Information & Ethics Committee on Nov. 3rd, 2009

[Suzanne Legault]

That's correct.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Okay.

Regarding your exemptions, exclusions, cited under refusal complaints, they're against the CRA, National Defence, CBC, etc. I see that different sections are referred to. I'm assuming that is what they're excluded or exempted under--statutory provisions, international affairs or defence, CBC exclusion....

Let's look at that one in particular. What's a “CBC exclusion”?

[Suzanne Legault]

There is a new provision under the legislation that came into effect in 2006 under the Federal Accountability Act. It deals specifically with information that is under the control of the Canadian Broadcasting Corporation. It's section 68.1 of the act, which excludes from the application of the act information in relation to the programming, creative material, and journalistic sources of the Canadian Broadcasting Corporation.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Thank you.

[The Chair, Liberal, Paul Szabo]

Thank you, Madam Davidson.

And that was a very good line of questioning; good for you.

We move on to round two.

Mr. Wrzesnewskyj, five minutes.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you, Chair.

Thank you for that clarification that the methodology in your tabulation has changed as of this fiscal year only.

The data we have here are similar in nature, so if we look at complaints against PCO in 2006-07—I did use percentages—they were 6.5%, and once again, if we exclude crown corporations, they've gone up to 11.6%. So it's a doubling. And there's a clear trend here that coincides with what I believe are new approaches to dealing with these matters.

Now, I had finished off my last round by noting that we've gone from 30 days to 60 days to 150, 250, 300 days for requests, and when people call to find out what's going on, most often the response is that it's in PCO consultation. So they're actually the gatekeepers on this information.

We also have this new innovation that they send out notes to the requesters saying that it's been such a long time—in some cases, I guess, a year—and asking if it's still of relevance, encouraging people to drop these particular cases.

Does this disturb you, the trend in terms of the number of times PCO blocks access to information citing cabinet confidences, the trend of journalists or members of Parliament giving up on the system, this new innovation and being told that it's in PCO consultation?

What do you make of it? Do you find this disturbing?

[Suzanne Legault]

Mr. Chairman, I find the whole consultation process under the Access to Information Act probably the most disturbing aspect of the regime currently.

There are several departments for which the Treasury Board Secretariat actually states there should be mandatory consultations. It's not just the Privy Council Office; there is anything having to do with law enforcement, so we're dealing with the RCMP. There's also anything having to do with international relations, so we have DFAIT and DND.

As I said before, there is no timeline at all in the legislation for consultations. So there is very little measure of how long these consultations are. They're not measured in the statistics that are collected by the Treasury Board Secretariat. We have only a small sample of those that come to us as complaints.

We do know from experience that the consultations are very long in certain respects. Cabinet confidences consultations are very long. Anything having to do with consultations on international relations takes a long time. So because there's no measure, there's also no accountability, and as I stated before, the consulted department has no responsibility or accountability under the current legislation or under the current administrative regime.

So because of that, there is probably excess in relation to consultations right now, and because these are core departments on very important issues for Canadians, that has a widespread systemic and negative effect on access to information.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you.

You provided a pie chart showing types of complaints against PCO for 2008-09. The vast majority, 41%, were cited as being cabinet confidences; that was the excuse provided.

If we were to look at previous years, has that proportion increased or decreased?

The reason I am asking is we've seen a doubling of complaints against the PCO since the Conservative government has come into power. We see that in this one year, cabinet confidences as the excuse given by PCO are the root cause of the vast majority of the complaints. Has the pie chart changed in its slicing? Did cabinet confidences always account for 40%? As we've seen this doubling, have we also seen a proportionate increase in the citation of cabinet confidences?

[Suzanne Legault]

I don't know this, Mr. Chairman.

I'm going to ask Ms. Neill if she has this information.

[Andrea Neill, Assistant Commissioner, Complaints Resolution and Compliance, Office of the Information Commissioner of Canada]

Thank you for the question.

I don't have that specific information. What we do keep track of is the total number of complaints that relate to cabinet confidence exclusion. We can have anywhere from 2% to 4% of our entire number of complaints on the issue of cabinet confidences.

[The Chair, Liberal, Paul Szabo]

Thank you very much.

Mr. Dechert.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

Good morning, Ms. Legault. I'd like to thank you for your report and your staff for all their hard work in preparing it.

I notice on page 31 of your report that you refer to the government's ending of the CAIRS system, and that you will be describing your investigations on this matter in your next report. This is something that I've been interested in for a while.

There was an interesting article published in the Toronto Star by a reporter named Ann Rees, who is actually an academic herself, entitled “Red File Alert: Public Access at Risk”. It was dated November 1, 2003. It talked about the CAIRS system and the amber lighting that happened when certain requests came from the media or members of Parliament.

It refers to and records the comments of Professor Alasdair Roberts, whom I'm sure you're familiar with. He's a law professor and a well-regarded expert in the area of access to information. He said that no other country in the world maintains a database like CAIRS. He went on to note that, “CAIRS is the product of a political system in which centralized control is an obsession.”

That was under the previous government.

I appreciate Mr. Wrzesnewskyj's line of questions regarding requests to PCO.

Former Information Commissioner John Reid was also quoted in that same article:

“What we are seeing,” he says, “is a greater use of the time-delay factors that are built into the act: 'We can't do it in 30 days, we need 90 days.' “I have now instigated a study to find out whether there is anything going on at all.” Delays are the order of the day for Red File requests to the Privy Council Office, which handles requests for information involving the Prime Minister and his staff.

I'm a little confused about the difference between a red file and an amber light. Anyway, he went on to say that

Records of all PCO requests completed last year show one out of every four media requests--14 of 58 requests--were tagged for further review. The average time to process these requests was eight months.

That would have been in 2002, I assume.

That's pretty interesting. It sounds like there has been a great delay coming from the Prime Minister's Office for a lot of years.

Have you studied Professor Roberts' analysis in your review of the CAIRS system? Are you revealing what he's written on that system and what took place before and during 2003?

[Suzanne Legault]

I must say that we have an active complaint in relation to CAIRS. We are in the process of investigating these complaints, but they're not completed. It's part of our review. In our office, there have been two other instances of complaints in relation to the CAIRS system. Our office reviewed all of this information. It's true that at the onset the CAIRS system was being used to develop a centralized view of complex cases. It raised different types of issues, and it was criticized for this.

In recent years, the CAIRS system has actually morphed into a new use. It became useful for requesters, who took the information collected in CAIRS, which they gathered through access to information requests, and used it as a central database. David McKie collected this information and created the database. Now Michael Geist at the University of Ottawa has done the same thing. In fact, the CAIRS system has evolved over the years from a government tool to a requester's tool.

When we were consulted about the discontinuance of CAIRS, our office took the public position that CAIRS should be continued until a better or newer process was available, even though we were aware of some issues with the technology underlying CAIRS. Indeed, CAIRS has evolved into a tool for requesters, as opposed to a tool for government.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Are you aware that Information Commissioner Reid had a concern that CAIRS was being used by the Prime Minister's Office of the day to slow down the response to requests from media and MPs? Are you aware of that?

[Suzanne Legault]

Yes, I'm aware of that, Mr. Chairman. I'm also aware of the fact that indeed the OIC, under Commissioner Reid's tenure, did make recommendations for the CAIRS system to be made available on a web-based system.

Indeed, Mr. Reid's position must have evolved, because the OIC, under his tenure, took the position that CAIRS should be available on a web-based system to all users.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Will you be talking to Professor Roberts about his views in the course of your investigation?

[Suzanne Legault]

I'm very familiar with Professor Roberts' views. In fact, when CAIRS was discontinued, Mr. Roberts, as I recall, was interviewed in the media.

So I'm aware of his position on the CAIRS file.

[The Chair, Liberal, Paul Szabo]

Thank you.

I can come back to you if we have time later.

Monsieur Dorion, s'il vous plaît. Tu as la parole.

[Jean Dorion, Bloc, Longueuil—Pierre-Boucher, QC]

Thank you for being with us today, Ms. Legault, Ms. Campbell and Ms. Neill. You are certainly to be congratulated on your testimony, Ms. Legault. It was a very fine illustration of independent thinking, the kind of independence that anyone in your position should in fact demonstrate. That same freedom of thought is found in Mr. Marleau's report, in particular where he says:

Still, much more is needed to bring about a true culture of openness and transparency, and allow Canada to regain its status as a leader in the area of access to information.

This means that there has been negative progress in recent years. It is natural that a public service will to some extent tend not to be very open, given that it wants to protect itself against the judgments that might be made of some of its decisions. The public service has not really changed, but the government has changed. When we see that government policies relating to obtaining information are regressing, we may well wonder.

In your testimony, you said that a percentage of access requests were slowed down because of the time for analysis and approval required by Privy Council. Is that correct?

[Suzanne Legault]

I said, regarding Cabinet confidences, that it was like the other consultation processes, for national defence or security. There is no incentive in the Act and we find that there are huge excesses when it comes to consultation. Regarding Cabinet confidences, it applies not only to Privy Council, but also to the other departments where there are mandatory consultations.

[Jean Dorion, Bloc, Longueuil—Pierre-Boucher, QC]

In percentage terms, how many requests are submitted to Cabinet or Privy Council for mandatory consultation?

[Suzanne Legault]

I don't have the numbers. Those statistics are collected by Treasury Board Secretariat, or could be. You would have to ask it.

[Jean Dorion, Bloc, Longueuil—Pierre-Boucher, QC]

Do you have the impression it is a large proportion?

[Suzanne Legault]

Have of the complaints we receive are administrative. For example, out of 2,000 complaints, 50% were administrative, last year. Within that 50%, about 40% related to time extensions. So about 400 complaints out of the 2,000 we received last year related to time, including the time for consultations.

[Jean Dorion, Bloc, Longueuil—Pierre-Boucher, QC]

Are consultations one cause among several or a very important cause, in your opinion? What does that represent in terms of quantity?