Tuesday 5 February 1991

Freedom of Information and Protection of Privacy Act, 1987

Ken Rubin

Afternoon sitting

Ontario Highway Transport Board

Solicitor General



Chair: Duignan, Noel (Halton North NDP)

Vice-Chair: MacKinnon, Ellen (Lambton NDP)

Cooper, Mike (Kitchener-Wilmot NDP)

Frankford, Robert (Scarborough East NDP)

Marland, Margaret (Mississauga South PC)

Mathyssen, Irene (Middlesex NDP)

McClelland, Carman (Brampton North L)

Morin, Gilles E. (Carleton East L)

Murdock, Sharon (Sudbury NDP)

O'Neil, Hugh P. (Quinte L)

Owens, Stephen (Scarborough Centre NDP)

Villeneuve, Noble (Stormont, Dundas and Glengarry PC)


Mills, Gordon (Durham East NDP) for Mr Cooper

Sorbara, Gregory S. (York Centre L) Mr H. O'Neil

White, Drummond (Durham Centre NDP) for Mr Frankford

Also taking part:

Coppen, Shirley (Niagara South NDP)

Fletcher, Derek (Guelph NDP)

Sterling, Norman W. (Carleton PC)

Clerk: Arnott, Douglas

Staff: McNaught, Andrew, Research Officer, Legislative Research Office

The committee met at 1011 in room 151.


Resuming consideration of a comprehensive review of the Freedom of Information and Protection of Privacy Act, 1987.

The Chair: I would like to call the meeting to order. I see a quorum.


The Chair: I would like to welcome Ken Rubin here today. We have only one witness here this morning, so we can allow a little leeway in time to expand on your brief and to allow for extra questions. You may proceed.

Mr Rubin: I was walking over here and I noticed the food bank, the peace camp and last of all, before entering the building, the barricade, and somehow that is what I feel the state of affairs is in terms of government openness in Ontario.

The brief you heard yesterday was from the Information and Privacy Commissioner. Although I have comments of reaction on his brief -- or their brief -- I come here primarily as a user, as a researcher, and to give you a strong indication, as a major user of the act, of the problems that I see and the future that I envisage.

I certainly also would hope that the committee itself plays just as important a role in the circumstances of the federal justice committee, where not only was there all-party agreement, but a very progressive report that went beyond the narrow confines of both the provisions under the freedom of information side and the privacy side, and unfortunately was not at all accepted by the federal government. In fact that government has been doing its utmost to try to downgrade accessed information and privacy legislation. I am wondering too if we have a similar type of situation developing in Ontario or not; I hope not.

I guess the themes I am here to talk to you about are: Is the current government taking advantage of the electorate mood for change of style of government? That implies resolving coverups and privacy abuses and having more honest and fair government. I am not going to be reading from my brief.

The second theme I would like to touch on -- because I realize that members of the committee, in some cases, have come to this afresh and I think that is good -- is that there is a past history to this act. One reason you are here is because the act was far from perfect when in 1985-86 it was debated and passed, and implemented in January 1988. The reason for a three-year statutory review, I think, anyhow, was to improve it, and I hope that is borne in mind throughout the proceedings. I would of course prefer to have the position of the government clearly stated at this point and that you call particular departments and question them, particularly those that have greater secrecy practices or privacy abuses within their departments.

The third theme, I think, in trying to limit myself to some of the concerns and experiences I have had, is how to improve the act dramatically. I am not after piecemeal change. I think the act is not working well. It had some unique features in comparison to other provincial or federal legislation which I would classify primarily as first-generation legislation. Here in Ontario, though, with the new government, and hopefully a new attitude, I think you can move ahead and contribute to being a model for the rest of the country.

Let me backtrack to the theme of the current government and say that to date, unfortunately, I have been very disappointed in the signals, or lack of signals, particularly on the openness side of this whole question. I can point to several events. Certainly one that is in the news a lot these days is the introduction, which went ahead, of the Municipal Freedom of Information and Protection of Privacy Act, which I certainly recommend you make part of your discussions. In fact you will notice one of my recommendations is that they be eventually amalgamated.

This government knew it was coming. They had been elected before its implementation. I think they should have sent a clear signal that it was not good enough. There is great confusion, at least where I am from in eastern Ontario, among municipalities and school boards and police commissions as to how to implement it or whether it straitjackets them unnecessarily. I can think of several areas from police information to construction information to exact salary information and a few others where it takes away people's rights, and this is at the local level. Besides, those high increases that the past government put in will affect the local level a lot more.

That is another signal I was waiting for this government to give clearly, to not only users but the public, that it would not stand for a government that during an election campaign, without public consultation or pre-notification, would introduce a 25% to 50% fee increase in search and preparation fees and in computer and other costs.

The minister responsible appears to have defended this increase, which astounded me, on the basis that it is fine because it somehow equals the rate of inflation. Maybe even on a mathematical basis I do not understand it, but I certainly do not understand, does that mean everything should be under the rate of inflation, sort of a CPI automatic price increase? This is not sort of a GST wonderland, I hope, where everything just gets added on to everything and we, who want to use the act, end up paying for it.

Another signal that is of concern to me is that if I was in their shoes -- obviously I am not; I realize there are other commitments and it is a new government and it did not expect to get elected. Certainly yesterday I saw the minister and told her and her assistants that I would expect a better plan of action because there are a lot of measures that are interrelated from -- again, in the news today or yesterday -- open meetings to whistle-blowing, an environmental bill of rights and other things I have not even talked about, like citizen-initiated referendums, that should form part of a plan of action.


If a government wants to be open, it has to start indicating that it wants to be. In addition to that it has to have a strong directive that tells its employees, tells the general public, corporations and voluntary groups: "We will not act as other governments in the past have. We will act with a greater degree of openness. We will issue certain basic guidelines." That is important. Even a gentleman by the name of Mr Clark in his brief administration, or Mr Trudeau in 1979 and 1982, I believe it was, issued directives before the legislation, however bad it was, was introduced saying to public employees: "Listen, there's going to be a new order of things. Get ready and get ready to change your attitude a bit."

That is an important signal and one I hope will be forthcoming in the next few weeks at most. It cannot wait for a year. I am a firm believer in what Jed Baldwin has told me over the years as sort of the father of, I guess, a lot of at least the Canadian legislation, that if a majority government does not do anything in the first year, forget it.

Majority governments tend to close ranks and become more institutionalized, more complacent, to have that sense of power. Unless you say that we want a real change, something that is more permanent, even in the social commitments on programs, which are all very well, but besides resource redistribution let's bear in mind that there has to be information resource reallocation -- that is, a reworking of the relationship between citizen and government that is long overdue.

People are cynical, are alienated. I do not have all the answers, but I certainly see that a government, although you cannot legislate the attitudes of public employees or others, can do a hell of a lot more to bring openness through legislative enactments, enabling legislation, to redress and to help that balance.

I would also point to another signal. Most of my almost 600 applications were done under the previous regime, and by the way, to some 30 agencies, smaller ones and larger departments, and I know of other people who filed applications or have helped them, and I am talking primarily under the freedom of information side although I have helped on the privacy side. I have noticed in the ones that I have filed recently that I ain't getting anything really different. I am still getting the same exemptions cited, although, let's face it -- I think this is one thing you will discover -- there are the good guys and the bad guys or some departments that are more flexible than other departments. This is not a monolithic system. If it was, God help us.

I can give you a few examples of the current government's own departments still denying me information. I do not think this strikes me as the new, in quotes, sunshine regime -- sort of the Bob Rae; the sunshine ray as opposed to the zapping ray, sort of the death ray or however you want to put it. You do not need a death wish right now; you need to relate to your citizens.

But the thing is that you can totally blank out, as one agency did, the current discussion of the free trade options of the current government, or you can announce that a 30% refillable ratio should be met, but in discussions -- the matter is under appeal, granted -- with Ministry of the Environment officials, I am told that I will still be denied the monthly reports filed by the soft drink industry by regulation, partly because they do not want to be embarrassed by giving away, supposedly, their competitive position. But I want to know what that ratio is between refillable and non-refillables. I ask how the government can know, particularly since the reports they are getting are limited. They do not consist of the entire industry, the hotels and the restaurants. They may concern what is being collected in the so-called blue box program; I do not know.

It is helpful for the public to be able to debate issues that are of environmental concern. I am not too sure if they will ever know if their target is being met if they do not have the right information. I feel they do not have the right information.

I will just leave you with one other type of example, although I could give you several of a recent nature. The Minister of Health introduced, I think, some pretty progressive legislation after the fact to help protect health cards. I applied for one of the earlier consultant reports addressing that issue after the fact because I was concerned that the previous government had gone ahead. I did not apply for my health card until I knew that the bill was into its second reading, I can assure you of that.

I found out, first of all, that they wanted to charge me fees to view it in Ottawa. For severing the document, I contacted even the consultant. He was quite overwhelmed to see the amount of exemptions. How can I determine how the government, how can I compare it to the bill if they are going to take all this stuff, supposedly policy advice or whatever? It is a consultant's report to begin with. I was not exactly enamoured by that approach. Yes, I am getting other things. I am not going to, throughout this, say that I have not. I have circulated some articles that indicate the times I have had some success.

I do not want to totally paint a gloomy picture that every freedom of information co-ordinator is only concerned about collecting fees and applying the exemptions, or that every deputy minister is stalling, that kind of thing.

I certainly want to convey that it is happening. I also want to convey that the current legislation puts too many exemptions in place to help facilitate my opening remark about a better relationship, a better deal for that citizen-government relationship.

I find that the current government has some very interesting proposals which are overdue on the features that must go towards greater openness or privacy protection. I have mentioned some of them. Even a more open appointments system is one of them, or class actions. But when I start looking at them, or what is behind them and I see some of them are being backtracked or they are introduced and there is a little confusion over them or they are not co-ordinated, I say a plan of action is definitely needed.

For instance, in the open meeting section, here you have one ministry looking at -- in the past I looked at Bill 152, which was the last bill of the Minister of Municipal Affairs on the open meetings. It is very limited. You have to analyse these bills as a committee too. At least from my viewpoint, they are not tough enough or they have too many exemptions. Yet on the other hand it does not cover school boards, does not cover police commissions, does not cover a lot of local bodies, let alone provincial agencies that need sunshine open meeting requirements.

You get the whistle-blowing provision, for instance, where you have one department, the Attorney General, thinking about, and I have not seen the details, introducing it for public employees; then you have another department for a certain segment of the private sector, through its environmental bill of rights, talking about perhaps that.


I said to the minister yesterday and I am saying to you that here is a great opportunity. Do not blow it. Let's try and at least work this through in a more co-operative, systematic fashion, because these things will be a lot more permanent if they are enacted than a lot of other measures that the government introduced. I certainly would not mind having my car insurance premiums kept low or I certainly would not mind having more day care and things like that, but I want to be able to communicate and feel that my government is listening and that I am being heard and that so is everybody else.

I am not just a user. I am also involved with a lot of community groups and public interest groups, and I am not just speaking -- before I came here, I did consult with a lot of groups, particularly from my area, and there is an impression that the current government is not as yet that accessible. With the past government, it was, well, if you had the right money or connections, maybe you had greater success. I do not want to say there was not communication. I am just saying everybody has to improve it. I can tell you that even people inside the government now, even at the political level, are saying: "What the heck. What is all this secrecy?" So I think people are wakening up -- I think it is the 1990s -- to that fact that we need a new style of government.

Although I do not want to harp on it, I certainly will say that the past government did a fairly good beginning hatchet job, partly, I think, through this committee, of trying to erode the freedom-of-information legislation in this province. I regret that, because adding exemptions before the three-year statutory review, adding confidentiality provisions, adding mandatory fee requirements, adding fee increases are not meant to help users or the public.

I am sorry, I do not feel it is proper for a government to keep introducing all these bills before I and other people could even have a chance. They are not just housekeeping; they have implications. I do not think it is proper for a government to engage in backtracking, nor did I think it was wisely handled to pass the Municipal Freedom of Information and Protection of Privacy Act based on one-sided consultation with certain municipal officials, no public consultation in any great degree or anything I saw. Because they would have been told, just as the media is telling the ministry -- and I am sure you will hear from them -- now that its provisions about covering the police institutions, the law enforcement institutions, are wrong.

Maybe there is a shift to privacy, but there also has to be some common sense. I feel that the past government bears some of the burden of contributing to a slide to secrecy. There was a minority government when the bill was passed, but it is hard when you are a majority government to say, and that is my message: "Hey, we want to be more open. We can get ahead and do things for you."

I want to add one thing here because I think it is important. People say: "Geez, all the costs associated with introducing all this open government style of things. It not only is more democratic -- it's more difficult, yes -- but it's costly." I do not think it is that costly. For instance, this information access protection of privacy program is really very not very costly at all if you compare it to other information programs or propaganda programs -- you can call some that -- or other government expenses.

I can give you one example, where I think users have helped save you a lot. The Globe and Mail, using the access act, did an excellent series on day care. As a result, that ministry looked more closely at how it licenses, how it inspects. I do not think they finally removed it, because I certainly have gone further on that issue myself, but the articles and the impact were there and it probably helped save money, it probably helped redirect resources. That is a proper use of the act, and that is the significance of the legislation.

As I say, I am not here totally to point fingers. I am here to set an optimist's tone. I am pressing the ministry. I am pressing you. I want to see change. I do not want to see us go backward, because I just think people will not believe anything any more.

If you are going to keep this act complicated and confusing, and not simple and easy, then you are going to get the response -- how many people are using this act? I think you would find, once you get the statistics, that last year use is dropping. It has not been that great. You might say there was not enough publicity or you might say people are turned off by the exemptions, or maybe it is only meant for an élite, particularly the way it is worded, and so on. But a lot of people I know have questions or would frame things if they felt more comfortable with the process and with the results. That is what I am going to try and address.

If you look at the statistics, I think far too many exemptions were cited, there were problems with time delays and so on. I do not want to just say, "Hey, these are the problems." I have some answers, as somebody with a degree of experience in all provincial legislation. Six provinces have legislation, and the Yukon does. BC and Saskatchewan are thinking of adopting legislation. New Brunswick is also re-examining its legislation. Newfoundland, all of a sudden, out of the blue, decided to drop its Ombudsman role, which does not help matters.

I already said I would try to concentrate on some recommendations under the act. Let me deal with privacy first rather than last, because I think it at times gets short shrift in this thing, because information access, which I am certainly a more major user of at this time, is much more in the public eye.

It is very important to protect people's identity, but part of the problem, and I think the committee has to study it further, is the balance between access and privacy. Although the act tries to address it, it needs to be seriously reviewed. That is why I recommend a one-year closer look at it.

I can think of other examples besides the law enforcement one. I was denied the names of physicians who extra-billed this province. I consider that the public's right to know, not the privacy protection of people who benefited and perhaps misused the trust of what was the law of the land. I am sorry. It is not a matter of privacy invasion.

But what is a matter of privacy invasion? That is the question, and I think the commission yesterday was on the right track by saying not only did it need more powers, but the real problems lie elsewhere. They lie partly in the private sector, in the public sector. They are such things as ongoing, unknown computer matching and surveillance, electronic tracking. You already have some, in terms of divorce maintenance and what have you. You have CSIS agreements which have to be reviewed, you have a health card which may become a smart card. Do the current proposals even cover that kind of possibility? You have transporter data flow of a lot of the citizens' information to the United States, in particular. You have electronic monitoring in the workplace. You have real privacy invasion problems.

This legislation admittedly is first-generation. It primarily deals with the access to personal information. Part of the problem there, by the way, is that it allows so many third parties access to that information, including the federal government on matches; that, I am suggesting you do a moratorium on or better identification of all matching exercises.


But if you want to broaden the notion of privacy, do not just leave it to the notion of access. In fact, you may eventually have to split it off from the freedom of information area. Certainly you need a separate review or a separate privacy commissioner. The issues do conflict. There is a balance, yes, but if you want one area to shine and not to get lost, then you need the measures. I am just saying you have to extend yourself to more of a data protection of personal information.

I cannot say that strongly enough, because I really think that is primarily the main concern of the individuals in this province. Yes, public policy is, but I think that is where people -- we are making some tradeoffs now, but some people, as a result of privacy invasion, are either unfairly losing their jobs or are being discriminated against or what have you; maybe it is through AIDS testing or whatever.

This not only has to be looked at; it has to be acted on, there have to be moratoriums. There has to be more than the commission recommends. There have to be penalties. If the cops are going to go in and get some information, they need warrants, in all cases. You need a whole process that treats personal information as my property and your property, not the government's or the company's. You will find on both the access and the privacy sides that you should extend it -- lo and behold -- to the private sector. That means companies or professional bodies.

Look at the doctors. They have just set up a task force on one of these things which has been covered up too long, which I am sure the government or other people in a lot of areas have known: the whole question of sexual and physical assault.

If we are all going to be open, we all have to be on a level playing field. It is fine to have started on a first-generation act just limited to the government. By the way, it is too limited, because you are leaving out 10 to 15 agencies like the Art Gallery of Ontario, you are leaving out public hospitals. You are leaving out a lot of public agencies. You are leaving out a lot of agencies that are getting a lot of government money, too.

I think the way to handle it in the private sector, both on the privacy and on the access sides, is to adapt codes. You certainly do not want the bureaucratic routine that in part is here on the government side, but I think you want to give them a little clout, not just say "give access to," but that there be penalties assigned and so on. You have a reviewer, the commission, to make sure these privacy codes are enforceable and more important than the Royal Bank's voluntary compliance privacy code, for instance. If I were a subscriber there and had a real problem, I suspect I would not get as far as if I had the clout and the backing and could complain or appeal to the commissioner.

It is not an ideological concern, that we must always bring the private sector in. But would it not be a great idea if there were more information disclosure for corporations? Look what is happening with Algoma or with Varity and so on. If the government is going to plan its economy or help its citizens, I think everybody bears an equal burden of having a degree of openness. We do not have that now. Let's not just look to our government institutions to be the goody-goodies. We have to have everybody think it over.

Turning to the freedom of information side, I think one of the very basic things that has to be addressed is that exemptions are not a principle of the act. Until that mentality is wiped out, we will never have an information release act. They are not meant to be written in a preamble of an act. A result of that logic is what we get in the act, which was a great compromise in 1985: the public interest override. What is that public interest override? It says that if grave environmental health conditions, with compelling circumstances, really outweigh those exemptions, well, maybe we will do it.

If that ever went to court, not only would it not hold up, it has been proven in a lot of the appeals I have given through the commissioner or others that it is meaningless. Why is it meaningless? Because the weight is on the government side. The exemptions, which are too many and too broad, are on the government side.

I am saying whoa. Is this what we want? Is this an access act? It is a secrecy act. If that is the way you want to structure legally an act, then you are going to get what you deserve, and I do not want to deserve that. I do not think it is fair. There is still a place for certain exemptions, and in my brief I think I am saying that not only should they be secondary to the public interest relief principle, or that severance, which is the principle of getting as much information as you can, should go beyond the so-called reasonable severance -- that is like tying one hand behind your back and putting you in favour of the government -- but that certain exemptions are totally meaningless, like policy advice and defence. Those are covered in either other jurisdictions or in other exemptions, which themselves have to be narrowed. I am not even sure if intergovernmental affairs should be an exemption any more. If the Premier here can announce constitutional hearings and say, "What we want is less federal-provincial secrecy," yet he still has this exemption which his departments use, who is kidding who? It is still there, and it is an important decision-making process in this country.

Similarly, things like cabinet confidence. It is there as an exemption, which is better than federally as an exclusion, but you have tied two hands behind your back, because the list is so long that anything going up towards cabinet, goodbye. That is unfortunate, because there is a lot of factual information, there is a lot of information which at some point or other might have been released as white papers or other things so that people could participate or discuss and debate along with the politicians or the government about what is going on in this province.

I am not going to get into every -- I will point out that the law enforcement exemption really needs change. It is the major used one besides personal privacy. There are certain groups who certainly over the years -- I can tell you, I have documents for it -- that have lobbied. There are people who have vested interests in keeping secrecy, certain law enforcement agencies, certain corporations, certain government agencies, and they have done an effective job in this act in ensuring that their interests are recognized. They sure have not cared about the public interest. That has to be, I am saying, readdressed, and you do not readdress it by tinkering: you readdress it by putting your mind to what the act and the spirit of the act is supposed to be about.

You also do not just stop there with exemptions. You look at the question: Why do we not, as in Sweden, have daily inspection of records produced by the government and different ministries? Who is kidding who? Should somebody have to go through all the hoops of applying and this and that? There is a lot of information out there, including a lot that hopefully would now become available. It has to be available. It has to be accessible.

Similarly, I think you have to tie the question of information access to proper, effective record-keeping. Not only are a lot of records becoming computerized, and that poses difficulties in getting them, because some guy and his personal computer can erase or keep on there and never print out, and how in the heck are we going to find out that it exists or that it ever did exist? And this has happened to me. Some guy can go and hold his meeting orally and it is part of a decision-making process. How are we going to find out what happened? Somebody can miss records or keep them sloppily or keep them in a fashion that is not user-friendly.

I am saying it is high time that people realize that, although the records are for managerial purposes, they are also for public dissemination. If that is the case and the commissioner needs those powers not only, as was said yesterday, for use in disclosure and retention of collection practices -- and I think that was referring primarily to the privacy side -- but more generally, and penalties to go with that so that record practices will now be administered. Not the vague, archival or Management Board or whoever issues in this jurisdiction, abstract, record-keeping management practices, but much more specific ones, ones that say if you are holding meetings that are towards making decisions, they have to be recorded, and if they are not recorded you are going to get fined. That may sound moralistic or whatever, but the fact of the matter is that people should expect a degree of honesty and openness in any government agency.


The other areas that I would turn to briefly are the fees. I have nothing against fees if they are reasonable; it is just that my definition of reasonableness and the government's is like sort of the nickel and dime version of a morality play. I think the government is not understanding that this is a democratic right. This is not just a highway toll collection, you know, that is going on. Although fees have not been that high in terms of the amount collected, there have been a lot of people, including myself, who have abandoned applications because of fees.

I say that reasonableness is if you have real lengthy record searches. If you have real large volumes of records to copy, computer or on a manual basis, then there is reasonableness if you have a more flexible fee waiver. The current fee waiver is not that flexible because you have to show either financial hardship -- whatever that is -- or you have to fit within a narrow public interest safety waiver. I can say even when I applied for Ontario Hydro meeting minutes, the commissioner ruled, "Well, that is not, in my subjective view, safety or safe to the point where it warrants a waiver." So again, what was potentially flexible was narrowed down so that we have right now not a flexible enough fee waiver, but we also have fees which I think are obnoxious and which will show to be more obnoxious, not only the increases, on the municipal level.

Can you imagine local people who need fast information walking in and being told not only "Wait 30 days" and "Put it in writing" but also, "Oh, by the way, if it is over $5" -- which is ridiculous for an administrative waiver -- "you will start paying for all the photocopying and all the other time"? This is just not the way to treat your citizens.

On top of that, if I live in Ottawa and I have to pay shipping costs because I do not live in Toronto, "Oh, yes, that is fair," they say. If I want to get certain information, lo and behold, my goodness, there are exemptions -- remember what I said before, the act is slanted towards exemptions and therefore severability is implied -- then guess what? I get charged search and preparation fees. Is that not nice? For the physical deletion of exemptions, I have the privilege of paying for that. Now, is that in the spirit of the act? No.

So I feel it is very important to drop those kinds of charges and, as I say in my recommendations, which I will not go into totally, these things should no longer be the way of doing it.

I have suggested things in terms of time delay. I agree with the commissioner. I thought it was a novel idea of, if you get it late, tough luck, no more fees, or it can be assessed. But I go further, because there are people obstructing the release of information and they still have to be penalized, and penalized in a tougher way than the current act allows.

In terms of the review process, because of the things I am suggesting of privacy codes and information access codes on the private sector side and the expansion that has happened in the municipal agencies, I think you need a three-person commission. I cannot see one person doing it. I feel that it warrants a full commission. I think the Quebec model has certainly some merits. I still feel one person should be designated privacy commissioner.

I also want, unlike the commissioner, a more flexible appeal system. I strongly disagree with not being able to see at least the legal -- I do not want to see the confidential records in question in an appeal, but I certainly want to see the legal representations of the ministries and of the third corporate parties, who I do not usually, by the way, even know until their decision is issued that they have made them. I feel that process has to be re-evaluated. I think the commissioner has done a fairly good job within the act in terms of issuing clear decisions -- not that they have gone in my favour mostly -- and that is partly reflecting the act.

I think also that the commission, as I say, needs more powers on records and so on.

The Chair: Sorry to interrupt, Mr Rubin. I have allowed, because you are the only witness this morning, a certain leeway or flexibility in presentation that has gone on roughly an extra 25 minutes. So a couple of more minutes to sum up, and then we can --

Mr Rubin: I was just about to. I sort of noticed you raising the sign of authority.

The Chair: Thank you.

Mr Rubin: I basically want to leave you with one further thought which is directed towards this committee. That is that you have an important role not just now but in a permanent review role. Part of the whole package you want from a government is making parliamentary or legislative committees stronger. Give them more resources, give them more permanent staff and let them really deal with issues. It is not just this review; it is going to be the review four years from now. It is going to be the issues that you hear, the technological changes on privacy invasion that occur between then and now that somebody has to be there to listen to. If you are going to try and change around the whole government process or you are going to try to make people more open, you have to be vigilant, you have to have oversight committees. I feel that this committee, if so designated, should do it and I think you should also ask the government for those types of terms of reference.

I hope I have covered something that will give you food for thought. I hope I have kicked off -- and I am glad I was the first user -- something to give you a broader overview, to give you a challenge, and I hope I have.

The Chair: Thank you very much. In the normal rotation basis, we begin today with the third party. We have until 12 o'clock, so that is roughly 20 minutes for each party.

Mrs Marland: Mr Rubin, you are quite original and obviously you are quite refreshing in some of your approaches. While I probably do not agree with everything that you say, I certainly agree with some of it. When I flip through the newspaper clippings of some of the subject areas that you have brought to the attention of the public and some of the questions that you have asked, frankly I think some of the questions that you have been asking needed to be asked. One headline I see is, "Why All the Secrecy Surrounding the SkyDome?"

I think as an example, where we are dealing with government, government per se traditionally was established to represent the best interests of the people. I think if government -- and it does not matter who it is, so we do not have to get into the partisan aspects of this debate -- is truly doing its job, then we are fulfilling the responsibility to the best of our ability in the public interest.

I think where I would disagree with you is on the privacy protection issue and wanting to extend the invasion of that privacy perhaps into the private sector, corporations and companies. I would have a lot of difficulty with that unless I knew the specifics of what you want to use as an example. But in dealing with the access to government reports, for the most part I can agree with you.

I thought it was a very good example you gave about being denied the reports that are filed by the soft drink industry as to its percentage of refillable versus non-refillable containers, because that kind of information is in the public interest. It is not just a fad thing to do with the environment now; it is a very serious matter in the long term for all of us. The cost implications are there, both to the environment and to the pocketbook directly. I think that kind of example that you give is one where it seems to me that it is ridiculous that we cannot have access to that kind of report. Obviously if some government ministries have some of these reports, which are supposed to be in the public interest in the long run, then we should have access to them and I certainly concur with you.

I share your concerns about some of the exemptions. I should tell you, however, we do have a note here from the Management Board of Cabinet, over Frank White's signature, that was just given to us about the number of requests. You thought perhaps the number of requests were down now from the previous year because of the difficulty in getting those requests fulfilled, and in 1988 there were 2,453 requests; in 1989 there were 5,512.

Mr Rubin: I realize that.


Mrs Marland: What is interesting is the fee differential. In 1988 the average fee was $5.22 per request and in 1989 it was $10.03. But then the explanation goes on and it is the explanation I am sure you will have a lot of fun with in the future. I am assuming, because this was distributed, that it is public, now that I have given half of the contents.

The Chair: Yes.

Mrs Marland: It is not marked confidential, so I thought I was safe.

Mr Rubin: I am not in an in camera session.

Mrs Marland: But what is really interesting here is that the Ministry of Revenue in 1989 collected fees of approximately $32,500, 305 requests dealing with property assessment from market researchers and consultants. "If these figures were subtracted from the 1989 totals, the average fee per request would drop to $4.38" from $10.03. Frankly, I do not think it matters whether it is market research or a consultant or Mrs Smith or Mr Jones. I found that comment a little interesting.

The area that I want to ask you specifically about is you say that we need some basic guidelines. I want to ask you about whistle blowing. The reason I would like to hear you enlarge on that a little is that I personally was involved in an issue as the critic for Citizenship for our caucus when we were dealing with the Ontario Human Rights Commission and I think we had a perfect example there of whistle blowing. We ended up probably uncovering 60% of what was behind the problem at that time in the Ontario Human Rights Commission, which in itself was ironical since this is the very commission that protects everybody's rights as employees and yet there was a very serious question about employee practices at that time.

Here we have a government arm's-length agency, which the commission I think can be described as. We had people who were willing to come forward. We had an interministerial committee review the commission and the interministerial committee was made up of two senior staff people from two other ministries. Even after we went through this whole process, the total picture and the true information were not all available even to myself as somebody who stood in the Legislature and asked the questions.

So I am wondering what, through your experience, you would suggest as basic guidelines to encourage whistle blowing and yet not have it make the whole process ludicrous, but where people are not at risk, because people on the inside who may well know of a situation that is serious, that should be corrected, are in fear and trembling of losing their jobs or their promotion or other opportunities of their employment.

Mr Rubin: I think, first of all, it may have to be a separate bill, but I think provisions have to be in the freedom of information bill tying it in. By the way, there should be an oath of service rather than an oath of secrecy of public employees, to begin with, written right into this bill.

But if people really have tried all the available routes-they have gone to their superiors or those people's superiors in good faith with a problem, I mean a serious problem of health, the safety, wasteful practices and so on, and they are not getting anywhere -- then right now there is no type of legislation that can help protect them. There are different avenues towards perhaps remedy. One thing is for sure, unless you build in some protection for those individuals, say, through an office of special counsel, they are not going to have any projection.

I guess one of the key issues is, does the person release the information directly to the public and fall through this, hopefully, safety net or does the information first of all, in a sense, get vetted through the special counsel, which sounds bureaucratic.

Mrs Marland: Through the special what?

Mr Rubin: Through the special counsel, through a special office as in the United States or in other jurisdictions. I should, by the way, say like the state of Michigan. Although it is not the best bill, for instance, it has whistle-blowing provisions for the private sector too. We are talking about helping to facilitate and protect people who are not just government employees.

I do not feel that I could go too much further other than to say that I think the process is to examine the best from different jurisdictions. I would, though, if I may, just want to respond to three other things very briefly that you said.

In terms of SkyDome, which is one of the most troublesome agencies that I have dealt with in the last few years, it can never seem to make up its mind that it is a public crown corporation. It thinks it is a commercial corporation, and it certainly has acted as one. There is currently an internal review of it. I would like to have that more under public scrutiny, because I have not heard anything about this internal review and I think that what has happened there needs to be put under close public examination.

Mrs Marland: It was before the standing committee on public accounts a number of times.

Mr Rubin: I realize that, but I do not think they gave you everything. I have read those proceedings. In fact, under the freedom of information act, they have referred me to those accounts, and I have gotten other material. I do not think the truth and all the circumstances have been forthcoming. They are good at time delay and exemptions and too many things. I think if you want to talk about the wilful breaking of the spirit of the act, there is a first-class agency that knows how and has done it, and I think that has to be changed.

Mrs Marland: So as far as employees are concerned, what you are saying is that there should be a special counsel or something equivalent to an internal auditor, but someone who that person can approach.

Mr Rubin: No, it is an independent counsel. It is more in the functioning of an ombudsman or a human rights commissioner or an information and privacy commissioner.

Mrs Marland: So the individual is protected.

Mr Rubin: Yes.

Mrs Marland: I know in the United States the controller general, who has the same position as the Auditor General in Canada -- that the office of the controller general in the United States can investigate any area where the US dollar flows, literally any area. So there are very broad powers of that office, and supposedly every Auditor General or our Provincial Auditor would have the same powers. In the interest of protecting the public, the information that kind of office extracts through its staff investigating the operations of government in every ministry, do you think that information should be accessible without having to go through the act?

Mr Rubin: I certainly see the value, if you are promoting open government, of having internal checks and audits, and the functioning of an auditor, if anything, probably should be increased. I know in the case of the federal jurisdiction, I have tried to get material or have run across material from departments that involve the Auditor General, and not only is his office not covered -- it may be a little more independently set up than the provincial one or your internal auditor's -- but I cannot get information from him. However, I certainly have -- and maybe you do not have it built in, from what I can see, as formally as in the federal sphere -- gotten quite a few internal audits, with some exemptions, federally.

I think it is an important process. I think you also have to understand -- and as a researcher, I clearly do, as one who has worked inside the government too -- that a lot of auditing and audit reports are done for process pushing or paper pushing. It does not really do much. It is not independent, particularly if it is internal, and sometimes that has to be borne in mind, because the quality of the record and the message can be very self-serving.

Mrs Marland: Do you think the solution is that we have a classification of those areas which are of compelling public interest? Should that be a basic guideline? I mean, there is a whole lot of stuff that may be of interest to Mr Rubin or Mrs Jones, because of their own particular -- I am not suggesting you have a narrow focus, I am just using your name as an example.

Mr Rubin: I do not think I do.


Mrs Marland: But there are people who have a narrow focus or they have a personal grudge because 20 years ago that ministry fired their mother-in-law or did not employ their mother-in-law or whatever it is. There are always people who carry grudges and they will follow people's careers in government for ever. They will just about follow them to the grave in order to get a reprisal for something that happened.

Obviously that is not of compelling public interest. I think the percentage of refillable and non-refillable containers, in terms of the protection of the environment, is of compelling public interest. Do you think, if we had a classification for government reports that were of compelling interest, that might be a step towards more open access?

Mr Rubin: If I could make a distinction, first of all, I would hate to see any applications considered frivolous. I think it is everybody's right to have the access, so I would not question the motivation or the ability of anybody to make a request on any subject. Second, however, what I am saying is that it is not so much the "compelling"; that word legally means that it has got to be proven airtight, which means that you do not get it usually.

I understand the thrust of what you are saying, however, and I think the idea is that everything is public unless there are secondary reasons that are really on a discretionary basis, except for personal information, and can be solidly proven through harms tests or whatever, not the reverse.

Mrs Marland: Okay, so what you would do is you would have everything open rather than create classes.

Mr Rubin: That is right. Right now, there is a very meaningless public interest override. The onus of proof, and the commissioner in his orders have said that, is on me. It is on those who want to do it. No, no. The onus of proof has to be on the government as to why public interest release is not the compelling principle.

Mrs Marland: My colleague has some questions, Mr Chairman, so although I have more questions, I am going to yield the floor.

Mr Sterling: Thanks for coming, Mr Rubin. You and I have talked from time to time. This review would not be going on had section 68 not been put into the Freedom of Information and Protection of Privacy Act. That actually was an innovation which I put into the original act in 1984. I suggest that if this committee wants a further review of this act, it will require an amendment to section 68 if we want to keep this topic in the public forum.

It was always my concern that once an act was passed, however good or bad that act might be, it would not raise its profile into the public forum unless something dramatic happened. It is my view that, right now, most people do not care about freedom of information. They are perhaps more, as they always have been, concerned about privacy rights.

One area that would be of interest, because you have extensive experience both with the federal act and the provincial act -- you have already commented in your opening remarks about the complexity of the provincial act. I was concerned when the act was passed with the idea that the commissioner, who was known as the freedom of information and privacy commissioner, gives the impression to the public that one would go to the freedom of information commissioner seeking information and he would help a member of the public obtain information. In fact, what we really have created under the act is a judge: a judge and jury actually. The commissioner is probably the most powerful of all freedom of information or privacy commissioners in the world in that his word is final, his judgement is final, and there is no appeal of that judgement.

Under the federal system, the freedom of information commissioner acts as your advocate. She or he is an Ombudsman. He now, John Grace, is an Ombudsman. In other words, you go to him and his duty is to try to get the government to divulge information. If you have a privacy problem, you go to the privacy commissioner, and his duty is to try to protect your information. If there is a dispute, you go to the Federal Court and settle it there.

Do you think that we should make some fundamental changes in the structure of what our commissioner does?

Mr Rubin: Let me answer this way: Having experience in those jurisdictions as well as -- by the way, for instance, New Brunswick and Manitoba use their ombudsmen for the information-denial appeal and Quebec has its commission. I think the best models right now are Quebec and Ontario, if I can come out in favour of something.

I do like the idea of a one-stage binding enforcement situation. I do feel, though, that a three-person -- for reasons of the task but also for the reason that you get a certain personality -- at least by having a three-person commission, you know the treatment received. The commissioners would not all have to hear the same case, be always together, which is important.

I think where I disagree with the current commission is more in terms of opening up the process so that it is not totally secretive, particularly at the mediation stage, which I think there has been some success with, but there could be greater success, going even beyond the terms of the act if the user was more involved than he or she is at this process.

I do say, though, that if the commissioner, who just like everybody else is subject to time delays, cannot cough up a decision within three months, then like New Brunswick, although slightly different there where you have the option to go to court or to the Ombudsman, at least there should be some flexibility that allows you to do that; or if you are arguing strictly points of law, at least you have the option of either going straight to the court or to the inquiry stage of the commission rather than having to go through the hoopla of the mediation stage.

Where I even go further than the current act is I feel that the commissioner -- I do not think he or she just acts or the panel of commissioners would act just as a judge because although yes, a lot of it is appeals and therefore it is a legal, quasi-legal, quasi-judicial type of function and maybe a total judicial function and there is enforcement behind it, he or she has other functions, and I am saying they should be enhanced.

There is the education function. There are the audit and investigative functions and in fact the whole question of self-initiated complaints or appeals by the commissioner, like in a sense how they have done on the privacy side through the AIDS report or through the fax transmission report or their views yesterday on matching. It is an excellent type of tool to do it. It has nothing to do with the day-to-day appeal process, but it has everything to do with alerting people to and improving their protection or their privacy or their information access.

The Chair: Are we finished? Twenty minutes has more than expired, but if the parties want to use up their 20 minutes, they can go to 12 o'clock and ask some more questions.

Mr Fletcher: Thank you for being here, Mr Rubin. I just have a few questions waiting for clarification. You are saying that the fees and some of the costs associated with getting information from this act are limiting access to using the act?

Mr Rubin: Yes, if you do not have unlimited budgets and remember too, a user has to put in his own time and cost too, and I must stress it is not, at least in my case, primarily always for commercial gain. In fact I do not mind going on record as saying that at least under the Ontario act I am just like what some governments talk about, in a large deficit position if I were to look at the cost balance sheet. When I do not apply myself totally for those purposes, I apply primarily what is, I know and believe, in the public interest sometimes. Most people are not going to pay you 600 times for 600 applications.

The fact of the matter is yes, because now it is $30 per hour. If you get any records that are exemptible and that surcharge comes into effect, it can add up even if you have a narrow request to $100 to $200 or more. Treasury and Economics, which is one of the other departments I singled out, was famous for giving me these huge fee estimates, was unwilling to discuss or negotiate even an airing of the application. I get bills for thousands of dollars.


I notice one of the members of the committee who laughed was the former Minister of Labour. His department at one point wanted some $25,000 -- fortunately, I did not end up paying it -- for records on how the Occupational Health and Safety Act was actually working. It was partly because of the records being in a disorderly fashion, because some were manual and computer records were not retrievable exactly in the fashion they should have been. These things do definitely act as a barrier.

I am not saying it happens in every case, but it adds up. I, as a regular user -- and I know there are people who are one-time users -- come up against this continually. These bills add up. There are some statistics that show them being withdrawn and abandoned. Yes, those things may be for other reasons than fees, but I think, on the whole, it is a lot for people. They do not even bother coming forward to apply because they know that they can be subject to fees.

One good advantage of the act, unlike the federal act, is that there is no application fee because at least you get in the front door. But once you get in the front door, you find the highest fees in Canada.

Mr Fletcher: Another question: As far as the government is concerned, what do you feel should remain confidential? Nothing? It should be completely open?

Mr Rubin: Well, I would like to walk in and examine every cabinet minister's records on a daily basis. In fact, by the way --


Mr Rubin: Well, why should you not? What is the problem really? Take cabinet agendas. I looked at these federally for the years, whatever it was, 1953 to 1968. Twenty years later is their provision. They had 13 exemptions there, all personal information. There is nothing in there. They are all factual headings. Why should that not be released the next week? Why is it in an exemptible category?

Yes, there is certain sensitive personal information that I agree has to be kept exempt. There is a certain negotiating stance at times that can be harmful to government interests. But I am not ready to go to the extent and the broadness in the many ways of saying no that the current act provides for. Even though this act, unlike the federal act, for instance, has gone to a little better extent in trying to define the exceptions to exemptions under each exemption, I do not think it has balanced them sufficiently. Some of them, as I say, are just totally inappropriate.

Mr Fletcher: One more question, Mr Chair, and that comes from the whistle-blowing theory. A hypothetical case: I am an employee and I want to blow the whistle on someone who is doing something wrong. I have to collect information and make sure that I have the information that can substantiate that. Are we not just creating another system of collecting information and using that information without a person knowing about that information until it is time to confront the person with the documentation?

Mr Rubin: If you feel you are in that position, I think you have to make an effort first within the system to your superiors and in written form. I think you have to have a fairly good, solid record that you are not just having an axe to grind, it is not a petty matter and so on, you really have the public interest in mind and you have tried within the system and it failed. I certainly have had people like that come to me and I feel they need protection, because afterwards they cannot work in those places any more. Their colleagues treated them like --

Mr Fletcher: I am just going to carry this point one step further. That is, I go to my supervisor. There is something going wrong. My supervisor or the company I work for or the department I work for still has to collect information and do an investigation on this person without that person knowing. Is it not still the same thing, where we are collecting information on a person without him having access to it, without him knowing there is an investigation going on? My only concern is that it can go a bit far.

Mr Rubin: I think I understand what you are saying. I do feel, though, that a person who is being affected by this has to know that other people are investigating him. As a result, I have seen people who have tried to release information being subject to what I would best call kangaroo court procedures by their colleagues. It is just disgraceful. They do not even use the due process. They do not have any inclinations except to protect their minister and their own hides. In a few cases, it has had damaging and permanent health effects on the people.

Mr Fletcher: I would hate to see that happen.

Mr Owens: I could have saved you $25,000 if you had contacted me. I could have told you how the health and safety act is not working and what we would like to do to change it.

I would like to ask you with respect to your statement about the SkyDome and troublesome agencies, is the SkyDome the most troublesome agency that you have had to attempt to get information from?

Mr Rubin: Since they reach almost up to the sky, yes, they are the worst that I have experienced. I think I mentioned giving honourable mention to Treasury and Economics. I would certainly give equal billing to the Ontario Securities Commission, which I think, by the way, because it can play an important role in information disclosure in the private sector, itself has to be reformed in its own openness so that certain transcripts and other things are not always kept in secret.

I would hesitate to totally name every agency that I have dealt with. Let's put it to you this way. Over the last three years too, there have been agencies in Environment or Health that have gone one way or the other. At one point they were great for whatever the reason -- change of personnel, higher or lower -- and at other times they have not been.

But nobody has quite been on the same scale as the few agencies I previously mentioned. Yes, there are some agencies that I think have really tried well under the act to go even beyond the terms of the act. I think they understand that the word is service.

Mr Owens: Again with respect to SkyDome, how many requests have you made for information?

Mr Rubin: I could not tell you offhand the exact number, but it is certainly a few dozen and I certainly have over 15 appeals in on them.

Mr Owens: Of the dozen or so, how many have been granted without going through the appeal process?

Mr Rubin: It does not mean just because they have exempted a few records or done something wrong that every time I appeal. I am somewhat selective. I do not know if the question is fair. I will give you an example, if you want, of when I got something, if you guys want to have something a little lighter.

I asked what they were doing about the incidents in SkyDome of certain exhibitionist behaviour in the hotel. Yes, I got a full reply. I got the hotel's statement to people who were staying there, which they had to sign first, saying that they would not even think about committing any improper acts and opening those blinds. So at times you can get full release -- and something which government does not usually do -- it can even be a little light.

Mr Owens: What types of information would you be requesting that the corporation would be so sensitive about releasing?

Mr Rubin: They signed a lot of long-term monopolistic deals with various people and who gets which orange juice and who gets which right. They are sensitive to that area or the draft proposals for the partnership consortium of SkyDome type of deal.

They have been generally sensitive ever since the first time that I walked in and looked at the records. All of a sudden I was told that I could not have most of those records after viewing them. I think they realized that this act might be something that is not in their interests. Some of the information in this case that has come out is because of court actions, not because of their voluntarily wanting it to come out.


Mr Owens: With respect to your statement about fees being prohibitive as opposed to enabling people to participate, I had asked yesterday and Mr White has kindly responded to my question about the fees. We talked about the average fee being $10.03 in 1989. However, you seem to be coming away with figures that have a couple more zeros attached to the end of those fees. How is that different?

Mr Rubin: One of the simple explanations is that either I have some that are higher, or the ones that are really high I did not follow through on because they were too high, or I narrowed it down or negotiated or whatever.

Mr Owens: So there is an avenue for negotiation on fees?

Mr Rubin: If you have a bit of a flexible department. Some of them get very moralistic and firm and rigid about that. If you want it shipped to Ottawa it will cost you $11 and you will have to pay that before you look at it.

Mr Owens: So we do not have a standardized policy for fees. It is up to the individuals?

Mr Rubin: We do. In fact, what we have, which the previous government passed, is to make the fee collection mandatory. I have people currently who want to be a little more flexible with me, say, "Gee, if I don't follow these fees, the Provincial Auditor is looking over my shoulder and he'll say, `Why didn't you get that guy for cost recovery like you're supposed to?'"

It is more than a subtle change from mandatory to discretionary because of that very fact or because the commissioner's powers are now called into question. Some of his key decisions, before he left, were on the whole question of discretion and the whole question of whether the department hold the sole discretion. The commissioner said: "No. You've got to follow through on certain things or else you're not properly fulfilling your duties under the act." In fact, order 81, which I attached in those notes I gave you, was a key one towards grounds. I think if a government agency challenged that today, if the issue were fees, it would win.

The whole ability of the commissioner to function in a certain key area has gone by the wayside because somebody decided to put the screw on users and to put the screw to the lowest common denominator on departments to say: "You collect. That's your job. You do it or else. To heck with the user."

Mr Owens: If you were going to consolidate the presentations you have made verbally as well as your written submissions into, say, three key areas with respect to the legislation and amendments this government should or would like to look at, what would be your recommendations to this committee?

Mr Rubin: I would first say that I do not know if you will be the one designated or what, because there are several other committees, from the conflict of interest to the whistle blowing and other measures that may or may not deal with these. I would hope, perhaps sensibly, even if different ministries are involved, they could all be dealt with as a package even if they are not all part of one omnibus bill, that the broadening flowering of open government and of privacy protection -- because, as I said before, it is not just a question of access. If you noticed, I had some specific things to say on computer matching. That would be one.

Second is reversing the whole mentality and legal spirit of the current freedom of information act, particularly on the openness side, so that openness prevails.

Last, because I would only be doing myself and others an injustice if I did not say it, is making a plea for stronger privacy protection not of the current type that exists but of the type that most people are so worried about with the impact of technology and how it affects their lives. Although a lot of people say they have nothing to hide or that they are willing to give their VISA card or their social insurance number and so on, I have seen too many cases where there is an end effect, and where I think government has a role to put in some minimal protection. In fact, in answer to one of the previous member's questions, even the OECD European guidelines or the American Health, Education and Welfare guidelines on fair information practices, which are well known, are a very good start towards this code business in the private sector that I am talking about.

I do not think that people in companies or in small businesses or in voluntary groups should get really uptight and say: "Oh, my God, big bureaucracy is going to come and get me." I think they should say: "Yes, we should operate this, too. If we don't, our employees" -- employees too should be subject, unions too -- "should have some recourse." I think it is only reasonable that if you are asking somebody to do one thing, ask everybody else to do it.

Mr Owens: You have probably touched on a sensitive area for most people and that is with respect to the collection of data by private companies. I am continually amazed by the depth of questions that are now coming in the mail for surveys and things like that. You have to wonder where this information is going and why they need it and who they are going to share it with. I agree that we certainly need to extrapolate the provisions contained within this legislation to harness these types of private agencies, to ensure, as you say, that if one level of society is expected to follow a code then that should be followed by the rest of society.

Mr Rubin: It is one thing for them -- I agree with your example -- to help influence and further, by using technology and invading your home, your marketplace decisions. It is another thing, though, for instance, for them to conduct a battery of psychological and personal testing on you as a potential employee, some of which has no business being collected, some of which may lose you that potential job or, when you have the job, be carried wrongly throughout your career. It is that kind of impact I am in part talking about, or that employee sharing that knowledge when the person has, say, an alcohol problem or something, with other people it was never fully intended for. So there is something to this.

Mr Owens: Absolutely. I think more and more that you see corporations take a look at employees who are on the "promotion track" and subject these folks to that type of psychological testing. The question comes out about why that is required and what people do with that information. The holders of the information at this point are certainly not constrained, other than by corporate ethics, from sharing that type of information with other individuals, be it a manager, a supervisor, or even a co-worker around the coffee machine.

Mr Rubin: This is being proven in the States where they have actually started to pass some legislation. Let's face it: Unfortunately -- or however you want to put it -- there is a large corporate concentration in certain areas now, say in the consumer credit area. You are not talking about small companies; you are talking about immense sharing capacity and trying always to look for newer areas of profitability, which means the sharing of certain personal information. I think, for instance, in that country they are starting to say certain ground rules have to be placed on these large companies if people are going to have any minimal rights to their own information which these companies hold.

Mr Morin: First, I want to congratulate you for the excellent presentation you have made. I want to congratulate you also for taking this attitude of being a watchdog on what this government is doing, of what we have done in the past, too. But paying you a compliment does not mean I totally agree with everything you have said.

Mr Rubin: Now for the bad news.

Mr Morin: I just want you to elaborate. On page 5, you mention, "Privacy provisions should be extended to the private sector where bodies are regulated under provincial jurisdiction, with requirements that all private bodies adopt a privacy code of fair personal information practices." Are you not dreaming in colour?

Mr Rubin: Even in similar committee hearings at the federal level, in the justice committee, recommendations were made to at least minimally extend to the private sector the application of the privacy act to those regulatory agencies under federal jurisdiction, such as my dear friends Bell Canada or other companies that fall under that jurisdiction. So there is nothing -- I would not want to use the word -- revolutionary about it.


I guess all I am saying is that I can appreciate that the private sector may not want to consider everything interfering with their ability to operate freely in the marketplace. But the fact of the matter is that every individual is entitled to certain minimal protection, and I do not think it interferes at all with their ability. If anything, it helps improve it. I feel that if other jurisdictions have entered into this, I do not think they have had companies turning over the doors. In fact, the federal government is trying to encourage a lot of governments -- rather in a slow process, I might say -- to adopt the OECD guidelines but on a voluntary basis. I am afraid that does not always work. You need some enabling legislation, which I think is what the federal justice committee was suggesting, to help this process along, or in 20 years you are going to have most of the major corporations without privacy or fair information practice codes, whereas I think people would like to see that now.

Mr Morin: You referred to the Ottawa Senators, of not being able to obtain the name of the directors. Have you applied for it? Were you turned down?

Mr Rubin: I have not directly applied for it, but I certainly --

Mr Morin: You have spoken to Mr Durrell?

Mr Rubin: I have not, but I certainly feel it is an excellent example of minimal information disclosure, because at stake is a whole community, a whole area, an agricultural area, and its future, and it is of interest to the citizens of Ottawa-Carleton. Fortunately, now there is a separation, you might say, of private sports industry and state. But on the other hand, I think even if there had not been that situation -- it is like SkyDome or other private sports clubs, too, such as Maple Leaf Gardens. There has to be some minimal information disclosure.

Look at how many people utilize those facilities, and the public helps subsidizes a lot of these facilities. There has to be some idea of what is going on in these places to protect the public interest. As well, the company should recognize it is in their best interests. Could the Ottawa Senators get away with that if they had to file a prospectus with the Ontario Securities Commission? I doubt it. Numbered companies are one thing, but at least you would have a numbered company.

I have not been divulged anything. It is wrong. We are not in that century, we are past that. Particularly now, it is absolutely necessary that they do it, or the public may never fully back a hockey team.

Mr Sorbara: I want to apologize to the witness for having arrived late for his presentation this morning, and for having to step out for a period of time during his questioning. My colleague to my left, Mrs Marland -- colleague and friend, she reminds me -- pointed out that you had made some comments in the press a couple of years ago about the expense of getting information out of my own ministry during the period I was Minister of Labour. It is interesting. That was the first time I had seen that comment, although there were periods when the requirements on the freedom of information co-ordinator in the ministry were very significant just in terms of volume of work.

I have had an opportunity to look through some of your materials and there is no doubt that the whole question of freedom of information and protection of privacy is something that is very important to you and almost a life's work. There is a lot of reasonable information in your presentation and some good suggestions, frankly.

I suppose you were here yesterday and heard the discussion around the question of protection of privacy. It seems to me that the protection of privacy, and the management of data in a post-industrial economy with protection of privacy in mind, is going to be one of the very significant challenges of government not only in this area but in all of its aspects.

All of its emanations are going to be challenged over the next medium and long term, particularly as the ability of computers to voluntarily speak with one another and compare information and then provide results becomes more and more technologically feasible. So although I am subbing on this committee, I am going to urge the committee to pay attention to the recommendations that you have made, not necessarily to adopt them all but to pay attention to them.

I think it is important that Ontario be a leader in the development of public policy in this area. My experience as Minister of Consumer and Commercial Relations confirmed me in that view, particularly the management of data that large international and transnational entities have about the individual transactions that individual Ontario consumers make, whether with credit cards or health cards, or when cards that we have not even imagined come into being.

I guess I regret and I want to express regret about some of the material that is contained in your document. You do not acknowledge, for example, that it was the previous government that developed this act and put it into place, although you go on at some length about the mistakes that it made after it put the act into place. As you are a person who has made a life's work out of making sure that information is accurate and available, I was disappointed, I must tell you, in some of the information -- in this case I would say information and would want to put it in parentheses -- contained in your document.

For example, referring to a document entitled Secrecy Still Prevails in Ontario, in that document you suggest that "the new Ontario government has not issued directives that change the secrecy practices of the former administration." I think that is an interesting and a fair comment, although I think it was the former administration that began the practice of putting into the statutes of the province the requirement to provide the citizens of this province with accurate information about the way in which they develop public policy and administer public policy, but that was a fair comment.

On page 4 of your document you make an allegation that I think is rather unfortunate in this context, because I think you want to portray yourself as someone who is interested in accurate information. In the second bullet of that document you suggest that "privileged access to some Ontario cabinet ministers by those paying to attend Liberal Party economic advisory forums or expected access by those giving sometimes questionable political donations."

You say that you allege that was going on. Do you have any information that I do not have in this regard? Is this an allegation or is this information? Is this accurate, based on information that you have secured or is this innuendo? Is this just part of a blanket condemnation of the previous administration?

Mr Rubin: I think there were some public reports on this. I do not know how widespread it was, but it certainly was a situation that was there, let's say it was. I was a witness here before, several years ago, and certainly would recognize the government that presented the legislation.

I would also say that you, sir, were the sparkplug in terms of looking at the Occupational Health and Safety Act that led me on, because you were kind enough to give me the first computer printout for free and led me to believe that I would be getting the rest of the information, not the $25,000 surcharge. Perhaps the department went ahead and I guess that is one of the things.

I am not asking for ministerial interference in these things, but I am sure thinking that there is a need for better political direction, and that is what I am suggesting to this government and to the committee, that if the spirit of the act is going to be maintained, those who ultimately are responsible should be aware of what their own departmental officials are doing. In fact, by the way, that case led to the famous order 81, so it did in the end serve more than one purpose, including not eventually getting the information and not being charged the $25,000 under the order of the commission, mind you.

I realize I cannot say everything. I am trying to convey a plea and an advocacy stance. I am not trying to be, I do not think, deliberately inaccurate. As a researcher, I usually try not to. I said I would not hark on the past. I would like to, and I think you said it too, really look towards a real change in this area that can excite the whole committee and can motivate the government. I leave that message for sure with the committee.


Mr Sorbara: I think the committee is probably hearing that message, although this is a committee made up of politicians, so it pays, I guess, perhaps inordinate attention to political messages. I would describe your comment on page 4 as a political message rather than a substantive, administrative or policy message.

There is a wonderful line in Julius Caesar which goes like this, "The evil that men do lives after them; the good is oft interred with their bones." I expect that is going to be the case as regards the former administration, that the evil that we have done -- if we did any evil -- will live after us and all the good will be interred. That is okay. That is fair game. That is politics.

I must say that I find that in matters of public administration the idea that anyone would have privileged access to a minister of the crown in any democratic jurisdiction based on ability to pay would almost be criminal in its character. It would be in my view tantamount to selling influence or selling access, and of course I think that is probably prohibited by the Criminal Code of Canada, and certainly is reprehensible in any western democracy that I know about, although those allegations were part of the currency, certainly, of our administration and part of the currency of the provincial election which ended on 6 September.

We all accept the result of that election, but if I have anything to do with it, during the next while this evil that lives after us will be dealt with, will be responded to or will be put to rest. It is something that somewhat haunts.

I wanted to ask you a question about these two aspects of the legislation as it stands now: freedom of information and protection of privacy. You probably heard me say yesterday that this statute and the public policy direction was rooted in a desire to come to grips with the inaccessibility to the records of government and the documents of government. It was based on work done primarily by Jim Breithaupt and resulted in a bill that we introduced. Although I came into the process late, it seemed to me that the protection of privacy aspect of it was an afterthought. It was something that was absolutely necessary, given the direction that the legislation was going in in terms of access to information.

It went like this, one assumes: "We are going to make access generally available." Then there was a rather stark realization, "Oh, my God, that means that people's privacy could be invaded, so let's superimpose on that this issue of protection of privacy," and that was incorporated into the statute. Do you see down the road a severing of these two statutes, that is to say, a statute dealing with freedom of information and a separate one dealing with the protection of privacy?

The reason I ask that is because typically in government administrations when there are competing interests -- freedom of information on the one hand, protection of privacy on the other -- a government often has those two interests compete under separate statutes or even under separate administrations. For example, we have the Ministry of Industry, Trade and Technology arguing for the interests of the industrial engine, and we have the Ministry of Labour saying yes, that is okay. But in doing that we have to be careful about the interests of the working people who will work in those industries. So we do it administratively and we do it by separate statutes.

What is your view on that? What do you think the government should be doing in terms of having these two competing interests compete successfully with one another ultimately for the interests of the people of the province of Ontario? I want a yes or no answer.

Mr Rubin: First of all, by the way, just to answer one other thing I failed to mention before, I certainly fully recommended the coverage of politicians in the Legislature under freedom of information. However, to answer your question, yes, I do see the eventual separation, partly because they are competing. But I would find it very unfortunate if there were not some mechanism through the commission and so on to still retain that balancing act.

I think the history in this country has been different, unlike, say, Europe where there was a separate emphasis primarily on privacy so they got data protection acts passed, and maybe access comes next. You had the wedding of the two concepts at the federal level, and then at the Quebec level, here and elsewhere. That sort of gave people the impression -- it is just like federally, and even provincially, you have other acts called privacy acts or protection of privacy acts that have nothing to do, in a sense, with privacy. The protection of privacy act is the wiretapping act federally, and the western provinces have privacy acts that are just sort of a minor legal enabling right to sue in certain circumstances.

The fact of the matter is I think a lot of people are under the mis-impression that the wedding of these two took care of matters beyond access to personal records, that it took care of privacy invasion. That is partly why, although I hesitate to say the divorce should be quick, you need fallback things such as in the United States, where they have the Office of Technology Assessment. Among other social implications of technological change, you have privacy implications that then can be more intelligently pursued, and in the public interest, protected.

What you have in the United States is a fairly separate but useless, not-too-well-received privacy act, and a separate freedom of information act, but you have a host of other things like a student financial records act, consumer credit and so on and so forth, just like this province in fact in part did in the consumer credit area where it had special acts just to one thing before. I think that approach, hopefully in an omnibus-bill kind of sense, is appropriate.

Mr Sorbara: I do not have any more questions.

The Chair: Thank you, Mr Rubin, for appearing here today. The Chair certainly allowed a certain amount of flexibility today. It was only a half-hour presentation and somehow we stretched it into an extra hour and a half. The Chair will exercise that degree of flexibility, time permitting and with consensus of the committee here.

The committee recessed at 1158.


The committee resumed at 1406 in room 151.


The Chair: I will call the meeting to order. I would like to call the first witness from the Ontario Highway Transport Board, Barry Smith. Please come forward. You have about 15 or 20 minutes for your presentation; a little longer, if you like.

Mr Smith: My name is Barry Smith. I am the chair of the Ontario Highway Transport Board. I have prepared a written submission, which I understand all of you have. I am prepared -- and I would seek your guidance on this -- to read it, or I can summarize it much more briefly than you can probably read it and make myself available for questions. What would you prefer?

The Chair: What is the consensus of the committee: to summarize it or to read the brief? I see the consensus is to summarize.

Mr Smith: The first part of the submission deals with general background on the board and what we perceive to be the purpose of the legislation.

The Ontario Highway Transport Board is an administrative tribunal, quasi-judicial in the style of operation, and we have jurisdiction in essentially two areas: truck transportation and bus transportation.

About three years ago, the truck industry, as you probably all know, was deregulated and at that time new legislation was passed. Following the passage of that legislation, there was a change in procedures for filing applications for trucking licences. Prior to that time, the licences had been submitted to our board. After 1987, they were submitted to the ministry, and it carried out some processing and determined an administrative function, which was whether the applicant was fit to hold a licence.

Following that determination, the matter was published in the Ontario Gazette, and if there was an objection, then the matter was remitted to our board for further processing. In that processing, we would either deal with it in the context of a public interest hearing or not. That is where the problems began to arise, because in remitting the matter to the board, the application form which was filed by the applicant was censored considerably and we received an application form with much of what we considered to be the relevant information whited out or blotted out. That was the only information we had or that anyone who wished to oppose the application had in their files. So that presented the problems.

I think the simplest thing for me to do to describe this problem is to take you to the bottom of page 4. If you would not mind, I will read it; it sets out the problems we faced. Starting with "Applications for Operating Licences," in the bottom paragraph on page 4 of the submission:

Applications for operating licences under the Motor Vehicle Transport Act were sent to the board in censored form after the fitness determination had been made by the ministry. Relevant information relating to the applicant's identity and proposed operations had been removed. Addresses had been deleted as being personal information, and information concerning the identity of shareholders of a corporate applicant was withheld on the basis that it was protected third-party information. Obtaining consent was impractical. Information on truck fleet sizes and terminal facilities was also kept confidential. The censored form was placed on the board's file, which was available to the public, and notice of the application placed in the Ontario Gazette with instructions to be followed for anyone wishing to oppose the granting of a licence.

Part II of the act in question requires that the board make a determination about the effect of the proposed operations of the extra-provincial undertaking on the public interest. Opposing parties, respondents, have the burden of demonstrating the detrimental impact to the public interest. Neither the board nor others can carry out its responsibility and properly address its jurisdiction unless it can identify the undertaking and assess the type and scope of the proposed operations.

The board found itself faced with several hundred applications, none of which in any particular way could be distinguished from any other. The board was often faced with the task of dealing with numerous respondents under a legislative regime that was intended to permit all participants, including the board, to focus on a select few cases of importance. The respondents, being no more able to distinguish among applications than the board, provided the board with broad-brush evidence aimed at the information on the application that was available on the record. And that, of course, was the censored form. The board continued to be faced with a situation where the only way to identify those applicants for whom a public hearing was appropriate would be to order hearings for all, and permit the hearing process to provide the forum for the disclosure of the necessary information. The intent of the legislation had been distorted.

Opposition was filed to nearly all applications. It is our understanding that this was done, at least in part, in the belief that status as a party would permit a respondent to have access to the uncensored file. The necessity of dealing with opposition on every application that was filed and then later developing an ad hoc process for obtaining information imposed an unrealistic workload for the board and extensive delays in dealing with the applications.

As initially the name of counsel or a contact person was omitted as personal and confidential information, errors in sending letters and decisions to the proper person occurred. Indeed, one application was nearly dismissed when the applicant's counsel failed to appear, when it was discovered that the confusion derived from the board's failure to notify counsel, whom the board did not know existed. In short, the failure to disclose certain information hampered the board in carrying out a traditional adversarial process at a public hearing.

This was the situation and the problems we faced. There was an appeal launched to the commissioner, the matter was heard and the matter was resolved in the board's favour by the commissioner. I have given you the reference there -- it was order 53 -- and I have given you the file number. I have the matter here -- it is a rather lengthy file -- if you are interested in the details.

It is our submission that this is not a practical approach to this type of problem, and we think it could have wider application to other tribunals as well.

The board's submission goes on to suggest a couple of areas that you may want to look at if you believe that the problem I have described is of sufficient importance. That is the summary of the report.

The Chair: Since we have about an hour and a half before the next witness appears, we could allow up to half an hour for questioning from each party.

Mrs Marland: Or we could phone the next witness.

The Chair: Or we could phone the next witness.

Mr Smith: In my defence, I think I indicated I would not be long.

The Chair: I can allow up to half an hour for each party for questioning, if they so desire. I think the rotation this time is with the government party.

Mr Owens: I do not have any questions at this time. I would certainly like to reserve our time, though, as we move through the rotation. We will pass over to the opposition.

Mr Morin: We do not have any questions, either.

Mr Owens: We appreciate the presenter's brevity, however.

The Chair: It appears there are no questions.

Mr McClelland: I have a question, about the suggestion you made with respect to quasi-judicial bodies, tribunals, as a general statement that a possible solution would be naming the chair of the tribunal as the head of the institution for purposes of freedom of information.

Mr Smith: I hate to interrupt, but can I qualify that?

Mr McClelland: This may be what I am looking for anyway, the qualification, so please proceed.

Mr Smith: At this stage I am only suggesting that that be studied. I have not done any in-depth study. Really, the focus of this submission is to identify the problem, but it appears to me that is an area that is worthy of some study.

Mr McClelland: I appreciate your comment. I was just wondering, within the context of that type of solution, if the chair of a particular tribunal or perhaps another individual who would act as a constant for purposes of head of the organization -- in other words, in a situation where boards are convened from time to time and place to place from a pool of chairpersons, do you think -- given the fact that you have not really studied your thought through carefully; it is a first impression and I recognize that; I am not trying to put any other weight on it other than just your first impression, opinion, with respect to the appropriateness of having the chair of a given tribunal or an individual representing a quasi-judicial body who would supersede or sit in the position for all chairpersons of various tribunals which may be sitting from place to place and time to time across the province.

Mr Smith: Certainly that would address one of the major concerns, that is, to have someone who appreciates, I suppose, the role and how an administrative tribunal functions. In this submission, I hope I have conveyed the message that openness is probably even more important to tribunals than to other ministries and agencies, particularly those that perform a quasi-judicial function. I have attempted to give you some precedent, some reporting that supports that proposition. Therefore, your suggestion would certainly have merit in that you would have someone who would appreciate this particular problem.

Mr McClelland: Beyond the scope of your own particular body, the Ontario Highway Transport Board, are you aware of similar problems? It seems to me from the scenario you have given by way of example, it would be, I can say this, obvious, not knowing that in fact the situation exists. But clearly -- and I agree with you -- the intent of the act is distorted in terms of this application with respect to tribunals. Are you aware of other boards --

Mr Smith: I sit on a committee of all chairpersons in the province and I raised this at one of the meetings, and no one had this problem. It could be for two reasons: One is that their respective ministry did not deal with it in the same fashion as the Ministry of Transportation. Probably more important, though, under our previous regime we received the applications and we had control of the applications. Under this new regime, the applications go to the ministry. In the report, the ministry was quite candid that it wanted us to have the information but believed it was constrained by the act. They were also concerned about placing the minister, who is both the head of the ministry and the board, in a position of personal liability, as they understood it. This act imposes a personal liability on the head -- financial burden. I hope I have that right, and there are others here who probably know it better than I and they will correct me, but that is my understanding. There is some personal liability or problems with it, so they did not want to put the minister either in an embarrassing position or a financial one. They wanted to be overly cautious. If it was not within their jurisdiction, I do not think they would have the concern.

To get back to your specific question, I do not know of any other agency which had the problem, and I think it was because of either the difference in handling it or they do not have this division of administrative responsibilities on the application. Either it goes to one for the application and they deal with it, or the application is made to the tribunal.


Mr McClelland: Mr Chairman, I would just like to suggest that it might be something that would be worth looking at for consideration if indeed it is, as Mr Smith has suggested, a process of handling peculiar to the Ministry of Transportation, so we can really look at the act within the appropriate context. It would become a procedural as opposed to a substantive issue, to be addressed accordingly. I thank you for your help on that.

Mr H. O'Neil: I have just a general question. When the Ontario Highway Transport Board meets to make decisions on different matters that come before it, are all of those matters public? In other words, do they take place before the public or do you have meetings that are taken in camera?

Mr Smith: Everything is in public, with certain exceptions. We have the power to go in camera at any given time. That power is rather limited in use. It often occurs in the hearing and we will go into camera where possibly counsel who represent the various parties are present or when we deal with financial information or sensitive business information.

As far as our deliberations go, the decisions are made not by the full board but only by those members who participate and sit on the hearing. Of course, their deliberations are made in private, much the same as judges would deliberate a matter in their chambers. They would not invite the parties in, but they would discuss it among the members of the board who actually heard the evidence.

Mr H. O'Neil: Those discussions take place, say, among the board members themselves, and the public is not privy to that.

Mr Smith: Yes.

Mr H. O'Neil: Are there minutes kept of those discussions?

Mr Smith: No.

Mr H. O'Neil: They are not. If somebody objects to the decision that has been made by the board, would those discussions at that time possibly come in as part of evidence in an appeal?

Mr Smith: No.

Mr H. O'Neil: So how has the public knowledge of how you may base your decision, except what you want it to know?

Mr Smith: The last part of your question has me hung out, but let me explain. By law, we have to issue a written decision with reasons, and the reasons are supposed to set out the actual reasons of the tribunal. The conversations that take place in discussing it in chambers -- they would never have access to those discussions. In every case they would be oral.

Mr H. O'Neil: Do you agree with that process? Do you think it is a good one?

Mr Smith: Oh, yes, I think so, because otherwise you would not get the freedom to discuss matters. You discuss a whole host of things. One of the things you discuss, the evidence, is the credibility of witnesses. That is a discussion that would take place among the members themselves, whether they thought the witnesses were credible.

Mr Villeneuve: Thank you very much for your presentation. Re-regulation or deregulation occurred about the same time more or less as the Freedom of Information and Protection of Privacy Act came in. What happened? What is the difference between the before and the after? Can you cite an example of what might not have been available before and now is, or vice versa?

Mr Smith: You mean with respect to the re-regulation of the trucking industry?

Mr Villeneuve: Yes.

Mr Smith: What happened in the trucking industry had sort of a rocky history. Before re-regulation, anyone seeking an authority to move goods on the highways in the province of Ontario would apply and fill out an application form which went to the Ontario Highway Transport Board. We had all the relevant information; it was part of the document we received.

Mr Villeneuve: Which was not available to anyone other than the board?

Mr Smith: Which was available to everyone. It went on our public record. Of course, anyone had access to that and that was the basis of commencing a proceeding.

After re-regulation, a new administrative procedure was adopted whereby this application form went to the minister. In the application form it would set out such things as the name of the applicant, the address of the applicant, how many trucks the applicant had, how many warehouses he had, how many terminals the applicant had, who the corporate shareholders were of the company, if it was an incorporated company.

This was received by the ministry. It then put a notice in the Ontario Gazette saying it had this application, inviting anyone to object if they wished. If an objection was filed, the matter was then immediately sent to our board, because essentially that is what we did: we dealt with objections to determine whether the public interest was being served. Then the ministry would send not the application form it received but a document where this information I have just described to you was whited out. That went on our public record, so neither the board nor anyone who wished to oppose had access to that information.

Mr Villeneuve: Was this a ministry decision or freedom of information requirement?

Mr Smith: It was a ministry decision based on its interpretation of the freedom of information act, because it believed some of the information was personal, some of it was related to a third party and therefore they had to get the consent of the third party, which of course was not practical. As a result of that, we did not get the information, nor did anyone who wished to participate in it.

Mr Villeneuve: So the freedom of information act as it came in in 1988 pre-empted this change in the method of processing applications to your board.

Mr Smith: Yes. The reason for changing the method of applications was not done because of freedom of information, but that was a fallout of the change in the procedure. The procedure was changed for a number of reasons. One was the ability to put things on the computer; the ministry had computers to set up the whole network. It was also based on the fact that the ministry, under the new act, had to conduct a fitness test of the applicant, determine whether he had proper insurance and so on. That was what precipitated the change in the administration. What I am suggesting is that the FOIA precipitated the problem I have described, because they could not give us the information they had in their possession.

Mr Villeneuve: Consequently making your job of deciding, to some degree, much more difficult or open to a lot more speculation, is that right?

Mr Smith: Yes. We had to deal with it on an ad hoc basis by automatically setting down every matter for a public hearing. Once we got it in our domain, as a public hearing, then we could order information to be produced; this is under our standard powers. But it meant that everyone had to go through this cumbersome process, whereas only a small percentage needed to.

Mr Villeneuve: Is it your feeling that because of the freedom of information act certain owners of fleets or individual truck companies may have withheld information that you would normally have had?

Mr Smith: No. In many cases, the applicants were as frustrated as we were. I have no information to suggest that they were withholding information. They would submit it to the ministry, and the ministry felt it could not pass it on to us or make it available to anyone who wished to oppose. I have no evidence or knowledge that they were deliberately withholding information.

Mr Villeneuve: With re-regulation or deregulation, whichever, there are considerably fewer hearings, I gather.

Mr Smith: Yes.

Mr Villeneuve: And freedom of information at this point is a lot less of a problem for you than it might have been prior to re-regulation.

Mr Smith: It is certainly less of a problem, because we have fewer hearings and fewer objections. It is also less of a problem because we have the decision of the commissioner, which sets a precedent for our particular facts situation. Mind you, the minute you change the facts situation, you may have to go to the commissioner again. That is why I suggest it is not the practical approach. But certainly I would say that the procedures we finally adopted were as a result of complying with the new legislation on deregulation rather than trying to comply with FOIA.

Mr Villeneuve: I know there is great concern about American carriers coming into Ontario and a reciprocal arrangement not being available in certain jurisdictions in the United States. Is the freedom of information act detrimental to our Ontario truckers in obtaining information on what may be going on with competition?

Mr Smith: Not that I am aware of. It is not an area they would come to me for, on a general broad scope.

The Chair: As there are no further questions, and the next witness does not appear until 3:45, I move that the committee adjourn until 3:45.

Mr Owens: Just one item of business before you do that. In consultation with the other two members of the subcommittee, as the minister is not scheduled to appear until 3:45 and we would finish at 4 o'clock, that would only allow us 15 minutes for questions. I would like to suggest that we give each party 15 minutes for questions. If the minister speaks until 4, that would take us to about 4:45, if that is agreeable to the other two parties.

Mrs Marland: It is agreeable, of course, but I had no idea that when the minister was coming it was only for 45 minutes. I am somewhat surprised. I knew the time was scheduled for 3:45, but I was not aware that the committee hearing was scheduled to finish at 4, even at 4:30. It seems we have had a lot more time with -- I do not want to say less significant people than the minister, but my goodness.

Mr Villeneuve: You did not say it.

Mrs Marland: Would you not think we would have at least the same amount of time with a minister as we would with any other individual? That is the way I intended my comments to be taken, Mr Chairman.

Mr Owens: I am not in any way, shape or form trying to restrict --

Mrs Marland: I know you are not.

Mr Owens: I am trying to establish some sort of format so we all have a crack to ask questions.

Mrs Marland: Was that the only time he could come? Is that why we are so limited?

Mr McClelland: I just want to say for the record that I am in agreement, given the constraints, recognizing the constraints. I also want to say that we are certainly not bound, from our party's point of view, to adjourn at 4 or 4:45 or whenever. It is our position that we are available and prepared to work as late as necessary and put in as much time as is required. We would share the opinion of the third party that ideally we would have at least as much or more time with the minister. If that is not the case, our hands are tied; we will allocate the time equitably, whatever time is available. But for the record, we are not looking at a 4:30 adjournment. My agreement was given the constraint of 45 minutes. If it is an hour, an hour and a half, we are prepared to operate within whatever time frame is available.

The Chair: Whatever is the wish of the committee.

Mr McClelland: May I suggest by way of procedure that we put it to the minister when he is here and ask how much flexibility he has on the back end of his time? If he is able to stretch it a few more minutes, so be it. If not, I will recognize the limitations and operate within those limitations and, if necessary, come back at a later date.

Mr Owens: My intention was not to constrain or funnel time. We do not know at this time how much time the minister has, but I am in agreement that we will go until 7 o'clock tonight if we have to, to get the information required.

The Chair: Any further business? Thank you, Mr Smith, for appearing today. The committee is adjourned until 3:45.

The committee recessed at 1434.



The Chair: Seeing a quorum present, I would like to call this meeting to order. I would like to welcome the Honourable Mike Farnan, the Solicitor General, here this afternoon. Minister, the floor is yours.

Hon Mr Farnan: I have to tell you how nice it is to be here. I hope my colleagues will remember how nice I was to ministers when they appeared before parliamentary committees in the past, and of course that will carry over into the present. I look forward --

Mrs Marland: Those of us who travelled with you on committee remember the good times.

Hon Mr Farnan: That is fine. Mr Chairman, maybe you could clarify for me. What are the terms of reference of what you are looking at from me this afternoon?

The Chair: Basically, we are reviewing the Freedom of Information and Protection of Privacy Act, 1987, although it has been indicated that we are broadening that scope and are briefly looking at the municipal act as well and anything that is relevant in that act to the provincial act. Am I correct in that assumption?

Mrs Marland: Yes.

Hon Mr Farnan: That is fair enough. Let's see where we are at. I am appearing as Solicitor General, I suppose, and in so far as these privacy acts relate to the area of responsibility within the orbit of the Ministry of the Solicitor General.

The legislation has worked well, in so far as policing is concerned, for a period of three years at a provincial level. The Ontario Provincial Police has been subject to the provisions of the freedom of information and privacy legislation for some three years. They have been working with the legislation and, over a period of time, given the fact that they have experience in dealing with the legislation, found a comfort level they were able to work with, and were able to release what appeared to be an amount of information which gave the public the right to know and to a great degree facilitated the media in doing their job.

As we are aware, the legislation with regard to freedom of information and privacy kicked in at the municipal level on 1 January of this year. I think we can say there was some difference of interpretation of the act at that time.

Obviously, this legislation, when it comes to release of information, calls for a case-by-case determination. Essentially, it is a piece of legislation that calls for some balance, and the balance has to be struck: on the one side of the equation the public's right to know, and on the other side of the equation the protection of the privacy of the individual. Obviously, in every case this calls for a judgement call.

As I have said, it is the kind of judgement call the OPP has been making for some three years, bringing to its decisions basic professionalism and good common sense. It is not the sort of situation where one can give a directive which says, "This is the circumstance in which you release this information," because in fact we are talking about an equation where, if you had one piece of information or change one piece of information, it may result in a different decision. So to a great extent we are reliant upon the judgement that has to be made, but a judgement that is made in a context. The context, as I have put it to you, is, as far as is possible, to enhance the availability of the information so that the public has the right to know, the media have the opportunity to do their job, but the individual's privacy is protected when there are compelling reasons for doing so.

We can say very clearly that the legislation should not be interpreted as a gag order. Where there is an interpretation which suggests that we will not release any information, that very clearly would be an inappropriate interpretation of the legislation. Furthermore, where there is no judgement being used, where it says, "It's open season; every piece of information is clearly open," that is an inappropriate interpretation of the legislation.

I think the previous government, through Management Board of Cabinet, put together the legislation and set out in the legislation the circumstances and the limitations. But the matter has to be determined by police services boards and managers, and this determination has to be done with regard to the guidelines for disclosure of personal information held by the law enforcement agencies.

These were developed, I want to remind the task force, by representatives of the Management Board of Cabinet, the privacy commissioner's office, the Ontario Association of Chiefs of Police -- it is rather significant that the Ontario Association of Chiefs of Police was a partner in the development of these guidelines -- and the Ministry of the Solicitor General and the Ministry of the Attorney General. I have to re-emphasize very clearly that the legislation properly belongs to the Management Board of Cabinet, and the legislative guidelines that accompany the legislation were developed by this umbrella group.

I think perhaps I will leave it at that, perhaps emphasizing again that the guidelines recommended that there be a strong privacy interest in personal information about a victim and that the guidelines are just that, that they are not determinative of the question of release in any particular case. The general intent of the guidelines is to balance the need to protect privacy of the individual against the public right to gain access to information held by government institutions.

I have made the point that the release of information is possible where there are compelling circumstances affecting the health or safety of an individual, where there are compassionate circumstances, where there is a compelling public interest in the disclosure, where the victim consents to the release, where the information is a matter of public record and where the disclosure does not constitute an unwarranted invasion of privacy.

There are a host of rules set out in the legislation which an institution must respect and invoke in determining whether or not a particular disclosure or category of disclosures represents an unwarranted invasion of privacy, and the decision to disclose in every case must be made by the head of the institution as defined in the legislation or the delegate of the head of that institution. Should there be a dispute over a refusal to disclose, a person requesting the information, as you are aware, may appeal a refusal to the Information and Privacy Commissioner in accordance with the appeal provisions of the legislation.

I am sure that members would agree that whenever you have a new piece of legislation, there is sometimes a period of acclimatization with that legislation, a period of time in which people have to get used to dealing with the legislation, a period of time when a comfort level is gained. I think our experience with freedom of information and privacy at a provincial level very clearly was such.

I remind the committee again that on a provincial level, as far as policing services were concerned, the OPP had a successful experience with the legislation, had no serious difficulty, and there was quite a comfort level in having a significant level of enhancement in terms of making the availability of the information available to the media and to interested parties. However, during that period of time there were occasions when for good cause, for good reason, a particular piece of information was withheld. I think we will leave it at that.


I should say to the committee, I know you were joking when you were suggesting that we would be here until 8 o'clock. I would not want any of you to have your supper burned before you got home and neither would I like mine. I do have another appointment but I hope that by staying until a quarter to five, we will be able to answer most of the questions.

The Chair: Thank you, Minister. The normal rotation again this time would start with the official opposition.

Mr McClelland: Minister, thank you for accommodating us this afternoon in being here. You indicated with respect to the Ontario Provincial Police and the implementation in 1987 that a comfort level developed over a period of time. That was early on in your comments. Then you suggested, if I am correct, that there was not as much controversy or difficulty in terms of coming to grips with the implementation with the OPP as has been apparent with some of the municipal forces more recently, indeed in the past month, a few weeks particularly.

I am wondering if there is any reason that you might be able to speculate on why it is that the implementation with respect to the OPP went more smoothly, notwithstanding the fact that the comfort level was developed over a period of time. There seem to have been a few hurdles, significantly more hurdles in terms of implementation at the municipal level with respect to regional police forces and Metro by way of particular example.

Hon Mr Farnan: First of all, I want to commend the member for his personal contribution to the debate in terms of the freedom of information and privacy act. I think the member's public comments are the type of comments that help to facilitate resolution of this particular issue and to build towards an implementation that would be satisfactory for all of us.

Let's put it this way: During the first week of January, there was some disagreement in interpretation of the legislation. I think that is a fair assessment, a fair statement to make. There were differences of opinion and certainly publicly expressed differences of opinion between different police forces as to how they would interpret the legislation. But that was in the first week of the legislation. We cannot be really paranoid if during the first week of the legislation there are these differences of interpretation.

However, I have to be frank with you and say that when I discover a difference of opinion in interpretation of a piece of legislation as it applies to policing services in the province of Ontario, I consider that a problem and I recognize it as a problem. I think publicly I agreed, yes, we have got a problem here and I made a commitment that I would attempt to facilitate a clarification that would hopefully bring a more uniform interpretation to the legislation.

Now, obviously I have to put this in the context that this is legislation drafted by the Management Board of Cabinet, that the guidelines that accompany the legislation are produced by the Management Board of Cabinet, but certainly it has effect on policing. My responsibility is to monitor its implementation within the policing area and if there are wrinkles, if there are discrepancies, to see if my office can facilitate working those out.

We had some dialogue with the leadership in the policing area. I and my officials met with some of the leadership within the policing area. We had an internal review of the guidelines to analyse what it was we could do, but the bottom line has to be that the legislation properly belongs to Management Board of Cabinet. So we went back to Management Board of Cabinet and we worked with that group to produce a summary of the guidelines. I think we can say that that summary is an attempt to present in a simpler form and in more layman's language an overall view of the guidelines.

I will be having my officials send these out. It is already completed at this stage and it has gone back. I should tell you that we went back to all of the people that I mentioned earlier, Management Board of Cabinet, the privacy commissioner's office, the Ontario Association of Chiefs of Police, the Ministry of the Attorney General. We did what we felt we could do from my office in facilitating the process of getting a uniform interpretation and we have put together that communication. It is already completed and I anticipate it will be sent out to the chiefs of police, if not this afternoon, tomorrow.

Mr McClelland: You indicated at one point, at least you are quoted in the press and we will presume until we hear otherwise that it is reasonably accurate, that you felt that you could iron out the wrinkles by the end of the month. Then you subsequently said: "I want to meet with chiefs and try and work it out. Perhaps a six-month time frame is more appropriate." You revised that position and said, "I'm going to submit a report to Management Board," as you indicate that you have done.

Hon Mr Farnan: No, okay, let me --

Mr McClelland: Can you let me follow through with this?

Hon Mr Farnan: Yes, sure.

Mr McClelland: Thanks, Minister. I guess what I am driving at, regardless of the sequence there, regardless of the time frame and how you would seek to approach it, at some point in time you are saying, if I understand you correctly, that as Solicitor General you are going to take some responsibility in terms of how police forces across the province are going to deal with the application of this piece of legislation.

Bearing in mind that we have had that experience, we have had the lead-up time, over three years with the experience of the OPP, we had three years to go to school on it -- indeed you had approximately three months in office -- to lead into it, anticipating that there could be problems, I am wondering in terms of time frame now of your going to Management Board with your guidelines, is there some point in time when you feel you can say that, notwithstanding the fact that the guidelines are in the purview of Management Board, "As Solicitor General, I have to accept responsibility for the interpretation and implementation and deal with it in a fairly concrete, definitive manner so that there is consistency across the province"?

Hon Mr Farnan: Absolutely, yes, that is our goal. But you have wrapped up quite a piece of information there.

Mr McClelland: Unfortunately I would like to have done that about five questions ago.

Hon Mr Farnan: Let me also say that in a rather clever way you perhaps suggested that there was some ambiguity in the messages I was sending out. I want to be very clear. How the press reports issues -- I cannot be responsible for that. From the very start as Solicitor General, I recognized that yes, there was a problem. I did on one occasion suggest to a reporter -- let me put it exactly in the context. When approached by a reporter in the first week -- the legislation now is three days old and I am asked, "We've got a real problem here" -- my reaction was: "Look, the legislation is three days old. You know, that's not a big deal at this stage."

If we still had the variety of interpretations six months from now, I would consider we had a real problem on our hands. If that is interpreted as you interpreted it, as changing my view, there is nothing I can do about that, but my position has been very consistent. If I recognize a problem in policing, I want that problem resolved as soon as possible, and when I said I would attempt to have an internal review within a month, I have attempted to keep to those time lines.

We may have missed the end of January by a couple of days and I hope people will forgive us for that, but I think we have kept reasonably within the guidelines that I set out that we would respond within. In that month, let me tell you, legislation kicked in on 1 January, so let's presume there are a few days in which you recognize there is a problem. So within the three-week period, we have had the internal review, we have had consultation with all these partners, we have come together with a package that we are sending out. Over a three-week period, as government works, I would suggest to the member, that is probably a pretty fast response.


Now, what is the long-term goal? I want also to make it very clear to this committee that this is not a matter of one ministry wanting to wash its hands of an issue. All we are simply saying to the committee is, the responsibility for this legislation properly rests with the Management Board of Cabinet. All of us in different ministries, whether it is in Education or whatever, or in municipal government or in policing have a responsibility as to how it impacts on our particular ministry.

My office will continue to work with the policing services division of my ministry. It is not saying: "We are sending out a clarification today. Now our job is finished." We are sending out this clarification hopefully and saying to our partners in policing, okay, we notice already, and you notice I am sure, that there have been adjustments in the positions that some police service boards and police leadership have taken since 1 January. There were areas where no information was forthcoming, and now the location is being given and the time and some of the circumstances. Already we can see some accommodations being made.

But I would say to you that we are going to continue to work with them. We will monitor the situation in policing. We will have an ongoing dialogue. My police services division will be working with the police services across the province and we will be reporting our experiences back to the Management Board of Cabinet.

If anything, I would say to you that it is not even the Management Board of Cabinet alone that will hold a responsibility for the legislation; it is the government. That is where, as we all know, responsibilities are given out. I have certain responsibilities, but it would be absolutely inappropriate for me to suggest that I am going to change the freedom of information act when it properly belongs to Management Board of Cabinet.

I think what has to happen is that each ministry will see how it applies to its particular ministry, and as we get experienced, we will try to work within our ministry to resolve the problems. At the same time we will constantly feed in that information to Management Board of Cabinet which, through their umbrella group, can also have a hands-on feel for what is happening to the legislation across all the fields of government.

Mr McClelland: Minister, time has almost gone. I learned at your feet how to put two questions into one, so I will break it up and you might be able to respond.

You indicated that it is indeed a subjective interpretation and in the final analysis the chiefs of police are going to make decisions across the province. It is difficult to work in a hypothetical and to answer what-ifs, but I am going to exercise that and I know you will respond.

Hon Mr Farnan: I think you will waste your time in that exercise.

Mr McClelland: But let me put the question and you might respond accordingly, Minister. If the situation exists, I know that you are confident that it will be able to be resolved, but given the fact that there is a possibility that there would be, and I would even go so far as to say a probability that there will be, different applications of interpretations from place to place across the province, would you feel that it would be appropriate at some point in time for an individual out of your office to accept the responsibility in terms of what kinds of information in setting directives, if you will, recommending amendments to the legislation that would put the responsibility where it perhaps ought to be, having consistency across the province with the senior police official of the province -- that would be the individual who occupies your office?

As an adjunct to that, how would you respond to the philosophical position that would be put to us from our friends in the press that perhaps things were working very well when they were given the responsibility and accepted it, quite frankly, very well in terms of their professional conduct in using their discretion and their sensitivity in being given a broad latitude rather than a narrow latitude, to be given significant amounts of information, effectively unrestricted, on the terms of security issues, but given all that information? And they had exercised discretion, I would say, extremely well over the number of years.

It is really two-stage, but they mesh one with another. Would you think that at some point in time, if it comes to that, you would be prepared to say that the Solicitor General, he or she, must ensure consistency across the province and therefore that the decision ought to repose in your office?

Hon Mr Farnan: Well, I want to go back to the comments that the former Solicitor General, Mr Offer, made; to the comments that the minister responsible for the Management Board, Murray Elston, made. In recognition of some of the difficulties that were out there initially, both of these former ministers of the previous government, said, "Hey, maybe this legislation can be interpreted a little bit more liberally."

Mr McClelland: Use that word very advisedly.

Hon Mr Farnan: Of course, okay. And maybe gag orders are not appropriate, and maybe we need time. I think Mr Elston's comments were, "You know, we need time with this legislation." That is why, in my view, as this committee looks at the Freedom of Information and Protection of Privacy Act, it makes good sense to look at what happened at the provincial level and make your determinations on that. It is very difficult, I would suggest to you, to make a determination as to what has happened within one month at the provincial level. Mr Elston claimed that, given time, there would be a more balanced and more uniform approach to legislation.

I respect the media for the job they do. I think that indeed they have demonstrated a responsibility in the manner in which they have released information. But I think we would all agree that indeed there is a situation in which individuals feel that they have a right to the privacy of information and protection under the law in terms of the release of that information.

As a government, I think we are conscious of the fact that it is legislation we inherited. I am not prepared at this stage to suggest whether it is perfect legislation or not. All I am saying is that I am working with the legislation, I am working with police services in order that we get a uniform application of the legislation across the province, and I am keeping my colleagues at the ministry, at Management Board of Cabinet, informed and will continue to do so. We are simply one month into the legislation, and I am pleased that my ministry has taken what I believe is a fairly proactive situation. As soon as we recognized that there was a concern, we took responsibility, we had internal review, we had dialogue among partners, including the associations of chiefs of police, we reported back to Management Board of Cabinet -- and we have a very tough Chairman who has just signalled the time. I am finished.


Mr McClelland: I regret that our time limits form a constraint.

Hon Mr Farnan: Likewise.

The Chair: I allowed a few extra minutes there. If the members posing the questions and the minister could shorten their questions and shorten their answers, we may be able to get in more questions.

Mrs Marland: Mr Solicitor General, what I hear you talking about is uniform interpretation, uniform application. You are going to monitor, it is going to be an ongoing dialogue, and it is a judgement call. These are some of the things you have said this afternoon.

Hon Mr Farnan: If I could stop you there before you -- you premised your questions on that summary. What I have tried to say, and maybe I did not say it, is that what I am attempting to achieve is a greater uniformity in the interpretation and application. There can never be uniformity, as the member will acknowledge, because we are dealing with the issue on a case-by-case basis. There are probably no two circumstances which are exactly the same.

Mrs Marland: I understand that.

Hon Mr Farnan: Okay.

Mrs Marland: And I think I understood, if you would let me finish, what you are saying. You see, what you are not saying, as I hear it, is that you are prepared to bring forward even any guidelines. Am I correct?

Hon Mr Farnan: Guidelines have already been brought forward, as you are aware. The guidelines that accompany the act were brought forward, and what I have said was that I reviewed the guidelines, had a consultation with all of the partners who are responsible for the guidelines --

Mrs Marland: You are talking about the guidelines that are part of, inherent in the bill.

Hon Mr Farnan: Yes.

Mrs Marland: Yes, well, what I am talking about are the guidelines that are obviously needed that have now been addressed by the people who have to enact the legislation.

My concern, from what you have said so far this afternoon, and maybe it will change, is that you are saying it is a judgement call. Now, a judgement call by anyone in any circumstance is based on his own window of reference. So your judgement call as chief of X force might be quite different from my judgement call as chief of my force. I really feel, in this day and age, the question is, who is going to be willing to step forward over that edge if he does not know how deep the water is? And who is going to know the answer to that until somebody challenges in the courts exactly what the interpretation is?

I want to add to that the fact that, as you know, as of yesterday we now have three Court of Appeal judges who unanimously have supported three Supreme Court judges' decision of last August to allow a female citizen in Toronto to sue the police force for the fact that she was not protected. Now, I think it is significant. I just want to read this to you and ask you what you think about it, because I think this is critical in your responsibility of dealing with this problem not six months from now, but now.

In this particular incident: "The rape victim's lawyer" -- and I am quoting from the Toronto Star -- "argued that her client was used as bait to try to catch Paul Douglas Callow, a criminal known as the `balcony rapist.' Callow was sentenced three years ago to 20 years in prison for knifepoint sex attacks on five Toronto women from 1985 to 1986."

Now, this is the significant part that I would like you to comment on:

"The victim's name was on a police list of women living in the area of Church and Wellesley streets who were in particular danger of attack, Cornish has said. Yet Jane Doe was not warned about the rapist.

"`Police were aware of the danger she was in and failed to warn her and failed to protect her,' Cornish said. `There was a duty to protect her and to prevent the crime.'"

I wonder what your reaction is to that, because here we have now six judges who agree on the right of this individual to sue the police. We have a situation -- I assume, and I cannot speak for the police; I can only read some of the comments that they have made in here -- that is not something that can be challenged under the charter. This is what the police lawyer is saying, and my question to you is, if the privacy of the individual is being protected and the risk is still there -- because in this case the privacy and the details of what was going on in that community were being shielded, the community was being shielded from this information by the police, and I assume we can only guess some of the reasons the police made that decision. I am not going to say on the record some of the reasons I think they have made that decision, but where do you see in your role with this legislation, if you are going to allow police forces to make their own interpretations? First of all, do you think that decision is right in that particular case and how would you then interpret their judgement?

Hon Mr Farnan: The variety of questions that you have asked -- first of all, you suggest that each person sets his own parameters. That is not true. There are guidelines in terms of what those parameters are, and very clearly there are obligations in terms of the release of information in certain circumstances. Those decisions have to be made and, as I said, on a case-by-case situation, and you have to factor in all of the information.

Basically you said yourself you do not know what all the circumstances were in which the decision was made. I would be very reluctant to say to the member that I would hate to criticize a judgement call if I made the same statement as you and said, "I don't know all the reasons why a decision was made, but I know it was wrong," and I would say to you that in terms of this legislation, based on all the information available, that is what the decision has to be made on. If you add or take away from the information available at the time, you could in fact change the interpretation.

Mrs Marland: Okay. Let's move away from that case; let's just say "in general." In your position of Solicitor General as it pertains to this legislation, would you not have a basic guideline that would suggest, where the public is at risk, that the public should be informed of that risk?

Hon Mr Farnan: Again, we have to go back to the legislation. We are not dealing with something nebulous. We are dealing with a piece of legislation that was produced by the previous government that basically has a set of guidelines attached to that legislation that has worked well at a provincial level for three years, that had an initial, tentative introduction during the month of January at the municipal level as it applies to policing, and I would say that perhaps it is somewhat premature. I am not going to say that the legislation is perfect, but all I can say to you is that at a provincial level the legislation has worked, and worked well.

Mrs Marland: Mike --

Hon Mr Farnan: If I may finish, I would suggest to you that one month into the legislation is not the time to make a sound evaluation of the legislation. I think I have said to you that I will monitor it very closely. Within one week of the legislation being in place, I said of the policing services across the province, "I will do a stocktaking. I will do an internal review. I will go back and I will consult with all of the players who produced the legislation. I will attempt to have a clarifying statement within a month." That clarifying statement will be in the public domain either this afternoon or tomorrow.

I think that is a responsible approach to my duties as the Solicitor General, and it will not end with the issuing of that piece of information. It will be ongoing. I can give you my commitment that I will be working with police services, police leadership across the province, and we will continually monitor. I promise to take the concerns that are registered by policing services personnel very seriously.


Mrs Marland: What about the concerns of the public?

Hon Mr Farnan: Absolutely, but I am here as Solicitor General. The overall legislation has effects on policing, on the public, on victims. It comes across in many, many ministries. There is an umbrella at the head of which is Management Board of Cabinet. In so far as I have a responsibility within the policing area, I will take on that responsibility. But the whole legislation, I would point out to the member, is the responsibility of the government. I want to see how it works. I want to give it a reasonable amount of time so I can make a mature judgement and not a hasty judgement. I believe that one month after the legislation was introduced would be an immature judgement.

The Chair: I would like to remind the minister to keep his answers reasonably brief so we can get some more questions.

Hon Mr Farnan: Margaret has an effect on me somehow.

Mrs Marland: Mike, you are the top cop in this province, and you cannot hide behind the statement that this legislation was legislation of a former government. It is the legislation of the government of the day.

Hon Mr Farnan: Absolutely.

Mrs Marland: Okay. And you are talking about a clarifying statement that is coming out. You are talking about listening to police forces. There is not anyone in the Legislature who has more respect for the police forces in this province than do I. I have made statements in this House about that. This is not a criticism of the police forces. This is a criticism of the fact that we have a case -- admittedly, it is four years ago -- where five women were sexually attacked, raped, within a one-year period.

I am simply asking, in the public interest, if that were the case today, would you sit back and monitor, with an ongoing dialogue, and all these words you are using this afternoon, when it is blatantly clear that if the guidelines that came with the legislation were so good there would not be all this diversity of interpretation that is going on currently?

Also, in this specific case we are using as an example because it happens to be in the press today -- but God knows, unfortunately these cases are not a biannual event; we have cases like this all the time where the public is at risk -- I am simply saying that in this particular case we now know that information affecting public safety was withheld. That much we know, and that is the reason the police are now going to be sued.

What I am asking you is: Are you going to sit back and monitor something that is as blatantly simple as -- giving an example of where the public is at risk, if there is a child molester in a community, do you not think that community is allowed to know that? They do not have to know the details of the victims at all, but I think parents in this province today should be able to know, through the release of information from police forces, if there is a sex offender attacking children, if there is a rapist attacking women, if there is a series of violent crimes being perpetrated on the public in certain communities, surely a basic guideline would be that that kind of information is released to the public.

Hon Mr Farnan: And that kind of information would indeed be released to the public. If, for example, you have rape taking place in a particular community --

Mrs Marland: But we did not have it under the old legislation.

Hon Mr Farnan: I am saying to you that under the present legislation, the actual crime can be reported, the general neighbourhood can be reported, and indeed the community can be protected with the release of that kind of information.

Mrs Marland: If that particular police force --

Hon Mr Farnan: Excuse me, let me finish.

Mrs Marland: -- chooses to.

The Chair: Through the Chair, please.

Hon Mr Farnan: Mr Chairman, I would appreciate if the member would give me the same courtesy I gave her.

The reality of the matter is that it is possible. Not only is it possible, it would be a reality that using this present legislation, the community would get that information, but they may not get the names of the actual victims. They might, under some circumstances, but certainly within that neighbourhood, within that community, there would be awareness of that particular type of crime having been committed.

The other point I would like to make before I conclude is that I do have a little problem with anybody in the Legislature who presumes to suggest that they love police services more than anybody else. I think we all respect the police and we all respect the job they do and we all want to make their job as valuable as it can be, and that is why we are all going to work with them to ensure that they have the resources in which to do it.

The Chair: Time for one quick question.

Mrs Marland: Well, I have had 16 minutes and the former speaker had 20.

My comments about policing in this province were my own comments to preface what might otherwise be interpreted as a criticism of the police forces. I am simply asking you, as the top cop in this province, why you would not issue realistic parameters for all the chiefs of police so that every one of their personnel is not going to be at risk of being sued because this legislation has to be interpreted. That is the focus of the problem we are dealing with here --

Hon Mr Farnan: In the act itself --

Mrs Marland: Excuse me. If we are saying -- I am only going by what you have told us this afternoon. You have told us it is a judgement call. Those were your words. I am simply saying, by whom? What protection does my chief of police have when he makes that judgement call and somebody questions it? On the other side of that, if the judgement call is not to release pertinent information in the interest of public safety in this province, are you as the top cop going to step forward and say it is compulsory that that information be released? I am not asking for victims in any of these circumstances. I want to make that clear, although I have already said that.

Hon Mr Farnan: Talking about public safety, in the legislation itself, on obligation to disclose, in section 11 it reads: "Despite any other provision of the act, the head shall, as soon as practical, disclose any record to the public or persons affected if the head has reasonable and probable grounds to believe that it is in the public interest to do so." And that "the record reveals a grave environmental health or safety hazard to the public."

Mrs Marland: And who interprets those grounds?

Hon Mr Farnan: That is in the act itself.

Mrs Marland: Mike, who interprets the grounds?

Hon Mr Farnan: That is not in the guidelines. That is not a loose case you are looking at. This is a case where you have described what is very clearly what you believe to be at risk.

Mrs Marland: Well, one final question, then.

Hon Mr Farnan: The act itself would respond to that and say that under those circumstances there is an obligation to disclose. There is no judgement call in that particular case.

Mrs Marland: Mr Chairman, my final question to the Solicitor General is: If that is so, why has there been so much concern since that bill was published and proclaimed? You are saying it is in the legislation, it is perfectly clear, it is up to the chief to interpret it. If that is so, why has there been so much concern about this legislation, and why are you not willing to remedy it now rather than wait and monitor it?

Hon Mr Farnan: In some cases there is an obligation to disclose, it is not a judgement call; it is very clearly enshrined in the legislation. But there are going to be some cases where there is going to be an element of interpretation. I point out to the member that in those cases where you dealt a judgement call that has been made, there is resource to appeal that judgement call and to have another opportunity to access the information. But in some particular --

Mrs Marland: But you should protect your chiefs --

Hon Mr Farnan: Excuse me.

Mrs Marland: -- by not leaving them out on the line.

Hon Mr Farnan: In some particular circumstances, I remind the member, the legislation says very clearly that there is an obligation to disclose, and the public being at severe risk in a circumstance such as you describe obviously meets that definition.


Mr Owens: Will the statement you are in the process of releasing this afternoon be a directive to police forces about how to apply the legislation? Can you give us a general idea? Perhaps it may clarify some of the confusion we have heard here today.

Hon Mr Farnan: No, it will not be a directive. I think we have to state that. It is not a directive. The legislation requires those entrusted with the responsibility of making the decisions with regard to the Freedom of Information and Protection of Privacy Act to find a balance between the public's right to know and the protection of the individual.

Were we to issue a directive which said, "This is it," we would be presuming that each case is exactly the same, and indeed, the reality of the matter is that there is a variety of circumstances and there is a variety of consequences to release of information.

I think we have to accept the fact that we will, as far as possible, work with police services across the province. We have had ongoing training courses, where those who are involved in the process have had the opportunity to be involved in intensive training courses in the application of the act. Obviously, as we gain more experience there will be a sharing of these experiences, and hopefully we will find a greater uniformity of interpretation. That has to be my goal as Solicitor General.

At the same time, working as part of the government and with the minister responsible for Management Board of Cabinet, we will want to monitor how this act is working, not only in policing but at the municipal level and in other areas. As with other legislation, it has not been uncommon that after 18 months or two years, a government will look at a piece of legislation and say: "There are some legitimate concerns here. There's something we can change that can improve the system." But I have not found too many governments which have said: "This act has been in place 30 days. We'd better change it now."

The reality of the matter is that we are working with the legislation, we are working proactively to make it work, to give the kind of support system to those who are responsible for the legislation to do the very important and vital task being asked of them.

I have great confidence in the policing personnel of this province. I am very confident that the professionalism they bring to their job and the good judgement police officers have -- they do not shy away from a tough job. Nobody said policing was an easy job, and it is not an easy job. This demands good judgement and it demands professionalism, but I think we have the kind of police personnel who can address that challenge and I think the legislation may very well work. We know it has worked at the provincial level, and -- I repeat -- it is premature to presume, 30 days into this legislation, that it is not going to work at the municipal level.

Mr Owens: I guess that leads me to question why has there been such an outcry and such a monumental wall of feeling put up against this legislation municipally, when in fact the provincial legislation, to my understanding, passed with barely a whimper or a cry, but on a daily basis, starting 1 January, we were faced in the press with stories of problems and potential suits and things like that. I am wondering why this problem has arisen.

Hon Mr Farnan: I would have to feel that there has been an initial sense that perhaps access to information, far from being enhanced, was in fact being reduced. We would be silly to deny the fact that if the initial approach taken by, I would say, a very small number of police forces was to say, "Okay, we're not giving out any information" -- there were one or two that took that particular stance -- obviously that creates a climate out there. I think the media would have just cause because without some access to information and indeed without reasonable access to information they cannot do their job and in many cases the public would not be receiving information that they have the right to have, as Margaret has pointed out. But that was an initial response. That was a response within the first couple of days. I think you would be hard pressed to find today a police force in Ontario that is saying there will be no information given out under this act.

I think the reason there was such a stress level in those early days was that there was the fear of this blanket interpretation, which as Solicitor General I find inappropriate and would not accept as a reasonable response to the legislation within policing. I am happy to say that policing services, policing leadership, as they grow more accustomed to the legislation are feeling more comfortable. I think we are getting a greater degree of uniformity. But I would also be reluctant to suggest that there is not a great deal more work to be done. We have to continue to share, continue to gain by our experiences and share those experiences across the province and continue to monitor the legislation.

Mr Owens: I think that from time to time we have all wrestled with the same kinds of questions that the honourable member has posed with respect to public safety and information. The Victims of Violence association made comments somewhere around the first or second week of the implementation of the legislation that by not releasing victims' names, it becomes a faceless crime and there is no personal identification or level of empathy with the victim of that crime. I guess that with respect to any kind of instructions that you have passed on to Management Board on the release of victims' names for other than crimes involving sexual assault or crimes involving children, I am wondering what type of philosophy you as the top cop have embraced with respect to that kind of release of information in your directions.

Hon Mr Farnan: Let me say to you that I had a conversation with John Bates of People to Reduce Impaired Driving Everywhere just the other day. John Bates is president of PRIDE, an extremely dedicated man involved with the victims of accidents, etc. For example, he felt that there should be some protection for victims. That was his position. He informed me that he approached the media in terms of his views, and that there was very little reflection of his views in terms of that there should be some protection of victims.


I would suggest that here is a man whose entire life is dedicated to working with victims and he is saying to us that in some circumstances there is a right to privacy for victims. There is no doubt that there are occasions when for particular circumstances the decision might be made -- with all of the information, all of the background, all of the factors -- where a victim's name may be released. But there will be circumstances under this legislation where the victim's name will in fact not be released.

I suppose only time will tell. We are in the early stages of the application of this legislation. I think we are making progress. I, as Solicitor General, am committed to working with policing services and the leadership in policing, and indeed the government with the opposition. I started off this meeting by saying how pleased I was with the kinds of positive, constructive comments that were made by the previous Solicitor General, Mr Offer, and by the previous Chairman of Management Board of Cabinet, Murray Elston.

That is the kind of positive input, constructive input, coming from opposition members that can help to bring about a positive resolution and to make the legislation workable in so far as it can be workable. Attacking legislation simply because you are attacking legislation, in my view, is not a constructive approach. If there are problems with the legislation that are going to emerge, I think this

government is mature enough to say, yes, there is a problem with this legislation. After a reasonable period of time, we can make a mature judgement on it and implement an amendment that may improve the legislation, but one month into the legislation, let's be real, let's give it a chance, let's work with it to make it as workable as possible.

Mrs Marland: The bill is three years old.

Mr Fletcher: On a point of order, Mr Chairman: There are questions going back and forth and I know that this side has the floor.

Mrs Marland: No, it was just a comment that the legislation is three years old.

The Chair: It was just a comment, Mr Fletcher.

Mr Owens: With respect to the consultation that is ongoing now, you mentioned the chiefs of police. Who else or what other groups are you consulting with, as it tends to be that at two o'clock on a Saturday morning it is not necessarily the chief of police who is sitting at the desk when the Toronto Star calls for details of occurrences? Are you consulting with the average foot-patrol person? You are obviously talking to PRIDE, but Victims of Violence, rape crisis centres and things like that with respect to this legislation, for clarification of --

Hon Mr Farnan: It is a very high priority in terms of the Ministry of the Solicitor General. Again, I have to commend the previous government. It set up a very good consultative process with all of the partners in policing, not only policing services themselves but communities that are being policed, including victims.

I would like to say that it was my initiative that created this great consultative process that is in place, but I commend the previous government. They set up that kind of consultative process which is in place and which brings our ministry into partnership with all of these people. We are simply continuing the good work that the previous government did in this area, and we will continue to do that.

Mr Owens: Which party did you say you were from?

Just one last question: Do you have any idea of a time line in mind for guidelines or potential amendments, or are you just taking a wait-and-see-what-happens approach?

Hon Mr Farnan: I would hardly say you could characterize our approach by wait and see what happens. Within one week of the legislation being in place we were talking to policing services and policing leadership and saying, yes, we recognize there are some concerns. We had an internal review. We discussed with the umbrella group that was responsible for the guidelines. We have attempted to make a communication, which is going out today or tomorrow. We want to work very diligently with our policing services on an ongoing basis.

It is not a matter of we are going to drop people out there into the whole domain of freedom of information and forget them. Training is a vitally important part of this process. We had training prior to the implementation of the act at a municipal level. We will continue to have ongoing training. I think what is even more significant is that part of that training will be a cross-fertilization across the experiences that policing services have right across the province. They will be sharing that with each other.

There is nothing that works as well as working with the legislation, getting the experience, getting a comfort level and sharing that with your colleagues in other parts of the province. Maybe there is room for a little optimism. Let's not he too down on ourselves.

The Chair: Are there any further questions? Thank you, Minister, for appearing in front of the committee. As we move to the review of this legislation over the course of this year, we may have a number of questions to ask you again and may ask you to appear back in front of the committee.

Mrs Marland: Could I just request that the committee members receive a copy of the release from the Solicitor General today, please?

Hon Mr Farnan: I will have that sent over to you, definitely.

The Chair: Just before we adjourn, I would like to remind members of the committee that we are meeting in closed session at 10:30 tomorrow morning with the Speaker and the Sergeant at Arms to discuss security.

The committee adjourned at 1657.