Information & Ethics Committee on Feb. 25th, 2016

[The Chair, Conservative, Blaine Calkins]

The last person that has some questions here is Mr. Massé.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

How much time do I have left, Mr. Chair?

[The Chair, Conservative, Blaine Calkins]

Five minutes.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you.

Ms. Legault, you mentioned the difficulties you encountered in a specific case where there was a refusal to disclose information. You were engaged in a mediation and exchange process. Ultimately, you had to turn to the courts to move the case forward.

I am curious by nature, so I would like to know which department this involves because I am not aware of this aspect. I would also like to know which decision-making process was used. Ultimately, who decides not to disclose information?

[Suzanne Legault]

I do not know exactly which case you are talking about, because we have a number of cases in Federal Court at the moment.

The way it works—

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

What would you say are the worst cases?

[Suzanne Legault]

No one case is worse than another. Let me explain a bit how this works.

When we receive a complaint about a refusal to disclose information, we try to resolve the situation by talking with the institution in question. There is truly a mediation period. There is interaction between the investigators and the analysts. This happens among officials at both institutions. We try to determine what should be disclosed. If there are things or places where we agree that the information is being rightly protected, then we put that aside and focus on the areas where there is disagreement.

Ultimately, if we do not reach an agreement, we can invoke section 35. That is the first stage where we request formal representations from the institution. Usually, those representations go to a much higher level in the institution, maybe as high as the assistant deputy minister. If there is no agreement, then a formal letter from the commissioner is addressed directly to the minister or the director of the institution—some institutions do not have a minister. Then the person has the chance to decide whether there will be disclosure or not, according to our recommendations. If the person decides not to accept our recommendations, then the initial person requesting access to information is entitled to bring the case before Federal Court. I can also do that on behalf and with the consent of the claimant.

This is a lengthy process, but usually we resolve the cases. Very few cases go all the way to Federal Court. That generally happens when there is a difference in interpretation. It is neither bad nor good. It is simply a difference of interpretation between our office and the department. As far as I'm concerned, cases that end up in Federal Court are legitimate. We are working within legislation. As you know, the law is not like pharmaceuticals or mathematics. It is not black and white, there are no equations like 1 + 1 = 2.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

I have one last question.

How many cases are currently before the Federal Court?

[Suzanne Legault]

The Federal Court?

[Nancy Bélanger, General Counsel, Director of Legal Services, Office of the Information Commissioner of Canada]

Mr. Massé is asking about the cases that we have brought before the Federal Court.

[Suzanne Legault]

We have brought three cases before the Federal Court. The first has to do with the number of passengers on the no-fly list. The second has to do with documents in the Prime Minister's office, and the third has to do with data from the long-gun registry.

There are other cases in which my office is involved. Third parties bring matters before the court, and we are sometimes asked to make interventions regarding those cases. We have a few more of those kinds of cases.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you.

[The Chair, Conservative, Blaine Calkins]

I think we're satisfied around the table. As the chair, I'd like to use my prerogative, if it's okay with my colleagues here, to ask a couple of questions as well.

I listened to the debate and I want to thank you very much for your succinct answers.

I want one quick clarification. It seems to me there was a theme about efficiencies being found when it comes to departments. Just changing their culture and just being more proactive or meeting schedules, or whatever the case might be when it comes to actively disclosing information would solve a lot of your issues right up front.

Has anybody done a study on the cost? Yes, it costs money to do an access to information request, but it also costs money to follow a schedule and meet the publication of documents. Has anybody done a cost benefit analysis of either system?

[Suzanne Legault]

No, and they're not necessarily the same, i.e., what would be published through a publication scheme is not necessarily what's being requested.

The only thing we have done is we have looked at what data has been proactively published under the open government data initiative and the types of access to information requests, because they're very distinct. The only place I can see that we may be able to get data for the committee is in Scotland. In Scotland they really did have to look at publication schemes. There was an oversight process for publication schemes. They would have before and after information in terms of cost, what was published, and things like that. We can look to see if there's good information.

Remember, we used to not publish any information about travel or hospitality. We published some information about grants and contributions. These in the 1990s became almost like publication schemes. In other jurisdictions, publication schemes are based in part on those kinds of proactive disclosure.

There was some cost associated with that, but that's something the government decided to publish proactively because they were access to information requests.

[The Chair, Conservative, Blaine Calkins]

Oh, agreed. I'd be very curious to find this out.

So now we're going to Scotland and Sweden, it sounds like.

[Voices]

Oh, oh!

[The Chair, Conservative, Blaine Calkins]

The second question I have for you is on the generation gap you were talking about. I mean, you talked about the millennials, so I interpret that as a generation gap.

Let's take a look at the departments in the Government of Canada right now. I know there are some issues here within Parliament as well that we're talking about, but in the bureaucracy, there's a generation gap between the millennials, who are likely working in front-line or mid-management positions right now, and the folks who might be a little longer in the tooth, who are working in senior management positions. There's a cultural generational gap: a culture of secrecy, or the old way of doing things, versus the new culture, the millennial way of doing things, which is a much more collaborative, open, and transparent process.

I'm wondering if there are any good examples you can give us of where we might start looking to see how we can get government to be more open and to just kind of change that culture within the bureaucracy.

[Suzanne Legault]

This is not something I've looked at, but I know that Blueprint 2020, from the previous clerk, was based on something like that, on more collaborative information. They did a lot of consultation in terms of how this could be done better and things like that.

The Privy Council Office, dealing with Blueprint 2020, would probably be the best people to answer that question. They've done a lot of work with public servants.

[The Chair, Conservative, Blaine Calkins]

Okay.

My last question, on behalf of the entire committee, is that you indicated to us that the Swedish model might be of interest to this committee. You also talked a little bit about Scotland, about how they might have some befores and afters that would address my previous question.

Through the document that you've published, is there anyone that you feel this committee should be meeting with? Are there models not only provincially but from other federal governments around the world, other governments at the state or provincial levels in various other countries that we should be taking a look at with respect to incorporating or bringing in witnesses or studying the models they have? This would be from a positive perspective, as something we could do, but not necessarily only from a positive perspective; we'd like to look at it from a cautionary perspective as well, at some models that aren't working to make sure we don't go down that road.

I don't expect you to have a fulsome answer to that question right now, but perhaps you could get that to this committee in the very near future as we try to delineate who we need to talk to, or who we should be talking to. I think your recommendations would be very important, very insightful, and very helpful.

On behalf of the committee, I want to thank you and your staff for coming here today.

Yes, Mr. Erskine-Smith.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

I'd also asked Ms. Legault about the two issues in relation to the expansion. She'd mentioned that she'd report back, and I just wanted to make sure it was on her list.

[Suzanne Legault]

Yes.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Great. Thank you very much.

[The Chair, Conservative, Blaine Calkins]

Yes, I think that's already been taken care of. Active dialogue goes on here to make sure that all of the things we ask for will come to the committee.

I want to thank you very much for your time.

[Suzanne Legault]

Thank you very much.

[The Chair, Conservative, Blaine Calkins]

Should we need to speak to you again before our study concludes, I do sincerely hope that we will have that opportunity. On behalf of the committee, thank you for coming this morning.

We'll now go in camera to discuss future business.

[Proceedings continue in camera]