Information & Ethics Committee on Oct. 29th, 2009

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

We've heard from many commissioners regarding different acts. I was a member of the procedure and House affairs committee in the last session, and I heard from commissioners there. I would like to know what, if any, connection or interdependence exists between the different acts? If changes are made to the Access to Information Act, does that have any impact on the Privacy Act or any other act? Do commissioners work together on some of the recommendations that come forward or on policies that are being developed?

[Robert Marleau]

There's very little interconnection. Statutorily, between the ATI Act and the Privacy Act, there is a link, and that is the protection of privacy. Under the ATI statute, there's the same sort of vigilance towards protecting privacy and disclosure as there is in the Privacy Act. That's the only link.

With respect to the minister's response about the ATI commissioner changing to a quasi-judicial role inconsistent with that of a parliamentary agent, that doesn't hold water for me. There is nothing in common between me and the Chief Electoral Officer of Elections Canada, except that we both report directly to Parliament. We get together as commissioners with the Auditor General and the CEO to talk about parliamentary issues. We talk about how we should conduct ourselves in relation to Parliament. We sometimes seek each other's advice before a committee appearance. It's all about this very privileged relationship that we have with this institution and the oversight that we exercise statutorily over various institutions. To change the core of one statute, say, that of Elections Canada, would be totally irrelevant. To change the core of what the Auditor General does, other than when she will audit me, is totally irrelevant to me. We have seven or eight parliamentary agents federally. I made a declaration to the lobbying commissioner every year because I was a GIC appointment. The idea that a change here would have an impact over there I don't think washes.

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

I know that one of your recommendations is that the Access to Information Act provide a public education and research mandate. I believe we heard that from the Privacy Commissioner as well. Are there any discussions about whether that should be a broad policy for all acts, or whether there should be a certain amount in the budget set aside for it? One of the things that we never quite established was how much that was going to cost. This was one of our concerns. It was asked for, but we never understood what it was going to cost. Can you comment on that?

[Robert Marleau]

That recommendation did not just come out of my head. It was a specific recommendation of a royal commission, a one-man commission headed by former Justice La Forest, who looked at privacy and access to information and noted that privacy has, in PIPEDA, an education mandate. Therefore, the Access to Information Commissioner should have the same. It's also a question of credibility.

Right now, if there is any education being done, it's being done by the Treasury Board Secretariat. How credible is that, given their performance on the statute to start with? It's not very credible in my eyes. How much would it cost? It could start small. There is no budget for it now. Maybe it's $100,000. Let's take whatever is in the budget of the Privacy Commissioner and give me half or give the commissioner half. It's a start. We technically don't have the authority to print an information pamphlet and hand it out to schools, for instance. On the education side, we are limited to resources sacrificed elsewhere or reallocated.

In the modern world, with websites and that sort of thing, it need not cost a whole lot of money. There's a front-end cost to setting it up, and then it's like the information office for Parliament. I was the clerk who started it, and there were front-end costs. Today, it has paid tremendous dividends. You have a national teachers' institute that brings in a whole bunch of teachers every year to learn about Parliament, about the life of an MP or senator. There's a cost attendant to that. I think that every federal institution—particularly one that has an oversight role—needs a certain amount of ability to educate people about ATI, to tell people what their rights are and how to access the information they need.

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

Thank you.

[The Chair, Liberal, Paul Szabo]

Thank you.

Colleagues, just for your reflection, I would like to confirm and read into the record the motion that has actually been submitted to the chair by Mr. Martin.

We still have Mr. Wrzesnewskyj, Mr. Dechert, and Mr. Poilievre, and if we have time maybe we'll get a chance.... But I want you to know what the wording is that's been proposed before the committee. It is moved:

That the Committee report to the House its profound disappointment with the response of the Minister of Justice to its 11th report entitled “The Access to Information Act: First steps towards renewal”.

That is the motion that has been moved by the member for the committee's consideration.

We have Mr. Wrzesnewskyj, followed by Mr. Dechert, and then Mr. Poilievre.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

The cancellation of CAIRS was referenced earlier by Mr. Dechert. It was quite an important tool. Like any tool, it can be used in a positive or a negative way. There was reference to negative usage by the government in terms of amber lighting, but it was also a tool that would allow members of Parliament and journalists to actually track what is going on with access to information requests, both individually and also to see whether or not there are patterns.

With this tool gone, have we diminished our abilities to access information, in terms of how the process works, that particular aspect of it? Was it a tool of benefit to journalists and MPs on individual issues that may be amber lighted and to see a pattern of whether a government is living up to its commitment to transparency?

Here's the second part to this. Since it was cancelled, has amber lighting continued as a policy of this government?

[Robert Marleau]

There are two issues related to CAIRS. The first is that, to be fair, I have to tell you that my office was consulted about CAIRS and its abolition a year before I came into office. And again to be fair, that database, which was going back to 1989, had really reached its shelf life, its maximum capacity, and it was becoming expensive to maintain and was really not worth the investment to enhance it. I accepted that from Treasury Board as the reason. My office, however, said that was okay, but it was necessary to replace it with something else because it was serving access requesters for the kinds of things you are raising. They chose not to do that.

Consequently, we received a complaint about it and there is an ongoing investigation. I don't want to get into too much of what I know and what I don't know, since I've left. The office will eventually make a recommendation.

To me, it's an absolutely logical management practice that the Government of Canada should know what it's releasing in its totality and what trends are there. If you anticipate those trends, you can better serve Canadians.

If you don't get the pension cheques out in 30 days, you hear pretty fast. Why can't we get some of this stuff out in 30 days?

I have no problem with CAIRS as a concept, and I think it can be of service to users as much as it is to the government of the day.

Is there amber lighting still going on? We did a systemic study on that and we made four recommendations to Treasury Board. One of them was to cease and desist, and most departments complied. I have no doubt that certain amber lighting is still going on. There is a stronger effort being made where it is going on to keep to the time lines, and that, too, I don't have a problem with. If a minister is going to get a question in question period because something has been released, I don't have a problem with communications between the minister's office and the ministry to prepare answers and explanations. But don't take 130 or 140 days to do that as the reason why the response doesn't get out in 30 or 60 days.

Some users fundamentally disagree with me. Some of the witnesses who appeared before you think that's the wrong position for a commissioner to take. It's the government's information, then they release it. That they be ready for that release, good or bad—it could be good news.... There are so many missed opportunities on good news releases that if they knew what they were releasing they might be able to take advantage of that as well.

[The Chair, Liberal, Paul Szabo]

Thank you.

Mr. Dechert, please.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

Just following up on CAIRS for a moment, since Mr. Wrzesnewskyj raised it, Professor Roberts also said in that same article in 2003 that “No other country maintains a government-wide data base like CAIRS. CAIRS is a product of a political system in which centralized control has become an obsession.” What do you think of Professor Roberts' comment, given that date and time and what was going on then?

[Robert Marleau]

I think, given that date and time, he was probably well founded in his judgment. It ebbed and flowed from 1989 until then. It became a tool for users to the point that the commission now has a complaint because it was shut down. Whereas Mr. Roberts was complaining about its very existence, many of the users, particularly the media, were now looking to this as a source of information in terms of trends, in terms of what's being released in DND versus Foreign Affairs on the same issue.

That's why I say I don't have a problem with it, if it's not abusive.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

But it had been abused at some point in the past, right?

[Robert Marleau]

At least in Professor Roberts' opinion.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

In Professor Roberts' opinion, indeed.

Let me ask you a question about the number of information requests that have been processed in the last five years. I note from your own statistics that in 2003 the number of requests that were processed annually was 22,125, and that increased in the 2007-08 year to 30,530. That's a pretty substantial increase in the number of information requests processed; it's roughly a 38% increase over five years. To what do you attribute that increase in the processing of information requests between last year and 2003, for example?

[Robert Marleau]

As I said in previous testimony, part of it was the Fed AA amendments to the ATI.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

So it opened up a lot more agencies to information requests?

[Robert Marleau]

Right, but not all of them.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Fair enough.

[Robert Marleau]

But the complaint side has grown by 80%, and that's not all the Fed AA. It's partly the Fed AA, but not all of it.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

I'm going to ask you about that in a second, but certainly it's fair to say, isn't it, that a lot more information is getting out than was getting out in previous years in the regime that existed prior to 2006?

[Robert Marleau]

I would state that a lot more information is accessible.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Right. That's a good thing.

[Robert Marleau]

It's a very good thing, and a lot of it is terribly delayed.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Okay. Let me ask you about the complaints about delays. I see from your statistics that two individuals or organizations represent 25% of all the complaints before your office. One is described as business, 17%, and the other is described as media, responsible for about 12%. What's the annual budget of the commissioner's office again?

[Robert Marleau]

I think it reached $11 million in the last round of estimates.