Government Operations Committee on June 14th, 2010

[The Chair, Liberal, Yasmin Ratansi]

It was a committee rule that was established. If the committee is agreeable to saying no to a second round.... Because we're tight at 45 minutes. If it's agreed by the committee, before we start the next....

What we could do is any time we have 45 minutes only, we could stick with one round. Fair enough?

[Ed Holder, Conservative, London West, ON]

It feels fairer, that's all.

[The Chair, Liberal, Yasmin Ratansi]

Okay. Thank you.

We have before us now Madame Suzanne Legault, who is the interim.... You're still the interim commissioner?

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

I'm still interim, yes.

[The Chair, Liberal, Yasmin Ratansi]

Until somebody ordains the final commission.

We also have Madame Layla Michaud, the interim assistant information commissioner.

I understand you have some opening remarks.

[Suzanne Legault]

Yes.

[The Chair, Liberal, Yasmin Ratansi]

Thank you. The floor is yours.

[Suzanne Legault]

Thank you, Madam Chair, for the opportunity to present the perspective of the Office of the Information Commissioner of Canada as part of the committee's study of the impact of the freeze on federal institutions' budgets.

I come before you today with two perspectives. One, as the head of the Office of the Information Commissioner. Second, as the ombudsman of the access to information regime in Canada. My remarks this afternoon, Madam Chair, will outline both perspectives.

First, I would like to state that as a steward of public funds, I fully understand and support this exercise in fiscal restraint given the current economic situation. That said, I also believe that the budget cost containment measures have a greater impact on small institutions as the largest part of their budget is dedicated to salaries.

Since its creation in 1983, the office has been facing an ever-increasing backlog of complaints. Investigations sometimes took years to complete, which affected the service we provided to Canadians, and in some cases their right of access to information. Last year we put into motion a very ambitious plan to maximize our efficiency and provide more timely and effective responses to our complainants by taking critical actions on investigations. Among other things, we engaged the services of investigators on contract to work on our oldest and more complex cases. We dedicated a team to our longstanding cases and we streamlined our approach to the early resolution of straightforward complaints.

After a year of implementation, we see that these initiatives are bearing fruit. We have made a significant dent in our inventory of complaints. In fact, we closed more complaints this year than we have in 20 years.

However, delivering on this ambitious plan is proving to be quite a challenge. Contrary to bigger institutions, we have almost no flexibility when meeting budgetary constraints simply because there is very little fat to trim down, so to speak. Madam Chair, I am currently using every dollar appropriated to the office. My budget is extremely stretched and we are operating at full capacity. In fact, we finished the last fiscal year with a carry-forward of only $180,000, which is less than 2% of our budget and less than our allowable carry-forward.

Two years ago my office received a significant increase in its budget. However, we did not get the funding we needed to support our systemic investigations function, which is responsible for our report cards and for allowing us to look at system-wide issues. This function is, in my view, absolutely crucial to the effectiveness of my investigative activities. Therefore, I had to reallocate resources internally to support it, which did have an impact on our remaining investigative cases. As a result, this year I'm starting with a deficit of $700,000. This constitutes a major pressure on my office, which could impact on our capacity to deliver on our mandate.

The absorption of the wage increase only compounds this problem. In terms of this year's main estimates, our salary and operating budget is $10.8 million in 2010-11, and our number of full-time equivalents is 106. I can report that at this time I actually have 107 people on staff. Seventy-six percent of our budget is allocated to salaries, and 7% is allocated to non-discretionary operating costs, which includes office equipment and the like.

Of the remaining $1.8 million, only 17% remains for discretionary costs. Sixty-two percent of this envelope is program-related and covers the costs of the consultants working on investigations. Fourteen percent is allocated to our information management strategy and 24% to our internal services.

The salary cost we will have to absorb this year is estimated at $100,000, increasing to $355,000 in 2012-2013.

Madam Chair, I know that coming after the presentation by the Department of Public Works, this figure must seem to committee members like a very small drop in a very big ocean, but for my office this has a huge impact. To put it in perspective, this is what it actually means. It is the equivalent of the resources required to close some 400 cases. It represents about 20% of our $1.8 million envelope for our discretionary operating costs. This makes us very vulnerable to any new pressures that may arise this year, either in the form of another court case or several court cases or with an increase in complaints, which could further erode our ability to deliver on our mandate. And to be very honest with you, Madam Chair, the last thing that I would want is to find myself in the position of seeking additional funding from Treasury Board Secretariat to fund litigation cases in which they might be one of the institutions involved in the litigation.

This fiscal year, in order to keep within our appropriations, we will have to cut costs in key areas such as training, computer replacement, and our internal audit function. But perhaps most importantly, I have a great concern as the ombudsman for access to information. In times of fiscal restraint, institutions have historically made cuts to their internal services, including their ATIP programs. As ombudsman for the access to information regime in Canada, I am indeed greatly concerned, because inadequate funding inevitably affects this fundamental service to Canadians, and not only their service, but their fundamental democratic right.

The risks include failure to meet legal requirements, declining performance, and an increase in complaints to my office. And I say this in all seriousness, because in our last two report cards we have observed that under-resourced institutions use time extensions as a coping mechanism, thereby creating unnecessary delays. The drafters of the act never intended time extensions to be a tool to manage workload.

With this in mind, Madam Chair, I fully intend to continue to monitor the performance of federal institutions in access to information through my report cards and systemic investigations, which are, in my opinion, key tools in assessing institutions' performance and also in protecting the rights of Canadians.

In closing, the Office of the Information Commissioner of Canada has made great strides this year in reducing our inventory of cases. However, we continue to deal with an important caseload and until such time as we reach a manageable caseload, dealing with investigations will be my number one priority. I will continue to monitor and adjust our investigation process to reap further efficiencies so that we can reallocate resources internally.

However, at this time I do not exclude the possibility of going back to Treasury Board Secretariat as well as the advisory panel on the funding and oversight of officers of Parliament to ask for additional funding.

Thank you, Madam Chair.

We will be pleased to answer your questions.

[The Chair, Liberal, Yasmin Ratansi]

Thank you very much. We have 32 minutes left. Divided by four, that's eight minutes per person. So we have eight minutes for the first round.

Ms. Coady.

[Siobhan Coady, Liberal, St. John's South—Mount Pearl, NL]

Thanks very much to you, Madame Legault, and to you, Madame Michaud, for being here this afternoon.

These are outstanding reports, I must say. It gives us a real idea of the impact of these budget freezes on your department.

I'd also like to congratulate you for being nominated, finally, as Information Commissioner. I fully support your nomination. I hope that will come to a positive conclusion very, very shortly and the appointment comes very quickly.

I want to compliment you as well on the exemplary work you've done over the last year. I've thought that what you've been able to achieve over the last year has been outstanding, especially with the pressures you've had on your budget. I, for one, would love to see your budget increased; I think it's important, and it should go hand in hand with your appointment, to be quite frank.

I think it also points out, as you've been able to summarize today in your opening remarks, the impacts of this across-the-board budget freeze to you and your department and, through you and your department, to Canadians. If you could close some 400 more cases a year, we'd certainly appreciate that, so I'm fully supportive of you actually receiving an increase in your particular allotment, because I think it's important to Canadians.

Having said that, I note that one of the things you did mention in your report was that historically when cuts are to internal services, one of the pressures that may be found, of course, and for you, acting as an ombudsman, is that the whole of access to information may suffer, and we're already having a lot of challenges. I reflect back, for example, on your recent report, Out of Time, which states that “the Treasury Board of Canada Secretariat, in collaboration with relevant institutions and agencies, develop and implement, as a matter of urgency” a plan to address the current shortage.

You went on to talk about how “the risks from inadequate funding are abundant”. I looked down your list of report cards that give Natural Resources Canada an F, Canadian Heritage an F, CIDA an F, and so on, and some even...for example, DFAIT got a red alert. When you talk about that, you must be concerned about the budget freeze and its impacts on these particular departments in these particular cases.

Can you just talk a little bit about that? And how can we work with government departments to prioritize, to assure that funding is allocated to ensure this is done?

[Suzanne Legault]

Madam Chair, obviously one way in which we are keeping track of what is happening with those departments is that we are following up this year with the 13 institutions that performed below average. It's not necessarily only a question of resources, while in some instances it is, and we are going to keep a very close monitoring watch on those institutions this year.

At this point in time, we do not know where the cuts are going to occur within the various institutions, but we are certainly concerned because of what we observed in the last two report cards. So from our end, we are going to monitor the situation. I know also that the Treasury Board Secretariat is aware of the situations with those institutions and we're going to continue to collaborate with Treasury Board Secretariat in that respect.

[Siobhan Coady, Liberal, St. John's South—Mount Pearl, NL]

Thank you very much for your answer.

You talked about 13 institutions and how in some instances it is challenges with resources and in some instances it is not. Would you care to elaborate on when it's not related to resources?

[Suzanne Legault]

It depends on the various institutions in regard to what the reasons are for a less than optimal performance. What we do find is what I call the “recipe for success” in the institutions that perform very well.

The best example is the Department of Justice, where you have very strong leadership and commitment to access to information. You have adequate resources, both in terms of money and in terms of persons that are actually doing the job. You have very good quality information management practices. In institutions where that is not a fact, we find that it does create delays in terms of access to information, simply for the retrieval of records.

So information management is the key, as is ongoing training in the institution. Those are essentially the key elements of a recipe for success for access to information in any institution.

[Siobhan Coady, Liberal, St. John's South—Mount Pearl, NL]

Thank you.

I'm going to share my time with my colleague.

[The Chair, Liberal, Yasmin Ratansi]

You have three and a half minutes.

[Martha Hall Findlay, Liberal, Willowdale, ON]

Thank you very much.

Thanks to both of you for being here today. I echo my colleague's sentiments on the job you've done so far, under sometimes difficult circumstances, and I appreciate what you do with what we both agree are not enough resources. I support that call.

Who decides when something should be disclosed? When there is an access to information request, who decides what should be released and how much, if any, should be kept back or redacted?

[Suzanne Legault]

The decision regarding disclosure or non-disclosure is and should always be based on the legislation itself.

The legislation has a presumption in favour of disclosure. It also provides for exemptions and certain exclusions. Some of those are mandatory exemptions and exclusions, and some of them are discretionary. In the discretionary analysis, basically the head of the institution has to decide, through its delegated authority--depending on who has a delegated authority within the institution--whether or not, in the exercise of their discretion, the information should be disclosed.

[Martha Hall Findlay, Liberal, Willowdale, ON]

When you say “head of the institution”, who do you mean by that?

[Suzanne Legault]

Under the legislation, the head of the institution is usually the minister, or in certain agencies it is the head of the institution. For instance, at the Information Commissioner's office, I am the head of the institution. And then each institution delegates authority to various people within it to make decisions.

For instance, in our institution, I have delegated the authority to the assistant commissioner and to the director of information management.

[Martha Hall Findlay, Liberal, Willowdale, ON]

Can I just extrapolate on that, then? If a minister has the authority to make that decision and a member of the minister's political staff intervenes or makes a decision with regard to disclosure or not disclosure, would responsibility for that action then reside with the minister?

[Chris Warkentin, Conservative, Peace River, AB]

Point of order.

[The Chair, Liberal, Yasmin Ratansi]

Ms. Hall Findlay, I have a point of order.

Yes.

[Chris Warkentin, Conservative, Peace River, AB]

Thank you, Madam Chair.

First, I would welcome my colleague back to the committee, but I just find it passing strange that in her absence the Liberals have gone to great lengths to say that this issue should be discussed not at this committee but rather at the ethics committee. I would maybe encourage you, Madam Chair, to keep committee members on the item that we are actually responsible for looking into today.

[The Chair, Liberal, Yasmin Ratansi]

The clerk advises me that you don't have a point of order.

Continue, Ms. Hall Findlay.

[Martha Hall Findlay, Liberal, Willowdale, ON]

Thank you, Madam Chair.

I'll just repeat the last piece of the question: If a member of a minister's political staff intervenes in refusing to provide information or in the level of censorship, given that this is a delegated authority, can we then assume that the person ultimately responsible for that action--it could be a denial of information--would actually be the minister himself or herself?