Information & Ethics Committee on Sept. 22nd, 2011

[Scott Andrews, Liberal, Avalon, NL]

That's fair enough.

You're also conducting other investigations into interference in eight departments, if I'm not mistaken. I have just a couple of questions on that. When should we expect these reports? Will they be special reports to Parliament? Are these interference requests all at the political level or at a departmental level?

[Suzanne Legault]

There's one investigation with Public Works. That really was the result of the work of this committee in the last Parliament. This committee asked for additional information from the government. A list of documents was then provided to the committee. Minister Ambrose provided me with these documents. When I consulted those documents, I elected to initiate my own investigation based on these documents. That's one. At the same time, there are also still in my roster two investigations where there were allegations of political interference: one with the Department of Foreign Affairs and one with the Department of National Defence.

These are all ongoing. I'm hoping that they're going to be finished before Christmas. That's really my goal, but I really don't control all the steps in any investigation. There are various parties involved. I cannot control the timelines of everyone.

In addition to that, what is also ongoing in my office is that after the last report card, when we got information from people in various departments that there were delays and various kinds of interference--not necessarily political interference, but interference in the actual processing of access requests--I thought I had enough information there to cause me concern, so I did start a systemic investigation. Now, that systemic investigation, I will be very honest with you, is always the one that takes the back burner because I have very few resources to allocate to it. I'm hoping it's going to be finished if not before December, then early in 2012.

[The Chair, NDP, Nathan Cullen]

Thank you, Mr. Andrews.

We'll be going to Mr. Dreeshen for up to seven minutes.

[Earl Dreeshen, Conservative, Red Deer, AB]

Thank you very much, Mr. Chair.

Welcome, Madame Legault. It's nice to see you again. I was on this committee back in 2008, so I did have an opportunity to discuss many of these types of issues. It's great to see that so much progress has taken place. I'm also on the public accounts committee, and of course your earlier comments with regard to the Integrity Commissioner are something we studied.

I'm just curious, and I wonder if you could perhaps go over some of your action plans as far as the audit is concerned. I noticed some of the dates that you had already pencilled in to have some of these things accomplished. Could you do that perhaps in the context of the systematic work you are using to improve access to information as a whole at all the different levels?

[Suzanne Legault]

Thank you.

As I indicated, Mr. Chair, after the events with the Integrity Commissioner's office, given that we were going through audits in any event, I decided to do an audit of our investigative function. I figured that it would be a really good idea for this committee to have some reassurance from an external body that our investigative function was respecting our legislation and that it would be a measure of accountability to this committee, while at the same time be an audit that would be useful for us. So that's what we did.

Essentially there were some uniformity issues within the office in terms of documented events and investigative plans. We have some cases that are fairly simple and some that are more complex. Last year we brought in some new investigators so we needed to make sure that we had a better, more streamlined approach. That's what we're going to do.

One area I'm keen on is priority cases. I have some priority cases that are taking way too long. So how do I make sure I can put more emphasis on those out of a roster of 2,000 cases? We're going to try another pilot project, as I explained to your colleague earlier, which will be headed by a lawyer. I'm doing that because these are complex cases and by having a lawyer supervise the investigators, we can address the issues and questions of the investigators much more quickly and we can go to the institution and ask for representations that are more targeted more quickly. That's part of the problem I'm seeing in the investigations: there's a lot of delay in the back and forth between institutions. It's fine to do that for a while, but it really has to be more disciplined.

Another concern I have is that sometimes an investigation is not necessarily identified as being a priority when it comes in, but events occur and they should be given priority. I felt that this process was not well oiled in my office. We're going to try to do something with our communications folks so there is more interaction between what's going on in the world outside of my office and how we give priority to our investigations should we need to change that.

To me, systemic issues and how we deal with systemic investigations are key things, because when there are individual complaints, each one is conducted in private. I will get additional disclosure, hopefully, for the complainant and the case will be closed. That's fine. We report on those in our annual report. But when we do systemic investigations or report cards, we actually are able to see systemic problems and make recommendations for changes across the system. In the long run, doing that is more effective in improving the access regime. This work, I think, is extremely important. It always taxes my organization, but I think it's valuable, and in fact a lot of the recommendations we've made over time on the report cards and on the systemic investigations have been implemented or are in the process of being implemented, and those perhaps have more of an impact.

[Earl Dreeshen, Conservative, Red Deer, AB]

Do I have more time?

[The Chair, NDP, Nathan Cullen]

Absolutely. You have about two and a half minutes.

[Earl Dreeshen, Conservative, Red Deer, AB]

You were also speaking about some of the international travelling you had done. I wonder if you could update us on some of the things you and your office have been responsible for in that regard and perhaps talk about some of the best practices. I know the committee wants to have you here so that we can understand the types of things that are taking place and use your experiences.

[Suzanne Legault]

It has been unusual this year. I have been travelling a lot more than I normally do, but there seems to be a thirst internationally for the experience of Canada.

I was in Nigeria this summer. They just passed a law and wanted advice on implementation. I was invited there by the Canadian high commissioner in Nigeria.

I also attended the inaugural meeting in Washington of the open government partnership. I'll speak a little bit about that because it's also a symptom of the thirst internationally.

I was also in Mexico for its national transparency week, at the invitation of the commissioners there. Mexico is, in some ways, legislatively and technologically advanced, but they still have a lot to learn on the implementation side. Canada was the guest of honour there this year.

I've also been invited by the Carter Centre to assist in a couple of weeks with China's new regulation.

The open government partnership, which the Canadian government has decided to join, is an excellent initiative. The reason is that there are many countries around the world now who are wanting to explore transparency, not only in legislation but also in proactive disclosure and in implementation. And Canada can really provide a lot of leadership and expertise. The government can do that; the Treasury Board Secretariat has been implementing access to information in Canada for almost 30 years.

My personal view is that there is a worldwide benefit from increasing transparency, because it decreases corruption. There is always a clear and direct link, a correlation, between a reduction in corruption and an increase in transparency.

Canada is now looking to expand its trade with some of these countries. Brazil needs to have a law; they're actually coming to my office in two weeks to get assistance. Honduras, Costa Rica, Chile, Argentina, all of these countries are developing their transparency agendas, and Canada can really assist them. But I think Canada benefits because one wants to conduct trade in and with a country that has low corruption levels. So that is ultimately the benefit to Canadians in providing this assistance.

[The Chair, NDP, Nathan Cullen]

Thank you, Mr. Dreeshen.

Mr. Dusseault, you have up to five minutes.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Thank you, Mr. Chair.

I want to welcome Ms. Legault to our committee.

I would like to get a few clarifications, as I am new to both Parliament and this committee. I would like to be up to date on what you do.

First, I want to talk about the Supreme Court's ruling that ministers' offices are not considered to be government institutions and are therefore not subject to access to information requests.

Can you confirm the fact that access to information requests do not apply to ministers' offices?

[Suzanne Legault]

Yes, that is what the Supreme Court ruled. The ruling is a bit more complicated than the simple statement that those offices are not subject to the act.

Basically, the Supreme Court stated that the minister is not part of the department. The documents that may be in the minister's office are not completely exempt from the terms of the act. The Supreme Court developed a two-step control test. The first step consists in asking whether the records relate to a departmental matter. If the answer is no, the act does not apply to the records. If the answer is yes, another question is asked: Should a senior official of the department reasonably be able to obtain a copy of the record? If so, the record is covered by the act and can be disclosed. To determine whether a senior official should be able to obtain the requested record—my apologies, the control test is complicated—the document's content, the circumstances under which the record was created and the overall legal relationship between the government institution and the person who holds the record must be scrutinized. The test is quite complicated.

In addition, another decision by the Supreme Court concerns the commissioner's powers. Usually, I am allowed to enter and search a department's offices. I can go into a department and conduct a search. I have the power to do so. But the Supreme Court ruled that, since the minister's office does not come under the act, I do not have that right. However, I can issue a writ to compel the records located in a minister's office to be disclosed so as to ensure, for instance, that the control test was applied correctly.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

I have to cut you off, as I have only five minutes.

Do these exemptions and the complexity of the process not create a black hole of sorts, making documents that could be available to the public inaccessible?

[Suzanne Legault]

Yes, I think that is a major risk. In terms of Canadians' access rights, this decision is unfortunate. That's what I said when it was made. I feel that ministers' offices should be covered. It would be a lot easier for them to be covered and for the act to contain provisions protecting parliamentary privilege, as in the case of documents belonging to people in your ridings. Those are truly documents of a political nature.

I think that modern legislation covers ministers', MPs' and magistrates' offices. My opinion is that the act should do the same. Does this mean that Canadians would not have access to certain documents? That's sort of what the Supreme Court's decision means. That decision covered little-known documents. Yet, if we consider the facts, we realize that the outcome is really disastrous.

The minister in charge of the Department of National Defence and some of that department's senior officials have held a number of meetings, and the only notes on those meetings were taken by the political employee of the minister's office. But those notes will never be accessible. The court actually ruled that they were not accessible or covered by the Access to Information Act. I think that those notes were very relevant to the meetings and should have been covered by the act. That's a concrete example of where this issue stands. The Supreme Court issued this ruling, which is problematic. The other problem is that, even though I have the power to request records from the ministers' offices, I can never be sure that they have sent me everything.

[The Chair, NDP, Nathan Cullen]

Thank you, Mr. Dusseault.

Mr. Calkins, you have up to five minutes.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Mr. Chair.

This is my first committee meeting where I've had an opportunity to ask a question and I want to start things off on the right tone.

I have a couple of questions for you. You spoke in your opening remarks on the open government initiative, that three pillars initiative. You spoke very briefly about it. I was hoping you could elaborate on what you see as positives coming out of the three pillars of that open government initiative and what they might be.

Recently it was announced that Public Works is engaged in a 10-year plan to reduce its data collection centres--its legacy systems and so on--from over 300 centres to about 20. I think that's what the report that was commissioned came out and said. I'm just wondering what information you can provide, or what concerns you may have with that centralization of information and centralization of data, and how it will affect your office, if at all. How will it affect how government departments work with each other insofar as protecting the privacy of information of individual citizens, as departments are not supposed to be sharing information with each other and so on?

Last but not least, I'd like some comments from you. My colleague Mr. Butt did address this a little bit. I think we started going down this road. It's about some of the perceptions out there, about the varying standards when it comes to information that's received, depending on the different responses that are given or the different questions that are asked, particularly when it comes to certain organizations.

In particular, I'll ask about the Canadian Broadcasting Corporation. If you can talk about some of the inconsistencies there, some of the problems that might be there, or some of the issues that should be brought to the attention of the committee, I would appreciate that.

Those three questions should use up my five minutes.

[Suzanne Legault]

In terms of the open government initiative, I would say that I think the best people to speak with would be the Treasury Board Secretariat people. They are the lead in this endeavour. I'm on the outside, as you are. I basically see the initiatives that are being announced or the initiatives that are put forward. We're consulted on some of them.

One of the really positive things I see is that we are going to make some data sets available. They're being put into centralized databases. Normally, when databases are put together, departments have to conduct a privacy impact assessment. I'm assuming these things are being conducted by the Treasury Board Secretariat. This is something the Privacy Commissioner would be more aware of. I don't deal with that.

There are some initiatives within the access to information regime that I think are very positive and of which I have just recently been apprised. Among others, for instance, is the move towards full disclosure of access to information requests on a website. That has already started. Also, electronic requests as opposed to letters and electronic payments as opposed to cheques will be allowed. As you know, probably nobody under 30 uses cheques anymore. They just do all their transactions electronically.

These may seem like small things, but I think they will actually improve the efficiency of the access to information regime. In my office, for instance, we do get double or triple requests for access for things that have already been posted on our website, so we don't have to redo them. Basically, the information is already there. So we are seeing some efficiencies with that process.

So limits like that to open government.... I think it's really starting, and we'll see how it evolves. I think it's very positive. I think open government partnership is extremely positive as well, but we'll have to see how it evolves. I think the Treasury Board Secretariat would really be able to explain to the committee their plan going forward, and so on.

In terms of the variety of requests going between institutions, a lot of the exemptions are discretionary. In that context, each institution must always make a judgment call when it gets an access to information request. So it is not impossible that some access requests would generate different results from one institution to another even if the requests were the same. In fact, we do see that quite a bit, particularly from access requesters who are more experienced. They will send the same request to several departments. Of course, the departments may not all have the same information holdings in response to a specific request, so the results may be different.

In terms of performance, it is very uneven across institutions. I've always said that when the head of an institution is really committed to access to information and is committed to presumption in favour of disclosure, we usually see very good performance on access to information as a result.

[The Chair, NDP, Nathan Cullen]

Thank you, Madam Legault.

If there's a third part, perhaps you can weave it into the answer to the next round of questions.

[Suzanne Legault]

Okay.

[The Chair, NDP, Nathan Cullen]

Mr. Angus, I believe you're going to split your time with Madame Brosseau.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Yes. I just want to clarify one statement, and then I'll turn it over to my colleague.

I'm interested in your explanation of the extreme complexity of identifying which documents in ministerial offices are accessible and which aren't. I want to go back to Mr. Togneri's statement, which was very much a warning to you to “understand the consequences of grandstanding against a political staffer”. It seems to me that the decision of the court to interpret section 67.1 is creating a sense that an entire class of political staffers see themselves as being immune to being investigated, and that if there are questions about documents that may be damaging to ministers, the only persons who can make decisions about those documents being released are the ministers themselves. Are you concerned that we're in a situation again, an information black hole, that will ultimately undermine accountability within this government?

[Suzanne Legault]

As I explained, I don't think the decision of the Supreme Court is a good one. The court basically interpreted the act as it stands, so the only way to fix it would be to amend the legislation. It's not something that can now be fixed administratively. I think the decision is quite clear, and that's the test we have to live with. My preference would be that ministers' offices would be covered.

In relation to section 67.1 and cases of interference in ministers' offices and so on, as I explained before, I think it would be more appropriate for me to report to this committee in full once these investigations have been completed, because I will really have the full picture at that time. I'm making a commitment to this committee to do this. I'm basically promising you that this investigation is going to be in a special report. I already said that in my annual report. I think there is a lot of interest in this, and a better way to report on these cases is to have them in special reports to Parliament, as I did the last time.

[The Chair, NDP, Nathan Cullen]

Madame Brosseau, you have around three minutes.

[Ruth Ellen Brosseau, NDP, Berthier—Maskinongé, QC]

Thank you very much, Ms. Legault. I have just a few questions for you today. I would like to know what changes you propose to improve Canada's access to information regime, and which ones are the most pressing right now.

[Suzanne Legault]

That is a good question, an important question. As I mentioned in my speaking notes, I have undertaken an initiative to genuinely review the legislation, and I did so for a reason. It has been years since the information commissioner carried out a detailed review of this nature—the last one was done by Commissioner Reid. Since then, we have seen new models emerge in other countries, including Australia and Great Britain. Now, we can really see how these laws have evolved specifically within a Westminster parliamentary system, much like Canada's Parliament. That will give us a better idea of the situation. I have not completed my analysis. I expect to be spending a lot of time on it, and I plan to have something to present to the public next year.

Some changes are pressing. Commissioner Marleau made 12 recommendations to this committee, if I recall correctly. The authority to issue administrative orders, the authority to review Cabinet confidences are, in my opinion, very pressing.

Last year, our investigations revealed that 20% of the complaints regarding Cabinet confidences were founded, and yet I could not see the documents in question. Just by looking at a simple table that told me which documents fell under Cabinet confidence—documents that I did not even lay eyes on—we were able to determine that some 10 complaints out of 50 were founded. That remains a major concern for me.

My office's mandate to provide education, to conduct research, to do the work we do and even to appear before the committee are all activities that are not funded and that pose a real challenge for us. At the same time, I feel that we always provide Parliament with a different perspective than the government's. We offer what I consider to be a relevant perspective on the access to information regime and its administration.