Information & Ethics Committee on April 13th, 2010

[Guy Giorno]

I think I've answered that. The issues management staff is responsible for helping prepare the Prime Minister to participate in question period. In that respect, their role is no different from that of prime ministers' offices in previous ministries. They help to prepare other ministers. They work with the staff of other ministers to help ensure other ministers are prepared for question period.

Questions are raised and accountability is expected, not just during question period when the House of Commons is sitting, but at all times, every day, 52 weeks of the year, seven days of the week, 24 hours a day. They may be asked by a reporter, a stakeholder, or otherwise. So they perform a similar function when the House of Commons is not sitting and there is no question period. They prepare and assist the Prime Minister to answer questions, or work with the staff of ministers to ensure they are prepared to answer questions about what is usually au courant, or topical.

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

Would that branch of the Prime Minister's Office ever give verbal directions on slowing down, delaying, and stopping ATIPs altogether, or transferring ATIPs to the centre?

[Guy Giorno]

I think I have answered that. The responsibility for access to information has been delegated by each minister of the crown to specifically named public servants. They're named in the delegation orders. Those delegation orders are, as far as I understand, publicly available on each department's website.

No political staff member has received a delegation of authority under the Access to Information Act; therefore no political staff member is entitled to make access to information decisions. Further, the Prime Minister's own rules in Accountable Government provide, at page 37, from which I read in French, and will read in English:

The exempt staff do not have the authority to give direction to public servants, but they can ask for information or transmit the Minister’s instructions, normally through the Deputy Minister.

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

Were political staff who gave any push-back to issue management staff in the regular briefings they have ever insulted on the phone before all their colleagues if they contradicted or questioned any of the advice on ATIPs that was being given to political staff by issue management staff?

[Guy Giorno]

That's a similar question with the same answer. The rule is clear: responsibility for access to information has been delegated to specifically named public servants. No political staff member has received such a delegation of authority under the act; therefore no political staff member should be making access to information decisions. No political staff member should be instructing public servants in the discharge of their responsibilities under the act. It would stand to reason that nobody should suffer any adverse consequences for complying with the rules in Accountable Government.

[The Chair, Liberal, Paul Szabo]

Sorry, Mr. Siksay.

Mr. Valeriote, please.

[Frank Valeriote, Liberal, Guelph, ON]

Mr. Giorno, you indicated that you don't investigate non-specific allegations of a violation of the act that might be found in a news report.

Mr. Togneri was a specific case. Can you tell me to what extent you investigated his de-releasing of a report that was otherwise released? If you investigated that, what was the result?

[Guy Giorno]

The member has asked a specific question about Mr. Togneri. As he will know, that is the subject of an investigation by the information commissioner, so it would be inappropriate for me to comment on something she is investigating.

However, I believe the media story covering the issue broke or appeared on the wire on Sunday afternoon, February 7. The article was brought to my attention at that point, so that's when I first learned about it. There was follow-up. I won't speak to the specifics of what happened, but I think the current Minister of Natural Resources has already made clear the steps he took within his office to address that situation.

[Frank Valeriote, Liberal, Guelph, ON]

All right. Thank you.

Now, just for the record, in response to Mr. Poilievre's comments about the record of this Conservative government, it should be noted that the percentage of requests where all information is disclosed has fallen dramatically since this government has come into power, and the percentage of complaints filed with the information commissioner has increased dramatically. I think we need to set the record straight.

That said, in this morning's press conference the information commissioner said that there is a “lack of will to be transparent”. She also said that Canada is “no longer a transparency leader”. This is Canada's information commissioner. She also said that we need to change the legislation, essentially to force the government to comply with time requirements.

What that tells me is that, notwithstanding that you may have been operative in creating this kind of law when you were practising law, just because you participated in making the law doesn't mean you feel a necessity to comply with it.

Frankly, Mr. Giorno, it seems to me that the only reason the information commissioner would recommend changing the law is because of this government's systemic problem with always bending and pushing the envelope, at every level.

Could you tell me why you would think the information commissioner would want to change the law to force compliance? And if that is a valid request, would you suggest to the Prime Minister that he change the law?

[Guy Giorno]

Mr. Chairman, if the member is asking me to get inside the head of the information commissioner, I won't purport to do that.

I will state, however, that as an independent officer of Parliament, the information commissioner is held in high regard. I certainly have, and the government has, a lot of respect for her advice. Any advice given by the information commissioner will be taken by the government and reviewed. The government will look at her recommendations quite carefully.

But if the member is asking about a particular reform, such as the one that, as I understand from the member, has been proposed, it sounds very similar to a proposal that existed for a few years--I think it was November 15, 2005, in Journals, division 180--where members of the Liberal Party voted against such a recommendation.

So I'm not sure whether the member is asking me what the government's position is on something that the Liberal caucus voted against five years ago....

[Frank Valeriote, Liberal, Guelph, ON]

Mr. Giorno, let's be clear. We're talking about facts of today, not facts of 2005. We're talking about this government's non-compliance with the legislation today. That's what is important. That's the issue before us today.

Let me ask you another question. To be absolutely clear, are you denying that any instruction or direction was ever given to any political staff to interfere in any way with any access request, either generally, by the press, or under the act?

[Guy Giorno]

Mr. Chairman, I disagree with the member. That's why I talked about my background. I was happy to do so, because I think the past does matter.

I believe very strongly--

[Frank Valeriote, Liberal, Guelph, ON]

That's not the question, Mr. Giorno.

[Guy Giorno]

--in access to information--

[Frank Valeriote, Liberal, Guelph, ON]

I'm asking you to answer the question.

[The Chair, Liberal, Paul Szabo]

Mr. Valeriote, you're done.

[Guy Giorno]

--and I do not believe access to information is a political football to be shunned while in government and embraced only in opposition. It's a principle that applies at all times.

That's why this government came in, turned the page on what had happened in the past, brought in the toughest anti-corruption law in Canadian history, improved and strengthened the Access to Information Act, and improved a much weaker--under the previous government--access to information policy. That's why those changes were made and that's why they're important.

I accept the premise that there is always more to do, but I don't accept the premise that one can jump back and forth and change a position on such a vital matter, which, the courts have identified, is not just any law; it's actually quasi-constitutional in nature because it is so important to the very fabric of our democracy.

[Frank Valeriote, Liberal, Guelph, ON]

I'll ask the question again.

[The Chair, Liberal, Paul Szabo]

Order.

I'm sorry, Mr. Valeriote; unfortunately, your time is up.

We have to move to Mr. Rickford, please.

[Greg Rickford, Conservative, Kenora, ON]

Thank you, Mr. Chair.

Good morning, Mr. Giorno. Thank you for taking the time to meet with us despite your very busy schedule.

I have two questions, but some background on your experience in today's topic is in order. I know that you are a lawyer and your previous practice of law is certainly one of the reasons why you are qualified for the position of chief of staff in the Prime Minister's office. You are fully versed in legislation and the statutes dealing with government accountability, lobbying and anti-corruption measures. I have the following questions.

I was wondering if you could expand a bit on those substantive pieces, namely government accountability, lobbying, and anti-corruption, and tell us how the Federal Accountability Act helped to address them more fully.

[Guy Giorno]

Chairman, the member has asked me to talk further about some of the changes that were contained in the Federal Accountability Act. I'll start by talking about access to information before turning to other areas.

There were a number of other changes to the Access to Information Act that, even today, haven't received, I think, the attention or the publicity they should.

The definition of “record” was updated in the statute, and that's important, because the old definition of “record” used to be restricted to things on a long list of different types of media, different forms in which information could be contained in records. In order to make the act technology-neutral or to allow it to keep up with the advances in technology, as information-keeping and record-keeping practices change, there is now a very simple definition. It removed the long list, and it says:

“record” means any documentary material, regardless of medium or form;

Of course, that's a pro-access improvement, because it means that as technology changes, everything in government's possession is subject to the act.

The Federal Accountability Act also added a new section to the Access to Information Act--I believe it was section 72.1--which provides the following:

The head of a department or a ministry of state

—in other words, a cabinet minister—

shall publish an annual report of all expenses incurred by his or her office and paid out of the Consolidated Revenue Fund.

That, again, is new in the Federal Accountability Act.

The act also added a new paragraph 70(1)(c.1), which provides that the minister responsible shall, and I quote:

cause statistics to be collected on an annual basis for the purpose of assessing the compliance of government institutions with the provisions of this Act and the regulations relating to access;

Finally--and this is probably the most significant of the reforms, apart from nearly doubling the list of entities.... Chairman, earlier today members asked about this, and concerns prior to 2006 that different types of requesters—news media, opposition researchers—were treated differently are well documented. Of course, that's not what the act provides. The act provides that the processing of requests should be “applicant-blind”, to use the term that's used in the United Kingdom in their freedom of information legislation.

So subsection 4(2.1) crystallizes the requirement that the processing of requests should be, and I quote, “without regard to the identity of a person making a request for access to a record under the control of the institution”. And that was intended to address well-documented and legitimate concerns about different access being given to different types of requesters.

The courts have made clear--and this is the principle of not just this act, but freedom of information legislation in the provinces and around the world--that if Fred makes a request for a record, he should receive the same decision Sally receives, as should John, as should Jane, and that when a news reporter makes a request, he should receive the same determination under the statute as would an opposition researcher, a stakeholder, or an ordinary citizen. Clarifying that and improving the access to information policy I think were important reforms.

And I apologize, Chairman, because I don't even have time to talk about the changes in the Federal Accountability Act that are not related to access to information.

[The Chair, Liberal, Paul Szabo]

You could do that at another time, possibly.

Colleagues, I can't accommodate everyone, but I want to be fair and balance this. We have enough time to go through the third round, but at three minutes. That's basically one question per questioner, okay?

We have Madam Foote, Mr. Poilievre, Madam Freeman, Mr. Bezan, Mr. Siksay, Mr. Valeriote, I believe, and Mr. Poilievre to wind it up. There are seven people at three minutes each, and we'll be done. Okay?

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

I do not understand, Mr. Chair. How are you handling the third round of questions?

[The Chair, Liberal, Paul Szabo]

Instead of a five-minute round, it's a three-minute round.

Carry on. Let's go.

Madam Foote.

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

Thank you, Mr. Chair.

I want to go back to the question that my colleague asked earlier. I just want to be absolutely clear that you are denying that any instruction or direction was ever given to any political staff to interfere with any access request, either generally, of a routine nature, or under the act.