Information & Ethics Committee on Sept. 22nd, 2011

[The Chair, NDP, Nathan Cullen]

Good morning, everybody. Apologies for my lateness.

I want to welcome our guests. Because we've lost a few minutes already, I want to get started.

Welcome, Ms. Legault. You may begin your presentation.

[Suzanne Legault, Information Commissioner, Office of the Information Commissioner of Canada]

Good morning, Mr. Chair. Thank you.

Good morning to all the members.

Good morning. I'm very pleased to appear before you today as the committee starts its work on access to information, privacy, and ethics in this 41st Parliament.

You will find in the package that was distributed to you a number of documents that provide more information about my mandate, the accomplishments and priorities of my office, as well as a report and action plan related to a recent audit of our investigative processes. My opening remarks, unfortunately, are not finished being translated, so we will bring them to the committee a little bit later this afternoon.

Clearly this committee plays a crucial role in holding the government to account. You're vested with the responsibility of ensuring that the Canadian government's transparency agenda fulfills Canadians' needs and expectations for timely disclosure of valuable public sector information. Indeed, timely access to public sector information drives democracy and citizen engagement.

In an era of highly developed and ever-evolving information in communication technologies, it is the fluidity of public sector information that is key to competitiveness and socio-economic growth. That being said, it's important to remember that not all government information should be disclosed. As the Supreme Court of Canada stated last year:

Access to information in the hands of public institutions can increase transparency in government, contribute to an informed public, and enhance an open and democratic society. Some information in the hands of those institutions is, however, entitled to protection in order to prevent the impairment of those very principles and promote good governance.

It's a very delicate balancing act.

One of my responsibilities as Information Commissioner of Canada is to ensure that this right balance is struck. My annual report, tabled in June 2011, highlights the activities of my office in this endeavour.

The core of my mandate is to investigate complaints under the Access to Information Act. I am proud to report that we completed more than 2,000 cases for a second consecutive year.

We reduced by 8% the average time needed to complete investigations, and we further decreased our inventory at year-end by 11%. This success is due to a combination of efficiency gains, agile case management and collaboration with institutions. Overall, we can count on institutions' collaboration in resolving issues and implementing recommendations.

However, to deal with more complicated problems of non-compliance, I issued last year seven reports of findings with formal recommendations to heads of institutions. After the reports had been issued, three of these cases were ultimately resolved and the recommendations implemented. The four remaining cases are now before the courts.

I bring forward or intervene in legal proceedings when important principles of access legislation must be defended or clarified. This is the case with proceedings involving the Canadian Broadcasting Corporation and Canada Post Corporation.

To maximize compliance with the act, we must address the root causes of widespread or recurrent issues that adversely impact the timeliness and quantity of information disclosed. I take a systemic approach to assessing and investigating institutions' compliance. My goal is always to provide institutions, central agencies, and Parliament a thorough, fact-based diagnostic with specific and tailored solutions to guide efforts for improvements.

Last year, we implemented year two of our three-year plan for report cards and systemic investigations. The exercise included the assessment of a group of crown corporations and agents of Parliament that had recently come under the act. We followed up with 13 institutions that had performed poorly in previous assessments. Based on the data collected, we also launched a systemic investigation into the sources of delays, particularly mandatory consultations.

We are also investigating allegations of interference with the access to information process at Public Works and Government Services Canada.

In the current context of fiscal restraint, all institutions must seek more efficient ways to serve Canadians. This is why, upon taking office, I undertook a strategic planning process with my staff and key stakeholders to determine priorities and chart a roadmap for the first years of my term.

This plan will help us achieve significant outcomes in three key areas: exemplary service delivery; a well-governed workplace of choice; and a leading access to information regime.

To provide exemplary service, we will continue to refine our case management strategies while developing a comprehensive talent management framework. In this endeavour, we will build on the results from the audit of our investigative processes.

Mr. Chair, that is what I did last year as part of our internal auditing, in the wake of the incidents within the Office of the Public Sector Integrity Commissioner.

I commissioned an audit of my investigative function at the OIC, and I made sure that the criteria that the OAG had used to do its audit of the Integrity Commissioner's office was incorporated into the audit we conducted.

This morning, as part of the documents before you, I've tabled the results of this audit, which basically show that our investigative function conforms with our legislation. It made some recommendations, which we plan to incorporate into our action plan this fall.

Mr. Chairman, you can count on my continued support and advice to foster a leading access regime. I applaud the Canadian government for its commitment in the Speech from the Throne to ensuring that citizens, the private sector, and other partners have improved access to the workings of government through open data, open information, and open dialogue.

Minister Clement has taken the helm of the open government initiative, which notably includes an open information component that promises to take access to information closer to the digital age. I also welcome Minister Baird's commitment this week to having Canada join the multinational open government partnership. We will follow these government initiatives with great interest. In my view, they are key to embedding a culture of openness in federal institutions.

However, an open government initiative and a commitment to transparency must include a willingness to improve the efficiency of our access to information regime. In this area much work remains to be done. As reflected in Treasury Board statistics, over the past ten years there has been a steady decline in the timeliness and disclosure of information by federal institutions.

Current needs and expectations of Canadians require that we reverse this declining trend in timeliness and disclosure. I've committed to using all the powers and tools at my disposal to influence this outcome, starting with effective and timely investigations of complaints.

Mr. Chair, next year will mark the 30th anniversary of the Access to Information Act. I submit that the way forward must include the review and modernization of the act to bring our regime up to par with the most progressive international models. In preparation for this event, I have started an in-depth review of international benchmarking of our legislation to be in a position to advise Parliament of necessary amendments to the act.

To provide information about our work, I will be hosting the International Conference of Information Commissioners, which will be held in Canada for the first time, in collaboration with the Canadian Bar Association from October 3 to 5.

This forum will provide an excellent opportunity for commissioners, practitioners and advocates to exchange ideas for the advancement of access to information principles.

I am very excited to host this important event here in Ottawa. I invite you all to join the discussions, as we have an agreement with the Canadian Bar Association to allow all the committee members to attend the conference and some of the presentations.

In closing, I would like to acknowledge the hard work and unwavering dedication of my staff, to whom I owe much of our accomplishments.

I urge this committee to continue to advocate for more open government, for more timely and greater access to information.

Mr. Chair, I am now ready to answer any questions the members may have.

[The Chair, NDP, Nathan Cullen]

Thank you so much for your presentation.

Also, thank you for coming in on such short notice so well prepared.

I'll now turn it over to the official opposition for questions, for up to seven minutes.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you, Mr. Chair.

Thank you, Madame Legault, for being here. I was very heartened to listen to your discourse this morning, particularly your words in terms of the “crucial role” of defending the public interest, of ensuring accessibility and transparency: that it really is a cornerstone of accountable government. I want to commend your work as a commissioner in ensuring that there is accountability for the people of Canada, because without that accountability there is no ability to say that we are truly democratic.

I preface these remarks because this week we learned of a SLAPP suit that was brought against three civic organizations: Newspapers Canada, the Canadian Taxpayers Federation, and the B.C. Freedom of Information and Privacy Association, which asked our committee to look into the Access to Information Act and the possible failings of the information act after the RCMP failed to follow up on the case of Sébastien Togneri and his complicity in obstructing information requests. Now, I find this attempt to use legal SLAPP suits to tell citizens that they can't come to our committee, or to try to obstruct citizens from looking to a parliamentary committee to investigate something that's clearly a cornerstone of democracy, to be outrageous and a possible serious breach of our privilege as parliamentarians.

But I also want to comment on the fact that Mr. Togneri made a number of comments publicly about your work, wherein he accused you of “grandstanding” for the sake of publicity. He said he hoped that in the future your office will demonstrate a little bit of caution and understand the consequences of “grandstanding against a political staffer”. I mean, who is this guy? I have to ask you. These are serious allegations to make against someone in your position. What do you think of the kind of public attack Mr. Togneri has waged against your work and against the work of citizens' groups that are trying to get accountable government?

[Suzanne Legault]

Mr. Chair, I really do stand by my work. I stand by my office's work in the investigation that resulted in the special report to Parliament. Frankly, I am in the hands of parliamentarians to judge the work we did in this file. The special report provides ample details to explain exactly what we did and the results of the investigation. Aside from that, I have no comments on Mr. Togneri's stance or Mr. Togneri's lawyer's stance. That is really outside the purview of my actions.

Just so I can reassure the committee, I do conduct the investigations that I think appropriate, and I conduct myself objectively and fairly in conducting these investigations respecting my legislation. That's the assurance I can give this committee.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you very much for that.

I'm concerned. There has been talk in the public that the failure of the RCMP to follow up on this and in fact the failure of the RCMP to follow up on any attempt to destroy information, mislead the public, and interfere with investigations...that it's essentially created a black hole in ministerial offices. I think Vince Gogelek has said that it creates a class of people above the law who are able to interfere with information requests.

What recommendations would you make to our committee to ensure that everyone who works in government offices is accountable to the law and cannot interfere with access to information and destroy documents? Are there steps that we need to take to bring the law into compliance with the spirit of the act? How is this black hole being created?

[Suzanne Legault]

Mr. Chair, in the first investigation I made some recommendations for legislative changes that were directly linked to the experience we had in the first investigation.

The issue I have with making recommendations now is that I still have three other investigations that are ongoing that have similar allegations. The committee can rest assured that once I complete these investigations I will make recommendations as is appropriate in relation to the legislation and perhaps some of the gaps in the legislation at that time. I'm highly uncomfortable doing that now because the other three investigations are not completed, and those investigations will also inform my recommendations.

Clearly, what happened in the first investigation.... The provision that deals with an infraction under the act, section 67.1, was added to the act in 1999, and that was done by way of a private member's bill. As a result of that, there was actually no full review of the legislation to see if that specific amendment created other problems in the legislation.

One of the clear problems that it created and that became evident in the first investigation is that the section 67.1 provision talks about any person who—and I don't have my act with me—alters, falsifies, or destroys documents or conceals documents. But my ability to disclose information to the Attorney General is limited to people who are actually public servants. So there's a gap in the law. The provisions that allow me to share this information have actually not been amended, so in consequence—

[Charlie Angus, NDP, Timmins—James Bay, ON]

Just to clarify, are you saying that there's a difference between a public servant and a political staffer who has access to that information who might attempt to block it?

[Suzanne Legault]

According to my legislation, my ability to share the information certainly makes a difference. The provision that was added—we refer to 67.1 as the Beaumier amendment--talks about any person. There's no issue there. That's why I elected to make a recommendation to Minister Ambrose that she refer the matter to the RCMP. This case was very public and therefore it was possible that this was all in the public domain, so there was no issue with the minister making this recommendation.

In most instances, my investigations are done in private and confidentially. So if a minister decided not to refer to a matter, I might not be able to share this information. In that circumstance I would probably do another special report to Parliament so that Parliament could be apprised of that and I could use that mechanism.

[The Chair, NDP, Nathan Cullen]

Thank you very much, Mr. Angus.

[Charlie Angus, NDP, Timmins—James Bay, ON]

And you would simply shut down this investigation?

[The Chair, NDP, Nathan Cullen]

We'll continue that line of questioning.

We'll now move to Mr. Butt for up to seven minutes.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

Thank you very much, Mr. Chair.

Thank you, Ms. Legault, for being here. As a new member of Parliament, it's nice to meet you and know of the work that your office does.

When you were appointed, as I understand it, you made a commitment to maximize the effectiveness and the timeliness of the investigative function to fully meet the current needs and expectations of Canadians. Can you give us a little bit more detail on your progress on that and the timeliness of how you are dealing with requests that are coming through your office?

[Suzanne Legault]

Well, we're making some progress, but there is still a lot more work to be done, in my view.

It used to be that 50% of the complaints that would come in would be administrative complaints and 50% would be the more complex cases. Also, when I first arrived, we had about 1,600 cases that were very old. Out of the really old inventory, I now have about 99 left as of this morning. So we've really done a lot of work there. In terms of administrative files, I now carry over, as of today, only 14% of my inventory. So we've become a lot more effective at dealing with these simpler cases.

Where we have to do a lot more work is on the complex cases. What I've been doing this fall, and since the summer, is undertaking new strategies to deal with some key chunks of cases. For instance, I have over 300 cases with the Canada Revenue Agency, and we've been working with them diligently to try to become more efficient at dealing with these cases. They have few complainants as well. So we try to broker this to maximize the efficiency of the investigations. It was very effective the last fiscal year, and I'm going to continue that.

I also have in excess of 300 cases that we refer to as special delegation cases, which deal with national security and international relations. They're very difficult to deal with. As you can imagine, they're very sensitive files and I only have eight investigators who can look at those files. In my legislation, the number of folks who can do that is limited.

So what we're doing now is developing a strategy for these national security cases. I have a lawyer specifically dedicated to that, because these cases are more complex. We're going to train these folks better. We're going to have a more streamlined approach. We're going to be more formalized with the institutions as well, and hopefully we will start to move a lot faster.

It's the same thing with the priority files. I have about 100 cases out of 2,000 that are priority files. I have just hired a new lawyer, who is also going to be leading that group.

So these are two big pilot projects that I'm going to start in order to deal with the really complex cases, because dealing with those complex cases, to be very honest with you, generally still takes over a year, although we've made some headway and have reduced the timeline by about 8%. So in my view, there is still a long way to go to being where I would like to be, and we still have a large inventory. We've reduced the inventory of our cases that carry over from 2,500 to 1,800 at the beginning of this fiscal year. So we've reduced them by 700 in two years, which is significant. But I want to end up having about 700 carrying over, which would be a more manageable amount.

Those are the kinds of things we're doing. Aside from that, we also develop different strategies with various institutions and so on, depending on the types of cases we have.

CBC, of course, has over 300 cases as well. There are 194 on hold because of litigation, but I have dedicated staff for these cases as well.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

You mentioned having 300 cases with CRA, the Canada Revenue Agency, as an example. Are there certain departments or ministries or areas where you tend to have a much larger case file than others? As an example, do you find you are getting more requests from directly run government ministries versus, say, crown corporations, or from arm's-length government agencies versus direct government departments like the CRA?

[Suzanne Legault]

The two crown corporations that have really stood out in the last five years, since the Federal Accountability Act, are definitely CBC and Canada Post. Canada Post does not have a high number of complaints, but compared to the number of requests they get, their ratio is very high.

Last year, I did a report card and issued a red alert. I've only done two red alerts since the.... One was the Department of Foreign Affairs and last year it was Canada Post. In fact, I had a meeting with the head of Canada Post yesterday to discuss this. They have a very high ratio of complaints. Aside from that, the main institutions in the top tier are CBC, Canada Revenue Agency...Correctional Services Canada had 100 complaints. There's also National Defence, the Privy Council Office, the Department of Foreign Affairs, and Citizenship and Immigration Canada. For instance, if you take Citizenship and Immigration Canada, I now have 67 live complaints, but they get around 50,000 requests. So in fact even though they're high up on my list, if you wish, they're actually very efficient at handling their volume of requests.

The number here is not necessarily the ratio you're looking for, but these are the institutions that are the core of my work. If you look at our annual report, there's usually a list every year. I highlight the top ten in terms of number of complaints. It's fairly consistent too. I would say CBC is a recent addition, but the list of the main institutions is fairly constant.

[The Chair, NDP, Nathan Cullen]

Thank you, Mr. Butt.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

Thank you.

[The Chair, NDP, Nathan Cullen]

We'll now turn to Mr. Andrews.

[Scott Andrews, Liberal, Avalon, NL]

Thank you, Mr. Chair, and thank you, Madam Commissioner, for coming in today.

Just getting back to the Togneri case for a minute, obviously your decision to refer it to the RCMP was quite serious, and you obviously had some basis to do that. I was wondering if you could just explain a little bit more why you referred it to the RCMP, why you think the RCMP didn't proceed with the information you put forward, and maybe a little bit of an explanation of what documents and things were withheld or destroyed.

[Suzanne Legault]

In the interference case there was an access request for a report, and the access to information folks at Public Works decided that the whole report should be disclosed. They had prepared to send the report, and in fact the report was already in the mailroom. Mr. Togneri sent an e-mail saying to unrelease. Following that, there was a series of incidents that basically led to this report not being disclosed for several months, and it was only disclosed in its entirety after the requester made several additional requests.

Referring a matter to the RCMP is a serious matter. The act says that if I have evidence or I feel there is evidence, then I may refer the matter to the Attorney General. In this case, I asked the minister, for the reasons I explained before, to refer the matter to the RCMP.

The actual contents of my investigation are not something that we disclose to the police. My investigation is administrative in nature. I do not make any determination of civil or criminal liability. That is not the purpose of the investigation we do. What we do is an administrative investigation to determine what happened in the processing of an access to information request.

What the RCMP does, whether they decide to conduct an investigation or whether the public prosecutor's office decides to lay charges, is really up to them. I am not involved in this process at all. I do not speak with the RCMP about these cases. It is really up to the RCMP to conduct their own investigation and to come to their own determination and conclusion.

[Scott Andrews, Liberal, Avalon, NL]

So you wouldn't provide any information to the RCMP?

[Suzanne Legault]

No.

[Scott Andrews, Liberal, Avalon, NL]

Do you think you should provide information to the RCMP to conduct an investigation?

[Suzanne Legault]

I think if that were the case it would.... And it says in here, in the act, that I “may disclose” some information, but the way these confidentiality provisions are sort of intertwined in the legislation is very complicated. What one would not want in fact...disclosing information obtained during an administrative investigation actually has a negative impact on the criminal investigation. So it is actually probably more appropriate to not disclose information, and that has always been the stance my office has taken. You have to remember that in some cases I do conduct examinations under oath. I can compel people to give testimony by way of subpoena.

So in order to protect the integrity of a possible criminal investigation, it is best that the police conduct their own investigation. You must remember that all of this information we base our investigation on is contained within the department, so this information or these documents are available to the police to conduct their own investigation. If they wish to do so, they can interview their own witnesses, and therefore the investigation is separate and not tainted by anything that I would do as part of an administrative investigation.

You might want to ask this question of the public prosecutor's office; they would be much better to advise you on this one. I haven't practised criminal law for almost 17 years, or something like that.