Information & Ethics Committee on April 15th, 2008

[Robert Marleau]

This is prepared on the basis of a forecast of spending for 2008 prepared in January, well before the end of the fiscal year, and then looking out three years. It happens that for 2008-09 we did look out to 2008-09 and made a supplementary submission late last fall, and it will be part of the supplementaries you will see in the fall. There was no way to integrate that in July 2007 in time for the preparation of the mains.

[Mike Wallace, Conservative, Burlington, ON]

I don't believe you. I think you could do it if.... You know that for 2009-10 you want 90 people, Mr. Marleau, if you're going to try to get that backlog changed. For 2010, I don't understand. If you know you're going to need those people, why are we not told well in advance so we can budget for it?

[Robert Marleau]

It's the Treasury Board cycle for preparing estimates. That's all I can tell you.

I can tell you right now that the 82 we're looking at for 2009-10 will likely not be enough, but that figure was planned three years ago.

[Mike Wallace, Conservative, Burlington, ON]

I have it right here. I have 2008-09 in front of me, and it has 90 people in it. So it was planned a while ago. I can see that. But I don't know....

[Robert Marleau]

I couldn't put 90 in there for the 2009-10 period because my approved level at Treasury Board on the basis of that three-year submission, decided by Parliament, was that it would be clawed back. Now, I may have to make an argument, both at Treasury Board, before the parliamentary panel that reviews our submissions, and at this committee to justify the 90. For that I want to do an A-based review, and I want to come here with facts and figures.

[The Chair, Liberal, Paul Szabo]

We'll begin the second round with the Honourable Judy Sgro. Five minutes is our question and answer slot.

[Judy Sgro, Liberal, York West, ON]

Mr. Marleau, now that we have this administration in front of us, for the top five sections--everybody works very fast and efficiently here; you handed it out, and instantly we all have it--would you go over these numbers a bit and explain the graphs a bit, starting from this year?

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

But what we 've been given here is not in colour.

[Robert Marleau]

That's unfortunate. We could talk about the percentages.

What do you mean, in terms of...?

[Judy Sgro, Liberal, York West, ON]

You have where these complaints generally come from. There's the Department of Foreign Affairs, National Defence, and various departments.

[Robert Marleau]

Right. These are the top five cited exemptions and exclusions in all of our complaints. This is not in the system. All of these statistics are what's within our control and knowledge through the complaints process. What we've done is allocated the percentage of them by section in the statute. Section 19 deals with personal information--privacy issues, essentially--and section 19 is the navy blue, which is at the top--

[Mike Wallace, Conservative, Burlington, ON]

What's the percentage for 2007-2008?

[Robert Marleau]

In 2007 it is 27%, over 23% of the previous year, and over 28% of the year before--so kind of a constant there in terms of, through the complaints process, invoking privacy and personal information.

To get back to what Mr. Martin had raised earlier, if you take section 15, which is the light blue, it's 13% for the now-expired year, 13% for the previous year, and it was not really captured in the year before--again, a constant, but that's only within the complaints process.

Is this Afghanistan 2006-2007 that creeps in? It's difficult to say, but I suspect that's part of it.

That last comment is more anecdotal than scientific.

[Judy Sgro, Liberal, York West, ON]

As you're looking at your reorganization, and so on and so forth, and trying to modernize the access to information program.... Given your new setting, do you continue to expect that you're going to have more and more complaints, based on what you've had in the past?

I realize you mentioned that you were going to be quite clear with the government and others to provide transparency with the hope that would be reducing the complaints. Do you have hope that will really transpire in the way you're looking at the future of your organization?

[Robert Marleau]

It's difficult to read the tea leaves and try to predict where it's going to go. What I can say is that we had a major spike at the beginning of the fiscal year, which stayed with us through until recently, until the end of March. The trend--if you look at this chart, and I can make this available to the committee--was on the rise considerably, and then it's peaking down.

Are we going back to norm next year? I don't know for sure. I suspect that we'll be at a different norm because of the 60-day window that people must complain within or they're rejected. It's difficult to say whether we're just reaching another plateau. The plateau has been there for five or six years at around 1,300, 1,400, 1,500 complaints. We're now well over 2,000. Is that the new plateau? I can't say for sure.

There's also another dynamic at play. We used to open up an investigation on every complaint and move it along for as long as it was required for the requester to have the information they asked for, or if there were exemptions, extensions, or complaints, it went through that one process. Now, if it's a deemed refusal, we get a commitment date, we tell both the complainant and the department, “That file's closed. If they don't meet their commitment, come back and see us.”

We hope to create a better dialogue and monitor that. In other words, once the department is committed to a date, it's got to do something or we'll be back, rather than us just carry the file along on behalf of both the requester and the department.

[Judy Sgro, Liberal, York West, ON]

The whole issue of prioritizing the complaints and the ability to be able to label things as a frivolous complaint, because I expect you get a lot of those as well.... As you go forward with trying to reorganize and make some changes, is that one of the areas you are going to allow yourself some more room on?

[Robert Marleau]

Mr. Chairman, I'm glad the honourable member raised that word, because the commissioner can't, himself. There's no such thing as a frivolous request and there's no such thing as a frivolous complaint. There's no such word in our statute.

[Judy Sgro, Liberal, York West, ON]

There should be.

[Robert Marleau]

There are in the provincial statutes--frivolous and vexatious clauses are in there--and that certainly has to be part of the debate when we look at modernizing the regime and the act. They exist, but the statute says I shall investigate, and through the process--if it is frivolous or vexatious--and through the mediation we either get the expectation of the requester to be reduced or the department to be more understanding. But some of those are time-consuming.

We won't have, in this new approach, a frivolous and vexatious category. But our early intake and early resolution unit should be able to solve those before they become an investigation.

[The Chair, Liberal, Paul Szabo]

Thank you.

Mr. Wallace, you have another five.

[Mike Wallace, Conservative, Burlington, ON]

Thank you, Mr. Chair. I'm going to share my time with Mr. Van Kesteren.

I get a little excited about these things, so I apologize if I offended you.

I think three years is a bare minimum that we guesstimate out to what we're going to be. What would your suggestion be, then, for me as a politician on this side of the table to improve the system so that you don't have to put the 82 in there? You plan properly, in my view. You're forced to do it by the rules, in a sense. If you can't tell me now, you can e-mail me. What needs to change to make it more reasonable for departments and commissioners to properly plan their budgets and to allow us to properly investigate, in your view?

Do you have any comments on that? Suzanne, you're eager to answer.

[Suzanne Legault, Assistant Commissioner, Policy, Communications and Operations, Office of the Information Commissioner of Canada]

Part of the issue is that we're talking about planned spending. It's not the spending that we plan strategically when we develop our strategic vision for an organization. We say we forecast that over the next three years this is where we want to end up and these are the resources we're going to need.

This is not what's recorded here. What's recorded here is we know we're going to have this spending this year and we know we're going to have this spending next year. In the following year, based on what's been approved already by Treasury Board, this is what the situation's going to be like. The exercise you have here is not linked to what we would develop in our strategic vision as the planned resources that we would need to implement that. It's a different exercise.

[Mike Wallace, Conservative, Burlington, ON]

Right.

Do you not think that they should be? Should they not be connected?

[Suzanne Legault]

I think there should be and could be a section of this document that addresses that idea. It addresses it in part by our identifying some of the external factors that are going to put pressure on the delivery of our program, which is what we have here, but it doesn't translate into our expectations in terms of additional resources, and I think that could easily be added.

It doesn't mean that Treasury Board Secretariat will allocate that money or that Parliament will agree to allocate that money, but at least it would give a better indication.

[Robert Marleau]

In Treasury Board-speak, if I may add, it's called the ARLU, the annual reference level update, and they won't allow you to put down any figure other than what has been approved by Parliament. Technically, in this case, we go back to 82. That's because we only have three-year increase approval level, so we go back to 82.