Information & Ethics Committee on April 26th, 2007

[J. Alan Leadbeater]

It's always in the eye of the beholder, isn't it? But in about half the complaints we get about excessive secrecy we come down on the side of the complainant and in half we come down on the side of the government institution. Of the ones where we side with the complainant, 99% we resolve with the government institution without the need to go to court. So the process actually works as a pretty good alternate dispute resolution mechanism.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

The other thing that jumped out at me was the fact that you're partnering with the University of Alberta. You mentioned that before, and that looks like a wonderful idea. Was there a program before that trained people for your office, or is this a new project?

[Robert Marleau]

There were no formal programs. This began in 2003. As a matter of fact, for a brief time, while I was interim Privacy Commissioner, I enjoined with then Commissioner Reid in supporting this program, and my successor there followed through on it.

It's a new program. It's offered online. It has five modules, I believe, that are needed for certification, and we just had some 40 students write their exams in our office a few weekends ago. I think there are more than 500 graduates of the program now across the country.

Tying into what Mr. Vincent was saying when he was asking me if there was something I wanted to change in the law, this is a dimension of it. I said in my remarks that I don't have an education mandate, but I think, like the Privacy Commissioner, that we should be considering an education and training mandate for access to make it better understood, and hopefully, to reduce complaints.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

How long is that program and what does it cost? I'm just curious.

[Robert Marleau]

I'll ask Monsieur Dupuis to comment on those details.

[J. Dupuis]

I believe the program is something like $400 per course. It's the same thing as a university course in the sense that it's 35 hours of lecture and 90 hours of studies to get them through. Normally students will take one course per semester. Some have taken two. There are even good stories, where one gentleman came in and hired full-time professors so that he could get it all through in five courses as he's going through university. So it is a growth industry.

I'm corrected. It's $700 now per course. We started out at $400.

Most departments are paying those who wish to apply. It's not coming from the students; the government is supporting that. In our office, we support everyone who takes it.

We have 12 graduates in our office now, and I believe there are about 380 people in government now, across Canada, taking the courses. So it's provincial and federal. It's linked for both.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

Good. Thank you very much.

[The Chair, Liberal, Tom Wappel]

Thank you.

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you, Chairman.

Thank you, Mr. Marleau. It's very fitting that you're here today, because I can tell you that some members of this access to information committee are reeling with shock over what we believe to be some of the most egregious and blatant violations of our freedom of information system that we've ever seen exposed publicly. I know you've now received three formal complaints about this same issue, one coming from the NDP, Dawn Black. I have her letter of complaint here.

This is not only the most blatant and serious violation we've seen, but the subject matter is so important, on a national level and international level, because we're being accused of violating the Geneva Convention by some of the information that has been blacked out. It's clear that the government has been busted, with black ink on its fingers, for blacking out sections of this report--36 sections of a 20-page report, all but two under subsection 15(1) of the Access to Information Act, which we supervise.

In your understanding of subsection 15(1), are you allowed to black out basic information such as...? Let me read one line that has been blacked out that we now know is in this report and ask you if you think this would qualify under subsection 15(1). It says here, “military, intelligence and police forces have been accused of involvement in arbitrary arrest, kidnapping extortion, torture and extrajudicial killing” of criminal suspects.

Why would that information fit under the category of subsection 15(1), about international affairs, etc.? Is that the kind of thing that you believe is properly excluded under subsection 15(1)?

[Robert Marleau]

Mr. Chairman, with all respect, again, I did say earlier that it is very difficult for us either to comment on an investigation that we have ongoing, because it's required to be in private and kept confidential, or to speculate on what's out in the media, not knowing whether it is before us, for that matter.

[Pat Martin, NDP, Winnipeg Centre, MB]

Well, sir, you've been staying away from those specifics. It's the optics. Do you think it's proper that entire sections can be categorized under the rubric of subsection 15(1)? Staying away from the specifics, in a nutshell, what is your reading on what would be properly excluded under subsection 15(1)?

[Robert Marleau]

I'll ask the deputy commissioner to comment in a minute, if you want to be specific on subsection 15(1).

But as part of the process when we get a complaint, of course, when there has been severance from the document, we not only challenge it but try to understand it, and we may agree or we may disagree with the government. As I said earlier, there is jurisprudence attached some of these interpretations. Some of the exemptions are mandatory. Some are discretionary. But in terms of giving you a specific example, without having a specific case it's very difficult.

But I'll ask the deputy commissioner to comment.

[Pat Martin, NDP, Winnipeg Centre, MB]

I would urge you to try to be specific, because we're at a crisis point here. Some of us believe that access to information is the oxygen that democracy breathes, and that we've never seen an example so egregious since I've been involved, or since this newly formed committee has been studying the issues of access to information. It's actually rare that the government gets busted so directly and so thoroughly and so....

I'm surprised they're not embarrassed over there. Maybe that's why they're being quiet.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Do you want us to heckle you? I'm right on the edge of heckling you, because what you're talking about is a lot of nonsense.

[Pat Martin, NDP, Winnipeg Centre, MB]

No, it's not nonsense. You will rue the day you said that. I think you'd better keep quiet about this, because you should be embarrassed.

[The Chair, Liberal, Tom Wappel]

Mr. Martin, you opened yourself up to an attack, but I would ask everybody to just cool it.

Can you wrap up your question, Mr. Martin?

[Pat Martin, NDP, Winnipeg Centre, MB]

This does all gear around subsection 15(1). It would be helpful, I suppose, while we have you here, to know in a nutshell what properly can be deleted under that section and what you believe might be overstepping that.

[J. Alan Leadbeater]

Mr. Martin, that is an interesting section for a couple of reasons.

First of all, it is discretionary. In other words, when we investigate a discretionary exemption, we require the head of that government institution to explain what factors, pro and con disclosure, were weighed. Were they the right factors? Were they given the right weight?

It is also--

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Leadbeater, I don't want to interrupt, but who would you ask those questions of?

[J. Alan Leadbeater]

It would be whoever made the decision.

[Pat Martin, NDP, Winnipeg Centre, MB]

I see; you will have to know, someday, who actually put the black felt marker to the paper.

[The Chair, Liberal, Tom Wappel]

Mr. Martin, I know that you came in late. There were two previous questioners on this issue, and that question was specifically answered in the affirmative. Okay?

Mr. Leadbeater, could you conclude your answer on subsection 15(1)?

[J. Alan Leadbeater]

The second interesting thing about that exemption is that it contains an injury test: “could reasonably be expected to be injurious”. That, the courts have said, must be not speculative. It has to be a reasonable expectation at the level of a probability, not a possibility, and the burden to demonstrate that lies on the government institution that claimed the exemption; it does not lie on the requester.

Those are the tests that we would be--

[Pat Martin, NDP, Winnipeg Centre, MB]

Saving the government from being embarrassed is not one of them.

[The Chair, Liberal, Tom Wappel]

I'm sorry, you're out of time, Mr. Martin. You can come back for another round, if you like.

I'm going to take a round.

Mr. Marleau, I received this document: “Office of the Information Commissioner of Canada, April 26, 2007”. I hope you're familiar with it. I found it very interesting and useful. I just have a couple of quick comments and observations.

On page 1, just so that I understand it, there is a flow chart, and there you are, and there is a figure. Is that your salary?