Information & Ethics Committee on March 4th, 2009

[Martha Hall Findlay, Liberal, Willowdale, ON]

Thank you, Mr. Chairman.

I would like to thank the witnesses for sharing their time with us this afternoon.

Our colleague Mr. Hiebert seemed surprised at the list of the top ten users and suggested that somehow this did not reflect access for the public. I would like the record to show my comment that individual Canadians rely on the media for their information, and I assume that media outlets are among the top users.

I recognize that the Information Commissioner cannot disclose individual identities, but can you at least confirm for us that media outlets are in fact significant users of this service, and therefore there is an ability of the public to gain access to this information?

[Robert Marleau]

Well, obviously in our democratic system the media play an extremely important role. In terms of using access to information, they're not the top user. They represent about 10% to 15%, depending on the year, in the user category for all of the system.

In the complaints I receive, which is a much narrower field--say 2,100 per year--they're not the top user. One complainant, who I'd say is a specialist, is among the top users. So while I have a media user who is a high complainer, you can't translate that into the system, because the system shows roughly 10% to 12%--I think that's the figure--of users from the media. That's usually a surprise to people. People think the media are the top users. They're not; it's business.

[Martha Hall Findlay, Liberal, Willowdale, ON]

Thank you.

[The Chair, Liberal, Paul Szabo]

We're at four minutes and 53 seconds, excellent for the two visitors. Welcome.

Madam Block.

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

Thank you very much.

Thank you, Mr. Marleau and your associates, for being here today.

I'm really interested in the report card process and I have some questions after reading your report. Your report cards issued grades to several departments, and you earned media exposure for those grades last week. I would like for us to take a look at them a little more closely.

You gave the RCMP an F this year, and if you look back, they received an F in the 2005 report under a Liberal government as well. Did you not give them an F as well in 2005, as in this year?

[Robert Marleau]

We went to a star system this year, because we've added context to the report cards rather than just a hardline evaluation of A to F, and we gave them two stars.

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

Thank you.

I do have another question regarding the report card process. In your report, under “commitments”, you state that the Office of the Information Commissioner also commits to better inform federal institutions about the report card process and its requirements ahead of time. Can you explain what you mean by that, and what currently is happening with departments in terms of understanding the process?

[Robert Marleau]

Can I ask Ms. Legault to answer that question?

[Suzanne Legault, Assistant Commissioner, Policy, Communications and Operations, Office of the Information Commissioner of Canada]

Mr. Chairman, basically what we did this year was institute a new process for report cards that was more comprehensive, so there was very little notice to departments in order for them to understand what we were going to be seeking in terms of information. We do report that in the special report.

One of the particular areas where we wanted to have specific information was on the specific extensions and also on the length of time for consultations. This is information that's not collected in a very disaggregated data by the various departments because, as it stands now, it's not a requirement for their reporting to Treasury Board Secretariat. Because of that, it did require a bit of work from the departments in answering our questions. We were particularly looking at extensions in consultations timelines because we feel it's becoming a real concern.

We've decided that what we're going to do with the report cards going forward is actually a three-year plan so that departments and institutions that will be the subject of report cards will get advance notice that we will basically be looking into more details in some of those practices.

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

I have a follow-up question.

I'm just wondering, then, if they had very little notice in terms of what you might be evaluating for this year, could that account for some of the lower grading that organizations or departments received, that is, if they didn't have a good understanding of what you might be evaluating them on in this process?

[Suzanne Legault]

They had a good understanding of what information we were looking for. There was only one institution that could not answer some of our questions in detail. That was the RCMP in terms of some of the delays beyond 30 days. They didn't have that information collected or they didn't provide it to us in the time that we allowed.

But we had several interactions with all of the departments. In terms of explaining very well our requirements, there was a lot of back and forth with all of the departments that were subject to the report cards.

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

Where are you looking for improvements, then? I guess it's in communicating the report card process and the requirements ahead of time. You state that you need to do that. Do you feel that was done well enough or is there always room for improvement?

[Suzanne Legault]

Pardon me?

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

It was suggested in the report that there was a need to improve communication about the report card process and its requirements ahead of time. You've described what sounds to me like good communication and a good understanding. What, then, are you referring to in terms of improving the process and the requirements ahead of time?

[Suzanne Legault]

We can always improve our processes, that's for sure, and we're always striving to do that.

One of the measures we want to improve is actually part of the recommendations we made to the Treasury Board Secretariat in terms of some of the statistics that need to be collected in order for Parliament, other institutions, and our office to better understand what is going on in the system.

[The Chair, Liberal, Paul Szabo]

Thank you.

Mr. Marleau, we're going to get into this a little more with your recommendations, etc., but in your annual report, you reported that 85% of the files were backlogged. In the report card, if you look at that as being reflective across government, two-thirds of the departments of government are not complying with the law. That's failure.

[Robert Marleau]

That's what I called it.

[The Chair, Liberal, Paul Szabo]

Yes.

If you get the resources, and I'm sure that you will, how many years is it going to take before the system is normalized and meeting the general standards of the Access to Information Act?

[Robert Marleau]

Mr. Chairman, if I get the resources that I'm submitting to Parliament for review, I'll be able to do my job. But my job is not to run the access to information regime. That belongs to the Government of Canada under the stewardship of the Treasury Board Secretariat.

I think the traditional posture has been that the head of the institution is responsible for the administration of the act, and that's true: that's the way it's written. But the designated minister, who's the minister of Treasury Board, has responsibilities under the statute for across-the-board performance. That's where I think the leadership has been lacking. It's not last year and it's not the year before; it's been lacking for a considerable amount of time.

[The Chair, Liberal, Paul Szabo]

Mr. Wrzesnewskyj, please.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Mr. Marleau, you stated you had not come across any direct interference in ATIP requests in the last two years.

If you were to become aware of direct interference, and not just in general, as in terms of setting the tone, but of direct interference on a particular ATIP request, what would the sanctions be—not that you could apply them, but what would they be?

[Robert Marleau]

Short of the shame and blame and public reporting and tabling in Parliament of such an event, that's about the only sanction. Then it's up to Parliament to decide where it takes it. We've only had one case since I've been there that had a soupçon of political interference, a case this committee looked at very closely in terms of the Afghanistan human rights report within the Ministry of Foreign Affairs, where two requests alleged political interference.

In our investigation we were not be able to establish that, not even close. We did file our report with the committee as well on that one, and the committee did make some very good and substantive recommendations to government on that, but I gather from the committee report that it was not able to establish whether or not it did occur.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

I'd like to come back to the RCMP, who I referenced earlier. They received a below average grade, I guess that's a failing grade, the worst grade on your report card and this culture of non-disclosure you referenced.

Just under two years ago, in the public accounts committee, under questioning, a former ATIP officer stated he was called into the commissioner's boardroom by Deputy Commissioner Gauvin, who is one level down from the commissioner. There was a request to switch the documents that had been prepared to be sent out with documents prepared by the deputy commissioner. How do you treat a case of this sort?

[Robert Marleau]

First, I need a complaint to cause an investigation. There are now provisions in the statute, particularly the destruction of documents, to pursue that under criminal law, section 67.1.

I would turn that over to the Attorney General as quickly as possible, if I found it.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

That's quite helpful. I believe it was an Officer Estabrooks who also testified, who used to work in that department. They talked about constructive dismissals and punitive transfers.

I believe that particular officer also said files would go missing or they would be incorrectly stamped as being top secret to make sure that access would not be provided. Are you aware of any of these sorts of practices within the RCMP ATIP section?