Information & Ethics Committee on April 15th, 2010

[The Chair, Liberal, Paul Szabo]

Madam Faille, please.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Thank you, Mr. Chair.

First, I want to ask a question relating to two aspects of your statement.

As I am one of those who fill out access to information requests every week and who probably complain about time extensions, the issue of chronic delays is one of my concerns. I can testify to the fact that we are often able to resolve several requests rather quickly once they have been submitted to the coordinator and once they have been explained in detail.

I wonder however about the way access to information requests are prioritized. Currently, the departmental coordinator is the person deciding which requests will be dealt with and in which order. There are no very specific rules, guidelines or legal framework. The concern we have and that many professionals have when they put access to information requests is related to the way one can, in the public interest, obtain information to clarify situations, point to mistakes or poor management, or even explore an issue in depth when a problem appears.

I would like you to clarify this. You referred to leadership. Some officers, perhaps due to a lack of training, tell us that non-controversial requests for information seem to be dealt with more quickly than others. However, about the way the requests are prioritized, there does not seem to be any specific framework or precise system. Have you looked at how those decisions are made in the various institutions?

[Suzanne Legault]

No, Mr. Chair. Since those issues are related to the management of access to information requests and since my role is to deal with complaints, it might be better to put those questions to the Treasury Board Secretariat. It is not an issue that we have dealt with in the report.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

In the case of the more controversial requests I have submitted, departments were quick to use various clauses allowing them not to disclose information. This seems to be rather systemic. First, they ask for an extension to have more time to answer. Then, they use various causes of the Act to avoid giving us the information we have requested. Then, when we challenge them, they give us what we want.

Based on your study, would you consider setting up some kind of priority list for the access to information requests submitted by certain persons or by parliamentary committees? For instance, the Finance Standing Committee and the Public Accounts Standing Committee can put requests to the parliamentary budget officer. When those committees submit requests, they have priority over other committees.

Have you considered how, in the public interest, it would be possible to improve the process or the Act in order to allow for quicker access to information when we want to throw some light on some issues?

[Suzanne Legault]

I will try to answer this question, Mr. Chair.

From 2005 to 2008, the Information Commissioner carried out an investigation after having received a complaint from the Book and Periodical Council. After this investigation, we concluded that some departments were prioritizing complaints considered highly visible or sensitive--a red or amber light. There were several levels of priority. We were able to establish that there was no specific or negative priority given to the media but that there was indeed some priority given to other groups, among them parliamentarians. Our recommendation was that even if, for communication purposes, the institutions have to identify the requests, they have to make sure that this would not lead to additional delays.

In a follow-up to this investigation that we did last year, we found that only Health Canada stated that there were still some additional delays related to the identification of some requests. This year, through those report cards, Health Canada stated emphatically that there have been no additional delays anymore since November 2009.

I hope this answers your question.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Yes.

Do I have some time left? Can I give that time to my colleague?

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

Good morning, Mrs. Legault. Thank you for being here.

Is the comparison between institutions assessed in 2007-08 and 2008-09 reliable or should we wait for the next report to be able to make significant comparisons and to assess if there has been progress or not?

[Suzanne Legault]

Last year, we covered 10 institutions because of changes in our process. It was the first time that we were preparing this kind of report cards. Those 10 institutions represented 28% of all access requests, which was a rather small sample. This year, the 24 institutions represent close to 90% of all requests. I am therefore very satisfied that the diagnostic is excellent and is truly based on data. The sample is very large and represents close to all the access to information requests.

I look at all the annual reports of those institutions. They have to send them to me. I have no concern about the other institutions because most of them receive very few requests. The only exceptions would be the new Crown corporations such as the CBC, Canada Post and VIA Rail for which we will produce report cards covering this financial year. That is the group missing from this year's report.

[The Chair, Liberal, Paul Szabo]

We'll have to come back to you in the next round.

Mr. Siksay, please.

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

Thank you, Chair.

Welcome back, Commissioner. It's good to have you here. Thank you for the work you've done on these report cards.

I want to come back to Ms. Foote's line of questioning around the delays in ministers' offices. I particularly want to ask you about your report with regard to CIDA. It goes back to this issue about whether the minister's office was approving the release of documents. Clearly, the language in your report does say that in the case of CIDA, “All but the most basic disclosure packages are sent to the minister's office”, and it says “for approval”.

So I think we need to clarify if it's just for information only, if there is some kind of process happening in the minister's office, and what you meant by “for approval”.

[Suzanne Legault]

Thank you, Mr. Siksay. I was also looking at these notes after answering Madam Foote. I just want to make sure with Josée, who did the interviews, that she can clarify exactly what she found.

[Josée Villeneuve, Director, Systemic Issues, Policy and Parliamentary Relations, Office of the Information Commissioner of Canada]

The approval process or the review process, in a sense, it goes to the minister's office. Ninety-eight per cent of all packages go there. In practice it stays there until the coordinator gets the go-ahead for release.

We will clarify that, Suzanne, and make sure that we convey the message to the committee about the proper process.

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

It does appear, though, that there is some need for a sign-off by the minister or the minister's staff before this information is released, so that there is some kind of approval process. It's not just a matter of informing the minister's office that this is about to happen; it's that the minister's office has played some direct role in the timing or whether that information is even released. That would be the implication.

[Suzanne Legault]

What we know for sure at CIDA is that it does create additional delays. What I don't know is whether it has any impact on the amount of disclosure that comes out of it.

This is the same thing for other institutions, which I'll tell you have very long lists within the institutions, with senior levels of bureaucrats. On whether it leads to longer delays, some have told us yes and some have told us no. On whether it leads to a difference in the disclosure that comes out, some have told us yes and some have told us no in terms of the senior bureaucrats.

That's why this is clearly something that has to be looked at as part of a systemic investigation, Mr. Chairman, because the information was given to us orally. We did not verify it. I did not go through the processing files. I do not have that information. I have sufficient concerns to mention it because we found this in more than one institution. For some of the institutions where we found this, there are long delays. Therefore, this is something that we really need to look at.

The Treasury Board Secretariat, on our recommendation following the CNA investigation, did issue best practices for delegation of authorities. If those are not out publicly, they are supposed to be out today or the next day. I do have a copy of them. They have been issued and hopefully that will put some decorum into this delegations of authority.

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

Were you consulted about those best practices that are about to be released?

[Suzanne Legault]

Yes.

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

Okay. I can appreciate why you'd be disturbed about this approval situation in ministers' offices.

I want to ask a couple of other questions, specifically with regard to the report on Foreign Affairs and International Trade, which I think is glaringly appalling. Do you believe that the Minister of Foreign Affairs and the Minister of International Trade are living up to the letter and spirit of the law when dealing with requests for information?

[Suzanne Legault]

One of the key components of success in transparency is definitely a strong commitment to transparency from the minister and the senior bureaucrats in each institution.

The Department of Foreign Affairs and International Trade obviously has a particularly difficult situation with the types of information they're holding, but in my view, they are significantly under-resourced to actually respond to the workload they have, not only with regard to requests but also with regard to their consultations. The concern I have with this department in particular is that they have almost a central agency role because they receive these mandatory consultations.

Most institutions that we have surveyed this year complain about the length of the consultations with the Department of Foreign Affairs, so it is a red alert because of these factors, but also because their performance, which was already given an “F” last year, has declined so significantly that I really wanted to alert the system that this is something that needs to be looked at. Because it really does have a systemic effect across the system.

If we're going to look at one thing, and if one thing is going to be fixed in this fiscal year, I would suggest that DFAIT has to be looked at as a priority.

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

Do you see the ministers at Foreign Affairs and International Trade taking all necessary actions to meet deadlines and consulting with other departments?

[Suzanne Legault]

I can tell this committee that I have met senior officials at the Department of Foreign Affairs. I have met with Minister Cannon on this matter. I know that Foreign Affairs has made a request for additional funding. I know that they've hired a consultant this year to look at their whole access to information regime.

We at the office, particularly Assistant Commissioner Neill and I, have engaged in dialogue with the Department of Foreign Affairs in order to see how we can improve the situation. I'm hopeful and optimistic that things will improve.

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

In terms of offences against the act, I know that there is section 67 of the act, which deals with, I guess, individuals offending, individuals who delay or prevent the release of information. I believe that when a specific request is delayed, there can sometimes be an appeal to the Federal Court, and I know that the report card functions as an accountability mechanism in terms of calling on departments to review and respond to your suggestions about their performance.

But is there any other way that specific ministers are held accountable, legally accountable, for instance, for not upholding the provisions of the Access to Information Act?

[Suzanne Legault]

Not that I know of.

[The Chair, Liberal, Paul Szabo]

Okay. We'll leave it at that.

Mr. Poilievre, please.

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

Thank you.

Mr. Siksay quite rightly raised some concerns about the ratings at Foreign Affairs. I do want to point out for the sake of historical accuracy that the deemed refusal rate at Foreign Affairs and International Trade in this report is exactly where it was in the last year of the Liberal government. That is not the place where we aspired to be. Nor is this a problem that has appeared suddenly since the arrival in office of this government.

Part of the best way to judge how we're doing, though, is to compare to past results, so I'm going to ask some questions that focus on present and past results. Putting it all into context, though, how many access to information requests does the government get in a year?

[Suzanne Legault]

Last year, the total number of requests was roughly 34,000--34,041.