Thank you. What does the committee wish to do now? Member for Thebacha.

Mr. Chairman, can we proceed with the legislative action paper, the tabled document which is in committee of the whole, Committee Report 15-12(3)? Thank you.

Does this committee agree we deal with Committee Report 15-12(3)?

Agreed.

---Agreed

Thank you. We will take a five minute break.

---SHORT RECESS

This committee will now come back to order. Are you ready to proceed on the report on Tabled Document 33-12(3): Government Accountability: A Legislative Action Paper On Access To Government?

Agreed.

---Agreed

Thank you, Mr. Chairman. I would like to ask the deputy chair to proceed at this point.

Mr. Lewis.

Comments By Standing Committee On Legislation

Thank you, Mr. Chairman. This is a summary of a report from the Standing Committee on Legislation on the legislative action paper on access to government.

The Standing Committee on Legislation has completed its review of Tabled Document 33-12(3), entitled Government Accountability: A Legislative Action Paper on Access to Government.

The legislative action paper proposed a unique design to increase public access to government decision-making, by combining right to information legislation with the creation of an ombudsman office for the Northwest Territories. During its review the Standing Committee on Legislation spent considerable time studying and discussing in detail the history of right to information on ombudsman concepts and the principles incorporated in the legislation of other Canadian jurisdictions. The committee commented on this study in detail

in its final report which is before committee Members. However, the committee proposes that for the purposes of our discussion in the committee of the whole, the comments of the standing committee will be presented in a summarized form. The full text of the report is before all Members and Members of the Standing Committee on Legislation are prepared to discuss these aspects in detail if other Members wish.

The standing committee met on several occasions during the Second Session of the 12th Assembly to consider the issues raised by the legislative action paper. In October, 1992, Members of the standing committee participated in a four day workshop on access to government principles. We invited representatives from legislatures and freedom of information and ombudsman offices in Ontario, Manitoba, Saskatchewan and British Columbia.

The standing committee also held public hearings on the legislative action paper in eight communities throughout the Northwest Territories from January 11 to 21, 1993. To achieve greater cost-effectiveness, the committee split into two sub-committees for the majority of its travel. One sub-committee conducted public hearings in Iqaluit, Pond Inlet and Rankin Inlet, and the other in Inuvik, Norman Wells and Hay River. The full committee then met to hold public hearings in Cambridge Bay and Yellowknife.

A number of individuals and organizations interested in the access to government proposal made verbal presentations before the standing committee, and the committee received several written briefs as well. The standing committee wishes to extend its appreciation to all those who made submissions on the legislative action paper. The comments and suggestions were thoughtful and of great assistance during the committee's deliberations.

The committee would also like to thank the local governments of each of the communities visited, as well as the Hay River Dene band for the tours and special functions hosted for the committee's benefit.

Throughout this report the Standing Committee on Legislation provides substantive direction on issues related to the content of perspective legislation as offered. The intent of the committee is to assist the Legislative Assembly to debate the key principles of the access to information and ombudsman concepts, and to provide guidance to the Minister in preparing the legislation.

Overview Of The Access To Government Legislation

The legislative action paper on access to government deals with two concepts proposed to increase the accessibility and accountability of the Government of the Northwest Territories to the people that it serves. The paper suggests that these concepts, right to information and the creation of an ombudsman, might be combined in one bill.

Right To Information

The purpose of right to information legislation generally is to provide a right of access by the public to information under the control of specified government bodies, such as government departments, boards, agencies, or municipal governments. Often, additional provisions protect the privacy of individuals by restricting the way in which government bodies collect, use and disclose personal information.

History Of Right To Information Legislation

The country having the longest experience with the principle of openness of government information is Sweden, which passed a law providing for public access to official documents in 1766. Finland adopted a similar law in 1951, the United States in 1966, and Denmark and Norway in 1970. Access to information legislation has now been adopted in over 15 countries.

The first Canadian right to government information statute was passed in Nova Scotia in 1977. At present, all jurisdictions except Prince Edward Island, Alberta and the Northwest Territories have right to information legislation.

Proponents of right to information legislation argue that open access to information makes it more possible for citizens to participate in the formulation of policy, and to hold governments accountable for past decisions and actions. In Canada, it has become generally accepted that if participation in government is to be meaningful, citizens must be fully informed of their government's activities, and that citizens should not be dependent upon the will of government to obtain this information.

During its consideration of the legislative action paper, the Standing Committee on Legislation reviewed the components of right to information legislation in other jurisdictions.

Access Components

The fundamental principle of right to information legislation is that members of the public are given a right to access information collected or prepared by their government.

It is also recognized certain types of information should be exempt from this general right, and should not be released to the public. In these cases, the legislation includes provisions to exempt the types of information for which people should not be able to exercise a right to access. All of the provinces with right to information, but one, use this statutory design.

Mandatory And Discretionary Exemptions

The right to information legislation of most Canadian jurisdictions contains a mixture of mandatory and discretionary exemptions, depending on the rationale for the exemption. When exemptions are mandatory, government bodies are required to refuse any request for access to that type of information. When exemptions are discretionary, the government body may release information subject to the exemption if it feels that no hard would be done.

Types Of Exemptions

The specific lists of exemptions from the public right of access to government information vary considerably from one jurisdiction to the next. However, certain general classes of information are protected from release to the public across the country. These typically include restrictions on the release of

personal information, commercial information that could harm third parties, and other types of information that might present a danger to individuals or to the government's ability to govern.

Overrides

Often, right to information legislation also often provides for the application of "overrides", allowing or requiring information that would otherwise be exempt to be disclosed in the interest of public health or safety.

Privacy Components

Of the jurisdictions which have enacted right to information legislation, four provinces deal exclusively with providing a right of access to government information. In the remaining jurisdictions, legislation also contains provisions for the protection of privacy. These statutes restrict the government in its collection, use and disclosure of personal information. At the federal level, privacy provisions have been enacted in a separate statute.

Jurisdictions which have not enacted comprehensive privacy legislation do provide some protection against the disclosure of personal information. Right to information legislation contains an exemption from the general obligation to grant access to the public when the information is personal information concerning another individual. However, other jurisdictions which have not enacted comprehensive provisions for the protection of privacy.

Review/Appeal Components

An individual who is denied access to government records may apply to have the decision of the government body reviewed. This application may be to the courts, to a judge, to an information commissioners, to an ombudsman established under separate legislation, or to a Minister, depending upon the statute.

Jurisdictions which have adopted an investigative approach to reviewing denials of access authorize the reviewing office, such as an ombudsman or information commissioner, to recommend government action to correct an improper denial of access. In this case, the government body would not be required to comply with the recommendations.

Other jurisdictions have adopted an adjudicative approach, where reviews of denials of access are conducted by a judge or information commissioner who may order the government body to grant access to the information, subject to any further available appeal.

I will now hand it back to the chairman, Mr. Chairman, to continue with the report of the Standing Committee on Legislation. Thank you.

Thank you. Mr. Arngna'naaq.

Ombudsman Legislation

Generally, the office of the ombudsman is given the responsibility to investigate complaints about

government administration, with the objective of ensuring "administrative justice."

History Of Ombudsman Legislation

The need for the protection of the ordinary citizen against possible unfairness or injustice in the administration of government policy by public officials has been recognized in many societies over thousands of years. In ancient times, Roman, Chinese and Islamic peoples established officers to review the performance of government officials and to take complaints from citizens.

The contemporary concept, and title, of the ombudsman originated in Sweden in 1809. The word "ombudsman" simply means "representative." Over time, the function of the office evolved to the present concept of protection of the public from administrative wrongdoing.

The role of the ombudsman was further refined in Finland and by 1953, in Denmark. Alberta was the first Canadian jurisdiction to pass ombudsman legislation in 1967. Ombudsman legislation is currently in place in all provincial jurisdictions in Canada except Prince Edward Island, Newfoundland, Yukon Territory and the Northwest Territories. As well, there are now approximately 138 ombudsman offices located in more than 40 countries.

Role Of The Ombudsman

The standing committee examined the Canadian interpretation of the ombudsman model with a view to considering its current relevance to the Northwest Territories.

The general concept of the role of the ombudsman extends well beyond access to government information. During its review of other jurisdictions, the standing committee found that current legislation gives the office very broad powers and scope.

The concept of independent review by the ombudsman depends upon the office being independent from government, and from the authorities under the government's jurisdiction. In other Canadian jurisdictions, the ombudsman is appointed by the Legislative Assembly, and reports directly to the Assembly. The ombudsman is given broad powers to receive and investigate complaints by the public about any administrative act or decisions of government. An ombudsman also may conduct an investigation upon his or her own initiative.

In other jurisdictions, the ombudsman may also appropriately investigate the exercise of discretionary powers, to determine whether these powers have been exercised for a proper purpose, on relevant grounds, after taking into account relevant considerations.

The ombudsman has wide discretion as to how investigations are carried out. The ombudsman may require persons to give evidence under oath, and may require that documents be produced. This allows the ombudsman to have access to all relevant files and records kept by the body relating to the matter under investigation, access which is not readily available to other "protectors of the public."

Influence Of The Ombudsman

The ombudsman concept does not include the power to order or direct action by the government. The ombudsman office reports its findings and recommendations on the complaint to the organization investigated and the complainant.

The influence of the ombudsman arises from the ability of the office to obtain all relevant information and to mediate between the parties, often reaching a consensus as to the resolution of the complaint.

Where agreement cannot be reached, the influence of the ombudsman in these circumstances may also be significant. The annual or interim reports of the ombudsman to the Legislative Assembly describe the situations where the ombudsman has made recommendations to a government body with which the government body did not comply. The attention of Members of the Legislative Assembly may then be drawn to the details of specific problems of government administration.

I will turn the third section over to Mr. Lewis, Mr. Chairman.

Mr. Lewis.

Proposals For Action

Right To Information

Thanks, Mr. Chairman. As noted in the legislative action paper, considerable discussion has taken place in the Northwest Territories during recent years around the issue of access to government records.

During its public hearings, the Standing Committee on Legislation consistently heard that members of the public from all parts of the Northwest Territories view access to government records to be linked to the basic right to participate in government in a democratic society. Many individuals and organizations made the point, forcefully, that this should be a priority of this government.

For example, in Yellowknife, the Status of Women Council of the Northwest Territories presented this point of view:

"Access to information should be given. We, the people, elected the legislators and either benefit or suffer from their actions or decisions. It is absurd to us that any information, with very few exceptions, should be withheld from the public."

The standing committee also heard that in many circumstances, accessing government information is difficult at present. For example, in Pond Inlet, Mr. Anaviapik to the committee:

"As an ordinary person, trying to get assistance from the government is almost impossible. Most of the time they tell us that they will get back to us. This is usually the only answer we get."

Based on the submissions received during public hearings and extensive discussions and consideration of the issues, the Standing Committee on Legislation was of the opinion that the development of right to information legislation should be made an immediate priority of this government. A right to information bill should be introduced in the Legislative Assembly as soon as possible, and not later than the fall of 1993. If this bill receives second reading, it should again be referred to the Standing Committee on Legislation for a detailed review.

Ombudsman

The Standing Committee on Legislation also received several expressions of support for the creation of an ombudsman for the Northwest Territories. Although those submitting their comments to the committee were not unanimous, the Members of the standing committee were of the opinion that the creation of an ombudsman office for the Northwest Territories could be justified.

For instance in Cambridge Bay, the standing committee received the comments of Mr. Peterson, who described his view of the benefits of an ombudsman for the Northwest Territories:

"We are advocating an ombudsman position that would allow information to be revealed where parties to an impasse could negotiate a settlement or resolve an issue. an individual may be off track. An ombudsman could explain, after investigating the problem, to the individual in a way that he can understand. In other cases, the government could be off track and the ombudsman could explain to the government people that, listen, it is not in the best interest of the government to buy this. It has to treat this person or business with respect and openness and get on about the business of running government without dragging everyone into court with bitterness, mistrust or distrust to develop. We are not suggesting that the ombudsman be the judge and jury. In fact, we would like him to be a capable negotiator, a diplomat, ambassador, or whatever, for everybody to look up to and trust on both sides."

The Standing Committee on Legislation also supports in principle the notion that ombudsman legislation be developed for the Northwest Territories. The standing committee recognized the obligations and duties of government to the people that it serves, and felt that recourse to an independent body by those individuals who may have been aggrieved should be available, in the interest of ensuring accountable and efficient government.

However, during the public hearings, the standing committee received requests for a more concrete proposal respecting the creation of an ombudsman. The concept of an ombudsman has not received the amount of attention and debate as has access to information. Throughout the review process, it was expressed to the committee that the lack of information in the legislative action paper made it difficult for the public to develop an informed response. As it was not clearly expressed, members of the public were not able to get a full sense of the role that the government proposed the ombudsman should play in the Northwest Territories.

The standing committee was of the opinion that a more detailed proposal for the creation of an ombudsman should be

made available for public review. This could be best accomplished through the tabling of a second legislative action paper outlining specific options in this area. Preferably, the legislative action paper could be appended by a draft bill for review. The standing committee anticipates that such a proposal would be provided by the fall of 1993.

I would like to hand this back to the chairman, now, Mr. Chairman.

Mr. Arngna'naaq.

Thank you, Mr. Chairman. I am passing it on again to another Member of the committee, to Mr. John Ningark.

Thank you. Mr. Ningark.

Right To Information Legislation In The Northwest Territories

Thank you, Mr. Chairman. The Standing Committee on Legislation has considered carefully the submissions provided by the public and the principles and components of right to information and ombudsman legislation in other jurisdictions. As a result, the standing committee has reached certain conclusions as to how to design legislation which might best meet the needs of the people of the Northwest Territories.

Principles

The Standing Committee on Legislation received many submissions which reflected a need for the government to make a strong commitment to access to information, and to certain underlying principles. During the public hearings, the following basic principles emerged as fundamental tenets, in the committee's view, of a workable and effective access to information system:

1. The public must be provided a right, protected in legislation, to have access to all information held by the government, subject only to limited and specific exemptions in the legislation;

2. Individuals must have a right of access to, and a right to request correction of, personal information about themselves;

3. The burden of proof must be upon the government to justify the withholding of government information;

4. A denial of access to information must be subject to independent review;

5. The legislation must prevent the unauthorized collection, use and disclosure of personal information by government;

6. The procedure for acquiring information must be clear, simple and accessible by residents of all NWT communities;

7. Fees must not form a barrier to access to information; and,

8. The legislation should contain a requirement for periodic mandatory review by the Legislative Assembly.

Jurisdiction Of Access Legislation

To a large extent, the practical implications of right to information legislation for the people of the Northwest Territories will depend upon the scope of the legislation.

Government in the Northwest Territories is large in relation to the population, and it exerts great impact on the lives of Northwest Territories residents. However, in addition to the activities of government departments, several other bodies play a large role in our daily lives. As the government proceeds with its community transfer initiative, the role of these bodies may become even more significant.

The standing committee discussed at length the question of the appropriate jurisdiction which should be held by right to information legislation. The standing committee is of the opinion that the right of access to information and of meaningful participation by individuals should extend to government in a broad sense. Right to information legislation should apply to all government departments, as well as government corporations and all boards, commissions and agencies to which the government appoints at least one member.

The standing committee is of the opinion that the Minister should examine the possibility of future extension of right to information legislation to bodies such as local government bodies and self-governing professional bodies, as well as organizations that receive a specific minimum level of government funding. However, further consultation with local government, in particular, is required before this step is taken. Access to government departments and agencies, boards and commissions should be accorded the first priority.

Review Of Right To Information Legislation

The standing committee recognizes the unique circumstances in the NWT and that difficulties may occur in the implementation of right to information legislation that cannot be anticipated at this time. A right to information bill should include a requirement that the legislation be reviewed by a committee of the Legislative Assembly after a period of time, such as three or four years, to ensure that the legislation is effective.

Access Provisions

In accordance with the previously outlined principles, the Standing Committee on Legislation takes the position that members of the public must have the general right to request and receive access to government records.

However, the standing committee recognizes, as well, that there are certain types of information which should not be available to the public, for various reasons.

The Members of the standing committee believe strongly that access legislation should be designed to first protect the right of access, with only such exemptions as are clearly set out in legislation. This approach is in contract to the more limited legislative design which allows public access only to specified types of government information.

Mandatory/Discretionary Exemptions

The standing committee was of the opinion that exemptions to the right of access to information should in most cases be discretionary, so that the government would be allowed to disclose information in appropriate circumstances, even though the criteria authorizing a denial of access were met. This design would allow for the greater amount of public access, without arbitrary restrictions.

Duty To Sever

The standing committee was of the opinion that right to information legislation should impose a duty upon government bodies to disclose as much of the information requested as possible. The government body should be required to disclose any information which can reasonably be severed from those portions which are subject to an exemption.

Public Interest Override

The standing committee is of the opinion that, in matters concerning significant risks to public health, public safety or the environment, "overrides" to exemptions from disclosure are warranted. Overrides should allow disclosure of information in cases where a compelling public interest in disclosure clearly outweighs the purpose of the exemption. As well, in certain circumstances, where the risk to the public warrants, the government body should be required to disclose information of a hazard even though no request has been made.

Exemptions To The Right Of Access

The Standing Committee on Legislation spent considerable time studying the types of information which should be exempt from the right of public access. Where other considerations outweigh the principle of the right of access, exemptions should be limited and specific.

Personal Information

The standing committee is of the opinion the right to information legislation must respect individual privacy. In general, personal information should be subject to mandatory exemption from disclosure to anyone other than the person to whom it relates.

Third Party Commercial Information

The standing committee recognizes that the interest of third parties may justify a refusal of disclosure of information. Right to information legislation should provide a mandatory exemption from disclosure for private commercial information supplied to the government by a third party, where harm would be reasonably likely to result from disclosure.

Law Enforcements And Legal Proceedings

The Standing Committee on Legislation is of the opinion that a government body might properly refuse to disclose a record where the disclosure would be reasonably expected to have an adverse impact on the enforcement of the law, or the conduct of legal proceedings. For instance, if a public body was in possession of a record which would interfere with an ongoing RCMP investigation if disclosed, or jeopardize the security of a correctional institution, it could be exempt from disclosure.

Information Harmful To Individual Or Public Safety

The standing committee is of the opinion that the refusal to disclose government information might also be justified where the disclosure might reasonably be expected to result in immediate and grave harm to an individual's mental or physical health or interfere with public safety.

Intergovernmental Information And Relations

Right to information legislation should also provide a discretionary exemption allowing the government to refuse to disclose information that might reasonably be expected to harm intergovernmental relations or negotiations, or to disclose information received in confidence from another government. This could also include information that would damage the financial interests of the government or interfere with the management of the economy.

Cabinet Records And Policy Advice

The standing committee recognizes that some protection of the deliberations of Cabinet can be justified. However, the committee heard concerns from the public that such an exemption may be applied too broadly.

The committee was concerned that factual information should not be automatically exempt from the disclosure simply on the basis that it was presented to Cabinet. Factual materials should be available for disclosure in accordance with the concept of severability.

Protection Of Privacy

The Standing Committee on Legislation concludes that comprehensive provisions for the protection of privacy must be an integral part of any right to information legislation. Such provisions would protect the privacy of individuals with respect to personal information held about themselves by government bodies, and would provide individuals with a right to access and request correction of that information.

Privacy components of right to information legislation should allow individuals to obtain access to personal information about themselves which is under the control of government bodies, subject only to specific legislative exemptions. Access to personal information should generally be granted only to a person to whom the information relates.

The standing committee was also of the opinion that the right to request the correction of personal information is an important component of right to information legislation.

The standing committee considered this right to be essential because of the significance that personal information has for the ways in which government institutions deal with individuals in a wide variety of situations. Incorrect personal information can have serious consequences for an individual in his or her dealings with an institution, for example, in relation to his or her entitlement to social benefits or suitability for government employment or contracts.

Where the institution refuses to make a requested correction, the legislation should provide that the individual has the right to make a notation to the file, to show the nature of the request and of the objection to the information.

Although this issue was not addressed specifically in the legislative action paper, the standing committee also concluded that in the interest of protecting personal privacy the legislation should restrict the government's freedom to collect, use and disclose personal information. Personal information should be collected only from the individual concerned except in limited situations.

The collection of personal information should be limited to the extent that it is necessary for the proper administration of the programs or responsibilities of the government body. Government bodies should be required to take reasonable care that information that is current and accurate, and should be able to use the information only for the purpose for which it was obtained, or related purposes. Clear restrictions on the disclosure of personal information should be placed on government bodies.

Individuals should enjoy the right to privacy with respect to personal information held about them by government bodies. Generally, personal information should be disclosed only to the individuals about whom it relates.

Community Access

Several individuals and organizations gave the clear message to the Standing Committee on Legislation that many residents in the communities of the Northwest Territories do not perceive the Government of the Northwest Territories to be understandable and accessible. Many presenters supported the concept of right to information legislation, but stressed that there must be a community focused model to enable all individuals to exercise their rights under the legislation.

The standing committee takes the position that right to information legislation must provide a framework for assistance with information requests at the community level. The committee cannot support the suggestion that government liaison offices, or other government employees, be automatically given this role. In many areas the committee was told that in order for the government's efforts to institute a right to government information to be credible, an individual who receives the support of the community must be given the role of "advocate" or "helper" to assist individuals with the preparation and submission of information requests, and to assist when the government response is not adequate. In many communities, it is crucial that this "advocate" not be associated with government. The committee holds the opinion that the communities should be consulted for their views as to the most appropriate vehicle for them.

Where a community person is chosen, the committee recognizes that the work of the "advocate" in assisting with information requests may be sporadic. However, the committee was of the view that a reasonable approach would be to contract local individuals on a fee for service basis, to perform services as required. The committee notes that the need for an independent advocate was stressed particularly strongly by the public with respect to access to a future ombudsman office, and is of the view that the role of the community advocate could be designed to facilitate public access both to government information and to future ombudsman services.

Fees

The standing committee received submissions with divergent views on the question of whether fees should be charged for the provision of access to government information. Members were concerned that the right of access to information should not be accorded only to those with the means to afford it, and wished to affirm the principle that access to information is a public right.

The committee is of the opinion that fees should not be charged by government bodies for access to the requester's own personal information. In the view of the standing committee, fees should not be charged on the basis of the time required to fulfil a public service in searching for a government document. A small administration fee, and charges to cover photocopying costs may be justified. The committee is of the opinion that where access is refused on the basis of an exemption in the statute, no fees should be charged.

Review Of Denial Of Request

The Standing Committee on Legislation deliberated extensively on the issue of the appeal of refusals by government bodies to grant access to requested information.

The standing committee is of the opinion that the review officer must be appointed by and responsible to the Legislative Assembly.

The standing committee devoted considerable attention to this issue, but is unable to present one specific alternative as a model selected by the committee.

The standing committee did, however, come to the conclusion that the government should give serious consideration to three options. The committee sees merit in the approach whereby an official, often called an "information commissioner" is given broad powers to investigate and review denials of access to information, and to order a government body to produce information. However, the standing committee recognizes that the power to order government action would not be compatible with the role of an ombudsman, should ombudsman legislation be passed.

The standing committee considered a second approach, which would institute a review officer with powers compatible with those of an ombudsman, to recommend government action. Where the government continues to refuse disclosure, or where the ombudsman recommends that the information not be disclosed, the individual would still be entitled to appeal in court.

The standing committee also considered a third approach which is not a model used in other jurisdictions. The committee recognizes the desire of the government to contain costs, and is aware that the services of a review officer under the legislation may not be required on a frequent basis.

The committee considered an alternative whereby the Legislative Assembly would appoint a panel to screen requests from applicants for the review of decisions of government to deny access to information. The panel might be authorized to appoint an ad hoc information commissioner where appropriate, who could fully investigate and rule on the request for information.

Under this scheme, the decisions of the panel and of the information commissioner would be final, subject to court review on administrative law principles. The committee is of the opinion that this model, or a similar one, might be given consideration by the government an option to the traditional, southern approaches.

That ends my section and I ask Mr. Whitford to continue, Mr. Chairman. Thank you.

Mr. Whitford.

An Ombudsman Proposal For The Northwest Territories

Thank you. The motion is in order. To the motion.

Question.