Information & Ethics Committee on March 30th, 2010

[Suzanne Legault]

What I can say on the first part of your question, in terms of the budget freeze, is that I am worried—there's no question about it—simply because we were so tight this year. Again, it is also reflective of the way I manage the office. I have maximized the use of the budget that I had.

Next fiscal year, what I really want to do is a detailed analysis of how the business model is working. We have quite a lot of lessons learned this year and there are readjustments that we need to make. I want to do that first and to reallocate internally to the extent I can—so we can continue on the path we are now on—and then I'll see whether I do have a budget shortfall. So I will see to that. As I said, if we were to get a major litigation case, I think it might create some problems, but there are possibilities for getting funding for these kinds of issues.

On the second question, what I've noticed in the last three years is an increase in the number of complaints. In 2007-08 there was a big spike, most of it related to the CBC coming under the purview of the legislation. Since then the numbers have been coming down. Last year there were 2,000 complaints and this year we're at about 1,650 complaints. Whether there's been a shift in the groups that are making the requests, I haven't noticed any—certainly in our complaints roster. I would say that evened out more this year. Last year we had a business whose complaints represented quite a high percentage of the total, and this year our roster of complainants is evening out. I've become one of our main complainants this year, because I've initiated complaints. Our own roster of the various groups is evening out this year.

Has there been any significant shift? None that I have noticed, sir.

[The Chair, Liberal, Paul Szabo]

Thank you.

Mr. Rickford, please.

[Greg Rickford, Conservative, Kenora, ON]

Thank you, Mr. Chair.

As irresistible as it is to develop a line of questioning in response to my colleague who just spoke, Easter is coming soon and I think I'll just let him have his day.

My questions today will be in keeping with the line that my colleague Mrs. Block was developing. I'll start out by asking the following questions. Is it, in your mind, not conclusive that the access to information system is slowing down? Further to that, do the delays not simply reflect the growing complexity and scope of the requests that come to your office?

[Suzanne Legault]

Part of the information on this issue is going to be in the report cards, because they are focused on timeliness. Part of the problem is the lack of real data to do significant analysis of delays, extensions, and consultations, and I've been taking a significant look at this. The report cards are going to cover something that we don't have in the Treasury Board statistics, and that's the average completion time of these 24 departments at the core of the Access to Information Act at the federal level. So we will get a pretty good sense of what the average completion time is, and then we need to distill down the reasons for those. As far as I can tell, one of the key reasons for that and key problems in access to information—which I have been looking at recently—is consultations with other institutions, in particular, in relation to national security, foreign affairs, and law enforcement. There is one Treasury Board statistic on this that is incredibly compelling.

[Greg Rickford, Conservative, Kenora, ON]

I'm sorry, Mrs. Legault, are you saying consultation as between departments?

[Suzanne Legault]

Yes, and I would say that is probably one of the major causes of delays, which is undiagnosed, because we don't know how long they take. We don't know the reasons why, necessarily, and the departments that receive consultations have no accountability under the legislation, nor through complaints.

Let me give you the statistics and I'll finish with that. The length of time for consultations that are over 30 days has increased by 40% in the last eight years. That's the core of the problem in access to information at the federal level, as far as I can tell.

[Greg Rickford, Conservative, Kenora, ON]

Thank you for that.

The consultation piece is important, and then we move to another category that I'd like to find a little bit more information on. We certainly have claims out there from some of our friends across the floor that more information is censored when documents are released. It is not true that there's no statistical data to support this conclusion around censorship?

[Suzanne Legault]

If you look at the statistical data from Treasury Board Secretariat on access to information, what we do find is that there is a decrease in the number of requests where all the information is disclosed.

[Greg Rickford, Conservative, Kenora, ON]

Okay.

[Suzanne Legault]

There has been a decrease. I would say if you look at from 2002 to now there's been a decrease of 12%, and if you look at the last two years, compared to 2006-07, there's been a decrease of about 5% in terms of documents where everything is disclosed.

[Greg Rickford, Conservative, Kenora, ON]

My point here is that Parliament has recognized that the public right to access to information needs to be balanced against the legitimate needs to protect sensitive information—I think we can all reasonably agree on that—versus the effect of a transparent functioning government. Accordingly, the act recognizes the right of government institutions to deny access to information in areas such as, for example, national defence, some commercial confidentiality, implications for solicitor-client privilege, and some personal privacy matters. So I just want to develop that a little bit more.

My questions, then, would be as follows. Is it true that some departments or agencies have more segregated information than others and may hold sensitive information? I'm thinking again of National Defence, Public Works, Industry Canada. Can you explain how that might affect these requests, and certainly refer back to consultation in terms of how that may contribute in that context as well? I don't have any more questions, so feel free to....

[Suzanne Legault]

Thank you.

Each institution has a different set of information holdings, and you're quite correct in stating that some of them have some exemptions and others don't. National security is a good one. But it will be interesting when you see the results of the report cards to see that institutions that have actually national security holdings in their information perform very differently notwithstanding that. And yes, institutions do have to weigh how they disclose information. National security is a discretionary exemption, it's not a mandatory one. So one has to show the prejudice in disclosing the information when one wants to apply that exemption. But in terms of the overall performance, also what we see is that year over year, institutions that have the same information holdings actually perform well certain years and perform less well another year.

[Greg Rickford, Conservative, Kenora, ON]

Is that a function of some of the issues that arise?

I'm sorry, I'm trying to sneak extra time.

[The Chair, Liberal, Paul Szabo]

Finish your sentence.

[Suzanne Legault]

I'm just saying that it's not because the information they hold differs, because they have the same mandate, it's because of the way their access to information shop is actually managed. We'll see that in the report cards, because we did a follow-up on certain institutions and there's one in particular where you'll see there's such a significant improvement from last year—for the same type of information—and it's totally attributable to leadership and management of their access to information function.

Can we make improvements with departments even if they have difficult information holdings? Yes, we can, definitely.

[Greg Rickford, Conservative, Kenora, ON]

Thank you kindly, Mr. Chair, for that extra time.

[The Chair, Liberal, Paul Szabo]

Madame Thi Lac, s'il vous plaît.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Thank you, Ms. Legault and Ms. Neill. I would like to thank you and commend you for the exceptional job you have done in the last year.

If I understood you correctly, you have doubled your staff complement over the last year, but now you don't need as much staff. Did I get that right?

[Suzanne Legault]

No, that is not what I meant. What I said was that we have 106 full-time employees paid out of our salary budget. Also, a further 7 positions were staffed, so that I now have 113 permanent employees, including 7 whose salaries are paid out of my operating budget. I also have 20 staff members who are consultants or temporary employees, in order to make up the gap.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Do you still need those 20 additional staff members, even though the backlog has almost been completely wiped out?

[Suzanne Legault]

At the start of the next fiscal year—in two days—I will still have an inventory of about 2,100 cases to process. So, yes, I intend to keep that pace and keep those employees for the time being. We will see how things evolve.

The idea of the business model was to end up with an inventory of about 500 cases at the end of each year, which could then be carried over to the next year. It is clear that we will always have cases that are pending, and that is perfectly normal; however, an inventory of about 500 would be far more manageable. That is what we are aiming for.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

I know it's impossible to identify the exact number of cases, because of the complexity and specific characteristics of each, but in your opinion, how many cases are you able to process annually, not counting the backlog?

[Suzanne Legault]

This year, we processed 2,000. In the handout, you have some historical information. If you look at that document, it shows, for the last 10 years, how many complaints were received and how many were completed on an annual basis. You can see that this year, the number of cases completed was higher than ever. There was only one year, in the entire history of the Office of the Information Commissioner—I believe it was in 1989-90—that some 3,000 cases were completed, but 2,600 of them dealt with delays at a single institution. This year, they are practically all individual cases. So, 2,000 is already a lot. Do we think we can do better next year? Yes!

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

You talked about the website you have developed. Do you think it has enabled complainants to provide more complete information? Would you say the new cases you are receiving these days contain more comprehensive information? Do you reject fewer cases now, compared to previous years, when complainants made less use of the website as a tool?

[Suzanne Legault]

There are two points to be made there. In terms of the process for receiving complaints, last summer our lead time was 22 days, just to ascertain whether the complaint fell within our jurisdiction. In some cases, people had not provided the name of the institution or the subject of their complaint. So, last fall, we added a complaint form to our website which states what information we require to determine whether the complaint is valid. It is too early yet to assess the results, but we see that people are starting to use it, which means that when we receive a complaint, all the information is there.

The second thing we did, last summer, was to issue practice guidelines. We clearly identified for institutions how certain aspects should be handled, including the time they take to provide us with the necessary documentation. Last summer, we determined that it took 90 days for us to receive the documentation, even though we are trying to complete cases within an equivalent timeframe, at least for administrative complaints. So, if we have to wait 90 days to receive the documentation…

As a result, I have very clearly identified on the website that if we do not receive the documents within 10 days, we will go higher up in the reporting structure of that institution, and if we still do not receive it, we will issue subpoenas. Since then, I have been receiving the information in 10 days!