Information & Ethics Committee on April 13th, 2010

[The Chair, Liberal, Paul Szabo]

Madame Freeman.

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

Good morning, Mr. Giorno.

Thank you for your testimony here this morning.

You began your presentation by highlighting the fact that, in your view, when the Conservative party came to power in 2006, it marked a fundamentally positive change in accountability. I would just like to say that not everyone perhaps reads things in the same way as you. For many Canadians, the Conservative party coming to power was not the dawn of a new era as the party claimed.

Over the weekend, I took a look at Mr. Harper's speeches. At the time of his election, he promised an honest, open and accountable government. We saw his star candidate, Mr. Allan Cutler, who first blew the whistle on the sponsorship program after the Liberal debacle that we came to know as the sponsorship scandal. So there was Mr. Harper presenting himself the head of a government of accountability.

I would just like to point out that we feel that, without a shadow of a doubt, the situation is quite ridiculous after four years of Conservative rule. There was an item on the program Enquête in which Hélène Buzzetti, the president of the Canadian Parliamentary Press Gallery, expressed a good deal of concern about access to information in your government. Le Devoir reported that it takes 300 days to get information about Afghan detainees. The Globe and Mail said that it took 32 months to get information. A news agency needed 82 extra days to get information about the allegations at the heart of the investigation of Christian Paradis.

Everyone can see that there is one delay after another and that there is a huge amount of censorship. When a government operates in that way, when delay follows delay and when documents are censored, it is an affront to the very roots of democracy. That is what journalists are claiming.

As a member of Parliament under your Conservative government for four years, I see things too. It was no coincidence that Parliament was prorogued just as we were in the middle of a storm about Afghan detainees and about the environment episode in Copenhagen. Shutting down Parliament to avoid answering questions as important as those is also thumbing one's nose at democracy.

In this committee, we worked for three months to try to make recommendations about the Access to Information Act. We heard from a number of witnesses, like Mr. Marleau, we looked at all Mr. Reid's recommendations for improving the act, and we got barely a page in reply from Mr. Nicholson telling us to go back and do our homework. My feeling is that this too is showing contempt for the parliamentary system.

I mentioned Le Devoir, The Globe and Mail, and The Canadian Press. but I forgot to mention the Ottawa Sun that wrote that Harper was ruling like a king over a defunct democracy.

Currently, there are allegations of systematic political interference in ministers' offices in an attempt to block or obstruct the flow of information. Section 67.1 of the Access to Information Act reads as follows:

67.1 (1) No person shall, with intent to deny a right of access under this Act, (a) destroy, mutilate or alter a record; (b) falsify a record or make a false record; (c) conceal a record; or (d) direct, propose, counsel or cause any person in any manner to do anything mentioned in any of paragraphs (a) to (c). (2) Every person who contravenes subsection (1) is guilty: of (a) an indictable offence...

[The Chair, Liberal, Paul Szabo]

Order.

I would just like to point out that you're already five minutes into it. I really must allow the witness an opportunity, please.

[James Bezan, Conservative, Selkirk—Interlake, MB]

I have a point of order, Mr. Chair, on that.

There was a comment made by Madam Freeman about the Prime Minister, and I would like to refer to chapter 13 of Marleau and Montpetit, “Rules of Order and Decorum”, on page 614:

Remarks directed specifically at another Member which question that Member’s integrity, honesty or character are not in order.

So I'd ask that the comments she read, which were an indirect quote from a newspaper, be seen as not in order, as defaming someone's character at this committee.

[The Chair, Liberal, Paul Szabo]

Okay. I don't believe the member intended to defame. She was quoting an article. However, I caution all members to treat the situation--and the witness, of course--with respect and dignity.

Let's move on, please.

Thank you, Mr. Bezan.

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

Three urgent investigations are being conducted by the Information Commissioner. I want to know if you feel that the Prime Minister should ask for an RCMP investigation as he did for Ms. Guergis. The allegations against Mr. Paradis are serious.

[The Chair, Liberal, Paul Szabo]

Mr. Giorno, we're already six minutes into this, but I want you to take the time that you need to respond. I'll give you the time, if it's acceptable to the members, but we need to keep our timeframe under control, please.

[Guy Giorno]

Thank you, Chair. I'll try to be brief.

The member touched on a number of points.

The first is that the member referred to section 67.1 of the Access to Information Act. That is in fact the law. As recently as February, I communicated that to ministers' chiefs of staff by sending out a memorandum that confirmed the provisions of accountable government to which I have referred, confirmed the need to uphold the act, and reminded them and their staff members that section 67.1 of the act makes it an offence to obstruct the right of access. That was a memorandum I sent on February 9.

I followed that up with subsequent training for the staff members of ministers who are responsible for issues management. I appeared before one of their regular meetings and addressed the Access to Information Act and my expectations, and touched on some of the points the member has raised.

I think the record shows that the government has, in fact, introduced many positive reforms to access to information. The member refers to responsibility. It was this government that in the Federal Accountability Act added subsection 4(2.1) of the act, which places on heads of institutions--that's ministers--the responsibility to ensure that there is timely, complete, and accurate disclosure of records without regard to the identity of a requester. That was a reform of this government, and the government's access to information policy was strengthened to that effect.

It was in fact this government that brought in, through the Federal Accountability Act, a requirement in the statute to have the responsible minister compile statistics so that members and the media and the information commissioner can ask the sorts of questions that are being asked.

I'll close by stating that the timeframe for compliance is an issue, and it's not something of no concern. It's the government's policy that departments are to respond in the timeframes contained in the act or extend time in accordance with the act, subject to the right of a requester to go to the information commissioner and ultimately to the Federal Court.

It's obviously something of concern; otherwise, the government wouldn't have proceeded with the Federal Accountability Act, nor would it have strengthened the access to information policy in the way it did.

[The Chair, Liberal, Paul Szabo]

Thank you, Mr. Giorno.

Go ahead, Mr. Siksay, please.

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

Thank you, Mr. Chair.

Thank you for being here today, Mr. Giorno. I'm sure you're a very busy guy, and I'm sure you had many other things you could be doing this morning. So thank you for coming.

I want to echo what other members have said, given our concerns about the initial request around this issue, but also given the information commissioner's report card today. Many of us are very concerned that there is a developing culture of secrecy, a fairly highly developed culture of secrecy, that there has been mounting inattention to transparency on the part of this government. And many of us believe that access to information and the ability of Canadians and others to see the information of government is the oxygen of our democracy, and we're concerned that depriving our democracy of that oxygen is a very serious issue.

The information commissioner's report today is very serious, indeed. The fact that the Privy Council Office gets a “D” in that report is, I hope, very concerning to you and your colleagues. The fact that one department, Foreign Affairs and International Trade, was so bad that the commissioner couldn't even find a way to rate it in the scale of her exercise and she had to issue a red alert is also extremely concerning and something that I hope is demanding the immediate attention of government.

That being said, I want to ask some specific questions. You described the notification process that happens when an access request is ready to be released. You talked about four days' notice that's given. There's been some concern that this notification process has in fact turned into a consultation process, where staffers have tried to convince officials to release less information. They have made suggestions that it might damage relations with another level of government, a provincial government or a foreign government, as a way of diverting it to the Privy Council Office and further delaying it.

Could you comment on the fact that the notification process seems to have morphed into something other than mere notification so that a department can prepare an appropriate response to released information?

[Guy Giorno]

Mr. Chairman, I'll begin by saying that I accept and agree with Mr. Siksay's comment that access of information is the oxygen of democracy. In fact, this is a principle the government adopts and it has been made clear by the Supreme Court of Canada in decisions such as the Dagg decision. The Supreme Court of Canada has actually said and recognized that the access to information law has quasi-constitutional status precisely because it's access to information, which makes our democracy function and allows citizens to hold people in public office accountable.

Now, I have a specific question of the member related to advance notice. I said I could only speak to our office, and the four days to which I referred was an “average”, approximately, in our office--four days. But in general, it's important to remember that there is nothing wrong with that.

Former deputy information commissioner Mr. Alan Leadbeater had the opportunity to appear before this very committee on October 2, 2006. I'm referring to the committee's evidence, number eight, the 39th Parliament, first session, at page 5. The former deputy commissioner was asked about this very point, and he said as follows:

We have no objection to government communications functions or ministerial staff knowing what information is going to be released under the access to information so that they can be prepared with house cards and Qs and As and so forth, as long as the process of doing that does not prejudice the requester by either delaying the answer going out or by changing the amount of censoring that's in the document and so forth. That process, I think, can flow without there being any exchange of identities--and some departments do it very well. So no, as long as timeframes are met under the statute and it is properly applied, we don't have any problem with “sensitive requests” being routed through the communications function of a department.

That is the former deputy commissioner's interpretation of the act, and it's one that I think is correct.

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

Mr. Giorno, do you think timeframes are being met with regard to release of access to information requests?

[Guy Giorno]

Chairman, any question about timeframes needs to take into account the fact that while the statute sets out timeframes, the statute also provides a proper mechanism for extending timeframes. And then it provides a mechanism for a requester who has a problem with that to turn first to the information commissioner, and second to the federal courts.

Subject to that comment, obviously, it is not just the policy of the government, the position of the government. It is my personal view that subject to that, of course, timeframes are supposed to be met. And that's why the government, as I've already said, introduced an amendment in the Federal Accountability Act, to the Access to Information Act, to add a new subsection that wasn't there before, to make heads of departments--i.e., ministers--responsible for accurate, complete, and timely responses to requests.

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

Mr. Giorno, has a minister ever lost their job because of an inadequate response to access to information? Would the Minister of Foreign Affairs be in jeopardy today because of the information commissioner's report?

[James Bezan, Conservative, Selkirk—Interlake, MB]

Point of order.

Mr. Chair, Mr. Siksay is asking a question that deals with things outside of the witness's realm. As he stated earlier, he was hired under the Public Service Employment Act. In O'Brien and Bosc, chapter 20, page 1068, it says:

Particular attention is paid to the questioning of public servants. .... Consequently, public servants have been excused from comments on the policy decisions made by government.

So if we're going to start asking these types of questions, it's definitely outside the realm of Mr. Giorno, our witness, to comment on those, and I think he should be excused from answering that. Committees ordinarily accept the reasons that public servants give for declining to answer a specific question or series of questions that involve the giving of a legal opinion that may be perceived as a conflict of interest with the witness's responsibility to the minister. I think that definitely applies here. He is hired under the Public Service Employment Act and that line of questioning is out of order.

[The Chair, Liberal, Paul Szabo]

Thank you for the citation.

In committee, the members can ask questions they feel are appropriate. Should it be inappropriate in the view of the witness, the witness has the opportunity to make that point.

If Mr. Giorno is prepared to address the question or at least the part of the question that he feels is relevant, then he can do so. This is really a matter for the witness to determine.

Mr. Siksay, you have about a minute and a half.

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

Mr. Giorno, I don't know if you want to respond.

[Guy Giorno]

I think that in part, Chairman, I've answered the question. The expectations are clear, the policies are clear, and they are continually communicated. We have a stronger, more robust access to information regime today in the year 2010 than we did as recently as 2005.

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

It will be interesting to see where the performance on access to information fits into the Prime Minister's assessment of his own ministry.

Mr. Giorno, does the PMO yell at ministers' offices when more information is released than the PMO thinks is appropriate?

[Guy Giorno]

My expectation, and the Prime Minister's expectation, is that his rules be upheld, and the rules in accountable government are quite clear: access to information is the public's right. Access decisions, Chairman, are delegated to specifically named public servants.

No political staff member has received a delegation of authority under the act and therefore no political staff member has authority to make access to information decisions. It would therefore follow that one should not suffer any consequences for observing the standards in accountable government, which are that you don't instruct public servants and you respect the Access to Information Act.

[The Chair, Liberal, Paul Szabo]

Mr. Poilievre, please.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Thank you, Mr. Giorno, for appearing.

I think you and this government are deserving of praise for the improvements in access to information that the country has seen over the last four years. Those improvements are measured by tangible, objective standards like the fact that the number of agencies and institutions covered by ATIP has almost doubled since we took office. Roughly 59 new agencies and institutions have been added, and in a whole series of departments that were already covered there have been major improvements in the grading. I look at, for example, the gradings that were offered by previous information commissioners of departments during the previous Liberal government, and I notice that my colleague across the way has made particular reference to your department, the Privy Council Office, and that according to today's report, PCO received a D.

Now, you've acknowledged the need for us to continue to strive more and work hard to improve, but you're building on what we inherited from the previous Liberal government, which was: in 2004 PCO was graded F; in 2005, F; and in 2006, F. From that moment the government took office, and there has been steady improvement.

You have a background in working on access to information. Can you tell us the experience you have in dealing with ATIP laws prior to your current role as chief of staff?

[Guy Giorno]

Chairman, I thank the member for that question.

I won't comment on the statistics to which he has referred; he's asking about my background in access to information and privacy law.

I've been practising law for almost 20 years. I was called to the bar in 1991, about 81 days after the Ontario Legislature brought into force the first municipal access to information law in the country. I began practising in that area—freedom of information, or access to information, as it's called in many of the provinces—appearing in one of the first eight cases decided under the Ontario statute, appearing in court on two of the first five judiciary applications under that statute.

Shortly before coming here I was engaged on behalf of a requester as legal counsel in a four-year struggle to get the City of Toronto to cough up documents related to a major transaction involving the sale of street lights. I won six consecutive decisions on that point, fighting obstruction and stonewalling. In fact this was such a long case that three of those six successful decisions under the act were argued when I was in private practice; the decisions weren't rendered until after I came here.

I have experience as a requester, as a third party, as well. Before coming here I would lecture routinely on this. Mr. Siksay is from British Columbia, where there is a robust law. Ontario, where I come from, and Prince Edward Island are the only two provinces where hospitals and health care institutions aren't subject to freedom of information laws or access to information. I was an advocate and argued that hospitals should voluntarily adopt access to information policies to make themselves more transparent and accountable.

I was a member of the Freedom of Information and Privacy Association, which is a B.C.-based society that is intended to promote and advance the cause of access to government information. In fact I was a member of that association until the day I took this job. With the conflict of interest rules, I was required to relinquish it.

I have spent my entire legal career dealing with this area of upholding these principles. While as a public servant who was hired under section 128 of the Public Service Employment Act I am subject to certain restraints, I think my experience and my position on these matters are a matter of record.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Thank you, Mr. Giorno.

We've seen other departments where there has been a tremendous improvement under this government. In 2004, for example, under the previous Liberal government, the Department of Justice scored an F; in today's report we find that the Department of Justice has scored an A. In 2004, under the Liberal government, Citizenship and Immigration scored a D; in today's report they scored an A. In 2004, Public Works and Government Services scored a D; in today's report they have a B.

There has been some improvement since that time, but it does take time to turn a ship around. Would you agree with that?

[Guy Giorno]

Yes, I'd agree with that.

I don't think it's appropriate for me to engage in partisan commentary, but I think it's a matter of fact and record that there have been demonstrable improvements in performance, policy, and legislation.