Information & Ethics Committee on April 15th, 2008

[Mike Wallace, Conservative, Burlington, ON]

Okay.

[The Chair, Liberal, Paul Szabo]

Go ahead, Mr. Van Kesteren.

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

Thank you, Mr. Chairman.

Thank you for coming.

Commissioner, when I read your quote here, I was reminded of another quote. It was from Ronald Reagan, who said,

The nine most terrifying words in the English language are “I'm from the government and I'm here to help”.

What I like about Reagan is the same thing I like about you, and I give you that as a compliment: he had the ability to measure up quickly what he wanted to say. In the times we've met with you and in the times I've spoken to you, I found you have that gift as well.

When we did the Afghan report, there was a lot of concern that the bureaucracy was inept. In the end I think we really found that wasn't the situation. There were other things at play. The people in the bureaucracy are just trying to do their jobs. They're trying to do their jobs well, and I like to think that in government that's pretty much the case for those who work in the bureaucracy.

I'm going to ask you two questions. You've been at this now for about a year, and there have been some allegations that we are involved in a culture of secrecy. Do you think that's true? Do you think our government is shrouded in a culture of secrecy, or is it just a matter of...? Maybe I shouldn't lead the witness. Do you think we're in a culture of secrecy?

[Robert Marleau]

It's the first time in my life that I've been compared to Ronnie Reagan. So the paraphrase comes to mind, “Mr. Prime Minister, please tear down this wall”, in terms of secrecy.

[Some hon. members]

Oh, oh!

[Robert Marleau]

I do not believe there is a culture of secrecy in the public administration of Canada. I've said this publicly before.

Are there pockets of resistance to disclosure? Of course there are. Are there some groups who plan to make it difficult for documents to be made available? Probably. I don't see it as a conspiracy. I don't think deputy ministers get up in the morning with the intention of violating the Access to Information Act.

We have a Westminster model of governance, based on cabinet confidence. Does it flow down the side of the mountain? Yes, of course it does. Every senior public servant doesn't want the minister to be surprised or to get caught out with information that he or she doesn't already have and can't explain. So there is a reflex in this system that has to be managed. That doesn't mean they cannot be more transparent. It doesn't mean the executive cannot support a regime of more transparency, more timely disclosure, more complete disclosure, and more proactive disclosure outside of the statute.

I reluctantly joined the debate on the so-called lack of disclosure about the detainees issue in Afghanistan just after Christmas. But it wasn't really an access issue; it was a communications issue. If we can get governments to more proactively communicate what they do.... Whatever their message is, it has to be verifiable through the access to information regime. So you can't communicate something as an executive and not allow verification of that message.

It's that dynamic that I was talking about in the quote I used. It's a continuum of sharing of information that renders everything more transparent.

I may sound Pollyannaish, but I don't believe there's a culture of secrecy. I believe there is some bad performance—and that has to be addressed.

[The Chair, Liberal, Paul Szabo]

Thank you.

Mr. Nadeau, s'il vous plaît.

[Richard Nadeau, Bloc, Gatineau, QC]

Thank you, Mr. Chair.

Good afternoon, Mr. Marleau, Ms. Neill and Ms. Legault.

People file complaints because they're not satisfied with the answer they receive. The complaint then goes to your office. I'm going to make a comparison with an area that I know better. The Commissioner of Official Languages has a grid that rates departments and shows which ones are doing a good job, which ones are doing less well and which ones should be doing more to promote the official languages.

Have you noticed that there are some departments where there are always more problems? Why is that? What could we do to improve the situation?

[Robert Marleau]

It is true that pretty well the same departments turn up on our non-performance list every year. The report cards we put out in the past were just for those who failed to meet the initial 30-day deadline.

I think the situation is much more complex than that. That is why the new report cards we want to give the government will include the context involved. We are at war. Everyone is familiar with the Afghanistan story. The Department of National Defence and the Department of Foreign Affairs are experiencing huge increases in the number of access to information requests. There may be an explanation for the delay, or perhaps there could be improvements in this area. If we have an answer from the department and an action plan, the committee will have all the information about the department's performance. So far, you have had just part of the information.

I want to use these report cards to create a public contract with the deputy minister under the new provision which states that deputy ministers must show leadership and have a reasonable duty to assist people requesting information. With an overall action plan for the department, I will be creating a public contract with these report cards. It will be up to you, as members of Parliament, to hold them accountable for this contract. I do not have the authority to enforce the act more rigorously. All I have is the power to investigate and make recommendations. In an extreme case, I could go to the Federal Court, but it takes 7, 8, 9 or 10 years to get a ruling. We are counting on these new report cards to have an impact on the performance of various departments.

[Richard Nadeau, Bloc, Gatineau, QC]

I am not surprised to hear you mention the Department of National Defence, for the reasons you outlined. I imagine the same is true in a number of other countries with parliamentary systems similar to ours and that are involved in wars someplace in the world.

Are there any other departments apart from National Defence? Which one has the best results—let us look at the positive side of things—and which has the worst results? We know why you mentioned the Department of National Defence. You explained that there are various conflicts, military strategies, and so on. Nonetheless, could the departments that do a good job not be a model for similar departments?

[Robert Marleau]

This too will be the objective of the report cards. They will include an evaluation of best practices and we'll publish them. If a department has improved and achieved some very good results by using a particular technique, we hope this practice will be passed on to other federal institutions. To answer your question, I cannot tell you which department has achieved good results from the list I will give you, because I am the person who gets the complaints. However, the number of complaints is not exactly an indicator of a department's performance.

I already mentioned the Department of National Defence.

This year, the CBC is at the top of the list. A new institution was established in September, and a flood of requests came in in the first few months. There were actually 535.

The Privy Council is always near the top. Most of the time, it is because it takes a long time to respond because consultations are required, and so on. It is at the top of the list.

The Royal Canadian Mounted Police is always in the top five. Here again, sensitive, and sometimes difficult issues are involved. There could be room for improvement in its performance as well.

The Department of National Defence and Revenue Canada are always in the top five or six departments each year.

[Richard Nadeau, Bloc, Gatineau, QC]

Thank you, Mr. Chair.

[The Chair, Liberal, Paul Szabo]

Mr. Wallace had a burning question. I'm going to let him throw it in before we wrap up this part.

[Mike Wallace, Conservative, Burlington, ON]

I have just one question. In terms of the report cards you're working on, the new report card system, which I think is a great idea, are you getting any input from parliamentarians on what they'd like to see, or do you think you know it already? Do you need help, or are you...?

[Robert Marleau]

This is the first test, the first round. We certainly hope that when they're tabled you'll give us feedback on how useful they are. We've offered that to our federal partners as well. The dialogue we will have with departments will be about how they can be improved so that they become a tool for them as well. So we will very much be looking forward to your input.

[Mike Wallace, Conservative, Burlington, ON]

I appreciate that. Thank you.

[The Chair, Liberal, Paul Szabo]

Mr. Marleau, you have outlined for the committee that you are in the midst of somewhat of a chaotic situation that's going to take some Herculean solutions. But they're very important, and I don't think we should concentrate too much on regulating away the backlog, or redefining it away. That's too simple to do, because the rights and the public interest have to be served as well. There's that balance.

We are celebrating the 25th anniversary of the Access to Information Act. I'm not so sure it's a celebration when we've allowed the system to morph into this situation. We need to do better, all of us, and we look forward to progress reports from you. We certainly look forward to an opportunity to deal with you again.

I have one quick question. Would reviewing and updating or modernizing the Access to Information Act in itself help you to deal with your situation?

[Robert Marleau]

There is no question that reviewing or modernizing the act would help with our situation in terms of the act being more precise and what the legislator wants in terms of time extensions and performance by departments.

Right now, after they've responded to a requester in the first 30 days, basically they can claim all the time that they feel they require, unless it becomes unreasonable, and then I investigate.

What's reasonable in law—I'm not a lawyer, but I've been told this before by lawyers—is reasonable in the mind of a reasonable judge on a reasonable day. So it becomes quite a debate.

I know the committee has committed to reviewing or at least beginning a review of the Privacy Act. We'll be following that with interest. We may even want to provide you some of our views, because many of the principles in that statute are the same principles we will operate under. So I think there's kind of a window for us to get a feel about these issues, and what might be modernization of the Privacy Act in principle could also be modernization of the Access to Information Act in principle.

[The Chair, Liberal, Paul Szabo]

We are certainly quite aware that to do either of the acts properly, it is not a two- or three-month project. It is several months. We need to make that commitment, and I hope we're not leaving this too late before we can have a role to play in improving the situation and working with you.

So I thank you and your colleagues for coming to give us a frank assessment of where you are. I think the members are quite satisfied with your numbers, other than the fact that quite frankly, when it gets down to it, money should not be the reason we are not doing the job as well as we are. If it's FTEs, Treasury Board maybe just doesn't get it--I don't know. If we can help in that regard, we can't increase budgets, but maybe we have to start that dialogue with Treasury Board when putting important acts like the Access to Information Act in such jeopardy. So thank you kindly.

[Robert Marleau]

Thank you very much, Mr. Chair. We're always happy to talk about more peanuts.

[The Chair, Liberal, Paul Szabo]

Touché.

I'm not going to suspend. I'm simply going to excuse the witnesses and I'm going to ask Heather Black to please come to the witness table and get settled. I know we don't have a vote today, but we'd like to be finished on time.

[Proceedings continue in camera]