Information & Ethics Committee on May 13th, 2009

[Robert Marleau]

Every summer we get the call letter from Treasury Board Secretariat, just like any other institution, asking us for our reference points and our increases. We go through the normal relationship that any federal agency or department has with the Treasury Board, back and forth; they have a challenge that they play and play extremely well. We come to an agreement on the level of funding, a justification, particularly if it has increased, but there's also a justification to continue the same level of funding.

Then we give our submission to what is called a parliamentary panel for the oversight of parliamentary officers, or parliamentary agents. The Treasury Board submits their evaluation as well. We appear there. The panel questions the submission on both sides, from the perspectives of the parliamentary officer and the Treasury Board, and then makes a recommendation to the Treasury Board for approval or partial approval.

Then the Treasury Board itself kicks in. It will review that recommendation and adopt it or not, or partially. Then, of course, it shows up in the estimates tabled in the House, and your responsibility as parliamentarians to grant or refuse supply kicks in.

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

Commissioner, in your remarks, you say the additional funding you requested wasn't included in the estimates this year. Does that mean you lost the argument, or does that mean you're still hoping to see it at another point, that it missed the cycle?

Or did you lose the argument?

[Robert Marleau]

No, I didn't lose the argument. We went through the process with the panel in March for supplementary estimates (A), which I understand are to be tabled very shortly, maybe as early as tomorrow. We have a submission therein, but since it hasn't been tabled before the House, I'm not at liberty to discuss it in detail. I didn't lose the argument entirely.

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

Okay. That's good to know.

When I was poking around the website today, I poked into the proactive disclosure parts of the website and was looking at some of the contract spending for 2008-09. I noticed that most of it seems to be for temporary workers or for legal or communications advice. I'm just wondering, not having a reference point personally for this kind of stuff, if it is the normal process to have this much spending in terms of temporary staff support in the office and outside legal advice.

[Robert Marleau]

On the outside legal advice, it's normal. We have a $200,000 fund, which was normalized before I arrived as commissioner and which is essentially our fund for seeking outside legal advice. When we have to appear before the Supreme Court, the Federal Court of Appeal, or the Federal Court, we get outside counsel assistance. That's mostly where it goes.

The temporary help is high this year. That's because we were in this transition period, where we lost a considerable number of investigators post the April 2007 proclamation of the new amendments to the statute. We had been given money for the backlog. We hired several contractors in the ATIP community in order to assist with the backlog. As I said earlier, we're weaning off that now. We're at a complement of 37. We have 10 left who are on contract. We're staffing those as best we can.

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

So on the contracts over $10,000 for staffing, were those 10 contract positions, essentially?

[Robert Marleau]

Yes, but also some temporary help at the secretarial and administrative levels.

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

In your statement today, you said you were hoping to use a spectrum of tools to support your investigative and systemic actions around compliance. You said they range from collaboration and mediation to a full range of adversarial tools. Can you just give me a sense, when you're looking at that, of what's the most expensive route to go, what's the cheapest way to go, and where you get best value for dollar in terms of those various tools that are at your disposal?

[Robert Marleau]

We get best value for dollar, both in terms of results and for the Canadian taxpayer, when we go the mediation route. Any of the adversarial tools entail our going to the Federal Court of Appeal right up to the Supreme Court of Canada. We were in the Federal Court of Appeal on April 27 on the Prime Minister's agenda case, which dates back to 1998. You have to go there on major principles of law; otherwise it's very expensive.

So our approach has been, since I've come to the office, to take the three-C approach: cooperation, collaboration, and consultation. And I think you're starting to see the results, if you look at the number of complaints that have been closed. And I'd certainly like to point to the results, which are part of that approach. The last graph I provided to you, which is in blue and yellow, shows the results on the backlog just from last November, when we dedicated a team to the backlog—that is, cases prior to April 1, 2008. We've been meeting with both complainants and agencies to see how many of these we can resolve quickly. And in that amount of time, 30% of the backlog has been dealt with.

I know I've been criticized out there for not being tough, the watchdog that bites on a regular basis. But you know, subpoenas don't necessarily get you results; they get you attention.

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

Thank you, Chair.

[The Chair, Liberal, Paul Szabo]

Thank you.

Ms. Block, go ahead please.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Thank you very much, Mr. Chair.

And welcome, Mr. Marleau and Ms. Legault.

As you well know, we've been reviewing the 12 recommendations you made to our committee regarding the act you are governed by. I can't look at the estimates you have presented and look at your planned spending without keeping in mind the recommendations and perhaps the impact those recommendations might have on your budget.

I am delighted to have you here today because, before I go there on the estimates and the recommendations, I do have a couple of questions I would like to ask you with regard to the recommendations. Since your last appearance before this committee, we have heard from a number of witnesses who both support and oppose the recommendations you have made to reform the Access to Information Act.

The Minister of Justice was here before the committee last week, and he expressed concerns that recommendation 4 and recommendation 11 appear to be in conflict. He actually said,

My concern about the Information Commissioner's recommendations 4 and 11 can be boiled down to one of ease of access to justice. Under the current ombudsman model, an access requester can complain to the commissioner about a refusal of access. The commissioner is obligated to investigate, and upon the completion of the investigation, the commissioner will make a finding and a non-binding recommendation. If the requester is unhappy with the result, he or she can then go to the Federal Court.

Does the minister not have a point, that the current system would satisfy a requester who has a complaint?

[Robert Marleau]

Quite frankly, I read the minister's evidence, and I must say with respect to the minister—and I don't mean any disrespect—that I don't know how he associates the two recommendations, 4 and 11. I see them as being quite different.

Recommendation 4, in my mind, was to grant the commissioner discretion to investigate, to deal with a series of issues—which I identified for the committee as being from the frequent user to the frivolous and the vexatious—to establish a system of triage that would deal with larger public interests, and do it in a very transparent way. It seems to me that if you've delegated to an officer of the House the authority to determine and make recommendations on the rights of Canadians under the act, it's a small step to give them that discretion.

In terms of direct access to the courts, that's what we heard from many in our consultations. And in that particular case, I would go along the lines of what you heard from the Canadian Bar Association, which said this recommendation would allow those who have the cash to go to court—a company, a lobbyist, or whoever--and they just want to get at it. And it would still preserve the access for the average Canadian, who must come to me for a complaint, and on his or her behalf I will take it to the court.

So I see it as win-win all round and not a compromise of one or the other.

[The Chair, Liberal, Paul Szabo]

If I may, Mr. Marleau is actually coming back in two weeks to deal with the quick fix project, so unless it has burning relevance to the estimates, maybe we should try to keep these projects separate.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Sure. I guess the reason I'm looking at the recommendations and also looking at the estimates is that I can't help but wonder what impact your recommendations will have on the estimates you've presented, and certainly in your planned spending between 2009, 2010, 2011, and 2012. Have you figured into your planned spending the implementation of some of the recommendations you have made to this committee?

[Robert Marleau]

No, I've not costed them out. But on number 11, I think it would be a net savings, because the more who go to court directly and don't come to my office, the less time I'll spend on those particular cases. In terms of discretion to investigate, if I can deal with that—I'm sorry, Mr. Chairman, I'm bootlegging back into the area—in terms of impact on our spending, if I have some discretion in not investigating certain cases or at least postponing them for valid reasons, then I think there could be savings to the system.

The 12 recommendations were not presented to you on the basis of cost. They were presented to you as what we feel is fundamental, at minimum necessary, to cure some of the ills of the system.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

My final question would be with regard to recommendation 5: “That the Access to Information Act provide a public education and research mandate to the Information Commissioner”. What do you estimate the cost of such a program would be, and what would be the financial return for that investment?

[Robert Marleau]

Well, it's always fairly hard to cost out your return on education, but I can tell you that with $100,000, which would be fairly modest, we could achieve an awful lot over what we're doing now. I don't use that figure as something that I would submit, but we do not formally have in the act an education mandate. I think we have an advocacy mandate. I think that has been clear and it has been stated by the Supreme Court of Canada. I suppose you can stretch advocacy into education. The Privacy Commissioner has an education mandate, and the La Forest commission, in relationship to my office, recommended that this be normalized.

There is a certain amount of responsibility on the part of Treasury Board to educate the Canadian public, but I think that having the oversight parliamentary officer direct some of the communications on rights would be probably better received than government education programs.

[The Chair, Liberal, Paul Szabo]

Mr. Wrzesnewskyj, please.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you, Chair.

Commissioner, in this summary of caseloads that was handed out, the third category is commissioner-initiated complaints. Could you explain that to us a little more clearly?

[Robert Marleau]

Under the statute, the commissioner doesn't have to wait for a complaint to come in. If I read about something or I see something that cuts across several institutions, I can initiate a complaint and then deal with it. It can be specific or it can be generic in terms of the system.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Okay. So in 2006-07 there were 393 commissioner-initiated complaints. It's quite a high number. In the two following years there has only been one. Why would there be such a drastic falling off of commissioner-initiated complaints? Is it because of the caseload and attempt to clear the backlog that, as the commissioner, you've decided that you're not going to initiate any on your own? Or is it that all of a sudden everything's running so smoothly that you don't figure you've noticed anything that should initiate a complaint?

[Robert Marleau]

The 2006-07 figure, 393—I'm just going from memory here—occurred before I became commissioner. My recollection is that virtually all of those were against one institution but were filed as separate complaints.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Which institution?

[Robert Marleau]

If I were to hazard a guess, I think it was the RCMP.