Information & Ethics Committee on Oct. 29th, 2009

[Robert Marleau]

I'd like to make a brief comment, Mr. Desnoyers.

My recommendations on the Commissioner's power to make orders pertained only to administrative matters; it doesn't change much. It could, for example, be a question of denying a department permission to charge administrative fees because it is 120 days late and asking the requester to pay $20,000. It could also be because it was late and is charging research fees 15 months down the road.

I recommended that for so-called administrative matters, the Commissioner have the power to make orders, that is, the power to step in and say that because the client got poor service and there was a 120-day delay, the department cannot charge fees as permitted by law. It wouldn't have been huge, but it adds another dimension: bureaucrats have a duty to respond and explain why fees were not charged. It was something along those lines; it was not, absolutely not, revolutionary.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Mr. Marleau, do you not think that by perpetuating inaction, it makes access for Canadians more complicated, Canadians are deprived of their rights every time?

[Robert Marleau]

Especially in cases where time is of the essence; what good is it to respond 300 days later? All the more when you're being charged $5,000 for the service.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

In other words, the political will is still not there.

[Robert Marleau]

In my last report, I stated that the only solution would be political leadership at the highest level. Bureaucrats aren't the ones who are going to appear before you and tell you how to amend and improve the Act.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Since it came into force, the Act has been reviewed several times. I myself tabled a motion calling for a study of the Act based on the report by Commissioner Reid. It's been years since we made recommendations concerning the Act. However, it hasn't been amended. That means that there is absolutely no political will in that regard.

[Robert Marleau]

I confirmed it. I think there's a lack of political will. This week, I noted that a Member of Parliament asked in a question on the Order Paper for a list of government employees who earn more than $200,000 a year and he got an answer. I congratulated the Member in question. I don't think he would had obtained an answer that quickly under the Access to Information and Privacy Act.

[The Chair, Liberal, Paul Szabo]

Merci.

Mr. Martin, please.

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you, Mr. Chair.

I'm glad I came today to substitute for Mr. Siksay.

Thank you, Mr. Marleau, for being here, but thank you also for what constitutes a really good try at a very difficult job. I can tell you without exaggeration there was a great wave of optimism amongst the access to information community when you took this job, because we felt we would have a real champion, not only one of the most well-respected people on Parliament Hill, but also somebody with the skill and the ability to cut through the problems, if the problems existed at that level, and to at least give us some guidance as to what needed to be done. You've done that very capably, admirably, and exceeded our expectations in that regard. Again, we're very sorry that, for whatever your reasons, you're not going to continue in this role.

I'm fond of saying this, but I firmly believe that freedom of information is the oxygen democracy breathes. I've said it before. It should be what guides us. I'm perplexed and even frustrated that the tone around this table is more of a resigned sadness than anger. The public should be furious that we're being systematically denied the right to know what our government is doing with our money. This is a freedom of information issue that should be right down at the coffee shop level of the nation. If they knew, I think they'd be furious.

When you say it has to come directly from the top, I agree. The one thing the Obama regime did, I think in their first day of office, is to say that the default position of their government is going to be openness, not secrecy. It is the culture of secrecy that allowed corruption to flourish for the last many years that I've been here, and in that historical context I thank you for pointing out that it's not just this government that seems obsessed with secrecy.

I got here in 1997, and there were already good people demanding a revision of the Access to Information Act. People like John Bryden dedicated much of their career...so frustrated they formed an informal parallel committee to study and to develop.... Vic Toews and Reg Alcock were on that committee, senior people, two former presidents of the Treasury Board, who helped craft a really robust revamp of the freedom of information act. I can tell you a former Minister of Justice apologized to me personally, saying he underestimated the push-back. He thought he could fulfill his promises to me personally and to this committee that he would be the one to substantially change it, but he underestimated the push-back from the senior bureaucrats and the powers that be.

As the former Information Commissioner, you can speak freely now. At what level do you think the logjam exists? If senior politicians, ministers, have been, and I think some still are, willing to change, where is the advice coming from that leads this justice minister to say no? In spite of their 2006 Conservative Party platform, which I have here, we get this letter saying, no, they've considered it, and they've decided it needs more study. Can you shed any light on what level the barriers to reform exist?

[Robert Marleau]

First, Mr. Chairman, I'd like to thank the member for his kind comments about my short tenure as commissioner. I must say I received very kind comments from all sides. I was very touched, when I left, by some of you thinking it was prematurely. But for me it was almost on time, in terms of my plans. Thank you very much for those comments.

Concerning the minister who says he got push-back, I'd just answer the honourable member, Monsieur Desnoyers, that you can't expect the deputy minister or assistant deputy minister, or even the access coordinators, to come forward with specific proposals on how to better serve Canadians under access to information. There are people working very hard to do so, but they're at the front line.

I'm not saying deputy ministers don't want change. Some of them have worked very hard to try to improve performance of their department. One of my reports says that the justice department is an example of performance. It's not a stellar example, but it's an example of how you can do better and serve Canadians.

As you well know, the Canadian bureaucracy is not in a leadership role when it comes to policy, and this is a policy issue. It must come from the ministers; it must come from the Prime Minister. There's Minister Toews, who's involved in the sound administration of the statute, the Treasury Board; and there's the Minister of Justice who holds a legislative mandate.

I know public servants; I was one for a long time. If they are told by your leadership that “this is the way things are going to be done”, they'll turn it around, they'll do it. But it's not in their own self-interest to take those kinds of initiatives. Most of the deputy ministers I've spoken with who have made an effort to turn this around end up just as frustrated as you, because there aren't the resources and the means. And when there isn't the political will, it's not theirs to exercise.

[Pat Martin, NDP, Winnipeg Centre, MB]

Can I ask you a question, then? If there were that political will, if the Prime Minister announced to his cabinet that they were going to live up to their commitment of transparency and accountability, that from now on the default position is openness, and “we want you to comply to the greatest extent possible with the act, not go out of our way to stymie the act”, could improvement occur without legislative change, if that directive came from the top?

[Robert Marleau]

I think it would. The act says 30 days, and there's a whole series of exemptions and inclusions. If the Prime Minister or the cabinet said “We want this statute as it exists to be met 85% of the time”, I think as a former commissioner I would live with that.

[Pat Martin, NDP, Winnipeg Centre, MB]

Well, I think we'd all be pretty happy with that. Do you think that would be possible without legislative change?

[Robert Marleau]

Yes, I think it's possible without legislative change. There's a lot that can be done from an administrative standpoint, as my last report said, without changing a comma in the legislation.

[The Chair, Liberal, Paul Szabo]

We'll have to move on.

Madam Block, please.

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

Thank you very much, Mr. Chair.

Thank you, Mr. Marleau, for taking the time to meet with us today. I am a fairly new member of Parliament, but I am very aware of the excellence with which you served Parliament and indeed all Canadians, and I want to thank you for it.

As a new member on this committee this past year, I have learned much about access to information, privacy, and ethics and about the roles that commissioners play. I've asked witnesses a question about our Federal Accountability Act many times while we were doing this review. On March 9, 2009, you told this committee you believed that the Conservative Federal Accountability Act was the most significant reform to the Access to Information Act since it was first passed. Do you still believe that?

[Robert Marleau]

Yes I do believe that it is the most significant since 1983. Actually, there was another one in, I believe, 1997, which was not minor but important in terms of criminalizing deliberate destruction of documents.

It is the most significant, the broadest amendment brought to the statute. It has, as I said earlier, nevertheless enhanced the challenges of performance under the act by making more institutions subject to it and not bringing the necessary changes, in terms of both administrative practices and legislative incentives, to do so.

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

Thank you.

I was surprised by my colleague's term “gross negligence”. Isn't it true that the Liberals were in power for 13 years and did nothing to promote the accountability and transparency of government? They didn't touch the Access to Information Act in 13 years.

[Robert Marleau]

For those 13 years, Ma'am, you'll appreciate that I sat as Clerk of the House of Commons, and I had no opinions on the performance of the government.

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

Okay. Well, again, to accuse us of gross negligence, to criticize us when they did absolutely nothing.... There's no credibility when it comes to those kind of statements.

Is it not true that in 2005 the Liberals voted against a Conservative Party motion to extend access to information laws to crown corporations?

[Robert Marleau]

I can neither confirm nor deny that. I was a private citizen at the time, and I'm afraid—I hate to admit it—I wasn't paying attention.

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

Okay. Thank you.

I have also come to understand that a total of 186 institutions were subject to the act in 2006-07, and since the coming into force of the Federal Accountability Act, there are now 255 institutions subject to the Access to Information Act.

Would you like to comment on that?

[Robert Marleau]

I think it's a good thing. My office also was made subject to the Access to Information Act. I think I said before at one point that I now feel some of the pain that some institutions feel in trying to meet those deadlines. It's not easy, but it is doable.

Extending it to crown corporations was I think a great advance in transparency. The CBC, which should be a beacon of performance, has had its own challenges.

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

Thank you.

I will pass my remaining two minutes on to Mr. Rickford.

[Greg Rickford, Conservative, Kenora, ON]

Thank you.

Thank you, Mr. Chair, and thanks to my colleague.

It's nice to see you again, Mr. Marleau. On another committee last session we had the chance to work together.

I'll build on the line of questioning here from my colleague. I'm struck by the impact the Federal Accountability Act has had statistically. The statement could be made that since the coming into force of the FAA and associated Access to Information provisions on, I believe, September 1, 2007, the Government of Canada has become more accessible, with the larger number of institutions covered by the Access to Information Act.

How many institutions are covered by the act now compared with, say, 2005-06? It seems to be an important year for when things became more accessible.