REVIEW OF FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT, 1987
ONTARIO BOARD OF EXAMINERS IN PSYCHOLOGY
CANADIAN DAILY NEWSPAPER PUBLISHERS ASSOCIATION
CONTENTS
Tuesday 26 February 1991
Review of Freedom of Information and Protection of Privacy Act, 1987
Canadian Broadcasting Corp
Chris Armstrong
Ontario Board of Examiners in Psychology
Afternoon sitting
Canadian Daily Newspaper Publishers Association
Adjournment
STANDING COMMITTEE ON THE LEGISLATIVE ASSEMBLY
Chair: Duignan, Noel (Halton North NDP)
Vice-Chair: MacKinnon, Ellen (Lambton NDP)
Cooper, Mike (Kitchener-Wilmot NDP)
Frankford, Robert (Scarborough East NDP)
Marland, Margaret (Mississauga South PC)
Mathyssen, Irene (Middlesex NDP)
McClelland, Carman (Brampton North L)
Morin, Gilles E. (Carleton East L)
Murdock, Sharon (Sudbury NDP)
O'Neil, Hugh P. (Quinte L)
Owens, Stephen (Scarborough Centre NDP)
Villeneuve, Noble (Stormont, Dundas and Glengarry PC)
Substitutions:
Huget, Bob (Sarnia NDP) for Mrs Mathysssen
Ward, Brad (Brantford NDP) for Ms S. Murdock
Clerk: Arnott, Douglas
Staff: McNaught, Andrew, Research Officer, Legislative Research Office
The committee met at 1006 in room 228.
REVIEW OF FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT, 1987
Resuming consideration of a comprehensive review of the Freedom of Information and Protection of Privacy Act, 1987.
CANADIAN BROADCASTING CORP
The Chair: I would like to call the committee to order and I would like to thank everybody for coming along here this morning. Our first witnesses are from the Canadian Broadcasting Corp. Gentlemen, you have 15 minutes to make your presentation and roughly 15 minutes for questions afterwards.
Mr Henry: My name is Daniel Henry. I am a lawyer with CBC, in-house. Gerry McAuliffe is a reporter for CBC Radio, and Bill Kendrick is a producer at CBLT in Toronto, our news shows. We have given you our submission in writing. What I will do is highlight some parts of it briefly so we can leave more time for questions. You will notice that it is in very simple form on simple paper. It does not have any fancy three-ring binding. If we get more money in the budget today from the federal government, we will be glad to resubmit it in a more glossy form.
Mrs MacKinnon: You are not holding your breath, are you?
Mr Henry: If I can just take you through it, we have two or three major areas that we want to address. The first is cost. Costs, we feel, should not be a barrier to access to information. An example that Gerry ran into recently was that he asked for information and was told that it would cost him $3,500 for the information; $3,500 just to see if there was something there he was interested in. Nobody could ask for information and expect to receive it on that basis. Cost is a barrier to access to information in this case. So we have raised a few possibilities. In 1a, you see that we talk about just eliminating those search and review fees -- severance review fees. In 1b, we refer you to the American legislation where representatives of the news media, among others, are given access to information free of search and review fees. They only pay for photocopying. And there are other organizations and categories of people that are covered. In fact, if you look at the bottom of lb, it says that no duplication costs or search fees or review fees are charged if, quote, "disclosure is in the public interest because it is likely to contribute to public understanding of the operations...of government." So there are real options there for you to eliminate fees in the public interest. There are a couple of suggestions as well on how waiving fees might be a more useful exercise.
Point two deals with something that is not covered by freedom of information legislation at the moment, and that is photocopying outside of the departments that seem to be covered, court documents specifically. If you go to a courthouse, the cost can be a dollar to photocopy a page. The suggestion is there should be a set photocopying rate for all information coming from government.
The third point is that civil servants, according to legislation, are not encouraged to release information. In fact, it is quite the opposite. Civil servants are discouraged from releasing information. And that, again, is a barrier to access to information. One point that is not made here but which could fit in this category is time limits. At the moment, you have got 30-day time frames. In the United States, the initial time frames are 10 days and 20 days. Some consideration, we think, should be given to reducing delay, because delay is being used as a tactic bureaucratically, we find, to keep information from the public.
The fourth point has to do with having the operation of the Legislature not exempt from the application of the freedom of information legislation. It is fairly straightforward; we do not see why it should be exempt, but at the moment it is exempt.
The fifth and sixth points deal with the police, and I would just like to quote to you from Mrs Gigantes, in Hansard, from June 1987 when there was a discussion on this bill. On page 1169 of 8 June 1987, she says: "In my view, if ever there is a reason to have freedom of information in a democratic society, it is to make sure that such agencies as law enforcement agencies, defence agencies, security agencies and police agencies are subject to the control of the public. They cannot be subject to the control of the public unless the public has information about their activities." That is the philosophy that we are bringing to bear in this general discussion.
So there are two things that we address. One is the compelling public interest segment of the legislation. What Mrs Gigantes was saying at the time was that section 23 of the act should be amended so that it can be argued that there is a compelling public interest to have access to law enforcement records. That is not there at the moment as an argument, and it should be.
The second thing is this whole debate that you have been discussing, that relates mostly to the municipal freedom of information act but also to the provincial act because it is the same language that affects the OPP as well as the other forces. What has happened is the new interpretation has come into being, and if I understand the debate correctly, what has happened is there was a history of a flow of information to the public. There were no problems really. There were no problems. There was no call for legislation to clamp down on that information. The new freedom of information act came in in the provincial context; there were no problems. Then the municipal one came in and different police forces -- a few police forces -- started to interpret it in a certain way. And they said, "Excuse me, help us. We have no choice. The freedom of information act forces us into these interpretations. We don't even want these interpretations. We are forced into it." So they then came out with these interpretations, caused great difficulties. If you want to discuss these with us, there are a few examples attached to the back of this where we have not been given access to information that we think is critical. And our basic point is that we should go back to the way we were, to allow the flow of information so that we can get direct access to sources of information other than the police. And you cannot get access to direct sources of information other than the police unless you have their names. We are not asking for their life histories. What we are asking is that we get their names, not to provide the police with an excuse not to give us their identities, and not to provide them with a virtual veto over public access to very important information about what is happening in the community.
Just one example shows you how ridiculous we think it is. A policeman in Sudbury shoots a man dead in January of this year. Shoots a man dead. They will not tell us who the policeman is, and they will not tell us who the person they shot is. The information came out through neighbours. The police should be giving us that information. They should give us the name of the officer, and they should give us the person who was shot dead so that we can investigate it in the public interest and let everyone know what is going on.
The one other thing that we have given you -- and then I will open this up to questions -- are occurrence reports. We have given you one page of typical occurrence reports from a year ago and from today. If you look at the one from 14 February 1990, you will see a number of robberies, and you will see people identified. The police used to hand these out in Toronto every day, and we would be able, at our discretion, to find these people, talk to them on or off the record to find out what was going on in the community, and then do stories on it. Today we get pages like the one you have from 25 February 1991. A 27-year-old male reports that on 23 February, such and such happened. You cannot follow that up. These are real problems, and it means a decrease in coverage. If you want to ask more about the coverage, I have my two friends from radio and television here to talk about that further. With that said, we are happy to take questions.
The Chair: Sorry, I was busy reading this. Thank you very much. Mr O'Neil.
Mr H. O'Neil: You mentioned the civil service. Are you saying that as far as freedom of information goes, they are trying to delay you or put you off in every circumstance, or are there just certain areas where you find that?
Mr McAuliffe: I think it varies from ministry to ministry and from issue to issue. I have had requests going to the Ministry of Correctional Services where I had full documentation probably within the space of two weeks. I have had applications involving the Ontario Human Rights Commission that took us over a year to resolve and other issues involving the Deputy Minister of Communications which took almost a year to resolve and which resulted in the end in the destruction of the documents that we were seeking. So it depends so much on the issue and the individual you are dealing with. One of the great difficulties that arises sometimes, of course, is the role of the freedom of information co-ordinator within a ministry, because one of the difficulties is they are not quite as independent, I think, as they should be. The responsibility is theirs to produce the documents or comply with what the provisions of the act are. However, they are also subject to the instructions of their deputy ministers.
So while a freedom of information co-ordinator may, in her view or his view, determine that we do have full access to these documents, if the boss comes along and says, "You are not giving them to them," as we have had happen in the Silcox case, then it creates enormous problems and considerable delays.
Mr Henry: It is interesting, in the case that Gerry was referring to, that when he asked for information the bureaucrats gave us the least amount of information that could possibly fit the description, to the point of giving us the fronts of American Express receipts but not photocopying the backs. And when we found out that there was information on the backs that we needed -- that was months later -- the time period for appealing had passed. We learned when we asked, that the documents were destroyed.
Mr McAuliffe: How can you have an act that provides absolutely no disciplinary or punitive measures for people who do not comply with it? As I understand this act, there is a punitive process to deal with people who breach people's privacy. I quite agree with that. But surely if you are going to have provisions in the act to deal with breaches of privacy, there should also be provisions in the act to deal with bureaucrats who either lie about the existence of documents or destroy them. If you have nothing to fear, why not screw the system around?
Mr Kendrick: Because, in fact, fear works in the reverse. They are more afraid about releasing something that would violate the privacy act, since there is no provision for any sanctions if they do not provide the information. So the safest thing for someone to do is to not release the information. Therefore, they cannot violate the privacy act and there is nothing to say they have to release it under the freedom of information.
Mr H. O'Neil: I do not disagree with you at all. If it is there and it is public business and it is public money that is being used, I guess it is just knowing when it infringes upon an individual's privacy in certain cases, and it may not in the case you are talking about. And I guess it is maybe the slant that -- you know, is there a particular slant? I know, Mr McAuliffe, that you talk, too, about Rambo journalism and how some reporters use certain things and slant it a certain way. You might have some comments on that. I know you spoke on that on the weekend.
Mr McAuliffe: Yes. You see, I have no problem with the privacy provisions. Let me give you just one example in the Silcox case. I had no difficulty with the ministry removing the names of the individuals that, say, were entertained over a $700 supper. What I do think we have a right to is the nature of the government business that was involved. So what we ended up with was a situation where a bureaucrat withheld all the information, denied it existed. By the time we discovered by other means that it existed, the appeal period had expired. Fortunately, I was able to write to the commissioner and ask her in light of these circumstances to reopen it. And she did. I have not run into any situations yet where I disagreed with the commissioner or a ministry on the withholding of private information. In one case -- as a matter of fact, in the human rights commission case -- where a certain individual was put into a job, we requested that individual's qualifications. The human rights commission insisted we did not have a right to it. However, the freedom of information commissioner ruled in the end that public interest overrode the right to privacy and we got it.
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So I am having no difficulty with the process that exists in seeking that information out and the protection of people's privacy. What needs to be done is we do not need a 30-day period to produce the documents to begin with -- which, by the way, can become automatically 90 days at the end of the 30 because they can just write you a letter and say we need an extra 60 days. That needs to be shortened significantly. The search fees are astronomical. In the case of the Ministry of Culture and Communications, they sent us a bill for $3,650, claiming that it was going to take a file clerk five and a half weeks working non-stop to obtain these documents and then it was going to take 2,200 pages of photocopying to produce them for us. The whole purpose of that bill, in my view, was to discourage us from getting the information. They might as well have sent us a bill for $8 million, because with the CBC budget these days, going to them and asking for $3,500 to pay for government documents is absurd. So the process becomes a licence to obstruct you from getting the information you are seeking, and I do not think that is what the intent of the legislation is all about.
Mr Henry: And an interesting point: I went to a seminar recently on the freedom of information act and some people were saying how you get around the legislation. One of the suggestions was that there is two hours' free search time, so instead of making one application -- Gerry was silly enough to actually ask for what he wanted. He said, "I would like the following things." Well, that is not the way you do it. What you have to do is to break it up into two-hour chunks and put in 20 applications, and you get it all free. This is something we have discovered. Is that the way the law should work? I think not.
Mr H. O'Neil: I know that you gave us two examples there of news articles. One was where that chap was found in the bush and had been there for a while. What about in a case like that, not that particular example, but what if it had been a suicide? Would you have carried that story on a suicide? What is your policy in that area? In other words, what we were talking about: releasing the name of a rape victim or a suicide victim or other such examples as that. What is the policy that you would use?
Mr Kendrick: The policy that we have at CBC television is very clear on suicides and sexual assault cases. In sexual assault we do not report the names of victims. In the case of suicides, the name of a victim would be reported if the stature of that individual was such that who the person was became a major part of the story. Basically, we do not report on suicides unless they have compelling public interest.
Mr Henry: The other thing to note is that the distinction we are talking about is access to information, as opposed to publication. We understand that there may be concerns with publishing these things and that is why our policy is as it is. But we are not asking you to amend the legislation to get us to publish; we are asking you to give us the information so that we can contact the people to get more information to make a valid determination about whether there is something to publish.
Mr McAuliffe: I can tell you that I have had numerous situations in my 32 years as a reporter involving crime stories where we have run into circumstances where the family has asked us not to identify certain people. I would say probably in 95% of those instances the request has been granted. We often run into situations where the interest of the family or the interest of the individual far outweighs the gravity of the story. The only suicide that I can think of that has ever run in recent years was the guy who jumped through the glass roof of the Eaton Centre. And the only reason for that -- it was not known until the next day, actually, that he had committed suicide. When that incident first happened, it was thought that he was a window cleaner who had fallen off the scaffolding and gone through the window. It was only discovered the next day that it was a suicide.
Mr H. O'Neil: Yesterday we had the radio and TV people here, and I guess what we are looking for is responsible people in the journalism field -- that if there is information out there, it should be given to them if it involves the public or public money or things like that. But there are other areas which I sometimes wonder on, as I say. Maybe Mr McAuliffe would like to comment on this, but I sometimes wonder when it comes to freedom of the press and the slant of stories and sometimes their content, where there is a lot of competition out there among reporters to have their stories run, whether it be on the CBC or whether it be in newspapers -- again, I understand you touched on this over the weekend, about some Ramboism among journalists. I sometimes relate to maybe some of the London, England papers and the tabloids and I wonder if we are not leaning a little bit towards this in some of our papers. How do you -- again, freedom of information and protection of individuals where they need to be protected. I wonder if I could have your comments on that.
Mr McAuliffe: I think that Canadian news organizations are rather tame compared to many news organizations, for example, in Britain and some parts of the US. By the way, the issue that I raised on the weekend with respect to Rambo journalism was some criticism I had levelled at the Globe and Mail over their handling of the Don Getty story, which is sort of totally different than the issues that we are trying to address here today. But trying to respond to your request, the issue boils down to a matter of training, good taste and good judgement. And the point that I was making on the weekend is that there is a need for news organizations to spend larger amounts of money in the training of people. It is like any practice, whether it is journalism, real estate, law, medicine -- whatever the case happens to be. The greater the amount of money you invest in the training and education of people, I think, the more responsible and the higher level of professional conduct you get in the end. It is an issue that is different than this, but I see the point that you are raising. It is the point that I was trying to make on the weekend, which is that, yes, we have a great need to invest considerably more in the development of journalists in the country.
Mr H. O'Neil: Again, I may be subjecting myself, because the power of the press is very powerful, but I even wonder with some reporters -- and I guess it sort of raises the wrath of some politicians, because a lot of media people are also very critical of MPPs or government in general. I sometimes wonder, when they have been around a while, whether that cynicism grows within them, where they are always very critical.
Mrs Marland: Why would they not be?
Mr H. O'Neil: But I often wonder when, in certain areas -- and it is a very difficult job in the media, and we sometimes build up certain relationships. But I find that maybe some of the feeling within politicians is because of the continued criticism they get from people within the media who are always talking about the bad things. Whether it be an ordinary MPP or a parliamentary assistant or a cabinet minister, they fail to look at the amount of hours that these people put in -- how they put in a lot of time up here, how they go back into their ridings and are working on the weekends when they are back there, and how they really work not only here at Queen's Park to help people but also work very hard in their ridings to do little things that the press never points out. And maybe that is some of our problem there. But you know yourself --
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Mr McAuliffe: I think your criticism is a valid one. One thing we do not run is a perfect business by any stretch of the imagination --
Mr H. O'Neil: As we do not.
Mr McAuliffe: So your criticism is justified. But let me take it the one step beyond that as well. One of the difficulties as a journalist is this: The stories that people remember are the critical ones. If I were to do a story tomorrow on what a great member Hugh O'Neil is and how he busts his ass here and down in the Trenton area for his constituents, it is not to say that it is not a valid story, but it is often not the story that people remember in that day's news.
Mr H. O'Neil: Or the one that your editors will print. And yet I sometimes wonder, and maybe we are getting off the subject a little bit, but I wonder if people are not looking for a little more of that rather than a robbery victim or somebody like that. l just --
The Chair: Thank you, Mr O'Neil. I think we have allowed a little more time than normal, so the remaining two parties have about 15 minutes each. We are running a little behind time. You know I am fairly flexible; however --
Mr H. O'Neil: We do not get a chance very much --
Mr Villeneuve: The shoe is on the other foot.
The Chair: It is very seldom that the politicians get to question the media, as I indicated last night. However, we are in a very tight time frame today. Mrs Marland?
Mrs Marland: Gerry, l was kind of smiling when you were talking about the Ontario Human Rights Commission case, because I think you and I were both deeply involved in that issue at the time, and I shared your frustration from another purview, really. I am interested in what you were saying about the fact that you deal with the privacy -- what is the term for that privacy person in each ministry?
Mr McAuliffe: The freedom of information co-ordinator.
Mrs Marland: Co-ordinator.
Mr McAuliffe: Yes.
Mrs Marland: So the person that you have to deal with in each ministry is an employee of that ministry and not of the commission.
Mr McAuliffe: That is right.
Mrs Marland: So maybe that is where the problem is.
Mr McAuliffe: It may well be. The problem with that is, how then do you appeal, before the privacy commissioner, what a commission employee might have decided to release or not to release within a respective ministry? I do not know --
Mrs Marland: Well, maybe that is a better gambit than this business of an employee within the ministry saying yes and then finding that his or her superior, whether it is the assistant deputy minister or the deputy minister, reverses it.
Mr McAuliffe: In fairness, on the Silcox stuff, if I implied that the freedom of information co-ordinator was prepared to release stuff that Silcox was not, I should be very careful how I phrase that. What I can tell you is that the freedom of information co-ordinator had to have known that the documents that we sought existed.
Mrs Marland: Right.
Mr McAuliffe: The way it is supposed to work is that you send the documents with the part that is a privacy breach blacked out. What they did in this case was to send us only part of the document, which is wrong. You do not know then what it is that is missing. And I do not believe in that case that that was a decision made by the freedom of information co-ordinator, because I had dealt with her on previous occasions on other matters and had not run into that.
Mrs Marland: Which comes to the fact that -- if we were in the Legislature and I used the word "misleading," I would be in trouble. But that kind of action is totally misleading. If you are making a request for certain information and you are only given half of it, while the other exists, it is totally misleading. And if there is some way of you knowing that, as you say, and if it is the privacy thing and it can be blacked out the way it is with the normal process, then you can accept it.
I think that freedom of information, for the public to have access to as much as possible in government, is a very important step, and if it is not working well for people in your profession, then as far as I am concerned it is not working. Because you are the people that are doing it for a living. I think -- and I said this yesterday to the television people -- that for the most part everybody in Ontario acts very professionally. l do not feel the same about the United States particularly. But I think we have a very high standard of journalism and reporting in Ontario in all media forms. l think it is interesting that you brought the point up this morning that there is no penalty on that side, on the freedom of information side.
Mr McAuliffe: Is it not amazing that a civil servant could destroy all documents that exist that relate to $65,000 worth of spending of public funds?
Mrs Marland: Well, it is outrageous. It is outrageous. And the irony is that we are required -- I do not know how many years we are required to keep our files; I think it is 10 or something. Seven, is it? But whatever applies should apply to all documents, not just the expense chits of an individual or the hotel bills.
Mr McAuliffe: Precisely.
Mrs Marland: It does not matter what the document is. It is a matter of following the flow of the taxpayer's dollar in this province.
Mr McAuliffe: We asked for other documents in that case, by the way -- they were not financial documents -- that we were never given until the second appeal. We asked for itineraries, for example, on his Asia-Pacific Rim trip, and it was denied that those documents even existed. It was only months later that we discovered they did exist. We eventually got them.
Mrs Marland: So it was very selective.
Mr McAuliffe: Oh, well, in that whole process, as far as I was concerned, the ministry did everything it could to deny us as much as it could. And that is not what this bill is about.
Mrs Marland: It is not what good government is about either, I would suggest, in the interests of the public. But I also think that when this committee looks at our report on this legislation, we have to look at the fact that -- I remember with the OHRC that it took a year, I think, for you to get that decision.
Mr McAuliffe: Yes.
Mrs Marland: And that is almost a deterrent. You talk about the financial cost as a deterrent. But a year later, perhaps that person has died, perhaps the issue has totally gone away, or whatever it is. If it is really going to serve the interests of the public, then it has got to be more accessible than a year later. And if it means that it is a staffing thing, or whatever it is, l think that is a provision that must be made.
One of the things that we talked about yesterday -- I guess maybe we do not have time to get into it, to be fair, do we?
The Chair: Your colleague has a question.
Mrs Marland: Oh, do you have a question?
Mr Villeneuve: Gerry, you have been around this business for a long time. Prior to this legislation we talked and heard of plain brown envelopes and all this kind of stuff. What were your sources of information? Was it easier to get information prior to this? I mean, is this freedom of information or is this privacy?
Mr McAuliffe: No, it is a very important bill. It has opened the door to stuff that I could not get before. Absolutely no question about that at all. The problems with the bill are process and, as Danny points out, interpretation. The bill is not clear and specific enough, in areas like the releasing of police information, that people clearly understand.
Mr Villeneuve: We heard yesterday that some --
Mr McAuliffe: Excuse me, one other thing. One of the very key points is that the $30-an-hour rate that Ontario charges is just staggering. Because when you have a civil servant tell you it is going to take a file clerk who is paid $12 an hour five and a half weeks to get the documents, and they want $30 an hour from me to get them, that ends the request.
Mr Villeneuve: There is method to their madness in that one as well.
Mr McAuliffe: That is right. When I go down to a courthouse and I need a judge's decision that is 97 pages long, and I have to pay $1.25 a page to get it, it makes it prohibitive. Why should there not be a single photocopy fee for all government documents?
Mr Villeneuve: Interpretation by different police forces seems to leave a great deal to be desired as well. Maybe you could comment on that.
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Mr McAuliffe: I think Danny and Bill are probably better equipped to deal with that than I am.
Mr Kendrick: Well, there is a real inconsistency across the entire province as to how this is being applied and, frankly, there is some inconsistency within police forces. What we have created here is a situation where the bureaucracy of the police department decides not to release information, and our police reporters then have to go inside the department to their various contacts. Police officers find themselves in difficult situations. They recognize the reputation of the reporter they are dealing with, and they know that reporter is an excellent journalist and is not going to use this information in a sensational way. Therefore the policeman figures, "Well, I will help that reporter out and give him that information," at the same time that his or her department is refusing to release it.
I think an example of where police refusal to release information to the media is definitely not in the public interest was a situation that occurred here in Toronto, in High Park, just this month -- 17 February, just a week ago. All that was released was that a 35-year-old male was walking through High Park when he was approached by 10 men with baseball bats, and he was beaten. That was all the information that was released on the major occurrence form. As a result, other than one newspaper story which occurred two days later, there was virtually no coverage of this story. We have no idea whether the victim was a victim of gay-bashing, whether the victim was a victim of some racial attack. The people of Toronto are unaware that that kind of event is taking place. But if we are unable to find out information -- and it is not to say that we see that we do not have a name and we stop right there. But we are certainly frustrated in our ability to communicate to the people of Toronto events that are happening in their community, that they have the right to know about.
Mrs Marland: Or that the park is unsafe.
Mr Kendrick: Well, we could be accused by Mr O'Neil of being sensational with that type of story, by saying that the park is unsafe. We are not saying the park is unsafe. What we are saying is that these events have taken place at that park, and that here is the information that allows you to make a decision as to whether or not you want to go into that park. If that was a racially motivated incident and I happen to be of that racial background, l am not sure that I want to go into --
Mr H. O'Neil: Did they give any reasons for not releasing that information?
Mr Kendrick: Simply that the victim did not want his name released. Now, again --
Mr H. O'Neil: I do not like to interrupt, but could that be that if his name was released, maybe one of those 10 people that attacked him would know where to get hold of him?
Mr Kendrick: That is a possibility.
Mr H. O'Neil: I do not know.
Mr Kendrick: The problem that is created, though, sir, is that the police are put in a situation of having to make those kinds of decisions. And they do not want to. The police themselves will tell you, "We really do not want to be involved in this." They would prefer to leave it up to the discretion of the media. We do not want anything further to happen to this gentleman. However, by not being able to properly follow this story up and make our own case to the individual -- I mean, we do not know what the police said to this individual. There are circumstances under which the police, in the way they present this, can in fact convince the individual not to have his or her name released. We are not necessarily going to run out and say, "So-and-so, a gay person, was attacked." We use discretion in those cases. We are not full of Rambo journalists.
Mr Henry: I think one thing that can be pointed out on that story, if I may, is that you might ask, why did CBC not report it? There is a real problem in electronic journalism, and that is making your stories relevant to people. Unless you are talking to real people and getting them to tell their stories, you cannot really hold much attention. And there is a limit to how many just dead-copy stories you can do about "an incident took place somewhere." So you have to have access to the person or to the people who were there, just to talk to them. Maybe they will convince us not to put their name in, but at least one lead will go to another, and maybe you will find someone who will talk to you. As a result, we did not do that story, and we think it is a story that should have been done, possibly.
The Chair: Mrs Marland, we still have two minutes.
Mrs Marland: Well, that was leading into the area that I wanted to just ask you about quickly. We have had the commissioner of the OPP here, and we have had a representative from the Metro Toronto force, and they are actually saying there is no problem now; they now know what they are doing. They have received the new guidelines -- I guess that was not the correct word -- from the Solicitor General about how much they can release, and there is no problem because they are all doing the same thing. And yet I know that Chief Jim Harding in Halton is doing something different. And I also happen to know what a very shrewd policeman Jim Harding is, because I knew him when he was a police officer in Peel. And nobody is going to use better judgement than Chief Jim Harding. He is a superior police chief in this province. And I think this has got to be one big ridiculous mess in the province, where we do not have any uniformity. If the idea is that everybody has got to do the same thing, then let everybody do the same thing as far as the police forces across the province, with both acts.
But the other part is, as a representative of the public and a member of the public, I am very determined to make sure that as much information as possible can get out so that, as we said yesterday, we can warn our kids, our relatives, our women who might be at risk in a certain neighbourhood, anyone who might be walking through High Park after an incident like that. And it is very significant that you brought these two occurrence sheets to show us the difference. I am one of those people who think that we should get as much information as we can in terms of the suspects, so we all know who we are looking for, for God's sake. If there is somebody with that description -- we got all hyper a couple of years ago about putting down whether they were black, yellow, green or white. How ridiculous can we get with this kind of stuff? If people are committing crimes, especially personal crimes, acts of violence against other human beings, they deserve to have as much information out for the public as they possibly can. And we depend on you to get that information out.
Mr Henry: If I could just answer you briefly. If you could take a look at the news report that we have given you at the back of our brief, from the Windsor Star, 15 February, here is an incident where the Ontario Provincial Police did not release the name of a gunman who for 24 hours was holding the OPP at bay. A gunman. And the name was released in this report because neighbours gave it to us. The question for us is, should a person have a veto, as the individual's family in this case did, or the individual? Should they have a virtual veto over whether the public can understand who that person is? Because the public wants to know: Who is that gunman? Is he somebody who is rampaging through the countryside? Could he be anybody? What led him to go there? Should we be changing our social agencies to accommodate people like that? Is there a real problem? You have to have the name to be able to make that --
Mrs Marland: Is he someone who everybody knew had a mental disorder?
Mr McAuliffe: Well, he was arrested on four or five criminal charges.
The Chair: Thank you, Margaret. I have allowed a little extra lead time here because we are discussing a very important topic. We have three speakers, Mr Huget, Mr Cooper and Mr Owens, and so about five minutes each.
Mr Huget: In one of your suggestions -- I believe it is number six -- you request that the act be amended for the police to provide information which identifies victims of crime, and we have been talking about some of that, but also "witnesses to crime, witnesses to events to which the police respond, those being investigated by the police, and those accused of crime." That goes a little bit further, I think, than talking about some of the issues we have been talking about this morning.
You go on to say that release of this information -- and I want to deal specifically with witnesses and people being actively investigated by the police -- that these are areas that should not be a matter of police discretion in terms of releasing that information. I guess my question to you is, why not?
Mr Henry: For the reasons that we have given. Witnesses to an event will tell us from a variety of points of view what really happened. And the community wants to know, if somebody is murdered on the street, what really happened. They do not want to hear an official police version in a paragraph of what happened. They want to hear many different points of view, and the more points of view we are subjected to, the more truth we can bring to bear in our report of the event, which may be very different from the police report. That is why the more access to direct sources of information, the better the quality of information.
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Mr Huget: Do you not feel that in some situations, identifying witnesses would indeed cause them major problems, if not physical harm?
Mr Henry: Clearly there are a variety of concerns that have to be taken into account in publication. We are asking for access to them, not necessarily an absolute guarantee that we will publish their names as soon as we get them. In fact, as we have attempted to demonstrate, in the cases of victims and witnesses, we are very sensitive to their concerns. If somebody says they are afraid of harm befalling them, we are very concerned about that. In fact, I have indicated that the only exceptions to this would be where there is a reasonable apprehension of harm to the person identified. So if the police in this scenario think the witness will be subject to harm, we would, in that case, understand not being given the name by the police.
Mr McAuliffe: I have had calls from the police on stories that I have done where they have provided us with the names of witnesses after they were finished with them, we have gone out and interviewed them and then the police have called us the next day, saying, "We are really interested in that, because they never told us that" -- where we ended up getting more information out of the respective police witnesses than the police themselves did.
Mr Huget: I am just curious in that many witnesses, l think, do not want to be identified in terms of the public. And I guess what you are saying then is that you feel you have a better mechanism of exercising discretion than the police may have in order to release those names?
Mr McAuliffe: That is right.
Mr Henry: I do not think necessarily that we are saying we have a better mechanism. The police are able to bring a number of considerations to bear that may be very worthy but there should not be a total check. It should not be up to a single police officer to consider the entire public interest. Other members of the public in a democracy, members of the media, should have the ability to bring the same considerations to bear.
Mr Huget: You also say that people who are being investigated by the police should be a matter of public record, or at least you should have access to that. I wonder what your views are in terms of someone who may be being investigated and no charges are ever laid -- one of your perhaps minority Rambo reporters goes on a mission to identify this person and serious harm is done to that individual, and no charges are ever laid. What responsibility would you have?
Mr Henry: Well, there are laws of defamation, and there are limits to what you can say about someone. Certainly, as a lawyer who on a daily basis responds to journalists asking what they can publish about people in those circumstances, I know that not all the information we get is published. But there are circumstances when companies are being investigated for violations of certain legislation, or individuals -- not necessarily for murder -- are being investigated, where there is a public interest in that. There might be occasions when the police are harassing an individual, where they are investigating him over a six-month period. What if it is a major public figure who is being investigated, whose life is being hampered by the police? Just knowing who the person is -- and that is what we are talking about -- clues us in and allows us to get the information, and it helps us to make the decisions.
Mr Huget: And you see no possibility of that information, in an investigation where no charges are laid and nothing is being actively contemplated in terms of charges, you see no possibility for that information to be misused by anyone?
Mr Kendrick: Oh, I do not think we are arguing that it cannot be misused. We would be naïve to suggest that it cannot be misused. But as Danny indicated, there are defamation laws in this country that apply specifically to that, a specific law that deals with a specific problem, as opposed to the problem created here, which is a much broader stroke. There also has to be -- I cannot speak for all journalistic institutions, but in terms of the CBC, we have some very rigorous journalistic policies that must be satisfied before we would ever go to air with any story about someone being investigated. Simply because we have the information that the individual is being investigated does not necessarily mean that we run to air with this. We need double and triple sourcing, we need confirmation, and that goes back to the problem that if the only source of information on these kinds of stories is the police, then we are at the police department's agenda. And the department has some very clear ideas on when it wants to release information and when it does not want to release information.
Mr Henry: You will find, if you follow the media, that there are many instances now where we are able to find out that a company or a person is being investigated by the police in a variety of circumstances, and we do publish it. But it is in the public interest -- if somebody is defrauding hundreds of people through mailing campaigns and the police have not yet charged them because they are collecting the evidence, we want to get that information to the public right away so that fewer people are defrauded. We have to do it carefully, but there is a public interest in getting that out.
Mr McAuliffe: There is another criterion, though. The police cannot really have it both ways, when they decide they are going to refuse to release everything this morning and then at 11 o'clock call a press conference to announce that they had a raid on a house of prostitution last night and they arrested a very prominent lawyer and, "Here is his name, and we have charged the owner," and then announce a week later, "We are going to withdraw the charges because we made a mistake." I mean, the existing system is unfair, every way.
Mr Cooper: I would like to commend most Canadian journalists as being responsible and sensitive. What I am looking for is maybe some middle ground here. I understand when something happens that there is a need to know the location and the incident and some of the background to it, and I understand the police are kind of reluctant to release that. But what you are also saying, on the other hand, is that once everything is solved and you actually have a body -- I do not understand the need to know. l guess what I am saying here is that the reason I am not in journalism is because I am not curious. l do not feel I need to know.
What I want to know is if there is any middle ground where you can protect, say, the victims, especially in these purse-snatchings where they may not want somebody coming and bothering them. A lot of times these are older women and they are usually on their own and they maybe do not want to be bothered. As it is, they have been traumatized, and now the police are investigating and things like this.
Do you feel that you have to go and investigate, to follow up on that, or do you feel that maybe you just have to report that there were six incidents of purse-snatching in a certain block, in an area, just to warn the people? Is there a middle ground?
Mr Kendrick: Well, the difficulty that scenario somewhat places us in is that if we merely take what the police tell us and report it, we put ourselves in jeopardy of reporting irresponsibly and in not finding out all of the information about something. This then puts us in the situation that Mr Huget suggests, that we just run off and put that kind of information on the air. Our ability to talk to victims of crimes, to witnesses of crime, allows us to do a much broader story and give a better context to events that are taking place. Again, your question somewhat pre-supposes that we get a name, we broadcast a name. That is not the way it works. But we need the name to be able to find out more information about it.
Mr McAuliffe: If an old person does not want to be interviewed, you are certainly not going to push it. On the other hand, we have had instances of victims of purse-snatchings where their old-age pension has been stolen and they have no money now for the next four weeks. As a result of their identity in the press, somebody has sent them a cheque for $100 or a $1,000 or -- do you know what I mean? Again, it is all over the map, and it really boils down to the discretion of the respective news organizations involved and how well they treat these situations when they develop.
Mr Henry: I think what we are saying is there is a middle ground. But that is not the issue. The issue is who judges where the middle ground should be.
Mr Cooper: Should the middle ground be the victim, whether or not they want to be interviewed?
Mr Henry: Of course.
Mr Cooper: Should they be able to withhold their name from the police report? Would that be a middle ground?
Mr Henry: I think it depends. As in anything, it depends on who the victim is and what the crime is and what the public interest is. And there are a lot of considerations that have to be brought to bear, so that you cannot give a definitive answer. The question is not whether there are these considerations, but who should decide.
If you say to the police, "You decide," then what you are doing is stopping a whole bunch of other people from making the same decision. If you say to the police, "You must give it out, but all you other guys decide," then that is how democracy is supposed to work; we work it out. And there are penalties for organizations that put out information that the public is offended at seeing. So there are real restrictions on what the media want to put out because they get the flak from the community directly.
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Mr Cooper: What I am saying along this line, too, is that there are also people who are out looking for media attention, and they do certain things to try and get their names put in the press. Maybe that is a reason for withholding names, so people do not go out and get the media attention.
Mr Henry: Well, they can always come forward with or without police help.
Mr Cooper: Okay. Thank you.
Mr Owens: Mr McAuliffe, here with my cold this morning I could introduce myself as Deep Throat. You made a comment about some of the difficulties that you encountered with respect to your investigation of the former deputy over at Culture. Could you maybe give us your list of the top three or four or five ministries that you had the most difficulty with, and how they have responded to your requests for information?
Mr McAuliffe: Well, the answer to that is no, because I have not made enough requests of a large number of ministries to be able to rate them. The two biggest difficulties I have had so far were with fairly big stories. They involved the Ontario Human Rights Commission and the Ministry of Culture. Other requests that I have put in have been dealt with quite expeditiously. As I said earlier, a lot of it depends on the nature of the story.
Mr Henry: If I could just add that I have done a survey on journalists and on CBC across the province, and what I found is that we do not make a lot of use of the freedom of information legislation, number one. I was surprised by that. I think some people have taken the attitude at the beginning that, well, they will just try a bunch of ministries and go on a fishing expedition and the fishing did not work. So what tends to happen now is that when we get wind of a story we then go after a document. And that is not the way it should be, I think. I think what should happen is that the barriers should not be there; people should be able to do some knowledgeable fishing. We are not going to waste our time, you know, going through months of paper. We have to be judicious in our selection of targets. But I think the act should encourage fishing, which at the moment is not taking place.
Mr Owens: Do you believe that the family or the victim should have the right to veto the use of his or her name? The comments about the story at High Park and the possibility that it was a case of gay-bashing -- I guess my concern is, how would you forward civilization by publishing that type of information? And again, in situations like that, do you feel that the family or the individual should retain the right to veto the use of that, either the name or the selected information?
Mr Henry: If I could answer, I think in my experience -- first of all, we are not talking about vetoing publication; we are talking about vetoing access to their names. In practice, we are very sensitive to people in those circumstances, as you have heard from my colleagues, in the decision to publish or not publish their identities. But the access to them is extremely important.
Mr McAuliffe: You know, there is an interesting point here too. It is that you can get somebody who makes a decision at 8 o'clock at night that they do not want their name published. Overnight their friends and family have met and everybody has become indignant about what happened. And yes, it is time to speak out. However, that message is not necessarily conveyed back to the police department because the police officer involved has gone off shift at midnight. So there you sit, unable to do anything with it. Your only hope is that the family may call out of the blue and say, "We've got something we want to talk about."
The Chair: Thank you, gentlemen, for coming along from the CBC this morning and presenting your brief and views. On behalf of everybody at the committee, we appreciate one more time an opportunity to question the media. Thank you for coming along.
CHRIS ARMSTRONG
The Chair: Can we have the next witnesses come forward, please. Professor Armstrong and Professor Houston.
Mr Armstrong: Yes. She is not here. I am here alone.
The Chair: Order, please. Thank you, Mr Armstrong. You have about 20 minutes or so to make your presentation.
Mr Armstrong: My name is Chris Armstrong and this is a submission that I made with my colleague at York University, Professor Susan Houston, who is the director of the Robarts Centre for Canadian Studies. She is not here. She has to teach this morning, and we decided that our friend Dick Allen, the Minister of Colleges and Universities, might find out if she cancelled her class. So she stayed to work and sent me instead.
I have given you a document and I do not intend to read it to you, but I do think it raises some concerns that we have as academic researchers out of personal experience and out of things we have discovered institutionally. For that reason there is also a letter from the vice-president for research at York University indicating that these are concerns which extend in the research community, in academia and through the university. And I suppose that I should just explain what those concerns are and some of the impacts that this act has had on the work of historical researchers and other researchers in the social sciences.
I listened with interest to Mr McAuliffe. He got the expense accounts after five months. It was a long time. I have had a freedom of information application in dealing with 35-year-old records of the Attorney General's department at the Archives of Ontario for over two years now. I work very slowly and I can wait. My graduate students, however, cannot wait. They come to me; they have to do a degree and move on and try to get a job. And they have to change their topics. Now, this is not because of obstructionism on the part of the archives, I hasten to say.
One of the things that seems to have been done was that the act was passed out of a sense of its importance, with which we agree. But what was not done in many government institutions was to provide sufficient manpower and womanpower to administer the act. And this is in contrast with the Access to Information Act, as it is called in Ottawa, where government bureaucracies generally can respond much more quickly because they have the necessary staff to do the job. The Archives of Ontario, to give you one example, does not have enough staff to do that kind of job and so I have had to wait. And I cannot in all honesty say that in some instances I have not heard of good reasons for waiting, because some of the staff has been busy looking into records of this unhappy affair of the Christian Brothers schools at Alfred and in Uxbridge, where both the people who were in the schools and other people who may be subject to charges are asking for the archives to review records and let them see what is in them. So my attempt to snoop into the affairs of some crooked stockbrokers in the 1950s can probably wait a bit.
But the problem is that this is a real concern to researchers and especially to graduate students who cannot wait. And so I suppose what we want to do here is to make it easier for serious researchers to get access to the records that they need while protecting the rights to privacy. Privacy is a motherhood question, I think, and we all agree. And I say in our brief that we are not intending to violate personal privacy.
But there is a provision in the act, as you probably know, for researchers to sign agreements which permit them to see records which otherwise would be denied to them under the privacy sections, including personal identifiers, if it is demonstrated that there is a good reason for that. We think that ought to continue and, indeed, it ought to be extended because one of the things that the Williams commission said when they examined this issue in Public Government for Private People, which was the basis upon which much of the act was originally drafted, was, and I quote from the brief, "It is our intention to ensure that access to archival material related to identifiable individuals for research purposes will not be hindered by our proposed privacy protection scheme."
Our point is that, unfortunately, it has hindered access. Things that were once open are now closed, and it is very difficult and time-consuming to get access to them. Just to give you one example, a very long time ago, over 20 years ago, I examined the records of the Attorney General's department. At that time all you needed was a letter from the Deputy Attorney General. Now when you go to the archives and try to look at the same documents again, you are told they are closed for 75 years from the date of their creation -- that takes us back to 1915 -- and that you will have to wait for a review process to go on, which can take two years or more.
So that effectively discourages all interest in these questions in practical terms except for the most persistent or, in my case, slow-working researchers who can wait a bit and do other things in the meantime. Other government agencies have similar problems. I have been dealing with the Ontario Securities Commission. They had to depute one of their staff lawyers and some secretarial staff to review a whole mass of documents at an enormous cost, which I was not charged for, I am happy to say. They did not think to bill me; I do not know why. If they had, it certainly would have ended the project immediately.
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But these are problems. You cannot put an act in place and then not provide the machinery to make it work. This is only going to be made worse, I think and I fear, because of the extension of the act to cover municipalities at 1 January. It is reputed in the academic community that some municipalities have taken the following decision informally to deal with the problem: They are just going to throw all their records away. It is a big hassle to administer them and nosy people come around and want to look at them, so why not have no records? That does not seem like a good decision in terms of public policy and it runs directly contrary to the philosophical thrust of freedom of information.
So if you are going to have this act, let's make it work better. That is, I guess, what we are saying, and we have provided about half a dozen suggestions as to how that act might be improved as a result of your review. Particularly in this case of archival material, we run into problems when we try to examine records which do contain personal information about people. It says in the act that this personal information is not to be released about living persons. The problem is to demonstrate conclusively that somebody has died.
Sometimes you actually end up in the curious situation of applying -- say you want to see records of a mental institution dating from a period long ago, but it is impossible to demonstrate that an individual whose case records you may want to see has died, especially if that person's name has been crossed out. It is absolutely impossible. So sometimes you are faced with a document about a nameless person and told to demonstrate that the person is dead. This has proven to be beyond the capabilities of most researchers.
So what we are suggesting is that perhaps it makes sense to say that records containing personal information which were created more than 75 years ago about adults -- that is, the records were created more than 75 years ago -- ought to be releasable, with perhaps a longer period of 95 years for records dealing with those who were minors at the time the record was created. That simplifies the problem for the people dealing with access and controlling access to people. If a series of records deals only with events that occurred more than 75 years ago, then those records ought to be open.
The other thing that concerns us here is that there is a provision for research agreements, for researchers who can demonstrate a bona fide need for examination of documents. But those agreements only apply to the privacy section of the act. There are many other exemptions in the act which actually concern researchers in public policy rather more. Those include a very broad definition of documents submitted to the cabinet. There also are discretionary clauses which deal with the release of information dealing with policing, suppression of terrorism, intergovernmental relations and that sort of thing. And there appears, if I read the act correctly, to be an absolute prohibition on releasing information containing trade secrets and, as a result of a 1989 amendment, labour relations. It seems to me that those run contrary to public policy and the thrust in freedom of information.
Our suggestion is that the 20-year rule which restricts the release of cabinet documents without the consent of the executive committee concerned -- which is highly unlikely to be received, I would suppose; even getting them together would be a feat, I guess -- is far too long. We think 10 years is quite enough. That is the term of two legislatures at the maximum. Surely by that time things ought to be automatically available in the public domain.
In addition, we are suggesting that it would be of great assistance to researchers in public policy if research agreements covered those other exemptions too. In other words, you were permitted to look at cabinet documents if you could demonstrate a legitimate research purpose. Now, that of course requires some kind of policing, not in a formal sense, but care on the part of bureaucrats who have justifiable concerns about the release of this kind of information.
Our proposal is that it would be much better to do this policing of what is taken from records -- when they might otherwise be exempt from freedom of information legislation, it would be much better to do that after the fact. Because what happens now is that when you apply to do something, it has to be reviewed. It takes a very long time. People go through boxes and boxes and boxes of stuff, taking out documents and inserting typed notices, in my case, declaring under what section of the act the document in question has been withdrawn. I can only tell you that there is one good side of working on large bureaucratic collections. That is that there are normally at least three or four copies of every document in the files and they usually miss the fourth one. So you get to see it in the end anyway. But it is not really open to you. We would like to see researchers given the opportunity to have access to documents which might otherwise be exempt if they can demonstrate a bona fide public purpose. And it seems also that it would be better to do the monitoring of the information afterwards.
The point was raised earlier by the gentleman from the CBC that there are no serious penalties for people within government who suppress information. I think the other side of the coin is that we perhaps ought to take more concern about people who release information. We have not had a problem in this province but I think, if my memory serves me right, that there is a case in progress in Nova Scotia where the Minister of Health revealed something about a senior public servant in that province, about his psychiatric problems. And I think that person -- the minister -- is being prosecuted. I do not know the outcome of the case. But I think people ought not to make unauthorized use of the information they obtain, and so perhaps, if we are going to ask for more rights to see things, we may have to accept more sanctions upon us if we misuse things and release them to unauthorized persons.
Those are some suggestions about a reduction in the size of the exemptions and in the length of the exemptions, and about a recognition -- and this is where the letter from the vice-president of York makes this point -- that the university and researchers generally are attempting to advance knowledge by taking an informed view of things. You cannot analyse and understand things in an informed way if you do not have access to certain information. And so much information is in the hands of government today that to be barred from using that information means that the quality of your research is deficient. So we would suggest to you that there is a legitimate interest here, taking account of the fact that personal privacy ought to be protected and that there are some legitimate restrictions which can be imposed on the use of documents created within government -- for instance, the question of the suppression of terrorism or espionage and things like that -- but that we should consider in the amending of the act, which may follow your deliberations, making a wider range of information open to researchers more quickly.
The Chair: Thank you, Professor Armstrong. We begin the rotation with the third party.
Mr Villeneuve: Professor Armstrong, you make a statement regarding the legitimacy of research and then you use the word "policing" or the supervision of what is done with the information once it is acquired. Could you expand on that a little bit? That is a fascinating area. Once someone has the information, how in the world do you control it?
Mr Armstrong: Well, it is a difficult problem, but what I envisaged and suggest in the brief is that if you sign a research agreement, you get the right of access to certain kinds of information. At the end of that process, when you have extracted what information is useful to you -- which may be only 1% of what you have seen -- you would then submit your notes to the government agency concerned to show them that you have not taken information that you were not authorized to take under the agreement. So they do not have to go through these records, which are vast in quantity often, and take things out. Secondly, it is true that truth is a powerful force, and once somebody knows something, they can phone up Gerry McAuliffe, I guess. But on the other hand, there could be penalties for conveying this information to unauthorized persons.
I do not know if that is going to solve the problem completely, but if you take the view that you cannot do anything about that, then the only thing you can do is lock up the records. We used to do that. That brings out the brown envelopes. Unfortunately, the size of the records I need -- I wanted 50 shelf-feet of records from the Ontario Securities Commission. You need an awful big envelope for that.
So it is a difficult question. I only suggest that I have tried to answer your point.
Mr Villeneuve: Okay, and one more question. You speak of 10-year limitations on cabinet documents, etc. Now it is 20, I gather?
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Mr Armstrong: That is correct.
Mr Villeneuve: After 20 years, or even after 10 years, what would be the great hue and cry, or interest of the public? I have some difficulty with that. That becomes ancient history, really.
Mr Armstrong: Well, that is my view of it, and it also concerns me because the documents are very broadly defined, as I say on page 4. They include background explanations or analysis of problems prepared for submission to the cabinet. This is not even just what the cabinet decides. So I think that the definition is too broad and the times far too long. My problem is not Mr McAuliffe's; my problem is to get anybody to be interested in what I find. But I still think -- my point about research is that it is important to find it out. Even if it does not galvanize the public instantly, it at least will bore my students.
Mr Villeneuve: That tells us where you are coming from, sir. Thank you.
The Chair: Any questions from the government party? Mr Frankford?
Mr Frankford: An area that was discussed yesterday briefly was around birth, marriage and death certificates, and it seems that there is really considerable restriction there, although I think one could say that they should be more or less public records; the fact that somebody's birth is an obvious fact. I wondered if you have any comments on that area.
Mr Armstrong: Yes. I do not work in this area myself so I will not speak with as much personal experience. It seems to me that the fact of someone's birth is a point of public record, although this does bring up questions of illegitimacy and fraternity and so on which can be embarrassing. But I think the public has sufficient interest in knowing these things.
One other point that I did make in the brief that I did not speak about is that under the personal privacy restrictions now, information communicated to governments is restricted as well. Now, I can see that as far as communicating information about your own personal situation or about others writing in and saying, "My neighbour is a lunatic." But if you volunteer information to governments on a matter of public policy, it seems to me that that ought to be releasable. And I think, as you suggest, that as such we should consider carefully and perhaps put into the act a definition of the personal information which ought to be released, which ought to be freely accessible. I would think that birth, marriage and death would fall under that, but I concede that there are problems. I know that some people believe that privacy is an absolute right.
My proposition here is that I do not think that that is an assumption we make in our society. We do not want to violate people's privacy without good reason, but there is a legitimate public interest in knowing such things and being able to analyse these things. If we do not know the date of people's birth or the date of their marriage, there are serious public policy questions which cannot be analysed: medical ones, for instance, or demographic ones. So we have to decide what we are going to allow to be released, and I would in general recommend a broad release of information, although removing personal identifiers if necessary, where it seems appropriate.
Mr Cooper: There is one provision that I have great difficulty with, and that is the one where you ask a government agency to check the information gathered by researchers after the fact.
Mr Armstrong: Yes.
Mr Cooper: There are people that have vast capabilities of making mental notes. If they get in and they see things that are exempt, they could make mental notes and there is no way you could check on whether they have got these mental notes.
Mr Armstrong: I guess this is a variation on the question that your colleague raised, and I see the problem. I suppose, yes, once you know something, you can sometimes go and find it out other places. One of the more extraordinary provisions that I have been told is being attempted to be applied under the act at present is that if you find out something which you ought not to have seen because it is really exempt, even if you later discover the same information in a non-exempt place, you are not supposed to use that information. This seems to me to be rather a curious view of the situation, a sort of Stalinist attitude that we falsify memory.
Yes, what do you do about people who see things and do not necessarily put them in their notes? I suppose my only answer, as I tried to say to Mr Villeneuve, is you make it illegal for people to communicate that information to unauthorized persons. So they can go around bubbling with this information and knowing it, but if they cannot tell anybody else without breaking the law, then they will suffer the penalties if they do so.
But I understand the problem. I suppose my answer to you is that I have suggested this mechanism because we now face the problem of people short of staff working through thousands and thousands of boxes of paper, taking out things which the researcher would not pay any attention to anyway once they got into them. So perhaps it would be in the interests of efficiency and speed to try to do a review at the end.
I can tell you that there are colleagues of mine in the academic community who have dark fears about an ex post facto review for other reasons. They do not want to show bureaucrats what they have taken out of the records because they think there may be some censorship. I worry about that too, but again, we have to balance the desirable aspects of this against the undesirable and this is my suggestion, for what it is worth.
Mr Cooper: This is your middle ground.
Mr Armstrong: Yes. It may not seem like that to some other people, but that is my proposition to you.
Mr Cooper: Okay. Thank you.
Mr Huget: In your conclusions, your number 2 says, "The protection accorded to personal information should no longer apply to the views volunteered to a government agency by an individual on a matter of public policy." If I understand that to mean what I think it means, that if I provide the government of Ontario, for example, with a view on Confederation, and someone at some point in time decides to research the discussions around Confederation, my views would then be public. Is that correct?
Mr Armstrong: That is right, and it could be identified with you. If you wrote to the Premier and volunteered your views as to what we should do about re-Confederation or sovereignty-association demands from Quebec, then it seems to me that political scientists and historians have a legitimate interest in your views and in identifying you with your party associations and your position. But it appears that some of these kinds of information would be restricted during your lifetime under the privacy sections. We are suggesting that volunteering your views about public policy to the government -- you do not have to do it, but if you do it then people can come around and say, "Mr Huget took this view."
Mr Huget: And they could likely come around to the family that is left over after I am gone and say, "Why was Mr Huget such a wacko about this?" If I provide information which I think is in confidence to a government agency, and my views on any particular subject are addressed to the Premier or anyone else, I am speaking to him and I do not feel that I should be identified, that my thoughts and words should be identified, 30 years from now or 30 minutes from now because I am responding to him. I have a hard time seeing how that would aid research. I think the views themselves, reported anonymously, would likely aid research, but you do not need to know who I am. You may need to know at the time I wrote that I was a 43-year-old white male, but that is about all you would need to know.
Mr Armstrong: Well, I suppose you could write "confidential" at the top or "personal and confidential," which puts the communication in a different category and then I can see there is a question there. In the case of intergovernmental documents, it is deemed to be the case usually that both parties have to agree to the release of information. If you put "personal and confidential" at the top of your letter, probably it would not be released. Would you think that it never ought to be released or would it be okay, once it is 75 years from the date of the creation of the document, to have the views of MPPs about the demise of the Meech Lake accord, with their names and party affiliations attached if those records were there? I think your role as simply a 43-year-old white male is of less importance there, perhaps, than your party affiliation to the reader and to the analyst.
Mr Huget: We are not saying that. We are saying, in terms of MPPs, views volunteered to a government agency by an individual, any individual, which means any member of the public. In my situation you are quite right, there likely is a difference. I do not believe it would be in anyone's best interests, when you are researching the demise of Meech Lake, for example, that if you got a thousand letters from the general public in 1991, the authors of those letters 30 years from now be identified with whatever came out of those letters. I do not see that as being essential to anything. I see the opinions as being essential to research. I do not see the identification of individuals as being pertinent to the research.
Mr Armstrong: As a historian, it seems to me that the views of all people are not given the same weight. If the president of the Canadian Auto Workers writes to the Premier about the question of free trade with Mexico, that is both of considerably more importance to the policy-making process and of considerably more interest to historians than if I write to him, because of the office the person who wrote the letter holds. I think it ought to be possible to identify those views if they are volunteered. I think "volunteered" is essential here. I do not want people's opinions extracted from them by requirement and then turned over to people. But I think if you volunteer your views on public policy you have entered into the public arena and therefore can find yourself identified with those views and have those views attached to your name. Perhaps I am wrong, but that is the view that I would take.
Mr Huget: Do you feel a situation such as that, knowing these things are going to be publicly disclosed, would somehow discourage people from providing opinions and viewpoints to governments voluntarily or otherwise? And would it temper the nature of those views?
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Mr Armstrong: I suppose it might do. I suppose my answer to that would be if it did so, that seems to run contrary to the philosophy of freedom of information we have adopted in this past decade, in many countries and jurisdictions, that there is free access to information in the hands of government because it has a public importance and therefore the public has a right to know what is in the hands of the government, subject to restrictions for privacy, etc.
But I cannot answer the question, I am afraid. I suppose it might impede persons from volunteering, but I rather think not. I think people who do press government agencies with views about things do so either because they feel so strongly or because they see it in their interests to do so, and they are not likely to be dissuaded from that simply by the possibility that their views might be disclosed.
The Chair: Any further questions? Thank you, Professor Armstrong, for coming here this morning and presenting your brief and your views.
ONTARIO BOARD OF EXAMINERS IN PSYCHOLOGY
The Chair: If we could have the witnesses from the Ontario board of examiners come forward, please; Dr Bruce Quarrington. Welcome. You have about 20 minutes to make your presentation this afternoon and another 25 minutes for questions. You may proceed.
Dr Quarrington: I think I should first offer an explanation of the documents that have been handed out to you. A submission was made to this committee some time ago, but it appears to have been lost and only recently resurrected and delivered. It has a front page identifying it as the submission from the Board of Examiners in Psychology. Then you also have a xeroxed copy of the standards of professional conduct, which is a document used by the board of examiners in the discipline of psychologists. It is given to you because reference is made to it frequently in the submission and it was felt you should know in detail what the provisions of that document are. Finally, there is a copy of the verbal presentation. I am going to feel a bit of a fool if you follow along with me. Do not follow along with me. I am going to lose track.
Something that I think should be made clear from the outset is that this brief from the board of examiners is not concerned with an amendment of the act, but is concerned with the uniform implementation of the act that is consistent with the spirit of the act and that is also consistent with the standards of professional conduct of the profession of psychology.
The Ontario board of examiners is the statutory body of some 1,800 psychologists who offer their services to the public either as private practitioners or as employees of institutions or other organizations. About 35% are employed in hospitals or treatment centres, in which the control of personal information of their patients or clients is regulated either by the Public Hospitals Act or the Mental Health Act. About 30% or about 600 practitioners are employed in institutions in which access and privacy of personal information is controlled by the Freedom of Information and Protection of Privacy Act or by the municipal version of this act. About 17% are in private practice and a small proportion of these provide psychological services on a fee-for-service basis to institutions and agencies coming under FIPPA or the municipal version.
Broadly speaking, practising psychologists are engaged in the assessment of individuals by means of tests, observation and interview or in the therapy of individuals by means of a variety of treatment modalities or both. In their assessment and treatment functions, psychologists usually acquire a good deal of personal information about their clients. Typically, this material is kept in individual client files, usually termed professional working files, which are maintained as an independent system or personal data bank with access restricted to psychologists and non-psychologist workers they supervise.
Using the information from these working files, psychologists will produce reports either routinely or on request for workers from other professions who are working with the same clients. For example, a teacher will ask for a psychological opinion about a particular child's difficulties in learning to read, and following an investigation a psychological report will be produced in language that can be understood by the teacher and the parents. This report will end up in a general case file, which in the case of a school board is the Ontario student records. When a report is submitted to the general case file, it is written to answer rather specific questions in a comprehensible manner. It is written with the knowledge that a sometimes sizeable group of individuals will have a need to know the contents of the general case file and therefore have a legitimate access to its contents.
The professional working file, on the other hand, may contain a lot of technical test information which only psychologists need to know and may also contain other personal information that was obtained in confidence from the client or from some client-sanctioned informant and which should be released only to the client or to others with the fully informed consent of the client, or the parents or guardians of the child client.
The Ontario Board of Examiners in Psychology has long required psychologists to protect the privacy and security of working files, and the precise requirements are cited in the written report that has been offered in the appended document. The board has also presented several briefs to government inquiries with much the same points as are offered in the present submission, briefly, to the Krever commission and more recently, in response to a paper from the Ministry of Health entitled Health Care Information Access and Privacy Act.
It is known the technical test information in the hands of professionals who are not sophisticated in psychological assessment can do harm to clients. A simple example from my own experience involves a 10-year-old child who was slow in acquiring reading skills and who was referred to a psychologist for assessment. The report submitted to the teacher and to the OSR stated that the child was of average intelligence and suggested several specific ways in which individual attention would likely help this particular child in learning to read. The working files in this school board were not secure and the teacher was able to learn that an IQ of 88 had been recorded, although the psychologist had noted particular reasons for believing this was a spuriously low value.
Despite the psychological report asserting normal intelligence, the teacher concluded the child was of below-average intelligence and decided there was little point in following the recommendations of the psychologist with respect to reading skills. In this case, a child was denied the specific help, additional help, that might have made the difference between academic success in the critical area of reading and general academic failure with all its emotional and social consequences for a child of normal intelligence.
The unauthorized acquisition of confidential information can also result in serious harm to clients. If I may be permitted another example from personal experience, I will mention a nine-year-old also failing to acquire reading skills although he was known to be an unusually intelligent boy. I was consulted about this boy because the school psychologist could not understand the nature of his difficulties. As a result of my testing, I found his difficulties were very unusual and could not make head or tail of them either.
But I did talk to the mother at some length trying to understand the puzzling behaviour this boy showed in his reading performance, and finally she broke down and told me that she in fact could not read but had been passing as a literate person and that even her husband did not know she could not read. Since the care of the child was largely in her hands and he would be reading at home, trying to read, he would from time to time ask her what this word was and she would take a guess at what it might be, often a wild guess. You can imagine this was a very serious source of confusion and this child was absolutely baffled as to how you could go about decoding or making sense out of reading with this sort of random, inaccurate input that was going on.
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I got the mother's agreement that she would not help the child any further, and I reported to the psychologist the nature of the difficulty and the conviction that one had to observe the confidentiality she asked for, but to assure the teacher if she steadfastly pursued the present course there should be rapid clearing of the child's difficulties.
In fact, the reading consultant on this board, again, where the files were not secure, got hold of the report and immediately took this information and confronted the child with the fact that his mother could not read and that he was not to pay any attention to her. So this child went home in tears and confronted his mother with this situation. You can imagine the storm and the fury that resulted and the unfortunate consequences for effectively dealing with the child from that point on.
The examples I have used have involved school boards, but the possible threat of client harm when the confidentiality of working files is breached applies to all work settings.
In institutions where psychologists are organized as a separate department, the administration has usually permitted psychologists to maintain independent and secure working files to comply with the board's standards of practice. In some institutions, and particularly in some school boards, where psychologists are organized as part of a larger unit, such as a department of student services or special services, psychologists have been denied the right to maintain independent working files. In some instances, such varied personnel as teachers, attendance officers, social workers, speech therapists and yet others exercise this access to psychological test data, confidential case history material and treatment notes.
In a recent survey of the use and storage of psychological test data in 30 school boards, Dr Alvin Segal and his colleagues at the Middlesex County Board of Education found that in 24 boards psychologists were permitted to maintain independent working files, with external access limited to a superintendent and to individuals designated by the psychologists. In five boards, psychological test data were stored in central files with general access in four and some control in the fifth. In the remaining instance, psychological data were stored in the document section of the OSR to which there is restricted access of sorts but not of a sort acceptable to psychologists.
It is the board's conviction that the only acceptable place for these materials is in independent psychological working files. The protection of privacy provisions of FIPPA and the municipal counterpart support the board's position with respect to working files. Section 41 restricts the use of personal information to consistent purposes and involved in its lawful collection. This restriction of access to information within an institution is further characterized by section 42(d), and I believe the corresponding section of the municipal version is 32(d), which limits routine access of employees to the personal information of those served: "where disclosure is made to an officer or employee of the institution who needs the record in the performance of his or her duties and where disclosure is necessary and proper in the discharge of the institutions' functions."
The board argues that the Freedom of Information and Protection of Privacy Act should be implemented in a way that is consistent with the spirit of the acts and with the requirements of the statutory bodies of professionals employed in institutions affected by the act. Specifically, where psychologists are employed, independent working files should be required. These should be officially designated as personal information data banks and the description of these should be as required by the Freedom of Information and Protection of Privacy Act and should be published or made available to the public, that is, the description. Access to these files should be restricted to psychologists, those they supervise, and other institutional employees they designate.
It is the board's hope that this committee will see fit to formulate an order that will require the uniform implementation of these suggestions in all institutions which come under the control of FIPPA and its municipal counterpart.
One last matter is mentioned here, and that is the case of psychologists who are employed on a fee-for-service basis and where there may not be a psychology department and psychology files. In that case, their files are kept in the private offices of psychologists. The point that we wish to make is: That is fine as far as security goes, but it means that the institution does not have custody of the files. So if clients are to have access to these files through the act, then the hiring agreement should contain a clause that quite clearly specifies that the institution retains control of these files even though they do not have the custody, so that there will be an access route for clients requesting access to these files.
The Chair: Thank you, Dr Quarrington. Rotation this time again to the government party. Mr Frankford.
Mr Frankford: I have been a family physician in the past, so I am quite familiar with the requirements of professions around records.
Who owns the files?
Dr Quarrington: Well, certainly the client has ownership rights, and we believe that psychologists have ownership rights in the sense that they are required by their statutory body to secure the files, to see that there is no accidental transmission of information and so on. And of course the institution also has ownership rights. It is a complex matter, the ownership, and one has to break down the aspects of obligation that are involved in ownership. Is that --
Mr Frankford: Yes, well, I know it is really quite a complex issue. In medicine I think it is bad enough, but I can see it is probably even more complex when -- for one thing, the psychologist may be employed, and as you say, in the fee-for-service situation probably it is somewhat clearer.
Dr Quarrington: Yes.
Mr Frankford: I think probably the same thing applies in medicine. What are the requirements about disposal of files? How long are they kept for?
Dr Quarrington: The statutory body requires a six-year maintenance of files which, of course, is longer than the minimal requirements by the act. That I do not think is as serious a matter as the matter of security of files.
Mr Frankford: When they are in an institution, would the institution be keeping them or disposing of them after six years, or --
Dr Quarrington: It varies from institution to institution, of course. Generally speaking the policy of the institutions tends to be compatible with the requirements made by the board of psychologists.
If a psychologist who generates files leaves the institution, there is a requirement that he or she see that some other psychologist assumes responsibility for their protection and their transmission when that is required -- by request from the act, for example.
Mr Frankford: Yes. These sort of things we are talking about might, in some circumstances, be copied to a family doctor?
Dr Quarrington: Yes.
Mr Frankford: But there would be no consistent pattern about that, I think, in my experience.
Dr Quarrington: No. There is an obligation not to transmit information that might be misleading; that is, you have to assure yourself, even with the client's permission, that the information transmitted to a person requesting it is not likely to be misinterpreted. So there would be some technical test information, for example, that psychologists might be reluctant to send to a general practitioner but would not be reluctant to send to another psychologist where they knew that there was competence to take into account the factors necessary for interpretation of the data.
Mr Frankford: It seems to me that there are perhaps inconsistencies between -- perhaps there should be some priority of the requirements. Would you say that the professional requirements should override the Freedom of Information and Protection of Privacy Act?
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Dr Quarrington: We are not suggesting that. I think psychologists are happy with the act. I do not mean to say that it means compliance with the act is an easy matter for psychologists. It is a difficult matter and there are problems ahead of us, but they are problems of compliance and how we are going to do it and not with the act itself. The act is fine as it stands. I do not know of any psychologist who, having thought about the problem, wished to see amendments, particularly in the protection of privacy aspects of the act.
Mr Morin: Just one question. Could you clarify for me on page 5, the recommendations made by the board, the second one mainly: "These should be officially designated as a personal information data bank and its description as required by FIPPA should be published or made available to the public."
Do I understand by that that at some date the public would have access to the document of that young child that you were referring to?
Dr Quarrington: No. The act requires that when a personal data bank is identified, it has to be described, and it is that description that I am talking about being made public. I may not have made that clear enough here.
For example, the requirements include such things as -- well, you have to characterize what sort of information is in this personal data bank, who has access to this information. It goes on for some seven or eight requirements, and this has to be made available to the public.
In the case of a number of institutions that are coming under the control of the Freedom of Information and Protection of Privacy Act, it is published annually in a big, thick compendium of personal data banks. I gather that in respect to the municipal version, there is not the same requirement for publication, but each region will have a file that is accessible to the public that lists the personal data banks held by municipal organizations.
That is what I am referring to here, that these personal data banks, I think, should not be hidden away. They should be officially recognized as such and they should be declared publicly as existing so that clients do know they exist, know the general contents and can access them if they so wish.
Mr Morin: Does it apply the same way for a patient, for the doctor, for instance? Does he have access to his own document to see what the doctor has to say about him?
Mr Frankford: No.
Mr Morin: You know what I am getting at?
Dr Quarrington: Yes. If you are --
Mr Morin: What is the difference between -- you have information, obviously, about an individual, which could at some time be detrimental. You want people to have access, you want the individual to have access to that, and rightly so. You, as a psychologist, also want to have access to that. What about a doctor who makes a judgement about a patient and he is wrong? What is the difference between the two? I have access to yours, but I do not have access to his.
Dr Quarrington: Well, for those treatment facilities coming under the Mental Health Act, the patient, the client does have rights to examine files and so on. The Public Hospitals Act is the one where there is enormous protection on the part of the hospital, and enormous freedom too, in disseminating information. I understand that that has given rise to a great deal of concern, and the revision of the Public Hospitals Act that I understand is under way will be taking that into account. Is that your understanding, Dr Frankford?
Mr Frankford: I am not sure about that.
Mr Morin: I do not want to put you on the spot, Bob.
Mr Frankford: I should say that one can get legal access. Where there is a suit, I think the lawyer can get access, and I do not think it is total restriction, but there has certainly been a lot of discussion about whether there should be more access to one's own files or even patient health files. But I think there is certainly no legal provision for that at the present time.
Mr Morin: I am thinking of the case of the Minister of Health making a statement about the Deputy Minister of Health in Nova Scotia, and that could be very detrimental. I mean, you can destroy a whole career. And that is exactly what happened.
Mr Villeneuve: Thank you very much, Doctor, for a presentation that is in a different light than most, and certainly your area is more protection of privacy as opposed to many people looking for more freedom of information. Do you feel this legislation is genuinely threatening the protection of privacy of your patients?
Dr Quarrington: No, we think it is supportive. But we are concerned that it be implemented in a uniform way across all institutions and that the working files of psychologists be given the protection that the act affords.
For example, just a few weeks ago in one of the correctional institutions of this province, the deputy warden decided that he wanted to look at the psychological working files of his psychology department and they said, "No, you cannot." He said, "Oh yes, is that so?" and he walked in and bulldozed his way in and opened the files and gave himself access to the files to peruse for some time. Now he has no need to know that, but he was maintaining that he, as deputy warden, had the right to access anything in the whole institution. We do not believe that is so. I am sure that he did not examine the medical files in the institution. I am sure he regarded them as sacred. We are claiming that the quality of information in psychological working files should be accorded the same sort of recognition and concern with regard to privacy as is accorded medical files.
So it is not just school boards we are concerned about, but there are examples from time to time of institutions where what we regard as the critically important privacy of files will be violated, either organizationally or by an individual who decides that, well, there is nothing that clearly accords the files this sort of privacy, and therefore he or she can do as they wish.
If there is an order by this committee to the effect that "This is the way that psychological files will be dealt with in all institutions," then I think the problem we have from time to time -- generally speaking, it is not a problem, but from time to time, in one sort of an institution or another, it is a problem. I think an order from this committee would just clear it up completely, that this is the way it is going to be implemented.
Mr Villeneuve: I think the example you cited is an excellent one and there is a lot of discretion here as to who, maybe, should view some files. Apparently this individual made it his duty to look at everyone's file when, indeed, there may be occasion when a deputy warden could look at a file, but not blanket. You would say that a very precise requirement and explanation to whomever has access -- to the commissioner in that particular case -- that it be pretty in-depth reasons why the situation should be looked at.
Within this legislation, you would like to see a tightening up. You say it is complementary and compatible with what you want, yet you have made three recommendations here which are very much appreciated. But certainly the case you have just cited is an example that maybe we should be looking at in some more depth because under this freedom of information and protection of privacy, particularly in your profession, opinions are there from the professional that could be very, very detrimental to people.
Dr Quarrington: That is true. We have assumed, you see, that it is not a matter of elaboration of the act or an amendment, but rather just its implementation. The form of the act seems to be entirely satisfactory to us if there is uniform and compatible implementation; that is, compatible with the requirements of the professional body, medicine, psychology or what you will.
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Mr Owens: Just a fast question. We had a group in front of us, I guess it was last week, Parents Empowering Parents, and we heard a very tragic story about a parent who tried to gain access to her child's children's aid society files. Could you give us an opinion on how you would see that, parents accessing the files of their children for information, and what kind of recommendations you would make to the committee with respect to that?
Dr Quarrington: I think there are problems but I do not think they are your problems. I think they are our problems, psychologists' problems. That is: how to produce files that you know might be accessed that are not going to mislead parents when they have access to them. Another reason we would like to have a clear, sort of uniform understanding about the independence of psychological working files is that when there is a request through the freedom of information act to access personal information, psychologists will have to be aware that there is such a request for access. For example, that might not be the case if everything was stored in a general file, when they could be bypassed. But they will know, and they will be able to examine the files to make sure that they are not going to be releasing information that might do harm to the client or a third party.
For example, a parent who gives information about themselves or their relationship to a child as part of an investigation of the child, let us say, at age eight. Now say 10 years later that record is still around and the child has an opportunity to access it. That information given by the parents was really given in confidence for the most part. They should probably have an opportunity to make sure that they want the transcript of what they said about their relationship -- they should be given a chance to see what it is that is going to be released and declare that it is permissible, that it is not going to be an invasion of their privacy 10 years later, now that this child is aged 18 as opposed to age eight.
It is possible for psychologists to monitor these sorts of things and to provide that sort of protection if they have that control of their working files. I think there are other related sorts of concerns, but in general, there is no objection to parents having access to the files of their children. But in some respects psychologists are going to have to smarten up and keep better files. They are going to have to avoid using jargon, for example, and all those sort of shorthand ways that you could get away with when you were just writing for yourself or for colleagues. Now, if you are writing for your client as a co-owner, you are going to have to use more comprehensible language and avoid some other sort of sloppy things that psychologists and others can fall into when writing these working files.
The Chair: Any further questions? Thank you, Dr Quarrington, for coming along here this morning and making your presentation.
I will remind the members of the committee that we have one group of witnesses this afternoon from the print media, and knowing how popular it is to question the media, we can allow a little flexibility in time of questioning. However, I must remind members that their flight time is 5:05 this afternoon.
Mr H. O'Neil: Are you looking at me, Mr Chairman?
The Chair: No. You have to leave yourselves enough time to get to the airport. The meeting is adjourned until 2 pm.
The committee recessed at 1204.
AFTERNOON SITTING
The committee resumed at 1400.
The Chair: I would like to call the standing committee on the Legislative Assembly to order. We have one set of witnesses this afternoon. Again, I would like to remind the members that they have got to catch a flight around 5 o'clock this afternoon, and we will allow some flexibility in question time.
CANADIAN DAILY NEWSPAPER PUBLISHERS ASSOCIATION
The Chair: I would like to welcome the members of the Canadian Daily Newspaper Publishers Association here this afternoon. You have got about 20 minutes to make your presentation, so gentlemen, the floor is yours.
Mr Foy: My name is John Foy and I am the president of the Canadian Daily Newspaper Publishers Association. The CDNPA is a non-profit association representing 85 daily newspapers across Canada. Together they are responsible for 87% of the total daily newspaper circulation in the country. CDNPA represents 38 of the Ontario daily newspapers.
We appreciate this moment to appear before you, to have the opportunity on behalf of the Ontario members of the association to address freedom of information legislation in this province and its municipalities.
In our brief, which we have sent you, we say that this is a wonderful and perfect opportunity to do something about the problems which have emerged, first with the provincial legislation and second with the municipal act. We would hope that there would be some consideration for immediate changes to the acts rather than have to wait until the end of the year to report to the Legislature.
I cannot remember the last time a matter having as profound an impact upon the media in this province as this sudden denial of a variety of information which historically has been made available by the police forces in Ontario. We have included in our brief a compendium of many of these policies as reported by our members. What we are seeing are extraordinary confusion and inconsistent practices towards release of personal information. This matter first surfaced as a major concern for our members when it was revealed early last spring that Metro police had received legal advice that they would not be able to reveal certain personal information because of the new act, which had received royal assent but which would not come into effect until 1 January of this year.
CDNPA reacted to this news by convening a meeting of our senior editors to look at the whole matter of media and police relations. CDNPA then met with Solicitor General Steven Offer to propose changes to the Police Services Act to require the police to release certain personal information about accused, victims and events. CDNPA then presented a brief and appeared last June at the hearings into the Police Services Act to again call for similar amendments. Unfortunately, the committee did not see our way.
We then met with Mr White of the freedom of information and protection of privacy branch in November to discuss and make recommendations about the guidelines which Mr White's department was about to release on how police forces should interpret the new Freedom of Information and Protection of Privacy Act. We suggested that the onus should be on release of information subject to strict privacy limitations. The guidelines which were eventually released put the onus on privacy considerations first. It was clear to us and obviously clear to many police chiefs that the first obligation by anyone holding personal information was to keep matters private.
We should point out that at no time was CDNPA or any other media group consulted in the preparation of the guidelines. CDNPA has always been willing to participate in the creation of laws and discussion papers. We met with Frances Lankin, Chairman of Management Board of Cabinet, on 31 January and arranged to meet with Solicitor General Mike Farnan in late March.
Here we are before you today with an opportunity to express our concerns about freedom of information legislation in Ontario. We have made a number of recommendations in our brief. We would be pleased to address them. And I have with me today three senior newsmen who have a strong interest in freedom of information nationally and provincially. Murray Thomson is managing editor of the St Catharines Standard and chairman of the editorial division of CDNPA. Barry Ries is a senior reporter with the Kitchener-Waterloo Record and has used FOI at all levels in the course of his reporting duties. Next is Ian Urquhart, managing editor of the Toronto Star, the largest-circulation newspaper in the country and a newspaper which has reported on and used FOI extensively.
Mr Thomson: I would like to begin with what we refer to in our brief as "events reporting." This is not the sort of background reporting where the 30 days to get information, where the application for information, has any point at all. This is the immediate information that is letting your community know what has gone on during the 24 hours previous. It is usually a reporter arriving at a police station in the morning or evening, depending if it is a morning or afternoon paper, going to firehalls, checking on what has happened or being alerted to perhaps a fire or immediate-breaking news.
How this plays out on your community is that in most provincial newspapers, like the one to which I belong, the readership of that newspaper is roughly your constituency. It is the majority of the adult population of every city and large town in Ontario. When a reporter goes to get his information from the police, over the past 30 years we have evolved a relationship with policemen where they have come to understand the public's right to know what is going on and they have come to trust us with telling that story properly.
Now we have a situation where a reporter goes to a police desk. You are not talking about a chief; you are not talking about a senior officer in a police department; you are talking about a junior officer who has got his whole career ahead of him and he knows that if he makes a mistake, if he errs under the FOI and privacy act, it is going to cost him. If he errs on the side of wrongfully releasing information, he may be fined, there are penalties, it may affect his career or all sorts of bad things can happen to him. On the other side, if he errs by withholding information that he is not sure of, nothing happens to him. So immediately there has been a wet blanket dropped over the release of news.
Why should that matter? Your community's major ability to deal with its own security depends on knowledge: depends on the woman knowing where the bad comers are in town, the man knowing where he can get mugged as he drops a night deposit into a bank. This is information that people rely on. They want to know. They want to know about bad accidents and where they happen.
If we remove the names of everybody from stories of accidents, crime and so on, the first thing that happens is credibility suffers. Instead of relying on me, I would like to refer you to what Mrs Carole Cameron, the president of Victims of Violence National Inc, about 600 to 700 members, the principal victims-of-violence organization in the country, told our reporter about what happens when you leave out the news. This is her quote:
"If you pick up a paper and read a story that has no one's name in it, no location, and if they can get away with it, not even mention the offender, well, what impact does that have on anyone? It's just like you're reading fiction."
This is a woman with no connection to media, but her son was murdered. She is a victim of violence, and she is appalled that the names of victims and witnesses are being removed from stories because of this act.
The same applies to the firemen. We have ridiculous rules now. If the name of a company is a person's name, the fire department cannot tell you where the fire is. If it is not, if it is the Acme Tool and Die Co, then they can, but what difference does that make on the main street of St Catharines when you have got a five-alarm fire going, half the city can see the smoke, and why on earth is it being withheld from the press? Why are names and locations being withheld?
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I go back to Mrs Cameron again on the subject of apathy. "Canadians are very apathetic. One big fight," and she is talking about the Victims of Violence association, "is fighting the backward step, and without names and such, people can't identify with the story. The work is tough enough as it is. Nobody wants to think about the day you might become a crime victim, but if we are innocent victims of a crime, what do we have to be ashamed of? Nothing. In fact, I do not see how the world would get any better if we hide it under a rug and pretend it did not happen."
What happens in our news media -- you all know the ultimate horror story about a city like New York or Chicago is, when there are so many dreadful crimes -- it would be probably front-page news in St Catharines. They have so many they cannot even find a place to publish them in the paper. If you take all the names out of stories of crime in St Catharines, eventually these stories will fade. People will be reading something else; they will not regard them seriously. You have taken the people out of the story of your community. When that happens, they will drift to the back of the paper and perhaps drop out.
The FOI and privacy act is even a bigger knock on smaller newspapers such as our own. We are an independent newspaper; we do not belong to a chain. We are in a smaller community, and we cannot afford the heavy time and the heavy cost of making applications to get information. We will do it, but we cannot do it in an open-ended way. I would like to refer to a story that was done last summer. A reporter, using information largely from registry offices and so on, put together a story to show that wills were being used to divide land and to get around the terms and rules of the Planning Act. This had arrived at the point where there were millions of dollars' worth of land involved. But it arrived at the point where it was a serious inroad on planning on rural retention of land in the Niagara Peninsula. When our story ran there was an immediate uproar. Eventually laws were passed by Queen's Park to prevent this from happening, and we received a letter saying that the resulting rules that were made had come directly as a result of the story we had run. Now our reporter would be in no position to get that information, or if he got it, by the time he got it far greater acreage would have been divided up by will division.
Another example is, we did a story a few years ago we would not be able to get a hand on now, where we found out that 27% of the 700-odd members of the Niagara Regional Police were related to each other. This precipitated all the changes that took place from then on: the change in structure of the police department, the changes in the commission, new officers, including the chief, and eventually leading to the investigation into the NRP. But the head of the police commission told us that it was the story about so many being related to each other that started off the whole thing of the hiring practices and that began the whole upsetting of the apple cart. We would not have had that information; there is no way we could get it. They hide behind the FOI and we would not have been able to pursue that.
I will get to the end of this quickly. Mrs Cameron is the woman who has been on the front page of the Toronto Star, she has made the statement repeatedly, she has made the statement unequivocally to us that she and her organization are for printing the names of victims and witnesses, and yet she said she was unofficially consulted by a Queen's Park bureaucrat last summer, who argued with her, trying to make her say she thought it was a good idea to reverse her position, and she refused to do that.
I will pass it on.
Mr Ries: My name is Barry Ries and I am a city hall reporter at the Kitchener-Waterloo Record. The Record has a circulation of about 85,000. It is a major provincial paper in the province. I am not a certifiable expert on freedom of information by any stretch of the imagination; I am just a reporter who has covered a variety of stories in the 11, 12 years I have been there and I have had occasion to use freedom of information at the federal, provincial and now the municipal level over the course of those few years.
My experience with FOI at those levels of government has variously been lousy, so-so and "Here we go again," respectively. At the federal level, maybe I just was not asking the right questions at the time. I once had the Department of National Defence quote me a price of about $6,000 for some information based on a ludicrous price for computer time they were quoting. I talked them down to about $1,400 at the time, but that was still a little steep for what was in essence a fishing trip, so we decided not to go with it. That is one case where price can dictate what information you are going to get.
Provincially I have had better luck, although it has sometimes taken a long, long time to have good luck. Cited elsewhere in the brief that the CDNPA is presenting today is my experience in trying to obtain a copy of the contract between the Ministry of Industry, Trade and Technology and the Toyota Motor Corp, which was eager to build a $400-million plant in Cambridge with some assistance from the taxpayers. It might be argued by some, I guess, that the contract between Toyota and the province was nobody else's business, but I of course would argue otherwise, or I would not be here.
The real reason I asked to see a copy of that agreement between Toyota and the province was because of the horror stories that were coming out of places in the States -- Kentucky, Tennessee and Michigan -- regarding their frenzied purchasing of Japanese and some American auto plants. Kentucky and Tennessee spent millions of dollars to get plants -- Toyota, the GM Saturn plant respectively -- basically bidding against each other, and the city of Flat Rock, Michigan, actually bankrupted itself in its zeal to get the Mazda plant.
So from my perspective it was certainly in the public interest to find out what the deal was between the province of Ontario and Toyota. Some information had been made public in dribs and drabs. I just really wanted to find out all the information. So I filed an access to information request with the ministry at that time, and Toyota did not want to release the information. Toyota was the third party involved. The ministry, of course, went to Toyota, asked it its opinion and basically did exactly what Toyota said, which was to release not very much at all. For any of you who have never seen what can happen in that regard, this is a copy of the agreement between Toyota and the province. This is what it looks like when it is severed. There is page after page of nothing. This is blank, and that kind of gets your curiosity going.
Anyway, so Toyota disagreed with releasing the information, and from the ministry's perspective, that was that. Whatever Toyota did not want made public was axed. What was particularly bizarre about that was that so much of the information severed was already public knowledge: the size of the plant; where it was, which of course you could see from Highway 401, but for some reason it was a secret; details of the loan, the interest payments, repayment schedules; oodles of stuff that had already been reported and printed either in my paper or in other papers around the area. So of course I appealed the hatchet job that had been done by the ministry, and the commissioner at the time, Sid Linden, did what I consider to be an outstanding job of making the ministry toe the line and release the information. He pointed out very correctly that the ministry did exactly what Toyota wanted in this case, and I do not think anybody at the ministry even tried to mellow Toyota's position.
I eventually received everything I asked for. It took 17 months to get it and it ended up that the province did not make any sweetheart deals with Toyota, really. When I actually did receive the complete version of the agreement, I did not even find anything interesting enough in it to write a story about it. It was dull.
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The second incident I would just like to relate that I have run across recently is also mentioned in the brief from the CDNPA. I will make it short. It is something that is still ongoing. In November, the Residential Rental Standards Board, which is an agency of the Ministry of Housing, sent a nice letter to the city of Waterloo basically saying, "We exist and we are doing a wonderful job," and the Residential Rental Standards Board mentioned dealing with two work orders which had been issued by the city of Waterloo on a couple of rental properties. The board included a couple of phone numbers for more information, so I called those phone numbers and, wanting to find out more about the two work orders, I was told I would have to file an access-to-information request to obtain details. So I did. At the same time, since we serve a couple of cities from Kitchener, I also asked for copies of work orders issued by the cities of Kitchener, Cambridge and Guelph.
That was in December, before municipal freedom-of-information or access-to-information legislation took effect. It was in December that I filed this request, yet in January the Ministry of Housing turned me down saying I would have to approach the municipalities instead. So I filed four identical access-to-information requests with the four municipalities, Kitchener, Waterloo, Cambridge and Guelph. Interestingly enough, Guelph complied with my request and the city clerk actually wondered why I bothered using freedom of information; Cambridge sort of half complied, it left out addresses; Kitchener and Waterloo turned me down cold -- identical legislation, identical access requests, basically three different answers from four respondents.
So where does it all go from there? I do not know. I get the feeling the provincial agencies will basically do anything they possibly can to avoid having to provide information. If they can hide behind a third party, such as behind Toyota, that is fine with the Ministry of Industry, Trade and Technology. If they can pass the buck on to the municipalities, that is fine with the Ministry of Housing.
In short, I like the idea being put forward here by the CDNPA: some kind of method whereby compliance could be enforced. If freedom of information really is a policy of the provincial government, then there should be some method of ensuring those charged with implementing the policy can take some ownership for it, should be responsible for it. I like the idea, here in the CDNPA brief, of judicial review. If access has been denied after the commissioner rules that access should be allowed, then certainly the onus should be on the head of the government institution involved to comply with that or appeal it himself. The way it stands now, the public service sees the danger in compliance, and safety in buck-passing. I will leave it there.
The Chair: About 15 minutes, each party, for questions.
Mr Urquhart: Mr Chairman, can I say a few words?
The Chair: Oh, I am sorry. Can you wrap it up in a couple of minutes, please?
Mr Urquhart: Yes. I am Ian Urquhart, managing editor of the Toronto Star. I just wanted to bring this discussion back full circle to the Municipal Freedom of Information and Protection of Privacy Act. Strictly speaking, I know you have the provincial act in front of you, but I think it is a good opportunity to review the municipal act.
I think there are two key points you ought to consider. One is that it is being applied most unevenly across the province. As you can see in appendix C of what we have given you, from police force to police force there is no consistency in what is being released. And even within any given force there is inconsistency. On the Metro Toronto force, for example, the homicide and sexual assault units have taken a much tougher line in interpreting the law than their colleagues in other units. The sexual assault unit, for example, will not even say where a rape took place. So the media are unable to warn women in a particular neighbourhood that a rapist is in the vicinity. I do not think such uneven application of the law is healthy in a democratic society.
The second key point is that we are seeing here an unintended effect of the law. We have talked to the original drafters and they told us it was never their intent to shut the door on information the police had been freely giving to the media. If you check out the debates on the bill as it was going through the Legislature, this aspect was never mentioned by any of the MPPs who spoke. If I am right and this effect is unintended, there ought to be no problem correcting the law to remove it. In our brief, on pages 12 to 13 we make some recommendations on how to correct the law.
Thank you very much for indulging me. I would be glad to answer your questions.
Mr H. O'Neil: Just on your last comment there, the Solicitor General came before the committee in the first week of February, I believe it was, and it put out some new guidelines that were supposed to clarify what police forces could disclose. It was my understanding that went quite a way towards clearing up some of the misconceptions, but you are saying even with those changes those concerns are still there.
Mr Urquhart: Yes. All the new guidelines did was put in plain English what had been in bureaucratese. The effect was the same and if anything, the police forces have been more stringent since the new guidelines were released. It certainly has not improved the situation one iota.
Mr Morin: Have you voiced that opinion to the Solicitor General?
Mr Urquhart: No, we are voicing that opinion to this committee right now.
Mr Morin: But you did not write to him officially.
Mr Urquhart: We had a meeting scheduled with him this morning but it was cancelled.
Mr Foy: It was cancelled until later in March.
Mr Morin: There have been a lot of improvements since 1986 to now. How did you obtain your information prior to the implementation of the act?
Mr Urquhart: Prior to the municipal freedom of information act coming into effect, there were informal relationships between police forces and the media, between fire departments and the media and between city hall and the media. Most of those relationships worked; not all of them, but most of them worked. We got most of the information we were seeking and felt was in the public interest. Since the act came into effect, all those relationships have been breaking down and we are getting far less than we used to get. So the act, which was given the Orwellian name Freedom of Information and Protection of Privacy Act, has had a counterproductive effect.
Mr H. O'Neil: We have had previous discussions here and the first week of February, as was mentioned, on how you police your own organization as to what does appear and what does not appear in some of these articles, and how you determine whether some of the information the police may have given you or might still give should be used. I wonder if you could touch on that just for a minute, you know, within your own organization.
Mr Thomson: This is done not on an organizational basis but by individual newspapers. If you think about the communities of Ontario, I think you will see the wisdom of that. Communities are different, and that ethical relationship between the newspaper and its community we feel is best addressed by the individual paper, so we have guidelines covering style, ethics and performance.
Mr H. O'Neil: Either this morning or yesterday we had I think it was radio, TV, where there was a set of guidelines that was followed. So you are telling me within the newspaper system you have a set of guidelines also which all these papers follow or should be following.
Mr Urquhart: No, we each have our own.
Mr H. O'Neil: Within each paper itself?
Mr Urquhart: Yes.
Mr Thomson: Yes.
Mr H. O'Neil: But is there a uniform -- like a code of ethics?
Mr Foy: There is a national code of ethics, but it is up to the individual publisher if he desires to follow the national code of ethics.
Mr H. O'Neil: So as I say, some of these other media, whether it be radio, TV, have adopted some of these rules or regulations their members should follow, not only for the protection of themselves but the protection of the public. Have you ever considered establishing something like this, guidelines for your own people?
Mr Urquhart: I point out that the broadcast industry is quite different in nature from the newspaper business. Broadcasting is a regulated industry, renting public airwaves, regulated by the CRTC. If they did not come up with their own national code of ethics, it would have been forced on them by the CRTC. We are not a regulated industry. There is no equivalent of the CRTC vis-à-vis newspapers, and community standards vary so radically between a small town, a medium-sized city like St Catharines and a metropolitan area like Toronto. To have one set of ethics applying to all three papers, different papers in different communities, would be very difficult. What goes in Toronto may not go at all in St Catharines.
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Mr H. O'Neil: I guess I would have to ask you why there would be a different code of ethics. Could you give me an example of why there should be a code of ethics in the city of Toronto different from a code of ethics in, say, a smaller town in Ontario? Ethics are ethics.
Mr Thomson: Well, some things are problems in one city that are not problems in another.
Mr H. O'Neil: Like what?
Mr Thomson: Let's say visible minorities. In one city there could be a high degree of visible minority, in another city none to speak of. It is not that we would do anything differently, it is just that we do not face the same problems as Metro Toronto, nor do we face the same problems as Brockville, perhaps, but we have our own.
Mr H. O'Neil: If you are talking about nationalities, why should ethics be treated differently in Toronto than in smaller --
Mr Thomson: But it would not be treated differently. It is just that it is not codified.
Mr Urquhart: That test is not unusual. It is used in obscenity trials, for instance -- community standards test. Standards vary quite radically from community to community. If I may suggest, I do not think these questions are particularly relevant to the legislation before you. This is not legislation governing the media, it is legislation governing what police forces, city halls and so on or, in the case of provincial legislation, provincial government and agencies may release, not what we are allowed to report.
Mr H. O'Neil: But again, you were saying, when you talked to different people, whether they be the police or the fire department, that you follow certain ethics in dealing with that.
Mr Urquhart: Yes, we do.
Mr H. O'Neil: So, to me, it does pertain to it. It is part of this whole discussion. You may not agree, but I often wonder whether the newspapers -- this would assist your members on freedom of information and support some of your requests.
Mr Thomson: Well, let me give you an example. When CDNPA surveyed all the dailies in Canada to find out what their ethical position was on the reporting of names of victims of rape or sexual assault, it discovered there was no single daily newspaper in Canada that would publish the name of a victim that was --
Mr H. O'Neil: Right.
Mr Thomson: So, I mean it is there --
Mr H. O'Neil: There, but it is not --
Mr Thomson: Yes, but it does not codify.
Mr Morin: This morning it was reported to us by the group that represented CBC that their reporting should be left to the discretion of the media. If I understand what you just said, ethics is different, let's say, in Fort Erie than it would be in another small town. What about discretion? Is discretion different in Toronto than it is in Port Severn?
Mr Thomson: It may or may not be different, it is just that we do not think of it as something that has to be laid on for both Toronto and Fort Erie. But I think you would probably find the ethics followed by the newspapers are largely the same as every other newspaper's. Whether it likes it or not, the public would demand it in its own community. We have a tremendous feedback by phone visits to the editor's office and letters to the editor. We have an enormous feedback from our own immediate public.
Mr Foy: And if they do not like what you print, they will not buy the paper.
Mr Morin: It depends where you live. We have one mistake; there is no competition.
Mr Huget: I would like to look at one of your recommendations in terms of number 4 in "Procedure." You say you have quite a problem with the fees being charged by government agencies to provide research and research time to prepare information for you. The newspapers and print media, as I understand it, sell that information, do they not? I mean, in selling a newspaper. If they acquire information through research that they think is necessary to do a story on, they then sell that information to the general public through a newspaper. I wonder why you would feel it would be sort of improper for newspapers to have to pay a fee for government research time to provide that information, whether it is two hours, 20 hours, or 24 hours. I would like your views on that.
Mr Thomson: There are two aspects I can talk about. One is whether or not the fee is reasonable and how open-ended the time is, and does somebody want to put a clerk working in background and call it five months' work when it is three days' work. Reasonableness is the one thing that we are asking for. The other thing is the thing that I mentioned before, that you are going to make it impossible for the newspapers and media in smaller communities to even do the kind of work that we have been doing up until now and this, as I pointed out, is a valuable contribution to the community.
Mr Huget: But if in order for you to get the information that you require, or any other newspaper for that matter, there is an element of research that is required by government staff, who should pay for that? I think one of your recommendations is that there be a certain amount of free time in a term of 20 hours. I guess what I am saying is, that information that is then sold to the public for profit, why should the taxpayers of Ontario pay for that 20 hours of research time?
Mr Ries: From my perspective, I think it should be the government that pays for a certain amount of that. It is the government, after all, that is for the people, and it is the government that has the information there. And if it is accountable to the people, it should be providing that information wherever possible. I have to deal with editors too and if I say: "Hey, I can get some information. I am not quite sure what is in it, because I cannot see it unless I pay the bill first," and you want us to give you $1,200 just on a fishing trip, the answer is going to be no.
You can see that especially in smaller media outlets where $1,200 is a big piece of change, and it is not something that you can pass on to the end consumer. It is not like the GST where you can just keep passing it on until somebody finally pays. Sure, you can say: "You are selling your product too. You pay us for the information, but then you sell the information to the public." But you are not increasing the price of your daily newspaper because you have that one particular story in it. Somehow or another, it has got to be absorbed.
Mr Huget: You would likely increase your circulation if you got a lot of those good stories, not the individual price of the newspaper.
Mr Ries: Idealistically, yes.
Mr Huget: If you were fortunate.
Mr Thomson: May I point out that the government is very quick to spend large sums of money getting information out to the press that is perhaps friendly to the government. The federal government has just been -- I received a cassette. I do not know how much it cost to put it out, something to do with mines and resources and the Gulf war. I do not know if every editor in Canada got one of those. It is a ridiculous expense, and we get tons of paper from all sorts of government. So we are asking for a fraction of that.
Mr Huget: I have to note that you do say you are in favour of a user-pay philosophy for this research time, and I can appreciate that. But where there are costs incurred for people to do this research to provide you with the information, then I think it is realistic that you should pay for that information or that time.
Mr Urquhart: I think you are raising a good point. You as a Legislature have to decide where to strike the balance between getting information out, which I thought was the point of this whole act, and what is reasonable to the taxpayer in terms of expense. You are going to have to make that decision. What we are saying is that two hours is not reasonable from the point of view of getting the information out. The 20 hours would be more reasonable from that point of view. It is a judgement call you are going to have to make. A two-hour maximum acts as a deterrent to getting more information out.
Mr Frankford: Mr Ries, I am glad you talked about Toyota. We had a presentation yesterday by a business group which I think actually referred to that case and they were sort of concerned about business losses in a competitive environment because of business information. They went as far as saying that they felt the Ontario environment was too free and that it could even discourage foreign investment. Would you like to make any comment on perhaps the whole principle of freedom of business information and whether it serves an overall public good or if there is a case to be made that it discourages business?
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Mr Ries: There are certainly sections in the act right now which provide that information can be exempted and severed if it would seriously jeopardize the business of a company, if it is confidential information. For example, when I did this access request at Toyota, I did not expect to get anticipated production levels and I did not get anticipated production levels. There are some things that, obviously, they are not going to divulge. I do not think there is a problem with genuine information that would affect the competitiveness of a company, but the wholesale axing of all kinds of information is what we are getting at here. In that example, to the extent where they would say that they will not tell you how the training of workers was supposed to be funded or even the location of the plant itself on what piece of land, that is just wholesale nonsense and that does not really have anything to do with the competitive position of Toyota. That is the only one I can really speak to, because I have not dealt that much with the business aspect.
Mr Frankford: I wonder whether one might not say that the business pages of papers really do not investigate enough. I think perhaps a lot of it really is very mainstream sort of stuff and there is not enough digging. Any comment?
Mr Ries: You will not get an argument from me.
Mr Urquhart: I would not single out business pages. I think there is some excellent business reporting done in this province. Just on the point on Toyota, bear in mind they made a deal with the provincial government. It is not private enterprise acting privately in that case. We have been trying for over a year to get information on the Dome deal, which is another case of the private sector making a deal with the provincial government, and we have been unable so far to get any of the documents.
Mr Owens: It is funny that you should bring up the Dome deal. I requested yesterday that we have the folks from the Dome come in and talk to us about their relationship with the freedom of information act and privacy. I am still waiting for a response, Mr Chairman, on that request.
The Chair: Mr Owens, I believe the clerk has addressed that point.
Mr Owens: Thank you, Mr Chairman. Sorry, I have a fairly bad cold today. The comments from Carole Cameron I have used throughout these hearings and I would tend to agree that in order for myself as a human being to identify and empathize with the victim of a crime, the name does help. I guess, though, that I am still struggling with that concept of being able to identify and empathize, and your role as advocates to warn neighbourhoods if there is a rapist or whatever the problem is in the area versus the victim's right to privacy. When my home was broken into, I was not really sure that I wanted to have that kind of information in the newspaper and I guess this is the concept that I am struggling with, the two ideas. I am wondering if you have any comments that could help persuade myself and maybe my committee members to go one way or the other with this.
Mr Thomson: Starting with the victim of the burglary, we have a policy as part of our ethics package that we do not embarrass a home owner. If something is stolen from their home that could be publicly embarrassing and that becomes the main thrust of the story, then we might not identify the home but go with what was taken as perhaps a semi-humorous story. But we do not hold the owner out to ridicule, we just would not mention his name. If we are talking about a break-in, we do it by neighbourhood, not by street address.
Now, over at the other end of the scale, I would like to quote from Sandie Bellows-De Wolfe, who was a woman that was kidnapped, repeatedly raped and almost beaten to death by Peter John Peters in that spree across southern Ontario. When it came to trial -- now, of course she was not identified because we do not identify rape and sexual assault victims, none of us do, and then the court normally takes over the process from there and continues the ban on identification. She came to us and said: "I want to be identified. I do not want to be just another number, another emptiness there and all the personality is on the accused person." She said, "I am a person too and I have been violated and I want to stand up and he is going to know who he did it to and I want the public to know." It was a remarkable thing. She is a very courageous woman. She also agreed to be interviewed after the trial. We asked her if she wanted some time to collect her thoughts and she said: "No, I want to talk right now." The result of that was she put the attacker in a position that the attacker should be in. She made him look exactly for what he was and she came across as a strong and totally victimized person. By lending her name to that, she did every woman and every victim in this province a service.
Mr Owens: I guess Mr Urquhart made a good point that it is not the media that is on trial or whatever way you want to put it. The concern that I would have in opening up the act is that you have a self-regulating body, the Ontario Press Council. The kinds of penalties that are imposed on member organizations are essentially meaningless. If you have a person, a victim for instance, whose photograph has appeared as they are smeared across the Don Valley Parkway and it is that victim's contention that their privacy has been abused, how would you see yourselves, if you are allowed to report that kind of information, regulating yourselves in a more meaningful way to prevent the kind of abuse that would occur from time to time?
Mr Urquhart: A couple of points: one, about the Ontario Press Council. I want to assure you we take it seriously and we do not like being hauled before the Ontario Press Council. We often lose and then we have to run a story in our paper on our front page saying we have lost and why.
Mr Owens: What does that mean?
Mr Urquhart: That is a very meaningful restriction on us for a newspaper: publicity is everything, and it does keep us in check.
On the question of an accident victim on the Don Valley Parkway, first of all, there is nothing in the Municipal Freedom of Information and Protection of Privacy Act preventing us from taking a picture of an accident on the Don Valley Parkway. We are going way beyond what the act now covers. We can go and do that any day. We exercise a lot of discretion in what we publish. We do not publish the pictures of dead bodies on the Don Valley Parkway on our front page or anywhere else in our paper. We think that is in bad taste. If there is any question about the next of kin not having been identified, we do not publish the names of the victim of accidents because we do not want them to hear from us first. Routinely, we withhold that information and before the municipal freedom of information act came into effect, the cops used to tell us: "We cannot give you the name yet because we have not notified the next of kin. When we have, we will give you the name." It was a very comfortable relationship. We were comfortable with it, they were comfortable with it. This act destroyed all of that relationship.
I want to get back to your question of balance. To help you out in making your mind up, there are definitely some cases where the privacy of the victim ought not to be intruded upon. Our problem with the present act is that it puts the onus entirely on us to make the argument that there ought to be public information here.
If you read our recommendations, we want to reverse that onus and have the onus put on the side of publicity except in certain circumstances. If you guys want to go ahead and put in law that the name of a sexual-assault victim ought never to be identified, ought never to be made public, fine, go ahead. We have no problem with that, we do not do that anyway. If you want to put it in law, that is just fine with us. But right now, everything is being kept private by some police forces because the onus is on the privacy side; perhaps not in the act itself, because the act is ambiguous, but in the guidelines that were distributed interpreting the act, and the police are operating on those guidelines. That is where we would like to see you go, towards a reversing of the onus.
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Mrs MacKinnon: I will try to make it quick. I feel as though maybe my day of reckoning has come or whatever you wish to call it. During the course of my life I have had some very, very nasty run-ins with the press in regard to not only my own personal family but my extended family. The reporters that I ran into, or that I did not run into and wish I had -- but the reporters that I had to deal with must have been long, long before your era. I do not think there was any such thing as a code of ethics or policies or guidelines or anything because, in one particular incident, a reporter -- you say you do not take pictures of dead bodies -- forgive me, they took a picture of the body of my mother laying on the side of the street outside of her car.
The other particular incident involved a member of my family in the hospital with a very severe coronary. The house caught fire and before I had a chance to clean up the aftermath or even get to the telephone, my God, they were broadcasting it on the radio and they had it published in the paper. The patient, needless to say, was far worse off than when he ever went into the hospital with a cardiac arrest in the first place.
So where in the world was your code of ethics all these years? Where did they all of a sudden come from? If I am going to be tough, this is one committee and one area of this committee that I am going to be desperately tough on because, let me tell you, it is devastating. It really is. I know I could go on with a whole bunch more but that is the critical one. Where have your code of ethics and your policies been all these years, I ask you?
Maybe I am sounding pretty vile and ugly. Well, I am vile and ugly because I have listened to three or four, I forget which it is, in the past two days and I have wondered, "Where were you when I needed you?" And not only me but the other members of the family involved and the extended family. I maybe sound cruel and I make no apology for it but I want to know when it comes time to write these things down on paper, what do you expect me to do?
Mr Urquhart: I am not sure when --
Mrs MacKinnon: Let me tell you, none of the reporters were any smart brats off the Star, they were just basic papers.
The Chair: Order, please.
Mr Urquhart: I am not sure when these incidents are that you refer to. Certainly over the years newspapers have evolved to a point where they are far different from what they were in the 1920s, 1930s, 1940s, 1950s.
Mrs MacKinnon: Watch it.
Mr H. O'Neil: Late 1980s -- mid 1980s.
Mr Huget: Evolution is a long, slow process.
Mr Urquhart: I am sorry, I did not mean that personally. There are things my predecessors, several times removed, did that I would not do. But I cannot say that everything we do would be something that would meet your approval. There are times daily when a newspaper's desire to get information runs headlong into somebody else's desire to keep that information private.
Mrs MacKinnon: He was not even asked.
Mr Urquhart: Those sorts of conflicts are not easy to resolve. You can put them in a code of ethics but they are not going to answer every question for you. Things have been brought to my attention that I have to agonize over; do we publish this or do we not?
Sometimes it is as simple as "How much advertising are we going to lose if we publish this?" That is a sort of ethical question in reverse. Ethically, I ought to publish this but the flip side of it is, we might lose a major advertiser if we do. I do not think you would want us keeping that sort of information private. Other times, it is a question of how much am I going to intrude on this person's grief after a death in the family? And what is the public's right to know? We do not enter these issues cavalierly but I can see in the past we have made mistakes and done things we ought not to have done.
The Chair: Any further questions? We have a little leeway in time.
Mr H. O'Neil: I say in most of the cases when we are dealing with newspapers or radio or TV, and I think back in my own area, we are dealing with pretty reasonable and pretty sensitive people. But I guess there are the odd occasions where -- as was mentioned here and a couple of others mentioned -- it sometimes bothers people. This is why I guess I mentioned where you have certain -- and again, you know the question of whether it is freedom of information or anything else. But it is the working together of -- supplying information to you, and you protecting what should not be let out. I sometimes wonder if there should not be some type of a code of ethics that you would develop yourself and, therefore, there would be a closer working relationship and when information is released that is not used properly, knowing that you would enforce that it would be used properly or not used. But most people we deal with are pretty good.
Mr Urquhart: It is obviously something you feel strongly about and having heard you at this committee, I will certainly go back and talk to my colleagues at other papers about it.
Mr H. O'Neil: I appreciate it.
The Chair: Good question. Mr Huget.
Mr Huget: Yes, just a brief follow-up on Mrs MacKinnon's issues. In terms of allowing wider discretionary powers for the press to release information, and in the event that someone does not use their discretion, I guess following a little bit up on Mr O'Neil's as well, looking at a code of ethics standard, how would you see members being accountable to breaches of that code of ethics? We heard from the broadcasters association yesterday, I believe, that they have an 11- or 12-point code of ethics, and it was interesting to note that there had, to their knowledge, never been any reprimands or disciplines or revoking of licences for breaches of those codes of ethics. So I have got a little bit of a question in terms of whether they are effective or not. Are there any things that you can see, that you could do in terms of accountability over breaches of codes of ethics and a lack of discretion in using information?
Mr Foy: As a newspaper publishing in this country or in this province you do not have to belong to the association. That is entirely up to you and consequently, if there was a national code of ethics, which there is a code of ethics which CDNPA has, we would not discipline a member. We do not discipline members. If we were to discipline members and a member did not like that, that particular member could simply resign.
Mr Huget: You see --
Mr Foy: To answer your question, I do not know how strict that code of ethics would be to say, "All right, you violated a certain code of ethics that we put down. We are throwing you out of the association."
Mr Huget: I think though, the issue -- certainly by Mrs MacKinnon's issues -- by and large, most of our experiences is people using their discretion properly.
Interjection: That is good.
Mr Huget: But there are those situations where discretion is not used properly, and in those situations serious damage sometimes takes place. I guess I am saying, is there any way that you can see of improving that accountability when people cross that line and perhaps violate your own newspaper's or your own standards of codes of ethics, and how can we create a relationship of accountability when that happens, or is there a way to do that?
Mr Thomson: I would say that, looking back over 30 years, there has been a great improvement. I know, for instance, that our newspaper for a fact has not run a picture of a dead person in 10 years. I know also that it has not before that, too, but I know specifically in the last 10 years. I might add that the police in Niagara pressed on us a PR release including the names and addresses of 32 men who were found in a washroom in the Fairview Mall over a period of two weeks, a sort of a sexual hang-out. We would not publish the names, and the police were annoyed with us that we would not publish the names. I do not see how you can do better than the relationship between the community and the newspaper. That is where this has to be established, perhaps guidelines, as Ian has suggested, that we get together on this and come up with guidelines that are broader than the ethics code that exists now in CDNPA, perhaps to discuss this between ourselves and even in a sense promote them. But I do not know how to answer. I think John has pointed out the problem of making it a thing of penalty in particular. I am not trying to avoid that, it is just that I do not see how it fits.
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Mr Huget: I just think there is probably room for intelligent discussion on that issue. Thank you very much.
The Chair: Thank you, gentlemen. We are kind of pressed for time. Mr Owens, in response to your inquiry of yesterday in relation to the SkyDome, I believe the clerk can give you some sort of a brief answer on that at this time.
Clerk of the Committee: There is no procedural restriction on the committee calling in whatever witnesses it chooses under its terms of reference, under its comprehensive review of FOI. If the committee wishes, I would be happy to schedule witnesses from such a government agency as the Stadium Corp of Ontario Ltd. I would think that the committee would want to focus its attention on how it is calling them in so as not to be seen to be another level of adjudication or a participant in an appeal process, judging the merits of the seeker of information and those who may be withholding it. You are here to do a comprehensive review of the FOI act and, I understand, looking at how the act can be improved and administrative procedures under that act. So given that caveat, I will do whatever the committee requests.
Mr Owens: My intent in wanting the SkyDome folks to appear was, clearly, we had a question about process made by one of the presenters, Mr Ken Rubin. I think that if we are looking at how this government would like to reform the freedom of information act, we clearly need to bring in agencies like the SkyDome to see how they operate within the framework and see why it is that they seem to have some difficulty in the release of information around affairs that are clearly public.
The Chair: Is it the wish of the committee to schedule witnesses from the SkyDome Corp to appear?
Mrs MacKinnon: Do we have a motion?
The Chair: Okay, we will schedule as soon as possible the SkyDome witnesses to appear in front of this committee. Thank you, Mr Owens.
I wish to thank the members of the Canadian Daily Newspaper Publishers Association for appearing here this afternoon and giving us one final chance to question the media. Thank you. We are adjourned until 1030 tomorrow in Ottawa.
The committee adjourned at 1503.