Evidence of meeting #43 for Access to Information, Privacy and Ethics in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was report.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Robert Marleau  Information Commissioner, Office of the Information Commissioner of Canada
J. Alan Leadbeater  Deputy Information Commissioner, Office of the Information Commissioner of Canada
J. Dupuis  Director General, Investigations and Reviews, Office of the Information Commissioner of Canada
Ruth McEwan  Director General, Corporate Services, Corporate Management Branch, Office of the Information Commissioner of Canada

9:05 a.m.

Liberal

The Chair Liberal Tom Wappel

Good morning. I'd like to call the meeting to order. This is our 43rd meeting, and pursuant to Standing Order 81(4), we're considering the main estimates for 2007-08: vote 40, Office of the Information Commissioner of Canada, under Justice, which was referred to our committee on February 27, 2007.

Committee members, you will notice that there is a camera in the room. CBC requested that they be able to televise or tape this entire meeting, or whatever portion of it they want. They did it through the appropriate channels, so that's the case, that's why they're there. It's a fixed camera. They'll focus on the people who are speaking, and only the people who are speaking, or the person who is speaking--hopefully. So that's why they're there.

They can only get the back of my head anyway, and that's the worst part of me, believe me. The back is worse than the front.

We have today, from the Office of the Information Commissioner, Mr. Robert Marleau, Information Commissioner; Mr. Alan Leadbeater, deputy information commissioner, and no stranger to the committee; J.G.D. Dupuis, director general, investigations and reviews; and Ruth McEwan, director general, corporate services, corporate management branch.

You don't have to introduce them, since I just did.

Welcome. I presume you have an opening statement, and then we'll go right into questions.

Mr. Marleau, please.

9:05 a.m.

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

Thank you, Mr. Chairman. It's a real pleasure for me to be here this morning to assist you today in considering the estimates of the Office of the Information Commissioner of Canada.

I will admit that I'm still near the bottom of a steep learning curve about the intricacies of the Access to Information Act and my office's role in its enforcement. In fact, this is my first appearance as Information Commissioner of Canada before your committee. However, I do have a good understanding of the role of the committee and the specific relationship that I and the other offices of Parliament have with their respective committees and with Parliament as a whole.

What I most want to say in these opening remarks is that I'm looking to this committee and to all MPs and senators to help me be the most effective Information Commissioner I can be.

It's been said that the right to know is the oxygen of democracy. Yes, there are many justifiable reasons for government secrecy, but too, there are great pressures on all governments to tolerate secrecy creep, to use secrecy as a strategic political tool and to hide behind it, sometimes to avoid embarrassment and accountability.

The mandate Parliament has given me, for the next seven years, is to be its agent for ensuring that governments keep the proper balance between openness and secrecy—a balance which is carefully articulated in the Access to Information Act, a balance which has stood the test of almost 24 years of time. In the coming months, if the government responds positively to the first report of the Standing Committee on Access to Information, Privacy and Ethics, members of Parliament will be called upon to scrutinize government proposals for access reform and to ensure that this law remains strong.

My priorities are set by the statute. I'm obligated to deliver to individuals through thorough and fair investigations into complaints made against government institutions. My mandate is to convince government institutions to correct any instances of excessive secrecy without the need for recourse to the courts. My pledge is to be a constructive voice of reason wherever and whenever there are debates over the proper balance between openness and secrecy in the federal government. In other words, I will not be an advocate for access requesters, nor will I be an adversary of government. I will be a servant of Parliament in the application of the ATIA and its purpose, which has been described by the Supreme Court of Canada as facilitating democracy by ensuring that citizens have the information required to participate meaningfully in the democratic process.

The core business of the Office of the Information Commissioner is investigation of complaints under section 30 of the ATIA. It is the goal of all our investigators to resolve the complaint, and they are very good at it. The volume of complaints and the length of time to complete them continue to be a concern. Last year's funding increase for investigators was a great step forward. We were unfortunately delayed because of the lack of appropriate space to house the new recruits. That's been resolved now, and we should be up and running by the summer of this year.

If government does not follow the Commissioner's recommendations, the next avenue of recourse is to the Federal Court of Canada. During confirmation hearings, I said to Parliament that I have, and will have, a bias against going to court. Despite my reluctance to go to court, when citizens' fundamental rights are at risk and mediation has failed, the Commissioner has no choice but to aggressively pursue the matter before the appropriate tribunal, including the Supreme Court of Canada.

Over the years, the ATIA has proven to be very robust; the jurisprudence has been largely in its favour. There will, no doubt, be hard cases that require court interpretation so as to protect the integrity of the statute and the rights it provides to Canadians, in which the court will benefit from the commissioner's views and input.

The Office of the Information Commissioner has no specific statutory audit or education mandate. Yet the pressure on my office to assist institutions is growing. We do systemic investigations and report cards. Believe it or not, many heads of agencies want to be in full compliance with the ATIA, and they look to us for advice and evaluation. The better their performance and knowledge, the fewer complaints we have to deal with. It might be better to invest in resources to advise, train, and educate than to incrementally increase the investigative budget.

The Office of the Information Commissioner and the Office of the Privacy Commissioner have, for four years now, worked with the University of Alberta on an online certificate program for ATIP officers and aspirants.

Over the past year, my office has been working with a distinguished group of access and privacy experts to develop national professional standards for access to information and privacy administrators. I have already made it a personal priority to get the Treasury Board, as the federal employer, to support the University of Alberta program and to recognize the new national standards as desirable, if not required, in its recruitment and advancement policies for ATIP officers. In the coming months, I hope to engage the standing committee on this matter and also to make it a component of any future debate on the reform of the ATIA.

As you will see from parts II and III of the estimates documentation, my office is seeking Parliament's approval in vote 40 for resources in the amount of $6,684,000, of which $5,278,000 is for employee salaries exclusive of employee benefits, and $1.4 million is for the anticipated operating expenditures.

Honourable members, I am ready to answer your questions. I will endeavour to provide you with some information about who we are, what we do, how we measure our performance, what is on the horizon for us and how we have utilized our resources. You may wish to have further explanations, which we are here to give. I am confident that we will develop a fruitful relationship.

Thank you very much.

9:10 a.m.

Liberal

The Chair Liberal Tom Wappel

Thank you very much, Commissioner.

Before we go to questions, in your handout, in the second last paragraph, the written text says, “The OIC does not anticipate seeking additional funds for 2007-2008 by way of supplementary estimates”. I didn't hear you say that orally.

9:10 a.m.

Information Commissioner, Office of the Information Commissioner of Canada

Robert Marleau

You didn't hear me say it orally, Mr. Chairman, because I was planning to keep it as an answer to a question.

9:10 a.m.

Liberal

The Chair Liberal Tom Wappel

Then I'll ask. Are you planning at this point to seek supplementary estimates?

9:10 a.m.

Information Commissioner, Office of the Information Commissioner of Canada

Robert Marleau

Once it's printed and said, sir, I have to stand by that statement.

9:10 a.m.

Liberal

The Chair Liberal Tom Wappel

Thank you.

We will go to Mr. Peterson.

It's been a while since we've had witnesses, because we've been working on our other report. I'll just remind you that we'll have seven-minute rounds for the first round, and go to five-minute rounds.

It's Mr. Peterson, followed by Madame Lavallée, I expect, and possibly Monsieur Vincent.

9:10 a.m.

Liberal

Jim Peterson Liberal Willowdale, ON

Thank you, Mr. Chairman.

Could I read to you from a Globe and Mail article of April 25:

The Harper government knew from its own officials that prisoners held by Afghan security forces faced the possibility of torture, abuse and extrajudicial killing, The Globe and Mail has learned. But the government has eradicated every single reference to torture and abuse in prison from a heavily blacked-out version of a report prepared by Canadian diplomats in Kabul and released under an access-to-information request. Initially, Ottawa denied the existence of the report...

etc.

I would ask you, sir, if you could launch an investigation immediately as to why this report was blacked out and as to why Canadians were denied access to proper information.

9:10 a.m.

Information Commissioner, Office of the Information Commissioner of Canada

Robert Marleau

I'm informed that we have a specific complaint at this time. I'll ask the deputy commissioner to comment.

9:10 a.m.

J. Alan Leadbeater Deputy Information Commissioner, Office of the Information Commissioner of Canada

Mr. Peterson, as you know, we have a statutory obligation placed on us by Parliament not to disclose the details of what is ongoing. I certainly would be prepared to talk to you, or any other member, who wants to raise an issue about this. However, if someone is going to complain about the answer to an access request, it needs to be the person who made the request. Anybody has the right to make an access request. The scope of our jurisdiction is set out in section 30 of the statute. We certainly will take your representation and ask our legal services whether we have jurisdiction to do so, and we would be happy to inform you of the result.

9:10 a.m.

Liberal

Jim Peterson Liberal Willowdale, ON

Is it legal for government officials to black out a report to the extent that has been reported?

9:10 a.m.

Deputy Information Commissioner, Office of the Information Commissioner of Canada

J. Alan Leadbeater

There are a number--13, actually--of reasons in the statute that justify secrecy. We have seen cases where one of those reasons will justify the withholding of an entire record, and we have seen cases where the withholding has been overzealous. It would require us to examine the specific case to determine whether it was improper.

9:15 a.m.

Liberal

Jim Peterson Liberal Willowdale, ON

I will put it to you as a hypothetical question, then. If references in a government report to human abuse such as extrajudicial executions, disappearances, torture, and detention without trial were blacked out, what could possibly be any legal justification for blacking out such reports? Would it be the security of the country? No.

9:15 a.m.

Deputy Information Commissioner, Office of the Information Commissioner of Canada

J. Alan Leadbeater

Your question will have to be taken as rather rhetorical in the sense that our obligation is to hear both sides and make a determination. To prejudge the issue by offering a response to your question in the absence of having that balanced view, I think, would undermine our neutrality.

9:15 a.m.

Liberal

Jim Peterson Liberal Willowdale, ON

I'm asking you to speculate. Can you imagine any possible defence that could be given for blacking out such comments?

9:15 a.m.

Information Commissioner, Office of the Information Commissioner of Canada

Robert Marleau

I think, Mr. Peterson, for us to speculate on a hypothetical case is very difficult. As the deputy commissioner said, there are some 13 exemptions in the act.

9:15 a.m.

Liberal

Jim Peterson Liberal Willowdale, ON

Sir, can you give me one of those possible exemptions that could possibly justify blacking out such comments?

9:15 a.m.

Information Commissioner, Office of the Information Commissioner of Canada

Robert Marleau

I've not yet memorized the 13 exemptions, but it could be “relations with a foreign country”; it could be “matter under investigation”. There is a whole series of them.

As the deputy commissioner said, our approach to each complaint is to hear both sides, not to prejudge the case on its prima facie presentation. The to and fro that our investigators entertain with the coordinators usually leads to resolution of the complaint. We have a very high success rate. Or, at the end of the day, it could end up in the Federal Court on a section 37 recommendation of the commissioner.

For us to speculate on a reported case that we haven't seen, I think, might undermine the perception that we approach this from an impartial stance going in and that we are--hopefully--still impartial going out.

9:15 a.m.

Liberal

Jim Peterson Liberal Willowdale, ON

Did I hear that you are looking at this issue now, or would we have to file a new request in order to have you examine the blacking out of this report?

9:15 a.m.

Information Commissioner, Office of the Information Commissioner of Canada

Robert Marleau

As the deputy commissioner said, it would be up to thee complainant to request such a review.

9:15 a.m.

Liberal

Jim Peterson Liberal Willowdale, ON

And if that complainant does not do so, let me give notice now that we shall be filing that request.

9:15 a.m.

J. Dupuis Director General, Investigations and Reviews, Office of the Information Commissioner of Canada

Mr. Peterson, I'd like to add that the one you're referring to in the paper might not be exactly the one that's under investigation by our office. I know you're referring to what was in the papers yesterday and today. I'm not saying I can link that to one that is actively with us, because that requester may not have chosen to launch a complaint with our office. It's in the papers, but he has not chosen at this time to make a complaint to our office. As the commissioner has said to you, there is one around the same subject matter that could be under investigation by our office.

9:15 a.m.

Liberal

Jim Peterson Liberal Willowdale, ON

Let me give you notice that we will be launching a request for such information.

Thank you very much.

9:15 a.m.

Liberal

The Chair Liberal Tom Wappel

Thank you, Mr. Peterson.

Madame Lavallée.

April 26th, 2007 / 9:15 a.m.

Bloc

Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC

Mr. Peterson somewhat pre-empted me. Mr. Marleau, I'm sure you recall that we met on another committee, the Finance Committee. That is why I am somewhat familiar with your area of expertise. It is also why I want to address the same issue raised by Mr. Peterson.

Indeed, we saw how the government did all it could to prevent the internal Department of Foreign Affairs and International Trade reports on torture in Afghanistan from being made public. I will ask you the same question in French; that way you can practice. First, the Conservative government denied the existence of the document, and then it was forced to do its homework. Finally, the Department of Foreign Affairs and International Trade made public a version which I would qualify as being highly censored.

I have several questions for you on this subject, mainly because access to information concerns you directly.

Here's my first question. You know, this old Conservative government—I'm sick of hearing it referred to as the new Conservative government—promised during the election campaign to implement Commissioner Gomery's recommendations by reviewing the Access to Information Act, which still hasn't happened. I must say that, unfortunately, as with every government of the last 30 years, this one also refuses to amend the current act. In fact, the government pretends to be moving forward, but obviously does not want to. Perhaps we'll see this very soon. I presented a motion to this committee almost six months ago calling on the new minister to table a draft bill to modernize the Access to Information Act. But for now, it seems that the government is refusing to do so. We'll see what happens later on. This Conservative government refuses to amend the Access to Information Act. I have the impression that this allows it to shirk its responsibilities too easily. Its attempt to suppress information these past few days is another example of that.

You gave two answers in response to Mr. Peterson's question. I don't remember who said what. One of you said that you received a complaint, and the other one said that you did not. That's what I understood. I would like you to clarify that for me.