Information & Ethics Committee on March 30th, 2010

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

So you're extremely stretched now, and then you will have to absorb anything else that comes up within the existing budget. Is there any possibility that some of your employees will have to be laid off as a result of not having sufficient funding?

[Suzanne Legault]

At this time I do not expect that to be the case. However, I think there is that risk in the area of systemic investigations, because we're very tight there. The systemic investigations are resource-intensive, and if there is any increase in litigation it will cause great difficulty for my office.

[The Chair, Liberal, Paul Szabo]

Thank you.

Madame Freeman, s'il vous plaît.

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

Thank you, Ms. Legault and Ms. Neill, for appearing today.

I reviewed some of the comments that were made last year, on the same date. A number of issues were raised at the time with respect to the backlog, staffing, and so on. What you have been able to accomplish in such a short span of time is quite remarkable. I want to congratulate you on a job well done. You have succeeded in greatly reducing the backlog and in introducing a number of systems that greatly enhance your efficiency.

Of course, as we heard in your opening statement earlier, a staff increase was a contributing factor, in addition to your very effective management. Last year, we raised the issue of staffing and recruiting new employees. There was a problem retaining staff. The same problem was occurring elsewhere, in the area of privacy legislation. You had an extremely high staff turnover, to the point where the OIC was not able to properly fulfill its mandate.

Now, in a very short span of time, you find yourself with a surplus of highly efficient employees. What is your secret? How do you retain your employees? I understand you recruit them in universities, but how is it that someone does not come along and steal them, as was happening previously?

[Suzanne Legault]

Well, it's difficult to explain. I think there is a really special atmosphere at the OIC at the present time. It may be because of the number of cases we were able to complete this year, the strategies we have introduced, our investigative activities or Right To Know Week. We are seeing that staff are really excited about their work; they are really committed to what they do. We now provide a lot of training. I would say that the working environment is truly excellent and that staff really believe in the OIC's mandate. Things are much more stable than they were previously. Three years ago, we were in the midst of a major transition.

Under Commissioner Marleau, significant changes were made, resulting in guidelines and foundations being laid down. I built the house on the foundations that were there, if you will. That is a different kind of work, but there was a need to take the time to put the proper foundations in place, and Assistant Commissioner Neill and myself were both there during Commissioner Marleau's mandate. That work is now in its third year. We have begun to build the walls, to paint the house, and people are happy to be there. I think that is all part of it, if I can use that analogy.

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

I see. That's great; now I understand why you are able to retain your staff. You also have made use of a lot of tools to reduce the backlog, and so on.

Could you explain how you did that? I know you have more staff, but you also made a lot of structural changes… Could you tell me more about that?

[Suzanne Legault]

As I see it, every information commissioner is completely different. Each one develops his own approach. In my case, when I took up this position, I started looking at the files. I read every complaint sent to the Office; Assistant Commissioner Neill now does the same.

We are very well acquainted with the inventory and we review it together. We think of strategies that we could implement in relation to the total inventory. We currently have about 2,000 complaints. That is still a lot of cases to manage, as I freely admit, but we are identifying trends in relation to certain institutions, complainants, sections or provisions of the Act, or some key or controversial subjects, and are trying to focus more on that. We also assign cases to investigators more strategically. If we have a whole series of cases connected to a specific department, we will assign them to one or two investigators. They then work together and are more efficient, because they know the institution, the complainant and the subject.

Furthermore, we also make more use of the specific expertise of certain investigators. If some of them are from the RCMP or the Canada Revenue Agency, we will assign them files that relate to those organizations. That allows us to ensure more effective case management.

Over the course of the next year, Ms. Neill and I will be focusing on complex cases. In terms of the OIC's inventory, I have noted that, historically—in other words, over the last 26 years—the complex cases are the ones that took time and continue to do so. Those are the ones we are trying…

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

What do you mean by “complex cases”? You say that you have read all the complaints—you already have more than 2,000—so can you tell me the percentage for each of the categories: administrative, delay-related, and so on?

[Suzanne Legault]

Yes.

In terms of our total inventory, approximately 48% of complaints are administrative in nature. These are complaints that we try to resolve within 90 days. That is our first block of files. As for the rest, approximately 50% are more complex files; they involve exemptions or refusals, and are thus more substantive. They deal with national security, implementation of the Act, other countries, or foreign affairs, for example. They are far more complex, take more time and are of a substantive nature. Also, in that block of 2,000 files—because we do screen and priorize them—approximately 10% are considered priority. So, those files are dealt with on a priority basis.

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

What do you consider a priority complaint?

[Suzanne Legault]

There are two major criteria. The first is urgency, meaning that they concern freedom and security of the person or matters of public health for Canadians. The second applies in situations which have a major impact on Canadians. For example, the recent case involving allegations of political interference is deemed to be a priority because of its impact on Canadians and on government accountability.

That is pretty well the way the system works. This allows us to ensure tighter management of these files. Also, every time I read a complaint, I ask the Assistant Commissioner to follow up on certain files that I want to monitor.

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

With respect to priority complaints—for example, the ones concerning interference by ministers—how long does it take you to render a decision?

[Suzanne Legault]

Ms. Freeman, every case is completely different. In some cases, as I mentioned, we have to conduct examinations under oath, whereas in others, we have to subpoena witnesses. When that happens, the parties are represented by counsel. Processing these files takes quite a long time. I cannot tell you how much time we devote to them, because it is different in every case.

[The Chair, Liberal, Paul Szabo]

Merci.

Mr. Siksay, please.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Thank you, Chair.

Thank you for coming to the committee again, Madame Legault, and congratulations as well on the accomplishments of the office this past year. I agree with Madame Freeman that the reduction in the backlog and the timeliness of dealing with complaints is impressive, and I wish you all the best in continuing that trend. It's nice to see those bar graphs going in that direction.

I want to ask you about your systemic investigation. You announced that last July, and recently you changed the parameters of that or added something. Can you tell us a little bit about the original mandate and what you have added to that?

[Suzanne Legault]

First of all, the idea of having a three-year plan is to give advance notice to institutions of what we are going to look at. I actually want people to comply with the legislation even before we do an investigation. Just signalling to someone that you're going to look into their performance usually has a positive effect. That's the first idea.

This year we were focusing on timeliness in the three-year plan, but as part of timeliness there is a component that deals with the approval processes within an institution and we were going to look at that already. When there were allegations of political interference, I decided to add a component to that investigation, because I'm going to be looking at the same documents as part of this investigation and I can only have one systemic investigation of that scope per year, given the resources I have. It made the most sense to add that component, because I'm going to use the efficiency of looking at the same documents as part of this investigation.

I may then decide to close one part earlier than another. Depending upon how it unfolds, I can still do that, but essentially use the same team and look at the same information.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Is it your plan to report on the timeliness issue within this first year of the systemic review, or are we waiting for three years before we see a report on that?

[Suzanne Legault]

I don't think it will be completed in 2010-11. I would hope so, but the last time we did a systemic investigation of that scope, which was the Canadian Newspaper Association case, it took the office three years. So I am hoping to halve that time. That's my goal.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

You mentioned that one of the pressures on your budget is around systemic investigations. Can you say a bit more about that? Will that affect the timeline, for instance, of doing this systemic investigation?

[Suzanne Legault]

I am planning to do both the systemic investigation and the report cards on new institutions in the next fiscal year. That will be a huge challenge for that team. Some of them are sitting here, and I know they're very nervous when they hear me speak about these goals.

Last year when we asked for additional funding we did not get funding for systemic investigations. Historically, in 2005-06, we got two resources for systemic investigations, and three additional investigators who could be assigned to any part of the organization. That's basically what I've used. I've used those five resources who were given historically to the OIC for systemic investigations and I've allocated them there. But could I use those five investigators in my regular investigations? Definitely. That's the problem.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

I appreciate that you've made that allocation, because I think looking at the systemic situation with regard to access to information is crucial right now. The list of concerns continues to grow, and I know you've said there are at least a couple of priority investigations dealing with alleged political interference in the release of information. I believe one of them is dealing with the situation in the Minister of Public Works' office around the real estate portfolio document. Yesterday in the House I raised another one concerning advertising information in the office of the Minister of Human Resources Development.

There has been a long list of other things--for example, the different version of memos from Mr. Colvin, which were released by the Attorney General to the Military Police Complaints Commission, while the same memo released by DND under the terms of the Access to Information Act was redacted very differently.

There has been the whole question of Minister Fletcher's briefing books and the request from the Winnipeg Free Press and the whole attempt to expand the question of advice to cabinet and what that means.

There was a delay in the commissioner of firearms' report, which took a lot longer than usual to be released to Parliament in May. It had a significant effect on a debate on the long-gun registry.

There is a columnist who wrote about a conference call that was being held at the Department of National Defence, which it seemed was attempting to have verbal conversations and not document the decision-making process that was being undertaken.

The list continues to grow. That's certainly not an exhaustive one, by any stretch. So I applaud you for putting the resources toward that systemic investigation, and we'll look forward to that and the results of the priority investigations you've undertaken.

I wanted to ask you about one other thing. In your report you mentioned that for the first time you made a recommendation to the Attorney General about the possible commission of an offence under section 67.1 of the act related to, I believe, e-mails at the National Gallery of Canada. I wonder if you can just say more about that. Why was this the first time, or is it just a new power that you have? Can you say a bit more about that specific situation?

[Suzanne Legault]

That provision was put into the legislation in 1999. I believe it followed the Krever inquiry into the tainted blood scandal, and it was added to the act in order to ensure that e-mails were not deleted wilfully following an access to information request. Why it has never been used before, I don't know.

Oddly enough, this year, when we look at the entire inventory and the various cases, I actually have more than one case in which there are allegations of this type. We'll see where the investigations take us, but I have more than one. The National Gallery case was the first one, and it did take a long time to complete that investigation because it was the first time. There were a lot of new grounds that were uncovered as part of that investigation.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Can you say something about those new grounds or just generally? Is there a problem with the law as it's written? Does it need to be expanded? Has technology left us behind in terms of the provisions of the access act that make it more difficult for you to pursue that kind of situation in which documents may have been destroyed?

[Suzanne Legault]

It was more in relation to the fact that this provision was put into the act in 1999. Since then we've had the Federal Accountability Act, which created the director of public prosecutions. However, the legislation speaks specifically about referral to the Attorney General of Canada, so that led to some research on our part and some discussions.

Also, since that provision came into effect, there's been significant case law for administrative types of investigations in which there are possible consequences for criminal offences, for instance in the Jarvis and Ling decisions, so we have had to take those into consideration as well. This was not something that our office had been used to dealing with. We had to deal with these new challenges as part of this investigation.

[The Chair, Liberal, Paul Szabo]

Thank you.

Ms. Block, please.