ARLENE
REINSBOROUGH
DAVID HOGG
INFORMATION AND PRIVACY COMMISSIONER
CONTENTS
Tuesday 25 January 1994
Municipal Freedom of Information and Protection of Privacy Act \ Loi sur l'accès à l'information municipale et la protection de la vie privée
Arlene Reinsborough; David Hogg
Information and Privacy Commissioner
Tom Wright, commissioner
STANDING COMMITTEE ON THE LEGISLATIVE ASSEMBLY
Chair / Président: Hansen, Ron (Lincoln ND)
*Vice-Chair / Vice-Président: Wessenger, Paul (Simcoe Centre ND)
Dadamo, George (Windsor-Sandwich ND)
Johnson, Paul R. (Prince Edward-Lennox-South Hastings/Prince Edward-Lennox-Hastings-Sud ND)
MacKinnon, Ellen (Lambton ND)
Mathyssen, Irene (Middlesex ND)
*McClelland, Carman (Brampton North/-Nord L)
*Morin, Gilles E. (Carleton East/-Est L)
*Sterling, Norman W. (Carleton PC)
Sullivan, Barbara (Halton Centre L)
Sutherland, Kimble (Oxford ND)
Villeneuve, Noble (S-D-G & East Grenville/S-D-G & Grenville-Est PC)
*In attendance / présents
Substitutions present/ Membres remplaçants présents:
Elston, Murray J. (Bruce L) for Mrs Sullivan
Hayes, Pat (Essex-Kent ND) for Mr Paul Johnson
Hope, Randy R. (Chatham-Kent ND) for Mrs MacKinnon
Malkowski, Gary (York East/-Est ND) for Mrs Mathyssen
Murdock, Sharon (Sudbury ND) for Mr Hansen
Tilson, David (Dufferin-Peel PC) for Mr Villeneuve
Wiseman, Jim (Durham West/-Ouest ND) for Mr Sutherland
Wood, Len (Cochrane North/-Nord ND) for Mr Dadamo
White, Drummond (Durham Centre ND) for Mrs Mathyssen
Clerk pro tem / Greffière par intérim: Manikel, Tannis
Staff / Personnel: Swift, Susan, research officer, Legislative Research Service
The committee met at 1013 in the Trent Room, Macdonald Block, Toronto.
MUNICIPAL FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT / LOI SUR L'ACCÈS À L'INFORMATION MUNICIPALE ET LA PROTECTION DE LA VIE PRIVÉE
ARLENE REINSBOROUGH
DAVID HOGG
The Vice-Chair (Mr Paul Wessenger): This meeting is now prepared to commence. The first presenters, I understand, and I'd like to welcome you here today, are Arlene Reinsborough and David Hogg.
Ms Arlene Reinsborough: Thank you for the opportunity to present to this committee. I left a very important job in the private sector this morning and probably cost myself a few thousand dollars just to present to this committee, but that's how important this is to me.
It is not necessary to be a user of the FOI act to gratefully acknowledge with thanks the FOI commission and its services to private citizens like myself. Whether we use it or not, the act is there for us, the little person in the big cog of government bureaucracy.
Without the Freedom of Information and Protection of Privacy Act, I am convinced that information would not flow from the very public sector institutions that taxpayers are forced to maintain through our tax contributions. By assisting citizens in obtaining information that has in past and recent history commonly been withheld from public scrutiny, the FOI commission assists these public institutions in remaining accountable to the public that they serve.
For the common good, my hope is that the FOI act is endowed with even greater impact in the future. Many lives have benefited because it exists. Information is the cornerstone of knowledge and involvement in the public process. In this age of electronic data transfer, the free flow of information allows for good, honest, open government.
To be informed about the government Canadians financially support is, I believe, a right which is critical to protect. If a person desires to exercise this right to access, now or in the future, the act should be there without restriction. After all, this information, which public institutions create and frequently attempt to non-disclose or restrict, belongs to us.
I object to any attempts to limit the power of the FOI act or to redefine words such as "use" or "abuse" or "frivolous" under the FOI act by public sector institutions or lobby groups for those same institutions that I financially support with tax donations.
I object to any attempts to limit or redefine portions of the FOI act, especially those pertaining to access, freedom to access or the insertion of or definition of the words "abuse" or "frivolous" under the FOI act, especially by any public sector institution I financially support.
I object to any attempts to redefine or discriminate against who may access or how they may access public information. The public sector already has enough ways and means of disallowing people access to information by classifying it, as they have already demonstrated in recent legal cases.
I strongly support any attempt to extend the powers of the FOI act even further for the sake of preserving and serving democracy and personal freedom and the common good of the majority. I applaud and strongly support the FOI act, as by its very existence it assists citizens in minimizing the dangers of public sector corruption and abuse. It provides the only vehicle for disclosure and access to information available to the majority.
The flow of information and the freedom to access that information is crucial to the freedom of humankind. I implore you to preserve and support this freedom.
Mr David Hogg: Unfortunately, the Municipal Freedom of Information and Protection of Privacy Act needs to be strengthened. I cannot tell you in an adequate way how much I value the Freedom of Information and Protection of Privacy Act. It has been absolutely invaluable in getting information which otherwise would have been impossible to access, information many of us value very highly. This point simply cannot be stressed too strongly.
My efforts have been concentrated in the area of schools education. You are probably aware of the public concern about the quality of learning in and the quality of administration of our school system. It has been possible to use the information collected to specifically support those concerns.
The IPC is one government agency for which I have the highest regard. It took me four months to get the first information I asked for under FOI. If I had followed directions from the institutions, I would have had to pay more than $1,500 for documents I eventually got free. The information I obtained was critical to assessing how the Metropolitan Separate School Board, which I will later refer to as MSSB, was performing in its responsibilities to its students and its taxpayers.
Commissioner Tom Wright talked, if not on the same radio show I spoke about this issue, at least in the same week. His theme was that he hoped institutions would voluntarily release information and that he would work himself out of a job. I was very sympathetic to that viewpoint. Experience some year and a half later tells me that will never happen.
Institutions are exceptionally reluctant to yield information the public not only has a right to have, but needs to have in order to assess the performance of institutions the public funds with billions of dollars, institutions which have previously been unaccountable to the public. In fact, our education administration gives every appearance of operating under a siege mentality. This makes it exceptionally difficult to access information even when rights under the FOI and POP act are exercised properly and responsibly.
For instance, the IPC will be able to tell you how many times it's been necessary for me to appeal the MSSB for deemed refusals, yet I'm told no penalty can be imposed on the MSSB for this tardiness.
1020
As well, there have been a number of instances where, instead of looking for ways to ease access to information, unreasonable fees have been slapped on the request. If it is the committee's wish, I can supply specific details of specific instances.
Finally, MSSB told me it was going to use the act to delay access to information. I was told specifically that even if I appealed, the delay built into the appeal process would mean I would not get the information until it was ready to release it; that in spite of the fact that the Ministry of Education and Training and another board would release without this delay. That is intolerable.
My request to this committee is that the act be strengthened. In particular, I request that when an institution is late without explanation or cause, when an institution attempts to block access by substituting an unreasonable fee or by other means, or when an institution deliberately blocks or delays release of information, progressively more severe penalties are imposed.
I would like to suggest that the threat of a penalty might just reduce the overall cost to the institution in spending time and effort on creative blocks, to the IPC in fielding unnecessary appeals and the cost of time and effort to people like myself who try to keep the public informed at no cost to the public purse for our time.
The Vice-Chair: Thank you for your presentations. We now have time for questions.
Mr Murray J. Elston (Bruce): I'm interested in the issue of frivolous because that's been raised several times. Although you say these records are all accumulated by taxpayers' dollars, why should I as the taxpayer who's paid to get this information in some record form have to pay for the activity of one individual, particularly if he uses the system to throw a wrench into the system, as I was reading in another brief here, or if there is somebody who makes his living out of doing freelance journalism, for instance, and this is the way he gets his information free, so to speak?
I know you're opposed in the sense of either having a user fee or otherwise, but can you tell us how we come to grips with providing the balance that is required for me as the general taxpayer who doesn't use the system?
Ms Reinsborough: First of all, the word "frivolous" is something that someone is going to define. How frivolous is it to ask, for instance, for the discretionary expense accounts of the director of education because you know that as a taxpayer in your community the cost of education is 58.8% of your property tax and $300 million is the budget?
Tell me how many companies on the Toronto Stock Exchange have a budget of $300 million, and would you allow them to operate in total non-disclosure? Would you allow their director not to disclose his salary and maybe even just the range of his salary? Would you have to apply to the IPC to get the director of education to disclose the $40,000 discretionary account? If you were to be asked to pay $54,000 for that account, would you consider that reasonable?
Also, most of the people who access information are not members of the press; they're people, private citizens like myself who do not own corporations that get money from this information. We're just interested as taxpayers in how much it's costing us to maintain a system, like the system of education, and why we cannot get from the Provincial Auditor a full value-for-money audit because the Education Act does not permit the auditor to do such a audit. If you recall from his last report, he didn't look too kindly towards the education system because of the way it handles my money.
I don't think those kinds of concerns can be considered frivolous, but under any act, who is going to be the judge? Is it going to be the FOI manager who's going to judge frivolous, the one who is the assistant to the director of education, the one who wrote for the Ontario Public School Boards' Association in the report you have here? Is it going to be he who decides what is frivolous? If it is, we will never get information from school boards.
Mr Elston: I understand where you have been. That wasn't my question. I understand there are legitimate ends to be used, but there have been complaints. For instance, one piece of correspondence here says they got 442 applications for information from one source within the first two years of the act and the person, when interviewed on TV or the radio up in his area, said, "I just want to throw a wrench into everything."
My question was, what do we do as a committee to make sure we have the balance to allow you to get all that information which you have rightfully described as being appropriate? I might just add in parentheses here that we have talked about the issue with the minister and with Mr Wright, the commissioner, of perhaps disclosing the salaries of public officials. That's another issue that's being dealt with, but how do we deal with someone when it is a real effort to make sure that the local administration, particularly if you've only got 10 or 15 employees, is ground down by a whole series?
I don't want to debate the merits of a particular incident. I want to make sure we can get an answer, because both of you obviously are using the system and like it, but how do you make sure you get the good balance so that somebody doesn't drive the system to spend not only tens but even hundreds of thousands of dollars administering the system and thereby taking away from actual, practical programs?
Mr Hogg: There are two issues here. One is where somebody is deliberately trying to drive the system into the ground. If the person admits that, I for one would be very seriously against that. That is unconscionable, just as it's unconscionable if people don't release information.
The other issue is that if a person with an honest intent is driven to grounding the system or throwing a wrench into the system, that is something completely different. The question then has to be asked why this person with honest intent is driven to this recourse.
I don't believe that the requests I made would fall into that category, but I can see that somebody will be driven to desperation by institutions that are reluctant to release information that should be absolutely free and open. As I say, there are two separate issues here and therefore they need to be looked at separately.
Mr Elston: So I as a person not involved in the issue between you and the administration should pay the price, both from the administration point of view and as the taxpayer, for your crusade, which I may even disagree with, by the way?
Mr Hogg: I think your particular responsibility is to make sure that the act can deal with both these matters in a sound and responsible manner. I don't think you need to make a judgement about the cost of them.
Mr Elston: But you see, I have to ensure that we're able to get the access to information, which is clear, but I don't want to have to pay for somebody who perhaps lost an election and decides, "Well, I'm going to take on the mayor this way and make his or her life hell by just requesting, day after day, information about all kinds of stuff and then he or she can't get any of the department officials to do the work of the day," if you know what I mean. As a taxpayer, I'm going to pay the whole shot eventually because I will pay for the people whose time is going to be wrapped up in covering the requests.
Ms Reinsborough: As a taxpayer myself --
Mr Elston: We all are.
Ms Reinsborough: -- and a businesswomen myself, I would not mind paying for someone to access the act, because I believe in the right to freedom. First of all, there shouldn't have to be an act. Freedom should be available. After all, I pay to keep each and every one in this room working. That's what I do. I work to keep this whole building working. Each and every one of us does that, including yourselves. You all pay taxes, I assume, so you all are taxpayers.
Consequently, I feel that if you let a government go covert and protect its information, you're taking away my right to democracy. I feel so strongly about this issue, I'll tell you, that I'll chain myself to your doors, because you are not getting away with removing my right to freedom, and to know what you're doing is my right to freedom because information is the new data highway to freedom. Whether it costs us or not is not the point here; the point is it should be free.
If you think that the IPC commission and the cost to taxpayers is too high, then open the doors to the educational facilities and all the other public sector institutions and let us look at the information and see what we need. Let us pay for the cost of photocopying it. Let us pay for the discretionary right of looking at it and deciding what we want. You have options besides the fact that you want to deny us the right to access this information. Information that you create in these institutions is ours.
Mr Elston: I don't mean to deny you access to anything, but there still are the costs associated with administration. That's the problem.
Mr Hogg: Let's have some specific incidents.
The Vice-Chair: I don't think we want to get into a debate here. Mr Elston has used his time so I'll now move to Mr Tilson.
Mr Norman W. Sterling (Carleton): The first question is a specific question. The individual we're talking about happens to be in the Penetang hospital for the criminally insane and he has used up, as I understand, half a million dollars of government revenues in freedom of information requests. Now, I don't support allowing this individual to carry on, thank you. My taxpayers do not view that as a prudent expenditure of government money.
Mr Hogg: I think we would agree with that, but we've made that separation already.
I'd like to go into very specific items. One of the freedom of information requests that I made was for the results of the schools that participated in the 1990 provincial math review. That was the first request I made to the MSSB.
Mr Sterling: No, get back to my question. We're talking about people who are citizens of this province, who are not distinguished in the act, and I don't think that this committee is going to distinguish one citizen from the other in this act. How do we limit those kinds of individuals from abusing taxpayers' dollars?
Ms Reinsborough: How many of those individuals do you have on record at this point?
Mr Sterling: I don't know. I'm not part of the government. I know of this individual.
Ms Reinsborough: You're talking about one. So if you're talking about one --
Mr Sterling: There probably are a dozen.
Ms Reinsborough: -- out of many millions --
Mr David Tilson (Dufferin-Peel): One cost half a million dollars. That's pretty good.
Mr Sterling: Yes.
1030
Mr Hogg: Are there lawyers? Is the government not capable enough to screen out these unreasonable requests?
Mr Sterling: He has a right to ask for these things.
Interjection: There's no way to screen them out.
Mr Hogg: We can't be held accountable for deficiencies in the current act. If there are deficiencies, then those should be strengthened. I think we would support that position and encourage the lawyers to use their particular skills to do that.
Mr Sterling: But it's the act, and it's abuse and it's overuse, uncontrolled, by an individual. Our problem as the Legislative Assembly is to construct language to cut this individual down to a reasonable amount of use of the act, and by doing that we have to include everybody. We can't just say, "Joe Blow," who is up in Penetang, "because you're in this kind of institution, you're different from other people." We have to have some kind of general framework in order to do this. That's what the debate's about.
Ms Reinsborough: The danger in doing something like that is that people like myself, who are trying to do good for the majority of people in my community and have the support of the majority of people in my community and write articles free of charge to papers that want to know about this issue, are going to suffer because of course the institutions are going to find ways around it. They've already found ways around it.
Another thing you're not putting into perspective here is that one individual is misusing the act. I have said in my statement in the final paragraph that there are so many ways around providing information, that institutions can be so covert at present, that they can be so destructive in how they destroy information and not have it presented, that your statement is irrelevant, because if this person is asking for that much information, costing the system that much, the system could get around providing that information by being just as covert as the ones we've dealt with in the public sector. So there are ways of preventing information from being gotten already.
Mr Sterling: Unfortunately, that's not the case.
Ms Reinsborough: Unfortunately, it is the case.
Mr Sterling: Under the present law, any individual can make a request and require two hours of search time before anything happens, and that's a lot of money if you make a lot of requests.
Ms Reinsborough: Do you charge him $54,000 for the information?
Mr Sterling: Not for the first two hours. For the first two hours, you can't charge anything.
Ms Reinsborough: It takes a creative person to think up two hours and then add six more on and ask Joe in the office how many more he can add and come up with a $54,000 proposal. I'm sorry, but that's what's happening. If you want proof of that, I'll give you hard copy.
Mr Sterling: I'm saying there are two sides to this equation and it's not black and white on either side. That's what we're trying to wrestle with here, and we're trying to protect the taxpayer from an individual who has cost the taxpayers $500,000 over the use of the provincial act. We have heard stories from municipalities where they're having experience with similar kinds of individuals in their areas, where individuals put in a dozen or 25 requests to get 25 times two hours' search time by their municipalities free and then don't even bother to ask for the information when it comes out.
Ms Reinsborough: How would you propose that they not use the FOI act, then? Would you not think that the municipalities could possibly let their information flow, thereby reducing the FOI requests and thereby actually involving the public in the process of making decisions and opening their papers and knowledge to the public? That would be a novel approach.
Mr Sterling: We're dealing with a specific problem here of abuse as brought before the committee and we're trying to find a reasonable answer to it. We're not questioning the very basis of the act. We all agree with the very basis of the act, and that is that information should be freely available, as much as possible, to the public.
Mr Hogg: Mr Chairman, if I can interject --
Mr Sterling: I don't want to get into a debate. I want to point out that there's a significant other side to this thing, and by coming and saying carte blanche everybody has a right to everything free is a non-starter, as far as I am concerned as a politician. I must protect the taxpayer more than you are proposing.
Ms Reinsborough: We never said "free." We just said, "Do not" -- the words "abuse" and "use," that's what we said. Free is something that has to be discussed. Already, we've paid for information and it is not always free. But to charge this person $54,000 for information is ludicrous.
Mr Hogg: I would like to ask the committee to be sensitive to our situation here. I don't think that we personally have to answer for somebody who happens to be in a particular institution up north. I think the questions might be appropriately addressed to the points that we have raised and our particular situation, and I think we will answer those as best we can. I don't think that we should be subject to questions for situations over which we have no control.
Mr Pat Hayes (Essex-Kent): On the same line here, on the issue of frivolous or vexatious requests, I think all members understand the concern that everybody should be able to get the information that's necessary for them to find out what they need. But at the same time, we have had examples here in front of this committee -- was it the Metro police, for example? -- where a person requested to know how much toilet paper the chief used. Then we have other incidents, which I think some of the other members alluded to, where a woman said that she didn't like a particular answer so she decided she would flood the system.
I know where you're coming from. But at the same time, do you feel that those kinds of requests should be answered without any kind of a fee? Do you feel that those are frivolous kinds of requests?
Mr Hogg: On the face of it, I certainly would agree that they're frivolous. But the situation here is that we have two sides of the coin. We have those people who have legitimate requests and are being frustrated in their efforts to get it, and I'm prepared to discuss specific instances with you, and there are those people who misuse the system.
Both of us are here to complain about potential misuse of the system. As to any misuse, whether it's on the part of the requester or the requestee, so to speak, I think I can speak on behalf of both of us, saying that we would be opposed to that.
The delicate line that has to be followed here is to produce an act -- this of course is always difficult because there's always, I guess, somebody brighter than the people who wrote it who would look for loopholes. The problem you're faced with is to write an act that protects legitimate access.
1040
Mr Hayes: I think that's what we're really talking about here, legitimate requests. Some of the requests that we're aware of, anybody would call frivolous as far as I'm concerned.
Mr Hogg: Right. You're asking me to come up with solutions here.
Mr Hayes: No, I'm not. I'm asking your opinion on someone asking how much toilet paper the chief used. Do you feel that's not frivolous? I'll put it that way for you.
Mr Hogg: Certainly, on the face of it, that would be a frivolous request. The other side of that coin is that when an institution tries to charge me $1,500 for information, that because I know a little more than usual I eventually got free, then I can turn the question back to you, do you think that's a frivolous use of the act?
Mr Hayes: I don't know what you were asking for or how much work you were requesting them to do.
Mr Hogg: One of the instructions that we got was to look at specifics, so let me give you a specific. I asked for the results of the 1990 provincial math reviews. There were 15 tests applied in MSSB and I asked for those results. They said that while they possessed the information, they didn't own it, that it was owned by the Ministry of Education and Training, so, "Please go to the Ministry of Education," and they were kind enough to send the request off to the Ministry of Education.
I got a reply back from the Ministry of Education wanting to charge me $660; $600 of programming time and $60 for copying. I asked the question, "Why would I need to spend $600 on programming time when the programming has already been done, the results have already been generated, they've already been supplied to the board of education, the board of education has these results, and you want to charge me $600 of programming time?" If that isn't frivolous and vexatious, please tell me what is.
Then I was poking away further and further, and I said to the Ministry of Education, "Why won't you give permission to the board of education to release the results?" They said: "Oh, we'd be quite happy to do that." When the letter went to the board of education, lo and behold, there's order M-27, which in the case of Carleton board said that it had to release them.
Here am I, spinning my wheels. If I hadn't been persistent and if I hadn't been somewhat knowledgeable, I'd have been dead in the water and I wouldn't have got the information. Please tell me that isn't frivolous.
If you want me to go on, I'll spend the whole morning telling you about these horror stories, one after the other, one of which is currently there. I want their grade 12 writing results. They got them in the schools last April. They got the list of schools in 1991. They won't release them to me because they want me to work to their timetable and not to mine. They can do this and there's nothing I can do about it. I've got to sit there.
Sorry; you probably realize you've touched a nerve.
Mr Hayes: At the same time, whether it's your side or the other side, you're still saying that there are chances of having frivolous requests then, whether it's from a specific ministry or whether it's from an individual going to that ministry. Am I correct?
Mr Hogg: There is the opportunity for frivolous requests and there is also the opportunity for frivolous turndowns. If you need encouragement to go back to the act in order for it to be rewritten in such a way that both of those items are less liable to happen, then we would encourage that.
Ms Reinsborough: What we're trying to say to you is that the public institutions themselves can be just as frivolous in how they treat a request, whether it's not under FOI or under FOI. Here you have a public institution protecting its information at all costs. If that means that it's going to cost the taxpayer more because it denies you your access, makes you go to appeal, forces you to use the system to the nth degree costing the taxpayer more money, well then, why can't the institution, when approached and asked for reasonable information like results because this person evaluates results, give us information about how much it's costing me to support them and where that money is going?
Why should I have to use FOI to get that? But if I have to use FOI, who is going to decide whether it's frivolous? If the taxpayer is going to be burdened with proving frivolous or abuse, then perhaps the public institutions should also be burdened with frivolous and abuse. It's only fair that they also have to prove turndowns to us, because that should have to be proven. There should be some guidelines for them too because right now they get away with murder.
Mr Hogg: I would like to come in again at this particular point. I went into the MSSB and -- this is on record; it's a matter of public record -- I offered to cooperate with them. What I said was that I had some data on testing. I said I was prepared to share this with them if they would share their information with me. What happened? Nothing. Another person and myself went in. We again made this offer to cooperate and the answer that came back was that we should continue in the same way, using our request through the freedom of information act.
The Vice-Chair: The time has expired, and thank you very much for encouraging a lively discussion this morning.
Ms Reinsborough: May I just tell you one very brief question here? I asked what the best way was to access certain information and I was told by those public institutions to use the FOI act. I have that in writing if anyone would like to see that.
INFORMATION AND PRIVACY COMMISSIONER
The Vice-Chair: The next presenter is the commissioner, Mr Wright. We have Mr Wright scheduled for an hour, although I think there can be some flexibility in that regard. I assume the committee would be willing to go to 12 if that's necessary.
Mr Tom Wright: I want to begin by thanking the committee for providing me with the opportunity of appearing again as your hearings are drawing to a close.
Our office has been following your proceedings with interest and I'd like an opportunity to make a few final observations. I'm going to comment on five or six points that I feel reflect some widely shared concerns.
But before doing that, if I may, as a general observation, having been advised of the content of representations that have been made to you as well as reading some of the written submissions, in my view what the committee has heard indicates that Ontario's access and privacy scheme is working.
I also think it's fair to say that there are improvements that could be made to that system and in some sense those improvements relate simply to the act, in essence showing its age. It's an act that was created back in about the mid-1980s. Many things have happened since that time. Rather than the act not addressing the concerns that existed at that time, it's simply that there are a whole series of new public concerns that have arisen which I think the act should be amended to address.
The other thing I would like to indicate to the committee is something that I think is very important, and it has not been mentioned as of yet. That's the importance of the role played by the freedom of information and privacy branch of Management Board secretariat. I think Ontario has benefited significantly by having a central group that provides advice and assistance to institutions which have to deal with the act, and that has played a very important role in terms of why this act has worked as well as it has. I certainly commend the efforts of the people in that branch, as well as the fact that the branch exists at all. It's a very important branch and it makes a very real contribution.
The other people whom I would describe as the unsung heroes with access and privacy legislation are the freedom of information and privacy coordinators. I notice that the committee that did its review of the provincial act in 1991 talked about specific recognition of those people in the legislation and made a recommendation to that effect.
These people have an incredibly difficult job. They have to respond to the requests received from the public and I have to say, again in the spirit of candour, that at times the role of the coordinators is very delicate in terms of their own position within the organization in which they work, because they may well feel bound by the requirements of the act and those sympathies may not be shared by others within the organization. I think they're placed in a very difficult position. Certainly, my experience has been that these people are very dedicated and hardworking and really are captured in terms of the spirit of both access and privacy, and their role should be formally recognized.
1050
One of the significant issues, and this is where I'll turn to the five points I want to mention to the committee, that the committee is going to be looking at or I would encourage the committee to look at is the extension of the coverage of access and privacy to hospitals, universities, social service agencies and professional governing bodies.
In our submission, we outline that we feel these public organizations should simply be more readily accountable, and also that provisions be in place to protect the privacy of personal information. We notice, and I have noticed in looking at the representations, that particularly as it relates to hospitals there seems to be significant support for the idea of extending access and privacy to the hospital setting.
The second point, which I made earlier and I would like to simply revisit for a moment, is the matter of the disclosure of salary information. As you know, we have called for the release of actual salaries, not salary ranges, of all provincial and municipal government employees. We feel this recommendation reflects certainly the spirit of the new regulations under the Ontario Securities Act, but takes that necessary step when we're dealing with public funds to increase the accountability and make salaries universally available to members of the public.
I've been told that the committee may be interested in comments from our office on the question of access to government records for visually impaired and hearing-impaired persons, and I'd like to take a moment to address that specifically. We have made a recommendation on alternative formats. We saw this as a starting point for addressing what I would acknowledge to all members of the committee is a very complex issue.
There is this question once again of balance between the goal of equality, of access rights for disabled persons, and concerns for cost restraint. But I believe, and I think this is a fundamental in terms of a starting point, that we must move forward to improve access to information for disabled persons while keeping the costs manageable, that the Ontario government would establish in the acts the obligations of institutions when responding to requests by persons with visual or hearing impairments.
This would be done, as I say, by amendments. As an interim step, it would be possible for Management Board secretariat to issue some form of guideline which would provide guidance at least to provincial organizations around their obligations relating to requests by disabled persons.
We've offered up what we see as a starting point in the federal model that's contained in both the federal Privacy Act and the federal Access to Information Act. It does contain this kind of obligation and sets out a test for determining whether or not the information will be provided in alternative format.
The fourth point I would like to mention relates to the need for changes to meet the access and privacy challenges of the electronic age. Once again, it's something that I referred to in my original presentation, the ability of this legislation to incorporate concepts which will not require that it constantly catch up to new developments. We've made some proposals which we feel will permit that situation to exist so that there isn't a need for periodic and regular amendments of the legislation to keep up with something that certainly, in my view, is virtually impossible to keep up with, and that's the new types of technology that are coming on stream literally as we speak.
You've heard from the presenters before me the concept of concerns around the building in, if you will, of access and privacy concepts. This is the other part of our recommendation around electronic and electronically stored records. I recall giving an example when I appeared last Tuesday. What we feel and what we are concerned about is that the move to electronic records result in improvements, result in lower costs, result in better access, and that considerations of both access and privacy concerns be taken into account when these new systems are developed. We have made a recommendation to that effect in our submission.
There's one other point I'll speak to, which I'll say in advance I don't feel is really part of the review of the municipal freedom of information legislation, and that relates to open meetings at the municipal level. I know there has been some comment made in various submissions about that.
My information is that those types of concerns have been addressed in draft legislation on open local government which has been prepared by the Ministry of Municipal Affairs. My understanding of the package of amendments is that, among other things, it will provide that regular, special or committee meetings of municipal councils or local boards will be open to the public except in limited and exceptional circumstances. Certainly I think this would be a move that would foster more accessibility to local government and I would simply like to take this opportunity to encourage that movement be made in that direction.
The final point I'll mention of the five and six points I wanted to mention to you is to reinforce a point that, again, I think you've heard fairly regularly throughout your hearings, and that is the need for routine disclosure and active dissemination of government-held information.
We feel there should be records that can be automatically released; they're designated types of administrative and operational records on demand. To me, a simple example would be a statement of expenses, whether it's for an individual employee or an individual who would be on the executive of an organization. At the end of every month, would it simply not be a matter of routine practice that copies of these statements of expenses are simply put together in a file so for that anyone who happens to ask, they're simply provided as a matter of course? Why should they be required to go through a freedom of information request in order to obtain information which they're going to receive anyway.
When we're looking at the very real and legitimate concerns around costs, there are these kinds of very simple ways in which some of those costs can certainly be addressed.
In fact, our office has been working with Management Board Secretariat to try to develop some principles which we can share with the institutions covered by the legislation which will help them identify the kinds of information that will be made available to the public as a matter of routine. Our goal in doing this is to make it easier to use. It provides better customer service to members of the public, and just as importantly, it does reduce the costs associated with this legislation.
I noticed that at the opening of your hearings the Chair of Management Board expressed an interest in hearing the committee's views on a number of issues, including extension of coverage as well as disclosure of government salaries. We certainly agree that these are important concerns and are counting on the minister to see that these and other access and privacy concerns do rank as high priority on the government's agenda.
By way of closing, I have a request to make of the committee. I would ask members, when you're considering your report and the kinds of recommendations you'll be making, that you keep one central theme in mind and that is that laws, regulations, appeals and privacy investigations are not ends in themselves; they are a means to a larger purpose and to a different end. I think is the obvious point, but I will make it anyway. What we're looking at is shifting the government's attitude towards the information that it has and we're working to a day when government simply recognizes that it is the steward, not the owner of the information it holds.
Thank you very much and I would certainly be pleased to attempt to answer any questions you may have.
Mr Tilson: Thank you very much for your further comments to the committee. One of the questions I've asked several of the delegations, which got mixed reaction, is with respect to the issue of costs.
I believe there's no question that there are people who are obstructionist and they're out to cause havoc to all kinds of systems, whether it be municipal, provincial or whatever. I also believe there are people of authority, whether they be heads or whatever they wish to be called, who may be obstructionist, who may use the act to their advantage to not release information for political reasons or otherwise. I believe that.
The question I have posed to others is that with respect to the issue of costs, there doesn't seem to be any procedure for determining costs. I'm not talking about fees or user fees; I'm talking about costs as one would in a judicial type of setting. In other words, if there's an abuse of power by the head or if there's an abuse of freedom by the applicant, someone has to make that call.
We're wrestling with the word "frivolous." What is frivolous? I don't even know whether I know what it means. Somewhere along the line, someone has to make that decision.
The question I have posed is whether there should be some form of decision-making power to perhaps your office, the commissioner's office, or somewhere in the system where costs could be awarded against someone who is abusing the system.
1100
Mr Wright: There are two parts to my answer to that. First, there was a recent order issued by our office which indicated that it was our view that, as presently worded, the access and privacy act does not permit our office to award costs either way. I'm also aware that some of the submissions have talked, as you have said, Mr Tilson, about the issue of costs.
The concern I would have, and I speak on behalf of the commission when I say this, with imposing or giving the commission, for example, an ability to impose costs is that it changes, I think, the nature of how our commission tries to operate. We try to do a lot of our work through mediation. We feel that produces a more effective result for all concerned. My concern would be that we would lose some of the working together attitude that our office does try to develop, and I don't mean with institutions exclusively; I mean with all parties to an appeal. As a result, we would end up with something that would be more of an adversarial process, which would end up with more formality, which would end up with more lawyers, which would end up with more costs and which would end up taking more time.
That's the kind of concern I would have, not so much with the notion itself, and I certainly appreciate what you're saying; it's more a matter of what it would mean if people got into a system as far as our office and saw us as this ultimate enforcement agency, which we really don't see ourselves as being. We feel our job is to be advocates for freedom of information and protection of privacy. That's the role we want to play.
Mr Tilson: I understand that. That difficulty is that's what it's become. It's become adversarial, unfortunately. People want information, they have an absolute right to information and they're not getting it. At the same time, and Mr Hayes gave one example this morning, there's no question that there are examples of people who are abusing the process, getting information for whatever reason. As I say, I don't even know what frivolous is. Many of us in this room may have difficulty defining what is frivolous.
The example I've given to delegations in the past is with respect to the Ontario Municipal Board. In the past, up until recent years perhaps, the municipal board very rarely if ever awarded costs. Now, particularly with competitors that are trying to slow down the process of particular developments and are appealing some zoning application or some development process simply to slow the process down -- they don't even have any grounds -- substantial costs are now being awarded by the Ontario Municipal Board. I believe that has stopped many frivolous claims.
The world, unfortunately, and the world of information is becoming more and more adversarial, like it or not. We've heard delegations: municipal, provincial, education. It is adversarial. That is why it's a solution which I have put forward as a solution. It may not be a good solution, but it's a solution which I hope other members of the committee would consider. If there's abuse of power either from the people who hold information or from people who are asking for that information, and there will be and will continue to be, what are we going to do about it?
Mr Wright: I am actually aware of your example of the Ontario Municipal Board and the direction it has taken around cost as it relates to competitors. I think the difficulty, and I speak from the point of view of the commission, is the nature of the inquiry process that the act actually brings out.
I would agree that many institutions as well as some users do feel it's an adversarial process already. I don't know if that's the kind of situation we would want to see perpetuated. I obviously feel that we should be working to a situation where that adversarial nature is eliminated; if not, at least reduced. I would wonder whether imposing costs might run the risk of perpetuating an adversarial situation which exists now, but may well soften as time goes on and people become more comfortable and familiar with what the act requires. I think this whole notion goes to the root of many of the things the committee has heard.
There still is not, in my very humble view, an acceptance of whose information is being held by the government. There is this notion that in some magic way, government, which is clearly paid for by all of us as taxpayers, suddenly owns information. Until we get beyond that -- and I'm not an unrealistic person in terms of the reality of being able to move beyond, but in terms of what I am trying in my term as commissioner, I am hoping that what we're going to see is a movement which does shift that kind of attitude so we're not caught with some of these very real concerns and the formalities of the process that we're having to deal with under access and privacy.
Mr Randy R. Hope (Chatham-Kent): Mr Wright, as you're well aware, and you've probably read the briefings, there was a presentation made where an individual and a councillor said that the rights of welfare recipients, their privacy, outweighs the money-protecting. They were using the synopsis that the right of the public to protect its money outweighs the rights of individuals to privacy, for public funds. They were making the comment dealing with welfare.
I also know that under the BC statute, subsection 22(3), which indicates around personal information and third-party stuff -- I notice in your presentation today where you talk, and you said it a couple times as a matter of fact, about advocates. You're an advocate for the privacy aspect; also an advocate for accessing information. It's balanced there.
You've had the opportunity, and you know the problem that's going on in Hastings county and also in Lambton county with municipal elected officials wanting to know exactly who's on, their addresses, and everything about social assistance recipients. I'm really interested to hear your viewpoint.
A presenter took 25 minutes and allowed one minute for us to try to ask a question. It's hard to ask a question in one minute. She got good press out of it, but I want your opinion about what's going on with this whole issue around social assistance and the privacy of those individuals.
Mr Wright: As you say, I am aware of the types of submissions the committee has received on that issue. I have to be, and I ask for your indulgence on this, a little careful in my response to you only because our office has to work with the act as it presently reads. We may well receive a complaint around the very issue you raise in which we're required to make some form of report. I don't want to be seen as having prejudged that kind of complaint. But I think it's fair to say that the concerns that have been raised by the various presenters about the privacy of persons who are receiving social assistance are very real. I think the concerns they've identified as far as the potential is concerned for how the act could be used as presently worded are also real.
As far as this balance between the two is concerned, what I have not heard in terms of that issue is what rationale, if any, was used in terms of why that information was being requested. I think it's a very difficult situation in terms of, once again, accountability for expenditure of public funds.
I think this committee is correct to be looking at this issue. I certainly feel that the answer, in terms of what the committee would do, would be in the form of some type of legislative amendment which, depending on how the committee felt about the approach that should be taken, would clarify the situation very directly.
I fully agree, as I say, that the words now used, and I believe it's section 32(d) of the municipal legislation, talk about things like disclosure of this kind of information to an officer of the organization if it's necessary and proper. You've got a very real question around what's necessary or proper. Who makes that determination? Certainly, in terms of the issues that were raised, the potential is there for the use of the act to be done in the ways as presented to the committee.
1110
Mr Hope: When we're dealing with this issue, you're saying accountability and I really want to focus on that. Wouldn't the accountability aspect be to the administrator of the program, not necessarily the municipal elected officials as far as accountability being there is concerned and making sure that system is working, and if it's not working, to make the correctives? I know she highlighted a number of areas in the report which I know the government is already pursuing to clean up communicating with Quebec, with the federal government on CPP. The Provincial Auditor indicated that, which was going on by previous governments. They wanted us to clean it up, and I know Charles Pascal made a presentation to that.
When we get to the issue of actually who should be making sure that the system is accountable, and when I read the legislation in British Columbia under subsection 22(3), which talks about the privacy of the individual and invasion and also makes a determination on the social assistance aspects, would it then be appropriate, because I'm looking for direction from you too, to allocate the administrator as the head versus the elected officials as the head?
Mr Wright: I'm aware of the suggestion that's been made and I believe it was made back in 1991. It would certainly be a solution, although in essence it would not by any means absolutely eliminate the possibility of access, because there can be information exchanges that would take place from institution to institution through other mechanisms available under the act. I guess it depends on the kind of solution you're really looking for.
It is certainly a solution. What it carries with it, of course, would be all the other obligations that the act would impose on an individual institution. The reporting requirements and all the other things, access requests, various other requirements that would apply then to that individual organization, which may well be no difficulty at all; I just point that out to you.
Mr Hope: What I would like to say, in looking at the information, and I guess I'm going to really form this into a direct question, should people be stripped of their rights to privacy? That was a direct comment that was made, saying that they should be stripped of their privacy rights. I read your report that you gave us, I looked at BC, I listened to you talk this morning and I need to ask that direct question. I know where you're at. You're a pretty good politician in answering the question on that one, but I need to ask you a direct question then: Should individuals be automatically stripped of their rights?
Mr Wright: As a matter of making those kinds of choices, the answer I would give you is no.
Mr Gilles E. Morin (Carleton East): Mr Wright, two quick questions: You mentioned in your presentation that one significant issue facing the committee is the extension of the access and privacy system to hospitals, universities, social services agencies and professional governing bodies. That means more or less an extension of the bureaucracy. You'll need more people if you have that extension.
Mr Wright: That's fair, yes.
Mr Morin: Okay, how much?
Mr Wright: I recall this question being asked either by, I believe, Mr Tilson, or it was asked the last time by Mr Sterling. We have not as an agency gone into an actual, careful look. I think that would be part of the considerations that the committee would want to take into account.
We certainly have no desire to expand on the size of our office. I think our experience to date makes us more suitable in terms of considering this kind of expansion at this time, because I think we have an understanding of how we do our business and I believe we're doing it in a reasonably efficient way. But, yes, I can certainly answer your question by saying there would be a requirement for more funds. The extent of that, I don't know.
What we're going to see -- and I believe I mentioned this again at the last appearance. The province of Quebec has extended data protection or privacy legislation to the entire private sector. Their access and privacy commission has had its jurisdiction expanded as a result of that step. We're certainly going to see that as an example of what kind of administrative costs, certainly as they relate to the commission, are likely to be incurred. I've spoken to the commissioner on a number of occasions and I know indeed they are hiring, as you can well imagine, more staff. The extent of that hiring he doesn't know yet.
Mr Morin: We have another government body, an extension of the Legislature, called the Ombudsman. The Ombudsman Act is very clear. It prevents the Ombudsman from investigating cases outside of governmental organizations. It's strictly governmental organizations. It cannot touch municipalities, decisions of the courts, hospitals etc.
If we were to give you that extension on these bodies, would it give the Ombudsman solid ground to say, "Look, you've given it to the privacy commissioner, therefore the Ombudsman should have it"? That's the problem. That's the concern I have: Then we would create, again, a larger bureaucracy.
Mr Wright: I have to confess I hadn't thought about that kind of impact that it might have on someone like the Ombudsman's office. I'm not sure what has been proposed at this point.
Mr Morin: You see, she's asked for it.
Mr Wright: Fair enough. I wasn't aware that she has done that. I know certainly, as far as the ombudsman in other provinces, it extends beyond what Ontario's coverage is, at least to the municipal level. Whether the committee's decision in this context would affect it, I can see the connection that you're making.
Mr Elston: If I might --
The Vice-Chair: Well, I'm --
Mr Elston: We didn't run out of time.
The Vice-Chair: Yes. I'm being very flexible today.
Mr Sterling: They've been very brief on their first question. Why don't you give Murray the next question?
The Vice-Chair: All right.
Mr Elston: I want to go back actually to the question I asked another presenter last week, which was, seeing that if we accept the suggestion and if the minister follows through on his suggestion that we reveal the wages paid to every employee of a municipality, school board etc, with their expense allowances and otherwise, can you tell me what the rationale is then for not revealing all amounts of money paid to all people by taxpayers dollars; ie, if you pay a person to work, shouldn't you also reveal the people who are paid when they're not employed, ie, welfare?
I want to know, because when we're going to sit to draft this issue, if I'm going to say, "X is a clerk-typist and earns $17,900 in Walkerton, and by the way, Y doesn't work, but you can't figure out how much I pay them," how do I explain that to individuals who are worried about taxes? What's the rationale for saying, "Yes, I revealed one because those are taxpayers' dollars, but the second I can't tell you because those are also taxpayers' dollars, but you don't need to know"?
Mr Wright: I see them as being quite different.
Mr Elston: Well, that's what I'm asking. That's the question, Tom.
Mr Wright: Certainly as far as the salaries of employees, I look at it once again as the public-at-large being the employer and in fact, as a result of that, having a right to know the amount of money being paid to one of its employees, at whatever level it happens to be and whatever government agency is affected.
I think the issue of benefits, although obviously there's an expenditure of public funds, is really something in which we are getting into a situation where the legislation already recognizes, in the form of the type of personal information that is entitled to protection, it recognizes it in the personal information exemption, that for individuals who are in receipt of social assistance, there is a presumed unjustified invasion of privacy to disclose that kind of information.
I see it as a value in terms of the privacy of those who are in difficult circumstances, who are, through no fault of their own, required to take advantage of or benefit from a type of government program, and there is a right, it's a basic human right, in terms of their privacy.
So I guess the balance, Mr Elston, in terms of those situations, which I freely admit is in place in both cases, as weighing in favour of disclosure obviously in one and seeing that the privacy interests --
Mr Elston: But I still don't understand why. If I go to work every day and I'm paid to be at work, you're going to tell the whole world that I'm going to be paid $20,000. No matter what I do, no matter what I say, everybody knows that when I get in my car I'm going down there to get a cheque which will work out to be $20,000 a year or $60,000 or $100,000. But if I don't go anyplace during the day there isn't anybody who can figure out exactly what I'm paid even though those are my taxpayers' dollars.
1120
I don't find you've given me a distinction at all. Both are paid taxpayer dollars, full up front. You see, the arguments which favour one, it seems to me, have to be applied to the other. If you can find out what the gross numbers are for everybody who's receiving social assistance, that's one number; if you know what the gross figures are for all the employees, then isn't that a balance? Basically what you're saying is that if I work, you have the right to know what I'm being paid, but if I don't work then there is no right to know what I am being paid for not working.
You see, I haven't found the distinction that satisfies me that I can put my hands on the wording which we could recommend in relation to the differentiation in the act and how I could be -- I go home, for instance, and people say on the street, "Well, there's so-and-so and worked hard all their lives, and you people are going to say everybody should figure out how hard they've worked to get what they're getting in their paycheque. Now, there's somebody else over there and you know something? Nobody knows how much they're making and they haven't gone to work a day in their lives."
That sort of anecdotal problem for me as a political representative is hard to deal with. I want to know how we are going to make sure that we have the right balance to explain why the persons who work get exposed, in terms of their entire pay, and the persons who do not work don't get exposed.
Mr Wright: In trying to follow it I can't do any better than to say, at least for me, I think you have to accept certain other things as they relate to the person who's in receipt of some form of social assistance, as part of the rationale that you would use. Whether or not members of the public would accept that's a reasonable rationale, clearly this committee is going to address those very kinds of issues.
When Mr Hope was here he raised the point around the question of municipal councillors having the right to have access to information about persons in receipt of assistance. I think it's a very similar issue if you accept the fact that if public funds are being expended, who other than the local elected representative should be able to go in? I think the committee has heard some very real arguments as to why others feel that should not be the case. I think many of those flow into the rationale around the kinds of distinctions that you're trying to justify and I agree that the premise --
Mr Elston: Actually, I'm trying to find the distinction so that I can work on it, because if we don't know what we're trying to find in terms of balance, then we can't do a good, credible job in making sure that the information that's needed is available.
There are a couple of other areas I want to follow but certainly one I want to get at: Would you say generally, with the exception perhaps of the issue of personnel matters where committees or councils or committees of council or school boards, whatever, go into discussing matters of discipline or a whole series of personnel items, that the public should have every piece of information that councillors or trustees themselves would ask for and receive from their clerks or administrators or whatever so that they can basically make the same judgement or have the same information available to make a judgement on the same issues? Would you say that should be the test for the openness of our government?
Mr Wright: At this point in time we're talking about what I think is the other extreme, in particular in the case of the use of in camera meetings --
Mr Elston: I understand that, Tom. I know that's where we are at, but would you say the test that I've given is the one that should be delivered for your, I think, sixth point, which is that routinely people should get everything they need or should get good access to information?
Mr Wright: I think actually the most difficult question to ask, and other jurisdictions have addressed it, is this question of whether or not council members and others should actually be covered by the legislation. I think the first thing that the committee might well want to consider is that point: whether or not the records that an individual council member has come within the custody or control of the particular institution. I think that is a very difficult question. As in all of these questions, there is clearly the balance on both sides in terms of the public interest. It's the first time I've been asked to consider the kind of approach that you're suggesting and I'm not clear on the answer I would provide to that. I would like to have an opportunity to give it a little more thought. My instinctive reaction would be to say yes, that would foster openness, and therefore what could I say other than, gee, that would be a good idea? But, once again, I am uncomfortable with taking leaps when I haven't really given full consideration to the competing interests at stake.
Mr Sterling: Thank you very much, Mr Wright, for coming back. Quite frankly, I'm glad we have had someone here to monitor the briefs and in some ways you're responding -- this may sound a little partisan -- in a more responsible fashion than we've seen in the minister's response to public hearings. I wish ministers would follow your example. I think that's true not only of this government but the previous two governments.
Notwithstanding that, the question I have to you vis-à-vis the suggestion that hospitals, professional governing bodies, social agencies and universities be included in this legislation is, how aware are those institutions of this possibility? In other words, if this committee decides to go that route, or partially along that route, are they aware of this? I don't think we can spring it on them without having proper consultation with them.
Mr Wright: I certainly agree with you. Our purpose in raising it was simply to hope the committee would consider it, and I would agree with you that the committee would want to hear from all those types of organizations to get a better sense of the kind of impact and some of the concerns certainly that Mr Morin has raised around costs. I think the committee would want to hear that and engage in some form of consultation process before any steps were taken. I agree with you.
Mr Sterling: Okay. I'm not asking you to agree with me on the consultation; I'm saying, in your knowledge of any of these, are they aware that this may happen to them?
Mr Wright: The only one I can speak for, as a result of a telephone conversation I had last week, is that the Council of Ontario Universities is aware of the proposal we have made. I know that as a matter of a telephone conversation I had following my appearance last Tuesday.
Mr Sterling: Can I speak specifically about hospitals, because I can never forget the brief that the OHA gave to the last committee when we were considering this act in 1990, or whenever we brought in the municipal act. They came in to this committee. I don't know how many members here were members of the committee, as I was, at that particular time. I just don't see anyone else in the room who I can recall was there, but I don't know for sure. When they gave their brief to this committee, they were pleading with this committee not to include them. When they walked out of this committee, everybody in the committee thought they should be included, even though they weren't. Therefore, I think the suggestion is good.
One of the problems we face, I think, in terms of time is that it's my desire to include at least part of hospitals under this legislation. If we go for the whole ball of wax, so to speak -- that is, we include health care information and access to health care information in this legislation -- I don't think that is a short-term project for any government. In fact, the Krever commission, going back to the late 1970s, that dealt with this issue has not been acted upon by any one of the three governments that have had the reins of power during that period of time over the past 13 years.
In terms of handling this issue in a reasonable fashion over, let's say, a year period, because that's the length of the remainder of this government's mandate, how far do you think we can go? We are given several options by our researcher as to what we can do. Is there some way we can formulate legislation in this area but exclude clinical records?
Mr Wright: Certainly. As it stands now, the legislation does exclude clinical records, and the reason it does that, at least my understanding, is that the Mental Health Act provides another access mechanism for individuals who would want access to their own clinical records. I wouldn't see that as a major impediment as far as moving in the directions that you've outlined.
1130
Mr Sterling: Maybe if you could read over our researcher's paper and if you could perhaps provide us with some kind of guides as to how we don't become snarled in that debate, because if we have hearings on it, it is certainly not my desire -- I don't know what the committee would feel -- to get into the debate of patient records and access to patient records at this time. I think that's a valid debate, but perhaps for another day.
Mr Wright: If I may, just again by way of example of how you might do that, and I have not seen the paper as yet, there are jurisdictions in which, for example, it's a classic situation that courts are not covered by freedom of information legislation, issues around independence of the judiciary etc. But there are cases where what has been done is that the administrative mechanism associated with the court is in fact covered, no issue about the judiciary being covered, but the actual operations of that particular branch is covered by the act, and perhaps that's one of those possibilities.
Mr Sterling: I guess the other area of concern in terms of your suggestion were the social agencies and how practical it is to do that. Is it done in British Columbia, for instance?
Mr Wright: It is. Yes.
Mr Sterling: How do they deal with the privacy issue, the issue of minors and that kind of thing?
Mr Wright: I've followed the development of the British Columbia legislation very carefully. In fact, our office was consulted throughout in terms of the direction it was heading. Notwithstanding the very extensive coverage of the legislation, if you compare Ontario's present legislation with the British Columbia act, and notwithstanding the extra coverage, there's not a lot of difference in terms of having to introduce special rules. I think it provides, and I've said this publicly, an excellent model for Ontario to look at in terms of the changes. My own view is that the changes could be made without a significant reworking of the existing legislation.
Mr Sterling: Can I ask you another question relating to the disclosure of actual salaries, because I find this issue somewhat amusing in a way almost. When you go back prior to 1985, everyone who earned $40,000 or more in the provincial public service had their salary published in a book. When the Liberals came in in 1985, they started the salary range stuff, and so nobody could tell what anybody was earning. The ranges were so wide that in effect what they did was cut off that information. That has remained intact today in terms of the present government.
Is there some benefit? I think Mr Elston pointed to it. I think there is some benefit in terms of the lower range of salary in giving them some kind of protection. I think it's as important for the "working poor" to have that protection as it is for somebody on some kind of social assistance.
Mr Wright: Again, thinking about both your question and Mr Elston's question, I would personally have no objection to the idea of a floor, if you will, at which ranges would be what's available, and above that it would be actual salary. I think, Mr Sterling, the point you make around the extent of the ranges has been a very real concern for us, because if you have ranges, say, of $30,000, I don't think it really tells you a great deal about what the salary of the individual is. Particularly when you're in a range that high, chances are the salary will be at a much higher level. The idea of balancing again the interests at play -- I don't disagree with that.
Mr Sterling: One of the concerns I do know of, of posting the salary of an individual, particularly in heated economic times, was the problem of raiding by the private sector of your most competent technical people. For instance, if you have a computer person who was extremely skilled in the late 1980s about computer programming, or an analyst was extremely good, I think the government to some degree had some legitimate argument in saying, "Well, we don't want to tell private industry that we're paying this individual $80,000 a year because we know that he could get $120,000 if he went out in the private sector."
Have you ever considered in your thoughts any kind of limited disclosure? I know, for instance, in the Parliament of West Germany, now Germany, that there are confidentiality provisions within the Legislature. For instance, a legislative committee will be given confidential information and they're expected to respect that confidence in terms of what they're doing. Have you ever explored that end?
Mr Wright: I think we have a good example recently with some of the articles you've seen around the effect of the disclosure of the salaries of some of the bank presidents. I remember seeing the range of those salaries, being obviously totally astounded, I must confess, at some of the salaries that are being paid.
Mr Jim Wiseman (Durham West): On the backs of shutting down small business, mind you --
Mr Wright: Notwithstanding that, the fact is that the very point you make was raised, that one of the bank presidents, I believe it was the Bank of Nova Scotia, seemed to be grossly underpaid compared to others.
Mr Wiseman: Or the others were grossly overpaid.
Mr Wright: The fact was that there was a suggestion that once this kind of disclosure was going to take place throughout the top five in the executive level, it would open up this kind of raiding. I've read commentaries that suggest that that information is known in any event. It's already out there. There's no issue around making it worse in terms of the potential for raiding and in many ways the employee is going to know. If they're a very competent, let's say, programmer or someone involved with the development of software, they're going to know what the private sector is paying and they will seek out those opportunities on their own, as opposed to the thought that a headhunting firm of some kind would make an access request under the legislation in order to obtain information to come and try to entice the person away.
Mr Sterling: That was a suggestion that was put forward to us by several municipalities: the right of giving to municipal councillors what MPPs have in terms of rights to individuals' private information; that is, if I get a written authority from a constituent to look into workers' compensation or whatever the particular matter should be, I can do that. Have you heard any constituents complaining about MPPs misusing files, or do you want to comment on whether or not we should grant this right of representation to municipal councillors?
Mr Wright: It's an interesting point and I noticed that it was raised in a couple of submissions. To be quite honest with you, I don't understand why it's being raised as an issue. In fact, it's not necessary that there be this particular kind of identification in the legislation. It's not necessary that MPPs be identified as a separate category in the legislation. The key feature, and this is the point I would like to make, is: There has to be the consent.
Someone can give me their consent to get their personal information and my name doesn't have to be listed in the section of the act, so I think the key feature is consent. I personally don't feel it would be necessary to do anything by way of amendments to respond to that kind of comment. It wouldn't be necessary.
1140
Mr Sterling: I guess the only thing is, by putting it in the act, then you make it clear that it can be done.
Mr Wright: Sure.
Mr Sterling: One of the problems with freedom of information legislation is that it's supposed to be understood by everyone, and therefore sometimes you have to say things which may be pretty obvious.
Mr Wright: That's fair. It would certainly clarify it.
Mr Hayes: Mr Wright, I want to touch very briefly on the comments by the councillor from Thunder Bay that welfare recipient should be automatically stripped of all privacy rights. We have had people make presentations here talking about local politicians following welfare recipients around the grocery stores, for example, and looking in the cart and making comments that people on welfare should not be eating that kind of food.
Then we have also had situations where a couple who was ready to retire, for example, and needed assistance for a very short period of time but they didn't apply, basically because the politicians in their local community would be aware of this and they were afraid of actually the harassment or being embarrassed in public.
What can you do as the commissioner or what suggestions can you make to this committee that we can assure that local politicians do not delve into individuals' privacy and be able to get information on people, knowing who was on social assistance and knowing all of their financial or personal business?
Mr Wright: I should warn the committee that not only am I commissioner, I'm also a lawyer, so I'm going to give you a legal answer in terms of offering you the ultimate solution. Again, you're asking my opinion and I'm quite prepared to offer it.
The answer would be to exclude from the application of the act the records relating to persons who have been or are in receipt of social assistance. Just make an absolute prohibition against access. If you want direct language that would accomplish the ends that you're referring to, Mr Hayes, I think that would be the solution.
I also think the solutions that have been presented to the committee around the institution etc are also workable solutions in the kind of direction that you're referring to, but I think the decision has to be made, what is it that the committee would like to have happen?
Mr Hayes: Okay. You refer to the public at large actually being the employer in your report. What I'd really like to know is, what should the government do when it is pressured by the employer to step up the invasion of privacy? Specifically, we talk about pushing the government towards more record linkages. You also discuss that in your report.
Mr Wright: I can certainly see today where, as you say, the government is under pressure to be more efficient and spend money wisely. We get involved in a number of these issues, as you mentioned, record linkages, things of this nature, which we feel are in and of themselves not something that shouldn't go on. What we're looking for and what we're asking all the organizations that are implementing these kinds of practices is to factor in the privacy interest, so we have this balance so that it's not to the exclusion of one interest or the other.
I think data matching is another good example. There are many questions that need to be asked before data matching is the solution chosen, and one of them is, what's it going to do for you? I think very often today we're seeing technology being used, and I take that word and use it very deliberately, as a solution to a problem when it's not, but it has a nice ring to it, it's modern, it's current. Today, all we hear when we open the paper is the information superhighway etc. We're getting quite a sell job on that, all in terms of moving in a particular direction.
What our commission tries to do is to have these organizations look at what it is they're going to try to achieve, will it be achieved, and in doing so, how can the privacy interests be factored into the end product. I think that's something that's quite possible. There are very few things that simply can't be done because of privacy concerns, but there always will be the need for balance.
Mr Hayes: Let's say I was enrolled in some ministry program, possibly a grant program or loans or whatever the case may be, and I felt there was a discrepancy there, information that I needed to know on how to deal with something down the line, and that would be in my own personal file. There have been people over the years who have had problems getting their own personal files. What rationale do ministries or governments have to refuse someone when it's their personal file? I would feel that is my information and I have a right to that. How do we get around those kinds of situations -- without getting into a long, drawn-out thing, and I don't mean you're drawing it out; I mean the ministry or the individual.
Mr Wright: The reason the problem exists is that the act as it presently reads, even when it is your own personal information that you're asking for, says that various exemptions, reasons for not disclosing the information, are still available. It's advice or recommendations of government. Law enforcement is probably the single most frequently used exemption when you're talking about personal information. I think that's understandable. A lot of requests relate to people who have come in contact with various law enforcement agencies. They will be told they can't have the information the law enforcement agency has collected because it might for example interfere with a law enforcement investigation or something of that nature.
We're into a situation where you would have to either eliminate or reduce the number of exemptions that would apply in cases where you're asking for your own personal information. I think there are some difficult calls to be made, and again I use law enforcement as an example, as far as how you would actually go about doing that. Yes, people do at times have trouble. Many of our appeals involve requests for their own information.
Mr Wiseman: It seems to me from what I've heard from school boards and municipalities that they go about it the wrong way. What they're saying is, "If you want the information, you ask specifically for the information that you want." In my years as a community activist, that was probably the most annoying thing for me that I was able to experience, when it seemed to me that what I was asking for should be common knowledge. Wouldn't they save themselves a lot of aggravation, time, effort and money if, when they were putting the information on their computer discs or whatever, they were able to classify the information and say, "All of this is public information," and when somebody comes to ask for it: "Here, you can do the research in our reading room. If you don't find what you're looking for in this, then you can file a freedom of information request, but here it is by title, by date, by everything," and allow them a greater degree of access than running people through hoops on information and making up reasons for not giving it to them?
I have one on my desk now that doesn't make any sense at all to me. Why didn't they just give the information?
Mr Wright: It's an excellent question in terms of the why. Certainly in response to your proposal, the Utopia of freedom of information would be the kind of attitude that you suggest. In fairness, I visited the city of Thunder Bay last year. They're going through an entire review of all their record holdings and they're trying to do exactly what you've just outlined, to identify the kinds and categories of records that they have and also at the same time to identify whether or not it's going to be disclosable in terms of freedom of information legislation.
So there are some. And it's not only Thunder Bay doing this; there are others who are making this kind of effort. It's going to take a long time, because I think we have to get back to the point that there has to be the will to do it in the first place. There has to be a desire to share this information with the public. I think we're not there yet.
1150
Mr Wiseman: Can't that kind of disclosure of information or approach to information -- is it possible to build it into either the preamble of the legislation or some part of the legislation where it says that the onus of responsibility now goes to the municipality, the school boards or the hospitals to say why they will not disclose the information, as opposed to the person applying saying, "I need this specific piece of information"? Just flip it on its head as opposed to what happens now.
Mr Wright: Actually, it's not a matter of flipping. What you've described is actually the system we have now. The onus --
Mr Wiseman: That's not the way it works in practicality, though.
Mr Wright: In some cases that's true. But in fairness, certainly as far as how our commission approaches claims for reasons for not disclosing the record, there's no question, and as the act says, the onus of showing that an exemption applies rests with the institution. In fact, there are various sections that talk about obligations of the institutions to assist individuals who are making requests. So I think the act itself has captured the right spirit, and certainly in the language of the act it's out there. The question is how that language is actually put into practice, where I think we continue to have in some cases some difficulties, as you've described.
Mr Wiseman: My second area of interest has to do with this idea of the right to know and what I consider to be now the blurring of private versus public information.
Just to give you an example, everybody in the province of Ontario receives health care at the expense of the health care system and therefore has an interest in what is happening within the health care system, and there is a blurring between sectors. For example, the private sector companies pay employer health tax. I don't know if you're aware of this and I don't know how many other people are, but there is a tax gap in terms of who pays. There are actually families and groups of people out there who are not covered or not being paid through any kind of employer health tax and, other than through perhaps their income tax, aren't paying any kind of employer health tax on their income. In fact, the number is somewhere in the neighbourhood of 200,000 people who are actually on payrolls not paying employer health tax. There is a significant loophole in the system.
I guess my question is, if I understood correctly what you're saying about Quebec, that they've expanded freedom of information to the private sector, where do we draw the lines in terms of accessing that kind of information? If you're an individual and you work in a company and you're making $50,000, $60,000 or $70,000 a year and that company is paying no employer health tax on you and you have a whole other batch of mechanisms to hide your income, doesn't the public have a right to know about that type of individual -- not necessarily their name, but to be able to access what those numbers are and how they're able to do that?
Mr Wright: Again, in case I've in any way misinformed the committee, the Quebec legislation is purely the data protection side of things. It does not cover a broader access to information about a company; for example, policies the company has etc. It's solely related to personal information that private sector companies have and what they do with it. That's the whole thrust of the Quebec legislation.
In terms of the specific examples, again, I think there are in the provisions of the present act special protections in place for companies as relates to tax information and disclosure of anything related to tax information. I think as well that there are about either eight or 10 confidentiality provisions, all related to tax information, that override the Freedom of Information and Protection of Privacy Act. That's a decision that was made and the legislation, when amendments were made, brought that into existence.
Whether or not someone should have access to it, my concern would be related mostly to the identifiable individual and the thought that person X didn't do this. As an aggregate, I see no real difficulty in terms of that information being available but I'm basically working with the act as it presently stands, and there are some very real protections, I think based on traditions around tax information and the confidentiality certainly at Revenue Canada as well as our Ministry of Revenue, that they want to offer to taxpayers basically to ensure that they feel comfortable with providing as much information as they can in order to collect the taxes that exist.
Mr Wiseman: The reason I raise this is that the Auditor General found that in the three-year period 1986 to 1989, tax evaders were treated less severely than the transgressors convicted of similar frauds. We're looking at, in terms of absolute numbers on this kind of tax evasion and avoidance of taxes, somewhere in the neighbourhood of $1.2 billion, which I think far outstrips the 1.7% --
Mr Hayes: Corporate welfare.
Mr Wiseman: -- that people are using as an excuse to invade the privacy of people who are in unfortunate circumstances to find themselves on welfare. I find that when you compare these kinds of numbers, and in the discussion that we're having here about the right to privacy, if there's an argument to have an invasion of the privacy of welfare, then there's a really overwhelming right for those corporate evaders and high-income earners to have their rights included in this act.
Mr Wright: I have no response.
The Vice-Chair: Mr McClelland, do you have a question?
Mr Carman McClelland (Brampton North): I'll defer to Mr Elston.
Mr Elston: Thank you very much. A couple of questions. Tom, if we are actually moving to display the salaries of individuals, how do we come to grips with the issues around those people who may be involved in domestic violence, for instance, and really don't want their whereabouts or their workplace identified on the public record? How do we deal with circumstances where the divulging of the salary and the printing of the name could violate that privacy? Could you give me some hint as to what we might do with that?
Mr Wright: At this point in time the legislation that we have now, without any amendments, as far as salary, already requires that certain information of government employees be made available. So the salary amendment would really make no change in any sense to the status quo.
Right now, people are entitled to know that someone is employed, what their job responsibilities are. There's a section, I believe it's subsection 14(4) of the legislation, which already permits that kind of disclosure and says in essence it's not an unjustified invasion to disclose it.
Your point is well made. It's simply the fact that absent the application of other exemptions -- and it may be that health or safety is another exemption that could be available, in which case I think that would address the kind of specific concern that you raise.
Mr Elston: What about the issue of the way municipalities and other institutions are responding to FOI? Have you noted any developments of processes or other barriers to take care of the freedom of information act for those people who don't want to release information on a regular basis? Is there one sort of barrier that's more popular with some organizations than others? Are there types of problems which they put in the place of requesters that you see that we should be taking special note of to make sure that we express in our recommendations that this is the way of the world and that you ought not to be courageously going where no other institution has gone before?
Mr Wright: Is that Star Trek?
Mr Elston: I saw a rerun last week. In fact, that's all you can see, isn't it?
1200
Mr Wright: I wouldn't point to one specific example that would apply across the board. You've heard, I know, from various people on both sides of the question on fees, but as far as anything specific, no, I think it really is very much dependent on the approach taken by the individual organization to what it sees as its obligations. Some are better than others and I don't think that's an unusual thing. Any kind of business you're in, some organizations deal with things better than others. I don't think there's anything that I would suggest by way of focusing on particular problems, other than some of the things we've talked about already such as the ignoring of a request so that the person is in a deemed refusal.
We've talked about perhaps providing the commissioner in an appeal, because that's the route it will then take, an ability to, for example, say fees cannot be charged by the institution under those circumstances because very often we're going to mediate that kind of appeal and the end result is the person will receive the information, although later than they might otherwise have expected. That kind of thing I think might provide an additional incentive to that kind of concern, but other than that, we're talking about a lot of it's good faith, and -- it's trite but I'll say it -- I don't think you can legislate good faith.
Mr Elston: The reason I ask is I just recalled hearing from an individual who had been with, I think, a business magazine or something --
Mr Hope: Business Times out of St Catharines, St Thomas.
Mr Elston: Out of St Thomas -- had mentioned that he was surprised to find that there were detailed notes taken of in camera meetings and he was able to get those. I was just wondering whether or not people now, as a matter of course, don't bother keeping a record of that type of thing or if they ignore what their practice previously might have been and in fact just have no records at all and whether or not we -- I don't know how we deal with that but I was wondering if that might be a strategy that some might adopt.
Mr Wright: It's certainly possible, and I think that's one of the concerns in every jurisdiction in which freedom of information legislation has been introduced, that we'll no longer have as much material committed to writing. Certainly our experience indicates that there's no lack of volume of material; it simply isn't happening. Whether it might happen in an individual circumstance, certainly it's possible, but I don't see it as an overriding concern as far as practices that are now in place.
Mr Elston: My final question is based on the previous presenters who had suggested that there be penalties associated with a poor performance by an institution, raising barriers, for instance, and taking everybody right to the last moment for each step, if that was required or whatever.
First, I guess I should ask you, do you think we need to have a penalty section; to whom would the penalty go; and, at what stages would you apply penalties to the organization that was not complying with the spirit of the law, which is basically to make everything available except, and then we list the exceptions?
Mr Wright: My preference would be that the committee not consider the imposition of penalties. I certainly prefer it as a matter of approach, and in a sense it's a bit more of a long-term goal but ultimately I think the results may be better, that we work with organizations that we feel are not properly responding in terms of their obligations under the legislation. We find that with some effort in dealing with them and sharing with them some of our expertise, steps can be taken that improve.
We've also made a recommendation in our submission that we be given an ability to go and review the access procedures of an organization to see if in fact they are properly responding to the kinds of requests that they are receiving. I think that in itself might help as well.
The penalty thing, I think it makes it a little heavy-handed, and it's just a matter of personal preference on that. I prefer the approach that we have tried to take, which is in many ways to get the institution to understand that this is what we prefer and how we prefer to operate, but at the end of the day, the bottom line is the commissioner's office has an order-making power and we can make things happen, which I think is one of the wonderful features of the legislation and does help advance some of these kinds of things.
Mr Elston: Are you empowered under the current legislation to print a list of bad performers or to set out a list of reasonable-performing or, sort of, the examples of the way it should be type program? If you had that authority and you're not already doing it, would you do that?
Mr Wright: If there was an example of an organization that I felt was simply doing everything it possibly could to not comply with the legislation, in my next annual report, which I'm required to file each and every year, I would identify that organization, yes. I have not felt the need. I don't feel I'm in any way prohibited from doing so now if I was so inclined. I simply have not felt the need and my staff have not advised me of the need.
Our approach has been to go out and meet -- I go out and I meet with deputy ministers and ministers. I meet with others. People in our office go out and meet and we try to sort out what the problems are. We try to put a bit of a human face on our organization so that people don't have this kind of attitude. I much prefer that the last route of action would be the kind of proposal that you make, but it would take a fair bit to get me there.
Mr Elston: I only asked that question for the reason that it's pretty clear from some of the presenters that their feeling is that the institutions with which they were dealing were not good performers and that in fact they were causing very serious problems, raising very serious impediments to accessing information which ought to be generally available. I guess the issue becomes whether or not it's the general rule of the operation of that institution or whether it is a case of dug-in heels in an isolated incident. But somehow or other, we should know about it, because if they're trying to do that just with that one isolated incident, it displays really an overriding attitude of lack of respect for freedom of information.
Mr Wright: I couldn't do anything other than agree with that.
Mr Hayes: Mr Chair, I think there are a fair number of members on the committee who have comments or questions they'd like to ask. I just wondered, with committee support, if we could invite Mr Wright back over this afternoon, if he would be available.
The Vice-Chair: Yes, I think we'll have to ask Mr Wright what his schedule would permit.
Mr Elston: Can we have your itinerary for the next two weeks?
The Vice-Chair: We just find you so interesting, Mr Wright.
Mr Wiseman: I think that's an FOI, isn't it?
Mr Wright: Let me think quickly in terms of -- no, obviously I am an officer of the assembly, among other things, and I would see my response clearly, if it's the committee's wish, that I would certainly make myself available. Whatever I have to rearrange I can certainly go ahead and do so.
Mr Hayes: It's a request, so we certainly would appreciate it.
The Vice-Chair: We can be flexible with the committee about the time.
Mr Elston: We can even sit tonight.
The Vice-Chair: No, no.
Mr Wright: How thoughtful. I'm in your hands as far as time.
The Vice-Chair: I suggest that we come back at 2:30. Would that be satisfactory to everybody?
Mr Wright: That's fine.
Mr Hayes: Why 2:30? Is there a problem with being back at 2?
Mr Wright: No, not at all.
The Vice-Chair: Is there a problem with being back at 2? Okay, then.
Mr Hayes: Sharon has to leave at 6 o'clock.
The Vice-Chair: I don't think it's going to take that long.
Mr Elston: The issue of dealing with hospitals, universities and others -- we've got our papers generally on the information that we'd asked. What, if anything, are we going to be doing with maybe inviting some of the people from Health or from colleges, for instance, or from the Ontario Hospital Association to at least talk about this? Leave it till after?
The Vice-Chair: Yes, why don't we leave it till after.
Mr Elston: This afternoon? I'm happy.
The Vice-Chair: I'm quite happy to invite some people to come in.
The committee recessed from 1210 to 1410.
The Vice-Chair: I call the meeting to order. Mr Wright, welcome back.
Mr Sterling: One of the things we have to be concerned about at this juncture in our history provincially is that it appears there are going to have be cuts made by governments to some services, wherever they are. It doesn't matter whether it will be our government or another government.
The concern I have is that there will be temptations in future for governments to say, "Freedom of information and privacy is an important issue, but it isn't as important as a hospital bed." Therefore, I'm concerned that we have a lean, mean machine in terms of your office. The public will respect that you have to be lean and mean and everything else has to be lean and mean.
One concern I have is the appeal process and how much it's costing. There are two stages to the appeal, as I understand it. The person appeals, and then there's a mediation attempt. I believe you said 70% of cases lead to a successful conclusion and both parties go away. The second part is to have a formal hearing. Do you operate under the statutory procedures?
Mr Wright: No, we don't.
Mr Sterling: Could you give us some feeling for the average cost of both parts of that, any ballpark figure in terms of staff time?
Mr Wright: I can't. We have not gone into the specifics of trying to cost out what an individual part of an appeal process, be it either mediation or inquiry, would entail as far as office expenditures are concerned. There's no question that ultimately going to the inquiry if mediation is unsuccessful involves more cost. The longer the appeal is in our office and the more we have to do, the more staff time is devoted to it, and as a result the costs are incurred. But no, we have not done the kind of analysis you're suggesting.
Mr Sterling: How many appeals were there to the second stage on an annual basis?
Mr Wright: My best recollection is that in 1993 there were a little more than 1,200 appeals received, and we closed a little more than 1,400 files in total. Of those, 70% were closed through mediation, and 30%, the balance, would have been closed through order, which is the inquiry stage, the latter part of the process you described. That's the breakdown based on the numbers. I haven't done the quick math on that, but those are the percentages and the numbers that show us where we were in 1993.
Mr Sterling: So about 300 went to the inquiry stage?
Mr Wright: Approximately. There were, I believe, in the area of 379 orders actually issued, and some orders would involve more than one appeal. If a similar appeal was involved, we might deal with two or three in a particular order. Yes, in that area: Around 400 appeals would be closed in the latter way.
Mr Sterling: Do you adjudicate at those? Are you involved in them?
Mr Wright: Some. Much fewer than I was about two years ago. The volume has got to the point where if I were involved in every matter, people would wait years to get a decision, and they clearly don't do that.
Mr Sterling: Were there any no-shows? In other words, were there situations where people say, "Appeal," but the date comes and they just don't show?
Mr Wright: We operate for the most part with what I would call a paper hearing process. We don't schedule what we would see as the classic courtroom hearing approach where everyone has to get there at the same time, so we don't have the problems with no-shows. That was a very conscious decision made by the first commissioner, Sidney Linden, because it was felt, and I share that view, that in many ways the hearing model for administrative tribunals -- and I think you'll hear this from other heads of similar agencies -- is a very time-consuming and expensive process. We felt that trying the paper approach, where representations are done in writing, is a better approach. This is how our practice has evolved.
Mr Sterling: Of course there are costs on the part of the commission, but there are also costs on the part of the government agencies defending their position on the act. Of the 400, how many orders would be made in favour of the appellate and how many in favour of the agency?
Mr Wright: I don't have with me a copy of our 1992 annual report, our most recent report, but that number is shown in a chart. My only recollection is relating to the provincial organizations. The decision of the agency was upheld in around 38% to 40% of the cases. In the other cases, it was either partially upheld or not upheld at all. That's the kind of breakdown. It's in the annual report, and if I had it I would refer to it more specifically, but that's my recollection.
Mr Sterling: The reason for all these questions is that I am wondering whether there should be a $5 fee. We talked about an application fee, particularly at the municipal level, for information. We had evidence here that the federal government charges $5. I support that to some degree, particularly in view of the fact that there have been some abuses by people. With this two-hour free search, people learn ways to get around the intent of the legislation, and therefore you've got to seek a way to plug it and get back to the intent. I don't find $5 excessive for anybody who wants information. I'd be quite willing to give some kind of discretion to the commissioner to waive application fees if the proponent or applicant could prove they were unable to pay, if they wanted to make some kind of thing like that.
I'm wondering whether we should also think about application fees for the inquiry stage. I'm not so concerned about the application for something where mediation is taking place, but I wonder whether there should be a $25 fee or something for an inquiry. I don't know what this process is costing. How many people are involved in the inquiry process? It varies?
Mr Wright: It's difficult in terms of the inquiry process, because we process so many appeals at the same time. The case load of the commission at this point is around 400 at any one time. There is one appeals officer involved with a file. When it goes on to the adjudication, there is a person we call an inquiry officer who ultimately makes the decision and writes the decision at the end of the day. In pure numbers, that's who is involved with the actual inquiry.
If your question relates to the application fee, my initial reaction would be that anything that would be seen in any sense as a barrier to access to information or could be used as a barrier is something I simply would not see as a direction in which to go.
I would also add that if the committee was of the view that it wanted to have an application fee along the lines you describe of $5, I suggest the last thing the committee would want to do is to have that sort of thing appealable to the commission; otherwise, we would be spending the kinds of resources you're talking about to determine whether $5 is appropriate. There's no way I would justify that as a responsible expenditure of public money.
1420
Mr Sterling: I agree with you. It was just a thought. From an inquiry standpoint, I'm not as much concerned about your expenses for running an inquiry as I am about a municipality having to hire a lawyer and put together a defence of a situation when there's no risk on the other party. For instance, if there's a serious challenge to privacy by somebody trying to get a record and they take it to the inquiry stage, a municipality or an agency, I don't care which, if it is a very sensitive record an individual's after, cannot afford to be cavalier about its defence. They have to say, "This person wants somebody's hospital records or medical records or personnel records, and we can't afford to treat this flippantly." They hire a lawyer or whatever to defend and they're into $2,000 or $3,000 or $4,000, whereas the person who is taking it to that stage may be just mischievous, I don't know.
Mr Wright: It's possible, as you say, that the person could be being mischievous. We have a group called an innovation team, and we're working with a select number of both provincial and municipal organizations specifically, and we're trying out new procedures in appeals with some of the concerns you raise in mind. You're right, the money being spent to defend appeals etc is money that can clearly be spent in other ways. We certainly want to do whatever we feel is possible, with the cooperation of these groups, and we're working with them to try to streamline the process. I think we've made some fairly substantial improvements to achieve those kinds of goals. Certainly we give careful consideration to whatever is suggested to us and have implemented many of those changes.
But you can't get around the point you make, that yes, as far as the appeal process is concerned, it is very much weighted in favour of the appellant, the person who has been denied access to the information, and that's the design under which the whole act is based.
Mr Sterling: Have you had many appeals go to the inquiry stage where you've clearly made an order before on a particular section? In other words, you've determined that section 23 of the act clearly means such and such, and you've had somebody ask about a parallel or almost parallel case, yet the individual insists on going to an inquiry. Have you had that experience?
Mr Wright: We have. I'd like to share with you an example of that very type of request. One of the more popular requests being made will be from a person against whom a complaint has been made to a municipality, and this is largely restricted to the municipal level: a property standards bylaw or something like that. Suddenly the property standards officer arrives at the door and says: "I've had a complaint. I want to see if you have the proper..." let's say a sprinkler system or something. They do their inspection, and there may or may not be an offence contrary to the bylaw.
The person who owns the home that's been inspected has an interest in finding out who made the complaint. Our office has dealt with a number of those complaints and we have uniformly said that based on the procedures in place, the source of that information is confidential and should not be disclosed.
What we do with people who continue to make those kinds of requests and appeals is make them aware, first of all, of the existing orders. Then we do a very what I'll call fast-track appeal process. We clearly tell the person: "Here are the orders. You explain to us why your circumstances are such that the orders that have been issued and the result won't apply." The orders we issue are very brief. But we don't have a mechanism, for example -- at least in my opinion we don't -- to tell the person "We're not going to go any further with your appeal." What we feel we've been able to do, though, is to make it as streamlined as possible, and the point is made to this person that it is their job to show why a decision will be different from a number of other cases.
That kind of approach we have taken, and there are other examples where we do the same thing. That's why we end up with as many settlements as we do. For us, the independence of the office is the essence of whether it will work. The public has to trust us simply because they never see the records when they've been denied access. Our office does. We will tell people that we have reviewed the records. The exemption claimed may be solicitor-client privilege. We will say to them: "What we have in front of us is a memo from a lawyer to person X. It looks as if that would fall under the exemption. Ultimately, you have the right to go to inquiry, but based on past experience, chances are you're not going to get it." People do resolve appeals in that fashion.
Mr Sterling: I worry about this as we consider expanding the act, because we have approximately 840 municipalities in this province. An appeal of the nature you're talking about may be quite familiar to the larger municipalities because they've experienced it a dozen times now, but it may be the first time for, say, the township of Rideau, one of the townships I represent, which has 11,000 or 12,000 people in it. Is it your experience that they're still hiring lawyers to defend this kind of case?
Mr Wright: The way the act has developed has been interesting. I must admit one of my concerns was that as things got on we would be inundated by lawyers. Certainly some lawyers are involved -- mainly on the part of institutions, as you're suggesting; relatively few as far as appellants are concerned -- but it's not an overly large number. I think part of the reason is that there are a number of things our office does. For example, we provide to all organizations something we call a précis, a brief summary of an order that's been issued which has key words in it. People have that available to them.
Also, during the course of the appeal the person who is involved, the appeals officer, will provide assistance. We're not in any sense an organization that falls on one side or the other of the appeal. Our job is to process the appeal. We make them aware of orders. We make the municipalities, of all sizes, aware of the orders that have been issued which we feel are relevant and we'll provide copies to them in the context of appeals.
You're right. I've received letters from small municipalities saying how difficult it is for them to keep current, and it is. We try to in some way address those kinds of concerns, but you're correct: It is a difficult thing for them to do.
Mr Sterling: Do you think a $25 application fee, either at stage 1 or stage 2 of the appeal process, would alleviate some of the work?
Mr Wright: On balance, I would see the imposition of any fee at that stage as acting as a deterrent, and the $25 that would be recovered, when taken as a global amount, wouldn't be sufficient to move in that direction.
Mr Tilson: Following the same line of questioning with respect to costs, we're talking about the possibility, as you are, of expanding to other institutions: hospitals, universities, public organizations. We're talking about perhaps making information more accessible, and I haven't figured out whether that means more work for your office.
I look at the overall cost if we expand to other institutions, the cost not only to the commissioner's office but the cost to the Ministry of Health or whatever it might be. I don't know how all that works out, but right now I don't see anything before the committee, unless you had something in your annual report, which I'll admit I haven't looked at. That's not very good when sitting on this committee, but however.
The issue is that we should be in a better position to know what these costs are before we embark on the possibility of major expansions, as Mr Sterling was talking about, not only to your office but, if you start getting into perhaps a specific university, the anticipated cost to a university, the specific cost to a hospital. You may not be able to give that, because you don't know what they're going to do.
1430
The only two experiences I've had personally with respect to the provincial act -- I haven't had any with the municipal act -- is that I was involved in an application with respect to work the Ministry of Transportation was doing. We were successful on that appeal. There was a hearing and I know the Ministry of Transportation had to spend a substantial amount of time justifying what it was doing. More recently, I made an application here under section 57 or whatever it is with respect to the waiver of fees. I was before two people, the hearing officer -- I'm not too sure what you call him -- and an assistant, and that lasted half a day. That involved the Ministry of Environment. I might add that I lost that one, but such is life. The Ministry of Environment I'm sure spent a good portion of the afternoon on its justification.
You look at all these costs. It seems to me this committee, before we start making recommendations to the Legislature to amend this legislation, should have some idea of where we're going cost-wise, if not from the individual sources of information, for example, a hospital, at the very least your department, the commission; in other words, knowing what it costs now, anticipating what it might cost you in the future not only for mediators but for hearing officers and so on.
Mr Wright: We had this same type of difficulty at the time the legislation was extended to the municipalities. At that time we didn't know as an office what it would mean in terms of the resources we would need. We took a very cautious approach, to give us a chance to look at what our experience was after the first year and the kinds of demands that were being generated by municipalities, at which point we went before the Board of Internal Economy with a fairly detailed outline of the costs associated with processing the appeals, as well as what we felt were costs associated with providing varying levels of service, so that the Board of Internal Economy had a chance to consider that.
But I do agree that you need more information on costs. I think another place for you to look, in addition to ourselves as well as these organizations, would be Management Board of Cabinet. They have experience with both the implementation of the provincial legislation as well as the municipal legislation, and that experience vis-à-vis the organizations, be they ministries or other types of boards and commissions, would also be useful for the committee to hear.
I fully support the fact that before this committee make any recommendation that would extend this legislation to these new entities, it have that information in front of it. I couldn't agree more.
Mr Tilson: If we were to go in that direction, you would be prepared to provide some sort of cost estimate, at least from your own commission?
Mr Wright: Yes, absolutely.
Mr Tilson: There's an issue you may or may not be aware of. One of the delegations before us was a councillor from the township of Mariposa, and his concern had to do with the availability of notes made by municipal councillors for their own use during council debates, that that information is available. Mr McNaught has written a report for the committee, and it appears he is correct: Depending on the specific case, that could be the situation. Members of the Legislature, as I understand it, are exempt from that.
Mr Wright: That's correct.
Mr Tilson: Should the same exemption apply to municipal councillors?
Mr Wright: I don't feel I have the ability to make that kind of call, as to whether they should or shouldn't be covered. It is, as it stands now, a very live issue. The best response I have is that if you want certainty, if the committee feels the interest is such that notes of that type should not be covered by the legislation, the committee could very clearly recommend that that be the case. Failing that, we're left with a situation where to a large extent it will be our commission, through appeals that may well come to us, that will be left with the task of wrestling with this question, which is really custody or control. I can tell you, we have looked at this question on many, many occasions. There's been an incredible amount of debate.
What I've learned in terms of our experience with the municipal act as much as anything else is that you would have thought a lot of these issues around councillors and their role, around trustees and their role, around who's an officer of a corporation, would have been resolved in the municipal law world years and years and years ago. Yet we're finding we're having to address them and come up with answers which we hope will be at least workable, when in fact no one else, including courts, can tell you today with any certainty the relationship around councillors and councils, the relationship around councillors' access to information. The courts have not been able to deal with this in the municipal law context for years.
I feel no more able to resolve these burning issues than others have been in the past. We are doing as we're doing now, and I know there are concerns, and they're appropriate.
Mr Tilson: I sat on a municipal council for several terms, as I know other members of this committee have. I didn't even know this law existed. I don't know how a municipal councillor can properly do his or her job if they have this hanging over their head. They're given a document for their own note purposes, yet that document could be made available to the public. Obviously, there are documents made by the clerk for official record purposes, but that someone can go into a councillor's file I find unbelievable.
Mr Wright: You've hit on the fundamental question: Is it the councillor's file, or is it a file that belongs in some fashion to the organization? That's what we, on a case-by-case basis -- much of it depends on circumstances -- have to resolve.
Mr Tilson: Mr McNaught made that clear and I won't pursue it any further, other than that I hope other members of the committee would be prepared to pursue this issue at some point in time, because I find it inexcusable that a councillor can't sit and make notes in his or her file that are private to him or her.
Ms Sharon Murdock (Sudbury): In terms of the questions Mr Elston was asking this morning about social assistance privacy matters, would the lists the family benefits office have not be adequate in terms of information release to determine the amount of money a recipient can get? Albeit it's not a named recipient but, say, a recipient with two dependants gets x dollars, would that not be sufficient under FOI?
Mr Wright: It was a very difficult question Mr Elston asked and I've thought about it further during lunch. I see that as being the kind of balance you would try to reach, that you would remove the identifiable aspect of it; in other words, you don't attach it to an individual. The level of accountability that the public needs doesn't relate, in my view, so much to the individual as it does to the quantum of benefit that a particular person in a particular set of circumstances might be able to receive. Perhaps that's the kind of balance that would work, and in that sense both the privacy interests, which I feel are extremely important in those circumstances, as well as the public's ability to find out generic information are in fact answered.
Ms Murdock: One of the presenters on Thursday made a statement that when she got an answer she didn't like, she would deluge the agency or the institution with more applications for information. It again gets into the frivolous nature of requests.
I know you have made it quite clear today that you disagree with any kind of fee or penalty, but in that instance where it is fairly evident or where a number could be tagged on, would you not agree that there should be some kind of -- I don't know whether "penalty" is the right word, but some kind of regulation of that?
1440
Mr Wright: I heard some of the earlier presenters this morning, and the issue came up about "frivolous or vexatious." The difficulty I have is that in any legislative scheme it would be possible to point to individual examples of what people would look at as an abuse. I'm not so sure that where that automatically takes us is to provide a mechanism which would apply across the board.
To lapse into legalese, hard cases make bad law. The example you raise is a very good one; I would be hard pressed to suggest that's an appropriate use of the act, and I wouldn't do so. At the same time, is that example, or a couple of others that have been raised, sufficient to blanket every other requester who may ever come forward -- we have had thousands across the province already -- with this kind of procedure? It's a matter of balance.
Ms Murdock: Following the penalty idea, your office has already made a decision on the Metro Toronto Licensing Commission -- I believe you did anyway -- in terms of taxi drivers trying to get their plates. It was in the paper a couple of weeks ago that in trying to get the plates, part of the information required was information from their income tax forms, and not only did the commission release that information from the income tax, but also names, addresses, social insurance numbers and so on. The decision from your office basically said that should never have happened.
What remedy is there or what could you suggest, should that occur again? If it's already been done once by that particular agency and they should do it again after having been told they shouldn't, what do you do, and how do you balance that need for the information?
Mr Wright: In the act now there is a penalty section, an offence section, which talks about the wilful disclosure or wrongful disclosure of personal information, which is an offence which would have to be dealt with in a court. There is something available now.
In the situation you mention, it really highlights our own experience with the act, that we're still at a point where people are learning to deal with the rules around disclosure of information. By and large, what we find is that it's inadvertent. No one's out there with the intention of causing someone else embarrassment or whatever through the release of personal information. The importance of the rules is that it's evident that once the information is out, you can't get it back, you can't make people forget they've seen it, and that's why it's important that it not go out in the first place. At the same time, these situations will occur. If they occur repeatedly, then yes, something more would need to be done. I suppose the most serious form of that would be that someone would go to court and say, "They've committed an offence and we want them fined." The fines are not insignificant under the present legislation.
Mr Morin: You were interviewed last Friday by the CBC. It had to do with a smart card in Ottawa. Do you remember that?
Mr Wright: Yes, I do. Actually, it was Thursday.
Mr Morin: It dealt with the issue of having one smart card that would deal with information for transportation, health and welfare. You objected to that and gave your reasons.
I conducted a survey in my constituency, and 80% or 90% of the people who responded to my request were totally opposed to fraud, not only in my riding but all over Ontario. The perception in the general public, not just in my riding, is that the system is being gypped and people are stealing left and right. We had a witness here who practically called all people on welfare -- well, I won't use the word, but it was not charitable.
The public must perceive that there is a system in place. Fraud will always exist and you can never have a perfect system, but if the government were to come to you and say: "Mr Wright, we want your recommendation on what type of system we should have so that privacy and the dignity of the individual are protected but at the same time we can have real, tough controls so that the public knows the moneys being spent are being spent properly and nobody has access to it as simply as has been proven." Just read the paper today about the case of this lady who gypped the government for $151,000 over a period of 12 years. What would you recommend? What is the best system you feel should be put in place?
Mr Wright: There are a lot of parts to what you've said. Just to make sure I am on the same wavelength, are you talking about the use of smart cards, as they're called, per se, or are you talking about technology as the means by which fraud is ferreted out?
Mr Morin: Technology.
Mr Wright: Our office has already done a number of things and is working with various organizations on new developments in technology, including the smart card. We prepared a paper which very clearly outlines what we feel are the privacy issues that have to be taken into account. What that paper does not say is that smart cards are something we should not have -- not at all. We feel our job, our role as an agency in the privacy area, is to flag, highlight, offer our expertise in these new kinds of emerging technologies, and that's what that paper does.
In the interview I did, I said we do not oppose the introduction of a smart card, but here are a list of things we feel have to be taken into account, have to be provided, when you move to that kind of technology. I have no disagreement at all with what you're saying about the value of the technology. Our concern is, how do you factor in the privacy interests?
I'm pleased to say that organizations are coming to us because they're realizing that technology carries with it the potential for further intrusiveness. That is a very real concern in the eyes of the public today, along with the concerns around efficient expenditure of funds. We don't see privacy as being a barrier to efficiency; that's not our goal. I think the two can coexist, and what we want to happen and hope will happen is that the concerns for privacy will be taken into consideration.
Mr Morin: You're saying there must be certain parameters established, that if you do have a smart card make sure this information is not available or, if it is available, that it is in the hands of the person who is responsible.
Mr Wright: I'll give you a specific example. Smart card technology would allow you to have literally a person's life history on the back of the card. We raise questions around the kinds of security to be built into the card so that yes, a medical doctor can access the medical information, but he or she should not be able to open up the card, if you will, and have access to every last bit of information on that card.
What we hope governments would do is commit the necessary funds to provide for a more effective, efficient means of providing services, but not to the exclusion of some of the fundamental concerns.
1450
I personally don't want any public servant I happen to come in contact with because I'm using a particular service to know absolutely everything about me, whether it's my driving record, my health record, my educational record, whatever. I don't want that to happen. It doesn't have to happen. There are ways of controlling it, but one of the fundamental questions that will have to be addressed is, what is the government prepared to spend to institute those kinds of controls? That's the other part of the efficiency issue.
Mr Hope: The police brought up about the issue of the press requesting information, that it's like going to the front line and grabbing the information from the officers doing the investigation. I understood what they were saying, that that could possibly jeopardize a case being solved. How do we protect the right or the freedom of the press, whatever you want to call it, to access information but at the same time not jeopardize a possible resolution to a crime?
Mr Wright: The press is not treated differently under the legislation from any other requester. I know this has been a source of complaint, that members of the media feel that making a request, with 30 days to respond, simply doesn't meet their time limits in terms of reporting. That's probably fair. One of the former federal information commissioners basically said the freedom of information legislation is not media-friendly. Other than for the person who's doing investigative reporting, it's not something they will use as a vehicle. They will use -- this is my understanding -- some of their traditional sources of information in an informal way, so I don't see the press as being an unusual example. The kinds of concerns you raise would apply no matter who was making the request, whether the media, the person being investigated, let's say, or anyone else. The concerns will be the same.
Mr Hope: You raised smaller municipalities, and that's part of my concern. Some don't even have full-time staff. They've got some full-time top administration, but part-time lower categories. It is a real concern that if we are to expand the role and the mandate, providing more information, first we have to start getting public information out to the general public and then we'd probably eliminate a lot of requests. But I sit and think, how is the smaller municipality going to cope with the act? I know we're trying to get more information to the general public, but with the financial resources in a small community of 600 people, it's very difficult.
Mr Wright: It is, and one of the things I've been aware of. A majority of my professional life was spent practising law in small communities; for example, my last practice was in the town of Kincardine, which is not a large community. I agree with you that these are real concerns.
The other thing that comes into play is the fact that because of the size, in many ways there's an advantage. They may well be more comfortable with the kind of disclosure of information you're talking about because they may well know the person; information travels in many ways in smaller communities other than through access to information requests. I'm not so sure the concern is of the nature you describe in terms of the small municipalities. For example, in Chatham -- I happen to know the clerk-treasurer -- they've had one formal, and I stress "formal," access to information request in three years.
Mr Hayes: That's because they call Randy Hope.
Mr Wright: Well, maybe they do.
Mr Wiseman: They don't need you down there. Randy knows everything.
Mr Hope: I just tell them what they want to hear. That's what I believe, if you don't have anything to hide. Some of us have a different view, but personally, I don't have any money so I don't care if people know what my debt is. I don't have a problem telling my wages for the simple fact that we're not paid appropriately. That's the openness in a more rural setting; in a larger centre everybody wants to keep everything closer to themselves and I think we've become too protective in our society.
While you were talking I've been trying to go through the BC stuff, because why re-create the wheel if we have a system that is working, that does allow the broader institutions in here? It does protect the interests and rights, I'm reading, around the client of social services.
I look at this and I'm sitting here saying, why are we being so protective? Yes, there is the right of the individual's privacy, but because of the economic situation out there people now want to be more conscious of what they're spending the tax money on and they're looking at every avenue to find an argument. We're getting more homegrown politicians starting to spring up all over.
I was looking at some of the statistics provided to us this morning from the Penetanguishene one, which showed the smaller municipalities: Collingwood in 1991 only three, in 1992 one, and in 1993 zero, but Barrie started its way up, and Oriel. You look at those smaller municipalities and you wonder, are there more inquiries because of the legislation or is it more political? I've got to weigh whether it's just political activity that's happening out in our communities or whether it's really human nature or concern the general public has.
Mr Wright: What you're seeing, and certainly what the statistics show as the years go on, is that there's more and more awareness of the simple existence of the legislation to provide a right. One of the more descriptive phrases I've heard for jurisdictions that don't have freedom of information legislation is that people no longer depend on the iron whim of the bureaucrat. Now they have these rights, where before they may well have gone and asked for the information and been told, "No, sorry, you can't have it," and they'd walk away and say, "I guess that's the way it is." As part of society in general, as you know, people are far more aware of what their rights are. This legislation is another set of rights, and they're being used more and more.
I come back to the theme that the rights are there as a direction. What we're hoping is that changes we propose, as well as the changes in attitude, will be the better answer; to head more along the lines you have just described.
Mr Hope: That leads me to my next question. You know it always takes the political will of this Legislature to make changes in legislation. As we talk about the innovative technology out there, that more personal information is more accessible yet you have to keep the confidentiality, is it the proper way to continue through legislative -- I'm looking at creating something that will be progressive and deal with the issues as they occur. Is it through your office or is it through a more regulative framework?
I don't want our privacy and information act to be stale, while the rest of society continues, until the political will is there to proceed with it. We're going to be falling behind and dealing with old problems, as we've seen the way some of our systems work.
Mr Wright: Certainly that is the flavour of many of the recommendations we include in our submission. It is not a matter of finding fault with the legislation as it now reads. It's more a matter of saying, let's take some steps that allow it to be current so that the issues we're dealing with today, as well as tomorrow, as much as you can hope to foresee -- I think some of the proposals we make about building access and privacy considerations into the design of the electronic systems is one of those things that will apply down the road, because all we're talking about is variations.
A new issue, an issue that I think is going to become more and more important, is this whole question of data matching, information matching, record linkages. A person is involved in a particular part of government and then that information is run against another part of government; then they get some kind of hit and maybe there is some action taken on that.
We make proposals that suggest how to deal with that kind of situation, which again will, I think, become more and more important, particularly in the area of some of the comments that Mr Morin made around fraud. We feel there's a need to address those kinds of issues.
I feel that some of our recommendations are right along the lines that you're talking about and I do feel that the legislative route, as opposed to the regulation route, is probably the way you have to go to set the ground rules. I'm not a believer in setting fundamental ground rules in regulation. I think it's more effectively done in the statute itself.
1500
Mr Wiseman: I want to pursue this whole idea of the psychological testing and the standardizing of tests. We heard from the psychological society about keeping this secret, keeping these tests out of the hands of the general public. They made a rather forceful case that, in order for their tests to be valid and for them to have any reliability in them, they needed to do that.
There are two things that bother me about this. The first one is that if you're making a decision about the life pattern of a person, whether to be institutionalized or whether to be -- you know, anything that you may do -- and you're doing it on the basis of this test, that now becomes the accuser and you have a right to face your accuser. In other words, you have the right to challenge the test.
The second part in this is that in the private sector a number of companies are turning to psychological testing to determine who they're going to hire. If you answer question 6 as an (a), you don't get the job because statistically speaking there's an 85% possibility that you may wind up being a thief if you answered it as (a), but there's less of a statistical probability if you answered it as (b).
Those are the two issues that I'm just thinking about in terms of this kind of psychological testing. I have a great deal of difficulty with employees not being able to challenge the decisions made on the basis of these tests.
Mr Wright: I'm not sure if the committee is aware, but I suspect what precipitated the representations you received is an order that was issued by our office.
Mr Wiseman: In 1991?
Mr Wright: I believe that's the one, yes. It is the subject of an application for judicial review. Obviously there was dissatisfaction with the order that was made and, as is the right of anyone who comes and appeals or is involved with an appeal, they've applied to the court. For that reason, since it is still before the court, I want to be careful about what I say. Clearly there are ways to address those concerns if in fact the desire of the committee was to do so.
I will say in a very general way that I do share your comment around the thought that, in terms of the results of the test, someone's life could be affected and they wouldn't know why. I think as a matter of where we are today, that's an attitude that is simply out of date in a very real sense.
I will add, as a matter of the workplace testing and the other issues around testing in the workplace, we issued a report in November which talked about monitoring of employees, the kinds of testing that are done in the workplace, including lifestyle testing.
I think once again what we're seeing -- it's a bit of a theme that you obviously have heard from me today. I'm not so sure that what the employer shouldn't be doing is giving a little more thought to what is going to actually be achieved when these kinds of tests come in, whether or not the tests are an accurate predictor of anything, and in fact are you losing someone who may be a very valuable employee on the basis of a test which may have not a terribly good reputation for accuracy? Clearly we have concerns about that as well, as we expressed in our report.
Mr Wiseman: This is part of an ongoing move, particularly in the United States, where they're putting secret cameras into change rooms in department stores and in athletic clubs and they're doing a whole host of things in terms of invasions of privacy where you would normally have expected to have privacy.
What I fear about this the most is that if a psychologist or a professional with a PhD beside his or her name says this is okay, there's a tendency on the part of society to side with that person who is so learned, and yet there is a huge amount of historical documentation to indicate that they can err. The IQ testing in the 1920s was supposed to be infallible and it was supposed to tell you how bright you were, but when they gave it to people who came from a different socioeconomic and cultural background, it turned out that's not the case.
The same is true in education, for example. The testing to determine if you're a gifted student or not a gifted student can have socioeconomic questions in there that wind up having you turn up to be in a percentile that is not indicative of your mental capacity. I think this is one of the reasons that some of us -- I in particular, who come from an education background, am very leery of the kind of testing people want to do in terms of determining where to pigeonhole people as gifted or not gifted or as slow learners and whatever you want to name them, because this is not an exact science.
Mr Wright: For me, that's probably the reason why, leaving aside the respect which the opinion should receive, individuals, as a minimum, has got to know what someone has said about them or what determination has been made about them. They may not be able to refute that based on the present status of the academic development or the analysis of the particular types of tests, but at least they will have the opportunity to do it. To me, that is a right they should have in those kinds of circumstances.
Mr Wiseman: I want to ask one question on the smart and swipe cards for the medical profession. We had a presentation before the standing committee on estimates on the swipe cards and the process of following up.
It seems to me that one of the issues there is that by accident you could wind up having all of your records or something displayed to somebody who shouldn't have them. At the same time, there has to be some way your doctor can determine whether or not the person who has the card is the person they're supposed to be, especially at the walk-in clinics.
Mr Wright: Are you saying in terms of what the card would contain or by way of information, or would you be considering something like a photo?
Mr Wiseman: The photo card was talked about. Quebec has moved to a photo card. There does seem to be some drawbacks there in terms of you can counterfeit them. You can counterfeit a passport, you can counterfeit employees' cards. You need some kind of identifiable number or something in the card and some kind of identifiable characteristic to match the person on the card.
Mr Wright: Yes, and in fact there are. As I said before, I'm not a techie by any means but I know there are various ways in which to verify that the right person has the card that could be built into a smart card application, which means that once again it would be the will to do that kind of thing in order to achieve what is trying to be achieved. They are something that there's no doubt we're going to see more of, and I'm pleased that this committee is raising these issues in these hearings.
Mr Wiseman: Who should own the medical records, the patient, the institutions or the doctors?
Mr Wright: My recollection is that there is a Supreme Court of Canada decision which talks about that. I believe the ownership issue is resolved, that it's the patient who ultimately owns it, but in fact there's a right of custody of a sort.
There's no question as far as I'm concerned from the Supreme Court of Canada decision that the patient should have a right of access to that information, subject to minimal exceptions such as a concern for that person's own safety and wellbeing if he or she found out information about themselves and might do themselves harm. Other than that, I think it's relatively clear now in law that the patient does have access to that record.
1510
Mr Elston: Just one line of questioning right now, but maybe tomorrow and the next day when you're back answering questions, we'll be able to have a little fuller discussion.
We have talked about extending the application of the act sincerely to hospitals, universities and social service agencies. We've talked about its application to discovering just about everything there is to do with the administration of councils and school boards. But I think it's a little bit delinquent on our part if we shouldn't at least ask the question and go through some of the rationale about why we're not talking about our own institution, which is, of course, the Legislative Assembly.
From my standpoint, there are administrative issues related to this that we at least should have on the record and discuss. There ought to be some consideration, I think, since we've really basically said that municipalities at the local level have to divulge everything, except that perhaps with every other institution, although the assumption is that we do know what's going on, maybe it should be clearer as to why, so far, I haven't seen anything, at this point anyway, that suggests we should extend it to the Legislative Assembly, although that may have been part of a discussion with respect to the provincial act itself.
I just think if we're doing this for the councillors and for the trustees, as members we ought to really seriously consider some of the ramifications of that. Perhaps you could think out loud for us a little bit about the ramifications of that and whether or not it might be necessary if we did it to segregate the administrative side of the Legislative Assembly from the political side, which is the activities of caucuses and others, where freedom of information inquiries might divulge where each political party was taking its policy activities or otherwise.
I wonder if you might want to comment on that and if, when you're back tomorrow and the next day, you could sort of fill out the answer.
Mr Wright: Perhaps I could take advantage of this opportunity to do that. I agree with you. On the face of it there is no rationale for saying that the operations portion of the Legislative Assembly should not be covered by access and privacy legislation. I assure you not even if I spent a day or two thinking about it could I come up with a rationale that would support that.
I think you're correct in that there would have to be a careful look at how it would impact on the elected representatives as well as caucus etc to make sure that the appropriate allowances were made, but as far as the day-to-day operations, I can't. I'm sure those who are working at the Legislative Assembly in the operations sections may well have reasons why, but as a matter of purity, I wouldn't offer you a rationale.
Mr Elston: Have you had anyone approach you about the seeming inconsistency?
Mr Wright: Yes. One of the presenters who appeared before your committee, I believe on the Wednesday, wrote to me some time late last year. He had just found out that the Legislative Assembly -- now I think he was thinking a little more broadly perhaps than just the operations. He raised with me why the assembly wasn't covered. As I say, I seem to recall seeing his name in your list of presenters.
Mr Morin: He used to work for the Liberal Party and the Conservatives.
Mr Wright: I'm always leery of using names with people because I'm so inculcated with privacy concerns that I think it's a public hearing, but he did raise that concern.
Mr Elston: I don't mean to put you on the spot, although I guess I am. In thinking about the issue, in your view, is there a way, as we were discussing with hospitals, of perhaps applying the act so it does deal with day-to-day operations? It is a multimillion-dollar enterprise that operates. I guess I have to ask out loud the question, and maybe Frank White will know more about this than I do, about the original discussions that took place. It must have obviously excluded them from the operation of the provincial act.
Mr Wright: No, again, I don't recall whether it came up or if it did, how the committee dealt with it in the review of the provincial act, but certainly I think administratively, if you're looking at amendments, it wouldn't be a terribly difficult task to implement a decision around the operational portion of the Legislative Assembly, assuming that was the direction in which the committee wished to go. I think it could be done probably by regulation and definition of "institution," which would be a change that may well be done with some ease.
Mr Elston: Just to switch now to another area, have you had very many difficulties with respect to maintaining trade secrets?
We dealt with the issue on testing brought forward by the psychologists. I'm more interested in relation to people attempting to get information about competitors through the information side of the act. I know that was an issue that was raised in some degree of concern by a whole series of corporate people who dealt mainly in the municipal and school fields. They thought that perhaps they might end up inadvertently having their trade information dropped out by the boards or councils as they tried to fulfil the act. Have you had much concern from a practical standpoint?
Mr Wright: Not other than we've had to deal with in the form of appeals where the exemption, which in the municipal act is in section 10, I believe, and section 17 under the provincial act, is a fairly broad exemption in terms of the kind of information it covers. So other than appeals, there's no specific experience in terms of complaints.
I can say this, that once again if people are dissatisfied with an order involving what they feel is their financial information, they have the ability to seek judicial review. I can tell you there have been a number of cases involving the kind of information you describe, where they have not been satisfied with the decision of our commission and have sought review of the court. That certainly provides an additional protection, because the court will have to either agree or disagree in terms of the kinds of decision we've made.
Mr Elston: That's an interesting point on which you seize now, because I think one of our presenters actually came here and said: "You know, there should be somebody overlooking the commission because basically it has a whole series of mandates which are non-reviewable. Once they decide that information from an evidentiary point of view is such that they don't need any more, they can just disregard us." In fact, I think it was the people here on the psychological testing issue again. They were concerned, I think, basically about an order which had already been issued and which in fact now is being taken through judicial review.
I guess it's difficult for you to answer this, but do you think there ought to be another full court review, as opposed to just judicial review, of the commission's decisions with respect to evidentiary matters as opposed to just the interpretation of the legal issues?
Mr Wright: No, I don't. I think that doing that to an extent moves us away from why you have expert administrative tribunals such as ours. In the judicial review applications and in a recent one in June 1993, the Divisional Court, which was considering a particular order, gave a very high standard of deference to the decisions of the commissioner in terms of the expertise that the tribunal has available to it, an expertise that clearly the court in itself does not possess to the same extent as the commission.
The other thing I think is interesting in terms of the comment on the specific order -- and I will make one observation. As part of our obligation in terms of who received notice of the appeal, we notified the distributor of the test and they had the opportunity, which they used, to make representations on whether or not the information should be disclosed. The fact is that the person who issued that particular order didn't agree with their position and a result the order was issued, but they had the opportunity.
We didn't operate in a vacuum in terms of that decision. Obviously, the result was not what they liked and they've exercised their legal remedy and I think that's appropriate. They should be able to do that; I have no problem with that whatsoever. But the idea of our commission going through a full inquiry process, issuing an order and then starting afresh in the courts as if nothing had happened before, I think is perhaps not in keeping with why you have administrative tribunals.
1520
Mr Elston: Tom, again to change the issue, it concerns fees. Of course you can apply to have the fees waived if there is a financial hardship in place and you would like to have the information in any event. During discussion with some of the people, they have indicated that some of the institutions actually put people through an examination of their financial background similar to that, or in fact even more rigorous than that, of a person who might have to apply for social assistance. In one case brought to my attention a person on social assistance was actually put through an examination which required the full divulging of assets and bank balances and the whole works.
Can you tell us a little bit about, first of all, whether you have set in place a guideline that would help an institution to make the determination about need; second, if you haven't, if you're planning on doing any of that to sensitize people to this process; and third, whether or not you think there has been very much of that as a problem? I guess the answer to the first two will probably give me the answer to the third.
Mr Wright: In fact one of the earlier orders that was issued involved fees issues. It sort of ebbed and flowed over the years. We don't have a high volume of appeals involving fees, but in the orders that have been issued, I think we've tried to flesh out the fee waiver sections of the act in a way that we hope will be of assistance to institutions that clearly have to look at the criteria.
I must confess I wasn't aware of the degree to which you've indicated some institutions are inquiring into the financial means of the particular requester. I didn't know that. I know we have said that in order to obtain the benefit of a waiver based on financial circumstances, you have to tell something. I'm not aware of an order that's been issued where we've outlined in a lot of detail what that something might be.
But I think your point is very well made and it's something that I will certainly take back to our appeals department and I think it's something we should look at, because, as I say, I wasn't aware that that in-depth kind of look was being taken.
Mr Elston: It may in fact be just, again, one anecdote, but it certainly has caused enough concern that someone contacted me about it.
I guess these applications are all part of the public record and available for freedom of information applications? If they took my application and I asked for a waiver, I can then inquire under freedom of information if they've got the waiver and they've kept all that material on file so I know what they've got there?
Mr Wright: It at times becomes a bit of a vicious circle. Yes, someone could theoretically -- not theoretically, they could apply for that information, but then you get into concerns around the application of the personal privacy exemption. The likelihood of disclosure of the information is probably not that real, but in terms of the application of the act, it would fall under the act. Yes, you're correct.
Mr Elston: So there could be a whole new series of records that will have to be kept current and available to make sure they've complied with their guidelines for fee waivers.
Mr Wright: That's true.
Mr Elston: To your knowledge, have most of the municipalities and school boards and others that are under this act built up a firm or fairly rigorous regime of procedural policies and directives they follow with respect to the application of this, or have they sort of adopted them ad hoc as the circumstances require?
Mr Wright: I think the experience would vary. Management Board Secretariat has provided a manual, which is kept updated.
Mr Elston: I remember looking at it as it was being compiled.
Mr Wright: Fair enough, and it still exists. As you know, Mr White is here and he could perhaps answer the question a little better than I as far as his experience with its use. But I think again it's fair to say that the experience would be uneven, probably based a lot on the need that some have in terms of dealing with the legislation, particularly on the access side.
On the privacy side, a lot of it is awareness, not only through manuals but as a matter of simply being aware of the requirements of the act. I think some of the publications that we provide to organizations -- in addition to the ones I've mentioned, we produce something called Practices, which outlines what we consider to be proper practices in certain areas. So we try to provide it. It's a lot of information, there's no question about it, to go out, but it's being made available to them.
Mr Elston: My last question: Invariably when dealing with personnel matters, particularly if there is a severance required, there is also provision in arrangements to settle outstanding or dispute issues, a provision in an agreement that says neither party shall divulge to the public any of the issues surrounding this particular settlement.
Do those sorts of provisions in contracts, where a public official is severed from their position, override the freedom of information act requirements and spirit of the act? If we take the arguments which have been put forward for divulging salaries, obviously any severance which brings forward a lump sum payment for that severance stands in the same place as salary. In fact it substitutes for the salary that would have been earned; at least that's the way it's argued.
What's your view on how we deal with that as an issue, bearing in mind I guess that if you start disclosing all of the severance arrangements for every person who is severed, that would soon build up a case for anybody who was trying to represent their client or whatever? But can you first associate yourself with the problem of whether you should divulge those tax-paid severances?
Mr Wright: We have issued in fact, over the last four months in particular, a number of orders involving those kinds of severance agreements. Trying to think back through the various examples of the orders, we feel, and the result of the orders I think indicates, there is a level of information that needs to be disclosed in terms of the contents of these severance arrangements. If it was a perfect world, I suppose -- as you say, the reference to salaries and more open disclosure -- there would be something along the lines for these kinds of severance agreements as a special arrangement.
One of the proposals we've made is around the modification, the public interest override, to allow it to apply in more situations. I think perhaps the example that you give around severance agreements is a very good one in terms of how a stronger public interest override could work in a way that results in more disclosure.
If I may, I'll share with the committee. The British Columbia legislation came into effect in October 1993, and the commissioner has just issued his first order. The order he issued had to deal with the scale of severance settlements that the government in British Columbia was prepared to pay to individuals. He ordered that it be disclosed and it would set out the range. If you've worked x amount of time etc, the government's position will be that it will settle between this amount and this amount.
He listened to arguments from the government, and at the end of the day, he ordered that it be disclosed. I can tell you that some of the arguments made were that this would arm the person who was seeking the settlement to always ask for the high end of the range. That may well be, but just as a matter of information, that's the first order he issued and that's the kind of result he had. So the principle around severance I think is directly analogous to the question around disclosure of salaries; it's just an offshoot of that.
Mr Elston: Finally, in that regard, is there any information in government to which government itself, as opposed to the taxpayers or whatever, has a proprietary interest that is not an interest of the taxpayer?
Mr Wright: There's an exemption in section 11 of the municipal act, section 18 of the provincial act, which talks about that kind of information. I can recall a couple of orders where we have upheld the exemption, and I don't recall the exact circumstances, but my answer would be, yes, there are probably examples of things that the government holds which would qualify for exemption.
I don't think that in any way detracts from the principle about the public's right of access. What we have always said and acknowledged is that that right of access is subject to certain legitimate exceptions as are contained in the legislation. So, yes, there have been examples of what you say.
1530
Mr Elston: In any of those cases, would that revolve around the adopted policy with respect to personnel or severance or any of that in your view?
Mr Wright: No. It was more dealing with things that had been information sources etc that had been developed by the ministry itself and the thought that a private sector entity would be able to take advantage of the expenditure of taxpayer funds in some fashion to the harm of government at large. That's more the kind of issue that we've been dealing with.
Mr Elston: I wonder if the commissioner might be able to make available those orders, as examples, just so we can keep those in mind.
Mr Wright: Sure.
Mr Elston: Obviously, if a ministerial organization has that interest, then we ought to consider the same type of interest, I presume, for municipalities or school boards.
Mr Wright: Municipalities and school boards are protected in the same fashion.
Mr Elston: We should know exactly what that is before we take our deliberations too far. If you can provide that, it would be helpful.
Mr Wright: Certainly. I'll be happy to.
Mr Elston: Thanks very much, Tom.
The Vice-Chair: Mr Hayes.
Mr Hayes: It's been so long here.
Mr Elston: Didn't you find it informative?
Mr Hayes: I thought when you made those changes in the previous government you would know all those answers and you'd have this all put together by now.
In your report, on page 10, Mr Wright, you state, "The act should be amended to permit the disclosure of the actual compensation paid to all public employees, including officials and government appointees." You're also including school boards and universities?
Mr Wright: Yes, sir, I would be.
Mr Hayes: Okay. I think that's good. My question is very, very brief and it actually relates to what Mr Tilson was talking about earlier on the costs, a legitimate concern. I may be wrong, but my opinion would be that if we did extend it, that could possibly in the long run cut down on some of the expenses, because things would be disclosed more voluntarily or more easily or things would be more up front, where you wouldn't have to have some of the doubt. Maybe there'd be questions that would be answered without having to go through a whole pile of red tape, for example.
Mr Wright: I think to an extent we're seeing the result of the increased familiarity with the legislation as years pass. In fact there is a better understanding of what it requires. In the early days, no one, including anyone at the information and privacy commission, really knew what the act meant. There had been no interpretations out there. We've developed a fairly large body of decisions which do provide guidance.
As you progress I would agree with you that the implementation is easier because you do have the ability to look back. I know when the legislation was extended to municipalities that there was the ability to say: "All this has already been looked after. We don't have to talk about it now. Here's what the situation is." Each time it is a little bit easier, because you have that additional experience on which to rely. So yes, I see your point.
Mr Hayes: Okay. I'll give some other members a chance.
The Chair: Mr Malkowski is last on the list.
Mr Gary Malkowski (York East): There are two things I want to ask. One is about access to information for blind and visually impaired persons, people with low vision. I want to ask if in your experience, for example, vocational rehabilitation clients who may be requesting information because they may be going through the Ministry of Community and Social Services, if one were to ask for information, do you provide reasonable accommodation or information to them that may be in Braille or voiceprint? How does one get this to them? Have you had any problems passing on information to people like this?
Mr Wright: The responsibility for responding to requests for information initially is at the government level, the ministry level. In this case, as you say, Comsoc is the one who would have to provide the alternative format as far as the information is concerned.
It is not an issue that we have to deal with as an information and privacy commission, but I can tell you that we have had a number of occasions where we have provided to appellants various documents that our office produces as part of the appeal process, including the order at the end of the day which would resolve the appeal, in Braille in order to accommodate the kinds of concerns that you've raised.
Mr Malkowski: I'm going to ask a new question then. I'm going to talk about guidelines. In terms of a personal file, do you have the same standards for all? Let's say the government has one set and let's say non-profit organizations get funding from the provincial government and they have records themselves. Is there one standard for both or do they each have different standards when it comes to disclosure of those things?
Mr Wright: The standards that exist in the legislation apply across the board no matter what type of organization it is. The rules are the same. Various exemptions or reasons for not providing information may exist to take into account the circumstances of a particular organization or type of organization, but other than that the acts basically treat all organizations the same way.
Mr Malkowski: It's the same standard. So is there a minimum-maximum time line when you destroy information, or no?
Mr Wright: Yes, there is. As far as personal information is concerned, there is a requirement, I believe, in the area of one year. It has to be maintained for one year. The time period that the record is maintained when it's personal information can be extended beyond that, but one year is a minimum. One year follows after the use of the information. So there are some basic rules.
Mr Malkowski: That's great. Thank you.
Mr Hope: Mr Elston raised an important issue. He said we weren't talking about our own back door and why wasn't I talking about the provincial aspect of this. Even the suggested recommendations of changes that the commissioner has put forward only deal with the municipal freedom of information, and that's what I was mainly focusing on as an individual.
Mr Elston: But we are dealing with hospitals and universities, that context.
Mr Hope: Yes, because it was asked upon us by the minister to examine that. I thought he brought out a good point, but I just wanted to say I myself was not focusing on the provincial because I was dealing with the recommendations, plus it was also directed by the minister to look at the wage issue and the hospitals and other agencies out there. I'd just like to respond that we didn't totally ignore our backyard, at least in my perspective of it. I was focusing on what the minister had made comment to plus what was being recommended, suggested changes by the commissioner. I just wanted that on the record.
Mr Elston: I accept that. We Liberals don't sort of lockstep with the minister on these things, as you know, so I was just trying to broaden the discussion somewhat. But the researcher has actually pointed out that because I didn't read the report of the standing committee in 1991, I didn't know that they had already talked about that, Legislative Assembly, which they do every time. They have actually suggested that the admin part of Legislative Assembly be covered. But the discussion in this committee's report was actually brief -- in fact very, very brief -- considering the size of the organization.
I apologize to the committee for raising it in the sense that it has already been talked about, but I really think that people would have a good question to ask of us as to why we don't take time to consider ourselves in the same context as other legislative bodies. I appreciate that there was no willingness on the part of anybody to overlook. It was just that it came to me as being a question that we should consider in our discussions.
The Vice-Chair: Thank you, Mr Elston, for bringing it to our attention that there is a recommendation in the provincial report covering this matter.
Mr Elston: I'm just telling you what the researcher advised me.
The Vice-Chair: Yes. I think that we've had a very thorough presentation here by Mr Wright, and I'm sure he must be tired after --
Interjection.
The Vice-Chair: Why don't you ask him? I would suggest that you maybe ask him privately. I think he's had a long day and I know he's been very helpful, all the information he has provided. I'd like to thank him on behalf of the committee for giving us such thorough and well-thought-out answers to the multiplicity of questions.
Mr Wright: My pleasure.
The Vice-Chair: You've certainly given us a lot of information on which to base our recommendations. Thank you again for appearing.
Mr Hope: Mr Chair, I would also note, for one member who has not participated in it, I thought the commissioner, Mr Wright, had done an excellent job, as a new member of the committee, of answering the questions to the best of his ability. I know he waffled a bit on one, but he was very helpful in my deliberations and for what we should be looking at as far as changes. I would just personally like to say thank you to the commissioner for taking the extra time with us today.
The Vice-Chair: Before we adjourn, I wonder if we want to determine whether we should make any decisions on any outstanding matters until tomorrow. The suggestion is that we should look through the summary and start tomorrow morning on the report-writing, discussing the report, and give instructions to research tomorrow, because I think there will be some instructions.
Is that satisfactory? Okay.
The committee adjourned at 1542.