Information & Ethics Committee on March 27th, 2012

[The Chair, NDP, Jean Crowder]

Welcome, committee members, to meeting number 31.

I call vote 40, under Justice. We will now commence debate.

I welcome Madam Legault, the Information Commissioner of Canada, who will present to the committee.

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

Thank you, Madam Chair.

I want to thank you for inviting me to speak about the main estimates of the Office of the Information Commissioner of Canada, this morning. I am accompanied by Layla Michaud, Interim Director General of Corporate Services.

Your invitation provides me with a timely opportunity to talk to you about some of our key achievements, challenges and priorities as I begin the third year of my mandate in June.

As detailed in the documents before you, the salary and operating budget for my office in 2012-13 is approximately $10.348 million, excluding employee benefit plans. I have 106 full-time equivalents. Close to 75% of my budget is allocated to salaries. Of the remaining 25% for operating and maintenance costs, a third relates to fixed costs.

Madam Chair, I can assure you that since I became commissioner, I have worked to do better with less across all of our activities.

On the program side, we started three years ago to implement a new way of doing business. We have been guided on this path by the clear direction and focus of the strategic plan we adopted at the onset of my mandate. I'm encouraged with the results thus far.

We made a substantial dent in the inventory of complaints that had built up over the years. We reduced it from 2,500 at the end of 2008-09 to 1,800 by the end of this fiscal year. From 1,600 cases that were there from pre-2008, this number is now down to 61.

There has been a substantial reduction in administrative complaints in our year-end inventory.

Six months ago, we started implementing a new strategy for more complex investigations dealing with highly sensitive national security issues. As a result, we expect to close approximately 100 cases. This represents a 33% increase over last year.

This past year, I have strengthened our legal capacity to assist with formal investigations and litigation. This has also reduced outsourcing costs for legal expertise and professional services. These are outcomes that we expected, and we worked hard to achieve them. They confirm that our business model is sound and that we are heading in the right direction.

Our internal services have been key to facilitating these operational successes. The guidance and assurance provided by our internal audit function, as well as the development of a new case management system, have been instrumental in improving our overall performance.

However, more work needs to be done. In completing the tasks at hand, we face significant risks and challenges.

We must further refine our strategies to deal with a higher percentage of more complex refusal complaints. These have steadily increased from 73% of the inventory at the end of 2008-09 to 88% currently. Approximately 55% can be characterized as follows: 385 deal with national security issues; 253 involve voluminous and highly technical Canada Revenue Agency files; and the others result from the Federal Accountability Act, extending coverage to the Canadian Broadcasting Corporation. We still have 253 cases in our inventory, 135 of which pertain to section 68.1, which has been studied previously by this committee.

The higher percentage of refusal complaints increases the likelihood of time-consuming and formal processes. They also increase the risk of costly litigation.

Treasury Board statistics for 2010-11, which have just recently been published, indicate an increase of 18% in the number of access requests received by institutions in the last year. Historically, out of this number, 5% to 6% of requests generate complaints to my office. If this trend materializes, we could be faced with an influx of 2,000 to 2,500 new complaints this coming fiscal year.

However, I must say, Madam Chair, that this year the level of complaints has been declining. It has not been increasing. So far this year we are looking at about 1,500.

Moreover, several of the top ten institutions to receive access requests, according to the Treasury Board statistics, are also among the top ten institutions generating complaints; hence, a potential risk in terms of increased workload. A very good example is the Canada Revenue Agency, which apparently has had an increase of 44% in its access to information requests. According to Treasury Board statistics, it is one of the main institutions generating complaints to my office.

This risk is compounded by the fact that institutions, in times of restraint, tend to cut in their internal services, including access to information and privacy programs. The risks from such cuts could include failure to meet legal requirements, declining performance, and an increase in complaints to my office. This is worrisome to the extent that it could adversely affect Canadians' fundamental right of access.

Human resources also presents another significant element of risk. As a small organization, my office is disproportionately impacted by workforce characteristics. For example, according to our statistics, 31% of our investigative workforce will reach pension eligibility within the next three years. Three staff members have already retired this year.

We also face uncertainty owing to the fact that we have to relocate our offices in 2013. Preliminary estimates from Public Works and Government Services Canada show that the cost could be as high as $3 million. We have yet to secure a source of funding. Relocating also entails other risks in terms of sustained productivity and human resources retention.

Given these risks and challenges, here are some of my main priorities for 2012-13.

First, in terms of governance, there are two key positions that I must stabilize within my office. A selection process is already under way to appoint an assistant commissioner, who will be responsible for all investigations and complaints resolution. The process has been initiated with the Privy Council Office. I must also staff on a permanent basis the position of director general of corporate services.

On the program side, I will continue to streamline our operations with a view to increasing the effectiveness and timeliness of our investigations. Regarding administrative complaints, my goal is to move closer to our target of 85% of cases completed within 90 days. The quick resolution of administrative complaints allows us to work more intensely or quickly to resolve new refusal cases.

Regarding refusal cases, my goal is to complete priority cases within six months. We will continue with our strategy for national security cases, building on the successes so far. In the spirit of results-based management, I will establish processes and service standards for all types of investigations. We have done so for administrative complaints. We now have to move to our refusal complaints.

With respect to internal services, implementation of talent management is a key priority for corporate memory purposes. Our talent management program will help us develop, attract, and retain talent, thereby mitigating some of our human resources risks. It will also contribute to our strategic objective of creating and maintaining a workplace of choice.

We will continue to streamline internal services to minimize risks and improve service delivery. For example, we are currently exploring different shared services opportunities with other institutions, including agents of Parliament. As a start, we have undertaken discussions to procure compensation services and staffing monitoring from the shared services unit at Public Works and Government Services Canada.

In closing, I thank you for your continued interest and support. I also wish to acknowledge the unabated commitment and dedication of my staff in this process of continuous improvement, as we strive to deliver exemplary service to Canadians.

Thank you, Madam Chair. I will be pleased to answer your questions.

[The Chair, NDP, Jean Crowder]

Thank you, Madam Legault.

We'll now go to questions. This will be a seven-minute round. The seven minutes will include both the member's question and the commissioner's response.

Mr. Angus.

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

Thank you, Madam Chair.

Thank you, Madam Legault, for once again coming to our committee. You know that we have immense respect for you on all sides of the table, and that you perform a vital function for ensuring accountability and ensuring that Canadians' right to have access to information is responded to by government departments.

I'd like to talk with you about a couple of the subjects you raised. I'm looking at vote 40 in the estimates, and I see that there will be a net cut of $267,000 to program expenditures from the $10.3 million that you described.

Now, with regard to those dollars that are being cut, are they being targeted on technological infrastructure? How will that affect your need to actually be modernizing your capacity to handle complaints? What are you going to do with that cut there?

[Suzanne Legault]

Well, the funding was received in 2009-10 for IM/IT strategy. We are starting our fourth year of implementation of the strategy. We are on time and on target. It was a normal decrease in the actual funding for this year.

Obviously it has an impact on our operating costs, but this is something that we had planned for. The development is under way and is functioning quite well. This year we actually rolled out our new case management system as part of the strategy.

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

Thank you.

I was reading the report on plans and priorities for 2011-12, and it talked about the increasingly complex nature of investigation and litigation. We have cases like the CBC—on section 68.1—going up through the federal courts, and we've had ministers taking issues to court.

What is the added expense that you're dealing with now in terms of the complexity of litigation, how does that factor into your overall budget, and how are you offsetting it in terms of moving dollars around in your other files?

[Suzanne Legault]

The inventory right now in terms of complex cases is 88%. The ability to pursue matters in courts under the legislation is related to these refusal cases. Normally, on administrative cases, although there have been some examples, these do not go to court.

What happens is that we used to have about a 50-50 inventory; we're now at 88%, as we speak. This means that most of these cases are more difficult, more complex. The possibility of these cases going to court is unpredictable as the files unfold.

We are doing better, actually, in terms of the outsourcing of legal costs, because this year I've increased the legal capacity. We have now, as of this year, internal litigation capacity. We are intervening more, in some cases, than we normally would have, so we are having a voice in terms of third party interventions. We're also having a heightened capacity to manage our litigation costs. In fact, our outsourcing of professional services for litigation has decreased this year because of that. We've shifted a little bit on the program.

So far we're managing it. Last year we had to get $400,000 in emergency funding because we had complex cases and litigation. There is an element of uncertainty to that aspect of things. This year we have managed it without needing to seek additional funding. As I said, this increased internal litigation capacity seems to make quite a good difference in managing that uncertainty.

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

I find that a very interesting approach. It seems to be counterintuitive to some of the common wisdom of the day, which is that you cut the civil service and then you hire staff when you need them. I saw how Mike Harris's common sense revolution went through numerous departments and then ended up actually having to hire back the civil servants, now that they were independent consultants, at a higher rate.

You're telling us that by bringing your own in-house capacity, you're reducing costs and you're able to manage the case files better? Is that...? Do you think that's a model that might work in other departments?

[Suzanne Legault]

We're constantly looking at ways to gain efficiencies and to deal with the risk of unpredictability that we are facing.

Another example, as well, is that I have a lawyer who is actually in charge of the national security files, and this lawyer is working very closely with the investigators who have special delegation files. What I'm finding is that it's actually working better. The investigators are better counselled in a more timely manner.

It's early, we started six months ago. But what I'm seeing now, I'm very pleased with the way the files are handled and I'm very pleased with the ongoing support that the investigators are getting on these files. We've developed more templates, it's going faster, and I think the work is moving faster on these files. By shifting some of the way the teams are organized within the program, I think it is generating efficiencies and I think that will continue.

The investigative function is still not where I would like it to be, so I'm constantly trying to see how I can make it more efficient to deal with the change in our inventory, in our caseload. What we've done this year seems to have worked, and so we'll see in the next fiscal how that is going to unfold. It's a little bit too early to tell, but certainly this year it seems to have worked.

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

Thank you.

Finally, we have two bills before the House that could have huge implications for Canadian privacy rights: the update to the PIPEDA, Bill C-12; and then Bill C-30, Minister Vic Toews' snooping law.

Have you done any analysis of the potential impact on your department in terms of information?

[Suzanne Legault]

No, I have not. Madame Stoddart, the Privacy Commissioner, is very much on top of those files in terms of input from the privacy side.

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

It would have nothing to do with you.

Thank you very much.

[The Chair, NDP, Jean Crowder]

Thank you, Mr. Angus.

Mr. Del Mastro for seven minutes.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you very much, Madam Chairman.

Thank you, Commissioner, for attending today and for your presentation. I have a couple of questions for you.

I noted in the main estimates, the Office of the Information Commissioner actually has a small decrease in its overall estimates from the previous year. It looks to be about 2.5%. According to the Library of Parliament, it's made up of a decrease in “other operating costs”.

Can you describe for me a little bit about what the “other operating costs” are? Where did you find those savings?

[Suzanne Legault]

It's really mostly the IM/IT strategy and this was, as I indicated, already planned when we got the funding. There was a decrease in funding over a five-year period, and we're entering the fourth year, so that's totally consistent with what we had projected. That's essentially the big chunk of that.

[Dean Del Mastro, Conservative, Peterborough, ON]

The balance—that was about $268,000 of roughly $300,000, and about $31,000 comes from the change in the contribution rate on employee benefits. Would that be pension contributions largely being made—an increase in that being made by staff?

[Suzanne Legault]

These are just adjustments that are made to the employee benefits plans, unless, Layla, you have something else.

[Layla Michaud, Interim Director General, Corporate Services Branch, Office of the Information Commissioner of Canada]

It's legislated so the numbers are given to us by Treasury Board Secretariat. It's a percentage.

[Dean Del Mastro, Conservative, Peterborough, ON]

Have you been contacted by Treasury Board with respect to the deficit reduction action plan? Have you made a filing with respect to seeking to find between 5% and 10% savings in your department?

[Suzanne Legault]

Yes, we received the letter from the Minister of Justice in July of 2011, this past summer, and we started to do an exercise, which we've shared with this committee in its totality, including the letter that we sent to the Minister of Justice. We also received another letter in December asking us to submit our analysis.

We hired IBM to do the analysis for us and act as a challenge function for us. IBM had done, in 2008-09 I believe, our business model, so they were actually quite familiar with the way that we were conducting business. So they acted as a challenge function for the review of our funding.

The conclusion that we came to—and this is what we reported to the minister—was that given the cost containment measures from the last Parliament's budget that we had to absorb, and given our little flexibility, we really couldn't give back any additional money without impacting on program.

I have not received any further communication on this aspect, and Minister Clement was cc'd on this letter.

[Dean Del Mastro, Conservative, Peterborough, ON]

Okay, my suspicion is that, notwithstanding the fact that I haven't had the opportunity to review this entire document, most departments would probably arrive at largely similar conclusions that any reduction in overall funding would impact negatively in one area or another. I mean that's to be expected. A funding decrease is always going to be a challenge to deal with. I do appreciate that, and I will review that, so thank you very much.

I wanted to come back to.... You said the overall number of cases or complaints that you're dealing with has dropped since the inception. Is some of that due to compliance? I know that you have a couple of crowns—for example, Canada Post and CBC—that were leading to a number of the complaints. You had also mentioned CRA. I believe that you also get a number with respect to—is it immigration that you source for a number of things?

Are you seeing that those departments or those crowns are becoming more effective? Are you still concerned about their approach in this regard? What's leading to the overall reduction? I imagine that the overall requests are still significant.

[Suzanne Legault]

Well, as I said, the requests are increasing this year, and this is quite a significant increase from comparative past years. So, we'll see what that has as an impact.

In terms of our complaints, we'll probably end the year at about 1,500 received complaints, which is a bit of a decrease from last year. I think last year was about 1,600. But, last year, we had a large spike in July of over 200 cases from one complainant with one institution. If I don't count that, we're about even from last year. The two previous years before that, there were a lot of complaints with CBC. We definitely saw a huge shift after the FAA in terms of an increase in complaints. It seems to be stabilizing right now.

The other thing that is happening is that there is a reduction in administrative complaints. This is, in my view, an extremely positive sign. You know, we've been working very hard in the last two to three years. We have been going around to departments, talking to deputy ministers, urging them to not have administrative complaints in their office, and to basically deal with the requests on time, because administrative complaints are a bit of a waste of time, money, and resources for all involved in the system. They actually don't provide faster or substantive releases of information to the requester. To me, the administrative complaints are the big waste in the system. As much as we can reduce that, that's a gain for the system overall, and it seems to be what's happening. I think that's really positive.

The other thing I'm seeing on the statistics this year—and I think it's worth mentioning because I've been really making this point for quite some time—is that one of the key indicators of the health of the regime is the number of requests where all of the information is disclosed. I've been saying, every time I've been before this committee, that there has been a steady decline in that statistic. Well, this past year, there's actually been an improvement. I think that is something that should be mentioned here. I think that's a very positive sign. We used to be at only 16% of all requests where all information was disclosed. The latest published statistics indicate 20%. That's a good increase. I'm hoping that there is perhaps a movement with the open government, and that the message is getting across and we're seeing a change.

It could be related to national security and international affairs. Obviously, our situation is changing there, so maybe less information or less requests where there were exemptions. It's too early to tell. I'm hoping the government will ensure that this trend continues. I think that's key.

Perhaps, one last point I would to make, Madam Chair, in terms of other institutions saying that they cannot reduce their budget, my office is lapsing 0.1% and 0.2% of its overall budget in the last two years, and that includes an additional $400,000. I don't think that there are many federal institutions that actually do not lapse money, like my office. I think that when we look at the budget of our office, year-over-year, there is very little money left. My internal audit committee always asks us to give them an update on our budget because we walk such a fine line all the time.

[Dean Del Mastro, Conservative, Peterborough, ON]

I appreciate the answer.

[The Chair, NDP, Jean Crowder]

Thank you, Madam Legault.

Mr. Andrews, for seven minutes.

[Scott Andrews, Liberal, Avalon, NL]

Thank you, Madam Chair.

Welcome, Madam Legault. Once again, it's a pleasure to have you here.

I wanted to follow up on something you just said. You said that the minister wrote once in July, and then again in August. You replied back to him, but you said you haven't heard anything.

Could you just clarify exactly what you meant by that?