Information & Ethics Committee on Nov. 3rd, 2009

[Dean Del Mastro, Conservative, Peterborough, ON]

By unanimous consent—

[The Chair, Liberal, Paul Szabo]

No, that's enough. That's it. You're done.

You cannot move a motion on a point of order. That's just following the rules. I have to apply the rules the same in any situation that's the same or similar. It's not personal, sir, but it is improper for you to do that.

I'm going to move on now, because you no longer have the floor.

I'm going to move to Madam Legault for her opening statement.

Please proceed.

[Suzanne Legault, Interim Information Commissioner, Office of the Information Commissioner of Canada]

Thank you, Mr. Chairman.

As you know, l was appointed interim Information Commissioner on June 30,2009, and I am delighted to appear before this Committee today in that capacity. As you said, with me are my esteemed colleagues, who provide day to day support for all the work done at the Office of the Commissioner.

Our discussion today is all the more timely given what various experts as well as ordinary citizens had to say during our recent Right To Know Week on the importance of freedom of information and the urgency to improve our access regime.

I would like to address three main issues. First, I will provide you with a brief overview of the OIC's annual report for 2008-09, which is indeed a reflection of the excellent leadership of former Commissioner Marleau. Second, I would like to comment on the government response to the eleventh report of this committee, entitled “The Access to Information Act: First Steps Towards Renewal”. Third, I will outline briefly my priorities as interim Information Commissioner.

You should have received a folder with supporting information to assist with our discussion this morning. You will find in it updated information on the OIC's case load and resources. As stated n our Annual Report, this Office owes to former Commissioner Marleau a major realignment of operations and resources designed to improve, amongst other things, our core investigative function.

In 2008-09 we moved ahead with the development of a new business model to streamline the investigative process while promoting greater institutional compliance with the act. We sought and obtained a significant increase in our base budget to support this new model. The new funding will be included in the office's budget in the next fiscal year.

As a result of our new way of doing business, we were able to close an unprecedented number of cases in 2008-09. I am also pleased to report that between April 1 and September 30, 2009, for the first time in history the office closed more complaints than it received. Thus, I am confident that we have reached a turning point in tackling the recurring carry-over of inventory. Also, as you can see in tab 5 in your folder, our inventory of pre-April 1, 2008, cases has diminished by about 50%. These are early indicators that our new business model is actually working.

Mr. Chairman, I stand behind the recommendations made to this committee by Commissioner Marleau in the spring of 2009; therefore, I share this committee's--and indeed, many stakeholders'--disappointment in the government response to those recommendations. In my view, reform of the act is necessary and urgent. Driven by the rapid proliferation and sophistication of information technologies, world economies are increasingly becoming interdependent. Our own economy has mutated from a manufacturing base to a knowledge-based economy. To fuel innovation, researchers and entrepreneurs require timely access to government data that they can mash up, repurpose, and make their own.

Ordinary citizens have moved from a conventional paper world to a world of texting, blogging, and twittering, and their requirements and expectations for government information has changed drastically. Our legislation needs to reflect this new environment.

My focus since taking on the interim position has been to implement the OIC's new business model to ensure an effective, thorough, fair and transparent investigative process, while preserving the requirements of confidentiality.

At Commissioner Marleau's request, our intake and early resolution unit was the subject of an early audit conducted last spring. This audit revealed several areas for improvement, including the time to obtain documents from institutions which spanned an average of 90 days.

I issued in September a management response to this audit report with a thorough action plan to address each shortcoming. This included the publication of a clear OIC directive on requesting records from institutions.

On the systemic front, I published in July a three-year plan that covers both report cards and systemic investigations. This plan takes an integrated approach to the assessment of delays in responding to access requests, while encouraging greater proactive compliance from institutions.

This year's report cards process expands the sample of institutions to be reviewed from 10 to 24. We will specifically look at delays in the average lifespan of requests in these institutions. Simultaneously, we will investigate chronic delays related to extensions and consultations. These delays have a strong detrimental effect across all federal institutions and severely prolong responses to requesters.

We plan to communicate our findings before the end of this fiscal year. My goal is to present a clear diagnosis, with recommendations to remedy specific institutional problems with compliance. This will assist in holding the relevant authorities accountable.

My approach as interim commissioner is simple. I will work diligently to fully implement the OIC's business model and maximize efficiencies in our investigative process while ensuring a thorough and fair process for all parties involved. In doing so, I will use all the tools at my disposal under the current legislation to ensure that requesters' rights are protected. Meanwhile, I will continue to work relentlessly with all stakeholders, including requesters, parliamentarians, and government officials, to modernize our access to information regime and ensure its continued relevance to Canadians.

Thank you. I am now ready to answer your questions.

[The Chair, Liberal, Paul Szabo]

Thank you kindly.

We're going to go right to Madam Simson, please.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Thank you, Chair.

Thank you, Ms. Legault, for appearing before the committee. I'd like to congratulate your office for a comprehensive and informative annual report and update for this year.

In your update, I notice you said, “In my view, reform of the act is necessary and urgent.” Could you expand a little more on the urgency of the matter as you see it? I'd really appreciate your comments on that.

[Suzanne Legault]

We live in the age of instant information—this is 2009—and we have a system that is taking longer and longer. What we have in some departments is various lacunae in terms of handling digital information. The system has a very weak compliance model, so there are no real incentives in the legislation or anywhere in the system to ensure that there are timely responses to access to information requests. In this day and age of instant information, of 24-hour media, if it takes one, two, or three years to receive information, then the right of access is no longer relevant.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Thank you.

In reading your report, I note that, under the outcome for the 2008-09 complaints, 652 complaints were discontinued, which is a rather dramatic increase from the 2007-08 year, in which there were 108. We heard testimony from former Commissioner Marleau that it was his feeling that there was a sense that people were giving up in terms of not even bothering to file complaints because it was taking longer and longer.

Would you share that opinion, that people are starting to give up, that there's a fog of apathy descending on access to information?

[Suzanne Legault]

First of all, you will find that I'm very much a data person. The 652 discontinued complaints, I would say, are more evidence of the fact that we dealt with the old inventory of cases. Last year, when we looked at that inventory, there was some very low-hanging fruit. It's true that some of those cases were so old that the requesters were no longer interested in the information.

As to whether there is apathy, I will refer to some of the testimony we heard during Right to Know Week, particularly from journalists, who indicated that in fact it is taking so long that they no longer bother to make requests.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Thank you.

I'll turn it over to my associate.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you.

Let me begin with the support you provided us with. I find it interesting that the Privy Council Office is one of the biggest generators of complaints. In total, how many hundreds of departments and crown corporations as individual institutions are under the Access to Information Act?

[Suzanne Legault]

It's around 250 now with the passage of the Federal Accountability Act.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

So 250 and yet the Privy Council Office in the last three years has been in the top three or four in terms of the number of complaints generated to your office. We can understand Revenue Canada, people not happy with some of the information on their taxes, etc., generating lots of reports, but the Privy Council Office? I can't help but think something else is going on.

When I look at your numbers for the three years sequentially, the current government in their first incarnation, 2006-07 when they took over, 6.5% of the complaints that year were from the Privy Council Office. In 2007-08 the Privy Council Office was up to 10% of all complaints.

In 2008-09, if we take out CBC, Telefilm Canada, the crown corporations, so that we're using similar data, because the crown corporations just kicked in, we had a total of just over 1,700 complaints, 198 Privy Council Office, so 11.6%. We've seen a doubling over the span of this government in terms of complaints against the PCO.

You've heard from journalists; let me tell you, as an MP, I've given up on access to information. The mechanism most often used is cabinet confidence. Of the 50-odd Commonwealth countries, is it correct that only two countries, South Africa and Canada, do not allow the commissioner the ability to take a look if what is being cited as cabinet confidence in fact is a cabinet confidence?

[Suzanne Legault]

I would not be prepared to say that only South Africa and Canada have that exclusion in their legislation. I would have to verify that and do a bit more of a comparative analysis for you, which I can provide.

More to the point is probably the jurisdictions in Canada. At the federal level, we are one of the few jurisdictions, if not the only one, that has cabinet confidence as an exclusion under the legislation--i.e., there's no right of review from the commissioner's office, which really goes against the fundamental tenet of access to information where we want to have an independent oversight mechanism.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you.

I looked at these last three years and the data and the doubling of complaints against PCO. Parallel to that, you see that under the Conservative government, the average processing times have gone from 30 days to 60 days--in the time prior to this government--to 150 days, 250 days, and in some cases beyond. We're going from a couple of months to almost a year, in many cases.

There seems to be a new tactic being employed by PCO. A letter like this goes out after someone has been stalled out for, let's say, half a year: We're aware that a certain time has passed since your request was originally received; we sincerely apologize for the delay; and in an attempt to clear the heavy backlog, please complete the following--namely, do you still require that information, yes or no?

Isn't that somewhat Orwellian?

[The Chair, Liberal, Paul Szabo]

You're at seven and a half minutes already.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Oh, sorry.

[The Chair, Liberal, Paul Szabo]

Madam, do you have a response?

[Suzanne Legault]

It's important to clarify one thing with complaints against PCO. Historically, and even last year when we were reporting on data against the Privy Council Office, there was a practice at the OIC, which we have changed, of double-counting. When we had a matter related to cabinet confidences, a complaint would be opened against the Privy Council's Access to Information and Privacy Office as well as a complaint in the originating institution. There was a high number of complaints against the Privy Council that were in fact double-counted. This practice has changed. I suspect that when we report on the Privy Council Office this year, you will probably see a decrease.

That doesn't solve the fact that at this point there is no measure of the number of matters that are being consulted with the Privy Council's Legislation and House Planning Secretariat in relation to cabinet confidences. That only gets counted against the originating institution. Statistically speaking, there is little data on cabinet confidences in relation to the Legislation and House Planning Secretariat, and this is more to the point of your question.

[The Chair, Liberal, Paul Szabo]

Thank you.

Madame Freeman, s'il vous plaît.

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

Thank you for being here today, Ms. Legault, Ms. Campbell and Ms. Neill.

You have obviously seen the response of the Minister, Mr. Nicholson, to the recommendations made by the committee. Mr. Marleau, the former Information Commissioner, has testified before the committee in his personal capacity so he could comment on that response. In his preamble, he even talked about something missing, that the public's democratic access to government information could be cut off. In his report, he said: "How much longer will Parliament stand by and tolerate this pervasive neglect and the attrition of a fundamental democratic right?"

Mr. Marleau was a senior public servant and had a rather full career in Parliament. He talked about his attachment to the institution of Parliament and said that it deserved at least a substantive response. The Minister's response, in his view, was very cavalier. In our view, it was more than cavalier; it was frustrating and inappropriate.

Given the work done by the committee and the recommendations made by the Commissioner after that response was received, what are your priorities for giving the public better access to information, despite the fact that none of our recommendations has really been adopted?

[Suzanne Legault]

Mr. Chair, as I said in my opening address, I have an Act to apply, and it makes certain powers and mechanisms available to me. My intention is to apply the Act using the powers set out in it. That is the first step.

I am a problem-solver. In the government's response, I see two things. First, the Minister says there should be further consultations. I understand that some access to information actors are disappointed to see that comment. If the government insists on holding additional consultations, I would like to see the exercise developed in a structured way by the government, so there could be results at the end of the day.

Second, in the Minister's response, he says that the administrative process could be improved. In his letter, he simply refers to renewal of the access to information policy. In my view, a lot more has to be done. We already have extensive information about administrative reforms, and I can talk about that more, if you are interested.

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

Yes.

[Suzanne Legault]

In my opinion, a lot of things can be done at the administrative level. If that is where the government wants to go, then let's have more concrete things proposed.

First, let's examine proactive disclosure. The new Quebec legislation contains new provisions that will come into force in December 2009. They deal with proactive disclosure, including disclosure of requests and responses, that will be published on the Internet.

As well, statistics that are...

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

Excuse me for interrupting. What is there on the Internet

[Suzanne Legault]

Access requests...