Information & Ethics Committee on March 4th, 2009

[The Chair, Liberal, Paul Szabo]

Order, please.

This is the seventh meeting of the Standing Committee on Access to Information, Privacy and Ethics. Pursuant to Standing Order 108(2), today we have before us the Office of the Information Commissioner of Canada. We have the Information Commissioner, Mr. Robert Marleau; Andrea Neill, assistant commissioner, complaints resolution and compliance; and Suzanne Legault, assistant commissioner, policy, communications and operations.

Welcome to you all.

Colleagues, just to clarify how we might proceed here, as you know, the Information Commissioner was invited, along with the other commissioners, to come before us with regard to their annual report, and to brief us on matters of urgency for our attention. Last week, you also know, the commissioner tabled a report card on ten departments. The information has been circulated to you all, and we hope to be able to address both, but maybe concentrate first of all on the commission itself, the act, and some of the priorities. Then maybe we can get into the report more specifically.

I can also report to you that after discussion with other members, the commissioner has agreed to reappear before this committee next Monday to more fully receive our questions and concerns with regard to recommendations for improvement of the act pursuant to that report, and to consider other matters related to improving the whole regime of access to information.

So we do have some work we're going to proceed with here. I've asked the clerk to make inquiries of the availability of the Minister of Justice, who is the minister responsible for the Access to Information Act. I've also asked Mr. Marleau to consider making recommendations to us on whether there may be two or three witnesses who may be helpful, people who are very much up to date on the current status of access legislation in other jurisdictions and assessment of the condition of our current act and our situation.

That said, we certainly appreciate the opportunity, Mr. Commissioner, to hear from you, as this committee has not, since 2006, had an opportunity to address specifically any of the concerns or recommendations from the commissioner's office due to other work. We make that commitment now and we welcome you here.

I understand you have opening comments, so why don't we proceed with that so we can get on with our work.

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

Thank you very much, Mr. Chairman.

I must say I'm delighted to be back among you today to tell you what my office has been working on and outline our priorities for what I believe is going to be a very busy and eventful year for all of us.

As you mentioned in your opening remarks, I'm accompanied today by Suzanne Legault and Andrea Neill.

These are exciting times for access to information. Two bills have been tabled in the House of Commons and there is a recommendation from this committee for the government to introduce a bill to modernize and strengthen the Access to Information Act by May 31 of this year.

These recent developments tell me that we have reached a pivotal moment in the access to information regime.

I believe the committee wanted to discuss the issue of resources as well as the measures I put in place to significantly reduce our backlog. I'll also outline some of the issues that I believe require the committee's attention in the coming months.

I've distributed two documents. One provides some background information on my office, and the other provides our recommendations on modernizing the act.

Last year one of our priorities was to begin a renewal process to improve the effectiveness of our service delivery. This year this work continued in full force and will remain a major priority for the office.

In 2007-08 we saw the number of complaints we received increase by 81%, and as a result, our backlog has continued to grow. In order to reduce this historical backlog and conduct more timely investigations, we've introduced some new initiatives to strengthen and streamline the complaint-handling process and better manage our workload. These include the creation of an intake and early resolution unit as a pilot project, and a new separate team that is focused on tackling all of our older cases. Our goal continues to be to eliminate or significantly reduce the current backlog by the end of next year. We'll also want to prevent the recurrence of such a backlog.

I'm happy to report that already we are seeing promising improvements in our complaint-handling process and response time, but I'll be in a better position to attest to this at the end of this fiscal year, as some of these measures have been put in place only in the last few months. We'll continue to test our new workload management model and make necessary adjustments to keep us on track.

Mr. Chairman, the last time I was here, I indicated that one of our priorities was to review our approach to the report cards to ensure that contextual elements that may affect the performance of selected institutions are taken into account.

This year, we have come up with a new process that allowed us to examine the performance of institutions and provide a broader picture of institutional compliance with the act.

As you mentioned, a few days ago I tabled my special report on the performance of federal institutions to Parliament. The results provide a grim picture of the federal government's access to information regime.

The most significant finding indicates that requesters are right to be frustrated by the system. The 30-day period has indeed become the exception rather than the norm, and quite frankly it is just not acceptable. The prevalence of extensions and consultation requests have significantly slowed down the treatment of requests, to the point that some institutions take an average of 120 days to respond to requesters. As I have publicly stated, these are systemic problems; it's not just a departmental performance issue.

I firmly believe that central agencies, such as the Treasury Board Secretariat, have to exercise leadership to provide federal government departments with the resources they need to fulfill their obligations under the act. I also fundamentally believe that Canada needs a better compliance model for access to information, with adequate performance incentives.

As this committee has stated on numerous occasions, the need to modernize the legislative framework is urgent. The round-table discussions held by the Office of the Information Commissioner on the reform of the Access to Information Act, last June, demonstrated that the modernization of the ATIA is a priority for all.

Mr. Chairman, the document I'm providing to the committee contains a series of recommendations on this matter. It is the result of my reflection over the past year. For instance, I recommend the review of the legislation by Parliament every five years, universal access, a greater coverage of the act, and measures to improve timeliness, strengthen the compliance model, and improve public education. Although I support the open government act, which was developed by my predecessor, the recommendations outlined in this document should be implemented without further delay.

Mr. Chairman, should this committee decide to pursue legislative reform, rest assured that I and my office will make it our first priority to assist you in your deliberations.

Another issue I would like to briefly touch on is inherent weaknesses that are significantly limiting my ability to carry out my mandate and my new responsibilities stemming from the Federal Accountability Act.

I will be appearing before the Advisory Panel on the Funding and Oversight of Officers of Parliament on March 12 to discuss our financial requirements.

In order to address the resource issue, my office undertook an A-base review to identify what our needs are and how to make efficiency improvements to our operations. The review revealed a lack of capacity of my office to support the role of ombudsman and officer of Parliament.

Basically we need to obtain additional funding in order for my office to establish realistic resource levels and service standards based on the size and complexity of my program. We need these resources so we can put a greater focus on accountability, effective governance and oversight, and improve service delivery. Otherwise, my ability to deliver on my legislative mandate as well as the integrity of my office's program could be put in jeopardy.

In closing, Mr. Chairman, a stronger regime requires more than modernizing the legislative framework and administrative processes. It requires the leadership necessary to effect the cultural change required to lift the fog over access to information and create a real climate of openness. Your leadership is also required, to see that legislative reform becomes a reality.

It was Alvin Toffler who wrote Future Shock in 1970. You may remember he coined the phrase “information overload”, and he wrote the following: “Knowledge is the most democratic source of power.” You have a unique opportunity to bring about measures to modernize the access to information regime and bring it into the 21st century.

As I said earlier, I think this is going to be an interesting year for access to information. As you can see, there's lots of work to be done. With the appropriate resources and leadership, I'm confident we can meet these challenges.

Thank you for your attention and I look forward to your questions.

[The Chair, Liberal, Paul Szabo]

Thank you kindly, Commissioner.

I'm going to move right into the questions.

Mr. Wrzesnewskyj, please.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you.

Thank you, Commissioner, for appearing before us.

I was quite disturbed when towards the end you said there is a serious problem and, in your wording, “cultural change” is necessary. Does this mean that within our access to information system, the ATIP department, instead of a culture of openness and helpfulness when it comes to accessibility to public documents, you have the opposite? You have a situation where--

[The Chair, Liberal, Paul Szabo]

Order, please.

Pardon me. I believe we might have a problem with the translation.

Are we okay now?

Please proceed.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Instead of a culture of openness, we in fact are seeing the opposite.

[Robert Marleau]

Mr. Chairman, the report cards we tabled last week show that there is a greater use of extensions--that is, we are using more and more time in order to service the requesters.

There are probably many causes of that, but one is what I would call a culture that is disclosure-adverse. The first reflex in the system is to find reasons not to disclose or exemptions to apply. It should be the reverse. That certainly was the intent of the statute when it was first adopted in 1983.

It's not new. It's not recent. My predecessor called it a “culture of secrecy”. I don't like that term, because it implies a complicity and an organized effort to keep everything secret, and I don't think that's the case. But the reflex is not to transparency. It's to non-disclosure.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

I've also noted that you've written that there's been an 81% increase in the number of complaints over the last year. Are there any correlations that have caused this sort of rapid increase in the number of complaints?

[Robert Marleau]

Part of the increase in the number of complaints is due to the introduction of the Federal Accountability Act, which broadened the scope of the act. It introduced some 70 or more institutions under the purview of the statute. That's part of it, but not all of it.

There's definitely a net increase in disclosing less information. There's a net increase in applying more exemptions, as well as a trend, I think. If we take a six-year cycle, the number of requests is up approximately 35%, but the number of complaints is up over 140%. So when you want to pinpoint a cultural issue, I think those figures demonstrate that.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

You've provided a table that shows us the number of complaints and you've also provided a report card of ten different government departments. I notice that scraping the bottom of the barrel, I guess, we have the Royal Canadian Mounted Police with a below-average rating.

Do you have the categories or the types of complaints? Which of these departments generate the highest number of complaints, and of what type are they?

[Robert Marleau]

Those categories have just been published by the Treasury Board Secretariat in Info Source. The categories of complaints are not in there; there are figures that point to the volume of requests to the various departments. In terms of our categories of complaints that we've received in 2007-08, I'll turn to my assistant commissioner to break them down for you.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Prior to doing that, could we get a breakdown of the number of complaints by department in order to know which departments in particular are generating the largest number of complaints?

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

Yes, we can certainly do that. It's from last year's annual report, because we have a full year of data for that. It shows the top ten departments.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Who's the worst?

[Andrea Neill]

As far as received last year, we had--

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Or who are the three worst?

[Andrea Neill]

The top three are CBC--

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

The CBC?

[Andrea Neill]

The CBC became subject to the act on September 1, 2007, under the Federal Accountability Act. And they received hundreds of requests. We received hundreds of complaints.

The other two are the Department of National Defence, at about half that amount, 256, and the Privy Council Office at 239.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

The Privy Council Office.

[Andrea Neill]

Yes.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

At a time of tremendous concentration of power and people's worries about the concentration of power within the PMO and the PCO, they're also generating the largest volumes of complaints. What types of complaints were those? Were they delays? Or were they a combination of delays and material coming back?

I made an ATIP request, actually, and I was stunned, because of 49 pages, 47 came back blank. Is that the type of complaint we're getting in regard to the PCO?

[Andrea Neill]

Yes. It crosses the gamut, whether it's delays or refusals--and certainly the cabinet confidence complaints.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Have you had any complaints from employees within ATIP sections coming and complaining, whistleblowing one might say, about practices within the departments? And, specifically, have you heard any within the RCMP ATIP section?

[Robert Marleau]

Mr. Chairman, no, we had no whistleblowing types of approaches, nor any specific complaint about interference in their work.

We can tell you that, anecdotally, we get a lot of complaints about lack of resources and lack of training, and, to some degree, lack of giving priority to their work.