Information & Ethics Committee on May 13th, 2009

[The Chair, Liberal, Paul Szabo]

I call this meeting to order.

This is meeting number 21 of the Standing Committee on Access to Information, Privacy and Ethics. Our order of the day is, pursuant to Standing Order 81(4), main estimates for the years 2009 and 2010, vote 40 under Justice, referred to the committee on Thursday, February 26, 2009.

Our witness today from the Office of the Information Commissioner of Canada is the commissioner himself, Mr. Robert Marleau; and we have the assistant commissioner of policy, communications and operations, Suzanne Legault, too.

Welcome to both of you. It's good to see you.

We understand, Mr. Marleau, that you have a presentation and additional information that you'd like to share with the committee. I know the committee will be anxious to discuss and ask questions on your presentation and of your proposed estimates.

Please proceed.

[Robert Marleau, Information Commissioner, Office of the Information Commissioner of Canada]

Thank you, Mr. Chairman. I have a brief opening statement.

Thank you, Mr. Chairman, for inviting me to appear before this committee once again. As you mentioned, with me is Suzanne Legault, Assistant Commissioner, Policy, Communications and Operations.

I am here today to discuss my Office's main estimates for 2009-1010. I know members of this committee are very interested in the legislative reform of the Access to Information Act, and rightly so. I will be back before this committee on May 27 to discuss this matter with you.

Over the last two years, I have made profound institutional changes to address inherent weaknesses that were limiting our ability to do our job. My actions sought to ensure diligent and effective stewardship of the office's operations, with the overarching goal to do everything within my mandate to ensure that individuals' rights under the Access to Information Act are safeguarded.

Our progress has been made in a number of areas, and there continues to be a capacity shortfall in key functions. The office undertook a comprehensive review of our operations and funding levels in 2008 and 2009. You may remember I referred to it in earlier presentations as the A-base review. The purpose was to determine whether we had sufficient resources to be able to deliver on our mandate.

Mr. Chairman, the office currently has an annual budget of $8.505 million and 82 full-time employees. In light of the conclusions of the A-base review, we submitted a request for additional funding to the advisory panel on the funding and oversight of officers of Parliament in March 2009 in a submission to the Treasury Board. This request is not reflected in the 2009-10 planned spending. Hopefully we will obtain this additional funding through the supplementary estimates process.

In order to cause greater compliance with access to information obligations, there are specific priority areas we feel we need to focus on in 2009-2010.

We want to continue to put significant efforts into service delivery to information requesters. In order to do so, I've developed a new business model with three specific objectives in mind.

First, I want to improve the effectiveness and the timeliness of the operations to eliminate the case inventory—translation backlog—and prevent it from coming back. We did this through the establishment of a new intake unit, which takes care of the administrative aspects of complaints so that investigators can focus on investigations.

Second, I want to adopt a strategic and proactive approach to addressing systemic issues in order to improve compliance with the act and to provide a better picture of the state of the access regime. This includes continuing to undertake our annual performance assessments, also known as report cards, identifying emerging problems and their root causes and investigating crosscutting issues.

Third, I want to use a spectrum of tools to support our investigative and systemic actions to maximize compliance in a context of limited resources, from collaboration to mediation, to the full range of tools, including the adversarial tools that are at our disposal.

In my last appearance before you, I talked a lot about the need to bring in legislative as well as administrative changes to modernize the Act. Obviously, this is a priority for my Office. As I said earlier, I am looking forward to discussing this matter on May 27.

There are operational priorities. These are our operational priorities, but we also have management priorities. We are building our organizational capacity to deliver services to Parliament by strengthening investigative support and administrative and corporate capabilities. We will achieve this by putting the emphasis on recruiting, training, and retaining our resources.

We're also implementing a multi-year and in-depth IM/IT renewal strategy in order to support our new business model, which will provide much-needed assistance to our investigators and deliver on our relatively new ATIP responsibilities.

Finally, we will continue to streamline and integrate our planning of reporting instruments, including management, business, and corporate planning and reporting, so that we can better align them together and ensure strong performance management and measurement.

As you can see, there is much to be accomplished this year by my team. I am very much energized by the progress we're making with our business model.

Thank you again for inviting me. The two of us would be pleased to answer any questions you may have.

[The Chair, Liberal, Paul Szabo]

Thank you, Commissioner. We appreciate the brevity of the presentation.

We'll go right to questions from the members.

Madam Simson, please.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Thank you, Chair.

Thank you, Mr. Marleau, for appearing before the committee again today.

With respect to the estimates, you mentioned in your opening statement that you wanted to adopt a strategic and proactive approach to addressing systemic issues to improve your department. One overarching issue that I saw, which was alluded to in previous appearances and in fact throughout this by the various commissioners, is the issue of personnel, of human resources.

It seems to me that they all had basically the same commentary: based on the size of the office and the fact that advancement wasn't as likely in a small office as in a larger department, staffing issues were an ongoing concern. In fact, one commissioner's office underspent their human resources budget by almost a million dollars because of it.

Would you not see that as quite a systemic problem within your department as well?

[Robert Marleau]

For any small organization of 82 employees, by the time you distribute the various competency profiles of roles, obviously there is somewhat limited mobility in terms of rotation and promotion. That's a challenge, but it is one that we've addressed, particularly this year, and we haven't lapsed funds, or very much funding, in terms of salaries this year.

We tried to be quite aggressive, actually, at filling our positions. Where they weren't filled on a permanent basis, they were filled with contractors, because we're dealing with the backlog.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Exactly, and the backlog is actually a function of perhaps being understaffed from time to time. I was only pointing at another commission. You know, a million dollars in human resources....

Your plan is for 82 full-time employees. How many of those positions are currently filled? Do you have any idea?

[Robert Marleau]

I have to say that we were just looking at figures for the investigator complement. There are 59 employees in the program function, that is, management and investigators devoted to investigations of systemic issues. The balance of 23 are in support, operational, finance, and human resources.

On the investigative side, we're almost fully staffed. If I recall the figure, we're talking about 37 investigators--

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Out of 59?

[Robert Marleau]

Yes, out of 59. Twenty-seven are full-time. Ten are currently on contract. We're developing a strategy with Public Works Canada to have a standing offer for staffing from the Public Service.

Also, we've changed our competency profile. Prior to my arrival in the OIC, the recruiting was really knowledge-based. You had to know about the act, its application, and its jurisprudence. We have now changed this to broader competencies so that we can recruit from different communities who can come in and learn the act, such as auditors and investigators in other disciplines. We've broadened the competency field and we're getting some success in recruiting.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

You do allude to how you're going to have emphasis on recruiting, training, and retaining resources. I assume that's human resources.

You've mentioned the public sector. Perhaps I was naive while listening to the testimony of various commissioners. They have an ongoing problem with filling positions. They have a large number of vacancies, which just seemed rather bizarre to me given the economic environment in Canada and the fact that there are so many unemployed.

You say you're going to recruit from the public sector. Is that the only place? Would it not make sense, perhaps, to be looking for people outside that area who have a skill set and an educational background such that they could be trained? Maybe the turnover would be quite a bit less.

[Robert Marleau]

We don't limit our recruitment strategy just to the public sector. There are, for instance—

[Michelle Simson, Liberal, Scarborough Southwest, ON]

How many times would you be looking at the public sector vis-à-vis the private sector?

[Robert Marleau]

In our case, these would be rather small numbers, if you like, because of the number of recruiting initiatives that are made. But I throw into “outside the public sector” such things as the RCMP, the military. We've had a few recruits who had just come from there. They don't qualify under the Public Service Commission Act, if you like—they're under their own act—but it's not quite the private sector.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

No, it wouldn't be the private sector.

Would it be safe to say that perhaps one of the reasons some of the smaller offices don't go to the private sector is that it's labour intensive to go through resumés and various applications from outside the public sector? Would that be a fair statement?

[Robert Marleau]

I can't speak for others. I can tell you that in my case it's not an issue. In fact, we're recruiting two from the private sector. We have two graduates who have qualified out of university, pending security clearances. So in terms of coming from the private sector, here are two young entrants who will be coming from outside.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Thank you.

[The Chair, Liberal, Paul Szabo]

Thank you kindly.

Mrs. Thi Lac.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Good day, Mr. Marleau, Ms. Legault. Thank you for agreeing to appear again before the committee.

You have presented us with a summary of your caseload from 2006-2007 to 2008-2009. I note that the number of complaints has increased compared to the previous year. In 2006-2007, your Office received approximately 1,450 complaints, while the number almost doubled the following year. The same is true of the number of complaints pending.

We also see that several complaints were discontinued in 2006-2007 and in 2008-2009. However, on the following page, we see that 290 complaints registered by a single person were discontinued, Perhaps that explains the difference between the two years. How can a single person register 290 complaints, and what was the nature of these complaints?

According to the table, no complaints were closed during 2008-2009. In 2006-2007, 579 complaints were closed, while in 2007-2008 237 complaints were closed. I'd like you to explain these figures to me.

[Robert Marleau]

Thank you for your question.

Mr. Chair, during my previous appearances, we informed the committee that further to the adoption of amendments to the act and to the broadening of the scope of section 69 respecting new institutions, the number of complaints registered with the Office rose sharply after April 1, 2007. That would explain the increase in the number of complaints carried over from the previous year.

I want to draw your attention to the total number of complaints closed. The progress that we have made is also noted. Each year, the number of complaints closed increased: from 1,268 in 2006-2007 to 1,770 in 2008-2009.

The second page contains a schematic diagram showing the number of complaints registered monthly. You will note that beginning in November 2008, the curve starts to level out somewhat. This shows that we are making considerable progress in controlling complaints at intake.

To answer your specific question about the number of complaints closed or the number of Commissioner-initiated complaints in 2008, in fact there were none. Two Commissioner-initiated complaints are currently being reviewed and the investigations are ongoing. The 237 complaints that were closed in 2007-2008 were registered by a single person. All of them were closed at the complainant's behest.

The 290 complaints discontinued by the complainant can be attributed in part to the new business plan developed by our Office. We meet with complainants who have initiated the highest number of complaints, those that make up our case inventory or backlog. We reviewed the complainant's file with him when the number of complaints exceeded 200 in total. This particular complainant was very cooperative and agreed to discontinue certain complaints for a variety of reasons, such as he already had the information or the information was no longer current. This way of dealing with complainants is more proactive and is aimed at reducing backlogs and controlling complaints at intake.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

I have another question about the last table on page 4 which deals with Cabinet confidence complaints. We see here that 150 complaints were registered, but that only 3% of them were resolved. Of the total number of complaints, 36% were not substantiated, while 61% were discontinued.

My eye was drawn to this table. Is this legislation too restrictive? Does it allow persons to access Cabinet confidence documents? With a resolution rate of only 3%, the numbers are clearly lower in this instance than they are for the other categories.

[Robert Marleau]

It comes down to semantics. You can add the figure of 3% of complaints settled to the figure of 36% that applies to unsubstantiated complaints. Overall, 36% of complaints involving the Privy Council Office which were investigated by our Office were unsubstantiated. So then, the actual number of complaints that have been settled is around 39%.

The asterisk is very important this year. The schematic diagram will be different next year. In the past, twice as many complaints about subsection 69(1) respecting Cabinet confidences were received by our Office. They were registered, during the consultation process, as complaints against the Privy Council Office and against the department in question. This year, as part of the process of rationalizing the new business model, we noted that these complaints were counted twice and that the numbers did not accurately reflect the number involving the Privy Council Office. We looked at all of the files and agreed with the Privy Council Office to set aside 61% of them.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

You're saying that the majority of complaints were referred to another...because they had been counted twice and others were investigating...

[Robert Marleau]

Thirty-nine per cent of the complaints investigated were handled by our Office this year, 3% were resolved and 3% were deemed not substantiated. The remaining complaints were discontinued. Quite possibly, they are included in the list of other investigations that appears on the following page.

[The Chair, Liberal, Paul Szabo]

Thank you. I'm sure you'll have more chances in the next round.

Mr. Siksay, please.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Thank you, Chair.

Thank you for coming back, Commissioner and Madam Legault.

Commissioner, in your opening remarks today, you talked about the process you go through for obtaining funding for your work. I know I'm going to get it one of these days, but I'm going to keep asking the question until I can remember. Can you just generally go over how that budgeting process works for the Office of the Information Commissioner?