Information & Ethics Committee on April 13th, 2010

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

In the last year of the Liberal government, the RCMP scored an F. That was in 2005. Today the Royal Canadian Mounted Police scored a C. Again, we remark upon some improvements. I think you would agree that the trajectory is on the right track.

You personally held the view that government should take this issue seriously. Government made changes not only to access but also to lobbying roles. These changes were a key plank of the government campaign commitment. Do you still believe in those changes, and can you tell us why they are so important?

[Guy Giorno]

Absolutely.

The member referred to lobbying. Obviously that was the primary area of my practice before coming here, the law regulating lobbyists, where I was a consistent, clear, and unequivocal champion of stronger, more stringent, tougher rules on the lobbying industry.

I think all of the changes in the Federal Accountability Act were necessary, because at the end of the day the Government of Canada, government resources, government information, and government networks, when we're dealing with lobbying and lobbying restrictions, don't belong to politicians or bureaucrats; they belong to the people of Canada. That's why those changes were so important.

[The Chair, Liberal, Paul Szabo]

Thank you very much.

Ms. Foote, please, for five minutes.

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

Thank you, Mr. Chair.

I too thank you, Mr. Giorno, for appearing before the committee.

Having listened to your opening remarks and your responses to some of the questions that were put to you this morning, I'm having a real problem finding the reality of what you're saying in terms of the real situation and especially in light of the report that was released this morning by the interim information commissioner. There are two different pictures here.

I'm assuming that, given the work that was done by the interim information commissioner, you too must recognize that with what you're saying, despite the rosy picture being painted by Mr. Poilievre, a majority of the institutions she looked at are still not in fact complying with the act but are having some really serious issues. They're either given a failing grade or there's a red alert on one of those.

I want to go back to the situation of Mr. Sparrow, because you make a distinction between requests from the news media and ATIP requests. I wonder what that distinction is, because surely no matter who is requesting the information, the same principle of transparency and accountability must apply. So why would a routine request for information be flagged by the Prime Minister's Office, or the minister's office, as was the case for Mr. Sparrow, even if it was just a routine request from the news media?

[Guy Giorno]

Chairman, I'll speak first generally about that. As I understand the question, it was about the difference between media inquiries and a request under the Access to Information Act—

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

And why they would be treated differently.

[Guy Giorno]

The first part of the answer is that in principle, there should be no difference. Information should be available. This is clear from policies in the act. Information that should be disclosable under the act should be disclosable in the absence of a formal request under the act. That's an established principle. But when we enter the area of media requests, which are no different from stakeholder requests or other requests not under the act, it's important to distinguish between requests that involve statistics, facts, data, or information, and requests that involve policy positions and that sort of thing.

To use an example that the staff has heard me use, related to the Peace Tower, if a reporter asks how many bricks are in the Peace Tower, that's a statement of fact, and somebody—I assume it would be the Department of Public Works—should provide that answer. But if the question is what is the government's position on rehabilitation of the Peace Tower, what is the government's position, if any, on the source of materials for renovations, what is the government's position on the budget for those sorts of things, then obviously that's a different kettle of fish.

So if a request is for straight facts, obviously facts should be provided. But if a request involves policy positioning, all of that, essentially a political question about the policy or political positioning of the government, obviously the ministers and their offices would be involved in that part of the answer.

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

What would have been the situation, then, with the request that Mr. Sparrow dealt with from the media where they were asking for specifics, for detailed financial information that was readily available, but that Mr. Sparrow, or whoever, decided wasn't going to be made available?

[Guy Giorno]

Well, I—

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

That was detailed, factual information that was readily available.

[Guy Giorno]

Chairman, I'm pausing. The reason I have trouble understanding the question is that I believe the detailed information, which was the budget of the advertising campaign, was in fact provided to the news media outlet in question. So I'm actually confused.

If the question is was it provided, I think the answer is yes, it was.

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

It was delayed by three weeks. The question is, why was it delayed? Why, if the information was readily available, was it not given to the news reporter at the time the information was requested? The bureaucracy who have been involved said the information was readily available. So why would it not have been released?

[Guy Giorno]

Obviously that's something committee members can ask the minister, who has been invited to appear before the committee, or members of her staff. It would probably be unwise for me to comment on specific details of situations I'm not aware of, but I can speak generally about these matters.

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

That's okay if you don't feel comfortable answering that.

I really want to get to when you were talking about ministers answering questions. You said, if I recall correctly, that in fact the act had been amended by the Prime Minister to ensure that ministers would in fact comply with ATIP requests. I'm questioning why, for instance, in Natural Resources Canada all but the most routine requests are held up in the minister's office. Where does that show there's any kind of compliance?

[The Chair, Liberal, Paul Szabo]

Mr. Giorno.

[Guy Giorno]

Thank you, Chairman.

I think I've answered that question. As I've explained, I referred for example to the authority of Mr. Leadbeater. As well, I point out that the previous version of Accountable Government was something called Guidance for Ministers, and the version of that document issued in November 2003 by the incoming government of Prime Minister Chrétien said as follows--and this is directly responsive to the member's point. This is page 51, section V.6.

In French, the pages are 51 and 52.

“You are advised to operate in accordance with the intent as well as the letter of the Act when dealing with requests from the public for information”--and here's the key point--“and you have the right to expect your department to keep you fully informed of requests for access which are being granted.”

That was the policy of Prime Minister Chrétien and also of the two previous prime ministers.

So there's nothing wrong with informing staff of the minister or the minister that the decision has been made and stuff is going out the door. The key is that the process should not involve delay, should not involve alteration of the decision.

[The Chair, Liberal, Paul Szabo]

Thank you.

Ms. Davidson, please.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Thank you, Mr. Chair.

Thanks very much, Mr. Giorno, for being here this morning and clarifying these issues with us.

I know that in your opening statement you said that government takes the access to information requests very seriously. Certainly that's the way it should be, and I was certainly glad to hear you say that. I firmly believe also that access to information is the public's right and that they need to know that.

We've heard some different statistics here today. We've heard some reference to the report that was tabled this morning, and we've heard some rebuttal on what some of the improvements are when you go back and look at some of the other reports that have been tabled. I think that's significant. I think that we need to not lose track of that. I think we need to be clear that there have been some improvements made, and I think that we're all certainly free to admit that there need to be more improvements made.

So I think we're heading in the right direction. I think the policy is right. I think we need to continue on with the act the way we intend to.

You also said in your opening remarks that these requests are certainly taken very seriously and they're not to be interfered with by political staff. Since you've become chief of staff--I think it was in 2008 or thereabouts--what have you done to instill the importance of maintaining an open and transparent government among the political staff members?

[Guy Giorno]

Yes, it's almost two years that I've been here. I arrived July 1, 2008. Shortly after that, in fact after the 2008 election, Accountable Government was reissued. It addresses these principles, addresses the Access to Information Act, and it addresses the requirement that political staff members not instruct public servants in the exercise of their authority.

More recently I have communicated fairly extensively with members of the political staff, both in my own office, the Prime Minister's Office, and in ministers' offices. I wrote on February 9 to chiefs of staff reminding them of their obligations, and their staff's obligations, and the restrictions placed on them under the Access to Information Act. I wrote to the Prime Minister's Office staff members on February 12 of this year. I wrote again to chiefs of staff on February 12 on this issue.

I said I made a presentation--I'm not sure if I said it was on February 12, but on February 12 I appeared before the regular meeting of issues management staff in ministers' offices and reminded them of their obligations under the act. I reminded them of the provisions of Accountable Government, I reminded them of the provisions of section 67.1 of the Access to Information Act. Then in March I wrote again to the ministers' chiefs of staff and asked them again to confirm these principles, these expectations, with members of their staff and asked them to give me a written record of the communications within their offices.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Specifically, how are the political staff told to treat the information requests?

[Guy Giorno]

The simple response is that political staff members are not told to do anything related to an access to information request. They're told to let decisions be made by the members of the public service who have received delegations of authority under the act, and that's it. No political staff member has received a delegation of authority under the Access to Information Act; therefore no political staff member has authority to make an access to information decision.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Has it always been the case that political staff members have never received delegation?

[Guy Giorno]

It has always been the case that political staff members have not received formal delegations. I don't want to stray into partisan territory here, because I'm not sure that's helpful to the discussion. But certainly there is ample evidence, and I'd cite both the findings of Justice Gomery and some of the reports issued by the former information commissioner, John Reid, indicating that there was some significant political interference in the access to information process.

I make that comment not on a partisan basis; it's just a matter of the history of the evolution of access to information law. But leaving that aside, I think the entire Parliament of Canada has gone beyond that with the reforms that were contained in the Federal Accountability Act--the changes to the access to information policy that are designed to turn the page on some of the behaviour that I think all members of the committee, of all parties, would agree was unfortunate.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Thank you.

[The Chair, Liberal, Paul Szabo]

Madame Thi Lac.