Information & Ethics Committee on June 1st, 2010

[The Chair, Liberal, Paul Szabo]

This is meeting 17 of the Standing Committee on Access to Information, Privacy, and Ethics. Our order of the day, pursuant to Standing Order 108.(3)(h)(vi), is a study on allegations of interference in access to information requests.

We do have witnesses today, but before that I want to just confirm to the committee certain actions the chair took, as authorized by the committee. On Thursday last, after the steering committee meeting, I issued invitations to Mr. Togneri, Ms. Jillian Andrews, and Mr. Dimitri Soudas to appear at our next three meetings sequentially, so the Tuesday and the following week on Tuesday and Thursday. The clerk requested as usual the confirmation of their appearance on those dates, and there was no response from any of the three people requested to appear.

Last Friday we reissued the request to the same three people, again requesting that they respond so the committee could plan its calendar. We did not have any responses by the end of Friday. We waited until yesterday, and by noon there was still no response from any of the three invited persons.

As a consequence, yesterday afternoon I signed and delivered summonses to Ms. Andrews and Mr. Soudas; and as you know, Mr. Togneri is already under summons. I wanted to inform the committee that this has happened, because once they're issued they tend to become public.

Our witnesses today are, from the Department of Public Works and Government Services, Tom Makichuk, director of access to information and privacy; from the Department of Human Resources and Skills Development, Jackie Holden, director, access to information and privacy; from the Privy Council Office, Ann Wesch, director, access to information and privacy; from the Department of Foreign Affairs and International Trade, Monique McCulloch, director, access to information and privacy; and from the Treasury Board Secretariat, Denise Brennan, director, access to information and privacy. Welcome to you all.

I apologize that we had to panel up the witnesses, but due to the declining number of committee meetings available to us to complete our work, it was necessary for us to try to get more efficiency into the meetings. As a consequence, we've indicated to you that we would like a brief opening statement, if you wish--it's not necessary, but if you wish--and then we could get on to the questions from the members.

Do any of the witnesses have any questions? No? Terrific. So let's start at the top of my list.

Mr. Makichuk, from the Department of Public Works and Government Services, please proceed.

[Tom Makichuk, Director, Access to Information and Privacy, Department of Public Works and Government Services]

Thank you for this opportunity to appear before you.

My name is Tom Makichuk. I've been a public servant since 1987, and spent 10 of those 23 years in the field of access to information and privacy. I joined Public Works and Government Services Canada as director, access to information and privacy, on July 6, 2009. My role is to lead the ATIP program for the department. I carry out this responsibility with a staff of 27 full-time equivalents and a combined budget of $2.6 million.

As you know, access to information is considered one of the elements of our democracy. Public Works and Government Services Canada takes this responsibility seriously. This is proven by our record of handling requests under the Access to Information Act. Over the past three fiscal years, the department has responded to over 1,900 requests under the act. This represents a release of almost half a million pages of information. Furthermore, since 2008-09, PWGSC has responded on time to more than 95% of access to information requests received. To date, less than 1% of access requests received in the last fiscal year have resulted in valid complaints investigated by the Office of the Information Commissioner.

As well, the Information Commissioner recognized the department's performance with above-average marks in the 2008-09 report card. Of the 24 institutions assessed, PWGSC ranked in the top three, with a rating of four and a half stars out of five, and a B letter grade. These results clearly demonstrate the department's commitment and dedication to both transparency and legislative compliance. As well, they reflect PWGSC's values of respect, integrity, and excellence in leadership.

I'm happy to respond to your questions.

[The Chair, Liberal, Paul Szabo]

Thank you, Mr. Makichuk.

We'll move now to Jackie Holden, director, Department of Human Resources and Skills Development.

[Jackie Holden, Director, Access to Information and Privacy, Department of Human Resources and Skills Development]

Thank you very much.

I do not have a prepared opening statement. However, I would like to note that I'm pleased to appear before the committee today and to respond to any questions you may have for me.

[The Chair, Liberal, Paul Szabo]

Thank you very much, Ms. Holden.

From the Privy Council Office we have Ann Wesch, director, access to information and privacy.

[Ann Wesch, Director, Access to Information and Privacy, Privy Council Office]

Thank you, Mr. Chair, and good morning to members of the committee.

I would like to explain to the committee my role and how my office interacts with the Prime Minister's Office and ministerial staff in responding to requests sent to the Privy Council Office under the Access to Information Act and the Privacy Act.

The access to information and privacy division reports to the assistant deputy minister for corporate services in PCO. The division has 28 positions. The PCO ATIP division processes all of PCO's access and privacy requests in keeping with statutory obligations and Treasury Board guidelines.

The PCO ATIP work process is divided into five stages. Generally, about four days before the due date a copy of the release package is sent to PCO communications and to PMO issues management. Records appear as they will be released to the applicant. This copy of the release package allows ministerial staff to keep the Prime Minister informed of upcoming releases and to prepare for media and parliamentary questions. No records review or sign-off by PMO is involved, and the procedure causes no delay in completing a request. The practice does not single out particular requests. It is a routine and consistent action for every access to information request.

There is no mechanism within the routine to alter a decision, to vet records content, or to delay access. The identity of the requester remains protected. Information is also delivered to the PMO via memorandum. For every access to information request, the ATIP division forwards a memorandum to the chief of staff to the Prime Minister called a notification of pending release. In addition, I meet with PMO issues management staff weekly to provide information on ATIP requests and consultations that come into PCO and those that are closed. This is purely an information session.

These are the practices used by the ATIP division to keep ministerial staff and senior PCO officials informed about what information is being released in response to requests. The Privy Council Office does not categorize requests or label specific files for any kind of special handling. It processes all requests in the same manner. Ministerial staff in the PMO play no part in the approval process and have never asked me to alter a decision, to vet content, or to delay, deny, or withhold access. All decision-making about the release of information in response to requests is done by departmental officials in PCO.

This upward flow of information is entirely consistent with the constitutional responsibility of a minister for the operation of his or her department, including its ATIP functions. A minister has to be informed. However, the work process--the decisions about what exemptions apply and what information is released--remains the sole purview of departmental officials exercising their delegated authority.

I would also highlight for the committee the progress that the ATIP Division has made in improving its performance. I was appointed ATIP director in April 2007. Over the last three years, we have improved efficiency and effectiveness in responding to requests. The division has been restructured into three lines of responsibility. We have made procedural changes to streamline our process, adopted new technology and staffed up.

An Officer Development Program was established to mentor new ATIP officers. We have sought out best practices in other departments. All this is to say that we have been working, and continuing to work, toward an efficient work process, and awareness for the principle of access. I can also say that I have been fully supported in this effort by senior management at every level.

PCO's ratings under the Office of the Information Commissioner have improved. Last year, the division processed 545 access requests, involving the review of 75,000 pages of records as well as responding to 350 consultations from across government. For the year that just ended on 31 March 2010, we closed 82% of requests on time, the equivalent of a C grade. This is solid progress. Three years ago we had over 230 late requests in a backlog. We've reduced this backlog by 98%.

Let me close by saying that the application of the Access to Information Act to records under the control of government is a profound responsibility. The ATIP professional has to strike a balance between the public's right of access to information and legal protection of the information under the act.

I thank you and the members of the committee for your attention and this opportunity to speak.

[The Chair, Liberal, Paul Szabo]

Thank you, Ms. Wesch.

We'll now go to the Department of Foreign Affairs and International Trade. We have with us today Monique McCulloch, director of access to information and privacy.

[Monique McCulloch, Director, Access to Information and Privacy, Department of Foreign Affairs and International Trade]

Thank you.

Good morning, ladies and gentlemen.

As director of the access to information and privacy protection division at the Department of Foreign Affairs and International Trade, I am the delegated authority for administering the Access to Information Act, the Privacy Act, and all related Treasury Board policies. In this capacity, I am pleased to appear before you today.

At the outset, I would like to assure the committee that in accordance with the principles of openness, accountability, and transparency, the Department of Foreign Affairs and International Trade is committed to respecting the Privacy Act and applicants' rights of access to information. In fact, DFAIT follows Treasury Board Secretariat's best practices in its administration of the acts. For example, the access to information coordinator, which is the position that I occupy as director, has full authority delegated by the head of the institution for the administration of the acts. My position is at most two positions removed from the deputy head in our organizational structure. My department has sound practices for the processing of all access to information requests. There is a collaborative approach that exists between my ATIP office, the offices of the heads and deputy heads of the institution, our communications branches, our parliamentary affairs people, and our program officials.

A process is in place to notify officials of the imminent disclosure of records when the processing of a request is in its final stages. This is DFAIT'S COMM Alert process, which allows senior department officials, including the minister's staff, to prepare required communication products such as media lines and question period notes. This is done 72 hours prior to the release of records under the act. These written COMM Alert procedures are established across the department, including in the minister's offices. The main principles of the ATIP COMM Alert process are as follows:

It allows the department to prepare in case questions arise from releases under the Access to Information Act. It is not an approval process of packages to be released by the minister's office.

The identity of applicants is never shared outside my ATIP office, and this COMM Alert process does not delay releases. In fact, it is departmental policy not to provide the minister's office a 72-hour timeframe when the legislative due date cannot permit it.

To ensure that the ATIP process is well understood, and that there is a culture of ATIP commitment across the department, my office introduced additional measures in the fall of 2008. For example, DFAIT implemented a new streamlined ATIP tasking process across the department with single gateways into each branch and bureau, along with dedicated ATIP liaison officers. A department-wide ATIP awareness program was implemented to ensure that officials across the department understand their ATIP roles and responsibilities.

Monthly ATIP performance reports to senior management have been introduced, and these reports have already improved turnaround times from program areas.

The department also introduced an ATIP professional development program to address recruitment, retention, and succession-planning issues. This program is already demonstrating its key benefits.

Nonetheless, it is true that DFAIT has been carrying forward from year to year a growing backlog of ATIP requests that are beyond the legislative timeframes. This is something of concern not only to the Information Commissioner, but also to the department and the minister. Senior departmental officials are reviewing the allocation of resources at the minister's request with the purpose of clearing this ATIP backlog and building a greater capacity to meet Canadians' requests.

As a final remark, I would like to reiterate that DFAIT is committed to responding to access-to-information requests and to helping applicants to exercise their rights under the Access to Information Act and the Privacy Act.

Thank you.

[The Chair, Liberal, Paul Szabo]

Thank you, Ms. McCulloch.

Finally, from Treasury Board Secretariat, we have Denise Brennan, director, access to information and privacy.

[Denise Brennan, Director, Access to Information and Privacy, Treasury Board Secretariat]

Good morning, and thank you for the opportunity to be here before you today.

My name is Denise Brennan.

For the past six years, I have been the director in charge of the unit that processes all access to information and privacy requests submitted to the Treasury Board Secretariat.

I hold the full delegated authority in the secretariat to process and approve these requests for final release.

Today I will provide you with a brief overview of the procedures that the secretariat has in place to action access to information and privacy requests.

The Treasury Board Secretariat’s access to information and privacy unit is proud of its record and we believe strongly in the spirit of the Access to Information Act and the Privacy Act. We also strive to lead by example.

Our record stands for itself. The Treasury Board Secretariat response rate for responding to access to information requests on time has been 97% and 98% for the past two years and 100% for all privacy requests. Like every other department, this information is published in our annual reports to Parliament, which are also posted on the secretariat’s website.

In accordance with the provisions of the ATI act, many of our requests require consultations in order to provide the most complete and accurate information available to the requester. We are confident that our process allows us to respond to requests within legislated timeframes.

Upon receipt of a request, my office identifies the request as routine or “high visibility”. Within the first 10 days, we seek clarification if necessary. We provide a search estimate or we retrieve the records and obtain recommendations from the sector on exemptions.

Within the next 15 days, my office reviews records and recommendations and prepares the records for release. Three days before the file is released, if my office has identified a request as high visibility, we advise the Secretary of the Treasury Board and the Office of the President of the Treasury Board, for information purposes only.

Our communications sector is notified at the same time so that communications products can be prepared if necessary. Our aim is to complete this entire process within 30 days of receiving the initial request. In fact, in 2009-10 we achieved this goal for 74% of our files.

Now, a few words on our best practices. Departmental officials in the secretariat are informed and are well aware of our process, our progress and our performance. We provide weekly updates on progress toward achieving the above deadlines by sector. This report is provided to the president's office and senior officials to ensure we maintain our high performance standards. Upon arrival of a new president, my unit informs the new president's staff of the secretariat access to information process. We also provide training sessions to Treasury Board Secretariat managers and employees on our process and timelines.

Finally, I would like to address an issue that has been of recent interest to this committee: political interference in access to information requests. Since I have held this position, no president of the Treasury Board or any of their staff has ever prevented the release of a document to respond to an access to information request or asked that redactions be altered.

In conclusion, my team and I are committed to the principles of the Access to Information Act and the Privacy Act, in providing timely access to government documents. We are proud of our performance and our record. I would be pleased to answer any questions that the committee may have. Thank you.

[The Chair, Liberal, Paul Szabo]

Thank you, Ms. Brennan.

I want to move right to questions. I'm hoping to get two full rounds in, so let's get right on it.

Madam Foote, please.

[Judy Foote, Liberal, Random—Burin—St. George's, NL]

Thank you, Mr. Chair.

Thank you to each of our witnesses for appearing before us this morning. I appreciate the important position you each hold in the departments where you work.

Mr. Makichuk, you mentioned that you have a $2.6-million budget and 27 employees. I assume you're kept very busy, when I look at all of the statistics you've given us here.

I think you're probably also aware, as Ms. Brennan said, that one of the issues our committee has been dealing with is political interference. Of course, I guess that's one of the reasons why we're interested in hearing about ATIP requests, the responses, and how they're being dealt with.

We're told, through a Globe and Mail story, that Mr. Tognieri instructed a bureaucrat in your department to “unrelease” a report. I'm curious, I guess, when I listen to you talk about your job and what you're expected to do and what you do. It says that a bureaucrat had to make a mad dash to the department's mail room last July, as the report was on its way to the Canadian Press, and the Canadian Press had requested this particular report. This occurred despite the department's real estate branch having consented to the full release of the report. The Access to Information Office at Public Works--I'm assuming that would have been you as the director--had determined after extensive consultation that there was no legal basis to withhold any of the report. The director general at Public Works stated that the entire report should be released, and justice department lawyers agreed.

In some of the e-mails that Mr. Tognieri wrote he said, “What's the point of asking for my opinion if you're just going to release it!” So who would have asked for Mr. Tognieri's opinion about whether this should be released?

[Tom Makichuk]

I don't believe anyone did ask for Mr. Tognieri's opinion.

Perhaps Mr. Tognieri misunderstood his role in the process we have at Public Works and Government Services Canada. Much like other government institutions, we have a method through which requests are reviewed, in terms of their texts, to determine if any are sensitive and require communications products or briefings associated with their disclosure.

Mr. Tognieri participated in that process by reviewing the texts of the requests as we received them on a weekly basis. This particular request was identified as requiring media products, communications products, and that it would be given a heads-up throughout the department to the responsible assistant deputy minister, the associate deputy's office, and the minister's office.

Through that process there is a routing slip that simply indicates that the disclosure package has gone for this heads-up, this review. It would have been through that process that Mr. Tognieri would have seen the disclosure package to go.

So in specific answer to the question, it is my belief that Mr. Tognieri misunderstood his role in reviewing those documents, subject to release, and believed he was actually being asked for an opinion. In fact, he was not being asked for an opinion.

[Judy Foote, Liberal, Random—Burin—St. George's, NL]

Why did Mr. Tognieri have the authority to get a bureaucrat to actually run down and withhold that information or “unrelease” the information--that there was consensus, among everyone who appeared to have been in authority, to release it?

[Tom Makichuk]

That situation transpired in a very few brief moments. There was a concern raised about the file. I was informed that a concern had been raised. My associate deputy's office contacted me. It was not clear what the concern was, but it was clear that the release package had been placed in an envelope and left for the mail room to pick up.

We did not know the nature of the concern or the full nature of the concern, and whether or not the envelope had actually left in the mail stream from the department. So it was a matter of a few brief minutes to assess the situation and determine what the next steps of action would be.

The decision was made to attempt to retrieve the envelope from the mail room, if at all possible, and then later assess what the concerns were. It was at the end of the day. As I recall, it was close to 5 o'clock. There was concern about whether or not the envelope had been placed in the mail stream and had left the department.

Fortunately, in this case the envelope had not been stamped, had not left the department, and was retrieved from the mail room. Then, based on that, decisions could later be made as to what was the nature of the concern regarding the file.

[Judy Foote, Liberal, Random—Burin—St. George's, NL]

Do I understand that it took three weeks for the information to be released?

[Tom Makichuk]

There was a delay from the time that the request was retrieved from the mailroom to the time that it was eventually disclosed. Yes, that is correct.

[Judy Foote, Liberal, Random—Burin—St. George's, NL]

And the three weeks, is that the timeframe you're familiar with?

[Tom Makichuk]

As I recall, it was a period of two and a half months, Mr. Chair.

[Judy Foote, Liberal, Random—Burin—St. George's, NL]

Thank you.

If there was such a consensus that the information should be released, based on anyone who should have had some say in this, why would it have taken that long to release the information?

[Tom Makichuk]

There are a variety of situations that contributed to the delay. For one, I had only joined Public Works and Government Services Canada three weeks prior. Two, the next day I was given an acting assignment as director general, which lasted for an additional two and a half weeks, and during that period of time I was also responsible for my own duties.

Furthermore, our concern in Public Works and Government Services Canada is always to respond to our requests as fast as possible and on time.

[Judy Foote, Liberal, Random—Burin—St. George's, NL]

I understand that, and I appreciate that. I'm just thinking that three months seems to be an inordinate amount of time, when anybody who is anybody who would have been familiar with that file, who had agreed to it, would have allowed it to go that day.

[Tom Makichuk]

Mr. Chair, it was not as simple as it sounds.

[The Chair, Liberal, Paul Szabo]

Okay, I have a feeling that's going to come back more.

If I may, just for clarity, it was released under all the normal circumstances, and I think the second-last question that Ms. Foote asked was--

[Randy Hoback, Conservative, Prince Albert, SK]

Point of order.