Evidence of meeting #34 for Access to Information, Privacy and Ethics in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was response.
A recording is available from Parliament.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Thank you, Mr. Chair.
Mr. Marleau, it's good to see you again.
I want to echo some of the comments made earlier about my gratitude and those of my colleagues about your service to Canada, both as Information Commissioner, and previously, with all your other service to the Government of Canada. I hope you enjoy the time with your family and your grandchildren and travelling. It's a well-deserved retirement. So thanks for all that service.
I was interested to hear some comments from my friends across the way. You may recall that when we last met I mentioned an article that was written in the Toronto Star, which was really quite alarming. It was dated November 1, 2003. I'd be happy to share it with Mr. Wrzesnewskyj and others.
The headline is “Red File Alert: Public Access at Risk”, and it sets out in detail a description of what was in place under the government at that time, called the coordination of access to information requests system, CAIRS. It was really quite a troubling system, where the Prime Minister's Office of the day would look at all the access requesters and see the ones that were coming from parliamentarians and journalists and red-flag them for review.
Alasdair Roberts is a professor of law and somebody I went to law school with, and I think one of the world's leading experts in the field of access to information. He said:
Media [and parliamentary] queries are sidelined while others are moved through unimpeded. [It shows] journalists' requests take longer than average than other types of requests. “Everyone is entitled to equal protection and treatment under the law”.... “There is no provision in the law that says that journalists and politicians get second-class treatment.”
In this very interesting article, it refers to Mr. John Bryden, to whom Mr. Martin referred to earlier, who was a Liberal member of Parliament at the time, and he said:
“And what I mean by the Prime Minister's Office is primarily...the communication team in the PMO...”
...John Bryden, a long-time critic of his government's handling of access issues, says the process is designed to hide mistakes rather than to increase transparency and openness.
“What you are encouraging is an attitude that we want to cover up our legitimate mistakes”.
“The difficulty with screening in order to prevent embarrassment is that you are actually destroying the advantage of having transparency in the first place,” says Bryden....
The most contentious or politically dangerous flagged files are tagged for closer review, using designations such as “sensitive” or “interesting.”
Information Commissioner John Reid, then went on to say, when he was interviewed for this article:
“What we are seeing...is a greater use of the time-delay factors that are built into the act: 'We can't do it in 30 days, we need 90 days.'
“I have now instigated a study to find out whether there is anything going on at all.”
Delays are the order of the day for Red File requests to the Privy Council Office, which handles requests for information involving the Prime Minister and his staff.
Just for the record, that would be Prime Minister Chrétien.
Records of all PCO requests completed last year show one out of every four media requests—14 of 58 requests—were tagged for further review. The average time to process these requests was eight months.
“That's pretty phenomenal,” says Reid, of the finding.
Only two media requests were released within 30 days.
And it can go on.
Were you familiar with that system, Mr. Marleau, known as CAIRS, or the coordination of access to information requests system? Have you heard about that?
Conservative
As an Individual
No, it was abolished last year by Treasury Board and hasn't been replaced with anything to date, to my knowledge.
CAIRS was put in place by Prime Minister Mulroney in 1989, I believe, as a management tool so government would know what it's releasing and where. I don't have a problem with that as a concept. I think it's sound management to know what the government knows.
By abolishing CAIRS now, Treasury Board has delegated to each government department the responsibility to track what they release. So there is no central repository where another department can find out what's been released, and that I deplore. I think it should have been replaced with something.
What happened is that a smart journalist was using CAIRS, extracting the information, mirroring it on his own website, and then making it available to everyone using the Access to Information Act.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Do you agree with your predecessor's comments, though, about the delays?
As an Individual
Yes, and indeed he started a systemic review on the delays. It was a complaint by the National Newspaper Association on amber alerting. As to where CAIRS was being used to manage amber alerting wasn't established. It was established that amber alerting was going on.
I've said before this committee that I don't have a problem with amber alerting so long as you meet the 30 days. If there's a sensitive issue--
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Of course, Mr. Reid said it was eight months in most cases.
As an Individual
That's right.
We found the media wasn't particularly badly treated; parliamentarians were treated worse.
Bloc
Carole Freeman Bloc Châteauguay—Saint-Constant, QC
Mr. Marleau, I know you came here to rebut Mr. Nicholson's response. I get a sense that we're making history on the Access to Information and Privacy Actj. I simply want to go back to that response. Basically, it means that the government doesn't want to broaden the scope of the Act or give the Commissioner additional powers. The government in fact wants to further reduce access to information. You told me earlier that a very big step had been taken when the Federal Accountability Act was passed.
If that big step was to open the doors of more Crown corporations, the fact remains that you don't have more resources, means or staff. Nor do you have more powers or internal mechanisms. You're given absolutely nothing. Your workload is actually being increased, but you can't do the work regardless. Explain to me again that and the contradiction.
As an Individual
The government's response deals with two aspects. Incidentally, I don't want to give the Committee the impression that I'm frustrated or bitter.
Bloc
Carole Freeman Bloc Châteauguay—Saint-Constant, QC
No, you're about to retire, and I'm very happy for you. You've done a great job. We realize that the Committee's work has drawn some criticism. I find this response completely disheartening. You may not be frustrated, we, on the other had, are starting to fell that way. From a democratic standpoint, it's getting to be completely absurd. Canadians who use this structure have the right to access information. We are accountable to those people, who are also taxpayers.
You don't seem frustrated to me. It's up to us to carry on. The fact remains that on this front, the political will isn't there.
As an Individual
My attachment to the institution of Parliament is so strong that I share your despair. In my opinion, the institution that is Parliament deserves at least a real response. I think there's something a bit cavalier about this response. It sort of says that it's their Act, they're going to consult, things will get done eventually and the nature of the Commissioner's role must not be changed. I find that in terms of substance, there's not much to it.
Bloc
Carole Freeman Bloc Châteauguay—Saint-Constant, QC
Your term is very weak. In fact, it's not even appropriate.
As an Individual
I promised myself that I wouldn't be so hard this morning, but I can't help myself. I find that it's not very broad in scope; it's an affront to the work this Committee has done. I'm not a member of the Committee and perhaps I shouldn't interfere like this, but when Parliament devotes so many resources and so much time and a majority report is tabled, it seems to me that a real response is in order and we should not be told to consult or that they're going to consult.
I realize that under the Constitution, the Executive branch can amend these laws. It certainly has a monopoly on the financial aspect of this initiative. This Act does not belong to the government or the Executive; it belongs to all Canadians.
Bloc
Carole Freeman Bloc Châteauguay—Saint-Constant, QC
Thank you.
I would like to make one comment to the members of the Committee. When a party is in power, one could say that it has no interest in making the Access to Information Act more open. I've seen my colleagues who went looking in the past.
What do you think now that you've become an ordinary citizen? Once a party is in power, it doesn't necessarily want to open up every issue —especially the current government.
As an Individual
I was appointed Deputy Clerk under the Trudeau administration, Clerk under the Mulroney administration, Acting Privacy Commissioner under the Chrétien administration and Information Commissioner under Mr. Harper's administration. I've seen it from every angle. I've seen the debates from both sides. There are some things that are natural to some extent. It's easier to say things when you're in opposition and then to explain them when you're in power.
I prefer not to comment on performance from one government to another, other than to say that the Act has been eroded since it was passed. The Committee studied the Act in 1987, and successive commissioners stated that it had to be reformed. It's a bit like a teenager: if you don't pay attention, he goes the wrong way.
Bloc
Carole Freeman Bloc Châteauguay—Saint-Constant, QC
It's getting out of hand, and that's what we're seeing: it's really getting out of hand. Thank you.
I will conclude by saying that the current government was elected on a promise of transparency. This is a crystal clear sign that it is not at all committed to transparency and that the reform of the Access to Information Act that we expected shows a refusal to give Canadians a fundamental right.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
Thank you very much, Mr. Marleau. I don't want to be repetitious, but this might be our last opportunity to thank you for your decades of service. You've really had a brilliant career, and there's a lot to celebrate as you look back, and hopefully as you look forward as well.
My question relates to the enhancements to the Access to Information Act that were contained in the Federal Accountability Act of 2006. I think you've indicated that this was the most far-reaching expansion of the Access to Information Act. What I want to get at here is that, in theory, opposition members seem to suggest that the Federal Accountability Act should have gone farther. But when you start to ask them for specifics, they fail to produce any. In fact, in some instances, members of the opposition believe the Federal Accountability Act went too far in expanding ATI.
For example, they opposed bringing the Wheat Board under coverage of the Access to Information Act. So what we see oftentimes is that you have certain interests that are particularly powerful constituencies to the opposition that cause them to depart from the overall principle of openness, but then in broad strokes and theoretical application, they say it should be enlarged. How do you view that contradiction?
As an Individual
Well, I think in the recommendations that I made to the committee, Mr. Chair, I even advocated a broader scope. I included the courts in those recommendations and I included Parliament, and by Parliament I mean the three constituent parts of Parliament, the House of Commons, the Senate, and the Governor General, in terms of their administrative responsibilities.
The minister does talk about judicial privilege and parliamentary privilege. I know something about parliamentary privilege, maybe less so than judicial privilege, but what is the cost to judicial privilege to find out how much lunch costs for the Supreme Court justices? Very little, I think. How many drivers do they have? How many cars? What's the car pool? There is a whole series of administrative issues that we should know about as Canadians.
So in terms of the broadened Federal Accountability Act, I've applauded that. I've certainly applauded the broadened ATI through the Fed AA and I think there's more to be done. I think any federal institution subsidized or paid for by the taxpayers ought to be subject to ATI, always respecting whatever constitutional or traditional privilege applies. We're not talking about making members' offices access to information, but the administration of the House and the Senate ought to be.
As a taxpayer, I pay for that. I should know either through ATI or voluntary disclosure. I was clerk when the Board of Internal Economy decided to do a certain voluntary disclosure about members' expenses and it was a big step forward. Every year your expenses by category and members' offices are published and I think Canadians have a right to know that.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
Do you think the offices of members of Parliament should be subject to ATI?
As an Individual
No, sir. I make that crystal clear. I'm talking about the administration of the House of Commons and the administration of the Senate.
If I want to know how many buses are run on propane, I can't ask right now. If I want to know what the expenses are for a Senate initiative, a cafeteria in the East Block, I can't ask that. Neither can the media.
What a member does as a member is privileged, in my view. Your files, your interaction with constituents, your legislative proposals, anything that is party related, I think all of that has to remain within the purview of parliamentary control. But the administration of Parliament, including the Governor General, I think ought to be transparent.
