DRAFT REPORT: MUNICIPAL FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT
CONTENTS
Wednesday 18 May 1994
Draft report: Municipal Freedom of Information and Protection of Privacy Act
STANDING COMMITTEE ON THE LEGISLATIVE ASSEMBLY
*Chair / Président: Hansen, Ron (Lincoln ND)
*Vice-Chair / Vice-Président: Wessenger, Paul (Simcoe Centre ND)
Dadamo, George (Windsor-Sandwich ND)
Johnson, Paul R. (Prince Edward-Lennox-South Hastings/Prince Edward-Lennox-Hastings-Sud ND)
MacKinnon, Ellen (Lambton ND)
*Mathyssen, Irene (Middlesex ND)
McClelland, Carman (Brampton North/-Nord L)
Morin, Gilles E. (Carleton East/-Est L)
Sterling, Norman W. (Carleton PC)
Sullivan, Barbara (Halton Centre L)
*Sutherland, Kimble (Oxford ND)
Villeneuve, Noble (S-D-G & East Grenville/S-D-G & Grenville-Est PC)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Elston, Murray J. (Bruce L) for Mrs Sullivan
Hope, Randy R. (Chatham-Kent ND) for Mr Dadamo
White, Drummond (Durham Centre ND) for Mr Paul Johnson
Wiseman, Jim (Durham West/-Ouest ND) for Mrs McKinnon
Also taking part / Autres participants et participantes:
Management Board of Cabinet:
Platt, Priscilla, legal counsel, freedom of information and privacy branch
White, Frank, director, freedom of information and privacy branch
Clerk / Greffière: Freedman, Lisa
Staff / Personnel: Swift, Susan, research officer, Legislative Research Service
The committee met at 1601 in room 151.
DRAFT REPORT: MUNICIPAL FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT
The Chair (Mr Ron Hansen): We'll bring the committee to order. Maybe Susan can start off and remind all of us where we were and bring us back to reality.
Mr Murray J. Elston (Bruce): Could you recap, please?
Ms Susan Swift: I'd love to. Let me start at page 1. The last time the committee met, we were considering how we would go through the report. There were several options that were on the table. One of them was to go through page by page. Another was to go directly to the recommendations and go through them chronologically. A third would be to go to what were called the controversial issues, those being the issues where the committee had asked me to simply discuss them and prepare options for your consideration.
I'm in the hands of the committee as to how you want to proceed, to go through the report. Maybe there's another option; I don't know.
Mr Elston: I don't have concern moving through this page by page. In reading it, it falls fairly straightforwardly in that fashion. I think there are a couple of places where we go back and forth to items, where there's a slight repetition perhaps in the text, but I rather think we'll start at the beginning of the report and move forward that way. We'll come to the option situations and we'll be able to endorse the recommendations as written or otherwise. I think that makes it fairly easy to follow.
Mr Randy R. Hope (Chatham-Kent): I was trying to remember all the conversations that took place last time. One of the expressed concerns that I know I was bringing out was whether this would be a partial report or a full report, because there were areas dealing with the hospitals that we felt were important that we needed to address in order for this to be a comprehensive review.
Mr Elston: In fact, there are some recommendations in here that basically say that we're not going to move further at this time until we have either further information for us or we will recommend having further hearings on certain items. This will be comprehensive in relation to the terms of reference, but it will still leave some avenues for us to explore more fully later on. I think the report will be full. It will be complete in the sense of the terms of reference, but it will not do all the things that we decided the hearings would lead us to do.
Mr Hope: Yes, I know the report is full. Sometimes it's too full. Could you tell me what's on page 35? No. But it's full. But I think a lot of us expressed, when we began this process, to make sure that we could do as much as possible. Around the hospitals and school boards etc, I think it was really to pursue that. I thought the intent was a strong pursuit of that. I know the report covers a bit of it, but there is still time. It just helps push the committee to do that end of it.
Ms Swift: I was just going to interject that I think you'll find the report deals with most of the issues that came up during the hearings. The issue of the coverage of the act is dealt with in the first recommendation, and that is the one where most committee members thought that perhaps a phase 2 of the review would be completed at a later date. We could start on that page with that issue perhaps, or with that recommendation, that being the first recommendation.
If you turn to page 7 of the document, that is where the discussion about coverage of the act begins. Perhaps I can just briefly take you through it, unless the members want to take a moment and read it quietly to themselves.
The Chair: I think, Susan, you could guide us through it a lot easier. There are a lot of pages here.
Ms Swift: Okay. Beginning on page 7 then with the issue of extending coverage of the act, firstly, the introduction deals with the current situation -- that is, the definition of "institution" under the act. The committee heard from a number of witnesses that there are a number of public bodies in Ontario that are either performing important public functions or receiving public funds that are not currently covered by any freedom of information statute.
The discussion then goes into the Williams commission report, which is the seminal report dealing with freedom of information in the province, and discusses the principle upon which the Williams commission recommended that certain institutions be covered by the legislation and others be excluded. The principal basis upon which institutions were included was that it should be those public institutions that are normally perceived by the public to be part of the institutional machinery of the Ontario government, recognizing that this would exclude some institutions that are receiving public funds and performing public functions. The Williams commission thought, none the less, that this was an appropriate limitation.
As I said, the witnesses before the committee, beginning with the Chair of Management Board, made some suggestions to the committee as to the possibility of extending coverage. The Chair of Management Board indicated that coverage was an issue that had been raised with the ministry by many citizens' groups. The Information and Privacy Commission recommended specifically that the act be extended to cover hospitals, universities, social service agencies and self-governing professional bodies, on the basis that such bodies receive public funds and carry out public functions. In other words, there's a broadening now as to the basis for inclusion in the freedom of information legislation.
The third category of witnesses, if you like, that came before the committee and suggested extension were various individuals who submitted recommendations to the committee, and they urged an even broader extension of coverage to include the Ombudsman and many of the self-governing bodies in the province, including the regulatory colleges under the Regulated Health Professions Act, the law society and other agencies, boards and commissions that are not currently covered by legislation.
The committee also heard that several jurisdictions have used different bases or different criteria to determine inclusion or applicability of freedom of information legislation, and principally we heard that Saskatchewan and Quebec focus on the criterion of receipt of public funding. British Columbia uses the two criteria that have been suggested by the Information and Privacy Commissioner -- that is, the receipt of public funds and also whether the body is performing a public function.
In its 1991 report, this committee recommended that coverage of the freedom of information legislation should be extended to provide greater access to more government information, and the criterion that the committee used at that time was that any organization receiving more than $50,000 in public funds should be covered by freedom of information legislation, the rationale for that approach being that:
"The committee believes that the public has a right to follow public money wherever it may flow, regardless of whether the recipient organizations receive all or only a portion of their funding from the government, and regardless of whether these organizations are commonly viewed as institutions of government. Institutions receiving significant public funds, such as hospitals and universities, should be accountable to the public for the use of those funds."
That was the recommendation in the 1991 report.
Mr Elston: Can I interrupt perhaps just for a second? The $50,000 received, was that one-time, or was that annual, or was it just that any time you received $50,000 you're subject to --
Ms Swift: The committee didn't go into that. That wasn't dealt with in detail.
Mr Elston: But it would sound like it was a one-time receipt of $50,000.
Ms Swift: I guess it could be read that way. They didn't go into it, so I'm not sure they had turned their minds to that issue.
Mr Elston: But the idea being that there had to be a level, a floor, from which you begin to inquire.
Ms Swift: That's right.
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Mr Elston: But below $50,000 receipt, without being more specific, it would sound like even if you got a grant for the church, for instance, to build an elevator entrance, which often is $75,000, $80,000 or $90,000, they technically then would be subject to freedom of information if that was a recommendation which we followed. Then we would have to specifically talk about receiving moneys of an operating or yearly amount, which I think if we were looking at that, I would highly recommend.
Ms Swift: That was not dealt with by the committee, but that would make sense, I think.
The committee, in its 1991 report, also recommended that coverage of the provincial act be extended to administrative and support services of the Legislative Assembly and to all government agencies.
The committee received submissions regarding concerns about access to health care records but deferred making any recommendation on that point, noting that the Ministry of Health was at that time engaged in a review of all health-related information issues as part of a proposed health care information access and privacy act. The committee heard evidence that the act, of course, hasn't materialized. There have been no further steps taken on that.
Mr Jim Wiseman (Durham West): We didn't really hear from the hospitals and all of these other agencies, and it seems to me that there may be difficulties that we aren't very clear on in terms of, say, a hospital being able to separate private and personal information from information that should be readily accessible. For example, if you were to try and trace the way some moneys were spent, it may be that in order to do that thoroughly, you would have to know what it was spent on.
I'm just wondering if they wouldn't have some concerns about the cost to them of doing this and whether or not it's feasible for us to ask them to do it in a way that would open it up to the public in a broad sense and allow people to get into the minutiae of the way a hospital runs. I haven't got any problem with freedom of information about administrative salary levels and things like that, but when it gets into some operations of certain floors and how much money is being spent, you could run into some problems.
I guess what I'm saying here is, before we really go too much further in terms of expanding that, it might be advisable to suggest some kind of a return or an invitation for some of those groups to come in and talk about it.
Mr Paul Wessenger (Simcoe Centre): It wouldn't become a recommendation in the draft report. It will be phase 2.
Ms Swift: Yes.
Mr Kimble Sutherland (Oxford): Sorry, I haven't been here for all of the discussion, but I would just point out that I think the point Jim raises is very valid. All you have to do is look at some of the responses by some of the institutions to having the Provincial Auditor come in and look at the transfer of funds from the provincial government to them and as to whether the auditor can only look at the provincial funds or can look at, for example when you get into universities, their research grant funds or their foundation funds. There will definitely be some concern from some of those institutions.
Ms Swift: That certainly was my sense of what the committee wanted to see in its recommendations. That is in fact how I've drafted the recommendation for your consideration -- that is, that the committee supports the principle of extending coverage of the act to provide greater access; however, "insufficient evidence has been presented to the committee with respect to the unique access and privacy needs of the proposed organizations."
In addition, the cost implications of extending coverage not only to these institutions but also to the Information and Privacy Commissioner, what that would mean to take on those added responsibilities, was something that the committee felt it would have to examine before making a recommendation for extension to a specific body.
What I've taken from your discussions previously was that before making any recommendation for extension to a specific body, the committee would undertake additional consultations with the proposed organizations, including the public hospitals, universities, social service agencies, the Information and Privacy Commissioner, Management Board secretariat and affected ministries, groups, associations and individuals.
If you look at the recommendation at the bottom there of page 11, basically what it says is that the committee will immediately begin those consultations as phase 2 of the ongoing review that it is mandated to do under the act.
There's a spelling mistake there. In the third line from the bottom it says "the appropriations," but it should mean "the appropriateness of extending coverage."
Mr Wiseman: Do you ever spell-check these things?
Ms Swift: I spell-checked, but "appropriations" is spelled correctly, so it didn't catch it. You need a meaning check.
Mr Hope: Mine would be technical, just dealing with that "the committee immediately undertake public consultations." How strong is that? Let's say the report is adopted by the House. How strong is the report for us to get back in here and deal with that? That's what I've been trying to come at. We would ask that we be given the appropriate time to sit again and to consider it. I just want to make it strong enough that it gets across to some people that we need to finish this off so that we can deal with this important issue. I guess that's all I'm trying to understand. When the report is put forward in the House, does the wording, "That as phase 2 of the current review, the committee immediately undertake public consultations with organizations" allow us --
The Chair: Could I have the clerk here, Lisa Freedman, answer, please.
Clerk of the Committee (Ms Lisa Freedman): We're mandated by the act to do a comprehensive review, and I think we actually wouldn't require permission from the House. This committee, before the end of 1994, has to undertake a comprehensive review of the act, and phase 2 would just be a continuation of what we're doing. It would be within the powers of the committee to decide how it wanted to organize phase 2.
Mr Hope: So the power's there to get back here.
Mr Elston: I'd be a bit surprised, though. If somebody wanted to stop us from doing it, they could probably say, "The act is reviewed and you've made some suggestions." I just believe that the people will want you to go ahead and do it. The minister has spoken. I think there's a lot of interest.
In fact, when I look at the recommendation, I think there are a number of people who are persuaded that there has been too long a delay in coming forward with the act on hospitals, for instance. While there may be some big problems, I think we could state much more strongly in the recommendation that we view the implementation of the Freedom of Information and Protection of Privacy Act covering hospitals and other organizations to be an essential part of freedom of information and protection of privacy in Ontario and that we wish to undertake phase 2, which would be to understand the areas of difficulty which must be overcome before the bill is introduced.
I would be much more direct on it, because even when this bill was drafted we had promises that material would be forthcoming. Nothing has happened. I think the organizations should be put on a very specific alert that we are looking not so much to whether they should be in but to find out what the problems are when they are included. I think that's a significantly different exercise than this one is, because it still sounds like we haven't really had enough information to figure out whether it should happen or not.
I gathered from when the presentations were made and from the questions that came from most of the members during the hearings that we were at the stage where we thought it was the right thing to do but we wanted to find out where the problems were. I think that, as a recommendation, might better express it. If we find during phase 2 that the problems are insurmountable in some places, then we can make a change of opinion, but I thought we were much more strongly inclined to move to implement freedom of information in those areas.
Mr Wessenger: Might I suggest a change in language here, to say, "The purpose of such consultation is to assess the appropriate method of extending coverage of the act"? That would certainly be very strong.
The Chair: Does everybody agree? I think there's another issue here too. Depending on what this committee receives from the House to address, it could change the timetable, depending on the sitting from now until the end of December. Taking a look now, it's most likely we'll get through this by the end of June. Depending on when we come back and what has been given to this committee to deal with, that could change what we're doing. Mr Hope is saying, "When do we get on with it?" I think that would be an element of not going ahead right away.
Mr Hope: I think Murray hit it right on the nose, to serve notice. That's exactly what we want to do, serve notice to those other bodies out there that: "Look, you're not going to be isolated any more and you're going to be a part of it. How do you become a part of it and how do we put good legislation in place?" I guess that's what I'm trying to get at. We have to serve people notice: "You are going to be a part of it, and we're going to be coming to listen to you. Here's your opportunity, so get ready."
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The Chair: The other thing is the House leaders deciding whether this committee's going to sit, late in the fall or whatever the case may be, to address this particular problem.
Mr Elston: I have some persuasive capacity with those questions.
The Chair: I know, Murray. Any other comments?
Mr Hope: There was one about the method, and I have no problem with changing the words.
Ms Swift: I suggest that perhaps what I'll do is go back and redraft the paragraphs from the bottom of pages 10 and 11 to indicate that the committee feels these organizations ought to be covered, but it's just a question of looking at which implementation problems to overcome to extend coverage.
Mr Elston: It was my feeling that we were moving in that direction. The minister certainly spoke in those terms, and I think it would be the right way to express what I thought were the feelings during the hearings.
Mr Wiseman: I have a comment about timing on this. I don't think we should concern ourselves so much about the timing in terms of whether we're going to come back to this as we should about sending in a report that we think should go there, with the recommendations we think should be followed up on. Leave the timing to others to worry about.
The Chair: But the committee would have to talk to the three House leaders about this committee sitting at that point. I don't think there's any problem with agreement, but that's what we have to take a look at down the road.
Mr Hope: Maybe we can sit in the winter and go to Jamaica or something to do proper hearings.
Mr Wessenger: Of course the members would have to pay that themselves.
Mr Elston: The Legislative Assembly is still not subject to freedom of information? Is that correct?
The Chair: Anything else there, Susan?
Ms Swift: No. Moving on to the bottom part of page 11, dealing now with the first part of the act, the freedom of information, one of the recommendations was that the purposes of the act, as set out in section 1, did not include public accountability as one of its purposes, and it was thought it ought to be included.
Essentially, the committee instruction was, "The committee believes that integrity in government is enhanced through public accountability and that freedom of information legislation is one of the best ways to ensure that governments are open to the electorate they serve," the recommendation being that the section be amended to include a provision as follows: "to make public bodies more accountable to the public."
Mr Elston: I'm really not opposed to it. The whole essence of all the activity seems to be that very item. It almost is redundant, in a way, to do it, but if it makes it seem more complete, I'm not opposed to it. The one thing we generally like to do as legislators is to try and keep our legislation as brief as we possibly can, but it would be pretty hard for somebody to argue that the public shouldn't have any right to hold you accountable and, as a result, that's why you want the act to apply. It just seems redundant, that's all.
Ms Swift: Moving on to the next section, section 1, and inconsistent wording that appears in that section: This is one of the technical amendments that was recommended by the commissioner, that section 1 refers to a right of access to records "held by or under the control of" institutions. The commissioner noted that throughout the act the phrase that is used generally is that there's right of access to records "in the custody or under the control of" institutions, and he recommended that for completeness or tidiness' sake it ought to have the same wording in the section, so the recommendation just reflects that.
Mr Elston: We did have a discussion about a significant problem with that. There was a case where a solicitor held material which related to a municipal matter, as I understand, and the request was for that information to be divulged. I understood that that material was decided by the commissioner to be available anyway.
Ms Swift: I don't remember that discussion, Mr Elston, but I can look back.
Mr Elston: We had two discussions: one about the solicitor trying to indicate that under solicitor-client he could withhold; and the second one was about councillors, with their own notes on the side of items.
Ms Swift: Yes, that's an exception.
Mr Elston: "Under the control of": How does that become more precise, or what problems are associated with that phrase as opposed to "held by"? "Held by" would mean if I had it in the file in my drawer type of thing, but with "under the control of," I guess it could be in any place in the province as long as it was recallable by the institution. Does that mean that if I have a physician who is the physician for the municipality, for instance -- maybe you have a person who looks after the needs of employees -- the files that physician has in relation to the employees of the corporation might be "under the control of"?
Ms Swift: Actually, that is an issue we get into more with the next heading. The section with inconsistent wording -- it's just to make sure all the sections are using the same wording. The question of interpretation really is one we get to in the next section, but we can discuss it there.
Mr Elston: I was just asking the question because there's no point recommending we change all the wording to be the same if there's going to be a problem with the phrase, that's all. Let's make it the same then, and let's wait to have a discussion on the next one.
Ms Swift: And deal with the interpretation.
Mr Wiseman: In terms of the annotations on the sides of documents, I just wonder where you draw the line between the philosophical musings and the evolution of an idea that leads to the creation of a decision as opposed to sitting down over dinner and saying you had dinner with this person so you're going to vote in this way because you thought they were really a nice guy or woman or whatever.
I wonder if the philosophical musings of somebody should be accessed or whether those thought processes are personal and should remain separate, whether there shouldn't be some distinction made between those two ways of coming to a vote.
If you decided you're going to vote this way because the guy slipped you 500 bucks and you put that in the column beside the vote --
Mr Elston: Well, that should be divulged.
Mr Wiseman: That should be divulged. But if it's an attempt to do the pros and cons of an argument and sort them out, I'm not sure I would want to have all those thought processes revealed, because some of those would be of a rather personal nature.
Ms Swift: That's the nature of the discussion in the next heading. Remember that the town of Mariposa came forward and was concerned that it had been asked under the act to produce the personal notes of its councillors. They had made notes for memory aids for discussion purposes for subsequent council meetings.
The Chair: To interrupt for a minute, also they came forward about the point of the meeting in the restaurant where notes were put on napkins, a meeting that wasn't called but just, "Let's get together for a coffee and discuss this," and whether those notes, because it wasn't a called meeting -- I don't know whether it's covered in here.
Ms Swift: That specific instance isn't covered but the upshot of the discussion here is that the various orders that have come down from the IPC really focus on the issue of whether these notes are integrated into the institution's files. If they're personal notes, they're kept separate. They're not going to be subject to the act because they're not "in the custody or under the control of" the institution.
There were two cases the committee heard about. The first one dealt with a case in which an employee had made notes during an interview process, and one of the candidates who did not succeed in getting the job wanted those notes. The employee objected to producing those because she said she had produced those for her own personal use, had kept them on a computer at home and had not integrated them into the institution.
It was found subsequently by the IPC that those notes were used to prepare a memorandum that went to her superior, and the IPC or the commissioner felt that the records, those personal notes as she called them, ought to be produced because they were integrated into the files of the institution.
Perhaps the case that's even clearer than that is another one dealing with political party records that were held by an employee in the Office of the Premier. Those notes were part of, at that time, the Liberal Party, and he kept them in his office but they were integrated into the files of the Office of the Premier. Despite the fact that they were notes that were unrelated to the functions of the Premier's office, they were held to be producible because they were integrated.
The key here is the degree of integration, or the integration into the files. The act doesn't look at the issue of what kind of notes they are, whether they are personal notes or unrelated to the functions. It really looks at the degree of integration.
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The committee, you'll remember, also felt there might be a double standard created by virtue of the fact that the personal notes of members of the provincial Legislature would not be covered, would not be producible under any act because there is no freedom of information act that applies to the members of the Legislative Assembly, except for parliamentary assistants or ministers, whose notes relating to the ministries in which they are involved might be producible. It was felt that there was some double standard because local government institutions and the councillors might have their personal notes producible because they are covered by the Municipal Freedom of Information and Protection of Privacy Act.
What I understood from the committee was that the committee wanted to deal with that inequity, as it saw it. There are two options for the committee's consideration on this.
The first option is that the act be amended to specifically exempt from disclosure the personal notes and files of elected officials, that is, sort of a blanket, across-the-board exemption. If they're personal notes, the act has to look at that and consider that issue, rather than the degree of integration.
The second option is that the act be amended to specifically exempt from disclosure the personal notes and files where those notes are used for their personal use and are not integrated into the institution's files. In effect, that second option incorporates the test that is being used currently. It just makes it perhaps a little bit clearer.
The Vice-Chair (Mr Paul Wessenger): Could I just ask for a point of clarification? "Integration" means not whether they're in any way related to the institution's files but whether they actually are present, is that correct?
Ms Swift: That was certainly the case with the political party records. It was a greyer area when they were dealing with the interview situation, because the commissioner said two things: (1) they were integrated, and (2) they dealt with responsibilities and functions that the employee was carrying out for the organization. It's not as clear, perhaps, as we'd like it.
The Vice-Chair: What is the rationale for having the location of the personal files be relevant? Shouldn't it be whether they're related to the activities in the institution?
Ms Swift: Because the act says "in the custody or under the control of," that's the test. What you have to look at, then, is whether or not the institution has custody or control, not so much what type of records they are. That's just the design of the act. The whole design of the act is to look at, are these records the institution holds, if you will, as Mr Elston says: whether or not they have them in their custody or control.
The Vice-Chair: Let's just take political records that appear to be unrelated. You could have personal things, like a Christmas card list or something, sitting in your -- to my thought, I don't see the actual physical location being relevant, because you're trying to give a person information about how the institution operates, and if it's something that's unrelated to the operation of an institution -- I don't know. It should be some sort of functional connection, I think. Political party files, maybe you could argue, is a functional connection; maybe you can't. But I think there should be a functional test there. That's my own view on that.
Mr Hope: Okay, option B. I hate this, when you get lawyers in committees to deal with something like this.
Mr Sutherland: Lawyers are very helpful.
The Vice-Chair: Okay, we have one member who prefers option B.
Mr Wiseman: I prefer option B.
Mr Elston: B is fine. What it means is that it'll alert anybody who doesn't want to release their files. What's going to happen here, necessarily I think, is that under an abundance of caution there will be separate pads of blank paper that will mean no notes will be made anyplace. That's physically what will occur, practically what will occur. From my standpoint, I don't think it really matters. The issue is out there. People know that they may be asked to make notes available, so they'll take their notes and they'll crumple them up or whatever.
Mr Wiseman: Or they'll just come back and say, "I did not take notes."
Mr Elston: I think a lot of people probably will destroy them. The problem that causes for us is the fact that the history that's written at the time will be totally unavailable for later review. I mean, a lot of personal diarized material has been used for good historical research later on. You get to find out what people went through. What this type of amendment will do and what our act is doing is defeating anybody's inclination to keep a running record. I regret that, but this may be the only way we can alert people to the fact that if they want to make a note about, I don't know, the purchase of bread and butter from corner stores when they're reviewing a bylaw about zoning for corner stores, that it may be available, then that's going to be what we'll have to give up as far as society goes.
The Vice-Chair: I think the basic effect is that you're going to get people stripping their files before they're traced.
Mr Elston: That's right, and it won't be available for later review. I think that's a sadness that is associated with this, but how do you get to know about it? If we should make the change, 20 years later -- or is it 15 now?
Ms Swift: We're recommending 15.
Mr Elston: Fifteen years after the fact there won't be very much stuff to be made available that we don't already know about, and I think that in some ways is sad.
Mr Hope: The problem is that if you have nothing to hide, you'd have no problem putting notes. If you have something to hide then --
The Vice-Chair: No, it's not that.
Mr Hope: I mean it's time people --
Mr Wiseman: If in our view you're misconstruing from the media on points, I would say we know they would never misconstrue, but certainly it could be a problem in the --
Mr Sutherland: How you interpret things 15 years later may be different from how you meant them at the time.
Mr Drummond White (Durham Centre): Can we move on to the next point?
The Vice-Chair: I guess we can, since there seems to be --
Ms Swift: Consensus?
The Vice-Chair: Consensus with regret, shall we say?
Mr Wiseman: I think option B does leave enough latitude to allow people to keep notes of a personal nature, as long as they're not integrated.
The Vice-Chair: They could keep the files in their desks instead of putting them in the filing cabinet, and then they're not integrated. That's the simple way: You just keep your separate files for your --
Mr Elston: No, no, that's not quite right. The decision is that the integration can occur by a second document, and the integration is with respect to the use of the notes as opposed to where they're kept or how they're kept. It's the ultimate use in the case of the woman who made her report.
The Vice-Chair: But that's almost a functional test, though, because they're functionally related.
Mr White: Why are two lawyers debating upon a judgement that's already been arrived at?
Mr Wiseman: Because they're basically frustrated judges.
Ms Swift: Moving on to the next section then, this is the start of dealing with the whole issue of exemptions. The first exemption under the act is the draft bylaws under section 6. Section 6 says:
"A head may refuse to disclose a record,
"(a) that contains a draft of a bylaw or a draft of a private bill; or
"(b) that reveals the substance of deliberations of a meeting of a council, board or commission or other body or a committee of one of them if a statute authorizes holding that meeting in the absence of the public."
The concern of one witness was that the meaning of "substance of deliberations" is unclear and that the various orders of the IPC have not clarified the meaning. There are two possible interpretations that have been suggested. The first is that "substance of deliberations" might mean the content of the actual discussions. The second is that it refers to records that form the basis of discussions. It was suggested to the committee that the second interpretation should be adopted because it would be more in keeping with the statute which authorizes a closed meeting in the first place.
There are several orders of the IPC that have dealt with the issue, which I've listed on page 16. In all of them, it's suggested that the interpretation is the first one; that is, that it's the substance of the actual discussions themselves rather than the records which form the basis of discussions. On a review of those orders, it doesn't seem clear, to me at least, that there is an ambiguity and that the Information and Privacy Commissioner has interpreted "substance of deliberations" to mean the substance of the actual discussions themselves.
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In any event, the committee wanted to discuss that issue. They wanted more information. Again there are two options for the committee's consideration. The first is, "The committee believes that the term...is vague and ought to be clarified," and it should be defined as including the documents and records that form the basis of discussions. The second option is, "The committee is satisfied that the meaning of the term...is adequately clarified by...the commissioner and believes it is unnecessary to make any recommendation on this issue."
Mr Hope: I would suggest option A.
The Vice-Chair: Any others?
Mr Elston: This section does not override the issue of personnel matters because of the way it's written here. I understand personnel issues can go into closed meetings. In fact, after the announcement today on the Sewell material and the related changes about all meetings being open other than personnel and some other things, this section should of course say, "except as provided by section 14," subsection whatever, that deals with personnel matters, because this is pretty blanket otherwise.
Ms Swift: Yes. Do we amend this?
Mr Hope: I thought we were going to open up personnel issues.
Mr Elston: No, you're not. Personnel matters are not going to be opened up under council amendments.
The Vice-Chair: Personnel matters cannot, or property or acquisition matters. There are all sorts. We have to ensure that the existing confidential matters remain confidential.
Ms Swift: Does the committee want to change that recommendation slightly then?
Mr Elston: It seems to me that you don't want to have the conflict between the two sections. You want to make sure that it's clear, that if it's a personnel matter or otherwise, it's going to be protected.
Ms Swift: It's exempt.
Mr Hope: My understanding is, it starts off and says "Draft bylaws" etc.
Ms Swift: Yes. That's section 6, the first exemption from disclosure.
Mr Hope: I'm trying to address what Mr Elston was bringing forward dealing with the issue of personnel.
Mr Elston: You can have bylaws that do deal with personnel matters.
Mr Hope: Oh, do they?
Mr Elston: Can; don't have to. In fact you can pass bylaws about cost of acquisition of properties and other things as well. The substance of a bylaw could be any number of items.
The Vice-Chair: I think the suggestion is that we take a look at the existing exemptions to make sure that this option A doesn't override any of them or all of them. I think that's agreed, is it?
Mr Elston: Well, we could leave the commissioner with some more work to do.
Ms Swift: That would be a lot of work. All right, moving on to the next one; that is, the time limit for exemption. Under clause 6(2)(c), the exemption for draft bylaws and meetings held in the absence of the public applies only for 20 years from the date that the record was created.
In its 1991 review, the committee felt that this period of time was needlessly long, that with the passage of time the sensitivity of information of course decreases, and recommended that the exemption period be changed from 20 years to 15 years.
Mr Elston: Can I understand why a draft bylaw shouldn't be made available sooner than that? When we first went through this, 20 years was the standard time for all this stuff basically, so it was put in. What is the nature of a draft bylaw that requires it to be -- because the final version of the bylaw comes out. What is it with the draft bylaw?
Ms Swift: To be honest, I don't know. I don't know what it is. I can find out for you.
Mr Elston: When we went through this, I think at one point I was going to ask the question and I got off on to something else. If you've got the final version of the bylaw, which to be effective has to be public, what is it in the draft that might cause concerns that you couldn't release for 20 years, now about to be 15? And why would you be interested if you've got the final version?
Ms Swift: There's a recommendation and a discussion later on in the report about other draft documents of a report or something, and they recommended --
Mr Elston: I can understand a draft document or a draft report, but a draft bylaw? When you're really looking at the evolution, I guess, presumably each reading of --
Ms Swift: I don't know the rationale.
Mr Elston: Would that allow people to do all the discussion around a bylaw in draft form, take that off the public record for 15 years and then just bring forward the final version? I guess it would, by just treating everything as draft, and then you'd introduce the final version of your bylaw in the final form for first reading. I was just trying to figure it out in my own mind. I'm still not certain.
The Vice-Chair: Yes, I don't know why the concern with the draft bylaw, unless it dealt with a sensitive measure to begin with.
Ms Swift: Shall I go back and try to dig up what the rationale might be?
The Vice-Chair: Yes, why.
Mr Elston: Unless some of the other committee members understand this better than I do. Going from 20 years to 15 years sounds great, but why are we doing it at all?
The Vice-Chair: For sensitive personnel matters, probably.
Ms Swift: For substance of deliberations of secret meetings.
Mr Elston: That type of a problem I can understand, but a draft bylaw --
The Vice-Chair: I don't understand why even a draft bylaw should be confidential, period.
Mr Elston: No. A report that is being made internally sometimes does change as you get material, as this report will change.
Ms Swift: Yes.
Mr Elston: We'll get more specific, or we'll change and the options are -- or the understanding wasn't clearly put forward. I can understand why a document, something like this, as a report might be changed, but a draft bylaw -- it seems to me if you're looking at a bylaw it can be changed or amended in full council, in any event.
The Vice-Chair: It's just like, I suppose, thinking of the Legislature, draft legislation.
Mr Elston: I don't know whether or not Mr White has any vision or views on that. Do you know why we did that at all?
Mr Frank White: I think it goes back to the --
The Vice-Chair: Mr White, would you come to the desk, please.
Mr Frank White: From what I remember, it was the view that councils should be able to deliberate some things in private, have their deliberations, and once they go through a number of drafts and they produce either the final draft or the proposed legislation or bylaw, then that would become a matter of public record.
It goes back to this: What do you do in private in terms of a council? What can they discuss in private? The Municipal Act at that time -- I'm not sure if it would have allowed them to do this. It really came back to what it is they're allowed to discuss in private and what records that relate to that discussion would remain confidential.
Mr White: I'm wondering about the issue of the time limit because I understand from our earlier discussion that in other jurisdictions the time limit was a 10-year exemption, and we're moving from 20 to 15. Why could it not be reduced further to a 10-year time period?
Mr Frank White: That's something the committee could consider. I think in BC they've reduced it to 10 years in some of the exemptions; some of what would be discretionary exemptions, like this one.
Mr Elston: If BC can do it in 10, we can do it in seven.
Interjections.
Mr Sutherland: I'll name it in three.
Mr Wiseman: Maybe we could do it and just open it up. I don't know why a draft bylaw should be --
Mr White: The issue of what's covered is another story, but I was thinking in terms of the time limit. I'm wondering why we have 15 as opposed to 10, which other jurisdictions have used, and could we not adjust that 15 to 10. If we're going to make a change, why don't we make a more significant one?
Mr Elston: It's probably compatible with the other study that was done.
Mr Wiseman: Yes, that's what it does do, make it compatible with the --
Ms Swift: The report, yes.
The Vice-Chair: The only thing, some caution if you're dealing with a personnel matter that deals with a very sensitive issue.
Mr Frank White: The time limit usually extends only to the discretionary exemptions, which would not include personal information or third-party trade secrets -- advice, recommendations, economic harm; those exemptions.
Mr White: Ten years would not cause any prejudicial information to be revealed early.
Mr Frank White: I can't speak on behalf of municipalities. I know, for instance, the Ontario government and its records management. Almost 70% of records, I believe, are destroyed within seven years after their creation. A lot of it is going because there's no value. If there is a value, then they'd be transferred to the archives. So 15 and 20 is a particularly significant --
Mr Wiseman: Who defines the values? If the value is being defined before the freedom of information will allow it to become public, then it could be that some things you determine as being valuable are not the same as what I would determine as valuable.
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Mr Frank White: For a municipality, I believe they have to pass a bylaw, a records retention bylaw, that would determine how long records would be maintained, and that would be a matter of public record. When they produce that, they'd review the historical needs, the administrative needs, the research needs of keeping those documents. So it has to go through a formal process before you destroy records.
Mr Elston: If we put in 15 years, just to be compatible with the previous report, is this the earliest that it could be done, or could a council decide they would let it out earlier?
Mr Frank White: These are discretionary exemptions, so that means if there was a freedom of information request, even though the information was exempt, the person making the decision could still release the record.
Mr Elston: But suppose I was on the contrary side of the proponent's position and, under some kind of a discretionary decision, the municipality let out this information before the 15-year period. Can I attack them as not upholding the --
Mr Frank White: What this is saying is that you can't claim this exemption when the records are 21 years old. If you have these, you're going to have to give them out.
Mr Elston: No, I'm talking about someone who may decide, for instance -- under our new amendment, 15 years -- at year 14 that they would like to let them out. Does this preclude them from doing that?
Mr Frank White: No.
Mr Elston: If the discretion has been applied to prevent them from going out at 10, but now at year 14 they say, "Yes, I think we'll let them out now," could they be held accountable for that?
Mr Frank White: No, they could still decide, in response to a freedom of information request, to allow this stuff out after five years as part of the discretion, if they wanted to. In the municipal sphere, the council or committee or person selected by council is the head. So it's kept at that level in terms of the final decision-maker at the political level for municipal council.
The Vice-Chair: Okay. Any other further comments?
Mr Hope: I was of the opinion, most bylaws, when you're dealing with land or anything else, it usually takes at least 10 years to develop a piece of land, and putting that information out --
Interjection.
Mr Hope: Yes. So there's a little bit of a protection clause maybe for decision-making before actually something could happen.
I have no problem. Probably why they had 15 years back in 1991 was believing that maybe most people in political life have a longer term than three years or a five-year term.
Mr Elston: Some certainly do.
Mr Hope: Yes. To change it, if there's no bound reason to -- we're dealing with municipal freedom of information. I would say the most appropriate would be after a four-year maximum term, which would be 12 years. That's the only sensitive area. I find that it takes such a long time to reveal information, such as dealing with a development issue in the municipality.
The Vice-Chair: Any other comments? Do we basically agree to this 15 to be consistent, then? Mr White, maybe you should stay, just in case there are other questions when they come. They'd have to move back and forth.
Mr Elston: This is just a report, and since there hasn't been a lot of change made to the other legislation, perhaps there'll be some decision by the drafting authority that it will take a look at the time period. I think we should be consistent at this stage and leave it at that.
The Vice-Chair: Yes, I think so too.
Ms Swift: Okay?
The Vice-Chair: Okay.
Ms Swift: Moving on, next is the exemption dealing with the advice or recommendations of employees or officers of the institution to the institution itself. The exemption basically sets out that there are certain types of information that are exceptions to that exemption. The list is quite extensive under subsection 7(2).
It includes factual material, but the suggestion has been that, although the list includes factual material and specifies other types which cannot be withheld, no reference is made in there to public opinions or economic forecasts. It was thought that such material ought to be included under the exception and that certainly this would be in keeping with the Williams commission report, which suggested that factual material or analysis of factual material that goes beyond mere reportage, such as documents relating to public opinion polls and economic forecasts, should not be included in the exemption.
Mr Hope: No problem.
Ms Swift: I hear that there's no problem. Shall I forgo the discussion then? The recommendation on the bottom of page 19 says essentially that subsection 7(2) "should be amended to include a specific reference to public opinion polls and economic forecasts" and, secondly, that the 20-year exemption, which is applicable to this exemption, should also be reduced to 15 years.
The Vice-Chair: Agreed.
Ms Swift: The next section deals with the law enforcement exemption.
Mr Elston: Does the public opinion poll encompass surveys? What are we describing as public opinion polls, the issue of a survey as opposed to a poll? Polling, it seems to me, is a much more formal part of that. There could be informal surveys, or there could be a formal survey as opposed to a poll taken, for instance. What would we do with that? That will invariably be the next issue.
Ms Swift: The section currently exempts from the exemption statistical surveys. That suggests that other kinds of surveys might not be included. To be honest, I don't know the answer to how "public opinion poll" has been interpreted.
Mr Elston: Maybe we should ask the question whether or not we should have a definition of "public opinion poll" for the purposes of this.
Ms Swift: Okay.
Mr Hope: If a survey is asking for an opinion, then it becomes an opinion poll, right?
The Vice-Chair: An opinion poll is one that's done scientifically, I would think.
Mr Wiseman: What about focus groups?
Ms Swift: I think the other jurisdictions that have included this in their exemption haven't defined it. Both British Columbia and Nova Scotia specifically exclude them, but I don't think they define them. I can look into that and report back to the committee.
The next one deals with law enforcement, and the concern raised was by law enforcement agencies that having to respond to a request within 30 days, as required under section 19 of the act, may interfere with an ongoing investigation. That is, the very processing of the request may interfere with it; that by having to go into the field and take documents out that are being actively used by investigators and to have those investigators review the documents to determine whether or not they fall within any of the exemptions may be intrusive and disruptive to an investigation. The committee heard that in the past what has been done is that there have been informal agreements or persuasion to have people who are requesting to put off the request until such time as the investigation has been completed.
The committee should know that section 20 of the act currently permits the extension of that 30-day period for a further period that is reasonable in the circumstances if the request is for a large number of records or necessitates a search through a large number of records and meeting the time limit would unreasonably interfere with the operations of the institution.
There has been one order that deals vaguely with this, I guess, and that order found that section 20 would encompass the situation where a request has been made for a large volume of records which must be reviewed carefully by persons who are otherwise engaged in other duties of the operations. But the police organizations that came forward felt that this wasn't sufficiently clear, in circumstances where there might be a disruption, to allow them not to have to process the record. The other evidence that the committee heard was that this type of interference, or the possibility of it, was very limited and didn't happen very often.
So there are two recommendations or two options for the committee to consider.
Mr Elston: But as I understand it, it was also part of the evidence that there was in some cases a sense that people who wanted to frustrate the investigation, if it was going to be getting close to them, were also in a position to have people using it. Wasn't it those sort of exceptional circumstances? In fact, investigations -- let's put it in this context -- are exceptional circumstances many times, when it comes right down to it. It doesn't happen that often, because that's the nature of their business. But when there's a public interest -- for instance, I can think of the case in Ron's area, the Kristen French and Mahaffy circumstances, where there was a huge amount of inquiry into the status of those investigations. Although nobody talked to us about that, that would be a circumstance where I could imagine people would have to take time after time to respond.
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I was going to ask, in relation to the first option, whether the police could apply before, for instance, a request was made or whether they would have to wait for the request and then take time to make an application to the commissioner, or whether they would respond within a day or so and say, "We're too busy; give us an extension," and have the appeal occur.
It seems to me that if we do the first one, we would have to prescribe some manner in which the application could be made to the commissioner under the circumstances. I'm actually taken with the first one, because time is of the essence in extreme circumstances where an investigation has to be carried on and any kind of request could lead to a frustration. It seems to me that we have to be more precise if we are going to allow a commissioner to exempt a law enforcement agency by setting out some circumstances or some suggestions as to how that might be dealt with.
The Chair: Mr Elston, I was in the OPP and I know how investigations work. Officers have certain areas that they investigate. There were 35 police officers involved in that investigation. They all bring the pieces. There's actually one person who knows where all the pieces fit. The reports that come in -- to get one report tells you nothing but yet could really damage the investigation. It's not a simple one, especially one of that size.
Mr Wiseman has a question.
Mr Wiseman: It seems to me that on this one I would ask, who would want to know this information in the process of an ongoing investigation? It seems to me that the general public and the media would want to know. If that's the case, it may well be that disclosure of one piece of information at some point could be a clue to the person they're looking for, but they don't know who they're looking for at this point, and it could really hamper the case. Maybe we should get a comment or two from staff and find out what they think about these particular options and whether they've seen any kind of examples of what we're imagining in our minds here.
Mr Frank White: I think both Priscilla and I could answer this one. First of all, the police forces are talking about delaying the investigation as opposed to disclosing any information that would interfere with the investigation. I don't think really that's what they were complaining about; it's just something interfering with the timing that's taking place. If the committee does consider something under "frivolous and vexatious," maybe it could be fitted under that. It's really difficult to impute the motive. Typically, it would probably be somebody who's involved in the case who would be making the request.
Mr Elston: Or even the media.
Mr Frank White: It could be; it's possible.
Mr Elston: If the media wishes to be involved in it, this is an avenue to get into the --
Mr Frank White: But it's even more unlikely that they're going to get anything, because this is all personal information. It's not going to be likely disclosed to anyone other than perhaps some small portion to a person who's involved. It's the timing, I think, that's the problem, not what's being disclosed. I don't think the police were complaining about that at all.
Mr Elston: I guess the evidence, for instance, could be, "Have you found -- "
Mr Wiseman: A knife.
Mr Elston: Yes, a weapon. "Have you got any kind of a lead?" That may or may not alert people to how serious the investigation is with respect to getting closer to a suspect.
Ms Priscilla Platt: But they would have the right under this exemption to refuse to confirm or deny anything having to do with it, even the existence of the investigation.
Mr Elston: But they'd still have to answer the questions.
Ms Platt: Yes, and I think the issue is that the police feel, or at least this submission relates to the feeling, that the time it takes to actually answer the request and go through the records takes away from their time to do the investigation. We hear similar comments from litigators, for example, who say that in the midst of litigation the other side or someone will make an access request. Even though it would be subject to solicitor-client privilege, under the act they still have to go through all of the records and respond and so on. It's not dissimilar to that sort of issue, which is just the time it takes.
Mr Hope: Mr Wiseman started to touch on who would actually want this information. Reporters seem to be the key ones. I just went through that in my own riding. They want everything and they want it now, and it hinders the proper investigation.
Without the expertise of understanding fully the investigation route and knowing the steps involved in an investigation, and not wanting to become or pretend to be a police officer, I'm of the opinion of option B on this one. I'm just cautious about it. I wouldn't want to put any barriers up by making recommendations. As Mr Elston was putting forward, putting steps and procedures in would be better left to those who understand steps and procedures and actual investigations. I'm very concerned about putting barriers in place that might in good faith be to help but would hinder.
The Chair: There's nobody from Niagara sitting on the committee, but Mr Bradley would know quite well that people would phone his office also and my office and say, "I demand to know what's going on, who the suspects are, who this is and everything else." We'd say, "It's under investigation." We had no more knowledge than the police departments.
The thing is that it wasn't the press that was demanding; it was the person on the street. People were very concerned whether the person who could possibly be involved lived in their neighbourhood. It became a real issue in Niagara. I've never seen an issue like that before, and I think Randy too, with the incident in his neighbourhood also, in Chatham. People who live in the community are demanding this, and it would hamper police investigation.
Mr Hope: But the public demanding and making sure that proper procedures -- I have all the faith in the world. You're absolutely right; I was getting calls from people demanding stuff. I firmly believe that our police officers in our community are well equipped. Anger and frustration in an emotional time brings out the worst of us sometimes. Wanting to know information, when the information might not all be there, we could take inappropriate action in our own communities and cause more harm than good.
That's why I'm really cautious. That's why I'm sitting here leaning to option B. I would say, in all good intent, I would like for the public to know, but when to know, how to know, what would interfere with the police, putting more barriers up in place of accessing information, I guess I'm just not equipped to do that. That's why I'm leaning to option B.
The Chair: Any other comments?
Mr Wessenger: I don't really know what to do about this one. We obviously don't want harassment occurring, but on the other hand --
Mr Hope: Let me explain something. With regard to the issue that happened in my riding, people knew what had happened within an hour; they knew who the perpetrator was. The repercussions of a community in anger and frustration sometimes lead us into doing things that we no longer do in a so-called normal society. That's why I just have a tendency of leaning to option B until I have a little bit more expertise around this whole issue.
Maybe you could incorporate it into the next phase and deal with this issue, but right now, hearing the only presentations we did, it's really vague. I probably have more knowledge on putting the hospitals and schools boards and others into this than to deal with this section, but if you want to incorporate it into phase 2, I would say let's do so.
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Mr Elston: I think it's obvious that option A is not going to be used, and B, for me, doesn't adequately deal with it. Perhaps what we could do is rework option B to a little more fully explain our concern about the potential for delay: "...but under the circumstances are not prepared to raise barriers, and as a result, we wish more time to pass before changes are recommended to the sections, on the understanding that the current act will allow appropriate exemptions to be requested."
The reason I wasn't taken by option B was that it's quite curt. It's kind of pieced together, bits and pieces together. Maybe if it was redrafted, because I really am concerned about it. I think Randy's right: You don't want to be sort of cavalier and go around raising more exemptions, because that's not really the world we want to have. But I would like to leave, anyway, a flag of concern that if this is seen to be violated more frequently in the future, it will be something that we could look at. Maybe we should leave it at that. But I would be happier to go with that option only if we raised a flag that said we were concerned by this and that if the experience became a more frequent disruption of investigations, we would reconsider.
Mr Hope: Yes, using it maybe for better analysis and even using it in the phase 2 portion of this process.
Mr Elston: Yes, we're going to be busy in phase 2. If we deal with those other organizations, that will be a full plate indeed, believe me.
Mr Hope: Just as an option, that's all.
Ms Swift: The next section deals with the same section; that is, section 8, law enforcement, subsection (2). Essentially, it says that clause 8(2)(a) provides that the head may refuse to disclose records prepared in the course of law enforcement inspections or investigations. Subsection 8(4) provides an exception to that exemption, It says, "Despite clause 2(a), a head shall disclose" -- that is, must disclose -- "a record that is a report prepared in the course of routine inspections." "Routine inspections" refers to such things as health and safety legislation, consumer protection regulations, environmental protection schemes.
The concern was that the wording of this section leaves open the possibility that routine inspection reports could be refused -- that is, they could be held back from disclosure on some other exemption -- and that ought not to take place. So the suggestion to the committee, and the committee adopted this, as I understand it, was that the wording be amended to read, "Despite any exemption, a head shall disclose a record that is a report prepared in the course of routine inspection."
Mr Elston: This was the Ottawa restaurant inspection list, wasn't it? Isn't that the issue we talked about there, when they were withheld for a while and then ultimately made available regularly and then not reported?
Ms Swift: Yes, that's right. You have a very good memory.
Mr Elston: I'm interested. It's an interesting problem because something such as an inspection which isolates a few problems in a kitchen ultimately being written up in the only daily or the only weekly newspaper, which is then out there for several weeks, could really be quite interesting.
Mr Sutherland: I would say most of them could be written up at some point in time. I imagine most restaurants or most food places at some point in time, depending upon when the inspector comes in, could be written up for some small violation.
The Chair: You mean, "Get the cats out of the kitchen"?
Mr Sutherland: Well, no. That's a little more significant.
Ms Swift: I take it this recommendation is one the committee supports?
Mr Hope: We support that recommendation, yes.
Mr Elston: I guess so, yes. I guess that's all right.
Ms Swift: The next section deals with relations with governments. Section 9 provides that, "A head shall refuse to disclose a record if the disclosure could reasonably be expected to reveal information the institution has received in confidence from" the government of Canada, another provincial or territorial government, or the government of a foreign country.
There's a suggestion that this section should be amended to include municipal governments as well. The contrary view is that this would leave open many municipal-level institutions to claim the same exemption and that that would result in greatly expanding the number of documents that could be withheld from the public.
There are two possibilities that I've prepared for the committee, essentially. One is that the committee heard very little evidence as to why the exemption should be extended to municipalities or about the harm that has been caused by this omission, so the committee is unable to make an assessment and makes no recommendation. Secondly, the committee wishes to hear more evidence before making the recommendation.
Mr Hope: I would go with option A.
Mr Wiseman: Do we want to recommend any potential courses of action that municipalities might take in terms of alleviating their expenses on the applications of freedom of information? One of the reasons the municipalities and the school boards were so adamant about shutting down freedom of information is the cost. Would we want to include here that in order to save money, it might be advisable for municipalities and school boards to determine right up front the information which is of a personal nature and should be exempt from freedom of information, and then to make readily available on electronic medium or on whatever medium comes in the future public access to decisions being made?
The problem is, we heard from school boards and some municipalities around this whole issue of "frivolous and vexatious," and they asked us to shut down the freedom of information so that people couldn't get information. I think I remember one saying that they wanted to know the expenses -- was it the number of rolls of toilet paper that the police use?
Ms Swift: Yes.
Mr Wiseman: Maybe some kind of direction saying that budgetary items such as that should be made readily accessible electronically. I mean, everything's done now on some form of electronic, accessible --
The Chair: The BBS, the bulletin board system.
Mr Wiseman: Then the more private and personal stuff can be deleted.
Ms Swift: Actually, I think those are two different issues that we're dealing with here. The issue you are referring to is dealt with later on in the report under routine disclosure, encouraging municipalities and other institutions to deal with disclosure. This one deals really with the exemption to access; that is, you cannot have access if it's an intergovernmental record. I think they're different issues.
Mr Wiseman: Okay.
Mr Elston: Yes. What I was trying to think here personally about was what the case would be between governments. If you were dealing with something like a joint board, it would be pretty easy to think that there are letters that go back and forth or negotiations or discussions around putting a contract of shared costs together, for instance, that might be sensitive-type information. I don't recall that being raised with us as an issue or as the issue that we should deliberate upon.
I presume even if there was a contract negotiation, you could talk about this being a matter of a sensitive business nature, yet I could appreciate that somebody might want to get hold of a letter that the town might have sent to another town when they were trying to deal with settling a contract on shared services, for instance.
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Frank, do you know whether that has ever been a big problem or not, people trying to access letters between one municipality and another?
Mr Frank White: I haven't heard, actually, that this has been a problem. I think what municipalities feel a little put off by is that they're not considered a government for purposes of this act. The only groups that can use this -- where it's supplied by another government in confidence -- would be a provincial or federal government or a government of a foreign country. I think they felt they should be called a government also for the purposes of the municipal freedom of information and protection of privacy act, but in fact they're not considered a government in terms of statutory interpretation.
I haven't heard of this being a problem, because in the situation you're mentioning there is another series of exemptions in section 11 to take care of negotiations carried on, the plans relating to management of personnel. A lot of that is embodied in the section 11 exemptions.
Mr Elston: What would this information be, then, that would need to be of a confidential nature if they could take another exemption area? What mischief might work if they are not covered, I guess is our question, isn't it?
Mr Frank White: Do you have any examples?
Ms Platt: Basically, the municipalities can transfer a request to another municipality that has the greater interest, whereas, where you're the one government, like the Ontario government, when we receive something from the feds we can't transfer it. So this exemption made sense, and similarly at the local level, to the extent that they get something from the federal government in confidence during the course of discussions on some basis, and similarly from the Ontario government, they have the exemption in section 9. But what they don't have is municipality to municipality or local board to local board. In those instances, one could argue that the same interest is being covered off by their ability to transfer the request to another institution, in which case the in-confidence part, the institution that created that record, then claims the exemptions under the act to the extent that they apply.
Mr Hope: Option A.
Mr Elston: Yes, I agree with option A under the circumstances, I think.
Ms Swift: The next section deals with the time limit for the exemption for relations with governments. Currently there is no time limit on this exemption.
Mr Hope: This is just being consistent with what we've done already, right, moving from 20 to 15, to improve consistency? I'll save you some speeches.
Ms Swift: Yes. Thank you.
Mr Hope: No problem with that one.
Mr Elston: I like her speeches.
Mr Hope: Wait till the more important issues come up.
Ms Swift: The next issue deals with third-party information exemption under section 10. That section provides under subsection (1) that the head shall refuse to disclose a record that reveals trade secrets etc, and subsection (2) says, however, where the third party to whom the information relates consents to the disclosure, the head may disclose it. In other words, even after the person to whom the information relates consents, the head has the discretion as to whether or not to disclose it.
The recommendation is that subsection 10(2) be amended to state that the head shall disclose the record if the person to whom the information relates consents to the disclosure.
Mr Hope: No problem.
Ms Swift: The next issue deals with section 12, the solicitor-client privilege exemption. The issue raised here was that -- there are several, but the first one deals with municipal police forces.
Section 12 provides that, "A head may refuse to disclose a record that is subject to solicitor-client privilege or that was prepared by or for counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation."
It has been held by the Information and Privacy Commissioner that the relationship between local police forces and the crown counsel is not one that falls within the common-law principle of solicitor-client privilege and, because the crown counsel is an employee of the provincial government, that crown counsel is not employed or retained by local police forces. So the second branch of that exemption similarly does not apply. The result is that municipal police forces, in preparing a crown brief for crown counsel, do not have the protection of this privilege.
It was noted that the Ontario Provincial Police, however, do have the benefit of that exemption because the wording in the provincial act is somewhat different and in fact uses the term specifically of "crown counsel."
The suggestion was that section 12 be amended to accord the same protection to municipal police forces as currently is available to the OPP. The only kicker in this, I guess, is that in its 1991 review the committee preferred the wording under the municipal act because it thought it was broader and would apply to other counsel who are employed by the ministry but are not crown counsel per se.
So the recommendation is that section 12 "be amended to extend the exemption to cover the confidential communications between municipal police forces and crown counsel; and that the committee's recommendation...in the 1991 report be amended to reflect this proposed change to section 12 of the municipal act," just so there's concurrence between this recommendation and the 1991 report.
Mr Hope: No problem.
Ms Swift: Another issue with respect to this exemption was records prepared by non-legal staff. It was suggested that the commissioner's interpretations of this provision have narrowed the scope of the provision so that records prepared by non-legal staff, even though prepared for or in contemplation of litigation, were not covered by the exemption.
In one of the commissioner's orders, the commissioner ruled that the exemption did apply to memoranda prepared by non-legal staff of an institution for counsel in contemplation of litigation. In that case, the institution's solicitor had requested that staff prepare notes about a matter that was going to proceed to grievance arbitration. So from what I was able to tell from a review of the orders, I'm not sure that suggestion is accurate -- that is, that it does not cover materials prepared by non-legal staff.
There are two options, then, for the committee's consideration. The first is that, "In the committee's view...it does not appear that the exemption has been interpreted so narrowly as to exclude any material or communications prepared by non-legal staff," and moreover, on the basis of the limited evidence presented on this issue, the committee makes no recommendation. Alternatively, "The committee believes that further information is required from the Information and Privacy Commissioner before a recommendation can be made."
Mr Elston: I think option A is fine.
Mr Hope: I believe that what we need is more information from the commissioner on the issue. You indicated there was some discrepancy.
Ms Swift: I don't know if there's a discrepancy. Certainly, the person who came before the committee to make the recommendation felt there was some ambiguity in the Information and Privacy Commissioner's orders. I looked at the orders, and as I said, the one order did certainly allow the exemption to material that was prepared by non-legal staff in contemplation of litigation. The section currently is broad enough, as I said, to include not only the solicitor-client relationship but it also specifically says, "Material that was prepared by or for counsel employed or retained by an institution," and the order seemed to suggest that certainly that contemplates non-legal staff.
Mr Hope: The only thing I was thinking about with option B is that by the time we complete this report we'd still be able to get some information back from the commissioner on this issue before we could make a recommendation. We could probably clear it up, and that way we'd be dealing with clearer information in our report.
Mr Elston: But I think for the purpose of the report we could go with option A. If we want to make an inquiry of the commissioner about our interpretation of that, ie, that the exemption may be interpreted more narrowly than we have anticipated through Susan's work, to clarify that, that's fine, but I think really what we're talking about is doing the first, and if you want to get the commissioner's review of that, I think that's fine.
Mr Hope: Option A is fine.
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Ms Swift: The next section deals with provisions relating to the exemption for danger to safety or health. That section provides that a head may refuse to disclose a record whose disclosure could reasonably be expected to seriously threaten the safety or health of an individual. As is clear from this section, there is no authority on the part of the head to refuse to confirm or deny whether there is such a record. It was felt that the analogous section -- that is, under section 8, dealing with law enforcement exemption -- allowed the head to confirm or deny the existence of those records. The concern was that having to acknowledge the existence of a record and cite the section 13 exemption could incite a response which itself might reasonably be expected to threaten or endanger the health or safety of a person.
The recommendation then was that section 13 be amended by adding a subsection to provide that authority -- that is, the authority to confirm or deny the existence of a record to which that exemption applies.
Mr Hope: I concur with the recommendation.
Ms Swift: The next section deals with the prickly problem of section 14 and personal privacy. The first paragraphs on page 29 and 30 deal simply with an introduction to the scheme of that section. The first recommendation that was made to the committee was with respect to the complexity of the drafting of that section. It has been criticized as being overly complex, awkwardly drafted and difficult to apply. In its 1991 review, the committee looked at the corresponding section in the provincial act and came to that same conclusion and recommended that it be redrafted so it not be so convoluted.
The Information and Privacy Commissioner, with respect to this issue, suggested that section 14 should be restructured in accordance with the model that is in use under the British Columbia Freedom of Information and Protection of Privacy Act. Essentially, section 14 would state simply that the head of the institution must refuse to disclose personal information to any person, except the person to whom the information relates, "if the disclosure would constitute an unjustified invasion of personal privacy."
The circumstances set out in clauses 14(1)(a) through (e) would be moved to subsection 14(4), which deals with situations or circumstances where the disclosure does not constitute an unjustified invasion of personal privacy.
The Chair: Mr Hope.
Mr Hope: I was just giving Murray a chance. I concur with the recommendation.
Ms Swift: The next issue was the categories of presumed invasion of personal privacy. The scheme of section 14 is that the head shall refuse to disclose personal information in certain circumstances -- that is, clauses (a) through (f). Subsection (2) deals with the criteria for determination of whether disclosure constitutes an invasion of personal privacy. Subsection (3) sets out disclosures of certain types of information, which is presumed to constitute an unjustified invasion. Subsection (4) are exemptions to that provision.
The problem that was brought forward to the committee was that there are essentially too many categories of presumed invasion of personal privacy under subsection 14(3). A key event in the interpretation of this section was a recent judicial review order in which -- I should backtrack, actually. Until this judicial review order was made, the Information and Privacy Commissioner had interpreted subsection 14(3) in conjunction with subsection 14(2). That is, the presumed invasion of personal privacy could be balanced off against the factors in 14(2), so the presumption could be rebutted by the factors in 14(2). A judicial review decision ruled that this was a misinterpretation of the act. In fact, if you had a presumption, it could only be rebutted by the types of exemptions under 14(4) -- that is, only the two categories: The disclosure "discloses the classification, salary range and benefits, or employment responsibilities of an individual who is...an officer or employee of an institution; or discloses financial or other details of a contract for personal services between an individual and an institution."
The suggestion was that the inability now, because of this order, to balance the criteria in subsection (3) with those in subsection (2) has injected rigidity into the act and undermined the balancing of the interests that is the foundation of the legislation. It also fixes the categories of "an unjustified invasion of personal privacy" under subsection (3). The commissioner suggests that section 14 be amended to reduce those categories and to permit individual cases to be determined on a balancing of the criteria in 14(2) to rebut the presumptions under 14(3).
I'm sure I've confused you all.
Mr Hope: I would say option B, but I can just imagine lawyers who are good at drawing up legislation trying to put this one together.
Mr Elston: I'm really concerned any time we change the initial issues around protection of privacy. The wording is right. This will get us off the hook; we're recommending balance. But in making the change it becomes quite another problem, it seems to me, and I guess we'll have to recommend to the people who try and draft this that they actually see the circumstances under which there was a mischief permitted by the rigidity of the act, as it were.
I lean always to trying to make sure that personal privacy is protected. I think we have subsection 14(4), which says the public interest override is to be used from time to time. I'm just very cautious about moving away from that, and I don't know how rigid it is. How many problems have we really had? I don't feel that I've had enough information on that. We have the one issue which is delineated when a problem occurs, but the public interest override is still in the act and can be accessed if you have to use it; and in a previous section which we just talked about, people said, "Well, it hasn't been so narrowly construed as to cause a problem, so let's not change it." Before that, even, there was another section, I think the investigations section that we dealt with, where we said, "Things haven't been so badly used there that we need to change it either." So my question is, why in this circumstance do we have to make the change?
Mr Hope: I know where we're trying to go with this. Yes, it does get us off the hook in saying, yes, let's make it all of it, and that's why I made the comment that whoever the lawyer is who has to draw this up, it's going to be a hairy situation. I know the Freedom of Information and Privacy Commissioner brought the issue forward to try to put some balance into it. To ignore that I think would be wrong, but I also believe -- taking in your considerations, Murray -- that we must make sure that whoever is drawing this thing up, just don't throw it at them and say, "Here, see you later," and walk away smiling. I believe it's got to be one that gives an understanding, and that's why I would say, because at the same time it adopts the same recommendation as option A but adds the other section, which I believe is appropriate.
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The Acting Chair (Mr Kimble Sutherland): Any further comments?
Ms Swift: There is one other situation that perhaps the committee should be aware of when considering this, and it's dealt with later in the report, at page 103; that is, exercising the rights of a deceased person. I'll see if I can not confuse you on this.
Essentially, what this provides is that under section 54, any right or power conferred on an individual by this act may be exercised, if the individual is deceased, by the individual's personal representative if exercise of the right or power relates to the administration of the individual's estate.
The problem with the interpretation of that section has been, or it is felt it has been, that it has been interpreted very restrictively that "personal representative" means the executor or administrator who has been appointed by the court, and also that the exercise of the power relates to the administration of the individual's estate.
The concern is that this limits the availability of information for a deceased person's family. If they want to get information about, say, the person's care in a nursing home, or medical information for genetic reasons or anything like that, they are prevented from doing that under clause 54(a) if they are not either the executor or administrator appointed by the court.
What has happened up until the judicial review decision -- and you know that under 14(3), medical information is one of those categories of information presumed to constitute an unjustified invasion of personal privacy if there's a disclosure of it. So what has happened in the past is that although the family requests personal information, medical information, under 14(3), they would be prevented from having access to it. But there has been a balancing of the criteria in 14(2) to allow them to have access in certain circumstances. By allowing the reading of 14(3) in combination with (2), you allow for those kinds of situations.
If you don't do that, under 54(a), the only circumstances in which families will have access to a deceased person's personal information is if they are an executor or they are appointed by the court. These two sort of tie in together in some sense; that is, these are some of the repercussions you were speaking about, Mr Elston. I'm not sure if that's made it easier or more difficult.
Mr Hope: I know some of the problems in that.
Ms Swift: It allowed for some flexibility.
Mr Hope: You're actually right, though, when using the family member of a deceased in trying to access information. I just went through that with one of my own constituents. It's like: "Where do we go? How do you do it?" That's why I'm leaning to option B. But I believe what Murray had said very clearly is to make sure you just don't throw it at somebody and say: "We've got it off our shoulders, and away you go. Now try to figure it out."
Mr Elston: You'll have to rewrite option B if that's the way we go, because it reads at the moment in the second line, "section 14(2) and section 14(3) to be rebut." I presume, "to be used to rebut" or "to rebut." Is that it?
Ms Swift: Yes. There's something missing there.
Mr Elston: I don't want to stand in the way of people getting information like that, but what are the other circumstances that might cause us some difficulty? Those are the ones I'm concerned about.
I know the commissioner has recommended this, which gives me some consolation, because the commissioner and the office have been very good and very thorough in this and probably would be about the only thing that would allow me to proceed further with it.
There are some other statutes in existence these days as well which might be of interest in how this bill is applied. I can think of the good old bills -- what is it? -- 108, 109, 110.
The Acting Chair: The Substitute Decisions Act.
Mr Elston: Some of those may in fact confront this.
The Acting Chair: Power of attorney.
Mr Elston: Power of attorney and the whole works.
Mr Hope: Some of them do, but there are still some vague areas.
Mr Elston: Maybe we should be putting a little rider in that any change we recommend also takes into account the new statutes, then.
Mr Hope: Yes.
The Acting Chair: Is that agreed, then?
Mr Hope: I think we should do an analysis to mention that there are avenues under these.
Mr Elston: When you say "we," do you mean Susan or do you actually mean us?
Ms Swift: What analysis exactly?
Mr Hope: If you want to write it, Murray, you can.
We should make reference to those. I'm surprised the commissioner never brought that forward. I don't remember the conversations ever making reference to other acts that were out there, but then I'm trying to remember -- it was passed, wasn't it?
Ms Swift: Oh, yes.
Mr Hope: I think that was passed by that time. I was trying to balance when those pieces of legislation --
Mr Elston: In fairness to them, they were underscoring some of the problems they had come up with in making decisions, and so far they won't have been confronted by any of the new legislation. But I think it's important for us to note those when the drafting is occurring. I'm happy enough to go along with option B.
The Acting Chair: Option B with the added comments?
Mr Elston: Yes, with the added comments about the new legislation and compliance.
Mr Hope: Boy, are we ever making progress in this committee.
Ms Swift: The next issue is that of mailing lists under section 14, personal privacy. It was noted that "There is no specific provision in the act dealing with access to personal information which could be used for mailing lists or other forms of solicitation." The commissioner identified several privacy concerns in this respect and essentially recommended that the act make provision for that.
The committee should note that the same concern was addressed by this committee in its 1991 report, and the committee at that time supported the recommendation of the commissioner to include a provision to protect from disclosure personal information including an individual's name, address and telephone number when the request is made for the purposes of solicitation or a mailing list.
The committee was concerned at that time, as was this committee, that there are difficulties with looking at the purposes of the request. Currently, the act does not require a requester to state the purpose of the request, and it will not always be possible for an institution to know whether a request is being made for mailing list purposes or solicitation.
Second, there is no definition of "mailing list purposes." It was not clear to the committee back in its 1991 report whether the request for a list of names and addresses for non-commercial purposes such as the organization of a union would constitute a mailing list purpose.
Since its 1991 report, of course, the committee has heard evidence that British Columbia has enacted provisions that create a presumption of unjustified invasion of personal privacy based on the purposes for which information is used. In other words, they do use or incorporate a purpose into the request test. The legislation does not contain a provision specifically authorizing the institution to inquire into the purpose, or any enforcement mechanism to deal with the misrepresentation of that purpose. However, the policy and procedures manual of the legislation provides that: "In order to determine whether or not this section applies," that is, the section of the BC legislation, "the public body can ask if the applicant intends to use the requested information for mailing lists or solicitation purposes." It makes no other reference to enforcement or testing the veracity of the claim. Nova Scotia's legislation contains a similar provision.
So there are several options for the committee to consider. First is that the section be amended to provide that the disclosure "is presumed to constitute an unjustified invasion of personal privacy" if the personal information consists of the person's name, address or telephone number and is to be used for the purposes of mailing lists or solicitation, and that "further consideration be given as to how the provision can be enforced effectively."
The second option is that "The committee believes that limiting access based on a purpose test could lead to serious abuses of the act," and essentially that the committee would not make that recommendation.
The Acting Chair: Comments?
Mr Hope: Mine would be option A, if you're asking my comments.
The Acting Chair: I see Mr Elston nodding in agreement. Any other comments?
Mr Hope: Let's start focusing on the next one.
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The Acting Chair: Okay. I see that A is going to carry the day on that one.
Mr Hope: Can we just move to the options before us on the next one instead of going through the complete dialogue?
Ms Swift: All right. The next section deals with salaries of public officials and employees. The options for the committee consideration are set out on page 38. I've drafted four; there may be others.
Option A: The actual compensation, including salaries and benefits, paid to elected officials and public service employees should be published.
Option B: The actual compensation, including salaries and benefits, paid to elected officials but not to public service employees should be published.
Option C: The actual compensation, including salaries and benefits, paid to elected officials and employees receiving in excess of a particular amount -- that is, there would be a threshold -- should be published.
Option D: The actual compensation, including salaries and benefits, paid to elected officials and employees above a certain responsibility level should be published.
The committee should note that during the hearings I was asked to go back and look at what the previous practice had been. Basically, that's summarized at page 37. Until the coming into force of the provincial act, the actual salaries of public officials and public service employees who earned in excess of $50,000 per year were published annually and the threshold test had been in practice in the province since the early 1950s. Prior to that, actual salaries of all public servants were publicly disclosed.
Mr Hope: When the $50,000 was used, was that the total benefit? Would that include salaries and benefits or did that just include salaries?
Mr Elston: It would probably be salaries.
Mr Hope: It's actual salaries of public officials.
Ms Swift: It reads "actual salaries." I don't recall specifically, but certainly the salaries were in excess of that amount.
Mr Elston: The interesting thing about some elected officials now is that they have a salary plus a tax-free allowance plus benefits, and there also could be per diems. In lots of municipalities and in lots of school boards, it approaches nowhere close to $50,000. In fact, that would mean for a good number of the areas that you might just indicate, if you adopted a threshold, that there would be no printing of salaries for very many people, maybe two or three people that I might know of in most of the circumstances. I think most people now are looking at disclosure of the elected officials and public servants.
Mr Wiseman: Do you include all public service or do you just include a group in a category? How do you define this?
Mr Elston: There have been rather interesting discussions in my area by the ratepayers in several municipalities wanting to know what the full bill is for people who are employees, the people who are elected officials and the people who are independent contractors. Sometimes they buy service from another municipality for a bylaw enforcement officer or for a weed inspector or any of that, and the only way you can get a full picture is by putting all the pieces together.
There's a real drive now, in the public that I represent anyway, and I think in a lot of areas, for people to know where their tax dollars are going. For instance, in this case, it's suggested that we put on a floor of $50,000. There are lots of expenditures in small municipalities that don't get nearly that high, and you still don't have an understanding of the payments that are going out.
Mr Wiseman: I'm still a little bit concerned about where you draw the distinction, how you would draw a line.
For elected officials I have no problem. I think there should be no limit on that. Whatever an elected official makes in any category should be public.
I start to get a little nervous or a little worried about the public official who lives in a community and is only making $30,000 or $35,000 or something. Do we want to publish those names as well, or $20,000 or people below that? I wonder whether it wouldn't be better just to publish a category or something and leave the publication -- the private members' bills that have been debated have talked about the top five or top six or something, and not everybody by name. I wonder if that wouldn't be an invasion of privacy. When does it stop being an invasion of privacy and a public right --
Mr Elston: Once you decide that one salary is to be given and not another -- I mean, it is an invasion of privacy. There isn't any question one way or another. The issue is, I work for the corporation of the town of Walkerton and I happen to be number five, so I end up, at $35,000, being printed. The next one, being paid $34,900, being number six, doesn't get printed. No matter where you do it, once you decide that you're going to say one employee is to be divulged, then there is no question about what your principle is: Your principle is to divulge. The question is then, how many names do you want divulged? There's no consistency in the logic if you say it's an invasion of privacy to print the name of a person making $20,000, so we won't do it, but if they make $22,000, it's not an invasion. There is no logic there.
Mr Hope: Murray's right. Where do you draw the line? Where is the benchmark? Who do you say we cover and who do you say we don't cover? The question is always that individuals should have the right to know what's going on in their communities. Without getting at exact dollar figures, there are ranges you can use, and you can minimize the ranges or be more definite. You won't pinpoint the exact dollars. Let's say you use $5,000 intervals. From zero to $5,000 is one pay category; from $5,000 to $10,000 is one. A couple of thousand here or there -- at least it closes up the gaps, gives you a little bit more definition.
When you're talking about the word "benefits," it would be a paper nightmare to try to figure out what benefits are there. If you're talking about health care benefits, whether it be dental or other things, it becomes a nightmare. I'm talking about cash monetary benefits. I believe they ought to be publicized and they ought to be incorporated in the full package. Instead of getting, for instance, the health care coverage that every other employee is receiving in the municipality, because you get it from somewhere else, you could receive a cash nominant -- you know, whatever it costs, $35 per employee, you can get that automatically on your cheque. I believe that ought to be reported if it's done in the cash value aspect.
I wouldn't want to see everybody going into their benefits and trying to calculate, "Well, how much do our actual benefits cost?" because that is produced by municipalities. "Our benefit program for our employees costs X amount of dollars. This is our benefit program."
On the monetary issue, I know people would like to see exacts, but I would love to see where we can get to a closer gap, back to the publication, so that people get a better understanding, but to put it into $5,000 intervals. That would be my own suggestion for the employees.
As far as the elected officials are concerned: to the penny. You've got to separate the elected officials from the workforce, from the employees. I would say that for the elected officials, you categorize everything. They do it for us and I believe it ought to be a standard practice; what they do to us, they do across the board.
But for the employees aspect, in order to make sure that you're informing the public, number one, and, number two, you're trying to protect -- instead of trying to draw whether it's $30,000 or whatever the number is, it's in $5,000 intervals. That would deal with a contract employee who might not be a full-time employee but for six months or for four months makes $30,000. That becomes information to the general public. I'd say that would be the safer way. It's only my opinion, and I know it doesn't fall into the four categories that you have here.
Ms Swift: That's fine. I just didn't think of it.
The Chair: Mr Sutherland. We're coming close to 6 o'clock.
Mr Sutherland: I would agree with Mr Hope, except I think it should be $10,000 intervals rather than $5,000.
Mr Elston: That doesn't tell you much.
Mr Sutherland: Okay, whatever. I'm just pointing that out, but I think his comments are right on.
The Chair: Mr Wiseman, you get one more.
Mr Wiseman: I tend to agree with Mr Hope as well. I think what we should be looking at is maybe a combination of an amount level and a responsibility level, in that if you've got the CEO of a town, from one area, they should have their salary revealed. What might happen, though, is that when people find out what the others are making, there might be a real competition to see who can get their salaries to move up.
Mr Elston: Believe me: People who have to know know the general vicinity of salaries for the purposes of contract negotiations.
Mr Wiseman: But I think if there's a responsibility level and also a salary level and you mix them, then the broader group of public service could be delivered in categories as opposed to individual names.
Mr Elston: From my standpoint, here's a very interesting case. I'm negotiating my contract. Somebody else has received a 1% increase, but when you apply, for instance, to see what my salary is, if you give me a range of $10,000, I can get two or three 10% increases, let's say from $30,000 to $40,000, before it looks like I've moved one iota. That's a very difficult thing to deal with in the public if you're trying to find out who's doing what. That's the whole issue these days: who is doing what. In terms of fairness, there's a whole series of problems that you confront that leave a potential mischief there if you do it that way. That's why I'm not intrigued by the range. The range is still problematic in --
Mr Sutherland: But who needs to know? The taxpayer needs to know what we're being paid.
Mr Elston: I was just listening to the minister, who wanted this done.
Mr Sutherland: Yes, rather than necessarily the others.
The Chair: It being 6 o'clock, maybe we'll have to come back. Sleep on this one, Murray, okay?
Mr Elston: I've got more ideas.
The Chair: Lisa's got some information she'd like to ask the committee.
Clerk of the Committee: Just a request of the committee: Because this is a confidential report, only members can leave the room with it. It would greatly help the Hansard editors if we could release a copy to them so they could edit the transcripts that were taken of today, if there's no objection from the committee.
Mr Hope: No objections. Probably the document's out anyway.
Clerk of the Committee: Thank you.
The Chair: This committee's adjourned till next Wednesday.
The committee adjourned at 1802.