Information & Ethics Committee on March 30th, 2009

[The Chair, Liberal, Paul Szabo]

I'm going to exercise the chair's discretion and ask a question, which may help us to get a little feedback over the last half hour or so that we have.

Backlogs seem to be at the heart of some of the problem here, and in the future that may not be a problem because of the technology and the open government issues. But right now, according to the Information Commissioner, the 30-day rule is the exception, not the rule. That's a problem. That is what was being contemplated by the act.

One of the recommendations the commissioner said to us is that there should be no extensions beyond 60 days without prior authorization or approval from the commissioner. It is a brand new triage responsibility, which may fall into your concern, Mr. Drapeau, about giving a little too much authority. But you have three items in front of you going for 210 days. The commissioner could short-circuit that and satisfy himself that there's reasonable cause to go beyond 60 days.

So I'd like to have your feedback as to that simple change to the act or the regulations, where there is the authority to intervene to ensure that any requests over the 60 days get prior approval.

[Prof. Michel Drapeau]

Mr. Chair, at the moment, in the manner in which the act is constructed, an institution that claims an extension of 60 days or more has by law to provide a copy and to advise the Information Commissioner. So the Information Commissioner is aware now of every time, including this one—his name is at the bottom of it. So it's not as if he cannot do something without my even submitting a complaint—

[The Chair, Liberal, Paul Szabo]

No, no, sorry. He's aware, but there's no subject to his approval. That's different.

[Prof. Michel Drapeau]

No, but he will become better aware of it if I submit a complaint.

[The Chair, Liberal, Paul Szabo]

Well, awareness is fine. And 210 days from now when the complaint comes in...it'll be another two years before the complaint is dealt with.

I want you to understand that giving notice to someone about something is one thing; having their approval to proceed is quite another and would deal with backlog. You said at least three times today that none of these things would deal with any of the problems under the act. So I have a contradiction before me.

[Prof. Michel Drapeau]

Let me address it in two ways. The Information Commissioner is aware of it, and when your mailbox brings in more notices every day than anything else, then you know you have a problem, and he has the ability himself in the act to self-initiate a complaint if he needs to, if there's a systemic problem.

To address the second issue, to now give him the power to provide approval for any extension, I see that as a diminution of my right to access to records within 30 days, because all of a sudden now an institution would have to make a request to the Information Commissioner and then it will require him—I don't know—a month or two to investigate and to provide approval for whatever number of days, or a day or five days. So it will add to the system, add to the process.

[The Chair, Liberal, Paul Szabo]

Okay, point made.

We're going to move on. Mr. Siksay, please, and then I have Madam Simson and then Mr. Shipley. We probably will have another 5 to 10 minutes left, so if anyone else wants to have another little short shot, please do.

Mr. Siksay.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Thank you, Chair.

Mr. Conacher, one of the things you talked about was penalties for not creating records, and I think we raised this when the commissioner was here. There was some indication that a requirement to create records would actually be part of the National Archives of Canada Act, not the Access to Information Act. Do you have any feedback on that or is that your understanding as well?

[Duff Conacher]

I did not know that the National Archives of Canada Act would cover that as well. But again, I think requirements are something that need to be put in place. I'd like to put forward another analogy from the Gomery commission: part of what the Federal Accountability Act does is require some clear lines as to who's responsible for decisions on spending. If a deputy minister or an assistant deputy minister is in disagreement with a minister about whether something is legal or not, then the minister is required to send a letter to the Auditor General stating the disagreement. This way, if the spending went ahead and it was later deemed to be illegal, it's clear who's responsible.

We need that same clarity. You're required to create a record, and someone is responsible for it and for managing it in the information system. If we had this order-making power, the approval or disapproval of 60 days on something coming out or not, or on a delay in releasing it, then we would have someone who could be held personally responsible. That's what we need to bring to the system overall.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Thank you.

Mr. Drapeau and Mr. Racicot, you also raised in your briefs a number of management issues within the Office of the Information Commissioner. You said it had too many middle managers and not enough investigators. You've raised concerns about lack of focus, the turnover of investigators, and the loss of corporate memory. I wonder if you could say a bit more about these issues. Do you think there are significant administrative issues within the office itself that, if addressed, would make a significant difference in backlog and in the ability to deliver on the office's commitments?

[Marc-Aurèle Racicot]

When you look at the act, the commissioner has only one mandate: to receive complaints and to investigate them. This is the only role and mandate under the act. Right now, based on the public websites, there are only 16 investigators to carry out the mandate. You have the commissioner and two deputy commissioners, nine directors or acting directors, four chiefs or acting chiefs, three managers, one acting senior legal counsel, one general counsel, and one senior policy adviser. So there are only 16 soldiers to carry out the mandate and investigate the complaints from the citizens.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Drapeau, you've said a number of times that you regard the lack of commitment to disclosure of documentation as a problem at the administrative level rather than the political level. I'm struggling with that, because it seems to me that we're blaming the folks who aren't in charge. Why would you focus on public servants rather than on the political masters of those departments? Why not ensure that there is political control over what's going on in these ministries with regard to disclosure and access?

[Prof. Michel Drapeau]

There are two reasons. In every department that I know of, there has been a wide delegation, almost absolute delegation, from the minister to an official or more than one official in the department. This official has the power to apply exemptions, grant extensions, exclude material. In other words, they have full power to do whatever they think is necessary. The act is crystal clear. There has been jurisprudence galore to interpret it.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

But if that's not happening. Shouldn't it end up back on the minister's desk, asking why the minister isn't ensuring that this takes place in the department?

[Prof. Michel Drapeau]

Perhaps my public service shows through. I spent 34 years in uniform and two years as a senior public servant. I take the law and my duties seriously, and I believe every other functionary does the same. You don't need to be told by your minister to obey the law; that's your task, your raison d'être. That's why you're called a public servant. Why isn't that senior public servant, such as a deputy minister, assessed on a yearly basis for performance on access, together with performance on official languages, the Financial Administration Act, and everything else?

If that were to happen, once the delegated official who is known in the department as the coordinator of access to information knows that her--or his--pay, her promotion, her incentives, or her whatever all depend upon not being in this report, or before this committee, but on performing, then I think you will see a change, and way before a minister would say, “By the way, I want you to observe the law.”

So the first reaction belongs to the bureaucracy. In some instances, they have to give the coordinator additional resources to do their job. I think these officials will react with the same aplomb, the same energy, and the same efficiency as they do in every other respect.

[The Chair, Liberal, Paul Szabo]

Go ahead, Duff.

[Duff Conacher]

I want to say, just briefly, that I think I had highlighted the fact that we need a system, as was brought into the spending system, of determining whether it's the minister or the public servant who has made the decision about non-disclosure.

Secondly, I'm happy to hear Mr. Drapeau essentially endorse penalties, meaning that if the person's pay or bonuses are conditional on performance, then they will change their behaviour. I agree entirely, only I think there should also be penalties, not just that you don't get your bonus. Your pay will be docked. You will be suspended. You will be fired if you do not follow this law, repeatedly, on a normal scale of penalty and dismissal, as people face in many other laws that the federal government has passed for many other areas of society. We need this in the area of good government law as well.

[The Chair, Liberal, Paul Szabo]

Thank you.

Madam Simson.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Thank you.

I'd like a very brief response from all three of you.

I've read the article that was in The Hill Times. In your submission today, you refer to this act as a quasi-constitutional statute. Do you believe access to information is a basic human right in this country?

[Prof. Michel Drapeau]

One word: absolutely, madam.

[Marc-Aurèle Racicot]

Absolutely.

[Duff Conacher]

Yes, absolutely.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Okay. Given that, the commissioner testified and on a number of occasions referred to the culture. I'm not referring now to government, or party, or partisanship; I'm referring to the absolute culture among some of the bureaucrats in the institutions. There is a culture of secrecy. I don't think anyone would disagree that things have slowed down because of that.

I'm really interested, Mr. Drapeau; you've painted a beautiful picture about compliance. But there is a reality, and I don't understand your aversion to a penalty, a serious penalty. Giving the commissioner the ability to deal with this without having to go to court means it gets reported.

In fact, I like Mr. Conacher's idea that you do get money docked from your pay. That's the only thing that will get anyone's attention.

[Prof. Michel Drapeau]

Well, I am who I am, and I don't believe, in my leadership style, a penalty should be the first order of business. I would appeal to leadership. I would appeal to professionalism. I would appeal to the higher qualities and values of public servants. I have too much respect for them. They don't need to come to work every day and not know whether, at the end of the day, they may be penalized because of whatever. Once they are given clear direction, we expect them to follow the law, we expect them loyally to let us know what prevents them from doing it, and if it's an absence of resources that prevents them, then we'll do it.

Most public servants, whether they are the financial officer at Finance, or a food inspector officer, or an immigration official, do the best job they can in accordance with the law. I think the access to information coordinator will do likewise. But we have to let them know that if they do their job, there will be no criticism of them because they have released documents in accordance with the law.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

How long would you say this fix will take? Another thing I have an issue with has to do with requests from people outside Canada.

We've heard testimony that in Australia, Ireland, Mexico, the U.K., and the United States they all reported--and I mean all reported--that there was no significant increase in the volume of requests, and that people who really want information in Canada will hire brokers. You're not likely to have a billion people on the Asian continent all suddenly sending in requests.

Would it be fair to say, then, that, really and truly, there won't be a big volume of requests? Those people who want the information can access it right now.