Information & Ethics Committee on March 4th, 2009

[Robert Marleau]

Yes, they do, but we don't have the same kind of volume in access as they have in privacy from Correctional Service Canada or from incarcerated individuals.

I do have the chart, Mr. Chair, if you want me to table it. It shows the distribution of percentage use, by user category, without divulging the names of the complainants. It is graphic in the sense that there are two recommendations I'm making for modernization that are related to this. The first is that for large requests made by the same user to the same institution, there should be a specific extension provision available to the department, on the approval of the commissioner.

The other is about choice. The act says that I shall investigate. I'm recommending that the committee consider, as was included in the open government act, that the commissioner be given discretion on initiating investigations to allow more flexibility in managing resources and in dealing with what might be perceived by some as vexatious or frivolous or abusive. I'm happy to table this document, if you wish.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

I would love to see that document, Mr. Marleau.

I'm just noting for the committee members here that when we look at these numbers, when we look at the number of complaints, when we look at the increase from 22,000 requests in 2002 to 30,000 requests in 2008, we're not talking about the public as a whole. We're talking about fewer than a dozen people--I wouldn't say that they are manipulating the system--certainly taking full advantage. Would that not be a fair description?

[Robert Marleau]

I can't impute motive, but using it to its full advantage is probably a good description.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

Thank you very much.

Mr. Chair, do I have more time?

[The Chair, Liberal, Paul Szabo]

Carry on.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

Thank you.

I would love to continue along those lines. I was going to ask you why government institutions would be legitimately allowed to curtail the information that's available.

Could you explain to members why government can at times curtail access to certain types of information to reflect the balance between access by the public and the legitimate business of the government?

[Robert Marleau]

The statute provides for a series of exemptions and exclusions, things like national security, international affairs, commercial third-party relationships, and cabinet confidences. A carve-out was included for the major crown corporations like Canada Post and AECL. CBC has a journalistic carve-out. Those are the kinds of issues that.... The access provides for legitimate state secrets.

The application, the actual exercise of that discretion where it isn't mandatory, is where my investigations come into play as to whether the discretion was properly exercised.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

That would be my last question. The opposition parties have at times impugned that ministers or political staff members have been the ones to handle these requests. Can you not confirm that it's in fact not ministers or political staff but members of the public service who are always responsible for reviewing these kinds of requests?

[Robert Marleau]

All I can say is that in the two years I've been there and reading through many of the annual reports of my predecessors, we have not found through our investigations direct political interference in the processing of access requests. However, as I said earlier, the talk at the top has considerable influence on the ground floor service delivery.

We do have a famous case before the courts called a controlled case when, in the Ministry of National Defence, meetings were held with the minister, the deputy minister, and the Chief of the Defence Staff and people tried to access those documents. So far, we have not been able to resolve that. It's at the Federal Court of Appeal right now.

[The Chair, Liberal, Paul Szabo]

Thank you.

Monsieur Asselin.

[Gérard Asselin, Bloc, Manicouagan, QC]

Thank you, Mr. Chairman.

Good afternoon, Mr. Marleau, Ms. Neil, and Ms. Legault.

We had an opportunity to get to know each other during your past life, Mr. Marleau. You did an excellent job, and people are still referring to your texts.

Mr. Marleau, when opposition members ask questions in the House of Commons about access to information of the Treasury Board President, he says that things could not be better. This afternoon, the picture does not look as clear and unblemished as the minister suggests. You have produced an excellent report, in which you make a number of recommendations. This all speaks to the high quality of your work. But this can all be done—and I am sure you know this as well—only if there is a political will to amend the act, to implement your recommendations and to earmark the human resources required to remove the dust from this old legislation. But we seem to be getting bogged down.

You and I both know that we have to use access to information regularly when we do not get information from the department. Access to information is our last resort. That leads us to ask certain questions. Does the government have the political will to change things? Have you cried for help? Have you told the minister that you were getting bogged down, that you did not have the human resources or the budget you need? I would also like to know whether there have been any increases since 2006. I'm sure there has been an increase in the number of requests.

I will have another question later on.

[Robert Marleau]

Thank you, Mr. Chairman.

I would like to thank you for your generous comments regarding my performance in another life. I have good memories of those days.

You ask whether the political will exists. I think I more or less answered this question in my report on the report cards. I said that this culture of non-disclosure could only be changed if there were an energetic will and leadership. I cannot state this differently—there is something missing here and it is serious. Has there been a decline? The statistics published last week by Treasury Board show that there has been a decline of about 20% in the number of cases in which all the information was revealed. There has also been an increase in the use of exemptions—in other words there have been more redactions in the last two years than in the past.

To be fair, some of this is attributable to the mission in Afghanistan, if we think of the Department of National Defence and the Department of Foreign Affairs and International Trade, for example. However, the mission in Afghanistan alone cannot account for this 20% decline.

[Gérard Asselin, Bloc, Manicouagan, QC]

Is it reasonable that democratically-elected members of Parliament have to get involved in order to get a minimum amount of information from a department as a result of a request from a constituent? It seems like the directives are top-down, and that people are being muzzled when it comes to providing information. And when we proceed through an access to information request, the documents are provided very slowly. There are often documents missing. We are referred to certain pages, and these pages are missing. There are also documents that have been censored. In fact, I would say that over 50% of the documents are censored. That bogs the system down. People are dissatisfied and wonder whether, when they turn to access to information, the documents they need in order to do their work are being checked. People are entitled to get their evaluation reports.

There's a fisher in my riding who was evaluated by an official and who did not get his quota. A report was written on this. The report was prepared incorrectly, was censored, and was missing certain pages. And if we have to get involved, once again, we have to turn to an ATI request.

[The Chair, Liberal, Paul Szabo]

Merci.

Mr. Commissioner, perhaps you have a comment you would like to make to the comment.

[Robert Marleau]

I often hear about the type of frustration you are expressing. There are many such anecdotes. I can only intervene when I get a complaint on a specific issue. All issues are complex in their own way. It is difficult to make generic comments and to say that all the cases are the same. However, if you complain to the Office of the Commissioner, there is a good chance you will get more information.

[Gérard Asselin, Bloc, Manicouagan, QC]

I will keep the information on how to contact your office.

[The Chair, Liberal, Paul Szabo]

Mr. Dechert, please.

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

Mr. Marleau, in answer to some questions from my colleague Mr. Hiebert you mentioned that approximately ten users generate I think it was 47% of all the requests and complaints, which is really quite remarkable. Would it be fair to say that these requests and complaints consume approximately 47% of your budget, or a similar percentage of your budget? And if so, how much is that?

[Robert Marleau]

Our budget is a little over $8 million. No, I can't say that it would be totally attributable to half the budget, but in a large part.

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

So we could say more than $3 million, maybe up to as much as $4 million of your budget is....

[Robert Marleau]

Almost a half is in compliance and resolution under Ms. Neill, but there are corollary activities in there that are not specific certainly to these ten users.

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

As a rough estimate, I think it's something that the public should probably know.

You may know that prior to being elected to Parliament last fall I was a lawyer in private practice for over twenty years, and I actually studied law with a fellow by the name of Professor Alasdair Roberts, who you're probably aware of and who is a recognized expert in the field of access to information. He's made a number of comments in the press. He's been quoted in a number of journals, both in The Toronto Star and in Lawyers Weekly, which is a journal that I read quite frequently as a lawyer. There are a number of interesting comments.

I'm referring to a Toronto Star article dated November 1, 2003, which quotes Professor Roberts, who was a professor at Queen's University, and he's now at Syracuse University in Syracuse, New York. It says:

Canada's leading expert on access to information issues, Alasdair Roberts, says the system results in unequal treatment for suspect requesters. Media queries are sidelined while others move through unimpeded. Roberts' studies show journalists' requests take longer on average than other types of requests. “Everyone is entitled to equal protection and treatment under the law“, he says. “There is no provision in the law that says journalists and politicians get second class treatment.”

He then went on to refer to the CAIRS system that previously existed:

CAIRS is a product of a political system in which centralized control is an obsession. The system, which has been around in a less sophisticated form for a decade, was upgraded by the Liberal government in 2001 to allow officials across government to review the inflow of requests to all major federal departments, says Roberts, who now teaches at Syracuse University....

Do you remember seeing that article, by any chance? I wonder if you could comment on what was going on in the system for access to information then and what the situation is today.

[Robert Marleau]

I can't remember for sure that I read the same article. I've read Professor Roberts' book and many of his commentaries about access to information. Since that article was published, my office did a systemic investigation—it ran from 2003 to 2005—on what became known as “amber lighting” media requests.

The Canadian Newspaper Association filed a complaint. My predecessor started a systemic complaint on it. We found there was amber lighting. We found that indeed the media was part of that amber lighting, but they weren't the worst. Parliamentarians and lawyers were slowed down even worse than the media was in the amber lighting, and we found it did slow the requests in some circumstances.

I came out not against profiling requests within a department, but certainly against it violating the timeliness of the act, and made three recommendations to Treasury Board, which we're about to follow up on.

So that's the amber lighting and how the media might be profiled. I have no problems with that, because if a department wants to get ready for its communications on a story that's going to break, so long as they do it within the 30 days by the statute or the 60-day extension, that's their decision from a management point of view. We can argue what the spin is—that's another story—but if the requester gets his information in a timely fashion, that's what is paramount to me.

As for the second component, since then as well, we haven't really found a major issue. I'm sorry, I'm using up your time, but there was a two-part question.

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

That's okay.

[Robert Marleau]

Mr. Chairman, I'm in your hands.