Information & Ethics Committee on April 15th, 2008

[The Chair, Liberal, Paul Szabo]

Good afternoon, colleagues.

Our meeting today is pursuant to Standing Order 81(4), on the main estimates for 2008-2009, votes 40 and 45 under Justice, referred to the committee on Thursday, February 28, 2008.

Our witness today is from the Office of the Information Commissioner of Canada, Mr. Robert Marleau, who is the Information Commissioner.

Welcome, Commissioner. I would invite you to introduce your colleagues to the members, and I understand that you do have a brief opening statement for the members. I would ask you to proceed.

[Robert Marleau, Information Commissioner of Canada]

Thank you, Mr. Chair.

Honourable members, thank you for the invitation and for the opportunity to inform you of the priorities of the Office of the Information Commissioner of Canada for the upcoming fiscal year.

With me today are Suzanne Legault, Assistant Commissioner, Policy, Communications and Operations, and Andrea Neill, Assistant Commissioner, Complaints Resolution and Compliance, and Mr. Daniel Brunet, the General Counsel and Director of Legal Services, as well as Mr. Stephen Campbell, Director of Financial Services.

When I appeared, Mr. Chair, before this committee last year on main estimates, a few months after taking up office, l said my mission as Information Commissioner was to resolve complaints, to foster better relations with federal institutions, and to persuade them to be more open and transparent with their information. My staff and I, through a variety of activities, worked towards that goal every day.

It became apparent, however, during the year that other pressing priorities needed careful attention to ensure effective and efficient stewardship of the office's internal operations in the area of investigations, internal support services, administrative services, and human resources. A lot of efforts were made and will continue to be made to strengthen and in some cases build the organizational capacity of the office.

The office currently has an annual budget of $7.6 million and 78 full-time employees. This budget has not been substantially modified in recent years while the office has been managing additional responsibilities.

Last year, we sought and received Treasury Board approval for additional funds to comply with the requirements of the Access to Information Act as amended by the Federal Accountability Act, and to establish and maintain an internal audit function as required by the Treasury Board.

This additional funding is not reflected in the 2008-2009 Main Estimates but will be part of Supplementary Estimates in the fall. If Parliament grants this supplementary funding, it will increase our annual budget to $9.6 million and our human resources to 90 full-time employees for 2008-2009.

The coming into force of the Federal Accountability Act placed additional demands on internal resources to the point that a review of our service delivery model, including our investigative and administrative support processes, is required. In order to assess whether we have sufficient resources, human and financial, to deliver on our mandate, our office will do an A-base review of our funding, operations, technological equipment, and staffing levels.

We've already begun to look at ways to improve the efficiency of the operations. We started a comprehensive review of our complaints handling process last year, where much improvement was needed. This is one important action of our backlog strategy.

With this strategy l was hoping to announce today a large dent in our backlog. However, at year-end, according to our service standards, almost 85% of our cases are still in backlog, an increase from last year.

How can this be? Well, the near doubling of our complaints significantly contributed to this. l think, however, that our service standards are unrealistic and played an important role in the backlog by setting timelines with no consideration for the complexity of complaints and the resources available.

This year, we'll fully implement the strategy, starting with establishing, on a pilot basis, a dedicated intake and early resolution unit that prioritizes complaints according to a set of criteria that we are now developing. Such criteria may include urgency of the request, nature of the complaint and its complexity, and type of complainant. We'll also set aside our existing service standards and instead we will inform our clients on a case-by-case basis of the expected timel it will take to respond to their complaint.

Other areas of our operations, such as information technology system, will require significant strengthening in light of advances in technology. This reinforcement of resources is essential to provide the appropriate tools for staff to do their job efficiently and to enhance electronic communications between us and federal institutions and the public.

In order to assist Parliament and government in addressing access to information issues, we also need to bolster our policy development capacity and the parliamentary relations function.

I would like to note in passing our new approach to report cards, which will provide a more complete picture of the performance of the selected institutions. We selected ten institutions that will be assessed against various criteria, such as the timeliness of their response to requesters; trends we've observed in the last year, such as consultations, request processing models, and the use of extensions; good practices; and the progress these institutions may have made to comply with the act. The results of these reviews will be available in the fall by way of a special report to Parliament.

More fundamentally, an important priority of this office is to give careful consideration to the reform of legislation. Mr. Chair, on July 1, 2008, the Access to Information Act will be 25 years old. Important amendments were made last year as a result of the Federal Accountability Act--namely, the inclusion of a statutory duty to assist. Nonetheless, in this celebration year, I believe it would be timely to take a step back and look at how the act needs to be adapted to today's realities.

I want to commend this committee for your interest in seeking reform of the legislation. I stand ready to assist Parliament in modernizing the access to information program. In leading up to such a dialogue, my office will hold a round table in June 2008 with stakeholders to exchange ideas on legislative reform as well as administrative reform. We will report on the round table this fall.

In conclusion, Mr. Chairman, I'd like to leave you with a quote from the 2002 Delagrave report. It conveys my views and my approach to improving the access to information regime:

There is no magic solution to the shortcomings of the system. A healthy access to information system needs all its parts functioning well in order to deliver the outcomes intended by Parliament: the right systems to process requests, skilled staff, supportive managers and Ministers, adequate resources, good information management, good understanding of the principles and the rules by all, including third parties, and effective approaches to oversight.

Mr. Chair, I've outlined the office's priorities and the financial requirements for these activities in 2008-2009. I plan to table our annual report to Parliament in the last week of May 2008, and a special report, with the new report cards on access to information performance by selected federal institutions, in the fall.

Thank you for your attention, and I stand ready with my colleagues to answer your questions.

[The Chair, Liberal, Paul Szabo]

Mr. Commissioner, thank you for this very frank report. I think it's very clear, and I'm sure that the members will want to discuss a few elements of it with you.

I have Mr. Pearson, followed by Madame Lavallée, and then Mr. Wallace.

Mr. Pearson.

[Glen Pearson, Liberal, London North Centre, ON]

Thank you, Mr. Chair.

Commissioner, it's nice to see you with us again.

I'm intrigued by what you just said in your report, that perhaps we need to step back and look at how the act needs to be updated. I would be interested in some of your comments on that, but you don't have to give them now; just be thinking of those through your time here.

When you were last here, you talked about how your office was having trouble with accommodation for staff. Do you recall that? I am wondering how you've done with that, because you felt that it was something of a holdback.

[Robert Marleau]

Yes, indeed, sir, it was a holdback from my predecessor. I had anticipated occupying new space by August and September of last year. Unfortunately, that did not transpire.

We're moving in two weeks' time, the week of May 6, I think. We've secured more accommodation on the seventh floor of Place de Ville, where we're currently on the 22nd floor and the fourth floor. We now have sufficient space on the seventh floor, which has been renovated for us.

It will allow us not only to move forward on our backlog strategy, but also to staff up to the number of FTEs we have. We've lost another year, is the short answer.

[Glen Pearson, Liberal, London North Centre, ON]

I understand.

But it's not resolved yet, and you hope it will be soon?

[Robert Marleau]

I can say it's resolved. The offices on the fourth floor are packing; it's that imminent.

[Glen Pearson, Liberal, London North Centre, ON]

I read with interest a speech you made to the Department of National Defence a little while ago. I don't know if you remember it, but you talked about the backlog and what access to information requests and other things were facing. You made an evocative comment in saying that if governments began to do more in communicating with Parliament, the public, and the media, you felt that the access to information requests would decline.

I read that speech, because I was interested to see how you would see that happening. Part of what we have to do here is to help you with prevention so that everything will not be all doubled up again this year, as you said.

Can you maybe expand on that a bit? How would you see us, as parliamentarians, being able to provide that service for you?

[Robert Marleau]

In terms of access to information requests declining through more proactive disclosure, that's kind of a long-shot call on my part. But the more there is proactive disclosure on behalf of federal institutions, the more those who are looking for information are better informed when they ask for more specific information. I think it would cut down on a lot of the fishing expeditions that go on from time to time asking for a whole range of documents in order to find that pearl or that needle in the haystack.

It's also linked to the duty-to-assist provision that you've included in the statute. To make every reasonable effort to assist the requester is another dimension of the statute that I think would reduce some of the complaints I get.

On the second part of your question about what the committee can do to assist us, these new report cards we'll be tabling with Parliament, which will be referred to you in the fall, are really an effort to give you better information and leverage your interest in getting the institutions to account for their performance. They'll present you with not just delay statistics, but a context of operations and performance in that year, a response from the government institution, and hopefully an action plan. You will have that in the fall at the same time you get departmental performance reports in the supply cycle. You've been getting them early in the year and they've been focusing only on delays--it's an A or F grade, it's a one-day wonder in the media--and to some degree I don't think you're getting the whole story.

I don't want to say it's an effort to leverage the committee to get the system to move along, but it will certainly give you the information you need to hold them to account.

[Glen Pearson, Liberal, London North Centre, ON]

Can we go back to my original point? In your report where you talk about how the act needs to be adapted to today's realities, can you point us in the general direction of what you're speaking about?

[Robert Marleau]

After 25 years, we know that the reports of the former commissioners and my report last year--which wasn't fully my own report--have a common thread in them: delay, delay, delay. There is a lot of frustration out there about the time it takes us to investigate and answer a request. I think we have to look at means for building incentives for better performance. Nobody likes the concept of sanctions, but we need to have a discussion about sanctions versus incentives.

We have to look at the challenges that technology has brought, like email. Searching email is a very complex exercise now. You can't just search the subject line. The particular record you're looking for may have several iterations of a title within the body of the email. There are some technological challenges we have to look as far as information management and searching for that information. Training of staff, both within my shop and the ATIP community, is related to that.

So it's a question of bringing it into the 21st century. In 1983 cellphones were huge; e-mail was in a display-phone-style, in its infancy; and of course digital information was still thought of as microfiche on film. I think the technological context has evolved such that the act has to be adapted to some of those issues.

[Glen Pearson, Liberal, London North Centre, ON]

Thank you, Commissioner.

Thank you, Mr. Chair.

[The Chair, Liberal, Paul Szabo]

You have the floor, Ms. Lavallée.

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

Thank you very much, Mr. Chair.

I must say, Mr. Marleau, that I have so many questions that I hardly know where to start. I have too many questions, and I'm going to have to make some choices between the technical questions I would like to raise and the more political ones.

First of all, in your presentation, you say that you are ready to assist Parliament in modernizing the access to information program. And you talk about your round table in June with stakeholders. This is not a priority, but at some time, I would like to know who you are planning to invite to your round table. However, that is not my question, as I said, I hardly know where to start, so I feel I have to demonstrate what I mean.

I'm going to speak in more general terms about modernizing the Access to Information Act. I have noticed—and I didn't need a private school education to figure this out—that governments do not want an Access to Information Act. They want one for window dressing, but they don't want a genuine act. Even at this committee, when we talk about reviewing the Access to Information Act, modernizing it and strengthening it, immediately all the government members become quite uncooperative, and actually resort on some occasions to delaying tactics.

We've invited the Minister of Justice to come and discuss this with us on a number of occasions. The first justice Minister, Vic Toews, did appear before us, but all he did was to put the ball back into our court so as to do nothing or to keep committee members busy. The new minister has not even shown his nose here. At some point, we threatened to have all his officials appear, and he gave us an approximate date, but in the end, he never came. It is extremely difficult to get him to appear before us. I must say that I am very surprised, because every time we talk about an Access to Information Act, the representatives of the parties that could form the government in the not-too-distant future are reluctant to follow our lead.

In addition, I have said this publicly, Mr. Marleau, and I said it to you at a private meeting, it is not my impression that you want to enforce the act rigorously. I would like you to tell us what your arguments are, as you explained them to me at our meeting. A number of people are calling for this new legislation. Last week, I even saw a new bill that a journalist had put forward that would make the changes to the legislation that he would like to see. After John Reid's draft bill, a journalist drafted a new bill in his spare time. There are major problems and shortcomings with the current legislation. As you said, when the act was written, cellphones were huge, but I do not think there were any cellphones in 1983. I got my first one in 1988, and was one of the first people to have one.

I would like you to tell us clearly whether you intend to enforce this act rigorously. What are you really prepared to do to modernize the Access to Information Act?

[Robert Marleau]

I would like to start by saying that the round tables are part of the process. I said earlier that I was ready to assist Parliament in modernizing the program. I think there are three parts to this modernization process.

First of all, we need to modernize the public service culture as regards what I call the service culture. We must advocate a service approach when it comes to responding to inquiries. With respect to the latest amendment you made to the legislation, I will base all of my initiatives on the duty to assist in a reasonable way. I see this as a question of leadership on the part of deputy ministers.

I met with about 20 deputy ministers on the advisory committee of Treasury Board at a breakfast meeting. I told them that I see the duty to assist provision in the act as a question of leadership. Parliament did not include this concept in the act as a motherhood statement. The head of a business or a federal institution cannot delegate this responsibility to the coordinator. In terms of leadership, this is a continuum from the top down and from the bottom up.

The second component is the modernization of the administration. With Treasury Board, we have already started working to review the recommendations contained in the Delagrave report. This report was supported by my predecessor, but it has been gathering dust since 2002. Ms. Legault, the Assistant Commissioner, Policy, Communications and Operations, has begun discussions with Treasury Board representatives to begin moving these issues forward. We're talking here about statistics, training, recruitment and the qualifications of public servants, and perhaps some day their certification. In your report on Afghanistan, you used my recommendation that these people be certified, that their skills be identified and that their role within the federal institution be very specific.

The third component is the modernization of the act. This involves all sorts of considerations that I would like to discuss at the round table meetings. In his presentation to the committee, my predecessor—and this is not a criticism—did not discuss the issue of the power to order as compared to the ombudsman role. I am not advocating that we have the power to make orders, but this has not been discussed. If I remember correctly, four jurisdictions in Canada do have the power to make orders as compared to the ombudsman role.

At the federal level, the ombudsman manages to settle 99% of the complaints. The process works, but it is slow. Would a system in which we could make orders be more effective? It might lead to legal disputes earlier in the process, and it may not be more effective. However, we will have to have a debate in which we compare penalties and incentives and in which we discuss the entire technological system. We will also have to look at the timelines set out in the legislation and ask whether 30 days for an initial response is really a valid deadline nowadays, and whether there should be some limits on extensions. At the moment, extensions are unlimited, once the department has provided a document within the 30-day period.

I hope to focus on these issues at the round tables and present a detailed report on these matters next fall. In my opinion, these issues are not covered in Mr. Reid's draft bill.

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

Do I have any time left?

[The Chair, Liberal, Paul Szabo]

A short question.

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

I would like to make a comment. One of the few officials who appeared before the committee regarding his work on the Access to Information Act spoke about Professor Attaran's access to information request regarding the Afghan prisoners. I found it surprising that an access to information coordinator would tell us specifically—and I remember the expression she used—that she wanted to protect the “confidential nature of these things”. That has to do with training, Mr. Marleau.

[Robert Marleau]

I agree.

[The Chair, Liberal, Paul Szabo]

Okay.

I'm going to go to Mr. Martin now.

[An hon. member]

You're bumping me.

[Pat Martin, NDP, Winnipeg Centre, MB]

I thought that was always the order in our committee.

[The Chair, Liberal, Paul Szabo]

It is. Go ahead, Mr. Martin, please.

[Pat Martin, NDP, Winnipeg Centre, MB]

I read carefully the well-prepared report here.

Thank you, Mr. Marleau, for being here. I know this is about the estimates technically, but as you know, these conversations get more wide-ranging, and I appreciated your input to Madame Lavallée's remarks.

I note on the bottom of page 1 of your report you say you were hoping to be able to announce today some dent in the backlog that's been an irritation to users of the system as well, but there's actually an increase. You ask how this can be. I would like to put it to you and have your answer, but you have to look at the root causes of the backlog, I guess, and the overwhelming increase in the number of complaints filed, which says to me the system is not working well. Perhaps the government side is not complying with requests, leading to this complaint.

I'll give you one example. Dawn Black is the defence critic for the NDP, and she recently got an access to information request back saying they needed another 300 days to deal with the inquiry, which had already expired its normal time limit. A further 300 days. Then if she wasn't satisfied with that, she would be faced with filing a complaint with you and waiting God knows how long, through no fault of your own, for that to be completed. Surely that's not freedom of information; that's stifling information.

So I guess I'm asking your views on the doubling of the complaints. Also, one thing you mentioned is the.... No, I'll let you speak to that first, if you will.

[Robert Marleau]

Mr. Chair, there are two dimensions to the backlog. The first is, of course, our service standards. I've come to the conclusion--and I've asked an outside consultant to look at it and make recommendations to us--that we've set ourselves up for failure with the backlog. We set timelines that are unrealistic, and then within those timelines there is a series of elements we don't control.

If there's a third-party consultation, we have to stop the clock and wait until it comes back in, or if there's a section 69 consultation with--