Wednesday 1 June 1994

Town of Orangeville legislation

Draft report: Municipal Freedom of Information and Protection of Privacy Act


*Chair / Président: Hansen, Ron (Lincoln ND)

*Acting Chair / Président suppléant: Hope, Randy R. (Chatham-Kent ND)

Vice-Chair / Vice-Président: Wessenger, Paul (Simcoe Centre ND)

Dadamo, George (Windsor-Sandwich ND)

Johnson, Paul R. (Prince Edward-Lennox-South Hastings/Prince Edward-Lennox-Hastings-Sud ND)

*MacKinnon, Ellen (Lambton ND)

*Mathyssen, Irene (Middlesex ND)

McClelland, Carman (Brampton North/-Nord L)

*Morin, Gilles E. (Carleton East/-Est L)

*Sterling, Norman W. (Carleton PC)

Sullivan, Barbara (Halton Centre L)

*Sutherland, Kimble (Oxford ND)

Villeneuve, Noble (S-D-G & East Grenville/S-D-G & Grenville-Est PC)

*In attendance / présents

Also taking part / Autres participants et participantes:

White, Frank, director, freedom of information and privacy branch, Management Board Secretariat

Substitutions present / Membres remplaçants présents:

Elston, Murray J. (Bruce L) for Mrs Sullivan

Hope, Randy R. (Chatham-Kent ND) for Mr Paul Johnson

Wiseman, Jim (Durham West/-Ouest ND) for Mr Wessenger

Clerk / Greffière: Freedman, Lisa

Staff / Personnel: Swift, Susan, research officer, Legislative Research Service

The committee met at 1548 in room 151.


The Chair (Mr Ron Hansen): As the first order of business, we have a letter dated May 27 to the Chair from the Clerk of the Legislative Assembly. He's actually coming to this committee. He writes:

"The town of Orangeville has requested that standing orders 80(e) and 87 be suspended in so far as this particular proposed legislation is concerned.

"Therefore, since the application does not comply with the standing orders, I am referring the application, pursuant to standing order 81, to the standing committee on the Legislative Assembly to consider the town of Orangeville's request for suspension of standing orders 80(e) and 87."

I believe the town of Orangeville wants to have this put through before the House rises so they will have everything in place for an election come November. Mr Sterling, you have something on this issue?

Mr Norman W. Sterling (Carleton): Basically, this is waiving notice. The issue itself will be decided by another committee of the Legislature in terms of a private bill. Therefore, I have no objection to waiving notice in this particular case in order to let the residents of Orangeville know what the exact composition of council will be in the upcoming municipal election. They're not changing the number of people on municipal council.

I don't know whether we're empowered to waive. I see the clerk nodding that we are empowered to waive.

Therefore, I would move that regarding the town of Orangeville private legislation to confirm composition of council, standing orders 80(e) and 87 be suspended.

Mr Gilles E. Morin (Carleton East): I have no objection to the motion, except that I'd like to know if we are creating any precedent. Is there any background on this where we had to face the same situation? Are we opening --

The Chair: A can of worms?

Mr Morin: Exactly. Are we creating problems? That's what I'd like to know.

Clerk of the Committee (Ms Lisa Freedman): A number of years ago I did clerk that committee and we had a similar situation where there was an application that did not comply with advertising. It was slightly different. They had advertised but not for the full four weeks, and that did come before the Legislative Assembly committee and the Legislative Assembly committee did waive the requirement for four weeks of advertising. So this is not the first time a situation like this has come before this committee.

Mr Morin: Therefore, I see no problem at all.

Mr Jim Wiseman (Durham West): Just a couple of things: Would this require legislation in the Legislature for this to be enacted, the waiving we're talking about? Would it take a motion in the House?

Clerk of the Committee: I can check into that in the next few minutes. I don't believe it would. There are two parts. I don't believe 80(e) would. As to 87, if it's introduced quickly, it will probably be on the order paper for five days before it's actually scheduled for committee anyway, so there probably will not be any need to waive that standing order. If there is, it would require unanimous consent of the House.

Mr Wiseman: Do we know if this has been discussed among the House leaders at all to determine whether this can be proceeded with and in what way?

The Chair: We don't know that as yet. The other question is, if we recommend today that we go ahead next Wednesday, will the town of Orangeville put an ad in the paper saying this is going ahead next Wednesday and the reasons it's been waived etc, that it's come to this committee? I think residents out there should know what is going on. Would that be something that should be considered?

Clerk of the Committee: All this committee can do is recommend that we waive the advertising. It would then go back to the private bills committee and it would deal with that in the way it would with any normal application. There wouldn't be any requirement for them to put anything in the newspaper and it would be up to the private bills committee to decide when it would actually be scheduled. It may be next Wednesday or it may be two or three Wednesdays from now.

The Chair: I see. It wouldn't be coming to this committee to be heard. It would still go to private bills.

Mr Wiseman: In that case, I would like to have some time to look at this and determine what the ramifications are, because I've just seen it for the first time now.

The Chair: All of us have. As the clerk has said, this has been done before. As I said when I started, the reason is because of the election coming up in the fall and they'd like to have everything in place.

Mr Wiseman: I understand that and I understand the problem they have. What I don't understand is: Why is it coming to us on June 1? Why did it take this much time to get here? What was the council doing before this? And I don't know what it's going to do in terms of legislation and where it's going to go on the floor of the House and what it means. I'm not going to turn around and say yes to something I don't have any clue about in terms of its ramifications. Do we need an immediate decision at this point, or can we have at least some time to determine what this means?

The Chair: Maybe while the clerk is checking into it, we can revisit this a little later on, keep the motion active. We can pass Mr Sterling's motion at a later date when we have this other information and the committee's fully aware of all the details.

Mr Kimble Sutherland (Oxford): I just want to ask a couple of things. Mr Sterling has put his motion on the floor. It seems to me that either we've got to wait a few minutes, in terms of a recess, for the clerk to provide us with the information to Mr Wiseman's question, or we've got to vote on the motion, or we've got to have some formal process to approve deferring it, correct? Those would be the options as far as I'm concerned.

The Chair: Mr Sterling had to step out for a few minutes. Maybe we could have a recess and get that information back.

Mr Morin: I can understand why Mr Wiseman would ask all those questions. I understand his point of view. It's very difficult for us to speculate about why the town of Orangeville delayed, why it waited so long, why it procrastinated. I'm sure the answer must be very simple. Would it be worthwhile to ask the secretary to come down here and give us the explanation?

It seems to me very simple. They are not changing in any way the number of politicians in the town of Orangeville, so it's only a formality. I understand there is a precedent, that this committee has already approved that type of thing. I hope we don't make it too complicated. That's my concern.

The Chair: Mr Wiseman, if you wanted to ask these questions, if it's next Wednesday that they appear before regulations and private bills, they can be put forward and the committee at that time will decide whether it's going to pass the legislation. We're not saying here that we're going to pass it automatically. It still has to go to committee. It is just waiving the advertising period so they can get this into the House before the House rises.

Would you be satisfied with coming down to the committee and asking those questions next Wednesday, or whenever it's scheduled -- it could be a week later -- before, let's say, June 23?

Mr Wiseman: I am still not comfortable with waiving the time period for them to advertise so they can get full democratic participation of the people of their community involved in this. I'm trying to read through this at the same time this discussion is going on. I don't know if this is a contentious issue in the town, I don't know if there are people who would object to it. By being asked to make this decision now, would I be circumventing the rights of people to be notified that this is being debated and discussed in the town? And what would that mean in terms of the impact on us, and in this place being criticized for not taking due process and due consideration of their concerns?

The Chair: Maybe it's just that it's taken a little while before they've come through. I think page 3 has quite a few of the answers you're looking for, Mr Wiseman. It says:

"The town of Orangeville feels that its residents are satisfied with having council composed of the mayor, reeve, deputy reeve and six councillors. This is based on the question on the ballot in 1991, where 68.18% were in favour of the current system, together with the fact that in the proceedings that were before the Ontario Municipal Board to confirm composition of council, advertising was done, which resulted in only one objection being filed. The objection related to which legislation would govern, the Municipal Affairs or the constituent legislation. The town of Orangeville, by taking the steps of having the private legislation passed, will be dealing with that concern."

I don't think there's much question that the citizens of Orangeville, unless they've all moved out and there are new residents there, have already had it on the ballot in 1991 and they would like to get this done before the next election.

I don't know if I'm interpreting correctly, but that's what I read out of that, on page 3.

Mr Wiseman: I would still be more comfortable with having time to digest this and discuss it. I would prefer to leave this until next week.


Mr Murray J. Elston (Bruce): If I might volunteer, it's not uncommon for the House leaders to deal with some of these requests; they may come directly, or indirectly from this group of people. Bearing in mind the time limitations on this, maybe if we had a chance to discuss it tomorrow at House leaders and perhaps between now and then some inquiries might be made by some of the officials -- it seems to me that we won't be hazarding a mischief here, particularly when the citizens have voted in 1991.

I guess the question that rests with us is why we've waited this long. But that's not our concern. Our concern is, is there a mischief? Maybe if we were allowed to talk about it at House leaders and get some input, we could probably agree to have action taken.

My predisposition to this, by the way, is that we should allow it to go ahead, particularly when the Clerk and others are following the directions of the democratic elections. But let's talk about it there.

The Chair: Maybe we could add to the amendment Mr Sterling had put forward and somebody could make a motion that it go to the House leaders, and if it's passed by the House leaders --

Mr Randy R. Hope (Chatham-Kent): You can't. There's a motion already on the floor.

The Chair: We could amend the motion.

Mrs Ellen MacKinnon (Lambton): I'm sorry. I was tied up with the press. Can you please tell me what the motion is?

Clerk of the Committee: Essentially, we have a letter from the Clerk. Any private bill that doesn't comply with the standing orders gets referred to this committee. We have a bill that's been referred to this committee because the applicant has not advertised for four weeks and would like that waived. Mr Sterling has moved a motion that we do waive that requirement. They've asked for another requirement that we waive the five days that it has to stay on the order paper. He's also moved that we waive that, except that would require unanimous consent of the House, whenever we waive that notice period. Mr Sterling has moved that we do waive the requirement for four weeks' advertising and for the notice.

Mrs MacKinnon: In other words, you're asking for two waivers?

Clerk of the Committee: Yes, but it's only within the competence of this committee to grant them one. The other one would require unanimous consent of the House.

Mrs MacKinnon: Therefore, it would follow that the House leaders' meeting tomorrow morning would be a proper place to go.

Mr Elston: For the one.

Mrs MacKinnon: For the second one, yes.

Mr Sutherland: I'm going to disagree with my colleagues here. We're the government of Ontario. We deal with a $51-billion budget. To me, this seems like a pretty routine type of thing. There were a few technicalities. If you read through the letter and some of the history, it's not providing substantial change, in my view, that would undermine any democratic rights of the citizens of Orangeville. I think we should just do it and move on. We've got a lot of other significant issues to deal with in this entire Legislature.

The Chair: Okay. We'll just vote on the motion.

Mr Hope: I wasn't here either to listen to Mr Sterling's motion, other than to the second part of the motion, which is outside of our jurisdiction. The motion should be amended that we grant the waiver for four weeks of advertisement and that it be referred to the House leaders to decide on unanimous consent. That ought to be the composition of the motion. But with Mr Sterling not here, it's hard to deal with that.

The Chair: You can make an amendment.

Mr Hope: How do you make a negative to a positive motion? It's unparliamentary.

Mr Elston: You just strike out one part and say that it be replaced by a motion to refer the matter to the House leaders.

Mr Hope: Okay. I strike out the second part of the motion by referring the issue for unanimous consent to the House. I just didn't think it was parliamentary that you do that.

The Chair: Okay. Any debate on the amendment?

Mr Wiseman: Can I hear it again?

Clerk of the Committee: Just to clarify what we now have, Mr Hope is moving that we amend the second part of Mr Sterling's motion to delete that this committee approve the waiving of standing order 87 and refer that part to the House leaders. If that passes, Mr Sterling's motion would still waive 80(e) but refer the second part to the House leaders.

The Chair: Okay. Any more debate? All those in favour of the motion, as amended? Unanimous.

Mr Elston: And all those in favour of democracy?

The Chair: Murray, I've had enough of you this morning.

Mr Elston: All those opposed?

The Chair: We don't do that in that committee. Susan, how about updating us where we are?


Ms Susan Swift: Perhaps before we get back to where we left off last week, I can just go back to a few things that were raised where I was asked to get further information or further discussion.

The first deals with the issue of the meaning of "in the custody or under the control of an institution," particularly as it relates to records that are held by a law firm, which records are created in the course of doing business under retainer to a municipal corporation. Mr Elston raised this issue. I've provided you with a copy of excerpts from a very recent order of the Information and Privacy Commissioner, order M-315.

At pages 26 and 27, the commissioner discusses the issue of whether those records are covered by the legislation -- in other words, whether they are under the control of the institution -- because they certainly aren't in the custody of the institution. The commissioner rules that they are under the control of the institution. In doing so, he reviewed the order that the committee has heard about already; that is, the order dealing with the situation where the employee had made personal notes during an interview. There were a series of 10 criteria or factors that the commissioner suggested ought to be considered in determining whether or not a record is in the custody or under the control of an institution.

The commissioner then goes on to cite the Solicitors Act, which in his view is also relevant to the issue of control. Basically, section 6 of the Solicitors Act indicates that the records which belong to a client must be delivered on demand to the client unless there are unpaid fees etc. Therefore, in the commissioner's view, documents which belong to the board which are in the custody of its solicitors are under its control as a result of that section.

Then the order just goes on to discuss what other kinds of records or what records belong to the client. That clarifies, I think, Mr Elston's question.

The second matter that I wanted to speak to you about again was the issue of the meaning of "substance of deliberations." You'll remember that on page 16 and 17 of the draft report, the committee was leaning towards, at least, recommending option A that's listed on page 17, which would expand the definition of the term "substance of deliberations" to include the records that form the basis of closed-meeting discussions.

The committee was concerned about the impact of that option in light of the bill that was presented to the House last week which would amend the Municipal Act provision in respect of closed and open meetings. There was some concern that somehow option A might interfere with or might cause a conflict between the municipal freedom of information act and the change to the Municipal Act.

If you like, I have copies of that section of the bill that's been presented. Subsection 55(3) says, "Except as provided in this section, all meetings shall be open to the public." Subsection (5) says, "A meeting or part of a meeting may be closed to the public if the subject matter being considered is..." and it lists several items, including "personal matters about an identifiable individual, including municipal or local board employees."

So I don't think the option affects the authority at all to hold a meeting in public or in open session; it simply expands the definition of what the substance of the deliberation will be.


The third item that was raised was with respect to the meaning of "public opinion polls." You'll remember that the commissioner recommended that this specific phrase be included in the act under the exemption that exists for advice and recommendations to institutions. You'll also remember that British Columbia and Nova Scotia both have that as an exception to their particular exemptions.

I have spoken to professional pollsters to try to get an idea of the difference between public opinion polls and focus groups, because I believe Mr Wiseman was concerned about whether or not they would be included in the definition. The essence of my discussions, really, is that public opinion polls are different from focus groups because public opinion polls are quantitative research tools -- that is, they ask specific questions and get specific answers and then correlate those answers and extrapolate those to give an indication of the opinion of the public at large -- whereas focus groups are more of a consultation and a qualitative research tool where people are asked open-ended questions like, "What do you think about this or that?"

The upshot of this really is that in terms of the BC legislation, which, as I indicated, has this provision, they also do not include in their act a definition of "public opinion poll" but have in their procedures and policy manual what they suggest would be a definition. I've handed that out to you as well. That's section 13 of the policy on advice and recommendations.

"A `public opinion poll' is a survey which collects the opinions of a sample of the public on issues, and which usually contains statistical analysis on the results of that poll. The purpose of such polls generally is to extrapolate the information so that there is an indication of the opinion of a wider segment of the population."

Speaking to the acting deputy director of the information and privacy branch of the ministry in British Columbia, I was told that this definition has not yet been tested by the commissioner because the legislation is so new. It was her feeling that focus groups would probably not be included or not be caught by that definition because they do not extrapolate the information to give an indication of the opinion of the public at large but that it would have to be determined on a case-by-case basis, and that where that information gleaned from focus group consultation acted like an opinion poll or was used like an opinion poll, it might be accessible under the act.

Mr Sterling: Why would it not be accessible under the act?

Ms Swift: The feeling was that it's more of a consultative thing. It's not statistically borne out, it doesn't give an indication of the wider public opinion, but it's just used as a smaller consultative tool. Of course, it may not be used that way and in fact can be used to develop policy and the like, and she said that in those situations it might be accessible.

Mr Elston: I was going to ask two questions pretty similar to Norm's, but it really is with respect to a focus group. I know it's a contained group, yet what you do is you take the material they give to you and the opinions they give to you and you extrapolate that either this is a settled way of doing things or, if you're looking at a paper -- and you actually extrapolate that material to say, "This looks like diversion is acceptable." I'm thinking of anybody who has seen a draft policy paper go through any of these types of processes. People react to them and you extrapolate that reaction and say it's either going to be good, bad or it's indifferent or neutral.

Maybe it should be that we would make those available in any event. Maybe we should clarify it and say that we think they should be made available. If public funds are being spent at this level to do this stuff, then everybody should know it's going to be made public and then it's at an end.

Mr Wiseman: I wouldn't have any problem with that, except up to the point where the names of the people who are involved in the focus group would have to be kept under -- I think we'd have to say that, because then some people might want to question, "Who was it, where did they come from and how did they get there?"

Ms Swift: It was suggested to me by the professional polling people I spoke with that if the committee wanted to move in that direction and to include focus group results, they might want to change the wording to "public opinion research," because it seems that "public opinion poll" is a term of art. But "research" would --

Mr Hope: It would catch everything.

Ms Swift: -- catch everything.

Mr Hope: Even talking to a group of people would catch it. One is now left to the interpretation of lawyers about definition.

Ms Swift: That would have been true before as well. It seems it's always true.

Mr Hope: I thought we agreed to all this stuff.

Ms Swift: Those were issues that were left a little open-ended, I think.

I take it then that the committee agrees to option A on page 17, because that was the "substance of deliberations" item that I just spoke to you about. As I said, the committee was leaning towards that but wanted to be assured that it didn't impact negatively on the authority to hold a closed meeting. That's what the committee was leaning to last time.

Mr Hope: Okay. We'll lean all the way then.

Ms Swift: When we finished last week, the committee was still discussing the issue of the disclosure of the salaries of public officials and public employees. My understanding of the discussion so far was that the committee had agreed that salaries and benefits of elected officials ought to be made public and that they were still discussing to what extent the actual salaries and benefits of public employees ought to be made public. There were several options that were being discussed.

Mr Sterling: Have you got any options in the paper?

Ms Swift: Yes, Mr Sterling. On page 38 I've got four options. On the table last week was a fifth option but I can briefly summarize the four.

Option A essentially says, "The actual compensation including salaries and benefits paid to elected officials and public service employees should be published."

B says "the actual...salaries and benefits," but only of elected officials, not employees.

C suggests a threshold test; that is, a monetary threshold test -- above $50,000 or whatever.

Option D was the threshold "above a certain responsibility level."

The fifth option that was being discussed last week, at the suggestion of Mr Hope, was that there be not actual salaries but increments of $5,000. So you would give a salary range, but a small range.

Mr Sterling: I favour option D, actual salaries of over a certain amount. I don't know if that's what that says. You say "responsibility level"; I say it's clearer if it's over a certain amount of money that the compensation package reaches.

Ms Swift: That would be C, probably.

Mr Hope: Yes, C is more what you're focusing on than D, which is where part of our conversation left off.


Mr Sterling: That's right. I'm sorry, C is the one I would support.

The Chair: Mr Wiseman?

Mr Wiseman: C.

The Chair: Okay. So I guess we're going with C.

Mr Hope: I've got C with reservations. May I ask a question about the benefit aspect of it? Are we going to start calculating what a benefit costs? Are we going to deal with the remuneration? When you start taking in dental programs and everything else and you start to calculate that, you could work out to a calculation of $20 an hour, when in actual terms the remuneration may be only $15, depending on the benefit level.

I could see if there was remuneration in a monetary aspect which was considered a benefit, versus an actual benefit which is dental and other programs that might be provided, getting into that cost calculation. It really complicates the system. I just question that part of it when we deal with benefits. What is the definition of "benefit"?

Mr Elston: Generally, for the purposes of contracts and others, the benefit is the cost of providing the purchase of group insurance or dental care or being in a plan for eye care, that type of thing. That is what is usually calculated; it's not whether an individual actually accesses $4,000 for an orthodontist for their child or for themselves; it's actually calculated on the basis of the premium paid for that benefit. I would presume that's what we'd be looking at in this case: How much does it cost the corporation to carry this particular employee? I think that's what we're looking at: the actual expenditures and how you calculate that.

The Chair: You worked at General Motors, didn't you, Mr Hope?

Mr Hope: I worked at Rockwell. This complicates what you're trying to achieve. What the public want to know is how much is somebody receiving.

Mr Elston: No. How much is it costing the municipalities.

The Chair: What's it costing per employee.

Mr Hope: They can see that just in any general budget. It says it costs x amount of dollars for administrative staff. That's in every budget today. My understanding of what the general public was trying to do is getting actually at what individuals earn. If you want to find out how much it costs as a corporation to run, that's very simple: Just look at probably the top line of every budget and then the expenditures: wages and salaries. It's right there. That tells you what the total cost is.

The Chair: What are bonuses? Are they benefits?

Mr Hope: That's what I'm saying about the monetary benefit aspect of things.

Mr Elston: There haven't been too many bonuses given out in the public service lately.

Mr Sutherland: No, but still, that is the point: The bonuses are always a contentious issue as to how they're decided upon and how much folks get. Either you do work it out as being suggested, or you do what? You do gross salary and bonuses and try to do it as any specific monetary benefit that individual employee gets above and beyond what they're offering to all their employees?

Mr Sterling: I think the public have a right to know, as I say, over a certain amount, what it's costing their municipality to provide a certain service. That service in the form of an employee includes not only his or her salary but all the other trappings around it, if it's a pension benefit, if it's a dental benefit or whatever. I think they should know what that line is. If it's $55,000 plus $15,000 in benefits, then they should know it's $70,000.

Mr Sutherland: I guess our point is, our goal is to make the information accessible. How do we do that without making it a burdensome challenge in terms of being provided? That's all.

Mr Sterling: I don't think it's a problem.

Mr Sutherland: Okay, if you feel comfortable.

Mr Wiseman: An electronic registry.

Mr Elston: It's not just that information be made available, but that it's understandable. I think what people like to do is not what Mr Hope suggested before, which was to have the lump sum; they want to be able to differentiate between departments -- departmental expenditures, who's operating an efficient department -- and to be quite blunt, they want to know what a trustee is paid, how much they are receiving for what they do, and the same thing for councillors or reeves or wardens or deputy reeves. They really do want to know what their top officials are paid.

It's not just getting the number of the cost; it is, "How much am I paying each of these individuals to perform a job, and can it be done more efficiently and more effectively?" That's what they've got to decide in their own minds, in my view, in our current political circumstance, and that's what we have to be able to allow them to undertake if they choose to do it.

That's our test: Can you get the information, and is it understandable or is it severable into packages that allow them to make the decision about the effective nature of administration by departments and by the elected officials?

Mr Sutherland: From my standpoint, I'm not as worried about the elected officials, because I know that at the county council they've got to declare all their expenditures, they've got to put a report together at the end of each year, all the expenditures incurred by each councillor, whether that's trips to conventions etc, all that stuff.

It's a question of how you calculate it if you're doing senior officials. If you think they've already got that information and they work it out individually in terms of what it costs per employee, then the information is not that great a burden and I personally don't have a problem. I don't know about the rest.

The Acting Chair (Mr Randy R. Hope): Mr Sterling, you had some comments you wanted to raise?

Mr Sterling: If municipalities have been required to deal with pay equity and those kinds of things, this would probably be a cakewalk to figure out in reverse what each employee is receiving.

The Acting Chair: Any further comments? Can I make some?

Mr Sterling: You're in the chair.

The Acting Chair: The only thing I look at, to advertise the salaries, I need to know what this is going to look like. If we're saying to include salaries and benefits, what is the sheet that I and the general public will look at -- because it's allowing the public information -- going to look like? Is it going to say: "The overall cost for this one individual is x amount of dollars. His salary per year is x amount of dollars. His health care or dental plans or whatever are x amount of dollars. His pension contribution is x amount of dollars"? Is that the type of form we're looking at for the general public?

It's easy to say, "Salaries and benefits paid to an individual," but it can also be misleading to the general public if you just have the overall compensation there, including benefits, because they're saying, "You bring home $80,000." "No, I bring home $60,000, and $10,000 of it is pension contributions and it's matched by the employer's 10%."

It's easy to make an easy statement of salaries and benefits, but what's the information that is going to be provided to the general public for understanding? If you've dealt with wages and benefits before, usually the average on a $15-an-hour job is around $5 to $6 in benefit costs, depending on what type of pension programs you have. It can be misleading to the public, and the important part is to make sure that it's there.

I can easily support salaries and benefits, but what's it going to look like when it's on a produced document? Is it going to be misleading to the public?

Mr Sterling: Presumably the employee or their representatives have the opportunity to negotiate how much is going to be benefits and how much is going to be salary. The interest to the taxpayer, in my view, is what the total package is. I don't care whether it's $20,000 in benefits and $60,000 in salary or $80,000 in salary and no benefits. I presume that's a choice the employee and their representatives have made, that they are making a package of that amount of money. I think it's misleading to the public to say that the person is getting $60,000, though.


The Acting Chair: Mr Sterling, on exceeding a particular amount should be published, what particular amount would you see as the benchmark for publication? As you're now talking about direct salary and benefits, what particular price range would you be looking at as the benchmark for publication?

Ms Swift: Can I just clarify before we jump in on this? My understanding is that the committee will support the recommendation that the actual salary and benefits of whatever level for elected officials be made available. Is the threshold amount we're talking about for the public service employees?

Mr Sutherland: Yes.

Ms Swift: All right.

Mr Sterling: I'm flexible, $40,000, $45,000, $50,000, I don't care. Somewhere in that range is what I was thinking of.

Mr Sutherland: About $50,000 sounds reasonable to me.

The Acting Chair: It doesn't to me.

Mr Elston: How low do you want to go?

The Acting Chair: I want to go $30,000, but I was looking at direct salary when I was looking at $30,000 and above.

Mr Sutherland: If you're talking of salary and benefits, then you want to go higher.

The Acting Chair: But that can also be misleading. That's why I'm getting at the point, what is actually being produced? I can make $25,000 and have $10,000 of benefits programs per year. It doesn't take long to ring up benefit charges.

Mr Sterling: I move that the salary and benefits level be anybody over $50,000, that where it exceeds $50,000, it be published. That would be my idea, just to resolve the issue.

Mr Wiseman: If you wanted to, maybe we could just separate them and say, "This is the salary; this is the benefits," and if the total of them is above a certain amount, then if you want, we could do that. Separating them seems to make some sense.

Mr Sterling: As long as they're both there, it doesn't matter. If people can add them, then that's fine.

The Acting Chair: We're trying to establish that right now. The threshold in Mr Sterling's proposal is $50,000.

Mr Sterling: Salary plus benefits.

Mrs MacKinnon: "Salary plus" or "including"?

The Acting Chair: Both.

Mr Sterling: Are they not the same?

Mr Elston: The total package, his total addition of salary and benefits, is at $50,000.

The Acting Chair: So we're at salary plus benefits, $50,000 benchmark. All in favour? Opposed? Carried.

Mr Elston: Can I ask a question with respect to contracts and how they're treated? Sometimes people will attempt temporary contracts but have people on for a long time. Are contracted obligations by individuals usually available for inspection by the general public?

Ms Swift: I don't know. I see Mr White here and Ms Platt. We could ask them. Maybe they know.

Mr Elston: If I'm not an employee, I might be under contract for delivery of services. The issue is, it seems to me, that we don't want people necessarily to be precluded from discovering that there is a contracting by a municipality or a board or whomever for services for individuals, merely because the person is not an employee -- because right now we're talking about elected officials and employees -- or that in fact the contract is being let in a manner which allows them to defeat the $50,000 limit.

In other words, we might have somebody who says: "We'll engage Murray Elston to do a contract. We'll pay him $49,900, total package, and he'll work for us for nine and a half months, and then we'll give him another contract three months down the road." In each case, although I'm delivering personal services on a regular basis, I might very well avoid discovery of my total contract. I might be included in a lump sum of consulting services or something, but people would be unable to decipher that I was being paid in that way. I want to make sure that there isn't a loophole that can be used to evade the level of service.

Mr Frank White: Actually, on that same section we're dealing with now, 14(4), in the section right below it, I believe, there's an exception to the privacy provisions where you can disclose a contract for personal services, including the financial details. If you entered into a personal services contract, you would be caught in that, and then if you entered into a consulting arrangement, you'd go into the third-party exemption. That most likely wouldn't meet the criteria of the third-party exemption, so you'd get the amount per consulting contract also. I think you've caught all the situations.

Mr Elston: That answers my question. Basically, people could get that information under those other sections.

Mr White: Yes, now they can get it.

Mr Elston: Okay, that's good.

The Acting Chair: Where did you say that was?

Mr White: Subsection 14(4).

The Acting Chair: It's in the bill.

Mr Elston: It's in the act.

The Acting Chair: Or in the act, but it's not in our recommendations.

Mr White: It's right in the statute, 14(4)(b).

Mr Sutherland: Just one more question: In the recommendation, because we use the terminology "should be published," what we're saying is that we're putting in a requirement that each year they must publish these rather than someone going through and making a request to access them? Is that correct?

Mr Elston: Yes.

Mr Sutherland: Okay, I wanted to be clear on that.

Mr Sterling: In effect, what happens is that in the personal contract it's not a limit of $50,000 and up. You can get any personal contract, whether it's for $200 or $200,000.

The Acting Chair: Mr White, under that section of the act that you just indicated, that is not a publication, though. If you ask for the information, then are we treating it equally? Should it be a publication versus the actual -- I wouldn't know half the time who is on a contract. Just trying to work with Mr Elston's comments and what he brought forward to public information and how to -- if you don't know the person's there, you're never going to know what to ask for. I'm just raising with the committee, should it then be a follow-up recommendation that it also be a part of the publication process?

Mr Elston: In this case, I would agree with Mr Hope that we should probably treat them equally. When there are special arrangements made for personal service contracts, I think those are in a category that should be printed along with the rest of personal services that are being considered as full-time employees or elected officials. I would support that; I don't know about the rest of the committee, because we didn't spend much time on this.

Mrs Irene Mathyssen (Middlesex): I would like to raise a question regarding the word "should," having just been through the Bill 75 wars and the most recent aberrations thereof, that being the city of London quibbling over what should and must be. I wonder if it might be prudent, if we intend these to be published, to say "must be published," so that we avoid any of the dance.

The Acting Chair: Seeing no rebuttal, I guess they've accepted your point of view. Any further comment? Seeing none, all those in favour of Mr Elston's recommendation for publication? Opposed? Unanimous. Carried.

Do you want to move on to the next one?

Mr Sterling: On the public service contract, what are we asking there be a publication of in this instance?

The Acting Chair: We're asking that there be a publication of the act.

Mr Sterling: No, because, you see, you could have a personal service contract for three weeks, and if you just say how much is being paid and you don't explain that it's for three weeks, it may seem reasonable; it may seem exorbitant if it's a personal contract for five years. I'm just asking, what are we requiring them to publish in terms of the personal service contract? The whole contract? The remuneration part of it?

Mr Elston: What I was getting at when I first asked the question about the employees was basically the identification of the personal service contract's amount, a word or two about what it is. It might be temporary infill for clerical service or it may be a consulting service. It should be at least identified so that people could make a judgement, without delivering the whole contract. I'm just looking at identification of the individual, the contract and the amount so that people can decipher some information on their own.

If they want to ask for more information after that, I think that's up to them, but they then at least could be armed with enough so that they could identify what they would be looking for, and then the act is very specific about what they could get and what they couldn't get on the contract.


Mr Sterling: I would prefer an identification that there has been a personal contract and that if anybody really wanted the details, they could go and get them. Just because of the nature of the kinds of arrangements, ideally you'd like it annualized and all those other kinds of things, where they're included, just the actual person or the person plus their assistant or whatever. I don't know; I'm just thinking of how they're going to produce this thing on a piece of paper.

The Acting Chair: You can do one or two folds. You can produce the name, as you suggested, those under $50,000, and then if you're curious about how many weeks it is -- what I'm trying to do is create equal.

Mr Sterling: "Under $50,000" doesn't mean anything in my view, Mr Hope, because the time span could vary dramatically. It could be $50,000 for two weeks or it could be $50,000 for two years. If you try to annualize the whole thing -- I agree they should be equal and they should be public. It's just that without printing the whole contract, the whole arrangement, how do you really represent what it is? It's somewhat easier with employees because there are the benefits plus salary on an annual basis; that's it. In this situation, I'm not sure how you'd present that information in three or four lines.

The Acting Chair: Susan, do any other jurisdictions you know of look in this area of contract work, especially under that section of the act?

Ms Swift: I don't know, Mr Hope. The only thing I can think of is to go back and see how others might do it. I really haven't turned my mind to this at all.

Mr Sterling: If you could put your mind to how they could present it and then put that in the recommendations, I would be quite willing to accept whatever was reasonable; for instance, the name of the contractee, the monetary consideration and the general nature of what the contract's about. If you're going to require municipalities to produce this thing, you have to be fairly specific as to what they are to produce.

Ms Swift: What it has to consist of. I'll look at that and come back with something for the committee.

The next issue is sort of a corollary to this, dealing with severance, termination and early retirement benefits. The issue and the problem that have been presented are that although the financial terms of severance, termination and early retirement packages paid by institutions to ex-employees are not considered to be personal information, despite that, the terms of those agreements can be sheltered under section 6; that is, the exemption for matters that are dealt with in a private meeting.

This issue has been dealt with by the Information and Privacy Commissioner and the commissioner found that the institution, having met the criteria necessary to hold a meeting in private, could claim the exemption to protect the financial terms of a retirement agreement from disclosure.

In a postscript to this order, the commissioner stated that the retirement agreements warrant a very high degree of public scrutiny for several reasons and urged that this be dealt with at the legislative level. The commissioner indicated that indeed he found it unfortunate "if institutions began to use this provision to routinely shield the financial terms of such agreements." The suggestion has been then that there are several options for the committee, first, "that the act be amended to ensure" --

Mr Sterling: Which page of the draft report are you reading from?

Ms Swift: Page 40, "Options for Committee Consideration:

"Option A

"That the act be amended to ensure that the financial terms of retirement, severance, and termination agreements are routinely accessible to the public."

"Option B

"That the act be amended to ensure that the section 6 exemption cannot be used to shelter the financial terms of retirement, severance and termination benefits paid by institutions."

Option B is slightly more explicit than A and it deals specifically with the problem of sheltering under section 6.

Mr Sterling: You say B is more explicit?

Ms Swift: Yes, because it deals specifically with the problem that was addressed before the committee, that is, that section 6 is used to shield the financial terms of these agreements.

Mr Hope: If section 6 be the problem, then option B should resolve that problem, and I move option B.

Mr Sterling: I think they should be published.

Ms Swift: The alternative is that you could combine both of these, actually. I don't think the options are necessarily exclusive. You could combine both.

Mr Sterling: One of the things the freedom of information commissioner said to us is that the more we can say to the public, "This is your right to have this and it's going to be published and it's going to be in a book somewhere," then there's no request for the municipality to produce this information, and It's solved, and there it is. So I would like a combination of A and B.

Mrs Mathyssen: In light of the fact that we are moving more and more towards the publication of salaries of highly placed executives, I think it would make sense to have a combination of A and B inasmuch as some of these retirement packages can be quite rich and I believe the public has this right to know when those arrangements are arrived at.

Mr Hope: A question to Mr Sterling: We've protected those under the $50,000 benchmark; what if none of these come under the $50,000 benchmark on publication? Are you talking about retirement publication, or are you talking about protecting those under the $50,000 and publicizing those over the $50,000 benchmark? I'm just trying to balance out what we said in the first part of this whole process, actual working versus going to retirement or severance or termination benefits. I just wonder where the cutoff is for publication. Are you going to publish somebody's $40,000-a-year pension they're receiving, yet you wouldn't publicize the $40,000 pay they were receiving when they were employed?

Mr Elston: Mr Hansen and Mr Hope, I think one of the things that would occur is not that you would necessarily say their pension was x number of dollars, but you would want to tell people if you went into this that they got a lump-sum payment, that if required -- and under some circumstances it does happen -- people are bridged to pension, which actually costs a few dollars as well to the organization.

What you would basically do, and I would recommend it be done in each case of a retirement or severance package being offered, whether or not the person was officially above the $50,000 benchmark that we've got now, wherever there is a severance, for whatever circumstances, you take the cost to the organization of the contract for the termination, whether by retirement or whatever other method. We would talk just about the actual costs, not what the pension plan would pay but what it would cost to get the pension plan to a position to pay, and a whole series of other items.

What is out of pocket for the municipality to sever or terminate or for the retirement? That's what we're after here: If it costs me $100, I want the public to know that it's going to cost $100 to do it. Right now, we've already paid the money, for the last 15 years, into the pension plan; that money is already there and that pension plan earns the money for payment of this individual if they participate in it. But this year, to sever this person for whatever reason, it costs us $100. That's the number that has to be made available and I think it has to be made available wherever there is a special arrangement, because that's really what we're talking about here, special arrangements being public information.


I provide one point of interest, to me in any event: By making all of these severances or termination contracts available for publication, do we preclude some agreement being reached from time to time between individuals and their employer? Sometimes the anonymity of the severance package helps some employees and employers to come to an agreement or an arrangement around a dispute as to the conditions under which an individual has left. The sections put in almost all contracts of termination that say, "The employer and employee agree they will not disclose the terms of this contract," are sometimes the most attractive part of it to both the employer and the employee if they don't wish to be in the courts and have a long, drawn-out battle.

My overriding concern is that while we want all of the details of the finances to be included in this, we have to consider the fact that it may turn out to have a dampening effect upon the reaching of an early resolution of a contentious employment or workplace matter.

Mr Sterling: I recognize the problem Mr Elston has identified, and I've thought about it as well, but the overriding concern I have is that you have to go back to the fact that these are taxpayers' dollars. They can't hide behind closed doors and make a deal where nobody knows what's happening when they are taxpayers' dollars. The taxpayer has the right to know what kind of deal was struck. I don't think we had any witnesses dealing with this issue, that I know of.

I'm comforted by the fact that this is a report and that it has to go through two stages. One stage is government drafting legislation to change it, where there would probably be consultation, and second, there would be another stage, a legislative stage, where this would be put into an act and there would be another opportunity for people to raise this issue and show how damaging it could or could not be. This is the first of perhaps a three-stage process. Those other two stages may never happen, but I think we should stick to saying it's got to be put out on the table for everybody. We have to go to the accountability to start with, and then if there's any backing off to do, you'd do it at a later date.

Ms Swift: Does the committee want to red-flag it as an issue and stick with the recommendation?

Mr Sterling: I'd rather recommend it.

Mr Hope: I'm going to disagree with Mr Sterling. After listening to some of the conversations and listening to what was presented at the committee, I'm in favour of option B, which specifically highlights the problem area.

Mr Elston raised some good concerns. I've been involved in a number of those negotiations where, instead of going before boards, we've severed relationships and we've made sure there wasn't public information, for the best interests of all parties, because there were terms and conditions met under that agreement. I feel it would damage situations.

I'm going to disagree with Mr Sterling and I'm going to stick with option B, which specifically highlights the area of problem the commissioner brought out, which was section 6 being used to escape the process, and not to combine both option A and option B.

Mr Elston: Basically, Norm has a good point about this being a report. That being the case, I think we should at least raise the issue about whether people are being prevented from entering contracts of termination. They should be discussed further before the final draft of the bill is brought forward, but at the moment I think we are probably closer to B than the combination. I think B does do enough for us to get the information out. Maybe we could put a bit of a rider in, saying, "We didn't investigate this one very thoroughly as to the effect this will have on contracts, and we recommend that further discussion be held by the various authorities as we consider the legislation's amendments."

Mr Hope: I think it's going to take more dialogue, because when I read "agreements are routinely accessible by the public," it raises a lot of red flags in situations, and to look at the other part where there was a definite problem under section 6 of the bill.

I have a hard time putting option A as part of the total recommendation because of legalities. Most of the time you will see this is in the termination process, not so much in the early retirement, yet I've seen golden handshakes too that have given people the opportunity to move out.

My only option would be B, which would clear the problem that was identified in this committee.

Ms Swift: My understanding from what Mr Elston had just said was that B seemed to be acceptable, but with the proviso that there be some discussion about the area of difficult and contentious disputes; that this might arise in the future and there ought to be some attention paid to it at some point. In other words, to just red-flag the issue but the committee to go with option B.

Mr Hope: We don't have unanimous consent yet.

Ms Swift: No. He wanted to combine.

The Chair: Another thing on disclosures is a point you've made. If this agreement between an employee and an employer becomes public knowledge too much, when another person is terminated all of sudden he says: "But he got $100,000 and I'm only going to get $20,000. I don't agree with it." After a while, it becomes a factor of how high we go -- comparisons.

Mr Elston: I really think we have to move on this. If we could get this decision made at this stage, we can always come back to it when Mr Sterling reviews the whole of the report. This is a report, there are recommendations, and obviously we may not be able to get the whole thing accepted, but we should at least highlight it for people; make our choices, raise the issue as something to be further considered, and move on to the next section.

Ms Swift: The next section deals with section 15 and the right of a head to refuse to disclose a record if the record is soon to be published or is currently available elsewhere.

The issue is that section 15 does not require the head, when relying on this section, to inform the requester of the location of that information. It was suggested that without this statutory obligation, there may be a de facto denial of access.

There has been consideration of this by the Information and Privacy Commissioner, and the commissioner has suggested that this obligation is implicit in the legislation. In the 1991 report, the committee thought it would be a good idea to make this obligation explicit. My understanding was that the committee agreed with this last time and I drafted it in that way. The recommendation appears on page 41, with the words being added to the end of clause (a), "and the head has informed the requester of the specific location of the record or the information contained in the record."

Mr Hope: You've persuaded me.


Ms Swift: Excellent. The next section is also a section 15 issue. Clause 15(b) allows the head to refuse to disclose a record if the head believes on reasonable grounds that the record will be published by the institution within 90 days of the request.

Section 15(b) is silent on what course of action is to be taken in the situation where the head has in good faith relied on this section but then, due to a change of circumstances, the information is not available within 90 days of the request. It's unclear from this section what happens next. Does the requester have to make another request? Can the institution continue to rely on this section, just extend the time?

The commissioner has suggested that this ought to be cleaned up, is I guess the best way to describe it, and suggested that a new provision be added which would require the head of the institution to give a requester written notice, in accordance with section 19, of the fact that the record will not be published as scheduled. This proposal would also not require the requester to make an additional request for the same record.

Virtually the same recommendation was adopted by the committee in its 1991 report, and the recommendation, as I understand it, the committee wished to adopt is set out at page 42.

Mr Elston: Is there a legitimate reason for a second delay actually occurring? I don't want to prevent somebody if it's a matter of publication or if it's a problem getting materials together or if something has fallen through. I know what we're trying to get at, but I don't want to put people in a position where they can't perform a task.

This is basically saying that it looks like they decided they're going to use 15(b) because 90 days was going to come up and then -- at least the presentations were to the point -- they decided not to, and as a result they cancelled the request.

Ms Swift: The proposal then requires the institution to inform the requester of that change and the nature of the change.

Mr Elston: We might as well go with this one. I'm just puzzled, because it makes the point that this is being used for some sort of nefarious reason, and that's my difficulty. I don't like to suggest that when we go through all this we see some kind of plot behind each issue which has been raised. Sometimes there are legitimate reasons. If it's just to advise them, "Listen, this isn't going to happen; what do you want us to do now?" I'm happy with it. But I don't want to leave this sense that we see a plot behind each problem. Sometimes there is a practical reason for some of this stuff.

Ms Swift: The next issue deals with draft documents. It was suggested to the committee that draft versions of documents or records that have been published or that will be published should also be covered under this exemption. Basically, this was a recommendation from one witness who thought that reports that are made for committees, or papers that are prepared for institutions, go through several phases before they come to their final form and that these ought to be protected as well.

In dealing with this, I looked back at the Williams commission and at the rationale for the section 6 exemption that dealt with draft bylaws and draft bills, and the rationale there doesn't seem to apply to draft versions of documents. The rationale for the section 6 protection of draft bylaws and private bills was to protect the deliberations and decision-making processes.

In any event, there are two options for the committee to consider: that draft documents really don't fall within that rationale and so the committee does not support that recommendation; or that the committee agrees that draft versions of documents ought to be protected and that section 15 amended to effect that.

Mr Elston: Can I again ask the question about why the draft documents become important at all? The final product is what most people ought to be interested in; the evolution of the issue not so much. It's sort of like somebody takes the draft bylaw and considers it privately. If you're into municipal items, if you've got a bylaw that's being considered, you do the first reading and it's public. But if people are drafting things to try and get it refined or taking care of problems, why should we make people publish all of the versions of a bylaw that ultimately comes out in third reading, where it may have been amended in second reading or whatever? I just don't understand what it is that has to be done with these.

What is it, too, that is being dealt with when we have draft copies of reports, where people are thinking about them? Are we going to publish our draft document with our options in it? And the question is, why? Partly, this is an aide-mémoire as much as it is a report itself, and yet our final version of this material is going to be what will receive public scrutiny. They may very well ask several questions about our processes of arriving at the report. But why should we require more of somebody else than we require of ourselves?

The Chair: Maybe it has to do with the intent. Sometimes the bylaw that comes out in the end isn't what the intent in the draft originally set out to do.

Mr Elston: Yes, but the people who deal with the document -- I'm thinking now more particularly of bylaws, obviously, and zoning changes or whatever. It's the final product and you can't go back someplace else and say, "Well, if they'd done it that way, my problem would have been solved."

The issue is, what does the final version of the document say? How do you interpret part of the sections that apply to create a problem? But it doesn't seem to me that you should force people to go through the publication of all kinds of draft documents. We would be inundated if that were, by right, required of every body covered by this.

Ms Swift: I don't think the issue is that they have to be published so much as they be available, that a person could access them. This is off the top of my head. It may be of historical interest to someone. I'm trying to reach for why they might want to do that, but it may be of historical interest or they may be able to argue a certain position based on a position that was held previously or something to advance --

Mr Elston: I think this is just providing a huge area of cost for individuals when you start talking about all the draft everythings. I've worked in a law office in a small town and we would put together some suggested responses to problems from time to time for individuals, not intending to be implemented because you do them quickly. You say, "This is a general format," but that would be a draft document for the purposes of this, and people might say, "Well, no, we don't want that," and you rework it in the consultation. I presume I could declare a client-solicitor privilege under that circumstance, but it's a draft document. The publication of all of that material, it would seem to me, could really add up to some problems.

Just to move to another section that we haven't dealt with yet, if you want to get into a problem where there is a vexatious request being dealt with, which will be another part of our determinations here, that is an area where mischief really could be played, because the intention is not to do what -- maybe the instructions were misunderstood or whatever, but somebody could say, "Give me all of your draft documents," and you could say, "I want to tell you right now, the exemption that we're claiming is that they'll all be published eventually," or whatever.

It just seems to me that nobody should be required to publish all that material and make it routinely available.

Mr Wiseman: I have two thoughts on this. The first one is that I would disagree with Mr Elston in that I would say that for probably 99.9% of the stuff that comes before councils and so on, you wouldn't want to see the draft documents; it would probably be laborious and really quite tedious to go through them. But what happens when something starts out and then at one point takes a complete 180-degree turn in terms of what has happened? How do you track a decision about something if you don't have some draft documents, if you can't at least ask to see them?

For example, if a land owner is given the understanding, either verbally or whatever, that his property is going to be allowed to go in a certain direction and then all of a sudden finds that the document that comes before council is 180 degrees the opposite, I think that if I was that person, I'd like to know what happened, I'd like to know when it happened, and I'd like to know why it happened. If I thought that maybe something was there that was "mischief," to use your phrase, I'd like to be able to find that out. So I would say that under that rare circumstance, maybe the draft document could be a stepping-stone to finding that out.


But I would think that within the context of allowing draft documents to be viewed, anything that was of a personal nature, libellous or whatever, and dealt with people -- it wouldn't be too often -- would not be included, that personal information would be excluded from that process. So I would tend to side with saying that draft documentation should be available on request, myself.

The Chair: If it's still around.

Mr Wiseman: Maybe that's just the cynic and the old dump-battler and protester in me who would like to chase this stuff down, but I think some of this draft information would be really interesting reading for groups in the community that would like to know how we got to a position without --

Mr Elston: I think, though, in your circumstance you're really talking about the Agenda for People. I know they want to know what happened there.

Mr Wiseman: No, we're talking about how you got to your position on same-sex.

Mr Elston: Most sorts of legitimately elected governments don't do that sort of thing, that's all.

Mr Wiseman: We're just wondering how your party got to its position of puffing and blowing on same-sex.

The Chair: You can go up in the House, Mr Wiseman, and join the discussions.

Mr Sutherland: If I could just ask for a clarification: I accept Mr Wiseman's point, but he also said that in 99% of the cases it wouldn't need to have it. So it would seem to me that if it's 99% of the cases, I can't justify necessarily having it available for that 1%, given --


Mr Sutherland: Well, I have trouble doing it.

What I want to know, and I'll have to plead my ignorance of the act on this situation, is it would seem to me that every report that goes through, say, a municipal council committee in effect is a draft report until it actually gets to the full council to make a final decision. Yes? Has the commission ruled on that? Until it passes full council, it's not really a final draft, in my view.

Ms Swift: Let me qualify my comments a little about this. Firstly, this suggestion doesn't deal only with reports that are going before a council; it deals with any reports, anywhere, in any institution, by anyone. It's that broad.

What you have under section 6 are only the draft versions of private bills or the draft bylaws. So those are the things that are protected now under section 6. Everything else would be accessible unless it's exempted under some other section, like advice and recommendations to the institution or some other exemption.

The other thing I would just say to the committee is that we didn't hear very much evidence about this and about the mischief it causes if the committee doesn't recommend an exemption for it. There was only one witness and, I have to tell you, it was a very, very small submission about what this might be.

It's up to the committee to decide about what it wants to do with that, but we don't have very much information or we didn't receive very much evidence about what the problem is.

Mr Hope: If I read your recommendation correctly -- and correct me if I'm wrong, because it's your print and it's left for interpretation -- it says, "The committee agrees that draft versions of documents that have been published or that will be published within the time frame set out in the section should not be subject to disclosure." With something that has been published or is to be published, I don't see where the problem is.

Yes, we heard very little from a committee. I don't know what the whole issue is and I'm not going to get into municipal government and stuff like that. I'm looking at what you have recommended. We have one of two choices. The one choice is that we have no recommendation on this issue, or that we use a little bit of common sense and recommend option B, which talks about "draft versions of documents that have been published." If they're published, then why shouldn't somebody have access to them?

Ms Swift: The suggestion is that the thoughts that go into developing the final version may not be fully fleshed out or fully thought out. It might just be wrong until it gets to that final --

Mr Hope: Then make me understand what you mean by "draft versions." Why do you use the word "published"? I'm getting stuck on the word "published."

Ms Swift: The recommendation or the suggestion that came to the committee was that under section 15 -- section 15 deals with the situation where a document is going to be published; that is, made public in some formal way. Under that section, if you have a draft document that leads to a final document that is ultimately published, that it be protected from disclosure. It ought not to be available, because the thoughts are only fully fleshed out and fully made legitimate when it's in its final form.

Mr Hope: Help me to understand this word "published." I'm not trying to be cynical here. When preparing a piece of legislation, there is preliminary work that goes on. When you put it into the House, that becomes a published document, correct, at that time?

Ms Swift: I guess when it's printed and made available, it's published.

Mr Hope: Then by the time you get to royal assent, it's going to take its altered change. Which point are we dealing with? I'm asking for clarification. Are we dealing with the point before entry into the House, let's say for instance in our case, the information or the drafting that is going on before entry into the House, or entry into the House and the final product of a piece of legislation? This is what I'm trying to get clarification on.

I don't plan on being a municipal government expert -- I hear in some of my rural communities about how expert they are about politics -- I'm just trying to understand your word "published." To me, the documents that are being done up to create a piece of legislation are not published information yet. Once it's tabled in the House, then it becomes public, and yes, it will go through its change in process. Help me understand the word "published" that's being used here.

Ms Swift: Using your analogy, I would take it to mean the point where it is printed and available to the public.

Mr Hope: Which would be first reading of the bill.

Mr Elston: As in a manuscript, it is published, and upon publication, is available to the broad public. But a manuscript that is in that format is privately available for review. I think this would be the same thing. It is in the form, but it is not publicly available. "Publication," in my view, is making it publicly available. I think that's what they're talking about here.

Mr Hope: Because I lean to option B in my own opinion. I'm listening for opinions that help me understand the word "published."

Ms Swift: I'm not sure what to suggest at this point other than I can go back and try to find out if there has been some interpretation of "published" under section 15. Mr White may have some wisdom on this.

Mr Hope: Mr White, do you mind helping out on this?

Mr White: The purpose of that exemption is because typically you're supposed to answer a request in 30 days, and if an institution is going to publish or make publicly available that information, it gives them a further 60 days not to interfere with that process. It really is just a temporary period of time to allow the organization to make that information publicly available and not respond to an access request, but the notion is that it's going to be publicly available somewhere, be it published, printed and distributed or publicly available, let's say through Hansard. That's publicly available. It really removes responding to the request, because that's going to happen. "We're going to do it anyway, so you don't have to make a FOI request." That was the reason for it.


Mr Hope: It's going to happen but it's going to take a little bit more time to happen.

Mr White: Right. You're going to get it, and we're planning on that. Give us the 90 days to do what we're doing anyway.

Mr Hope: Then I'd prefer option B.

Mr White: The proposal, though, is from, I guess, an organization that's saying that if we're going to do that, then what we would like is a new exemption. If we have any draft documentation, if you make a request for that, this is a new exemption saying that you don't get it; it's exempt now under the Municipal Freedom of Information and Protection of Privacy Act. Right now, it would be available if it's there, unless another exemption applied like personal information or if it was law enforcement, solicitor-client privilege.

Mr Wiseman: If we were to go with option B, what we would be doing is tightening it down.

Mr White: It's a new exemption you're creating. You're shutting down access to what would be publicly available now, subject to the other exemptions. You'd be creating a new exemption.

Mr Wiseman: Then I go with option A.

Mr Elston: But only temporarily.

Mr Wiseman: For good.

Mr White: From what I understand from your researcher, it's what is published; therefore, once it's published or publicly available, if there's any draft material available in the institution, that is now exempt. If I ask for a draft of the internal auditor's report, it's publicly available.

Mr Elston: No. This basically says that any draft versions of documents that will be or have been published are exempt. Of course, once they're published they're available.

Mr White: Right. I think it's so, isn't it?

Ms Swift: The drafts wouldn't be available, though.

Mr White: Would not be available, right.

Mr Wiseman: But they're available now.

Mr White: They are available now, subject to any other exemptions. I don't have a copy of the report, so --

Ms Swift: The documents themselves are published but the drafts aren't.

Mr Wiseman: If we were to do this, what we're really doing is closing down what is available to the public now, and I don't support that.

Ms Swift: Do I understand we have consensus on A?

Mr Hope: No.

Ms Swift: No? Okay. I wasn't sure.

Mr Hope: I went back and re-read after some of the conversation.

The Chair: There are only 15 words there, Randy.

Mr Hope: Listen, I'm not a lawyer, so I want to grab all this in.

The Chair: Ask Murray; he'll tell you.

Mr Elston: I don't presuppose the ability to tell my friend from Chatham-Kent anything.

Mrs MacKinnon: Don't worry; we've tried it too.

Mr Hope: I guess I'm still having a hard time. Would it be possible to ask Mr White to come back up? How is this now taking away privileges that are currently in the act?

Mr White: Right now, say, you have report A that's published and it's in the --

Mr Hope: Everybody uses the word "publish," and when I hear the word "publish," I think it's public information.

Mr White: Publicly available; maybe that's a better way of putting it. It says "published or publicly available." "Published," I guess, means it's been printed and somehow available if you want to buy it or feel free to go somewhere and get it. Right now, if there's a draft available to that report, let's say you could make an FOI request for that draft, and you would get it unless an exemption applies. I believe the proposal -- if you can verify this for me -- is that whoever made the suggestion doesn't think that should be available, so they want to create a new exemption. If you ask for that report, all you have to say is, "No, this is a draft of a publicly available report; therefore, access is denied."

Mr Hope: Of a "publicly available," but it is a published report.

Mr White: But it's the draft, and somebody might want version 2 of eight because in version 2, as Mr Wiseman said, something might have changed significantly and you can track what's happened.

Mr Hope: I guess my understanding is that they would still be able to access that because it's a published document.

Mr White: No, the final report's the published document.

Mr Wiseman: Unless you get the final report; all the other ones are closed. You don't get to see them any more. You can no longer go back and look at each stage of the report to see how you got to the final report and where it is that the point you were really concerned about was lost, whereas now, if you were to get all of the reports, you could go through them and you could compare them and see what was happening, and the whole process as it unfolded would be laid out to you in terms of the way the final decision was made.

Mr Hope: The recommendation says, "The committee agrees that draft versions of documents that have been published..." which I'm taking now is in a printed form.

Ms Swift: Maybe it's because of the wording I have here. Mr Elston had the same problem. What this is saying is that documents that are ultimately published, any versions, any drafts that preceded the final document that is published --

Mr Hope: That ain't what you have here.

Ms Swift: That's my fault. Basically what that says is that the published document, the document that is made available to the public, is accessible, but any other documents are not.

Mr Hope: I agree with option A, if that's the terminology you're using.

Ms Swift: All right. I apologize for causing so much confusion.

Mr Hope: When I read what you have here, it says I'm still entitled to all that.

Mr Elston: Under our current example, if we take this document, which is a draft, as soon as we do our report and it's tabled or reported from this committee to the House and is then published, this draft is then unavailable, exempted from any further publication.

Ms Swift: Yes.

Mr Hope: Okay. I would just leave it as the status quo and the recommendation would therefore be, "The committee agrees that the status quo prevail," instead of "no recommendation on the issue." It means the same, I guess.

Ms Swift: All right.

The next issue is section 16, dealing with the general override provision of compelling public interest. The exemption currently provides that, "An exemption from disclosure of a record under sections 7, 9, 10, 11, 13 and 14 does not apply if a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption."

Two issues were raised with respect to this issue: firstly, that the test for the application of that section is too high, and the proof of that is that to date the section has never been successfully applied in any order. The second issue is that the exemption doesn't apply to all the exemptions and it excludes, for example, section 6, draft bylaws; section 8, dealing with law enforcement; section 12, dealing with solicitor-client privilege; and section 38, the personal information exemption.

The commissioner proposed that the test for the application should be the same as appears in several other jurisdictions, notably British Columbia and Quebec; that is, that the test should be "when the disclosure is clearly in the public interest." In addition to increased public access, particularly where there is a compelling public interest, it was suggested that all the exemptions in the act should be made subject to the public interest override.

There are, as you would imagine, several options for the committee to consider: firstly, that the committee is persuaded that the test is simply too high to meet and that the public interest cannot be realized in this context, and that the committee also believes that the extension of the override provision should apply to all the exemptions in the act.

Option B is that the committee believes the exemptions are part of the fundamental balancing of interests and as such provide necessary protection to those interests and should not be overridden, except where the competing interest is so great as to outweigh the rationale for the exemption; in other words, the status quo of the act.

In that case, the committee again has two options: to recommend that there be no change to section 16, and secondly, that there be no change to the test under section 16 but that it be made to apply to all the exemptions in the act.


Mr Elston: If I can just make two observations, the one that is particularly of concern to me is the law enforcement issue, which really sets up a very difficult balancing act. For instance, let's take a case which the member in the chair currently is well aware of in his area, where it appears that this freedom of information act might very well be used to force the commissioner to make a determination of "clearly in the public interest" while a court has ruled that no information be made available, or there could have been a request for an exemption by the police force.

I see that as causing a very difficult problem to arrive for the commissioner, for law enforcement officials who have a lot of work to do just to get to the bottom of a case and for the court system.

Secondly, the solicitor-client privilege section is one which is very tough to run with as well. You sort of say solicitor and client privilege is to be protected at all costs, except when it's clearly in the public interest, as determined by the freedom of information commissioner. I don't know that I'm prepared to allow that to occur. The discussions between solicitor and client and the types of activities there, it seems to me, have to be retained. That partly reflects my own former position as a solicitor and client. You get into discussions which are very, I don't know --

Mr Hope: Detailed.

Mr Elston: -- detailed. If the solicitor then is going to be required to release all the material that his client advised him or her, it seems to me to defeat the purpose of having confidentiality at all between solicitor and client.

"Clearly in the public interest," it seems to me, is not a very good test when you say, "Every solicitor and client privilege now may very well be open for public debate." Who are you going to confide in or who will you tell about certain parts of your matters? Those two areas, in my view, are extremely sensitive.

The personal information exemption: Again, you sort of ask yourself, if it's personal information, what is clearly in the public interest that would be seen otherwise to violate a person's right to privacy? I would like to know what the test would be, the test for "clearly in the public interest." It may be that the commissioner thinks it can be dealt with on each factual situation and I guess I'm prepared to allow that to occur, perhaps more under section 38 than I would be under the law enforcement and solicitor-client privilege issue. Those are two areas where we have to tread very, very carefully indeed.

Mr Hope: Looking at this, I raise a question of "compelling public interest." What's the definition of "compelling public interest"? In order to determine what to do and how to make stipulations on this, first of all, I believe that what you've got to have is a discussion about defining the words "compelling public interest." It's a real touchy one.

That being the case, I would look at the "either," "that no change be made to section 16," on page 45. The press tell you that everything is of public interest and you could get into that. We heard quite a bit of evidence that was brought before us about the right of the public to know. Sometimes it's important that the public doesn't know, and sometimes it's important they do know, and who makes that compelling public interest definition is a real difficult one.

With that, my conclusion would be that no changes be made to section 16, which you have written down on page 45 of the draft document that is now not public.

Ms Swift: That will be.

Are there any further comments about this particular section, these particular options for consideration?

Mr Elston: I am concerned about recommending, on sections 8 and 12, for sure. Maybe it would be better for us to express a concern that the test of the overriding public interest has never been met, but that we cannot recommend the degree to which changes should be made at this stage and that there are concerns particularly around law enforcement and solicitor-client relations.

That would certainly cover most of my concerns and it would let the people who see our report know that we dealt with it, at least briefly, and perhaps if others are interested, when they think about drafting amendments to this legislation, they might very well pursue that as an area to be addressed.

Mr Hope: Also, we have to come up with the definition of the words "compelling public interest."

Ms Swift: That wording exists in the act.

Mr Hope: Yes, but what does it mean?

Ms Swift: I see what you're saying.

Mr Hope: "Compelling public interest": 50 people, 100 people, small, minor? What is it? Where do we leave it? What I am saying is that before I can make a determination on that, there has to be some clarification of the definition of the word.

Ms Swift: I haven't turned my mind to this particular issue, but it may well have been the subject of interpretation by the commissioner under orders. I just haven't looked into that but I can, if you want, to see what they've used to define it or what it means. Although it's never been applied, I can look back at the orders and see at least what their thinking is about what it might mean.

Mr Hope: I'd like to know what the thinking is, especially when solicitor-client privilege is at issue, defending somebody; that's why lawyers earn those big bucks, isn't it, because of the --

Ms Swift: I wouldn't know.

Mr Elston: Neither would I.

Mr Sutherland: You've been in politics too long, right, Randy?

Mr Hope: As far as I know, everything is a disclosure in the life of a politician.

Ms Swift: Can I just summarize my understanding of where we are on this particular issue? My understanding is that we're going to red-flag the various issues that Mr Elston identified, that there seems to be perhaps some problem with the test as it is, but the committee is not prepared at this time to identify the degree to which it should move, and that there are specific concerns about any idea of changing and expanding the exemption to include the law enforcement or solicitor-client privilege, and also perhaps with respect to section 38, but that the committee is also concerned about what the definition of "compelling public interest" is and there is the concern about why that test has never been met, and I'll go back and look at what the interpretation has been so far.

Moving on to the next section, which deals with access procedure and abandoned requests. I have to admit that after I prepared for the meeting with the committee and I looked at this again, I thought perhaps this might be better placed under "frivolous and vexatious requests," rather than deal with it piecemeal as I've done here. It's up to the committee, but my suggestion would be that we just defer talking about that until we get to "frivolous and vexatious requests" and you could deal with the whole issue there.

Mr Hope: I move to defer that section.

Mr Elston: Agreed.

Ms Swift: The next issue then is section 17. This is a technical amendment and it arises because of different terminology in subsection 17(1) and subsection 17(2). Under subsection 17(1) the reference is to, "A person seeking access to a record shall make," and then it sets out the procedure, and then subsection (2) says, "If the request does not sufficiently describe the record sought, the institution shall inform the applicant." The feeling was that the terminology should be consistent.

Mr Hope: Agreed.

Mr Elston: I think that's fine. This is where somebody says, "I want the document talking about restaurants," and the people say, "Well, you haven't described the document that talks about restaurants enough, so we can't give you one."

Ms Swift: Yes.

Mr Elston: You've identified the "we'll provide." I think this is clearly a situation where we should help rectify that problem.

Ms Swift: The next section deals with transfer requests under section 18. This deals with the situation where the institution that originally receives the request transfers that request to another institution.

The problem that was raised before the committee was that in subsection 18(2), the "institution that receives a request for access to a record," where that institution does not have it in its custody, "the institution shall," that is, is required to, "make reasonable inquiries to determine whether another institution has" it, and "the head shall within fifteen days after the request is" made "forward the request...and give written notice to the person," the requester, of that fact.

Under subsection 18(3), "If an institution receives a request...and the head considers that another institution has a greater interest...the head may transfer the" document.

The issue is that under subsection 18(2) the requirement is mandatory and under 18(3) it's discretionary. It was felt that there was no apparent reason for that distinction and that both should be mandatory.


The second issue concerns the timing of the notification of the requester. The committee will remember that one institution reported to the committee that it had received requests where the requester did not want any other institution to know about the request and did not want the transfer to be made and instead wanted to be notified before the transfer was actually made.

A related concern to that was that if the committee decides to do that, that is, to require notification of intention to transfer, the time period should be extended.

My understanding was that the committee was in favour of these recommendations, and the recommendations then have been set out at page 48, that is, that section 18(3) be amended to insert the word "shall" instead of "may" and that both sections 18(2) and 18(3) be amended to require prior written consent of the requester to transfer or forward the request to another institution and that the time period specified in the section be suspended pending receipt of the consent or the passage of a specified reasonable period of time.

Mr Hope: No problem.

Mr Elston: Agreed.

Ms Swift: The next issue is that in cases where refusal for access is made, there's a requirement that the institution notify the requester. The problem is that the sections that require that notification do not specifically require that the notice include a description of the record itself. It was felt, particularly by the commissioner, that this omission places the requester and any other affected parties in a difficult position of having to decide whether or not to appeal the head's decision without having any knowledge of the nature of the record.

The Information and Privacy Commissioner has dealt with this under the provincial act and recognized an implicit requirement that there be a general description of the record. In its 1991 report, the committee recommended that this be made explicit.

Mr Elston: Does 17(2), as we've recommended the change, assist people in that way? I take it that this is another way when people just say: "Listen, we don't have a record that corresponds to your request. Therefore, we deny it." Section 17 would say then that they have an obligation to assist the person to clarify the record they were after, but this one basically says they have to set out a sketch at least of what record they do have.

Ms Swift: Yes, 17(2) says that if the requester hasn't sufficiently described it, we have to help them do that. The other sections dealing with notification of refusal say, "The record is there and we're refusing you access to it, but here's a general description of the record itself." In other words, it seems to me you've passed the threshold of 17(2) to get to these other sections.

Mr Elston: Okay.

Ms Swift: So the recommendation there is fine?

Mr Hope: I agree.

Ms Swift: The next issue is that although part I of the act establishes time limits for institutions to respond to requests, that is, that they have 30 days to respond to requests, there is no incentive in the act for institutions to adhere to the statutory time limits. Currently under the act, failure to respond within the 30 days, or a reasonable extension, only results in a deemed refusal by the institution, and that isn't a detriment to the institution either, because at that point, if the deemed refusal is appealed by the requester, the institution can still make representation to the commissioner. So the suggestion is that there are no negative consequences for an institution which fails to adhere to the time limits.

When the issue was raised in 1991, the committee concluded "that the lack of any incentive for an institution to comply with time limits is a serious deficiency in the act," and it has created delays.

Since then, the committee has heard from a number of institutions that staffing constraints, particularly in these financial times, have sometimes made compliance with the statutory time limits difficult. Some witnesses argued that the imposition of any kind of penalty on institutions that fail to comply strictly with the requirements would be very onerous and create additional workload for them.

A related concern, I guess, is that the reasons an institution has for extending the time limit are too restrictive and ought to be expanded to include time for research in the application of the act. It was suggested that delay often results now because of the increasing complexity of the statutory interpretations that have been given to the act and the need to research the commissioner's orders. This goes to some extent to explain why the statutory time limits haven't been met in all cases.

Looking back at the stats, it would appear that in the majority of cases the time limits are being met in any event. Indications for 1991 and 1992 are that in almost 91% of the cases requests are being met within 30 days.

I've taken from the committee discussion previously that the committee is concerned about the failure of an institution to respond to requests under the act and agrees with the commissioner that this subsection 22 should be amended to read that:

"Where a head fails to give notice required under section 19...the commissioner may, on appeal, require the head to waive payment of all or any part of an amount required to be paid by the person who made the request for access to the record."

In other words, the commissioner has the discretion to impose, in effect, some type of penalty on the institution in certain cases. It wouldn't be required, but it would be done on a case-by-case basis.

Interjections: Agreed.

Mr Hope: Agreed. Boy, isn't it amazing? When Norm's not here, we can really move through this process.

Mr Elston: We've already moved seven pages.

Ms Swift: We're really flipping along here. Next issue is alternate formatting: providing information in alternative formats other than print formats.

There are two issues here. The first issue was with respect to access for persons with low vision. The committee will remember that it was brought to its attention that no provision was made for ensuring effective access to government-held information by persons who are unable to use the information provided in the usual printed format.

The committee was also informed that Management Board Secretariat has responded to recent amendments to the Human Rights Code by issuing directives implementing a mandatory policy governing the provision of information for "print handicapped." Ministries and agencies are directed to make every reasonable effort to comply with the individual requests from print-handicapped persons for access to government institutions.

The issue has also been considered by the Information and Privacy Commissioner, and the commissioner ruled that although -- the order actually concerned a person who is visually impaired -- the act only required the institution to provide the information in an objectively comprehensible way, they must take reasonable steps to ensure the requester has effective access.

There's a postscript to that order -- I don't know if you want me to get into it; it's set out on pages 52 and 53 -- essentially that the commissioner urge the government to deal with access to visually impaired persons to both their own personal information and to general records through amendments to the act.

Other jurisdictions already incorporate this type of provision. The federal Access to Information Act and Privacy Act have been amended to provide an obligation to consider that type of request and, if the record is available in an alternative format, must provide it forthwith and within a reasonable period of time. If the head of the institution considers that it's necessary to enable the person to exercise their right of access and considers it reasonable to do so, they must do so.

The upshot of the discussion that I took from when we were receiving instructions on this was that the committee supports increased access through alternative formatting for low-vision and vision-impaired persons and the committee supports the inclusion of the principle that's already part of the Human Rights Code; that is, the principle of reasonable accommodation. The committee supports the inclusion of that principle in the act by making reasonable accommodation through alternative formatting to ensure greater access to government-held information by persons with sensory disabilities.

However, the committee is concerned about the cost implications of this proposal, particularly in a recessionary climate. The committee was urged by one witness to ensure that the fees levied for producing the record in alternative formats should never exceed the fees for providing the print alternative, even if the costs to the institution are greater.

The committee will remember that there were many submissions from institutions that spoke of the financial hardship the legislation currently imposes and urged the committee not to impose additional barriers by way of amendment to the act.


Cognizant of the tension between the need to reform the act to ensure meaningful access and shrinking financial resources for institutions, the committee recommends that further consideration be given as to how the amendment can best be effected in light of these limitations.

The recommendation for the committee then is set out at page 54; that is, that the act be amended to provide increased access by persons who are print-handicapped through alternative formatting of general records and personal information and that further consideration be given to the cost implications and how it best can be implemented.

Mr Hope: Being as it's National Access Awareness Week and going off with some of the fine comments Mr Elston made in the House today, I would say that what we'd have to do, as an option for committee consideration, is ensure that the fees for access of information by an alternative format should never exceed the fee levied for a print format. I think what it creates is a balance, a fair playing ground. I believe that has to be, but I'm wondering if there's a way to incorporate that into your first part, that the act be amended to provide increased access by persons who are print-handicapped through alternative formats, format of general records and personal information.

On the second part of that, in the next sentence, you have, "Further consideration should be given to the cost implications of this amendment...." I'm saying, with the deletion of that part of it, "but to ensure that the fees for access of information," the second part, be inserted there.

Ms Swift: Delete the reference to "further consideration," about how to do this effectively, or with the "consideration of cost implications"?

Mr Hope: Yes. "Further consideration be given to the cost of implication of these amendments and how best they can be implemented in the cost-effective manner." I'm just saying that the cost-effective manner will be to those who know that the fee cannot exceed that of the printed version. It allows the institution the discretion to choose what is the best alternative way to deal with that. They know what their limits are. It does make it clear for the institution to understand what they could expect if revenues are needed or fees are charged. It gives them an idea and it gives the individual an idea that they're not going to be charged any more than the print format. I think it draws a balance. It makes a clear understanding for the institution of its limitations and it makes a clear understanding of the limitations for the persons with the disability.

Mr Elston: I think actually you've gotten on to two slightly different issues here. The issue of cost-effectiveness in relation to the formatting of the general record is different than making material available that has been requested. There really is a need to inspect or at least to figure out how institutions should put together their records to make it as accessible as possible in a cost-effective manner.

If somebody who has a problem with vision, for instance, Braille was suggested by one of the witnesses as being required. During the testimony, I think there was a minimum of $1 a page, and you wouldn't necessarily want all of the records of a municipality to be converted into Braille. But there might be some other means by which the material could be readily converted into something of a format which would be fairly quickly available. I think we should further investigate that as an issue separate from the fact that there is a record being made available and that the charges are only going to be the cost of the print record that would have been made available otherwise.

From my standpoint, I'm quite happy to combine the two, but I don't want to see the elimination of a consideration of cost implications and, secondly, an intelligent discussion of what is the best, most worthy method of formatting your records to make them available in alternative formats.

Mr Hope: Just to respond to that, the question of whether it be Braille or audio would be -- the individual still does not have that right to request an option preferred. It just says that we must try to suit the need of the person with the disability. The option of preference could be done audio, could be done Braille, but it does know that -- what I was trying to do was get a balance for the individual who is requesting the information because they know that if there is a fee, the fee will be no more than what it would cost under print form and it does give the institution the understanding that the fee they're going to be dealing with is the fee to look at alternatives.

Why I say that and why I brought both of them together is it still does not give the individual, the requester of the information, the ability to determine what format that occurs in. Do you understand what I'm saying? You were using the terminology of Braille versus audio.

Mr Elston: I just think that you have confused the two issues. I think the issues are quite separate. The cost of an actual record going out: What we're saying is, there's a ceiling to what you can charge. But what we're talking about in the first part, the one that you want to eliminate, is making sure that there is some discovery of the best way to format, so that the institution can effectively and cost-efficiently have its records ready for an application or a request to come for access to them.

I think these are all compatible; I don't think it's an either/or. That's all I was saying, Randy, and I think they very well could be and very well ought to be combined, if you wish them in that format. But I think all three parts have to be included in our report, just to make sure that we have a concern about the formatting, that it be available to people with a difficulty in having records in the form that they are now kept, that we want to make sure the records are formatted in a better, more available, accessible fashion for people with a handicap, and finally, we want to have the most cost-effective manner of it being done.

I think, if you put all three parts in there, maybe rewrite them a wee bit to be compatible in the same paragraph, then I think we've got everything nailed down there and certainly are still expressing the need for an expansion of the accessibility.

Mr Hope: Okay. I would agree with that, that all three -- the two recommendations, not all three but the two recommendations be -- so it balances out the access of information, cost-effectiveness and the fee issue that was addressed by the disabled community on this issue.

Mr Wiseman: Are we hingeing on the edge here of giving municipalities and school boards and others another reason for not giving information by --

Interjection: No.

Mr Wiseman: Because I would not want to, by saying that the cost of doing this is too much.

Mr Elston: I think the first sentence basically says, "The act is to be amended to provide increased access," first; and then we go on down and just say, "Further consideration has to be given to how we can do it in the best and most cost-effective manner." And then finally, that, "If there is a cost associated beyond the cost of making a paper record available, then only the amount charged for the paper record will apply to the alternate format."

I think that's actually broadening it a fair bit.

Mr Wiseman: Okay.

Mr Elston: Because now I think what a municipality might very well do is say, "We can make it available to you in Braille or in audio, but the cost is the cost of the paper record plus 10%," or whatever. I think this really puts a much more definite view as to how we think the record should be made accessible. I think this is more helpful, at least in my view.

The Chair: It being 6 o'clock, this committee is adjourned until next Wednesday at 3:30.

The committee adjourned at 1758.