Information & Ethics Committee on June 19th, 2007

[The Chair, Liberal, Tom Wappel]

Just a minute, Mr. Martin.

[Bruce Stanton, Conservative, Simcoe North, ON]

A point of order, Mr. Chair. Isn't this line of questioning out of order, in the sense that we've established and we've seen now, even from the Information Commissioner, that there has been no evidence of any kind of political interference? These insinuations are really.... That's in the history books now. We're moving on; we're talking about the process. We're trying to shed light on how we can improve the process of access to information. This continued witch hunt around notions of political interference is completely out of order. We've moved on. We even have this report now from the Information Commissioner that says even the allegations with respect to denial of access are unfounded.

Mr. Chair, with greatest respect, I do think we need to move on and try to use our time in a productive way.

[The Chair, Liberal, Tom Wappel]

I don't see that there's a point of order there, but I will remind members that I only saw reference to political interference extremely peripherally in that question. I think the question was directed to the department. Of course, when Mr. Martin said “you”, he didn't mean Mr. Edwards personally.

This question was put to Madame Sabourin, and my recollection is that Madame Sabourin did agree to provide us with an explanation as to why—as I recall it, and we'd have to check the transcripts—in certain circumstances torture is included in some of the reports and not in the others, or words to that effect. So I think Mr. Martin's question was simply how is it that the references to torture are in some but not all references...? To put it another way, in the document that we have there's nothing that talks about torture, and he wants to know why that is. I suppose there are at least two reasons. One of them could be that the report contained no reference to torture because there's no further torture in Afghanistan. I think that would be a stretch, but that's at least a possibility. That's why there would be no reference to torture. If there is reference to torture, the deputy minister has already said he's not going to talk about it because that's behind the black.

In any event, we're right on five minutes for Mr. Martin, but I do have another point of order from Madame Lavallée.

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

I have a point of order, Mr. Chairman. First of all, our Conservative colleagues have stated on two occasions that we are here to examine the Access to Information Act and to see how we can improve upon it. I am very sorry, Mr. Stanton, but I suggest you reread the motion. This isn't the case at all. I can read it again for you, if you like, but it is rather long. We have convened to hold an emergency debate on DFAIT's internal report, to examine this matter, to hear from witnesses, and to shed light on the Access to Information Act, the provisions of which may have been violated in several ways.

As far as the word “torture” is concerned, we have seen the uncensored portions of the report in the Globe and Mail, Mr. Chairman, and until such time as a deputy minister or someone else, officially says that these reports are inaccurate, I will consider the facts reported to be the truth.

Thank you, Mr. Chairman.

[The Chair, Liberal, Tom Wappel]

Again, that's not a point of order, but thanks for reminding us about the terms of reference we have. I do appreciate that.

I think what we had discussed was that we were looking at the access to information portion because we hadn't heard any direct evidence of political interference. I think the deputy minister specifically made that point in his opening remarks, but whether we believe that or not is a different issue. That doesn't prevent people from asking those questions. I appreciate that the Conservative members would like us to focus on—and frankly, so would I at this point, but that's just me—the manner in which the department exercises its access to information responsibilities.

Having said all that, we don't have any points of order. We do have, however, a question from Mr. Dhaliwal, and we will have more opportunity for people to ask questions.

Mr. Dhaliwal.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Thank you, Mr. Chair.

Back to Mr. Edwards again, where Mr. Martin left off. When we look at Canada, you mentioned that we had reports on 111 countries when it comes to human rights. When we look at the U.S., they have 100 and they're all on the Internet. Those 111 reports are all secret, you said. What I personally see is that Canada is trying to hide the human rights...the torture situation. In fact, by making it confidential the way you say, I think we're trying to help the torture and the human rights situation in other countries. Would you like to comment on this?

[Leonard Edwards]

I see your point, and I don't disagree with the fact that when you have reports that are done for public consumption from the outset, and reports that are done for confidential purposes and the use of governments, you're going to get two different kinds of reports. That is simply a fact.

The reports that are prepared for government use, we want to ensure are as frank as possible, that we use the best possible sources and so forth, so that we make sure our government has the best possible advice from its public servants on the basis of confidential reporting. I'm not just talking about the current government. I'm talking about any government, because this is the way we work in the international world, in foreign affairs and international trade.

If that reporting were to become public, or to be known to become public, automatically our sources would dry up. We would have extreme difficulty getting information. I can state this categorically: where there were serious problems in terms of human rights, we would find our ability to speak to those governments—and therefore our effectiveness—of the unpleasantness of their behaviours circumscribed.

There really are two different purposes that drive these two reports, Mr. Dhaliwal. While it is a question of transparency—and I understand that completely—and while the Canadian public deserves transparency, our duty to the public is also to provide good government and good advice to the government of the day. For a public servant, this is always an extremely difficult balance.

That's why, in this particular case, we have the legislation that allows the Information Commissioner to be someone to whom requesters can go after they receive that information to have it tested. The crafters of that legislation certainly saw that. Eventually a court is also a final tribunal to which requesters can go.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

You said that you provide the best advice to the minister, so does the minister get security briefings that would contain the allegations in those reports? Particularly when I look at the sequence of reports, as Mr. Martin said, from the time of the previous Liberal government, those words, “torture” and “human rights”, were not blacked out or whitewashed, whatever word you want to use. But coincidentally, when the Conservatives took power, these words were blacked out or whitewashed. We looked at the report, and it seems as though it is all whitewashed.

Was the minister receiving briefings on these reports from time to time?

[Leonard Edwards]

No, the minister was not receiving briefings on these reports.

Let me go to the point about blacked out and not blacked out. I want to back away from this particular case and just talk about what happens when redactions are done. A person looking at a report to decide what to redact out and what to keep in will look at things such as how old the information is, how important that information is. By releasing it, would we perhaps endanger our ability to deal with the government about whom we're speaking? Would it compromise somebody from whom that information came and so on? There is a time element there that is evident in what you are citing here with these particular reports, but I'm backing away from that and just talking about generic reports.

As I said earlier, there is time. There is circumstance. There is context. There is what we are trying to do vis-à-vis a particular country or in a particular country and how the release of that information might compromise our ability to do it, and there is the discretion of the individual officer. All of these things play into it.

It doesn't surprise me that you can read one from 2003 and one from 2004 and find some things in and some things out.

[The Chair, Liberal, Tom Wappel]

Thank you.

Mr. Tilson.

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

Thank you.

I'd like to return to the area I was questioning you on earlier.

You've had a number of different positions as a deputy minister—I think you mentioned six years—and that makes you experienced. You may not like to think like that, but that makes you experienced.

In your statement, the area that gives me the greatest concern is where you say that annually information requests have increased 10%. You said in this past year there's been a 31% increase. You've also said the files are becoming more voluminous, more complex. Finally, you said there's a shortage of qualified and interested personnel—that one paragraph that you've put in writing to us in which you say that gives you the greatest concern.

Now, this committee, of course, is interested in improving the information legislation, and we will deal with that in due course.

My question to you is, and I tried to get into it during the last time I had, whether at this time you have any recommendations—you as the deputy or through discussions with your staff—to improve the legislation, to improve the guidelines, to improve the process. Obviously, one alternative is to hire more staff, if you can find them, and the other is to improve the legislation to make the system move smoother.

Can you give the committee any advice?

[Leonard Edwards]

I have to be absolutely honest with you and say that I have not thought about improvements to legislation. Maybe that's a factor. I haven't had time to think about these things.

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

I understand, and I anticipated that answer, actually.

[Leonard Edwards]

We will continue to face these pressures from our open and responsible government, as we should, so I would see probably that if the requirements are going to go anywhere, they're going to increase rather than diminish. Maybe it's a question of going back to these guidelines, which we talked about earlier, and seeing how they can perhaps be streamlined or simplified to provide a less work-intensive environment, perhaps, so we can do more things quicker in terms of clearing requests.

But I haven't thought about what legislative changes would be required. I'd be pleased to give it some thought and to provide some advice, if you're still interested, in a week or two.

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

Yes.

Personally, sir, based simply on the testimony that's been given by you and Ms. Sabourin and other officials, I believe the delay issue is going to continue, not through any negligence on your part, but because of that one paragraph that I just read out. I mean, it has to. So we're going to hear about more problems of delays.

The legislation says answers must be given in such and such a period of time. Clearly, that can't be met. So somehow along the line we have to figure out how to deal with that.

So I understand. I appreciate your answer. I'm just saying that probably down the line this committee is going to be looking at these and other issues with respect to information, and I ask that you and your staff consider recommendations.

Thank you, sir.

[The Chair, Liberal, Tom Wappel]

Thank you. My turn.

I'd like to go through Mr. Esau's request, ending in 605. I'm troubled by the amount of time the committee has taken up on what I think could have been dealt with interdepartmentally, Mr. Edwards. I'd like to walk you through it.

I think we can both agree that the request by Mr. Esau is extremely broad. He's asking for an annual or semi-annual report on human rights in countries around the world. He makes that request on March 13. It goes to the office of principal interest, GHH, and the office of principal interest replies on March 22 that Canada does not produce an annual human rights report analogous to the reports produced by, for example, the U.S. or the United Kingdom. By the way, I note that neither of those countries was mentioned in the request. Therefore, no such report on human rights performance in other countries exists.

You said today in your opening remarks that annually there are many reports like this on individual countries, and indeed last year there were 111 country-specific reports.

You then go to the access to information manual that is produced by Treasury Board. At tab 2-4, on page 2, we read the following. This is, by the way, guidance for your officials:

Often the request is expressed in broad terms because of a lack of knowledge about government operations. An employee of the institution experienced in the area of access should contact the requester to clarify the nature of the request or help the requester to understand any difficulties which may be encountered in processing.... Well handled requests may reduce the incidence of complaints.

I want to underscore that, Mr. Deputy Minister: “Well handled requests may reduce the incidence of complaints.”

When the GHH advised, I'm curious as to how they could give advice that no such human rights report on other countries exists when they know in their own division that last year there were 111 country-specific reports. It would have seemed to me the simplest matter in the world to pick up the phone--I'm an old guy, so I pick up the phone, but I suppose the new way is to e-mail the requester--and say, “Gee, that was a broad request. Do you have anything specific you're looking for?” I would presume that Mr. Esau would have said, “Yes, I'm looking for Afghanistan.”

Since by your own testimony we know there were 111 country-specific reports, somebody at GHH could have said, “Yes, we have one for Afghanistan for 2006. Is that what the requester wants?” The answer would have been yes, the document would have been provided--never mind the redaction issues--and we wouldn't be going through all this. That's how I see it. I sure hope you see it that way, because that would have obviated an awful lot of hassle for everybody.

What really bothers me after that is the note you have in your chronology of April 10, 2007. Gwyn Kutz, director of GHH, talks about different things, and I quote:

The Division does produce reports following certain situations that may develop in individual countries (i.e. Afghanistan or Haiti). If Requester wants Division to search for each report, it would take 'hundreds' of hours to locate all the reports.

I find that absolute baloney. We already know there are country-specific reports per year. They have to be filed alphabetically; otherwise how would you ever find them? Afghanistan is at the beginning of the alphabet. I don't understand how this person could have reported that it would take hundreds of hours to find a specific report on Afghanistan when you yourself have said that the GHH knows perfectly well that 111 country-specific reports were produced in the last year. That answer was then provided to Mr. Esau, because he gave the committee testimony that he was shocked that he would be required to pay for hundreds of hours of searching.

All of this inquiry on this aspect--not the blacking out at all--could have been obviated by a simple question: “Hey, Mr. Esau, what are you looking for? Afghanistan? Which year do you want? Here it is.”

Now, on the issue of what was blacked out and what was not blacked out, that's fair enough; that's between the department and the requester, and if the requester doesn't like it, he goes to the Information Commissioner. But we've been spending an awful lot of Parliament's time on something your department could have dealt with in two simple questions, and I don't understand why they didn't do it.

[Leonard Edwards]

You'd like a response.

[The Chair, Liberal, Tom Wappel]

Yes.

[Leonard Edwards]

Well, I have to say this one has troubled me as well, Mr. Chairman, because I too was concerned about some aspects of this chronology. As I understand it, having talked to my staff as late as yesterday about this, I could see how, in looking at the nature of the request, they could have come to the conclusion about the global reports and so on. Again, it's a contextual thing.

Could we have done better on this one by asking some probing questions? Perhaps. I don't disagree with you on this one, but when you look at the context.... I don't have the material here; maybe we could provide that to you, if you like. I'm sorry if I'm sounding apologetic for my people, but they have a lot of requests coming across their desks. They're trying to handle them in a hurry; they see this, they take a quick read, and they say he's looking for a global report. They send it off--let's see what we can get. I think there's some aspect of that there.

On the issue you talked about farther down--April 10, and taking hundreds of hours to locate the reports--I'm not sure that.... Again, Ms. Kutz is here and will speak for herself later, but I think probably what she's saying is not to locate all the reports; I suspect she's saying it's 100 hours if he wants all the reports, and that it's going to take hundreds of hours to go through them and redact them.

[The Chair, Liberal, Tom Wappel]

The word is “locate” all the documents—

[Leonard Edwards]

I know it does, but I'm just wondering if that's really what's meant here, because like you, I know it shouldn't take hundreds of hours to locate.

[The Chair, Liberal, Tom Wappel]

You can see, Deputy Minister, why we wanted to call Ms. Kutz.

[Leonard Edwards]

Yes.

[The Chair, Liberal, Tom Wappel]

Okay, my time's up.

Mr. Van Kesteren is next.

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

Thank you, sir, for appearing. I think it shows great character that you would come here to represent your staff, because--and we've discussed this at length too--it must be extremely stressful to appear before a committee. I know you're used to this, but I know that for most of them this is probably something they wouldn't relish.

Most of us are satisfied with the process that's in place. It is slow, but I think it's working. As Mr. Tilson and some others said, I think most of us are focusing on improvement to access to information.

There have been a number of questions about ATI performance, and maybe this has been asked, but do we need more staff? Is that part of the solution—we just have to hire more people?