for his or her request or to make representations on why it is in the public interest that a record be released; or, in some other identifiable interest, the requester can simply make the request, can appeal it, and need not do anything further in terms of substance relating to the request. The onus is then put on the institution and the commissioner to determine whether the information should be released, based on the provisions of the act.
Interestingly, as I have tried to indicate, in our case a lot of the information that is requested is really not particularly in the public interest per se. In fact, I think what we find is that it is more in the public interest that the information not be released in order to enable us to compete effectively in the marketplace with the other venues we have to compete with.
I wonder what public interest is served in disclosing our lease with the little shop in the hotel or our contract with last week's promoter of such-and-so concert, when the detriment that can arise from that is that the competitors of that promoter or of other prospective tenants at the stadium can see that this party got such-and-so terms, "and therefore I want the same beneficial terms, not these other terms."
There is a certain common sense, I guess obviousness, to the proposition that people like to keep their contractual terms to some extent under their hat in business, in order to be able to carry on their business in the most effective manner. Unfortunately, the irony is that if the requesters would ultimately see the types of things they are asking for, they probably would not find them as exciting as they might think they are, because by and large they just relate to our business terms.
The last potential problem I thought I would bring to your attention is that there are developing out in the marketplace information services businesses, if you will, that provide a service to clients of obtaining information from various institutions under the act, which makes sense and is perfectly acceptable, but there is an issue that arises in that it may not be clear, either to the commissioner or to the institution, who is the real person who is requesting the information.
The problem that poses is twofold: One is in relation to what I was outlining earlier, in that there may be some validity to requiring the requester to show a reason for obtaining the information, whether it is the public interest or some other interest that can be balanced against applicable exemptions or reasons of the institution for not releasing it.
The second is that, depending on why the requester is requesting the information, it could constitute a premature disclosure of documents that may be relevant to a piece of litigation, which is somewhat of a concern that has arisen with us in relation to certain requests that have related to ongoing litigation we are involved in. Of course there is no way of determining whether this is the case or not at present, but if people were to use the information provisions of the act to obtain, effectively, discovery of documents outside a legal process, it can, I think, prejudice the institution in protecting its interests in that litigation in the manner that one is entitled to rely on traditionally at law as due process in litigation. Unfortunately, because the requester does not need to identify himself or herself or the reason or rationale for the request of information, it puts the institution in the position where it cannot be argued that the exemption relating to deprivation of due process is applicable because it cannot be said whether or not the information is going to be used or may be used in that manner.
Those are just a few specific and I suppose somewhat miscellaneous issues that I thought I would put to you that we at least have come across in our experience with the act.
To summarize, there is a definite appeal to the concept that there is a public interest in the disclosure of government information. However, it needs to be balanced against the exemptions in the act. The act also contemplates that there are legitimate exemptions that are applicable, and in the particular case of the stadium, because our function as a crown agency is somewhat removed from government per se, oftentimes there are legitimate exemptions that are applicable.
The other point is that the issue of the public interest should perhaps play a greater role in the determination of whether or not information should be released.
That is all I thought I would say today. I am happy to answer any questions anyone might have.
Mr H. O'Neil: I am just trying to think of one of the previous presentations we had. It may have been even in the fall. Who was the chap who came before the committee who was complaining about some information he had asked for and he did not receive?
The Chair: That was Ken Rubin.
Mr H. O'Neil: Do you recall the request that he may have made? I guess he has made a few that were turned down. Maybe we could just touch on that.
Ms Novak: I do not know specifically what requests he might have been referring to unfortunately. We have received a large number of requests from Ken Rubin over the years. Many of them we have responded to and there have been releases of information either immediately or through the mediation process. Others have gone to appeal. Unfortunately, I cannot really identify what specifically he might have been referring to, but again, due to the sort of breakdown of the types of requests that I tried to give at the start of the presentation, it is more than likely that the requests would have pertained to a contractual type of information or information where third parties were involved and that process was gone through and so on.
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Mr H. O'Neil: Mr Villeneuve just reminds me that the ones he brought to our attention were dealing with some of the concessions within the building, like the food concession. You would place that again in contractual agreements, where it could be of harm for --
Ms Novak: I do not know the specifics of what the request would have said but it sounds like it would have been a request for contractual information with the concessionaire or that affects the concessionaire, which is of course a third-party, private entity.
Mr H. O'Neil: I guess what people who are looking for concessions within a building such as the Dome are wanting to make sure of is that other people who have applied are treated fairly and that they are getting the best deal possible for the province, for the Dome and for the people of Ontario. How would you put safeguards on something like that?
Ms Novak: To ensure that the best deal with the concessionaire has been made?
Mr H. O'Neil: That there is no sweetheart deal between board members or somebody who has had it for a number of years. I go back to my experience as the Minister of Tourism and Recreation in dealing with Ontario Place and some of the concessions there, concessions that may have been given that should not have been given and were not examined closely enough. There was not enough of an open bid process, you know, trying to correct some of those things. So when you were dealing with these bids that were put in, you got the best pricewise and yet that looked after service and other things too that had to be taken into account.
Ms Novak: I think for better or for worse the way that process has been structured is that a corporation has been set up that is a schedule 2 crown agency of the province, and the province has retained or arranged for a management team that it feels is qualified to negotiate the best deal and the most appropriate deal based on market terms and so on and so forth. I do not think this act is intended to be a mechanism to review whether or not that process worked effectively, and in fact the request of a contract post facto that is in place is not going to be able to serve any interest in examining the process to make sure it worked effectively, because the deed has been done at that point.
I think that is part of a broader issue of whether management is operating effectively and in accordance with its duties. It seems to me either that is something that should be addressed at the stage when you are setting up the structure and giving the people or the body the authority to act in the interests of the shareholder, as a corporation does, or that can be addressed by means of some kind of inquiry into how the process operated. If that is something that is desired by the government or by some authorized public body -- but you know, a private individual requesting a copy of the contract, it does not appear to me to serve that sort of function.
I think at that point there are other factors that outweigh whatever benefit -- I guess I find it difficult to see where the public benefit is in seeing the contract that has been signed via a public individual, who is not necessarily acting on behalf of the public interest.
Mr H. O'Neil: You mean if they act on behalf of the public interest or whether they represent the board. I mean, they are responsible. The management team should be responsible to the corporation itself and, in turn, the corporation to the province or whoever is running it.
Ms Novak: Absolutely.
Mr H. O'Neil: I can see that, by releasing certain information like that -- but I think there also have to be some safeguards built in. In these particular requests that were made, the management team would have to be responsible to the corporation. Does the corporation review those contracts, along with the management people too?
Ms Novak: I am sorry? Does the corporation review?
Mr H. O'Neil: In other words, you were saying you have a management team that would approve a contract, accept a contract. Do all those contracts go to the board?
Ms Novak: It depends on the nature of the contract. Because the Stadium Corp of Ontario Ltd is a corporation set up under the Business Corporations Act and is also a schedule 2 crown agency, there are certain guidelines, procedures, legal obligations that are similar to most corporations. Then there are additional types of procedures for accountability to the government by virtue of our arrangements with the government and our authority as a schedule 2 crown agency.
I am just saying that generally there are procedures in place designed to achieve the objective you have pointed out which is that, because the taxpayers are essentially our shareholders, you want the best things done for the corporation that are in the interest of the taxpayers. It is those mechanisms that address that issue rather than this act per se.
Mr Villeneuve: Ms Novak, could you explain to us or maybe walk us through quickly -- I presume most of the requests under freedom of information to the stadium corporation would involve a third party.
Ms Novak: That is right. A large number of them do.
Mr Villeneuve: Yes, the vast majority. Could you walk us through who receives it? Who decides, "Is it within my mandate to provide this information?" Do you have a group of people that sit down at some particular point soon after? Just what happens when you receive a request under freedom of information for the beer concession, the food concession or whatever? Give us an idea how you handle that.
Ms Novak: We have two individuals in our legal department, myself and an associate counsel. I will give you what the current structure is because it is modified a little bit over time. Currently the associate counsel deals with the requests. Our vice-president of finance is the decision-making head effectively under the act, the designated FOI co-ordinator. He works with our associate counsel to process the requests. Generally, depending on the nature of the request, usually because it relates to contractual information, the legal department is immediately familiar with the type of information being requested and can locate it and deal with the request appropriately in accordance with the act.
Where it is a type of information maybe not immediately available to the legal department per se, the request will be distributed among senior management at the corporation with the request that members of the department conduct their own search of their records to advise us of what materials they may have that respond to the request. That is then gathered and reviewed and the associate counsel will make a determination in consultation with me and with the FOI co-ordinator as to the appropriate way to respond to the request based on the procedure in the act.
Mr Villeneuve: Would the third party involved ever be contacted at any point?
Ms Novak: Oh, yes. That is one of the early things that is done, to determine whether there are any affected third parties. Then, of course, the procedure is to notify the third parties and permit them an opportunity to make representations to us on whether --
Mr Villeneuve: Do they know who is doing the inquiring or who is the individual? I would think that probably an agent would be acting on behalf of a competitor so they may not be in a position to know if it is a competing beer company, food concession or whatever. Are they privy to that information as to who is requesting?
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Ms Novak: No, we do not notify the third parties of who the requester is. We notify them that a request has been made. This is the wording of the request: we tell them what the request is and we tell them what records we have identified that are responsive to the request. Depending on the bulk of those records or whether the third party would be immediately familiar with them, we may attach copies or we may simply identify the category, and there might be some verbal discussion afterwards as to what they might need to see in order to respond.
Mr Villeneuve: What type of document is provided? Do you provide, say, a copy of the contract with absolutely blacked-out areas of those particular items within that contract that are not deemed to be public or to be published to whomever, or does someone print a résumé? Just how does the information go out to a potential freedom-of-information request?
Ms Novak: Do you mean to the third party?
Mr Villeneuve: No, to the person who has requested. I presume the third party has had knowledge. You are saying they would be made aware. Would their negative reaction be considered by your board? Would they have a lot of input into whether their deal is made public or not? I am quite sure that input would be forthcoming from them, likely in a negative fashion, that the less said about this, the better. That would be a normal reaction, I think. You then have to decide, how much further do we go? What format do we provide the individual who has requested that information?
Ms Novak: It really depends on the record in issue and the nature of the response of the third party. Generally, it is not an issue of whether there are big secrets to hide. It is sort of a question of principle and competitiveness, the terms under which the agreement was negotiated, and so on. But not always, I should caution. There have been some things that have been released that are of a contractual nature. I think what you might be referring to is whether there are any severances made. When it comes to a contractual issue, our view is usually that the whole contract is confidential. It does not make sense really to disclose these six contractual provisions but not those twelve. It is really part and parcel of the whole applicable exemption.
Mr Villeneuve: Would you suggest then in most cases that the contract itself is kept confidential and you would broadly outline to the requester the general terms but nothing specific?
Ms Novak: It depends on what our decision was. If we had made a decision to refuse access, then we would simply give our decision in accordance with the act. We have developed a binder of forms that we use in accordance with the act, in compliance with the sections governing how a notice is to be issued, and so on. It depends really on what the decision is. If the decision were to disclose parts of it, then we would disclose and we would simply state that we are not disclosing these other provisions for such-and-so reasons, and we would set out the reasons in accordance with the act.
Mr Villeneuve: Does that create a major headache for you? First of all, do you get a lot of requests under the same corporation?
Ms Novak: Without question -- and this is actually one comment towards the end of my presentation that I did not make -- there is a tremendous expense and investment of manpower in dealing with the act. It is a huge undertaking, and some of the requests we have received are tremendously broad and very expensive.
Actually, one of the points I was going to make -- I will do it now as it has come up -- is in connection with the cost provisions under the act. Understandably, there are requesters who object to the cost provisions and do not think they are fair and so on. We think the cost provisions serve a very valuable and legitimate purpose under the act.
There are two aspects to that. One is that the cost provisions are not onerous; they really permit a nominal recovery against the costs incurred by the institution in processing requests, and I think that is fair and reasonable. Second, I think they are a bit of a disincentive to fishing expeditions or frivolous requests; not to suggest all requests, or even a majority of requests, are of that nature, but some of the requests we get could amount to hundreds or thousands of man-hours of plowing through files for things, and the cost mechanism is a helpful mechanism to deal with the requester in such a way that we can say: "In order to process this, it is likely going to cost you X. Maybe if we had a better understanding, or if you could narrow your request or identify specifically what it is you are interested in, it would save you some money and I guess save us some money."
I think that is an important and legitimate concern, because the act is designed to serve a public interest, and I think it is important to recognize that doing that is not inexpensive and that therefore you want to make sure the public interest is being served and people are really focusing on what they really want, to reduce costs. I think I digressed a little from exactly what it was you were asking.
Mr Villeneuve: My final question you can answer or pass. In your opinion, do you feel the freedom-of-information act is too permissive? Do you feel there should be more restrictions? What is your candid observation?
Ms Novak: It is hard to say. I can only comment on our own experience with the act, and there are so many different, varied institutions subject to the act that it is hard to really say whether it is serving requesters' objectives in a broad sense or whether it is too permissive or too restrictive on that kind of level.
This is my personal opinion, as opposed to any opinion of the corporation, but from my experience with it, I think it is not that it is necessarily too restrictive or permissive per se, but that perhaps the rationale for requesting is not appropriately recognized -- that is the public interest thing I was talking about earlier -- and that some of the exemptions do not necessarily contemplate in the best way the good reasons there might be for withholding information.
It is difficult to draft an act in such a way that it is going to contemplate every situation that might arise, but I think there needs to be a little more flexibility in allowance for judgement to be exercised, because information can vary as much as people can vary on the face of the earth, and it is difficult to apply fixed parameters that are going to work the right way every time. It really is to some extent a bit of a judgement call.
Of course, that may sound a little unfair to requesters, and they probably do not want somebody out there exercising that kind of judgement in a free sense, but because of the heavy amount of procedure involved in the act I think people sometimes might actually get more information if there were not an act in place, in that I think sometimes the procedure and the processing and fitting within the parameters of the act can work in a somewhat restrictive sense. I am not sure there is any answer to that or any clean solutions.
Mr Villeneuve: The stadium corporation is not quite unique but almost unique, and so being, maybe has to have a slightly different set of circumstances or rules when you are dealing with it. I appreciate that and I really appreciate your candid remarks. Thank you.
The Chair: I thank the witness for coming this afternoon and for a good presentation and questions very well answered. Thank you very much.
Mr H. O'Neil: I was going to ask one additional question. With some of these food contracts you are negotiating, do you see any cheaper hot dogs down the way?
Ms Novak: I would love to answer that one, but I do not think I should.
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CANADIAN POLITICAL SCIENCE ASSOCIATION
The Chair: Could I ask the next set of witnesses from the Canadian Political Science Association to step forward, please. Thank you for coming here this afternoon. Could you state your names and the position you hold within the organization, please.
Mr Whitaker: I am Reg Whitaker from York University, representing the Canadian Political Science Association.
Mr Russell: I am Peter Russell, president of the Canadian Political Science Association until yesterday when I finished my term. I was president when we filed this. We serve one-year terms. My successor, Professor Vincent Lemieux at Laval University, could not be here. I am the immediate past president.
The Chair: Do you have a presentation to make?
Mr Whitaker: Yes. There was a brief some time ago actually, when we were initially scheduled to present, which turned out not to be possible at that time. I am chair of the archives committee of the association, so perhaps I could say a few things that come out of the brief.
The concern we have as political scientists is that there be reasonable access to government documents, particularly for the purpose of being able to undertake research and analysis of public policy. There is in fact a very considerable public interest, we believe, to be served by research into public policy in a democratic society, making the citizens better informed so that they can make better judgements as to how they should be governed.
Unfortunately, the Freedom of Information and Protection of Privacy Act here in Ontario appears to be working in a way which is in fact impeding this process. While we are very aware of the conflicting objectives that have to be balanced, the conflict between the public interest to be served by disclosure of information and sometimes the public interest to be served by protecting information, and also the legitimate protection of information regarding the privacy of individuals, we believe that in certain ways, from our point of view as researchers, the balance has shifted rather too far in the direction of restrictions.
This committee has the opportunity, in reviewing this legislation, to recommend some changes -- I will now move to our recommendations in this regard -- that could in fact restore some balance to this. We are not asking for absolutely unrestricted access to everything, far from it, but we do think there is a reasonable balance and that balance is not being struck at the moment.
I might add that to somebody like myself who has done some fairly extensive research using the federal Access to Information Act, and in ongoing research that I continue to do using that act, the situation in Ottawa is in fact much more open and much more amenable to the kind of research that we are doing. We really doubt that the government of Ontario intended to be more restrictive than the federal government. I think it is probably more the unintended consequences of legislation which, once put in place, works in a certain way, and in this case, from our point of view, not particularly well.
The problems particularly centre around the Archives of Ontario, which is the repository for what you might call non-operational government records when they are no longer being used by governments and then are deposited in the archives. That is the major place where people would be going to do significant research. The problems are many, but I will focus on particular ones that can be addressed.
First of all, there is the problem of financial resources, that the freedom-of-information act was imposed upon the Archives of Ontario. It imposes an enormous amount of work on that institution, but in fact it has not been given additional staff resources to handle that. The result is, inevitably, that there are enormously long delays which are extremely irritating to the users of the archives but in fact are also an embarrassment to the archives' staff themselves. If our recommendations and some of the other recommendations were to be adopted, I think that would ease the financial problem of having to provide additional resources, but additional resources would certainly be required in any event.
A second set of problems arises surrounding historical records. The act does not distinguish between current operational records and those which are no longer operational and should become part of the historical archival record. The act provides for discretionary exemptions, with no necessary time limits. There should be, we believe -- and here we are following the federal legislation -- injury tests applied to such exemptions.
If there are strict time limits imposed -- and we would argue for 10 years on cabinet documents, which would normally span the life of two and a half governments; 10 years on most other exemptions, with some exclusions for law enforcement and so on where there is a reasonable case to be made for a longer period -- the government would then have to demonstrate that harm would be done to the public interest by disclosure of a document more than a decade old. This would balance the public's right to know with a necessary degree of confidentiality to maintain the functioning of government.
Another problem is enforceability. The freedom-of-information act is not enforceable on government ministries and agencies in terms of preserving the records of government documents. I believe this suggests that there should be changes made to the Archives Act, which is in fact very old in this province. It should be brought up to date in terms of the provisions of the freedom-of-information act and the Ontario archivist should be given teeth, in effect, to insist upon consultation in the disposal of non-operational records. Again, this is the federal practice, and without this, significant parts of the historical record of the Ontario government may be lost, either inadvertently or perhaps even in some cases deliberately by ministries or agencies destroying significant records.
Another point that we suggest, and I believe that historians have made the same argument before this committee much earlier, is that we would like to see built into the act provisions for research agreements between researchers and the Archives of Ontario regarding access to records. The problem at present is that when someone launches on a research project, you start off and you do not really know exactly what it is you want to see. You have to survey the documents in order to find out what you want. But you cannot do that now without having everything run through the act, which means that there is eight months' to a year's delay often in actually getting initial access to even begin research.
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We would suggest that you might have provision in the act for research agreements which would have exit clauses rather than entrance clauses; that is, they would deal with the terms on which material could be published rather than on the terms on which researchers could view the records. We think that for proper safeguards, this should be made enforceable; that is, there could be an amendment to the act whereby communication to an unauthorized person of information exempt under the Freedom of Information and Protection of Privacy Act which is obtained under a research agreement would become an offence under provincial law.
In other words, this would be something researchers would enter into. They would agree that they would only publish what was acceptable under the act. There would be some teeth in that to make sure that did in fact happen.
Another set of problems revolves around the issue of privacy. The protection of privacy usually turns out to be the biggest barrier to access to information for researchers. While there are valid reasons for protecting the privacy of individuals, I think there is a good deal of abuse of this in effect by the kind of expansive way in which this is interpreted.
There are some changes that could make this situation better: first of all, time limits. The act indicates that personal information does not include information about an individual who has been dead for more than 30 years. You can get access to material that deals with an individual, but only after that person has been dead for 30 years. The American freedom-of-information law provides no after-death extension of privacy protection. It assumes that when somebody is dead, his rights to privacy do not extend beyond the grave.
It is not at all clear to us why such a right ought to extend beyond the grave or why an arbitrary period of 30 years, and we would recommend that the legislation be amended to strike out any reference to the protection of the privacy of individuals no longer living. That would solve a great number of problems in access to information.
Clauses 2(1)(e) and 2(1)(f) in the definitions of "personal information" in the act indicate that the personal opinions or views of an individual are included in the definition of protected personal information. The way the act is written, if I may just refer to it, it refers to, for example, "correspondence sent to an institution" -- that is, a government institution -- "by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence."
I think this is drawn up in such a broad way that it effectively limits access to opinions on public policy that are provided to government, and researchers should be free to discuss and analyse such opinions and attribute them to identifiable persons where the analyses of opinions offered to government on public policy matters are an essential part of the research. We recommend that this definition be changed so as to allow researchers unrestricted access to individual views advanced to government on public policy. In conclusion, it is the consensus of researchers who have used both the federal Access to Information Act and the Ontario freedom-of-information act that the federal legislation, despite many flaws, is superior to the Ontario legislation from the point of view of reasonable access to public information for purposes of research and scholarship. We doubt that the government of Ontario intended to be more restrictive, and we would hope that this committee could take the opportunity afforded at this time to recommend changes such as we have suggested to amend the legislation to eliminate this rather invidious comparison with the federal government and hope that a somewhat more appropriate balance could be struck between the genuine rights to the protection of privacy and the public interest on the one hand and the stake of a democratic community in facilitating research into public policy on the other.
The Chair: Thank you very much. The floor is now open to questions.
Mr Villeneuve: Professor, you have quite obviously used freedom of information for some period of time. I am sure you obtained information prior to the legislation.
Mr Whitaker: Yes.
Mr Villeneuve: Your opinion before and after.
Mr Whitaker: I can speak here actually more appropriately at the federal level, but I think it is in some ways similar. It is kind of six of one and half a dozen of another. Before the federal legislation came into effect, I was able to obtain information that I would not now be able to obtain. In fact, I published an article in a scholarly journal back in 1984 which contained quite a bit of information that I know I could not now get those documents under the Access to Information Act.
On the other hand, I would on balance say it is a good thing to have this regulated by legislation, which in effect suggests that there is a right of access to information, or freedom of information, and puts the onus on the government to justify why information is not provided. I think that is a healthier situation than the earlier situation, when it was perhaps just by chance that one might get access, or indeed that one might be favoured, that a government agency or ministry might like this kind of researcher and think that he is going to say something or write something that is approving, so they favour him and give him documents they do not give to somebody else. Under legislation, it is put on a more appropriate basis of a right that is universal and not particular; so I think on balance it is good, although I grant that in some cases it has been more restrictive.
Mr Villeneuve: So we are basically, in your opinion, dealing with the protection of privacy, as opposed to a freedom-of-information legislation, if I read you correctly.
Mr Whitaker: I guess our concern, from the point of view of political scientists, is that the protection of privacy, as it has been interpreted, tends to be a very significant barrier to access to information. That class of exemption is the one that is most often cited by governments, and this is the case in Ontario as well, in justifying not releasing information, that the release of the information would be an invasion of the privacy of third parties or whatever. That is almost ubiquitous. It seems to be constantly in the process.
One of the reasons we had for suggesting this notion of research agreements would be that it is a way of getting around that problem, because in fact often the researchers are not interested. I know myself I have often run into this, and my reaction is to say: "I don't want these names. I'm not interested in these individual names." They may mean nothing to me. What I am interested in is the picture that I can draw, looking at a number of individual cases of how, say, a government policy is actually being implemented, and I can only do that by looking at the documents, but they may be identified by individual names of people. But I am not interested in the names.
If we could have these kinds of research agreements, in effect it would be possible to draw the research implications out of this, but you would be restricted from releasing any of those names, and I think that is a reasonable balance. It protects the privacy of the individual while at the same time allowing access for research purposes.
Mr Villeneuve: In many instances, though, would the names, even if they are unwritten, not be obvious?
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Mr Whitaker: Yes, they may be, and indeed often there is no other way of accessing the information except via the names of individuals.
I will give you a concrete example of some research I have done which has to do with immigration policy. In order to understand how immigration policies are really operating in reality, as opposed to the letter of the law, you often just have to work through cases. Again, as a researcher I am not interested in those individuals and I am not going to run off and tell the Toronto Sun that so-and-so got let into the country and had a dubious past or anything like that; I just want to get the picture. I cannot do that under the present circumstances, and with the kind of research agreements we were suggesting, that would perhaps, for example in this case, allow access to those kinds of records, with a clear and enforceable understanding that none of that private information could be divulged, but only information that did not relate to the privacy of individuals.
Mr Villeneuve: One final question, and it follows along the same lines of identifying: 30 years for information on an individual, you feel, is totally out of line. Possibly the day after death is a little too soon. Could you come up with a middle-of-the-road time frame? Should there not be a time limit, based on your experience of the American method of operating? I would still like to see a five-year span or period of time whereby there would be a cooling off.
Mr Whitaker: First of all, it would not be the day after somebody died, because even if we requested it the day after somebody died, it would take a while before it actually worked its way through, from experience, anyway.
I guess our concern is that 30 years is an awfully long time. I mean, we are talking now, for example, about --
Mr Villeneuve: Mackenzie King.
Mr Whitaker: He would be outside that. We are talking about 30 years, which is 1961, somebody who died that long ago. I personally find it very difficult to understand how a right in effect extends beyond the grave. If it were anything that reflected on immediate family or something like that, then presumably those individuals could claim protection of privacy in their own name to prevent that information being divulged.
Mr Villeneuve: The last statement brings on another question. How can I protect information? Is there a way now, in your opinion, that one can protect privacy by stating your case? It sounds like I could request protection if one of my immediate predecessors passed away and there was something that I wanted to protect. Can you do that?
Mr Whitaker: I am not sure I could answer that in the abstract. I guess if there was information that was being held on that person in the Ontario government that mentioned your in some way, then indeed that would relate to you and that information would be protected because you are still living, and indeed now would be protected until 30 years after your death.
Mr Cooper: Mr Whitaker, you seem to be pointing out that the pendulum has swung too far to the privacy section. Our question that I think we have been asking with the other people who have presented is, do we have to redo the whole legislation or would guidelines serve the purpose just as well?
Mr Whitaker: I think there are some changes that should be made to the legislation. I cited in particular those sections of the definitions that seem to imply, for example, that representations made to government on matters of public policy which are made confidentially would fall under the protection of privacy. I find that to stretch the reasonable definition of protection of privacy to the breaking point.
It seems to me that if somebody makes representations to government, to a minister, whatever, on a matter of public policy, that should be part of the public record. Certainly it makes research very difficult. If one were trying to do research on policy, one would want to know what kinds of representations had been made, by whom, which were successful and which were not and so on. It seems to me that is in the public realm. That is one.
The other one is this extension of privacy 30 years past death, which is a really difficult problem. That is in the legislation, and we would like to see it changed.
Mr Mills: I have a question that touches on what Mr Villeneuve said about waiving the 30-year rule. If somebody passes away and you say the next of kin likewise can apply for the protection of privacy, I am just wondering, if someone is seeking information about an individual, what mechanism is in place that would let the next of kin know this is being looked into in order to protect himself if he wanted to?
Mr Whitaker: This is up to the particular ministry or agency of government that receives the request, to process it according to the act. Indeed, this is one of the difficulties that is presented to the Archives of Ontario, the difficulty of knowing. Has somebody been dead for 30 years? Are they dead or are they alive? I make many requests of the Canadian Security Intelligence Service in Ottawa, and I have had them come back to me and say, "We don't know if this individual" -- who they had files on -- "is dead." I have my suspicions about that, but in some cases perhaps even they do not know. This is a very difficult problem administratively to handle. That is still a problem even if you were to waive the 30-year rule, but at least it simplifies matters rather.
Mr Frankford: I think I am correct that birth and death registration and certification is protected as privacy?
Mr Whitaker: I do not know.
Mr Frankford: I think that is the case, because we had a presentation from the genealogists. It surprised me. It seemed to me this really is a matter of public record. Do you have any comments on this?
Mr Whitaker: I can see why the genealogists would be upset about it; that is their business. It does seem very strange. I know there has been a great deal of social science research of an historical nature that has been based almost entirely on that kind of information, in terms of getting historical profiles of the size of families, the age at which people have children and all sorts of information of that kind which is very valuable from a social science point of view. That, I must admit, was not one I had been aware of, but having been made aware of it, I deplore it as much as the others.
The Chair: I wish to thank Mr Russell and Mr Whitaker for coming here this afternoon and giving a good presentation. Thank you both for coming.
Mr Russell: I wonder if I could just leave with you these words on behalf of the political scientists I represent, just two points.
It is becoming a matter of real concern with them that they are not able to do the research that is important in political science; that is both the faculty in departments of political science and, equally important, their students who are doing their theses. Some of the points in the document to look at are the ones that hold them up. A student is only at university to do a thesis for a finite period of time, and only has financing for a finite period of time. When that doctoral student doing research on public policy in Ontario is held up for a year waiting for the documentation, he or she is very seriously handicapped. So this is of grave concern to us in this province, and we are most concerned that the situation is now rather worse than it is in researching federal public policy.
The second point related to that is, this is not just a matter of what is convenient for our researchers. This is a matter of the public interest. We think our work is part of the process of making government accountable; not immediately, as members of the Legislature do, but in the longer term. Writing scholarly works, articles and books on how public policy evolved in Ontario is part of the accountability process that we think we serve. So I do urge on you that Professor Whitaker's brief on behalf of our association be given full and due consideration by the committee.
The Chair: Thank you, Professor, for making a good point here this afternoon. I am sure the committee members will take those points in its deliberations of this act.
Any further business before the committee? Seeing none, this committee stands adjourned until 3:30 on Wednesday the 12th.
The committee adjourned at 1722.