Information & Ethics Committee on Oct. 2nd, 2006

[The Vice-Chair, NDP, Pat Martin]

Thank you, Madame Lavallée.

Mrs. Gallant.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Thank you, Mr. Chairman, and through you to our witnesses.

Mr. Leadbeater, in response to Mr. Kenney's questions, you stated that the Privacy Act was being violated far too often in identifying ATI requesters to exempt staff. Have non-exempt staff ever complained that they were intimidated into providing identities to political staff?

[J. Alan Leadbeater]

If you mean formal complaints made under the act, no, but they have communicated to us feeling pressured to inform senior staff about the identities of access requesters, yes.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

In response to the 1998-99 report of your office, Mr. Leadbeater, you mentioned that there had been complaints of access to information being sufficiently slow to enable PCO staff to manage releases in a way more favourable to the government of the day. Did that process continue on after your office flagged it in 1998-99?

[J. Alan Leadbeater]

Yes, in PCO there has not been a move toward proactive disclosure to the same extent as in other government institutions. Many people seeking information are asked to go through access to information, and that's because there is a process in there for managing the time periods.

There is nothing illegal about that, but it is, I think, out of step. The trend in government now is to go more to proactive disclosures immediately, informal responses to requests, without having to go through the $5 and the search times and so forth.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Aside from the PCO, were there any other departments or ministries participating in this kind of practice?

[J. Alan Leadbeater]

It tends to be central agency departments, or departments that are in the news from time to time and that have big files--for example, Health Canada when the issue was around wait times or the Canada Health Act, or bovine growth hormone or whatever. It depends; if there's a live issue at the time, that department will tend to close up and become more strict about having things formulated through the Access to Information Act.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Has your office flagged this practice in subsequent reports--subsequent to 1998-99?

[J. Alan Leadbeater]

I'm not sure if we have or not. I would have to go and check.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Did it continue with ministers as well as departmental staff--slowing things down on purpose?

[J. Alan Leadbeater]

We're in the process right now of investigating a very systemic complaint against government in general, although we've narrowed it down to about 22 departments. It was made by the Canadian Newspaper Association. They were alleging that, on a systematic basis, requests from the media were getting prejudicial treatment by being answered more slowly and less forthcomingly than other requests.

We have started our investigation. We've sent out questionnaires to all these institutions and we're getting back some statistics on how the various groups of requesters fare in the timeframes, for example. They have very detailed records in departments about how a media request is handled, how a request from a member of Parliament is handled, and so forth. We have those results back and we're doing some analysis.

We'll get representations from the government and from the Canadian Newspaper Association. That will give us a sense of whether there is a systemic problem around government or not, and if so, what some of the causes of that might be. We'll be making some recommendations.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Since the 1998-99 report, have you found that ministries, agencies, PCO...or has your office observed any abuse in using the reason of breach of national security for not complying with a request?

[J. Alan Leadbeater]

Breach of national security is not an exemption of the statute. There are exemptions in the statute around section 15, which has to do with national defence, national security, a whole list of things. We are seeing it being used more often now, yes.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Would you interpret that as an abuse?

[J. Alan Leadbeater]

Some we support and some we don't support.

[The Vice-Chair, NDP, Pat Martin]

Mr. Leadbeater, time is up for that.

This is the place where the NDP would normally have a question, and if you don't mind, I'm going to sneak in a brief one.

All of us want to know how widespread this practice may or may not be. I don't think you are the right witnesses to answer that question. We're going to be calling other witnesses who I hope can tell us what the common practice is in their workplaces.

You've already said you only hear about complaints that come forward. There's probably a reluctance to bring forward complaints. If fear of retribution is one of the aspects of having your name revealed, you're going to compound that concern by being the one who blows the whistle on the practice and files a formal complaint. I think it's common sense that you're not hearing of grievers that frequently.

I'd like to flesh out a little of what Mr. Owen started, the conversation about amber lighting or triage or initial adjudication that may treat one complaint differently from another. The survey you just mentioned, Mr. Leadbeater, will be of some use, but can we say with any degree of certainty that it is common practice to give an initial adjudication to a complaint that will either make it go more quickly through the system or more slowly through the system? Would you see that practice as being contrary to the intent, which is equal access to information for all applicants?

[J. Alan Leadbeater]

The practice is systemic, it's comprehensive, it's in every major government institution. They will classify requests as sensitive or non-sensitive. The sensitive requests get another treatment and that treatment involves a communications plan, Qs and As, higher levels of concurrence, and notification to ministers' offices. What we don't know with certainty is, does that separate tracking, which occurs in every department, prejudice the requester? Does it give them slower service or poorer service?

[The Vice-Chair, NDP, Pat Martin]

I would say that doesn't matter. If it's different service, don't you think that violates the spirit of the act, that all applicants shall be treated equally? We all have an equal right to freedom of information no matter what the source of the request is, whether we are journalists, MPs, or private citizens. If somebody is ranking them and treating one more quickly or more slowly based on its source, that in itself should be a concern for the committee. I think we can agree with some certainty that it is going on. The amber lighting is a fact. It is still to be determined that the revealing of the applicant's name is a widespread and common practice.

[J. Alan Leadbeater]

That's correct. If it results in slower service, of course that's inappropriate. What we have to determine is whether it is resulting in slower service. You can run an amber light system with a parallel. That means a package has to go up through communications, but it may run parallel with the processing and so not slow it down at all.

We've seen cases where it does slow it down, and we've seen departments where it is a systemic problem, but across the system we're not sure. We hope this will help it.

[The Vice-Chair, NDP, Pat Martin]

Not to be controversial, but it is sort of an irony that probably the only people who don't know how widespread the revelation of names is are Madame Lavallée and Monsieur Laforest and me, because the current government knows exactly how frequent it is, and the past government knows exactly how frequent it is. Those of us who have never formed a government nationally are at a bit of a disadvantage because, clearly, not everybody's putting all their cards on the table.

We could skip six weeks of hearings if you guys would just tell us what really goes on.

I've used my time. Mr. Peterson, do you want to go on now?

[Jim Peterson, Liberal, Willowdale, ON]

Maybe they'd like to respond to what you said.

[The Vice-Chair, NDP, Pat Martin]

We have a moment left if anybody would like to respond. Don't you think it would be a breath of fresh air if everybody just told us what really happens out there instead of having to...? Trying to get this information is like pulling teeth.

We're going to have to put some civil servants on the spot in the witness chair, call them in under oath, remind them that they're under oath, and ask them really tough questions about whether they ever get called upon to reveal the names of those making these access to information requests.

[J. Alan Leadbeater]

The only reaction I can give is that it's a very difficult type of investigation, and I'm not sure you're going to be very satisfied.

I'm also not sure that even those who had been in government have an appreciation of how widespread it was, because it's something that operates very much at the officials' level. I can give you an example. I remember, I think, it was in the DND case. The minister then was Arthur Eggleton, and practically every request from that department was being flagged as sensitive. They were all going up, and the records were sitting in some special assistant's office and going nowhere, and the minister had no idea.

I believed him, because the assistant had never read any of the records, so obviously wasn't briefing the minister on what was going out the door. The documents were not even being read. We've seen that in other departments too, that the system suddenly kind of serves itself in a way, but doesn't really serve the minister.

So I'm not sure that even ministers and cabinets would know the extent of it.

[The Vice-Chair, NDP, Pat Martin]

Thank you, Mr. Leadbeater.

Mr. Peterson, you have five minutes.

[Jim Peterson, Liberal, Willowdale, ON]

There are different types of requests that go to a department. One could be as simple as just pulling out information on what type of filing system you use or something like that. Another could be something that has very sensitive implications for the entire department and for the minister. It's not unreasonable, in my opinion, to think that one request would take longer than another.

You've talked about amber lighting being an acceptable practice. I can't disagree with you, sir, that a deputy minister of the department would be very concerned about something that has serious implications for their programs or what they're doing, and they would take time to look at it and develop a communications strategy. I don't think we can overcome that type of activity, but maybe I'm wrong.

Could we legislate that every request be answered within a much shorter period of time regardless of the difficulty? If we wanted to legislate against that or act against that type of amber lighting, which may slow something down, how would we do it?